United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southeastern, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2323
Issued: February 21, 2008

Case Submitted on the Record

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

JURISDICTION
On September 12, 2007 appellant filed a timely appeal from the October 26, 2006 and
April 3, 2007 merit decisions of the Office of Workers’ Compensation Programs, which denied
an additional schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant has more than a 25 percent impairment of the right upper
extremity or more than a 16 percent permanent impairment of the left upper extremity.
FACTUAL HISTORY
On December 5, 2000 appellant, then a 41-year-old mail handler, filed a claim alleging
that her bilateral carpal tunnel syndrome was a result of repetitively unsleeving and moving trays
in the performance of duty. The Office accepted her claim for bilateral carpal tunnel syndrome
and authorized surgical releases on March 9 and April 6, 2001.

Appellant filed a claim for a schedule award and submitted a September 26, 2002 report
from Dr. Nicholas P. Diamond, an osteopath, who described his clinical findings and found a
45 percent impairment of the right upper extremity and a 52 percent impairment of the left upper
extremity due to grip strength deficit and sensory deficit of the median nerve.
An Office medical adviser noted that grip strength is not rated in carpal tunnel cases and
questioned Dr. Diamond’s finding that decreased sensation to light touch and pinprick was
preventing activities. The medical adviser recommended a second opinion and electrodiagnostic
studies.
On February 5, 2004 Dr. Tim Lachman, a neurologist and Office referral physician,
described his clinical findings and found a 25 percent impairment of the right upper extremity
and a 16 percent impairment of the left upper extremity due to sensory deficit of the median
nerve.
The Office found a conflict in medical opinion and referred appellant, together with the
case file and a statement of accepted facts, to Dr. Stanford S. Feinberg, a Board-certified
neurologist, for an impartial medical examination and impairment evaluation. On October 17,
2005 Dr. Feinberg described his clinical findings and the results of an electromyogram (EMG)
and nerve conduction study (NCS). He diagnosed carpal tunnel syndrome status post surgery
with residual median nerve dysfunction manifested by objective sensory loss to pinprick and
abnormal motor conductions. Dr. Feinberg found a 25 percent impairment of the right upper
extremity and a 16 percent impairment of the left upper extremity due to sensory deficit of the
median nerve. He concurred with Dr. Lachman’s findings.
On November 9, 2005 the Office issued a schedule award for a 25 percent impairment of
the right upper extremity and a 16 percent impairment of the left. On September 19, 2006
Dr. Feinberg prepared a supplemental report. He reviewed Dr. Diamond’s 2002 findings and
clarified that his opinion remained unchanged. In a decision dated October 26, 2006, the Office
denied additional schedule compensation.
In a decision dated April 3, 2007, an Office hearing representative affirmed the
October 26, 2006 decision. The hearing representative found that Dr. Feinberg’s opinion
represented the weight of the medical evidence and established that appellant was not entitled to
an additional schedule award.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the

1

5 U.S.C. § 8107.

2

American Medical Associations, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).2
If there is 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.3 When there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.4
ANALYSIS
A conflict arose between Dr. Diamond, appellant’s osteopath, and Dr. Lachman, the
Office referral neurologist, not simply in their impairment ratings but in their clinical findings.
The Office properly referred appellant to Dr. Feinberg, a Board-certified neurologist, for an
impartial medical examination and impairment evaluation.
With positive clinical findings of median nerve dysfunction and electrical conduction
delays, impairment due to residual carpal tunnel syndrome is rated according to the sensory and
motor deficits described in Chapter 16.5b of the A.M.A., Guides.5 Although median sensory
conductions were within the limits of normal at 51 milliseconds, Dr. Feinberg noted diminished
pinprick on the distal median distributions bilaterally. He judged the sensory deficit somewhat
worse on the right,6 grading the deficit at 65 percent compared to 40 percent on the left.
Dr. Feinberg multiplied these deficits by the maximum sensory impairment attributable to the
median nerve below the midforearm, 39 percent7 and determined that appellant had a 25 percent
impairment of the right upper extremity and a 16 percent impairment of the left. This is what the
Office awarded.
Although his EMG and NCS demonstrated prolongation of the distal median motor
latencies at 4.6 milliseconds on the right and 4.5 on the left, Dr. Feinberg’s physical examination
revealed no motor wasting and 5/5 motor strength in all muscle groups of the hand. He therefore

2

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001, the Office began using the A.M.A., Guides

th

3

5 U.S.C. § 8123(a).

4

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

5

A.M.A., Guides 495 (Scenario 1).

6

Tinel’s sign that was questionably positive on the right and negative on the left.

7

A.M.A., Guides 492 (Table 16-15).

3

reported no motor loss.8 Dr. Diamond reported additional impairment values for loss of grip
strength, which the A.M.A., Guides prohibits in compression neuropathies.9
The Board finds that the opinion of the impartial medical specialist carries special weight
and resolves the conflict that arose on the extent of appellant’s impairment. Dr. Feinberg
properly followed the procedure set forth in the A.M.A., Guides for determining impairment due
to residual carpal tunnel syndrome. The Board will affirm the Office decisions denying an
additional schedule award.
CONCLUSION
The Board finds that appellant has no more than a 25 percent impairment of the right
upper extremity and no more than a 16 percent permanent impairment of the left, for which he
has received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2007 and October 26, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 21, 2008
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
8

In evaluating both sensory and motor impairment, Dr. Feinberg gave greater weight to his findings on physical
examination and appellant’s complaints, than to the results of the NVC. The A.M.A., Guides emphasizes that there
is no correlation between the severity of conduction delay and the severity of either symptoms or, more important,
impairment rating. Id. at 493.
9

Id. at 494.

4


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

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Appearances:
Aaron B. Aumiller, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-758
Issued: October 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On February 22, 2012 appellant, through counsel, filed a timely appeal from a
January 12, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying
his traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a right hip condition in
the performance of duty on October 12, 2010, as alleged.
On appeal appellant’s counsel contends that OWCP incorrectly interpreted the law and
facts. Specifically, he contends that OWCP failed to give appropriate weight and consideration
to medical reports from appellant’s treating physicians.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 12, 2010 appellant, then a 52-year-old city carrier, filed a traumatic injury
claim alleging that on that date he sustained right hip avulsion fracture and severe arthritis as the
result of carrying a heavy bag of parcels and mail up a steep incline.
In an October 19, 2010 duty status report (Form CA-17), Dr. R. Bruce Heppenstall, a
treating Board-certified orthopedic surgeon, diagnosed right hip arthritis and indicated that
appellant was totally disabled from working. He noted that appellant fell on October 12, 2010
while going up a steep incline with heavy parcels and felt pain and pressure in his front. In an
October 19, 2010 narrative report, Dr. Heppenstall diagnosed severe osteoarthritis. He provided
physical findings and x-ray interpretations of the hips. Appellant related that he injured his back
and felt a sharp pain in his right hip while delivering mail up a steep incline on October 12, 2010.
Dr. Heppenstall stated that it was obvious that the degenerative arthritis had been present for a
long time. On November 4, 2010 he stated that appellant was seen for his right hip degenerative
arthritis and recommended a total right hip replacement.
By letters dated December 16 and 21, 2010, OWCP informed appellant that the evidence
of record was insufficient to support his claim. It advised him as to the type of medical and
factual evidence required to support his claim. Appellant was given 30 days to provide the
requested information. He did not reply within the allotted time.
By decision dated January 28, 2011, OWCP denied appellant’s traumatic injury claim on
the grounds that he failed to establish that the diagnosed condition was due to the October 12,
2010 employment incident.
Subsequent to the denial of his claim, OWCP received a January 10, 2011 surgical report,
a July 26, 2011 report and progress notes dated June 21 and September 1, 2011. The January 10,
2011 surgical report diagnosed severe right hip degenerative arthritis and noted that appellant
underwent total right hip arthroplasty.
Dr. Heppenstall, in a June 21, 2011 progress note, reported that appellant was doing well
following his right hip surgery and that he was ambulating well. A physical examination
revealed full hip range of motion.
On July 26, 2011 Dr. Ernest J. Gentchos, a treating Board-certified orthopedic surgeon,
stated that appellant had right hip pain since his surgery in January. Appellant related that he
believed he was unable to perform his work duties as he was unable to walk or stand. A physical
examination revealed pain in the right abductor muscles, a palpable right groin femoral artery
and no right lower extremity weakness. Appellant, however, was apprehensive and somewhat
guarded with internal rotation and adduction of the right hip.
In progress notes dated September 1, 2011, Dr. Heppenstall related that appellant
attempted to return to work, but was only able to work one and one-half hours. He
recommended that appellant apply for disability.
By letter dated December 23, 2011, appellant’s counsel requested reconsideration and
submitted medical evidence in support of the request. In a December 14, 2011 report,
2

Dr. Heppenstall noted that he first saw appellant on October 19, 2010 for right hip and low back
discomfort and pain. Physical findings included decreased right hip motion and pain. A review
of x-ray interpretations revealed severe osteoarthritis and “the possibility of an old trauma.”
Dr. Heppenstall related that appellant felt he injured his back on October 12, 2010 while
delivering mail up a steep incline. Appellant told the physician he had no prior employment
injuries. Dr. Heppenstall related that prior to the October 12, 2010 employment incident
appellant was able to perform his employment duties even though he had right hip degenerative
arthritis. Appellant believed that he was totally disabled from performing his duties as a mail
carrier due to limitations imposed by his hip condition. In concluding, Dr. Heppenstall opined
that appellant’s right hip condition appeared to be due to his employment duties based on
examination findings and objective medical evidence.
By decision dated January 12, 2012, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.6 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.7
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
2

5 U.S.C. § 8101 et seq.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

6

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 3.
8

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

3

compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.11 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.12
ANALYSIS
Appellant alleged that he sustained right hip avulsion fracture and severe arthritis as the
result of carrying a heavy bag of parcels and mail up a steep incline on October 12, 2010.
OWCP found the evidence sufficient to establish that the incident occurred as alleged, but that
the evidence of record was devoid of any medical evidence diagnosing a condition causally
related to the October 12, 2010 employment incident. The issue is whether appellant has
established that he sustained a right hip condition causally related to the October 12, 2010
employment incident. The Board finds that he has failed to meet his burden of proof.
In support of his claim, appellant submitted various reports from Dr. Heppenstall, a
surgical report and a report from Dr. Gentchos.
In his reports, Dr. Heppenstall diagnosed severe osteoarthritis. Additionally, on
October 19, 2010 he noted that appellant felt a sharp pain in his right hip and back while
delivering mail up a steep incline on October 12, 2010. Dr. Heppenstall recommended a total
hip replacement on November 4, 2010. He noted that appellant was doing well following the
right hip surgery on June 21, 2011, but recommended that appellant apply for disability in his
September 1, 2011 progress note due to appellant’s unsuccessful attempt to return to work. In
his December 14, 2011 report, Dr. Heppenstall opined that appellant’s right hip condition
appeared to be due to his employment duties. He noted that appellant had no prior employment
injuries and was able to perform his duties prior to the October 12, 2010 employment incident.
The Board finds that Dr. Heppenstall failed to directly address the issue of causal relationship as
he did not explain how the mechanism of the October 12, 2010 employment incident caused or
aggravated appellant’s preexisting severe right hip osteoarthritis. Dr. Heppenstall did not
9

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997).

10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
11

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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provide medical rationale explaining how appellant’s right hip condition had been caused or
aggravated by walking up a steep incline to deliver mail on October 12, 2010. Lacking thorough
medical rationale on the issue of causal relationship, the reports are of limited probative value
and not sufficient to establish that appellant sustained an employment-related injury in the
performance of duty on October 12, 2010.13
Appellant also submitted reports from Dr. Gentchos which are of limited probative value
since none offered an opinion on whether appellant’s October 12, 2010 employment incident
caused or aggravated his right hip condition.14
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.15 Causal relationship must be established by
rationalized medical opinion evidence and he failed to submit such evidence.
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Consequently, appellant has not met his burden of proof in
establishing that his claimed right hip condition was causally related to the October 12, 2010
employment incident.
On appeal appellant’s counsel contends that OWCP erred in its consideration of the
medical evidence submitted by appellant and failed to correctly apply the law and the facts to
evidence submitted. For the reasons stated above, the Board finds that his arguments are not
substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607
CONCLUSION
The Board finds that appellant failed to establish that he sustained a right hip condition
causally related to the accepted October 12, 2010 employment incident.

13

See S.S., 59 ECAB 315 (2008); Richard A. Neidert, 57 ECAB 474 (2006); Mary E. Marshall, 56 ECAB 420
(2005) (medical reports not containing rationale on causal relation are entitled to little probative value and are
generally insufficient to meet an employee’s burden of proof). See also M.W., 57 ECAB 710 (2006); Cecelia M.
Corley, 56 ECAB 662 (2005) (medical conclusions based on an inaccurate or incomplete factual history are of
diminished probative value).
14

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Ellen L.
Noble, 55 ECAB 530 (2004).
15

See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB
339 (2004); Anna C. Leanza, 48 ECAB 115 (1996).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 12, 2012 is affirmed.
Issued: October 5, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
DEPARTMENT OF THE TREASURY, OFFICE
OF THE COMPTROLLER OF THE
CURRENCY, Downers Grove, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0408
Issued: November 3, 2021

Case Submitted on the Record

ERRATUM
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

The Board issued an Order Dismissing Appeal in the above-entitled case on
October 7, 2021 under Docket No. 21-0408.
The Board, having duly considered the matter, concludes that the October 7, 2021 order
was issued erroneously, as it should have dismissed the appeal under Docket No. 21-0089 and not
under Docket No. 21-0408. Consequently, the October 7, 2021 order must be vacated and the
corrected order issued. The appeal docketed as No. 21-0408 shall go forward. Accordingly,

IT IS HEREBY ORDERED THAT the October 7, 2021 order of the Board is vacated.
The corrected order dismissing the appeal under Docket No. 21-0089 is attached and is hereby
issued.
Issued: November 3, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, CLEVELAND POST
OFFICE, Cleveland, OH, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0359
Issued: March 1, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 12, 2022 appellant filed a timely appeal from a December 13, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 22-0359.
In a letter dated February 15, 2022, appellant requested that the appeal be withdrawn.
The Board has duly considered the matter and concludes that appellant’s request for the
withdrawal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the withdrawal of the appeal
is granted. The appeal docketed as No. 22-0359 is dismissed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, Warner Robins, GA,
Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0278
Issued: January 28, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 19, 2019 appellant, through counsel, filed a timely appeal from a May 23,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated February 21, 2018, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks 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 OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 18, 2017 appellant, then a 58-year-old management assistant, filed a
traumatic injury claim (Form CA-1) alleging that on November 29, 2017 at approximately 9:15
a.m. she was injured when an elevator door slammed into the back of her leg and knee, causing
continuous pain, while in the performance of duty. She indicated that she previously injured the
same knee on a bridge at work and required surgery. Appellant did not stop work.
The employing establishment asserted that it was unknown as to whether appellant was
injured while in the performance of duty because her account of the employment incident had not
been corroborated by any witnesses. It was further noted that she had been off work for five
months in 2017 due to left knee surgery and, thus, the alleged November 29, 2017 injury may have
aggravated a preexisting knee condition.
OWCP also received a copy of appellant’s July 7, 2017 request for reasonable
accommodation for a work-related knee injury, which she noted required surgical treatment.
In a November 21, 2017 work note, Dr. Derrick D. Phillips, a Board-certified orthopedic
surgeon, provided work restrictions of walking 500 feet or less due to appellant’s knee problems.
In an undated report of work status (Form CA-3), the employing establishment noted that
appellant returned to work with restrictions on the date of injury following the alleged employment
incident.
Appellant’s supervisor noted in a November 29, 2017 report that appellant alleged that she
was on her way to an appointment when an elevator door hit her right thigh and knee, instantly
causing pain in her knee.
In a December 1, 2017 statement, appellant asserted that on November 29, 2017 she was
on her way to an appointment. She noted that, when she stepped into an elevator with her right
foot, the elevator door started closing in on her and hit her right thigh and knee. Appellant
indicated that she immediately felt pain. She noted that she limped off until the pain subsided to
make it to her appointment. Appellant indicated that her pain continued and that she visited the
employing establishment’s occupational medicine service (OMS) the next morning. She noted
that the OMS subsequently instructed her to see a physician.
In a December 1, 2017 OMS form report, an unidentifiable healthcare provider noted that
appellant was treated on November 30, 2017. In an OMS medical report of even date, Jay. A.
Miller, a physician assistant, indicated that appellant could return to work with temporary
restrictions.
In a December 1, 2017 Occupational Safety and Health Administration (OSHA) injury and
illness incident report (OSHA Form 301), appellant reported that on November 29, 2017 she was
2

getting ready to step into an elevator to go to an appointment by putting her right foot forward in
the elevator. However, the elevator door proceeded to close before she could get the other foot in
and hit the muscles on her right leg and knee. Appellant explained that the elevator door sensor
did not react until the impact. In the same report, an unidentifiable healthcare provider diagnosed
right thigh contusion.
In a December 4, 2017 OMS medical report, Dr. Sean L. Moore, Board-certified in public
health and general preventative medicine, indicated that appellant could return to work with
temporary restrictions.
In a December 6, 2017 OMS medical report, Mr. Miller again noted that appellant could
return to work with temporary restrictions.
On December 21, 2017 OWCP received an official copy of appellant’s management
assistant position description and a July 23, 2017 notification of personnel action, (Standard Form
(SF)-50).
On December 22, 2017 the employing establishment controverted appellant’s claim.
In a January 16, 2018 development letter, OWCP informed appellant of the deficiencies in
her claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary
evidence.
In an undated statement, appellant noted that she left her work area at approximately 9:15
a.m. to go to an appointment in the building on the employing establishment’s premise.
In a January 30, 2018 work note, Dr. Phillips noted that appellant could return to work
without restrictions on January 19, 2019.
In a February 1, 2018 letter, the employing establishment noted that there was an error with
the date of injury, indicating the correct date of injury as “November 21, 2018.”
By decision dated February 21, 2018, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish causal relationship between her
diagnosed right knee condition and the accepted November 29, 2017 employment incident. It
mailed the decision to her current address of record.3
On May 10, 2019 appellant, through counsel, requested reconsideration. Counsel indicated
that appellant did not receive OWCP’s February 21, 2018 decision, nor its January 16, 2018
development letter, until May 10, 2018. He argued that, while the employing establishment
controverted her claim, OWCP must accept her allegations as factual unless refuted by strong
persuasive evidence. Counsel also noted that appellant had a preexisting right knee condition and
requested that OWCP accept her claim as an aggravation to her preexisting condition.

3

On May 10, 2018 OWCP resent a copy of its February 21, 2018 decision to appellant.

3

In an accompanying May 10, 2019 response to OWCP’s development questionnaire,
appellant explained that on the day of her injury she was going to the Equal Employment
Opportunity office to file a complaint.4 She asserted that the employing establishment erroneously
listed November 21, 2017 as the date of injury on a few occasions and also listed the wrong mailing
address on her initial Form CA-1. Appellant alleged that the elevator in question was old and
constantly needed repair. She asserted that, when the elevator door hit her knee, it reversed the
effects of her previous surgery. Appellant indicated that she had pain and swelling in her knee, as
well as an electrical shock sensation. She noted that, while she previously experienced pain and
swelling from her prior injury, the electrical shock was a new sensation.
By decision dated May 23, 2019, OWCP denied appellant’s request for reconsideration of
the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.8 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.9

4

OWCP assigned OWCP File No. xxxxxx749 to the emotional condition claim.

5

Supra note 2 at § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468
(issued February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
6

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N.,
Docket No. 08-1569 (issued December 9, 2008).
7

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
8

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

9
Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).

4

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
On reconsideration appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, or advance a new and relevant legal argument not previously considered.
Consequently, she is not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under 20 C.F.R. § 10.606(b)(3).10
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of her reconsideration request under 20 C.F.R. § 10.606(b)(3). The underlying issue in
this case is whether the accepted November 29, 2017 employment incident caused or aggravated
her diagnosed condition. This is a medical issue that must be addressed by relevant medical
evidence, including the rationalized opinion of a physician.11
In support of her timely request for reconsideration, counsel argued that appellant had a
preexisting right knee condition and requested that OWCP accept her claim as an aggravation of
the preexisting condition. He further argued that it must accept her allegations as factual unless
refuted by strong persuasive evidence. The Board finds that these arguments do not attempt to
show that OWCP erroneously applied or interpreted a specific point of law relevant, nor do they
advance a new and relevant legal argument not previously considered.
Appellant also submitted a May 10, 2019 response to OWCP’s development questionnaire
where she asserted that the elevator in question was old and constantly needed repair. She
contended that, when the elevator door hit her knee, it reversed the effects of her previous knee
surgery, causing pain, swelling, and an electric shock sensation. The Board finds that appellant’s
May 10, 2019 response to OWCP’s development questionnaire does not constitute medical
evidence and no medical evidence was submitted along with her request for reconsideration.
The Board, accordingly, finds that appellant’s request for reconsideration did not meet any
of the requirements of 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly
denied merit review.12

10
M.O., Docket No. 19-1677 (issued February 25, 2020); E.W., Docket No. 19-1393 (issued January 29, 2020);
C.B., Docket No. 18-1108 (issued January 22, 2019).
11

Supra note 8; D.B., Docket No. 19-1963 (issued July 1, 2020); M.C., Docket No. 18-0841 (issued September 13,
2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
12

A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued April 10, 2017); A.M.,
Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694
(2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the
three requirements enumerated under 20 C.F.R. § 10.606(b), OWCP will deny the request for reconsideration without
reopening the case for a review on the merits).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT May 23, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 28, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, VIRGIN
ISLANDS NATIONAL PARK, St. John, VI,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0218
Issued: July 8, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On December 1, 2020 appellant filed an appeal from a May 28, 2020 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0218.
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act
(FECA).1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance of
OWCP’s decision.2
The 180th day following the May 28, 2020 decision was November 24, 2020. As appellant
did not file an appeal with the Board until December 1, 2020, more than 180 days after the May 28,
2020 OWCP decision, the Board finds that the appeal docketed as No. 21-0218 is untimely filed.
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

The Board, therefore, is without jurisdiction to review the appeal. Appellant has not offered a
reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances. Because there is no final, adverse decision issued by OWCP
within 180 days of the December 1, 2020 filing of the instant appeal, the Board concludes that the
appeal docketed as No. 21-0218 must be dismissed.3 Accordingly.
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0218 is dismissed.
Issued: July 8, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” Id. at
§ 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MARTINSBURG VETERANS
ADMINISTRATION MEDICAL CENTER,
Martinsburg, WV, Employer
__________________________________________

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

Docket No. 19-1928
Issued: May 8, 2020

Case Submitted on the Record

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

JURISDICTION
On September 17, 2019 appellant, through counsel, filed a timely appeal from a June 27,
2019 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 has met her burden of proof to establish medical conditions
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On November 6, 2018 appellant, then a 36-year-old medical instrument technologist, filed
an occupational disease claim (Form CA-2) alleging that she developed right carpal tunnel
syndrome and right ulnar neuropathy due to factors of her federal employment. In a supplemental
statement, she asserted that her conditions were caused by work-related activities including the
continued repetitive motions associated with imaging, scanning, and ultrasound diagnostics.
Appellant noted that she first became aware of her conditions and realized that they were caused
or aggravated by factors of her federal employment on June 1, 2018. She did not stop work.
In a November 14, 2018 development letter, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. In a separate letter of even date,
OWCP notified the employing establishment of appellant’s occupational disease claim and
requested additional information from a knowledgeable supervisor. It afforded both parties 30
days to submit the necessary evidence.
In an undated narrative statement, appellant responded to OWCP’s development
questionnaire. She indicated that she began experiencing right wrist pain while scanning in
June 2018. Appellant noted that she visited her primary care physician who recommended that
she try wearing a splint while scanning. She indicated that after two months of splint use, there
was no relief in pain. Appellant stated that she was referred to an orthopedic specialist who ordered
an electromyography (EMG). She reported that the EMG revealed right carpal tunnel syndrome
and left ulnar neuropathy and that the orthopedic specialist recommended surgical release of right
carpal tunnel. Appellant noted that she did not participate in exercise activities at home and that
she had never had an injury to her hand, arm, or wrist before. She indicated that she experienced
numbness, tingling, pain, and limited grip strength from repetitive use of both hands in the course
of her federal employment.
By decision dated January 9, 2019, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish specific employment factors that she believed
contributed to her conditions. It noted that she only provided vague and general information
without supporting evidence or specific examples. OWCP concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
On April 1, 2019 appellant requested reconsideration.
evidence.

OWCP continued to receive

Appellant submitted literature regarding work-related musculoskeletal disorders in
sonography.

2

In a July 31, 2018 report, Dr. Jeffrey Kellogg, a Board-certified family practitioner, noted
that appellant was experiencing pain along the radial and ulnar aspects of her wrist/distal forearm.
He diagnosed a strain of the right wrist and hand and recommended that appellant wear a wrist
splint and avoid painful activity.
In a September 21, 2018 medical note, Dr. Kellogg indicated that appellant was
experiencing right wrist pain as a result of her work as an ultra-sonographer. He noted that there
was no obvious swelling or redness of the right wrist and diagnosed a strain of the right wrist and
hand.
In an October 9, 2018 report, Dr. John W. Buschman, an osteopath specializing in
orthopedic surgery, related that appellant was experiencing right wrist pain with numbness into
her middle, ring, and small fingers. He noted that as an ultrasound technician, appellant sometimes
had her wrist flexed or extended. Dr. Buschman reviewed x-ray scans of appellant’s right wrist
and diagnosed right ulnar neuropathy.
In an October 30, 2018 report, Dr. Buschman noted that as an ultrasound technician,
appellant was constantly using her right hand to run ultrasound probes. He reviewed EMGs,
performed a physical examination, and diagnosed right carpal tunnel syndrome and left ulnar
neuropathy. Dr. Buschman recommended surgical release of appellant’s right carpal tunnel.
In a March 25, 2019 letter, Dr. Kellogg noted that he was appellant’s primary care
physician and that he had previously opined that her right wrist pain was “certainly related to her
work as an ultra-sonographer.” He also opined that appellant’s carpal tunnel syndrome was “a
direct result of her work as an ultra-sonographer” and should be “covered” as an employmentrelated injury.
In an undated narrative statement, appellant explained that she worked as a registered
diagnostic medical sonographer which required her to hold a transducer in her right hand and type
with her left hand. She noted that she performed scanning activities for 40 plus hours a week.
Appellant indicated that, while performing ultrasounds, she used repetitive motions and forceful
or awkward movements of many body parts including her hand and wrist. She reported that she
sustained pressure on her wrist for long durations because her department was chronically
understaffed. Appellant related that many of her patients were morbidly obese which required her
to use excessive pressure, force, and strain on her wrist to acquire optimal imaging. She alleged
that her carpal tunnel syndrome was a result of constant scanning which involved flexion and
extension of her hand and wrist to manipulate the ultrasound transducer. Appellant also noted that
she frequently pushed and pulled her ultrasound machine and transported patients in wheel chairs,
stretchers, and hospital beds. She indicated that this required flexion and extension of her wrist.
Appellant asserted that she sometimes scanned twice the number of patients than the recommended
safe number. She clarified that she believed pushing, pulling, gripping, pinching, scanning,
flexing, extending, transporting, and typing motions of her hand and wrist caused her conditions.
In an April 25, 2019 narrative statement, appellant noted that she did not engage in any
other nonwork activities that would cause her to injure or overuse her wrist.

3

By decision dated June 27, 2019, OWCP modified the January 9, 2019 decision finding
that she had established specific employment factors. However, it further found that the claim
remained denied as the medical evidence of record was insufficient to establish conditions were
caused or aggravated by the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.9

3

Id.

4

R.S., Docket No. 19-1774 (issued April 3, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

C.F., Docket No. 19-1748 (issued March 27, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6
20 C.F.R. § 10.115; E.S., Docket No. 18-1580 (issued January 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

See T.L., Docket No. 18-0778 (issued January 22, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
8

P.L., Docket No. 19-1750 (issued March 26, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish medical
conditions causally related to the accepted factors of her federal employment.
In reports dated July 31 and September 21, 2018, Dr. Kellogg diagnosed a strain of the
right wrist and hand, but failed to provide an opinion as to whether the sprain was causally related
to the accepted factors of appellant’s federal employment. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.10 Accordingly, these medical notes are
insufficient to establish appellant’s claim.
In a March 25, 2019 letter, Dr. Kellogg opined that appellant’s right wrist pain and carpal
tunnel syndrome were a direct result of her work as an ultra-sonographer. Although he supported
causal relationship, he did not offer medical rationale explaining the basis of his conclusory
opinion regarding the causal relationship between appellant’s right hand and wrist conditions and
the factors of her federal employment.11 The Board has held that a mere conclusion without the
necessary rationale as to whether a period of disability is due to an accepted employment condition
is insufficient to meet a claimant’s burden of proof.12 As such, this letter is of limited probative
value.
In medical reports dated October 9 and 30, 2018, Dr. Buschman indicated that appellant
worked as an ultrasound technician which required her to sometimes flex and extend her wrist and
constantly use her right hand to run ultrasound probes. He diagnosed right ulnar neuropathy, right
carpal tunnel syndrome, and left ulnar neuropathy, but did not provide medical rationale regarding
causal relationship. As Dr. Buschman failed to explain how the accepted employment factors
physiologically caused or contributed to the diagnosed conditions, his reports are of limited
probative value.13
Appellant also submitted a number of excerpts from publications. The Board has held that
medical texts and excerpts from publications are of no evidentiary value in establishing the causal
relationship between a claimed condition and an employee’s federal employment as such materials
are of general application and are not determinative of whether the specific condition claimed is
related to the particular employment factors alleged by the employee.14 This material has probative
value only to the extent that it is interpreted and cited by a physician rendering an opinion on the

10

C.F., supra note 5; L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018).
11

P.L., supra note 8.

12

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

13

M.M., Docket No. 19-1580 (issued February 19, 2020); K.G., Docket No. 18-1598 (issued January 7, 2020); A.B.,
Docket No. 16-1163 (issued September 8, 2017).
14
L.C., Docket No. 17-1811 (issued March 23, 2018); N.B., Docket No. 14-1702 (issued December 29, 2014); S.A.,
Docket No. 13-1551 (issued December 17, 2013); Gloria J. McPherson, 51 ECAB 441 (2000).

5

causal relationship between a condition and specified employment injury.15 As these publications
were not interpreted and cited by appellant’s physicians in offering a rationalized medical opinion
as to how appellant’s specific employment factors caused her diagnosed conditions, these
publications are insufficient to establish causal relationship.
As appellant has not submitted rationalized medical evidence explaining the causal
relationship between her diagnosed medical conditions and the accepted factors of her federal
employment, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
conditions causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the June 27, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 8, 2020
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
15

L.C., id.; C.S., Docket No. 12-1169 (issued November 5, 2012); Harlan L. Soeten, 38 ECAB 566, 567 (1987).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Muscle Shoals, AL, Employer
__________________________________________

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

Docket No. 09-906
Issued: October 27, 2009

Case Submitted on the Record

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

JURISDICTION
On February 20, 2009 appellant filed a timely appeal from a November 24, 2008 merit
decision of the Office of Workers’ Compensation Programs and a nonmerit decision dated
January 8, 2009. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a hearing loss causally related to his federal employment; and (2) whether the Office
properly refused to reopen his case for reconsideration under 5 U.S.C. § 8128.

FACTUAL HISTORY
On June 20, 2008 appellant, a 76-year-old painter and sandblaster, filed an occupational
disease claim alleging that he sustained bilateral hearing loss as a result of work-related noise
exposure. The record reflects that he retired on December 27, 1996.1
In a July 8, 2008 letter, the Office informed appellant that the information he submitted
was insufficient to establish his claim. It requested additional information, including a history of
work-related noise exposure and a physician’s report containing a diagnosis and an opinion as to
the cause of the diagnosed condition. The Office asked appellant to fill out a questionnaire
pertaining to these subjects.
On July 24, 2008 appellant completed the questionnaire and advised that he had exposure
to end grinders, scoffing, air pots, portable electric chipping, air hammers, handsaws gas and
electric air compressors, 8 to 12 hours per day, five to seven days per week, throughout his
federal employment from 1962 through 1996. He noted that he was not provided any hearing
protection. In support of his claim, appellant submitted copies of employing establishment
audiograms performed from June 20, 1967 to November 30, 1989, either unsigned or bearing
illegible signatures, reflecting bilateral hearing loss.
The record contains reports of audiograms dated June 11, 1991 and June 25, 2008. The
June 11, 1991 audiogram, reflecting responses of 5, 15, 5 and 35 decibels at 500, 1,000, 2,000
and 3,000 Hertz (Hz) in the left ear and 40, 20, 15 and 40 decibels at 500, 1,000, 2,000 and 3,000
Hz in the right ear. The July 25, 2008 audiogram showed responses of 55, 55, 70 and 70
decibels at 500, 1,000, 2,000 and 3,000 Hz in the left ear and 45, 40, 60 and 65 at 500, 1,000,
2,000 and 3,000 Hz in the right ear.
The Office referred appellant, together with a copy of his medical record and a statement
of accepted facts, to Dr. Howard M. Goldberg, a Board-certified otolaryngologist, for an opinion
on whether appellant had a hearing loss caused by his employment-related noise exposure. In a
September 16, 2008 report, Dr. Goldberg opined that appellant’s hearing loss was not related to
the accepted noise exposure in his federal employment. He noted that appellant was exposed to
significant noise levels during his federal employment; however, appellant already had a very
mild, high frequency, sensorineural bilateral hearing loss at the time he commenced federal
employment. A review of the sequential audiograms did not reveal a progression of hearing loss
during appellant’s federal workplace exposure. Appellant opined that the audiogram taken on
the day of his examination showed evidence of sensorineural bilateral hearing loss compatible
with bilateral presbycusis rather than noise exposure.2 Dr. Goldberg’s examination of appellant
was within normal limits and revealed that tympanic membranes and canals were clear.

1

The statement of accepted facts dated August 5, 2008 listed that appellant retired on December 27, 1991. The
date listed, however, is apparently incorrect.
2

A September 16, 2008 audiogram, performed by Aaron Johnson, an audiologist, accompanied Dr. Goldberg’s
report. Testing of the right ear at frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibel losses of 35,
35, 45 and 55, respectively and in the left ear decibel losses of 35, 45, 60 and 70 respectively.

2

In a September 22, 2008 report, an Office medical adviser noted that Dr. Goldberg had
found that appellant’s hearing loss was not work related. However, he disagreed with
Dr. Goldberg’s statement that there had been no progression of hearing loss during appellant’s
period of federal employment. The medical adviser noted that there was an increase in the
thresholds at 3,000 Hz.
By decision dated November 24, 2008, the Office accepted that appellant had filed a
timely claim and that he had been exposed to noise during his federal employment. However, it
denied his claim on the grounds that the medical evidence failed to establish that his hearing loss
was causally related to established work-related noise exposure.
By letter dated December 29, 2008, appellant requested reconsideration. He did not
submit any additional medical evidence with his request.
By decision dated January 8, 2009, the Office denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of her claim, including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that the 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. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.3
To 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) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
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 a claimant. 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

3

Gary J. Watling, 52 ECAB 357 (2001).

3

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
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 the condition was caused, precipitated or aggravated by his employment, is
sufficient to establish a causal relationship.5 The mere fact that a disease or condition manifests
itself or worsens during a period of employment6 or that work activities produce symptoms
revelatory of an underlying condition7 does not raise an inference of causal relation between the
condition and the employment factors.
ANALYSIS -- ISSUE 1
It is not disputed that appellant was exposed to work-related noise from 1962 to 1996.
However, the weight of the medical evidence of record does not establish that his hearing loss is
causally related to his accepted employment-related noise exposure.
Appellant submitted various audiogram results, which were either unsigned or bore
illegible signatures, reflecting bilateral hearing loss. However, none of the audiograms were
accompanied by a physician’s discussion of the employment factors believed to have caused or
contributed to his hearing loss. Thus, these reports from audiologists do not constitute probative
medical evidence.8 Appellant has not submitted any other medical evidence providing an
opinion as to the cause of his hearing loss. Thus, the evidence of record is insufficient to
establish his claim.9
Dr. Goldberg examined appellant and reviewed the medical record, including the
sequential audiograms conducted during appellant’s federal employment and a September 16,
2008 audiogram. He provided examination findings and diagnosed progressive (conductive)
hearing loss in the left ear only, noting that the right ear was stable. Dr. Goldberg explained that
the hearing loss pattern was not suggestive of noise-induced hearing loss. He also advised that
appellant did not show a sensorineural loss in excess of what would normally be predicted on the
basis of presbycusis. Based upon his review of the record and examination of appellant,

4

Solomon Polen, 51 ECAB 341 (2000).

5

Robert G. Morris, 48 ECAB 238-39 (1996); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

William Nimitz, Jr., supra note 5.

7

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

8

See 5 U.S.C. § 8101(2). This subsection defines the term physician. See also Charley V.B. Harley, 2 ECAB
208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician);
Herman L. Henson, 40 ECAB 341 (1988) (an audiologist is not considered a physician under the Act). See also
Robert E. Cullison, 55 ECAB 570 (2004) (the Office does not have to review every uncertified audiogram, which
has not been prepared in connection with an examination by a medical specialist).
9

See Mary E. Marshall, 56 ECAB 420, 427 (2005).

4

Dr. Goldberg found that appellant’s hearing loss was not causally related to noise exposure
during her federal employment.
The Board finds that the medical evidence does not establish that appellant’s hearing loss
was employment related. Dr. Goldberg provided a reasoned medical opinion that appellant’s
hearing loss was not related to occupational noise exposure.
The Board notes that the Office medical adviser disagreed with one aspect of
Dr. Goldberg’s opinion that appellant sustained no progression of hearing loss during his period
of federal employment. He noted an increase in threshold losses at 3,000 Hz. The Office
medical adviser, however, did not state that appellant’s hearing loss was caused by noise
exposure in his employment. There is no medical evidence of record establishing that
appellant’s hearing loss was causally related to his federal employment. The Board will affirm
the November 24, 2008 Office decision.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by constituting
relevant and pertinent evidence not previously considered by the Office.10 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.11
ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law. He did not advance a relevant legal argument not previously
considered by the Office. Appellant did not submit any additional medical evidence in
connection with his December 29, 2008 reconsideration request; therefore, it did not contain any
new and relevant evidence for the Office to review. The Board finds that the Office properly
refused to reopen appellant’s claim for reconsideration.12
CONCLUSION
The Board finds that appellant did not sustain a hearing loss causally related to noise
exposure in his federal employment. The Office properly refused to reopen appellant’s case for
reconsideration on the merits of his claim under 5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

11

Howard A. Williams, 45 ECAB 853 (1994).

12

The Board notes that appellant indicated in his appeal that Dr. Goldberg’s report was insufficiently probative to
represent the weight of the medical evidence in this case. The Office, however, properly refused to reopen his claim
for reconsideration, as his letter did not advance a relevant legal argument not previously considered by the Office
and did not contain any new and relevant evidence.

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ORDER
IT IS HEREBY ORDERED THAT the January 8, 2009 and November 24, 2008
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: October 27, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Egg Harbor Township, NJ,
Employer
__________________________________________

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

Docket No. 10-425
Issued: August 20, 2010

Case Submitted on the Record

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

JURISDICTION
On December 4, 2009 appellant filed a timely appeal from an October 8, 2009 decision of
the Office of Workers’ Compensation Programs that denied his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established he sustained an injury in the performance of
duty on July 28, 2009 causally related to his employment.
FACTUAL HISTORY
On August 20, 2009 appellant, a 44-year-old federal air marshal, filed a traumatic injury
claim (Form CA-1) for a “sharp and dulling pain running from [his] left shoulder down the back
of [his] left tricep.” Appellant attributed his condition to a July 28, 2009 incident when, while

engaging in a running exercise, during which he was carrying an “additional 35 pounds of
equipment, I fell to the ground … useing my left elbow, causeing pain in my left shoulder.”
By letter dated August 24, 2009, the Office notified appellant that the evidence of record
was insufficient to support his claim and that he needed to submit additional evidence. The
Office provided guidance concerning the type and form of evidence required.
Appellant submitted a September 9, 2009 report in which Dr. Raj Desai, a radiologist,
reported findings following x-rays of appellant’s left shoulder and diagnosed a “very small
partial thickness tear suspected in the deep fibers of [the] anterior supraspinatus with small joint
effusion.” Dr. Desai noted that appellant “[f]ell back on shoulder and having constant pain.”
By decision dated October 8, 2009, the Office denied the claim because the evidence of
record did not demonstrate an employment incident caused a medically-diagnosed condition.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
1

Appellant submitted additional evidence on appeal. The Board may not consider evidence for the first time on
appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision).
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

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evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence, which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
ANALYSIS
Appellant attributed his condition to a July 28, 2009 incident when, while engaging in a
running exercise, during which he was carrying an “additional 35 pounds of equipment” he fell
“to the ground … using [his] left elbow, causing pain in [his] left shoulder.” The Office has
accepted appellant’s assertion that this incident occurred in the performance of duty as alleged.
Appellant’s burden is to demonstrate that the established employment incident caused a
medically-diagnosed condition. This is a medical issue that can only be proven by probative
medical opinion evidence. Appellant has not submitted sufficient medical opinion evidence
supporting his claim and, accordingly, the Board finds that appellant has not established he
sustained an injury in the performance of duty on July 28, 2009 causally related to his
employment.
The only medical opinion evidence of record consists of Dr. Desai’s September 9, 2009
report, but his report has little probative value on the issue of causal relationship because it
lacks an opinion explaining how the established employment incident caused the condition he
diagnosed. While Dr. Desai noted that appellant “[f]ell back on shoulder and having constant
pain,” this is not sufficient to establish the required causal relationship because he does not
explain how this fall caused appellant’s condition and pain is a symptom, not a compensable
medical diagnosis.11 Further, Dr. Desai is merely repeating appellant’s allegations concerning
his injury and provides no probative medical reasoning. Finally, Dr. Desai diagnosed “very
small partial thickness tear suspected in the deep fibers of [the] anterior supraspinatus with small
joint effusion.” Use of the word “suspected” indicates that Dr. Desai’s opinion is speculative
and has little probative value.12
10

8

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
9

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
10

See supra note 1.

11

Robert Broome, 55 ECAB 339, 342, (2004).

12

Ricky S. Storms, 52 ECAB 349 (2001); Leslie C. Moore, 52 ECAB 132 (2000).

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An award of compensation may not be based on surmise, conjecture or speculation.13
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.14 The fact that a condition manifests itself or worsens during a
period of employment15 or that work activities produce symptoms revelatory of an underlying
condition16 does not raise an inference of causal relationship between a claimed condition and an
employment incident.
Because appellant has not submitted competent medical opinion evidence containing a
reasoned discussion of causal relationship, one that soundly explains how the established
employment incident caused or aggravated a firmly diagnosed medical condition, the Board
finds that appellant has not established the essential element of causal relationship.
CONCLUSION
The Board finds that appellant has not established he sustained an injury in the
performance of duty on July 28, 2009 causally related to his employment.

13

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
14

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

15

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

16

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

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ORDER
IT IS HEREBY ORDERED THAT the October 8, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 07-2023
Issued: January 15, 2008

Case Submitted on the Record

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

JURISDICTION
On July 30, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 20, 2007. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly determined that appellant’s October 3, 2006
employment incident was an idiopathic fall that is not compensable under the Federal
Employees’ Compensation Act.
FACTUAL HISTORY
On October 6, 2006 appellant, then a 48-year-old postmaster, filed a traumatic injury
claim (Form CA-1) alleging that on October 3, 2006 he sustained injuries when he passed out at
work and struck his head on the concrete floor. An employing establishment accident report
stated that he was sorting letters and at approximately 7:55 a.m. he felt faint and walked to the
dock, where he fainted.

A hospital report from Dr. Brenda Wahlers dated October 3, 2006 indicated that appellant
was admitted for a syncopal episode and resulting injuries, including a right maxillary sinus
fracture. Dr. Wahlers noted that appellant had two prior syncopal episodes, the most recent in
January 2006.
In a report dated October 6, 2006, Dr. Jeffrey DeLo, an oncologist, stated that appellant
had three syncopal episodes in the past two years. He noted that appellant had a history of
diabetes mellitus Type 1 and the syncopal episodes typically occurred roughly one hour after an
injection of Humalog. Dr. DeLo opined that the etiology of the syncopal episodes was unclear,
perhaps related to Humalog injections.
By report dated October 24, 2006, Dr. DeLo noted that the syncopal episodes seemed to
be worsened by prolonged standing. He submitted a form report (Form CA-20) dated
October 27, 2006 diagnosing syncope and checking a box “yes” that the condition was causally
related to employment, stating: “aggravated by prolonged standing.”
In a letter dated November 29, 2006, the Office requested that appellant submit additional
evidence regarding his claim. In a report dated November 16, 2006, Dr. Robert Trautwein, a
cardiologist, provided a history of the syncopal episodes. He reported that episodes appeared to
be vasovagal syncope, most likely aggravated by chronic lack of normal fluid intake. Dr. DeLo
submitted a December 7, 2006 report stating the syncopal episodes were of unclear etiology, but
they seemed to be precipitated by prolonged standing, which appellant was often required to do
at work.
By decision dated February 6, 2007, the Office denied the claim for compensation. The
Office stated that there were different opinions on the cause of the syncopal episode and
appellant had not submitted a statement regarding the prolonged standing and prior episodes.
Appellant requested reconsideration and submitted a February 18, 2007 report from
Dr. Robert Wagner, an internist, who stated that appellant’s syncopal episodes were the result of
a condition called postural or orthostatic hypotension. Dr. Wagner stated that, when an invidual
changes from a lying or sitting position, the blood pools in the extremities, causing a drop in
blood pressure that is relieved when blood vessels constrict during walking. With prolonged
standing, the muscles and blood vessels relax and dilate, causing a blood pressure drop and
syncope. Dr. Wagner concluded that appellant’s syncopal episodes “were due to classic
orthostatic hypotension resulting from prolonged standing and the resulting physical response.”
The Office reviewed the case on its merits and in a March 6, 2007 decision denied the
claim for compensation. The Office stated that the evidence was insufficient to establish
prolonged standing at work.
Appellant again requested reconsideration. He submitted a statement signed by two
coworkers that on October 3, 2006 they observed appellant standing for over an hour at the letter
case sorting mail.
In a decision dated July 20, 2007, the Office reviewed the case on its merits. The Office
denied the claim for compensation on the grounds that appellant sustained an idiopathic fall,
which was not compensable. It found that, although appellant’s condition may been aggravated
2

by standing for a prolonged period, there was no special condition or hazard from the
employment.
LEGAL PRECEDENT
It is a general rule of workers’ compensation law that an injury occurring on the
industrial premises during working hours is compensable unless it falls within an exception to
the general rule.1 One exception to the general rule applies to falls in the workplace. Where a
personal, nonoccupational pathology causes an employee to collapse and to suffer injury upon
striking the immediate supporting surface and there is no intervention or contribution by any
hazard or special condition of the employment, the injury is not a personal injury while in the
performance of duty as it does not arise out of a risk connected with the employment.2 This is
referred to as an “idiopathic” fall.3 On the other hand, if the cause of the fall cannot be
determined or the reason it occurred cannot be explained, then it is an unexplained fall that
comes within the general rule that an injury occurring on the industrial premises during working
hours is compensable.4
ANALYSIS
The Office determined that in the present case the exception noted above was applicable.
To properly apply the idiopathic fall exception, there must be two elements present: a fall
resulting from a personal, nonoccupational pathology and no contribution from the employment.
With respect to the first element, Dr. Wagner did opine that appellant’s syncopal episode was the
result of an orthostatic hypotension condition. It is not clear whether he felt the underlying
condition was related to prolonged standing or whether he felt the specific syncopal episodes
were related to standing.5 Even if the medical evidence is interpreted to find a nonoccupational
orthostatic hypotension condition, the idiopathic fall exception is applicable only if there is no
contribution from employment to the syncopal episode. The Office found that the only type of
contribution from employment that needs to be considered is whether there was a special hazard,
such as a desk or some object that appellant struck before hitting the ground. That is not a
complete analysis of the issue presented.
As the Board has noted: “When a factor of employment aggravates, accelerates, or
otherwise combines with a preexsitng, nonoccupational pathology, the employee is entitled to
compensation.”6 An example often given is an employee striking a piece of furniture, but this is
1

Martha G. List, 26 ECAB 200 (1974).

2

John R. Black, 49 ECAB 624, 626 (1998).

3

See Karen K. Levene, 54 ECAB 671 (2003).

4

John R. Black, supra note 2.

5

If the condition itself is causally related to an employment factor, then clearly a fall would not be due to a
nonoccupational pathology.
6

Margreate Lublin, 44 ECAB 945, 957 (1993). See also Edward V. Juare, 41 ECAB 126 (1989) (“if some job
circumstance or working condition intervenes in contributing to the incident then it is compensable”).

3

not the only type of employment contribution contemplated. If any factor of employment, such
as prolonged standing, contributes to the fall then any resulting injuries are compensable. Such a
finding is consistent with the general principle of causal relationship: if a factor of employment
contributes to an injury, then it is compensable.7
The Board finds the Office failed to properly make a determination on the issue of an
idiopathic fall. Dr. Wagner indicated that the syncopal episodes were related to prolonged
standing generally, but he did not demonstrate an understanding of the specific facts in this case.
It appeared from the record that appellant stated that he was standing and casing mail for
approximately one hour (his general starting time is reported as 7:00 a.m. on the claim form and
the accident report indicated that he began to feel faint at approximately 7:55 a.m.). On remand,
the Office should secure medical evidence that provides a rationalized opinion on the issues
presented. The evidence should be of sufficient probative value for the Office to determine if the
fall was due to a specific, nonoccupational condition and if so whether it was causally related to
standing or other factor of appellant’s employment. Based on the probative factual and medical
evidence, the Office may then make a determination as to whether the idiopathic fall exception is
applicable.8 After such further development as the Office deems necessary, it should issue an
appropriate decision.
CONCLUSION
The evidence was not sufficient to establish that the exception to coverage known as an
idiopathic fall was applicable and the case is remanded for further development.

7

In Karen K. Levene, supra note 3, the claimant alleged that stress at work contributed to a seizure episode and a
fall at work. The Board found that appellant had not established a compensable work factor, but clearly if the
evidence established a compensable work factor had contributed to the fall, resulting injuries would be compensable.
8

It is noted that if the cause of a fall cannot be determined, then it would be a compensable unexplained fall.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 20, March 6 and February 6, 2007 are set aside and the case
remanded for further action consistent with this decision of the Board.
Issued: January 15, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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