United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________
Appearances:
Frankie Anderson, for the appellant1
Office of Solicitor, for the Director

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Docket No. 16-1534
Issued: August 16, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 26, 2016 appellant filed a timely appeal from a February 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.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence following the February 25, 2016 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB
126 (2005).

ISSUE
The issue is whether appellant met her burden of proof to establish that total disability for
the periods January 22 to March 11 and April 21 to 25, 2015, and on specific dates of June 4,
July 25, and 27, 2015 was due to her accepted bilateral carpal tunnel syndrome.
FACTUAL HISTORY
On January 17, 2015 appellant, then a 59-year-old sales and distribution associate, filed
an occupational disease claim (Form CA-2) alleging that she developed arthritis in her left thumb
as a result of carrying letters and flats and throwing parcels for four to five hours. She first
became aware of her condition and realized that it resulted from her employment on
September 30, 2014. Appellant stopped work on January 16, 2015.
By letter dated January 26, 2015, OWCP advised appellant that no evidence was received
to support her occupational disease claim. It requested that she submit additional factual and
medical evidence and respond to specific questions to establish a diagnosed medical condition
due to factors of her employment. Appellant was afforded 30 days to submit the requested
information. A similar letter requesting additional information was also sent to the employing
establishment.
On February 3, 2015 OWCP received a January 23, 2015 report from Dr. Novarro C.
Stafford, a general practitioner, who related that appellant had worked for the employing
establishment for 18 years. Dr. Stafford reviewed her job duties and related that appellant
complained of having cumulative injury to her left hand, forearm, and arm for the previous six
months and of worsening disability. He noted that after she would work for approximately two
hours, her left hand would weaken and become very painful. Appellant informed him that, after
resting for approximately 30 minutes, she would be able to continue to work for approximately 2
more hours. Upon physical examination, Dr. Stafford observed free range of motion and no
focal deficits in the right upper extremity. He noted significant thenar, hypothenar space
atrophy, and tenderness over the pollicis longus tendon. Dr. Stafford also reported mild swelling
over her left dorsum of her left thumb and positive marked tenderness on palpation of the
proximal portion of her left thumb. He diagnosed carpal tunnel syndrome of the left hand and
atrophy of the thenar space of the left hand.
Dr. Stafford completed a work capacity evaluation form and duty status report dated
January 23, 2015. He provided work restrictions due to her carpal tunnel syndrome and
indicated that appellant was able to work six hours a day beginning January 24, 2015.
Dr. Stafford noted that she was capable of one hour of climbing and kneeling, two hours of
walking and twisting, four hours of bending, stooping, and reaching above the shoulder, six
hours of sitting and standing, and eight hours of fine manipulation and simple grasping with a
30-minute break every 2 hours.
care.

In a January 30, 2015 work excuse note, Dr. Stafford related that appellant was under his
He recommended that appellant remain off work from January 20 through

2

February 20, 2015.4
February 20, 2015.

Dr. Stafford indicated that appellant would be reevaluated on

Dr. Stafford continued to treat appellant and in reports dated February 20 and March 3,
2015 reviewed appellant’s history and provided findings on physical examination. He related
that an electromyography (EMG) diagnostic examination completed on February 16, 2015
showed mild-to-moderate right median sensory motor neuropathy (carpal tunnel syndrome) at
the wrist. Dr. Stafford reported that a right hand orthopedic evaluation revealed carpal tunnel
syndrome. He noted that appellant had not been back to work since his last examination.
Dr. Stafford related that appellant felt that she could do some work as long as she had regular
breaks that allowed her to rest her left arm. Appellant informed him that she could work for two
hours, have a 30-minute break, and then return to continue work. Dr. Stafford diagnosed left
carpal tunnel syndrome and atrophy of the thenar space of the left hand. He opined that this was
a work-related injury since it occurred as a result of accumulative damage of the environment
that was associated with the employing establishment. Dr. Stafford reported that according to
appellant the reason she was not working was “because of the restrictions that have been applied
to her and not congruent with what [was] available at her previous position.”
Appellant also received medical treatment from Dr. Robert S. Bell, a Board-certified
orthopedic surgeon. In a report dated March 9, 2015, Dr. Bell related that he evaluated appellant
for complaints of chronic, worsening left hand pain that began on September 30, 2014. He
discussed appellant’s job duties and reviewed appellant’s history. Upon examination, Dr. Bell
reported no significant muscular atrophy or swelling of the left hand, but significant pain over
the basilar thumb joint, painful with grind test and with forced abduction of the thumb. He
diagnosed basilar thumb arthritis with significant pain. Dr. Bell recommended that appellant
avoid lifting more than 15 pounds and not perform constant repetitive pinching activities with
her left hand. He provided a duty status report which indicated that appellant could work with
specific restrictions.
On March 12, 2015 appellant returned to modified work.
OWCP accepted bilateral carpal tunnel syndrome in a decision dated March 12, 2015.
In an April 6, 2015 report, Dr. Bell noted that appellant was able to return to work with
restrictions. He recommended that appellant be seen by Dr. Kimberlea W. Staton, a Boardcertified orthopedic surgeon specializing in hand surgery.
In an April 14, 2015 report, Dr. Staton noted that she had examined appellant for
complaints of left thumb pain and that appellant was diagnosed with osteoarthritis. Upon
examination of appellant’s left thumb, Dr. Staton observed mild tenderness at the
metacarpophalangeal (MCP) joint, tenderness to palpation at the 1st carpometacarpal (CMC)
joint, and palpable crepitation to passive range of motion. She diagnosed left 1st CMC
osteoarthritis. Dr. Staton explained that conservative management treatment options had failed
4

This January 30, 2015 note in which Dr. Stafford recommends that appellant remain off work from January 20
through February 20, 2015 therefore contradicts his January 23, 2015 report wherein he related that appellant could
return to work on January 24, 2015, with restrictions.

3

to this point and recommended cortisone injections. She provided a duty status report which
recommended that appellant resume work on April 18, 2015 with the same restrictions.
On April 17, 2015 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period January 22 to April 16, 2015. On the reverse side of the claim form, the employing
establishment confirmed that appellant had used 268 hours of leave without pay (LWOP)
intermittently during the period January 26 to April 16, 2015. Appellant resubmitted medical
reports by Drs. Stafford, Bell, and Staton.
In an attached time analysis form (Form CA-7a), appellant indicated that she had a
doctor’s appointment on January 23, 27, and 28, March 3 and 9, April 6 and 14, 2015. She noted
that she had physical therapy on January 30, February 2, 4, 5, 10, 12, 24, and 25, and
March 5, 2015. For the remaining dates until March 11, 2015, appellant noted that she was
unable to work due to injury. She indicated that she used sick leave on April 14, 2015 and was
“off work due to pain” on April 15 and 16, 2015.
Dr. Bell examined appellant again and in an April 20, 2015 report explained that she had
received an injection for her left hand condition and experienced significant pain. He noted that
she was not able to do anything with her left hand and was unable to work. In an attached duty
status report, Dr. Bell noted that appellant had been off work since April 14, 2015 due to
treatment of her left hand.
Appellant had a follow-up examination with Dr. Bell on April 27, 2015. Dr. Bell noted
improvement of her left hand and authorized her to return to work with restrictions. He further
reported that it was “very likely” that appellant would have chronic problems with her left hand
and would need to be off work periodically for flare ups. Dr. Bell provided a duty status form,
which indicated that appellant could resume work on April 27, 2015 with his specified
restrictions.
By letter dated May 4, 2015, OWCP informed appellant that it received her claim for
wage-loss compensation for the period January 22 through April 16, 2015. It requested
additional evidence to establish that appellant was unable to work during the claimed period as a
result of her accepted condition. Appellant was afforded 30 days to provide the requested
information.
In another work excuse note, Dr. Stafford indicated that appellant was under his care and
should remain off work from February 21 through March 11, 2015.5 He examined appellant
again and in a narrative report related that she sustained accumulative trauma to her left hand and
arm and noted that her disability had progressively worsened. Dr. Stafford explained that she
could not perform any lifting or repetitive work with her left hand and complained of weakness
and swelling in her left upper extremity. He reported that, after reviewing appellant’s medical
history and her job duties, appellant was placed off work from January 23 through

5

This work excuse was dated April 17, 2015.

4

March 11, 2015. Dr. Stafford further noted that she received injections by Dr. Bell and was
temporarily totally disabled from work from January 23 through March 11, 2015.6
On May 5, 2015 appellant submitted another claim for wage-loss compensation (Form
CA-7) for the period April 18 to 27, 2015. In the Form CA-7a, she indicated that she was “off
work due to injury.”
In a May 26, 2015 handwritten statement, appellant responded to OWCP’s May 1, 2015
development letter. She explained that from January 16 through March 11, 2015 her supervisor
told her to stay at home until OWCP approved her occupational disease claim. Appellant noted
that on January 23 and 27 and March 3, 2015 she submitted several Form CA-17’s with
restrictions, but she was informed that light duty was not available. She related that she finally
asked Dr. Stafford to raise her restrictions on the March 9, 2015 Form CA-17 up to 15 pounds.
The employing establishment then advised her that she could start work on March 12, 2015.
Appellant explained that she was willing to work and had no intention to sit at home. She
clarified that on April 6 and 14, 2015 she worked for four hours and then had a doctor’s
appointment. Appellant noted that on April 14, 2015 Dr. Staton gave her an injection, which was
very painful for two weeks. She related that she had been working continuously since
April 28, 2015. Appellant noted that she also lost 32 hours of her annual leave and 16 hours of
sick leave while she was on LWOP status and questioned whether OWCP could do something
about her lost leave. She related that she was resubmitting all of her documentation. Appellant
resubmitted medical reports by Drs. Stafford, Bell, and Staton.
By letter dated May 29, 2015, OWCP informed appellant that it received her claim for
wage-loss compensation for the period April 18 through 27, 2015. It advised her that the
evidence submitted was insufficient to establish her claim and requested that she submit
additional evidence to establish that she was unable to work during the period claimed as a result
of her accepted condition. Appellant was afforded 30 days to submit the requested information.
Dr. Bell examined appellant again and in a June 9, 2015 report related that appellant
complained of increased pain in her thumb and had to miss time at work. He noted that appellant
called to make an appointment, but an appointment time was not available. Dr. Bell advised that
appellant be excused from work for the days that she was not available to be seen. He provided a
duty status report, which noted that appellant could return to work on June 10, 2015 with
restrictions.
In a June 22, 2015 e-mail to a human resource (HR) management specialist for the
employing establishment, OWCP explained that appellant had filed a Form CA-7 requesting
wage-loss compensation for the period January 22 to April 27, 2015. It noted that appellant
claimed that appellant was sent home because no work was available. OWCP requested that the
employing establishment clarify whether appellant was sent home because no work was
available during the claimed period.

6

This report was dated May 19, 2015.

5

Dr. Bell submitted a June 22, 2015 report and explained that on April 14, 2015 Dr. Staton
gave appellant an injection to her thumb. He related that appellant experienced significant pain
and was taken off work from April 14 to 20, 2015 due to her adverse reaction to the injection.
Dr. Bell indicated that on April 20, 2015 appellant was reevaluated and taken off work for one
more week due to continued left hand symptoms. Appellant was released back to work with
restrictions on April 27, 2015.
The employing establishment’s HR management specialist responded to OWCP by
e-mail dated June 23, 2015 and explained that appellant submitted a January 23, 2015 medical
report with restrictions of lifting five pounds for a six-hour workday and a January 30, 2015
medical document, which recommended total disability from January 20 through
February 20, 2015. The HR management specialist asserted that appellant did not come to work.
She related that appellant then provided a medical document dated February 20, 2015 which
authorized appellant to work with restrictions of lifting five pounds and then submitted another
medical report dated April 17, 2015 for total disability from February 21 through
March 11, 2015. The HR management specialist related that appellant had not been sent home.
She noted that OWCP accommodated appellant whenever she chose to come to work. The HR
management specialist reported that appellant submitted medical documentation with restrictions
of lifting up to 15 pounds. Appellant returned to work on March 12, 2015 working eight hours
per day until April 15, 2015. She related that appellant then provided a medical documentation
dated April 14, 2015 with a lifting restriction of 15 pounds and another medical documentation
dated April 27, 2015 with a lifting restriction of 10 pounds. Appellant returned to work on
April 28, 2015 and had been working eight hours a day through present. She also noted that the
employing establishment now had a signed job offer dated June 22, 2015.
On June 22, 2015 the employing establishment offered appellant a modified-duty
assignment as a sales and distribution clerk. Appellant accepted the position.
Appellant asserted in a handwritten statement dated June 29, 2015 that she was “fully
trapped” by management. She alleged that what she wrote in her earlier letter was true that
management told her to get a letter from her doctor about her disability because they could not
do anything about her claim. Appellant explained that when Dr. Stafford gave her a note on
May 19, 2015 regarding disability for the period January 16 to March 11, 2015, the employing
establishment then said that appellant could not work because she was disabled. She alleged that
management did not want to be involved in the situation and they told the HR management
specialist that appellant was kept off work because her claim was not approved. Appellant
questioned why the employing established called her to work on March 12, 2015 if her claim
was not approved. She reiterated that she was “trapped” in both situations, but the bottom line
was that she was unable to work from January 11 through March 11, 2015 against her wishes.
Appellant also noted that on April 6, 14, and 20, 2015 she worked from 5:00 a.m. to 9:30 a.m.
and then had a doctor’s appointment. She explained that the nurse put the wrong date to resume
work. Appellant reiterated that on April 14, 2015 Dr. Staton gave her a shot, which was very
painful. As a result, she was off work for another two weeks until April 28, 2015 when she
resumed work. Appellant requested that OWCP provide her compensation.
By decision dated June 29, 2015, OWCP denied appellant’s claim for wage-loss
compensation benefits for the period January 22 through April 27, 2015. It found that the

6

medical evidence of record failed to establish that she was disabled from work or entitled to
wage-loss compensation during the claimed period as a result of her work injury. OWCP noted
that although appellant claimed that the employing establishment sent her home because no work
was available, the employing establishment had refuted her assertion that no work was available.
Appellant continued to receive medical treatment from Dr. Bell. In a report dated
June 30, 2015, he related that appellant had a left hand thumb injury and still struggled to work
due to continuous pain. Dr. Bell recommended that appellant continue to work with her same
restrictions. In a July 27, 2015 report, he examined appellant again for pain and provided
physical examination findings. Dr. Bell indicated that appellant had been doing fairly well
working full-time light duty without overtime, but this past Saturday she had a significant flareup and was unable to go to work on Saturday and today. He recommended that appellant return
to work tomorrow and provided a duty status report, which noted that appellant was off work on
July 25 and 27, 2015 due to pain.
On August 19, 2015 OWCP received appellant’s request for reconsideration. Appellant
reiterated that she had been off work since January 22, 2015 because she was instructed by the
employing establishment to use sick leave and LWOP. She asserted that she attempted to return
to work with her medical restrictions, but was informed that there was no work available for her.
Appellant noted that she was allowed to return to work in March 2015 after she asked her
physician to raise her restriction to 15 pounds. She requested that the employing establishment
provide proof that they offered her employment and pointed out that she was never given a
formal job offer until a few weeks ago. Appellant resubmitted the June 2015 offer of modified
assignment.
Appellant filed another claim for wage-loss compensation on August 20, 2015 for
intermittent disability during the period June 4 to July 27, 2015. On the reverse side of the claim
form, the employing establishment verified that appellant used 28.72 hours of LWOP. In a time
analysis form, appellant indicated that on June 4, July 25, and July 27, 2015 she was off work
due to pain. She related that on June 9 and 30, 2015 she worked for five hours and had a
doctor’s appointment.
In a handwritten letter dated August 21, 2015, appellant asserted that she submitted
sufficient documentation to establish that her supervisor kept her off work from January 16
through March 2015 because they did not have any work for her. She noted that management
did not offer her a work assignment within her work restrictions until June 2015. Appellant
alleged that her case examiner in Houston, TX, the injury department, and the postmaster’s
secretary were all aware of her situation that she had been calling from day one and that her
supervisor put her off the clock. She provided a grievance outline worksheet from her union,
which requested that the employing establishment restore her annual and sick leave and all
benefits earned for the period that she was on workers’ compensation.
By letter dated September 10, 2015, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim for intermittent wage-loss compensation for the period
June 4 through July 27, 2015. It authorized payment for a total of 8.72 hours for medical
appointments on June 9 and 30, and July 27, 2015. OWCP requested additional evidence in
support of the remainder of her claim for wage-loss disability in order to establish that she was

7

unable to work on June 4, July 25 and 27, 2015 as a result of her accepted condition. Appellant
was afforded 30 days to submit the requested information.
In an October 14, 2015 work excuse note, Dr. Stafford related that appellant had an
appointment in his office on October 14, 2015 and should remain off work on October 14
and 15, 2015. He noted that appellant did repetitive work with her hands and was restricted to
lift no more than 10 pounds.
By decision dated February 25, 2016, OWCP modified the June 29, 2015 denial decision.
It noted that the medical evidence of record was sufficient to establish that appellant was unable
to work for the period April 14 through 20, 2015 because she had an adverse reaction to an
injection. OWCP also found sufficient medical evidence to demonstrate that appellant attended a
medical appointment on April 27, 2015, which afforded her up to four hours of wage-loss
compensation for this date. However, with regard to the remaining claimed periods of disability,
appellant did not meet her burden of proof to establish that she was unable to work for the
remaining periods January 22 to April 13, 2015 and April 21 to 25, 2015 as a result of her
accepted bilateral carpal tunnel syndrome.
In a separate decision dated February 25, 2016, OWCP denied appellant’s claim for
wage-loss compensation for eight hours on June 4 and July 25, 2015 and for four hours on
July 27, 2015. It found that the medical evidence of record was insufficient to establish that
appellant was unable to work on the claimed dates as a result of her accepted condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.8 The term
disability is defined as the incapacity because of an employment injury to earn the wages the
employee was receiving at the time of the injury.9
Whether a particular injury causes an employee to be disabled from employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.10 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work.11 When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurt too much to work, without objective findings of

7

Supra note 2.

8

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

9

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999).

10

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

11

Dean E. Pierce, 40 ECAB 1249 (1989).

8

disability being shown, the physician has not presented a medical opinion, supported by medical
rationale, on the issue of disability or a basis for payment of compensation.12
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative, and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.13
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.14
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome as a result of
her employment duties. She stopped work on January 16, 2015 and returned to modified work
on March 12, 2015. Appellant stopped work again on April 14, 2015 and returned on
April 28, 2015. She filed claims for wage-loss compensation for intermittent periods of
disability from January 22 to April 27, 2015, also including dates she did not work due to
medical appointments. OWCP granted appellant disability compensation for the period April 14
to 21, 2015, but denied wage-loss compensation for the remaining period.
The Board finds that appellant has failed to establish total disability during those periods
due to the accepted conditions of bilateral carpal tunnel syndrome.
During appellant’s alleged period of disability she received medical treatment from
Dr. Stafford. In reports dated January 23 to March 3, 2015, Dr. Stafford reviewed appellant’s
history and provided findings on examination. He diagnosed carpal tunnel syndrome of the left
hand and atrophy of the thenar space of the left hand. Dr. Stafford opined that appellant’s
condition was a work-related injury since it occurred as a result of accumulative damage of the
environment that was associated with the employing establishment. He provided a duty status
report dated January 23, 2015 in which he indicated that appellant could work with restrictions
beginning January 24, 2015. Dr. Stafford subsequently submitted contradictory work excuse
notes in which he related that appellant should remain off work from January 20 through
March 11, 2015. Although he indicated that appellant should remain off work for the period
January 20 to March 11, 2015, he did not provide any medical rationale explaining how
appellant’s inability to work was causally related to the accepted employment condition of
bilateral carpal tunnel syndrome.15 Dr. Stafford did not explain, with supporting medical
12

See Fereidoon Kharabi, 52 ECAB 291 (2001).

13

C.G., Docket No. 16-1503 (issued May 17, 2017).

14

Amelia S. Jefferson, supra note 10.

15

See G.C., Docket No. 16-1503 (issued May 17, 2017).

9

rationale, how or why appellant’s accepted carpal tunnel condition caused any period of
disability.16 The Board therefore finds that Dr. Stafford’s reports failed to establish that
appellant was disabled for work as a result of her accepted bilateral carpal tunnel syndrome. His
opinion, therefore, is of diminished probative value.17
Dr. Bell’s reports dated March 9 and April 6, June 9 and 22, 2015 also fail to establish
appellant’s alleged disability due to the accepted condition of bilateral carpal tunnel syndrome.
The Board notes that Dr. Bell noted hand pain, but only diagnosed basilar thumb arthritis, which
was not an accepted condition. Dr. Bell did not reference appellant’s accepted condition of
bilateral carpal tunnel syndrome. As noted, when an employee returns to light-duty work, he or
she has the burden to establish a recurrence of disability due to the employment-related
conditions, and that he or she cannot perform such light duty.18 The Board finds that Dr. Bell’s
reports are also insufficient to establish that she is entitled to wage-loss compensation on June 4
and July 25 and 27, 2015 as a result of her accepted condition. Again, Dr. Bell’s reports
reference appellant’s left thumb condition, rather than her accepted carpal tunnel syndrome.
Because Dr. Bell failed to provide medical rationale to support an opinion that appellant was
disabled due to her accepted employment condition, his reports are insufficient to establish
appellant’s claim.
Appellant also submitted an April 14, 2015 report from Dr. Staton. She related that she
saw appellant for complaints of left thumb pain, and diagnosed osteoarthritis of the left thumb.
Dr. Staton provided appellant with work restrictions, but she did not indicate that appellant was
disabled from work due to the accepted condition of bilateral carpal tunnel syndrome. The issue
of whether a claimant’s disability is related to an accepted condition is a medical question, which
must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to the employment injury and
supports that conclusion with sound medical reasoning.19 As Dr. Staton did not provide a
rationalized medical opinion that appellant was disabled from work due to her accepted
condition, her opinion is of limited probative value.
The Board finds however that the case is not in posture for decision regarding whether
appellant is entitled to compensation for medical treatment on the following dates: January 23
and March 3, 2016.20 The record contains evidence that appellant was examined by Dr. Stafford
on these dates, and that he diagnosed carpal tunnel syndrome. OWCP’s procedures provide that
wages lost for compensable medical examination or treatment may be reimbursed.21 It notes that
16

Supra note 13.

17

S.B., Docket No. 13-1162 (issued December 12, 2013).

18

Id.

19

See G.B., Docket No. 16-1003 (issued December 5, 2016).

20

Although the record contains evidence that appellant received medical treatment on February 16 and 20, 2016,
the time analysis forms do not indicate any claimed wage-loss compensation for those dates.
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19
(February 2013).

10

a claimant who has returned to work following an accepted injury or illness may need to undergo
examination or treatment and such employee may be paid compensation for wage loss while
obtaining medical services and for a reasonable time spent traveling to and from the medical
provider’s location.22 As a rule, no more than four hours of compensation or continuation of pay
should be allowed for routine medical appointments. Longer periods of time may be allowed
when required by the nature of the medical procedure and/or the need to travel a substantial
distance to obtain the medical care.23
The case will be remanded for payment of up to four hours of wage-loss compensation
for each of these medical appointments and travel time.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
unable to work for the period January 22 to March 11, 2015 and on June 4 and July 25 to 27,
2015 as a result of her accepted carpal tunnel condition. The Board also finds that this case is
not in posture for decision regarding appellant’s claimed reimbursement for medical
appointments on January 23 and March 3, 2016.

22

Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

23

Supra note 21 at Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (November 1998).

11

ORDER
IT IS HEREBY ORDERED THAT the February 25, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed in part, set aside in part. The case is remanded for
further development consistent with this decision of the Board.
Issued: August 16, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, INJURY
)
COMPENSATION OFFICE, Oakland, CA,
)
Employer
)
___________________________________________ )
S.B., Appellant

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

Docket No. 07-121
Issued: June 25, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On October 17, 2006 appellant filed a timely appeal of an August 10, 2006 decision of
the Office of Workers’ Compensation Programs which suspended her compensation for failing to
report to a scheduled medical appointment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the suspension issue.
ISSUE
The issue is whether the Office properly suspended appellant’s compensation under
5 U.S.C. § 8123(d) for failing to report for a scheduled medical appointment.
FACTUAL HISTORY
On September 17, 2002 appellant, then a 30-year-old human resources specialist, filed an
occupational disease claim alleging that she sustained post-traumatic stress disorder after being
threatened by a co-employee while in the performance of duty.1 The Office accepted her claim
1

The record reflects that appellant has a separate claim for a cervical strain and right shoulder strain.

for post-traumatic stress disorder. On December 3, 2002 appellant stopped work and received
compensation on the periodic rolls.
By letter dated November 23, 2005, the Office requested that appellant’s treating
physician provide an opinion with regard to whether appellant was able to participate in
vocational rehabilitation services. On January 12, 2006 the Office received a reply from the
physician, advising that she did not participate in workers’ compensation and that the Office
should seek an opinion from another physician.
On May 4, 2006 the Office advised appellant that she was being referred for a second
opinion evaluation to obtain a current assessment of her condition, whether she continued to
have residuals and information about her work capacity.2 The Office informed her of her
responsibility to attend the appointment and that, if she failed to do so without an acceptable
reason, her compensation benefits could be suspended in accordance with section 8123(d) of the
Federal Employees’ Compensation Act.3
By letter dated July 7, 2006, QTC, a company that schedules medical examinations on
behalf of the Office, advised appellant that she had a July 25, 2006 appointment with Dr. Joel A.
Fine, a Board-certified psychiatrist.4 This letter advised appellant that her appointment had been
rescheduled and that the employing establishment had been notified of the change. Dr. Fine’s
name, address and telephone number were included and the notice was properly addressed to
appellant’s address of record.
By letter dated July 25, 2006, Jeanette Martinez, a case coordinator for QTC, informed
the Office that appellant did not attend the appointment with Dr. Fine on July 25, 2006.
In a memorandum of telephone call dated July 26, 2006, Ms. Martinez informed the
Office that appellant did not appear for her medical appointment. She advised the Office that
QTC left messages for appellant on July 11, 17, 20 and 21, 2006 and appellant did not respond.
Ms. Martinez also noted that Dr. Fine called appellant on July 25, 2006, the date of her
appointment and she failed to show for her appointment.
By letter dated July 26, 2006, mailed to appellant’s address of record, the Office
proposed to suspend her compensation benefits on the grounds that she failed to report for
medical examination scheduled for July 25, 2006 as directed by the Office. Appellant was
advised that she was notified by telephone by the Office on July 11, 2006 that she had an
appointment on July 25, 2006 with Dr. Fine and she advised the Office that she had a conflict
with that time, as she had another medical appointment. She was also notified that QTC would
contact her and confirm the appointment. The Office noted that QTC left telephone messages on
July 11, 17, 20 and 21, 2006, but that she did not respond to any of their calls or messages.
2

The record reflects that appellant was also scheduled to attend second opinion examinations on May 24 and
July 11, 2006 with Dr. Jillian Daly, a clinical psychologist. However, she did not appear.
3

5 U.S.C. § 8123(d).

4

Appellant was previously scheduled for a second opinion examination with Dr. Arthur C. Lamb, a Boardcertified psychiatrist on June 16, 2006. However, on June 26, 2006, the Office was advised that Dr. Lamb “declined
the case.”

2

Appellant was further advised that Dr. Fine’s office called and left several messages for
appellant on July 25, 2006; however, she did not respond. The Office allowed appellant 14 days
to provide good cause for her failure to submit or cooperate with the second opinion examination
and informed her of the penalty provision of section 8123(d) of the Act.
In a memorandum of telephone call dated August 3, 2006, appellant left a message
advising the Office that she intended to reschedule the examination and was calling the Office
per the July 26, 2006 letter.
On August 8, 2006 the Office called Ms. Martinez and confirmed that appellant had not
rescheduled her appointment.
By decision dated August 10, 2006, the Office finalized the proposed suspension of
compensation since appellant failed to attend the medical examination scheduled for
July 25, 2006. It further advised appellant that by letter dated July 26, 2006 she was given 14
days to provide written evidence justifying her failure to attend or cooperate with this
examination. The Office noted that on August 3, 2006, appellant left a telephone message but
that she did not provide any written explanation of her failure to attend or cooperate with the
prior rescheduled appointment. It found that appellant failed to attend, or obstructed an
examination directed by the Office, and suspended her compensation effective August 10, 2006.
Appellant was advised that her benefits would be reinstated only after verification that she
attended and fully cooperated with the examination.
LEGAL PRECEDENT
An employee shall submit to examination by a medical officer of the United States, or by
a physician designated or approved by the Secretary of Labor, after the injury and as frequently
and at the times and places as may be reasonably required.5 If an employee refuses to submit to
or obstructs an examination, his or her right to compensation is suspended until the refusal or
obstruction stops. Compensation is not payable while a refusal or obstruction continues, and the
period of the refusal or obstruction is deducted from the period for which compensation is
payable to the employee.6
To invoke this provision of the Act, the Office must ensure that the claimant has been
properly notified of his or her responsibilities with respect to the medical examination scheduled.
Either the claims examiner or the medical management assistant may contact the physician
directly and make an appointment for examination. The claimant and representative, if any,
must be notified in writing of the name and address of the physician to whom he or she is being
referred as well as the date and time of the appointment. The notification of the appointment
must contain a warning that benefits may be suspended under 5 U.S.C. § 8123(d) for failure to
report for examination. The claimant must have a chance to present any objections to the

5

5 U.S.C. § 8123(a).

6

Id. at § 8123(d).

3

Office’s choice of physician, or for failure to appear for the examination, before the Office acts
to suspend compensation.7
If the claimant does not report for a scheduled appointment, he or she should be asked in
writing to provide an explanation within 14 days. If good cause is not established, entitlement to
compensation should be suspended in accordance with 5 U.S.C. § 8123(d) until the date on
which the claimant agrees to attend the examination. Such agreement may be expressed in
writing or by telephone (documented on Form CA-110). When the claimant actually reports for
examination, payment retroactive to the date on which the claimant agreed to attend the
examination may be made. The claimant’s statement that he or she will not appear for an
examination is not sufficient to invoke the penalty.8
ANALYSIS
Following appellant’s failure to attend a scheduled medical examination on July 25,
2006, the Office suspended her compensation benefits, effective August 10, 2006, pursuant to
section 8123(d) of the Act. The Board finds that the suspension of her benefits was proper.
The Board notes that the Office properly sought an assessment of appellant’s continuing
employment-related disability and requested that appellant’s treating physician provide an
opinion with regard to whether appellant was able to participate in workers compensation
services. However, appellant’s treating physician advised the Office on January 12, 2006 that
she did not participate in workers’ compensation, and that the Office should obtain an opinion
from another physician. The Office then determined that a second opinion was necessary for an
assessment of her condition and an opinion regarding whether she continued to suffer residuals
of the work injury and her work capacity. The Office deemed the examination reasonably
necessary to determine the extent and degree of any employment-related residuals. Under
section 8123 of the Act, appellant was required to attend it.
The Board finds that on May 4, 2006 the Office notified appellant that she was being
referred for a second opinion evaluation to obtain an assessment of her condition and to ascertain
her current work capacity. The Office informed her of her obligations to attend and cooperate.
The notice clearly explained that appellant’s compensation benefits could be terminated for
failure to report to or obstruction of the examination.
On July 7, 2006 QTC, for the Office, advised appellant of the date and time of her
scheduled July 25, 2006 appointment with Dr. Fine. She was also provided with Dr. Fine’s
name, address and telephone number. The letter was properly addressed to appellant’s address
of record. As noted, appellant did not appear for the appointment, nor did she respond to
numerous messages left by QTC on July 11, 17, 20 and 21, and on July 25, 2006 by Dr. Fine’s
office.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.14 (July 2000).
8

Id.

4

The Board finds that appellant did not establish good cause for her failure to report to the
scheduled examination with Dr. Fine. The Office notified her on July 26, 2006 that it proposed
suspension of her compensation benefits. It provided appellant 14 days to submit a valid reason
for her failure to attend the scheduled medical appointment. The record reflects that she
contacted the Office on August 3, 2006 and left a message that she intended to reschedule the
appointment and was calling the Office per the July 26, 2006 letter. Appellant did not offer any
justification for her failure to submit to the examination that would show good cause. On
August 8, 2006 the Office confirmed that she had not presented for examination. The Board
finds that appellant has not established a good cause for her failure to attend the examination
with Dr. Fine.
The Office followed established procedures in suspending appellant’s compensation
under 5 U.S.C. § 8123(d). The Board will affirm the Office’s August 10, 2006 decision
suspending compensation effective that same date.
CONCLUSION
The Board finds that the Office properly suspended appellant’s compensation benefits,
pursuant to 5 U.S.C. § 8123(d), effective August 10, 2006, because of her failure to attend a
medical examination.
ORDER
IT IS HEREBY ORDERED THAT the August 10, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 2007
Washington, DC

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

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

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

5


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

)
)
)
)
)
)
)
)

Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1514
Issued: July 18, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 2, 2018 appellant, through counsel, filed a timely appeal from a May 29, 2018
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.3

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.

3
The Board notes that, following the May 29, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include the additional conditions of right shoulder
impingement, right shoulder tendinitis, and right partial rotator cuff tear as a consequence of the
accepted December 12, 2014 employment injury.
FACTUAL HISTORY
On January 5, 2015 appellant, then a 51-year-old rural carrier, filed a notice of recurrence
(Form CA-2a) claiming disability under OWCP File No. xxxxxx938.4 She alleged that she
reinjured her left shoulder moving mail from her vehicle to her supervisor’s car on
December 12, 2014. Appellant stopped work on that date. The employing establishment indicated
that appellant had been medically cleared to return to work with no restrictions on November 12,
2014, from accepted employment injury. As new employment factors were indicated, OWCP
converted the recurrence claim to a new traumatic injury claim (Form CA-1), and assigned OWCP
File No. xxxxxx312.
In support of her new claim appellant submitted a December 18, 2014 report by
Dr. Thomas Van Gorder, a Board-certified orthopedic surgeon, diagnosed status post rotator cuff
repair and decompression of the left shoulder. Dr. Van Gorder noted that appellant had attempted
to return to work, but was having difficulty, especially with driving. He explained that she was
having difficulties maintaining the shoulder in an abducted position during her work shifts, but
that she had satisfactory range of motion and arm strength. Dr. Van Gorder advised that appellant
had a recurrence of discomfort and recommended physical therapy.
In e-mail correspondence dated February 27, 2015, P.S., the employing establishment
postmaster, explained that on December 12, 2014 appellant reported that her vehicle had broken
down and she then went out to retrieve the mail and bring it back so that another employee could
finish the route. P.S. explained that as they were transferring the mail, appellant notified her that
her shoulder “had been bothering her more and more from the previous injury and that she felt
something pull.”
By decision dated March 13, 2015, OWCP denied appellant’s claim finding that the factual
component of her claim was established. However, it denied the claim because the medical
evidence did not contain a firm diagnosis of any medical condition. OWCP concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
On April 24, 2015 appellant requested reconsideration of the March 13, 2015 decision.
In a February 19, 2015 report, Dr. Van Gorder referred to appellant’s June 21, 2013
employment injury. He diagnosed status post rotator cuff tear of the left shoulder. Dr. Van Gorder
explained that she was not quite a year post left shoulder manipulation, arthroscopy,
decompression, debridement, and rotator cuff repair. He explained that appellant had gone through
physical therapy and tried to return to work a couple of months earlier and had a lot of difficulties
with her work activities. Dr. Van Gorder indicated that she had been off work since the end of
4

OWCP accepted the June 21, 2013 claim for a complete rotator cuff rupture on the left.

2

December and was doing home exercises. He also completed a duty status report (Form CA-17)
on February 19, 2015 and diagnosed a left rotator cuff tear.
In a March 10, 2015 attending physician’s report (Form CA-20) Dr. Van Gorder noted
appellant’s accepted employment injury of June 21, 2013. He diagnosed left rotator cuff tear
repair and decompression.
By decision dated July 6, 2015, OWCP denied modification of the prior decision. It
explained that appellant had not submitted medical evidence which contained a history of injury,
a valid diagnosis, or an explanation of how the diagnosed condition was caused, aggravated, or
contributed to by factors of her federal employment.
On August 17, 2015 appellant requested reconsideration. OWCP continued to receive
medical evidence.
In an August 26, 2015 report, Dr. Van Gorder noted that appellant initially injured herself
at work in June 2013. He noted that in April 2014 she had rotator cuff surgery and returned to
work in November 2014. Dr. Van Gorder explained that on December 12, 2014, appellant’s car
broke down, while moving the mail to another car, appellant felt some type of snap or pain in her
shoulder. He explained that left shoulder MRI scan revealed a partial tear of the rotator cuff.
Dr. Van Gorder opined that this was considered employment related. He noted that appellant never
completely recovered despite satisfactory motion and strength, and that appellant had difﬁculty
with heavy lifting. Dr. Van Gorder explained that appellant believed that she could probably
perform light-duty work. He noted that there was no light-duty work available for appellant at the
employing establishment.
By decision dated January 14, 2016, OWCP found the evidence of record was sufficient to
vacate the July 6, 2015 decision because Dr. Van Gorder provided a history of appellant’s
condition prior to December 12, 2014, and an accurate factual history of the injury of
December 12, 2014, with a diagnosis of left partial rotator cuff tear and a brief explanation of the
cause of the December 12, 2014 injury. On January 14, 2016 it accepted the claim for partial
rotator cuff tear of the left shoulder.5
In a May 5, 2016 report, Dr. Van Gorder diagnosed status post shoulder repair for a rotator
cuff tear of the left shoulder and a partial cuff tear of the right shoulder. He explained that appellant
had issues with both shoulders since working at the employing establishment. Dr. Van Gorder
noted her initial injury to her left shoulder in June 2013, and her subsequent injury in
December 2014. He noted that appellant started to develop discomfort in the right shoulder and
explained that she did not have speciﬁc trauma to the right shoulder, but rather it resulted as she
favored her left shoulder. Dr. Van Gorder explained that she had a right shoulder MRI scan in
June 2015 which revealed a partial cuff tear and tendinitis. He noted that appellant was unable to
obtain treatment for the right shoulder. Dr. Van Gorder also noted that the right shoulder had
excellent strength, and a little sub acromial crepitus.
In a July 28, 2016 report, Dr. Van Gorder diagnosed status post rotator cuff tear of the left
shoulder and a partial tear with tendinitis of the right shoulder. Regarding the right shoulder, he
5

Appellant received wage-loss benefits retroactively on the supplemental roll as of February 1, 2015 and on the
periodic rolls as of July 24, 2016.

3

explained that appellant developed impingement pain, tendinitis, and discomfort of the right
shoulder which he opined “is deﬁnitely related to her left shoulder injury.” Dr. Van Gorder
concluded that her right shoulder condition was caused by overuse secondary to her favoring her
left shoulder, which had been injured at work.
In an August 3, 2016 report, Dr. Van Gorder repeated his opinion from his July 28, 2016
report regarding the right shoulder.
In a letter dated August 29, 2016, counsel requested that the acceptance of appellant’s
claim be expanded to include the additional conditions of impingement, tendinitis, and a partial
rotator cuff tear of the right shoulder. He alleged that the conditions were a consequence of overuse
of the right shoulder due to her accepted left shoulder conditions. Counsel referred to Dr. Van
Gorder’s reports. He argued that Dr. Van Gorder provided an unequivocal opinion and provided
the requisite medical rationale to establish that appellant’s right shoulder condition was related to
her overuse of the shoulder to compensate for her work-related injury to her left shoulder.
In a development letter dated November 18, 2016, OWCP advised appellant of the
evidence needed to establish her claim for consequential conditions to her right shoulder. It
afforded appellant 30 days to submit additional evidence.
OWCP thereafter received a June 12, 2015 MRI scan of the right shoulder read by
Dr. Imanual Somers-Dehaney, a Board-certified diagnostic radiologist, findings included a partial
tearing of the supraspinatus partial articular surface tendon with avulsion of approximately 50
percent. It also revealed impingement on the myotendinous junction of the supraspinatus tendon
with ﬂuid along both articular and bursal substance of subacromial subdeltoid bursa, bursitis, and
biceps tendon tenosynovitis.
On December 16, 2016 OWCP requested that an OWCP district medical adviser (DMA)
provide an opinion as to whether the accepted injury to appellant’s left shoulder was competent to
produce the injury to the right shoulder. It requested that the DMA review and specifically
comment on the opinion provided by Dr. Van Gorder in his reports dated July 28 and August 3,
2016, regarding the conditions of right shoulder impingement, right shoulder tendinitis, and right
partial rotator cuff tear.
In a December 29, 2016 report, Dr. David Slutsky, a Board-certified orthopedic hand
surgeon serving as a DMA, noted appellant’s history of injury and medical treatment. Regarding
the right shoulder condition, he advised that it was impossible to determine with any certainty
whether the left shoulder condition had caused the right shoulder condition, unless a right shoulder
MRI scan was performed prior to the work-related injury of the left shoulder on
December 12, 2014. The DMA explained that an apparent asymptomatic partial right rotator cuff
tear could not be ruled out. He opined that this was “the only way to determine if this lesion was
preexisting or whether it developed following the accepted work-related injury.”
The DMA concluded that the acceptance of appellant’s claim should not be expanded to
include the consequential conditions of right shoulder impingement, right shoulder tendinitis, and
right partial rotator cuff tear. He referred to Dr. Van Gorder’s December 18, 2014 notes, that
appellant was pain-free with normal shoulder range of motion following the left rotator cuff repair
and explained that overuse of the right shoulder was “not medically probable in view of the normal
functioning of her left shoulder.” The DMA also reviewed Dr. Van Gorder’s medical reports dated
4

July 28 and August 3, 3016 and explained that appellant stopped work in December 2014 and
remained off work since that time. However, there was no mention of appellant’s right shoulder
pain until the report of May 5, 2016, almost two year later. The DMA further noted that appellant
had a right shoulder MRI scan on June 12, 2015, more than one year following the left rotator cuff
repair. He explained that if she “had remained working in some capacity, especially at a job that
required overhead lifting, it would be reasonable to assign the patient’s development of right
shoulder pain and partial rotator cuff tear to overuse, but this is not the case.” The DMA noted
that if additional medical records were provided that documented the onset of appellant’s right
shoulder pain while she was still employed by the employing establishment or at any other job
following the left rotator cuff repair, then the issue of causation could be revisited.
By decision dated March 8, 2017, OWCP denied expansion of the acceptance of
appellant’s claim to include right shoulder conditions consequential to her accepted left shoulder
employment injury. It explained that the medical evidence of record did not establish that the
conditions of right shoulder impingement, right shoulder tendinitis, and right partial rotator cuff
tear resulted as a consequence of the accepted incident/condition.
By letter dated June 20, 2017, OWCP referred appellant for a second opinion examination
with Dr. Kevin Scott, a Board-certified orthopedic surgeon, to assess appellant’s current condition.
An August 31, 2017 right shoulder MRI scan read by Dr. Andrew Goldschmidt, a Boardcertified diagnostic radiologist, revealed no full-thickness rotator cuff tear. A July 17, 2013 MRI
scan of the left shoulder read by Dr. Goldschmidt, revealed a small nonretracted full-thickness tear
at the anterior supraspinatus.
In a July 13, 2017 report, Dr. Scott noted appellant’s history of injury and treatment,
examined appellant, and provided physical examination findings. He found full range of motion
of both shoulders and diagnosed a rotator cuff tear of the left shoulder. Dr. Scott explained that
there were no other injuries due to the December 12, 2014 accident. He noted appellant’s
preexisting left shoulder rotator cuff tear from her 2013 injury. Dr. Scott reviewed her June 12,
2015 MRI scan of the right shoulder which revealed partial tearing of the supraspinatus tendon,
subacromial bursitis, and biceps tendon tenosynovitis. He concluded that the accepted conditions
had resolved.
On March 6, 2018 counsel requested reconsideration. He argued that OWCP had reached
a false conclusion based upon the report of the DMA, Dr. Slutsky. Counsel argued that the DMA’s
report should not have been relied upon and appellant should have been referred for a second
opinion examination.
Counsel submitted additional medical evidence. He argued that the MRI scan from
March 13, 2015, and Dr. Scott’s July 13, 2017 report supported appellant’s claim.
In a March 20, 2018 report, Dr. Michael Lax, Board-certified in occupational medicine,
examined appellant and provided physical examination findings. He diagnosed bilateral rotator
cuff tears. Dr. Lax opined that, within a reasonable degree of medical certainty, appellant’s work
as a rural postal delivery worker with many years of exposure to heavy lifting (40-pound buckets
of mail) in small spaces (her delivery car), repetitive movements (upwards of 500 stops for mail),
and also a few specific events, including lifting heavy buckets of mail in December 2014 and

5

turning in her car to grab a package contributed significantly to the development of both bilateral
chronic shoulder pain and rotator cuff tears.
On April 30, 2018 OWCP requested clarification from Dr. Scott, regarding whether
appellant developed a right shoulder condition as a consequence of her accepted work-related left
shoulder condition.
In a May 3, 2018 addendum, Dr. Scott noted the definition of a consequential condition
and responded that it was explained in his prior report. He opined, ‘‘I do not find a consequential
injury for the left or right shoulder.”
By decision dated May 29, 2018, OWCP denied modification of the March 8, 2017
decision.
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 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 specific condition or disability 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 upon a traumatic injury or an occupational disease.7
The general rule respecting consequential injuries is that, when the primary injury is shown
to have arisen out of and in the course of employment, every natural consequence that flows from
the injury is deemed to arise out of the employment, unless it is the result of an independent
intervening cause, which is attributable to the employee’s own intentional conduct.8 The
subsequent injury is compensable if it is the direct and natural result of a compensable primary
injury. With respect to consequential injuries, the Board has held that, where an injury is sustained
as a consequence of an impairment residual to an employment injury, the new or second injury,
even though nonemployment related, is deemed, because of the chain of causation, to arise out of
and in the course of employment and is compensable.9
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. The opinion must be one

6
A.T., Docket No. 18-1717 (issued May 10, 2019); J.B., Docket No. 18-0522 (issued January 16, 2019); see also
J.T., Docket No. 17-0578 (issued December 6, 2017).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

K.D., Docket No. 17-1894 (issued August 6, 2018); A.M., Docket No. 18-0685 (issued October 26, 2018); Mary
Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation
10-1 (2006).
9

See K.D, id.; see also S.S., 59 ECAB 315 (2008).

6

of reasonable medical certainty and must be supported by medical rationale explaining the nature
of the relationship of the diagnosed condition and the accepted employment injury.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that acceptance
of her claim should be expanded to include the conditions of right shoulder impingement, right
shoulder tendinitis, and right partial rotator cuff tear as a consequence of the December 12, 2014
employment injury.
Appellant’s treating physician, Dr. Van Gorder did not diagnose a tear of the right shoulder
until May 5, 2016, more than a year following the December 12, 2014 employment injury. The
Board notes that he referred to a right shoulder MRI scan from June 2015, which revealed a partial
cuff tear and tendinitis. While Dr. Van Gorder explained that appellant started to develop
discomfort in the right shoulder due to favoring her left shoulder, she did not return to work
following the accepted December 12, 2014 employment injury. As Dr. Van Gorder has not
explained what activities appellant engaged in that caused her to favor one shoulder over the other,
this report does not establish that the diagnosed conditions were directly caused or a consequence
of the accepted injury.11
Dr. Van Gorder provided similar opinions in his July 28 and August 3, 2016 reports. He
repeated his diagnoses of status post rotator cuff tear left shoulder and partial tear with tendinitis
of right shoulder. Dr. Van Gorder opined that appellant’s impingement pain, tendinitis, and
discomfort of the right shoulder was “deﬁnitely related to her left shoulder injury. This in my
opinion the right shoulder difﬁculties that she has was caused by overusing secondary to her
favoring her left shoulder which had been an injury at work.” However, Dr. Van Gorder did not
explain how he arrived at his conclusion in light of the fact that appellant had not worked since the
date of the injury. He did not provide the necessary medical rationale explaining how her right
shoulder condition was a consequence of the accepted left shoulder condition.12 Dr. Van Gorder’s
opinion is therefore of limited probative value.
In a March 20, 2018 report, Dr. Lax diagnosed right and left rotator cuff tear. He opined
that within a reasonable degree of medical certainty appellant’s “work as a rural postal delivery
worker contributed significantly to the development of bilateral shoulder pain and rotator cuff
tears. However, Dr. Lax did not explain how he arrived at his conclusion. While the left shoulder
condition was accepted, he did not explain how he concluded that the right rotator cuff tear was a
consequence of the accepted left shoulder injury.13 Other than his general conclusion that the
diagnoses were caused by the December 12, 2014 employment injury, and a brief description of
appellant’s activities at work, Dr. Lax provided no additional rationale explaining how the
diagnosed conditions of the right shoulder were a direct and natural result of a compensable

10

See A.T., supra note 6.

11

Id.

12

Supra note 9.

13

Id.

7

primary injury.14 Medical conclusions unsupported by rationale are of diminished probative value
and are insufficient to establish causal relation.15
The diagnostic studies of record are insufficient to establish appellant’s claim. The Board
has held that reports of diagnostic tests lack probative value as they do not provide an opinion on
causal relationship between his employment incident and a diagnosed condition.16
OWCP referred appellant to the DMA, Dr. Slutsky, for an opinion regarding whether the
acceptance of appellant’s claim should be expanded, and also referred appellant for a second
opinion evaluation with Dr. Scott. Neither physician found additional employment-related
conditions. The DMA reported that there was no mention of right shoulder pain for almost two
years after the incident. He explained that overuse of appellant’s right shoulder was “not medically
probable in view of the normal functioning of her left shoulder.” The DMA also reviewed the
June 12, 2015 MRI scan of the right shoulder, one year after appellant’s left rotator cuff repair.
He explained that if appellant “had remained working in some capacity … especially at a job that
required overhead lifting … it would be reasonable to assign the patient’s development of right
shoulder pain and partial rotator cuff tear to overuse, but this is not the case.”
The second opinion physician, Dr. Scott, concluded that the accepted condition had
resolved. He also provided an opinion which he reiterated in his May 3, 2018 addendum, that
appellant did not have a consequential injury to either her right or left shoulder due to the
employment injury.
The Board finds that appellant has not submitted sufficient rationalized medical evidence
to establish causal relationship between the accepted December 12, 2014 employment injury and
the claimed additional conditions of right shoulder impingement, right shoulder tendinitis, and
right partial rotator cuff tear. As such, appellant 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 that the
acceptance of her claim should be expanded to include additional conditions of right shoulder
impingement, right shoulder tendinitis, and right partial rotator cuff tear as a consequence of the
accepted December 12, 2014 employment injury.

14

D.K., Docket No. 17-1549 (issued July 6, 2018).

15

J.B., Docket No. 08-1721 (issued January 26, 2009); Albert C. Brown, 52 ECAB 152 (2000).

16

D.B., Docket No. 18-1359 (issued May 14, 2019).

8

ORDER
IT IS HEREBY ORDERED THAT the May 29, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 18, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKER SAFETY, HEALTH &
ENVIRONMENT, OFFICE OF AUDIT,
Dallas, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0718
Issued: March 1, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On April 12, 2021 appellant filed a timely appeal from a March 26, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards
docketed the appeal as No. 21-0718.
On October 25, 2016 appellant, then a 60-year-old auditor, filed an occupational disease
claim (Form CA-2) alleging that he sustained a bilateral hand injury due to factors of his federal
employment which required repetitive movements. He stopped work on December 19, 2016 .
OWCP accepted appellant’s claim for carpal tunnel syndrome of the right and left upper limbs. It
paid him wage-loss compensation on the supplemental rolls beginning March 19, 2017.
In a February 28, 2018 letter, appellant claimed that he sustained bilateral ring and middle
trigger fingers as a consequence of his accepted employment injury.

1

The Board notes that appellant’s Application for Review (Form AB-1) notes that she is also requesting an appeal
from a December 17, 2019 decision. However, as that decision was issued more than 180 days before the filing of this
appeal, the Board lacks jurisdiction over that decision. 20 C.F.R. § 501.3(e).

By decision dated January 24, 2019, OWCP denied expansion of appellant’s claim to
include consequential conditions.
On September 19, 2019 appellant requested reconsideration and submitted additional
medical evidence in support of his claim.
By decision dated December 17, 2019, OWCP denied modification of its January 24, 2019
decision, finding that the medical evidence of record was insufficient to establish that appellant’s
claimed consequential bilateral ring and middle trigger finger conditions were causally related to
his accepted employment injury.2
On November 2, 2020 appellant requested reconsideration. Along with appellant’s letter,
OWCP received additional medical evidence.
In a letter dated February 19, 2021, OWCP informed appellant that “[o]n November 2,
2020 we received your letter requesting reconsideration.” It advised that it was not clear from his
letter which decision or issues for which he was seeking reconsideration. OWCP then advised
appellant that no further action would be taken on his letter. It related that if he wished to request
reconsideration, then he should make such request in writing within one year of the decision for
which review was sought together with relevant evidence not previously submitted or legal
argument not previously considered.
On February 19, 2021 appellant again requested reconsideration of the December 17, 2019
decision.
By decision dated March 26, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that
his reconsideration request was not received until February 19, 2021.
The Board has duly considered this matter and finds that OWCP improperly determined
that appellant’s request for reconsideration was untimely filed. 3 In the instant case, the case record
contains a request for reconsideration received by OWCP on November 2, 2020. As the
November 2, 2020 request for reconsideration was received within one year of OWCP’s
December 17, 2019 merit decision, 4 it was timely filed. 5 Therefore, OWCP should have applied
the standard applicable to timely reconsideration requests as set forth in 20 C.F.R. § 10.606(b)(3),
rather than the more stringent clear evidence of error standard for untimely reconsideration
2

In a July 13, 2020 decision, OWCP granted appellant a schedule award for five percent permanent impairment of
the right arm. It found that he had zero percent permanent impairment of the left arm.
3

Order Remanding Case, J.C., Docket No. 20-1360 (issued March 12, 2021); I.A., Docket No. 19-1910 (issued
September 29, 2020); Order Remanding Case, D.F., Docket No. 20-0267 (issued June 29, 2020); E.S., Docket
No. 17-0698 (issued July 14, 2017).
4

J.C., id.; R.T., Docket No. 20-0298 (issued August 6, 2020); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4(a) (February 2016).
5

J.C., id.; J.H., Docket No. 18-1367 (issued July 17, 2019); R.M., Docket No. 17-0473 (issued June 6, 2017); C.B.,
Docket No. 13-1732 (issued January 28, 2014).

2

requests set forth in 20 C.F.R. § 10.607(a). Because it erroneously reviewed the evidence
submitted in support of appellant’s reconsideration request under the incorrect standard, the Board
will remand the case for review of this evidence under the proper standard of review for timely
reconsideration requests. 6
Thus, the Board finds that this case must be remanded for proper adjudication and
application of the appropriate standard of review, to be followed by an appropriate decision.
Accordingly,
IT IS HEREBY ORDERED THAT the March 26, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 1, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6

J.C., id.; Order Remanding Case, L.N., Docket No. 19-0170 (issued August 21, 2019).

3


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

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

Docket No. 15-354
Issued: June 8, 2015

Case Submitted on the Record

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

JURISDICTION
On November 26, 2014 appellant filed a timely appeal from a September 15, 2014 merit
decision and an October 8, 2014 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an injury in the performance of duty on April 16, 2014; and (2) whether OWCP

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 8, 2014 nonmerit decision, OWCP received additional evidence.
Appellant also submitted new evidence with her appeal to the Board. However, the Board may only review
evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B.,
Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

properly refused to reopen her case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On June 5, 2014 appellant, then a 52-year-old international logistics specialist, filed a
Form CA-1 traumatic injury claim alleging that on April 16, 2014 she injured her left knee while
walking to her vehicle as she was leaving for lunch. The injury occurred at 11:15 a.m. outside
the front of Building 302. Debra Ball, appellant’s supervisor, indicated on the Form CA-1 that
appellant had called her from her vehicle crying and saying that her knee gave out while she was
on her way to lunch. She went to appellant’s vehicle to check on her and appellant told her that
something had popped/shattered in her left knee, leaving her in severe pain.
Along with the claim, OWCP received several CA-7 and CA-7a forms claiming wage
loss, medical requests for therapy, a letter authorizing therapy, position descriptions, and work
excuses/restrictions from July 22 through August 11, 2014.
By letter dated August 11, 2014, OWCP advised appellant that, when her claim was first
received, it appeared to be a minor injury that resulted in minimal or no lost time from work. As
the employing establishment did not controvert continuation of pay or challenge the merits of the
case, payment of a limited amount of medical expenses was administratively approved; however,
the merits of the claim were not formally adjudicated. OWCP advised appellant of the
deficiencies in her claim and requested that she submit additional factual and medical evidence.
Appellant was afforded 30 days to submit the requested information.
In an August 18, 2014 statement in response to an OWCP development questionnaire,
appellant stated that she reported her injury to her supervisor when it occurred on April 16, 2014.
She stated that she was walking outside to put her purse in her car and when she stepped up onto
the curb in front of her car onto the sidewalk, she heard something pop/crack behind her left
knee. It caused excruciating pain and she could not walk. There were no witnesses. She hopped
on her right leg to the front of the building where she works and some maintenance guys carried
her on both sides to her car and found her supervisor. Appellant went to the doctor that same
day. In response to OWCP’s question as whether she had a history of knee problems prior to
April 16, 2014, appellant answered “no.” She stated that she was able to walk prior to her injury,
but could not walk after her injury. Appellant also noted that the April 17, 2014 magnetic
resonance imaging (MRI) scan showed she had a torn meniscus and needed surgery.
Medical reports from Middle Georgia Orthopedic Surgery and Sports Medicine dated
April 9 to September 2, 2014 were received along with a June 13, 2014 operative report, several
work restriction forms, and CA-7 and CA-7a forms.
In an April 9, 2014 report, Dr. K. Scott Malone, a Board-certified physiatrist, noted that
appellant had left knee pain symptoms for approximately two months which appeared to be
worsening. He noted that appellant stated that she has had pain in her knee and foot before, but
no injury, and examination and x-ray findings were provided. An impression of left patella
femoral syndrome (PFS)/chondromalacia, knee pain, knee enthesopathy infrapatella/subpatellar
and effusion knee were provided. A conservative treatment plan was implemented and appellant
received a steroid injection.
2

In an April 16, 2014 report, Dr. Malone noted that appellant was walking to her car when
she felt a pop and her knee gave out at 11:00 a.m., that day. He noted that the character of
appellant’s complaint had not changed, but symptoms had worsened since her last visit. Left
knee examination revealed moderate swelling, range of motion limited by pain, and moderate
medial joint line patellofemoral pain. An impression of knee pain and torn meniscus
degenerative unspecified was provided. Appellant received a steroid injection and an MRI scan
was ordered.
In an April 21, 2014 report, Dr. William B. Wiley, a Board-certified orthopedic surgeon,
noted that the onset of symptoms was sudden after an injury occurred on April 16, 2014 at work.
Appellant related that she was walking from the building where she worked to her car when she
felt a cracking in her knee. Dr. Wiley noted that her symptoms have been present for one month,
but had improved. Examination findings of the left knee revealed swelling, but no ecchymosis
or deformity with decreased strength and decreased range of motion and generalized tenderness
with an effusion and crepitus. Dr. Wiley related that the April 17, 2014 MRI scan of the left
knee showed a torn medial meniscus and chondromalacia. An impression of left knee pain with
torn medial meniscus and chondromalacia, knee pain, torn meniscus lateral anterior horn, and
torn meniscus medial posterior horn was provided. A left knee arthroscopy partial medial
meniscectomy and chondroplasty was recommended.
Appellant underwent the proposed surgery on June 13, 2014, which Dr. Wiley performed.
Postoperative reports dated June 20 through September 20, 2014 were provided.
By decision dated September 15, 2014, OWCP denied the claim on the grounds that the
factual component of fact of injury had not been established as the evidence did not support that
the injury and/or event occurred as described. It noted that appellant described the cause of
injury on the CA-1 form as “walking to car” but stated in her August 4, 2014 statement that she
stepped up onto the curb in front of her car when she heard something pop/crack behind her
knee. Additionally, OWCP noted that she did not relate that she had prior knee problems.
On October 2, 2014 OWCP received a handwritten statement from appellant dated
September 29, 2014, accompanied by a duplicate copy of the appeal request form. Evidence
received with the request included: two copies of her September 29, 2014 appeal request form
and a copy of OWCP’s August 11, 2014 letter.
In a September 29, 2014 letter, Dr. Malone stated that appellant had been treated for left
knee pain. A review of her history revealed treatment for left knee patellafemoral syndrome; left
patella chondromalacia; left knee enthesopathy infrapatella/subpatella and left knee effusion.
However, it was reported on April 16, 2014 that appellant was walking to her vehicle while
working at the employing establishment and felt a “pop” in her left knee and her left knee gave
out. The incident was reported to the employing establishment that day and appellant requested
to be seen by Dr. Malone for this injury as she was already undergoing treatment under her
private health insurance. Dr. Malone stated that his April 16, 2014 examination revealed
worsening symptoms of increased pain and swelling, and limited range of motion. He diagnosed
left knee torn meniscus, which was correlated by the April 17, 2014 MRI scan. Appellant was
referred to Dr. Wiley, who performed a left knee arthroscopic medial meniscectomy, partial
lateral meniscectomy, and chondroplasty on June 13, 2014. Dr. Malone opined that the injury
appellant sustained on April 16, 2014 was consistent with her reported injury and his clinical
assessment.
3

By decision dated October 8, 2014, OWCP denied appellant’s reconsideration request
without merit review as the new evidence failed to address the factual component of fact of
injury.
LEGAL PRECEDENT -- ISSUE 1
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 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 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 first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.6
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. An employee has not met his or her burden in establishing the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her condition relates to the
employment incident.9 Whether an employee sustained an injury in the performance of duty
requires the submission of rationalized medical opinion evidence providing a diagnosis or
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

T.H., 59 ECAB 388 (2008).

6

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

7

Betty J. Smith, 54 ECAB 174 (2002).

8

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

9

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

4

opinion as to causal relationship. 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 specified employment factors or incident.
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.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that she injured her left knee on
April 16, 2014. As noted, an employee’s statement alleging that an incident occurred at a given
time and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence.11 Appellant’s account of the April 16, 2014 incident was inconsistent
throughout the case record. On the CA-1 claim form, filed almost two months after the alleged
injury, appellant stated that she injured her knee when walking to her vehicle while on her way to
lunch. In her August 18, 2014 statement, she advised that the injury occurred when she stepped
up onto the curb in front of her car onto the sidewalk. The day of the alleged incident,
Dr. Malone reported in his April 16, 2014 report that appellant was walking to her car when her
knee gave out. While appellant received prompt medical attention, she did not file her traumatic
injury claim until almost two months after the alleged incident and when OWCP asked her to
provide additional factual information, she omitted that she had prior claims concerning her left
knee while Dr. Malone’s April 9, 2014 report noted that she had a two-month history of left knee
symptoms. Also, where OWCP’s development questionnaire asked specifically whether
appellant had a history of knee problems before her alleged April 16, 2014 injury, appellant
answered “no.” The Board, therefore, finds that an employment incident did not occur on
April 16, 2014, as alleged. Thus, appellant has not met the first component of fact of injury.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,12
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.13 To be entitled to a merit review of OWCP’s decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.14 When a claimant fails to meet one of the above standards, OWCP

10

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

See Tina M. Parrelli-Ball, 57 ECAB 598 (2006); see Y.S., Docket No. 08-440 (issued March 16, 2009).

12

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
13

20 C.F.R. § 10.606(b)(2). Susan A. Filkins, 57 ECAB 630 (2006); see J.M., Docket No. 09-218 (issued
July 24, 2009).
14

Id. at § 10.607(a). Robert G. Burns, 57 ECAB 657 (2006); see S.J., Docket No. 08-2048 (issued July 9, 2009).

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will deny the application for reconsideration without reopening the case for review on the
merits.15
ANALYSIS -- ISSUE 2
Appellant’s request for reconsideration neither alleged nor demonstrated that OWCP
erroneously applied or interpreted a specific point of law.
In support of her reconsideration request, appellant submitted Dr. Malone’s
September 29, 2014 letter in which he reported that on April 16, 2014 appellant was walking to
her vehicle while working at the employing establishment and felt a “pop” in her left knee and
her left knee gave out. He noted that this incident was reported to the employing establishment
on April 16, 2014 and that she requested to been seen by him as she was already undergoing
treatment under her private health insurance. Dr. Malone noted his April 16, 2014 examination
findings. He stated that his diagnosis of a left knee torn meniscus was correlated by the April 17,
2014 MRI and appellant underwent a left knee arthroscopic medial meniscectomy, partial lateral
meniscectomy and chondroplasty on June 13, 2014. Dr. Malone opined that the injury appellant
sustained on April 16, 2014 was consistent with her reported injury and his clinical assessment.
While Dr. Malone’s report gives some support to appellant’s allegation that the April 16,
2014 incident occurred, it is insufficient to establish that it occurred at the time, place, and in the
manner alleged. As previously noted, appellant gave an inconsistent account of how the
April 16, 2014 alleged incident occurred and omitted some pertinent information concerning her
left knee in response to OWCP’s development questionnaire.
Other evidence submitted in support of appellant’s request including two copies of her
appeal request form and a copy of OWCP’s August 11, 2014 letter were duplicative. Thus, the
Board finds that appellant’s request for reconsideration neither alleged nor demonstrated that
OWCP erroneously applied a specific point of law.
Appellant may submit new evidence or argument as part of a formal 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 the evidence does not support that an incident occurred as alleged
on April 16, 2014 and OWCP properly denied appellant’s reconsideration request without merit
review.

15

Supra note 11; 20 C.F.R. § 10.608(b).

6

ORDER
IT IS HEREBY ORDERED THAT the October 8 and September 15, 2014 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 8, 2015
Washington, DC

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

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

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

7