United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, Joplin, MO, Employer
__________________________________________

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

Docket No. 12-1272
Issued: October 17, 2012

Case Submitted on the Record

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

JURISDICTION
On May 11, 2012 appellant filed a timely appeal from a February 13, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.3
1

The last merit decision in this case was the March 24, 2011 decision denying his traumatic injury claim. For
final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal.
20 C.F.R. § 501.3(d)(2). For final adverse decisions of OWCP issued on or after November 19, 2008, a claimant
must file an appeal within 180 days of the decision. 20 C.F.R. § 501.3(e). Because more than 180 days has elapsed
between the most recent merit decision dated March 24, 2011 to the filing of this appeal on May 11, 2012 the Board
lacks jurisdiction to review the merits of this case.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the February 13, 2012 nonmerit
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); Sandra D.
Pruitt, 57 ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for
reconsideration.

ISSUE
The issue is whether OWCP properly denied appellant’s January 30, 2012 request for
reconsideration under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 14, 2011 appellant, then a 50-year-old social security administration (SSA)
claims examiner, filed a traumatic injury claim alleging that he sustained a pulled muscle in his
lower back and neck with a sore left wrist that day. He slipped on a patch of ice in the parking
lot at work while he was getting out of his car. Appellant stopped work.
On February 17, 2011 OWCP advised appellant that the evidence submitted was
insufficient to establish his claim and requested additional factual and medical evidence, to
support his claim.
In a February 17, 2011 progress note, Dr. Suraiya Siddique, a Board-certified internist,
stated that appellant had acute pharyngitis. The history of injury noted that appellant had fallen
on the ice on February 14, 2011. Dr. Siddique stated that appellant’s chronic back and hip pain
were aggravated by a recent fall. He excused appellant from work until he recovered completely
and his pain improved.
On February 21, 2011 appellant responded to OWCP’s request for further information.
He stated that on February 14, 2011 he parked his vehicle and slipped on ice when he stepped
onto the parking lot. Appellant fell on his left arm, shoulder and back. He noted that there were
no witnesses to the incident and listed where he received medical treatment. Appellant reported
that his lower back, shoulder and wrist pain increased daily and he took pain medication to help
him sleep.
In a letter dated March 10, 2011, the employing establishment controverted appellant’s
claim. It noted that the premises of the office building was owned and maintained by JOPESSA
Ventures, and leased by the employing establishment. The employing establishment noted that
appellant’s fall occurred in its parking lot, which was for the exclusive use of employee’s only.
It attached a copy of the lease of the office building and parking lot.
In a decision dated March 24, 2011, OWCP found that appellant’s injury occurred in the
employing establishment’s parking lot, which was for exclusive use by employees. It denied his
claim, however, finding insufficient medical evidence to establish a back condition as a result of
the February 14, 2011 employment incident.
On January 30, 2012 appellant requested reconsideration. He stated that he experienced
constant pain in his back, which radiated outward to his shoulder blades and caused muscle
spasms in both sides and rib areas of his back. Appellant noted that he was unable to lift
anything over five pounds, stand for more than 5 to 10 minutes or walk a short distance without
experiencing pain, numbness, burning and tingling. He reported that a January 24, 2011
examination revealed that the L12 vertebrae of his back was twisted during the February 14,
2011 slip and fall was now fractured. Appellant explained that it did not show in the preliminary

2

x-rays because of swelling. He stated that he did not experience spinal problems of the L12 area
before February 14, 2011.
By decision dated February 13, 2012, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant further merit
review under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.4 OWCP regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his right through a request to the district OWCP.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.6
A request for reconsideration must also be submitted within one year of the date of the
OWCP decision for which review is sought.7 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.8 If the request is timely but fails to
meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.9
ANALYSIS
The Board has no jurisdiction to review the March 24, 2011 decision denying appellant’s
traumatic injury claim. Appellant did not file a timely appeal of that decision and it is not before
the Board on this appeal. The only decision the Board may review is the February 13, 2012
decision denying his request for reconsideration. The Board finds that OWCP properly denied
appellant’s request for reconsideration because his request did not meet any of the requirements
for obtaining merit review.
4

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

5

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
6

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued
December 9, 2008).
7

Id. at § 10.607(a).

8

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

9

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

3

On January 30, 2012 appellant submitted a request for reconsideration. He described the
February 14, 2011 incident and related that he experienced pain in his back, arms and shoulders.
OWCP denied appellant’s claim on the grounds of insufficient medical evidence. Appellant did
not submit any additional medical evidence with his request. He merely stated that an x-ray
revealed a spinal fracture, but he did not submit the x-ray reports. Because appellant’s statement
does not constitute probative medical evidence, it is not relevant to the issue on appeal.10 He did
not show that OWCP erroneously applied or interpreted a specific point of law. Appellant did
not advance a relevant legal argument nor submit relevant medical evidence not previously
considered by OWCP. Accordingly, OWCP properly denied his request for reconsideration as
he did not meet any of the requirements sufficient to warrant merit review.
On appeal, appellant described the February 14, 2011 injury and related his complaints of
pain and medical treatment. His assertions, however, do not satisfy any of the criteria necessary
to reopen a case for merit review as they do not show that OWCP erroneously applied a specific
point of law nor advance any new legal argument.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying appellant’s
January 30, 2012 request for reconsideration pursuant to 5 U.S.C. § 8128(a).

10

The Board notes that the submission of evidence that does not address the particular issue involved does not
constitute a basis for reopening a case. Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52
ECAB 140 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the February 13, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 17, 2012
Washington, DC

Alec J. Koromilas, Alternate 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
__________________________________________
S.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Staten Island, NY, Employer
__________________________________________

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

Docket No. 11-342
Issued: October 27, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 23, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) decision dated August 30, 2010 which denied his
reconsideration request on the grounds that it was untimely filed and failed to present clear
evidence of error. Because more than one year elapsed since the most recent merit decision
dated September 19, 2007 to the filing of this appeal on November 23, 2010, the Board lacks
jurisdiction to review the merits of his claim pursuant to the Federal Employees’ Compensation
Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3.2

1
2

5 U.S.C. § 8101 et seq.

For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. 20 C.F.R.
501.3(d)(2) (2008). An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180
days of the decision. 20 C.F.R. § 501.3(e) (2009).

ISSUE
The issue on appeal is whether OWCP properly determined that appellant’s request for
reconsideration dated August 17, 2010 was not timely filed and failed to present clear evidence
of error.
FACTUAL HISTORY
On February 2, 2005 appellant, then a 51-year-old letter carrier, filed a traumatic injury
claim alleging that on the same day he was lifting trays of mail and he felt his right hip snap. He
stopped work on February 2, 2005 and did not return. OWCP accepted a right hip strain.3
Appellant came under the treatment of Dr. Daniel W. Wilen, a Board-certified
orthopedist, from March 2 to October 14, 2005, for a work-related right hip injury. He reported
that his right hip condition had progressed and he was unable to climb steps or to get into and out
of his mail truck. Dr. Wilen diagnosed status post thoracic and lumbar spinal surgery, grade 1
spondylolisthesis at L5-S1 and degenerative changes of the right hip and opined that appellant
was totally disabled from work.
In the course of developing the claim, OWCP referred appellant to a second opinion
physician and also to an impartial medical examiner. In a September 8, 2006 report,
Dr. Edward B. Krisiloff, a Board-certified orthopedist and impartial specialist, opined that
appellant’s right hip strain had resolved but that the accepted hip strain sustained on February 2,
2005 exacerbated the preexisting right hip arthritis osteoarthritis. He opined that appellant was
totally disabled from work due to the right hip osteoarthritis.
On February 22, 2007 OWCP proposed to terminate compensation benefits on the
grounds that Dr. Krisiloff’s report established no residuals of the work-related right hip strain.
Appellant submitted reports from Dr. Wilen dated February 23 to March 23, 2007, who
diagnosed work-related injury to the right hip and opined that appellant was totally disabled.
By decision dated April 10, 2007, OWCP terminated appellant’s compensation benefits
for the accepted right hip strain effective April 15, 2007 on the grounds that the weight of the
medical evidence as represented by the referee physician established that appellant had no
continuing residuals of his accepted employment injury.
In an undated statement, appellant requested reconsideration. He submitted reports from
Dr. Wilen dated May 8 and August 10, 2007. Dr. Wilen diagnosed degenerative joint disease of
the right hip.
On August 26, 2007 an OWCP medical adviser opined that the diagnosed osteoarthritis
of the right hip was aggravated by the November 6, 2000 work injury. He noted that the
proposed right total hip arthroplasty should be authorized as work related.
3

Appellant filed a separate claim for a right hip injury sustained on November 2, 2000 which was accepted by
OWCP for a right hip sprain, File No. xxxxxx687. This claim was consolidated with the current claim before the
Board.

2

In a decision dated September 19, 2007, OWCP denied modification of the
April 10, 2007 decision. On September 25, 2007 appellant requested reconsideration. He
submitted reports from Dr. Wilen dated September 7 and October 5, 2007 who continued to treat
appellant for right hip and lumbar pain.
By a decision dated March 6, 2008, OWCP denied appellant’s reconsideration request on
the grounds that his request neither raised substantive legal questions nor included new and
relevant evidence and was therefore insufficient to warrant review of the prior decision.
On March 27, 2008 appellant requested reconsideration. On June 6, 2008 appellant,
through his attorney, withdrew his March 27, 2008 reconsideration request and requested his
claim be referred back to the referee physician for a supplemental report addressing whether the
proposed right hip arthroplasty was causally related to appellant’s November 6, 2000 work
injury.
In a decision dated June 19, 2008, OWCP expanded appellant’s claim to include
congenital dislocation of the right hip, unilateral osteoarthritis.
Appellant continued to submit reports from Dr. Wilen dated June 24 to August 1, 2008
who treated appellant for right hip and lower back pain. In reports dated June 24 and August 1,
2008, Dr. Wilen recommended a right hip replacement and opined that the surgery was the result
of the work injury of February 2, 2005 and subsequent arthritis.
In a letter dated February 11, 2009, appellant requested that his benefits previously
terminated be reinstated retroactively as his claim was expanded to include congenital
dislocation of the right hip and unilateral osteoarthritis.
On September 30, 2009 OWCP expanded appellant’s claim to include aggravation of
localized primary osteoarthritis, pelvic region and thigh.
Appellant submitted reports from Dr. Wilen dated October 13 and November 3, 2009
who diagnosed right hip pain and recommended a right hip arthroplasty. In a December 22,
2009 attending physician’s report, Dr. Wilen diagnosed work-related right hip and lumbar spine
injury and noted with a checkmark “yes” that appellant’s condition was caused by a work
activity. He noted appellant was totally disabled.
Appellant came under the treatment of Dr. Alan J. Dayan, a Board-certified orthopedist,
on November 18, 2009 who noted a history of appellant’s February 2, 2005 work injury and
subsequent treatment. Dr. Dayan diagnosed severe right hip osteoarthritis by history,
aggravation from a work-related injury with progressive symptoms. He recommended a total
right hip arthroplasty.
On December 10, 2009 OWCP authorized a right total hip arthroplasty.
On January 6, 2010 appellant filed a CA-7, claim for compensation, for total disability
for the period April 15 to November 1, 2007. In a January 14, 2010 letter, OWCP noted that his
medical and wage-loss compensation was terminated on April 15, 2007. OWCP indicated that
appellant requested reconsideration and in decisions dated September 19, 2007 and March 6,
3

2008, his request was denied. OWCP instructed him to appeal the March 6, 2008 decision if he
sought to reinstate his benefits.
In a letter dated January 27, 2010, appellant indicated that he requested reconsideration of
the March 6, 2008 decision on March 27, 2008. He asserted that the termination of benefits was
incorrect and noted that OWCP subsequently expanded his claim on June 19, 2008 and
September 30, 2009. Appellant requested compensation for total disability for the period
April 15 to November 1, 2007.
Appellant submitted medical records for a hospital admission from February 18 to 22,
2010, in which Dr. Dayan performed a total right hip arthroplasty. Also submitted were
prescription slips for physical therapy from Dr. Dayan dated March 11, April 21 and
May 25, 2010. Appellant submitted physical therapy notes from February to June 2010.
On August 17, 2010 appellant requested reconsideration of the March 6, 2008 decision.
He requested compensation for total disability for the period April 15 to November 1, 2007.
Appellant noted that his claim was expanded on June 19, 2008 to include dislocation of the hip
and that he was entitled to compensation for the period claimed.
In an August 20, 2010 letter, OWCP acknowledged appellant’s request for
reconsideration of the March 6, 2008 OWCP decision and advised that the request was referred
to a claims examiner. It advised that his claim was expanded to include congenital dislocation of
the hip and aggravation of localized primary osteoarthritis, pelvic region and thigh, and that
medical benefits were being paid.
In an August 30, 2010 decision, OWCP denied appellant’s reconsideration request
finding that the request was not timely filed within one year of the March 6, 2008 decision and
did not present clear evidence of error.4
LEGAL PRECEDENT
Section 8128(a) of the FECA vests OWCP with discretionary authority to determine
whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”5

4

The Board notes that the March 6, 2008 decision is not a merit decision. The most recent adverse merit decision
of OWCP is its September 19, 2007 decision.
5

5 U.S.C. § 8128(a).

4

OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that
OWCP will not review a decision unless the application for review is filed within one year of the
date of that decision.6 However, OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation, if the claimant’s application for review shows
clear evidence of error on the part of OWCP in its most recent merit decision. To establish clear
evidence of error, a claimant must submit evidence relevant to the issue that was decided by
OWCP. The evidence must be positive, precise and explicit and must be manifest on its face that
OWCP committed an error.7
ANALYSIS
In an April 10, 2007 decision, OWCP terminated appellant’s compensation benefits for
the accepted right hip strain effective April 15, 2007 on the grounds that the weight of the
medical evidence as established by the referee physician established that appellant had no
continuing residuals of his accepted employment injury. It denied modification of its April 10,
2007 decision on September 19, 2007.
However, following issuance of the April 10, 2007 decision, OWCP received additional
medical evidence into the record and conducted further development on the merits of appellant’s
claim by referring his medical records to an OWCP medical adviser. On August 26, 2007 the
medical adviser diagnosed osteoarthritis of the right hip aggravated by the November 6, 2000
work injury and opined that the proposed right total hip arthroplasty should be authorized as
work related. Subsequently, on June 19, 2008 OWCP expanded appellant’s claim to include
congential dislocation of the right hip, unilateral osteoarthritis. Similarly, on September 30,
2009 it accepted aggravation of localized primary osteoarthritis of the pelvic region and thigh
and authorized a right total hip arthroplasty. Thereafter, in view of this additional development
by OWCP and its acceptance of additional conditions, appellant further sought compensation for
total disability for the period April 15 to November 1, 2007. Instead of acting on his claim for
compensation, OWCP informed him that he had to appeal OWCP’s nonmerit March 6, 2008
decision. It then found that the reconsideration request was untimely. The Board finds that this
was error and that appellant is entitled to a merit decision on his claim for compensation in view
of OWCP’s additional development and acceptance of the claim and in view of appellant’s filing
of a claim for compensation following OWCP’s development of the claim.8

6

20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998).

7

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

8

OWCP procedures provide that a formal decision is required in any case where the OWCP has received a Form
CA-7, claiming compensation, and determined that the claim cannot be paid after appropriate development. These
procedures also note that, if the case in its entirety (or the same period of compensation) has already been denied by
formal decision, a new decision is not needed. Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances,
Chapter 2.1400.2(a)(2) (March 1997). While, as noted, appellant’s benefits were terminated on April 10, 2007,
OWCP later chose to reopen the claim and accept additional medical conditions as being work related. Thus, the
claim cannot be said to be denied in its entirety when appellant claimed compensation on January 6, 2010.

5

The Board notes that, in referring appellant’s file to the OWCP medical adviser and
accepting additional conditions as being work related, OWCP proceeded to exercise its
discretionary authority under 5 U.S.C. § 8128. This case is similar to David F. Garner,9 in
which the Board found that, after reopening the merits of the employee’s claim for further
development, OWCP abused its discretion in denying reconsideration under the clear evidence of
error standard. Rather, the Board noted that OWCP should have conducted a merit review of the
claim. Following the April 10, 2007 termination of appellant’s benefits and his reconsideration
request, OWCP, as noted, advised him that it was further developing his claim by his referral to
an OWCP medical adviser for an opinion on one of the relevant points at issue, i.e., on the issue
of appellant’s continuing entitlement to benefits and whether his diagnosed congential
dislocation of the right hip, unilateral osteoarthritis and aggravation of localized primary
osteoarthritis of the pelvic region and thigh were work related. As the record currently stands,
OWCP has not evaluated the evidence it obtained from OWCP’s medical adviser, or reviewed
the additional medical evidence submitted by appellant during the development of his claim after
April 10, 2007 and issued a merit decision on appellant’s request for total disability for the
period April 15 to November 1, 2007.
Exercising its discretionary authority, OWCP solicited and received relevant pertinent
evidence not previously considered. Therefore, it must conduct an appropriate merit review of
the evidence under section 8128(a) and issue a decision on appellant’s claim for compensation
that was made in view of OWCP’s development of the claim.10 Following such a review and any
development which OWCP deems necessary, OWCP shall issue an appropriate merit decision.
On appeal, appellant’s counsel asserts that OWCP’s actions in expanding the claim and
authorizing medical procedures represented a reversal of its decision terminating compensation
benefits. As explained, the Board does not have jurisdiction over the merits of this claim.
However, as noted, OWCP improperly treated appellant’s claim for compensation as an untimely
request for reconsideration and, upon return of the case record, it shall issue a merit decision
regarding his claim for compensation.
CONCLUSION
The Board finds that OWCP improperly found that appellant’s reconsideration request
was untimely and did not present clear evidence of error.

9

43 ECAB 459 (1992); see also Joyce A. Fasanello, 49 ECAB 490 (1998).

10

See id.

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ORDER
IT IS HEREBY ORDERED THAT the August 30, 2010 decision of Office of Workers’
Compensation Programs is reversed and the case remanded for further proceedings consistent
with this decision.
Issued: October 27, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Fabens, TX, Employer
__________________________________________

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

Docket No. 20-0073
Issued: July 6, 2020

Case Submitted on the Record

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

JURISDICTION
On October 15, 2019 appellant filed a timely appeal from an April 15, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP following the April 15, 2019 decision.
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 his burden of proof to establish a diagnosed medical
condition causally related to the accepted January 30, 2019 employment incident.
FACTUAL HISTORY
On January 30, 2019 appellant, then a 58-year-old customs and border patrol officer, filed
a traumatic injury claim (Form CA-1) alleging that he sustained swelling and bruising to the right
eye, lacerations to the nose and right elbow, and right rib pain on that date when he fainted after
feeling hot and dizzy while in the performance of duty. A supervisor indicated that appellant was
not injured in the performance of duty, noting that he became dizzy and fainted, striking his head
on a podium desk. Appellant stopped work on that date and returned on February 1, 2019 with no
restrictions.
In an emergency room note dated January 30, 2019, Dr. Claudia Kim, an emergency
medicine specialist, examined appellant for syncope. She noted that he was sitting at work and
experienced ringing of the ears and feeling dizzy, after which he had a syncopal episode, striking
his face on a bar. On physical examination, Dr. Kim observed right periorbital ecchymosis and
swelling and an abrasion to the bridge of the nose. Included with her report were the results of
computerized tomography (CT) scans of the facial bones and brain and an x-ray of the right elbow,
taken on January 30, 2019. Dr. Kim diagnosed syncope, periorbital ecchymosis of the right eye,
and right elbow pain.
In a letter dated February 12, 2019, the employing establishment’s injury compensation
specialist, noted that appellant had a similar syncopal incident involving light-headedness on
February 9, 2019 and had filed another claim for traumatic injury. She further noted that, based
on the medical evidence, it could be an underlying issue and not related to a work injury.
An x-ray of appellant’s right elbow dated January 30, 2019 demonstrated no fracture or
dislocation, along with olecranon enthesophyte formation and mild subchondral cystic change
within the humeral capitellum, which was also noted on prior study.
A CT scan of appellant’s facial bones dated January 30, 2019 demonstrated right-sided
periorbital hematoma, no facial bone fractures, multilevel upper cervical spine arthritic change,
and cerumen within both external canals. A CT scan of his brain also dated January 30, 2019
demonstrated left periorbital tissue swelling and no acute intracranial process.
In a March 11, 2019 development letter, OWCP informed appellant that the factual and
medical evidence of record was insufficient to establish his claim. It advised him to submit a
narrative report from a physician, including diagnoses and a rationalized medical opinion on causal
relationship. OWCP noted that the diagnoses of fainting (syncope) and facial and scalp contusions
were not substantiated by medical evidence to be caused or aggravated by the incident of
January 30, 2019. It also requested additional information regarding the alleged January 30, 2019
employment incident, as well as similar disability or symptoms before the injury. OWCP afforded
appellant 30 days to submit the necessary evidence.

2

In a discharge summary dated January 30, 2019, Dr. Kim listed diagnoses of fainting
(syncope) and facial and scalp contusions.
On March 28, 2019 appellant responded to OWCP’s factual development questionnaire.
He explained that he had hit his head on a desk corner after fainting and falling at work. Appellant
noted that he did not have a preexisting condition that may have contributed to the injury and that
the incident had been witnessed and recorded on a security system.
In a letter dated March 29, 2019, a supervisor at the employing establishment noted that he
witnessed appellant fall on January 30, 2019. Appellant had been using a pedestrian primary booth
landline for approximately one minute, then collapsed to the ground, hitting his head and upper
torso on the pedestrian primary metal inspection counter/station. He laid face down on a ceramic
floor until coworkers began to administer first aid.
In a supplemental statement dated March 26, 2019, appellant described the January 30,
2019 incident. He stated that at approximately 3:15 p.m. on that date, he was inspecting vehicles
coming across the border for 30 minutes, in an environment where he was exposed to exhaust from
vehicles. Appellant’s next assignment was to process pedestrians inside the facility, which was
much warmer than the outside. With the temperature change, he felt hot and dizzy, and fainted,
hitting his face on the edge of a booth/desk and hitting his head on the floor.
By decision dated April 15, 2019, OWCP accepted that the January 30, 2019 employment
incident occurred as alleged. However, it denied appellant’s traumatic injury claim, finding that
the evidence of record did not contain a medical diagnosis in connection with the accepted event.
OWCP concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6

3

Id.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
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).

3

In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.7 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale that explains the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).11
Pursuant to OWCP’s procedures, no development of a claim is necessary when there is a
visible injury, even when time has been lost from work due to disability, following a serious injury
(motor vehicle accidents, stabbings, shootings, etc.).12 The procedures provide that no
development is necessary when the employing establishment does not dispute the facts of the case
and there are no questionable circumstances surrounding the case. No medical report is required
to establish a minor condition such as a laceration.13 Sound judgment should be employed in these
cases to provide appropriate and immediate medical care for the injured worker since expeditious
treatment for these injuries is critical.14
ANALYSIS
The Board finds that appellant has established that he sustained facial and scalp lacerations
and a periorbital hematoma causally related to the accepted January 30, 2019 employment incident.

7

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

8
K.L., Docket No. 18-1029 (issued January 9, 2019). See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J.
Carlone 41 ECAB 354, 356-57 (1989).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018).

11

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

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011).
13

Id.

14
See E.H., Docket No. 19-1282 (issued December 23, 2019); M.C., Docket No. 18-1278 (issued March 7, 2019);
R.T., Docket No. 08-0408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

4

In a discharge summary dated January 30, 2019, Dr. Kim diagnosed facial and scalp
contusions. In addition, a CT scan of appellant’s facial bones dated January 30, 2019, the results
of which were included in Dr. Kim’s January 30, 2019 hospital note, demonstrated a right-sided
periorbital hematoma. As all of these diagnosed conditions were visible and the incident had been
accepted, no medical reports were required to establish the medical conditions as employment
related.15 The Board therefore finds that appellant has met his burden of proof to establish facial
and scalp lacerations and a periorbital hematoma causally related to the accepted employment
incident. Therefore, upon return of the case file OWCP shall pay all appropriate wage-loss
compensation and medical benefits.
CONCLUSION
The Board finds that appellant has established that he sustained facial and scalp lacerations
and a periorbital hematoma causally related to the accepted January 30, 2019 employment
incident.
ORDER
IT IS HEREBY ORDERED THAT the April 15, 2019 decision of the Office of Workers’
Compensation Programs is reversed and the case is remanded for payment of appropriate wageloss compensation and medical benefits consistent with this decision of the Board. .
Issued: July 6, 2020
Washington, DC

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

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

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

15

Supra note 12.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Gaffney, SC, Employer
__________________________________________

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

Docket No. 11-1769
Issued: March 16, 2012

Case Submitted on the Record

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

JURISDICTION
On July 22, 2011 appellant filed a timely appeal from a January 26, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim.1 Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit
decision was issued on January 26, 2011, the 180-day computation begins January 27, 2011. One hundred and
eighty days from January 27, 2011 was July 25, 2011. Since using July 26, 2011, the date the appeal was received
by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of
filing. The date of the U.S. Postal Service postmark is July 22, 2011, which renders the appeal timely filed. See 20
C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty.
FACTUAL HISTORY
On June 24, 2010 appellant, then a 53-year-old rural letter carrier, filed an occupational
disease claim alleging that on May 5, 2010 she first realized her bilateral carpal tunnel, bilateral
tennis elbow and foot and neck conditions were employment related.
By letter dated July 1, 2010, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised as to the medical and factual evidence
required to support her claim. OWCP gave her 30 days to provide the requested information.
In response, appellant submitted her job description, diagnostic test and progress notes
dated June 17 and 29, 2010 from Dr. Andrew W. Harakas, a treating Board-certified orthopedic
surgeon, who provided physical findings and diagnosed lateral epicondylitis, bilateral
radiocapitellar synovitis, bilateral carpal tunnel syndrome and C7-8 radiculopathy.
By decision dated August 17, 2010, OWCP denied appellant’s claim. It found the
evidence insufficient to establish a causal relationship between the diagnosed condition and her
employment.
On September 8, 2010 appellant requested a written review of the record by an OWCP
hearing representative. She submitted an August 3, 2010 progress note from Dr. Harakas who
provided physical findings and diagnosed carpal tunnel syndrome with some radiculopathy at
C7-8. Appellant related that her work involved repetitive motion which she believed was a cause
of her carpal tunnel condition. She asked Dr. Harakas if her repetitive work duties could cause
her condition and he noted that “these type of modalities could certainly aggravate or case the
problems” seen in her wrist and elbow.
By decision dated January 26, 2011, an OWCP hearing representative affirmed the
August 17, 2010 decision.3
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of her claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
3

The Board notes that, following the January 26, 2011 hearing representative’s decision, OWCP received
additional evidence. 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).
4

5 U.S.C. § 8101 et seq.

2

an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.5 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) medical evidence establishing the
presence or existence of a condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the condition; and
(3) medical evidence establishing that the employment factors identified by the employee were
the proximate cause of the condition or illness, for which compensation is claimed or stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.8 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between an employee’s diagnosed conditions and the implicated
employment factors.9 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
conditions and the specific employment factors identified by the employee.
ANALYSIS
Appellant filed an occupational disease claim attributing her bilateral carpal tunnel,
bilateral tennis elbow and foot and neck conditions to her employment duties. OWCP accepted
the employment factors identified by her, but denied her claim on the grounds that she failed to
submit any rationalized medical evidence. Thus, the question to be resolved is whether the
medical evidence submitted by appellant is sufficient in explaining how the identified conditions
of lateral epicondylitis, bilateral radiocapitellar synovitis, bilateral carpal tunnel syndrome and
C7-8 radiculopathy were caused or aggravated by her employment. The Board finds that she did
not provide sufficient medical evidence to meet her burden of proof.
In support of her claim, appellant submitted progress notes from Dr. Harakas. In
progress notes dated June 17 and 29, 2010, Dr. Harakas provided physical findings and
diagnosed lateral epicondylitis, bilateral radiocapitellar synovitis, bilateral carpal tunnel
syndrome and C7-8 radiculopathy. However, he provided no opinion as to the causation of these
5

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

6

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

7

D.D., 57 ECAB 734 (2006); Donna L. Mims, 53 ECAB 730 (2002).

8

I.R., Docket No. 09-1229 (issued February 24, 2010); David Apgar, 57 ECAB 137 (2005).

9

G.G., 58 ECAB 389 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

3

conditions in either the June 17 or 29, 2010 progress notes. The Board has long held that
medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.10 Thus, the progress
notes dated June 17 and 29, 2010 are insufficient to meet appellant’s burden of proof.
Appellant also submitted an August 3, 2010 progress note from Dr. Harakas in which he
diagnosed carpal tunnel syndrome with some radiculopathy at C7-8 and provided physical
findings. In response to a question from appellant as to whether these conditions could be
caused by her repetitive work duties, Dr. Harakas responded by stating that the “these type of
modalities could certainly aggravate or cause the problems” seen in her wrist and elbow. He did
not explain how the diagnosed carpal tunnel syndrome with some radiculopathy at C7-8 were
caused or contributed to by her employment duties.11 Dr. Harakas merely noted in response to
appellant’s question that her repetitive work duties could have aggravated or caused her
problems. The Board finds this report is speculative or equivocal as the physician concludes that
appellant’s condition could have been caused by the employment duties identified by appellant.
In order to be of probative value, medical opinions should be expressed in terms of a reasonable
degree of medical certainty.12 Furthermore, the Board has held that medical opinions which are
speculative or equivocal are of diminished probative value.13 For these reasons, the report is
insufficient to meet appellant’s burden to establish that diagnosed conditions of carpal tunnel
syndrome with some radiculopathy at C7-8 were caused by her employment-related paint
exposure. Thus, Dr. Harakas’ August 3, 2010 progress note is also insufficient to establish that
the diagnosed conditions were caused or aggravated by appellant’s employment.
Because appellant has not submitted competent medical opinion evidence containing a
reasoned discussion of causal relationship, one that soundly explains how her employment duties
caused or aggravated a firmly diagnosed medical condition, the Board finds appellant has not
established the essential element of causal relationship.
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.

10

A.D., 58 ECAB 149 (2006); Robert Broome, 55 ECAB 339 (2004).

11

See Gloria J. McPherson, 51 ECAB 441 (2000) (the opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant).
12

See Roy L. Humphrey, 57 ECAB 238 (2005) (to be probative, the medical opinion must be of reasonable
medical certainty and supported by medical rationale).
13

See S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the
condition is “probably” related, “most likely” related or “could be” related are speculative and diminish the
probative value of the medical opinion); Cecelia M. Corley, 56 ECAB 662 (2005) (medical opinions which are
speculative or equivocal are of diminished probative value).

4

CONCLUSION
The Board finds that appellant did not establish that she sustained an injury in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 26, 2011 is affirmed.
Issued: March 16, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
INTERNAL REVENUE SERVICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 17-1183
Issued: November 13, 2017

Case Submitted on the Record

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

JURISDICTION
On May 9, 2017 appellant, through counsel, filed a timely appeal from a March 31, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from OWCP’s most recent merit decision dated November 19, 2015, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of appellant’s claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal counsel asserts that in its March 31, 2017 decision, OWCP applied an
incorrect legal standard and that the medical evidence established that appellant was no longer
capable of performing the light-duty position she was offered following the February 9, 2010
employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances outlined in
the prior decision are incorporated herein by reference. The facts relevant to the current appeal
are set forth below.
Appellant, then a 47-year-old computer assistant, injured her lumbar spine when an
elevator she was riding in suddenly dropped on February 9, 2010. She stopped work, and
OWCP accepted appellant’s traumatic injury claim (Form CA-1) for lumbar radiculitis.
Appellant received continuation of pay, and wage-loss compensation benefits beginning
April 1, 2010.
Appellant returned to limited part-time duty on April 26, 2010.4
She worked
intermittently on a part-time basis through June 4, 2010. Appellant received wage-loss
compensation for four hours a day through May 23, 2010. On July 9, 2010 she filed a claim for
compensation (Form CA-7) beginning June 21, 2010.
In a decision dated October 27, 2010, OWCP denied appellant’s claim for wage-loss
compensation for the period June 21 through July 11, 2010. By decision dated January 14, 2011,
it denied her claim that she sustained a recurrence of disability beginning June 8, 2010 as the
medical evidence of record did not establish that she was totally disabled from work due to the
accepted condition. Appellant, through counsel, timely requested a review of the written record
with OWCP’s Branch of Hearings and Review from both decisions.
In decisions dated March 17 and May 16, 2011 respectively, OWCP hearing
representatives affirmed the October 27, 2010 and January 14, 2011 decisions.5 Following an
October 18, 2011 request for reconsideration, in a merit decision dated January 19, 2012, OWCP

3

Docket No. 12-859 (issued September 7, 2012).

4

The physical requirements of the modified position were described as sitting in a chair, working on a desktop
computer intermittently, not to exceed four hours per day, with the terminal at eye level. There was no reaching
above shoulder level. Walking short distances on an intermittent basis was required, not to exceed one hour per day,
with intermittent bending, stooping, lifting, pulling, and pushing limited to one hour a day with a 10-pound weight
restriction. Appellant was allowed to sit or stand at her convenience.
5

At this time appellant was represented by other legal counsel.

2

denied modification of the May 16, 2011 decision. Appellant then filed an appeal with the Board
from the January 19, 2012 decision.
In a September 7, 2012 decision, the Board found that appellant had not established a
recurrence of disability on June 8, 2010 caused by the accepted lumbar radiculitis, and affirmed
the January 19, 2012 OWCP decision. The Board discussed the medical evidence of record and
denied the recurrence claim because appellant did not establish that the nature and extent of her
injury-related condition changed so as to prevent her from continuing to perform her limitedduty assignment. The Board found the reports of Dr. John C. Verstraete, an osteopath and a
Board-certified internist, insufficient to establish appellant’s recurrence claim as the physician
did not provide a sufficient explanation as to how the mechanics of the February 9, 2010
employment injury, accepted for lumbar radiculitis, caused her complaints of unrelenting back
pain such that she could not perform the essentially sedentary duties of the modified assignment.
The Board noted that Dr. Verstraete did not demonstrate specific knowledge of the assignment or
provide an explanation with sufficient rationale as to why appellant could not perform the
modified work duties.6
Subsequent to the Board’s September 7, 2012 decision, on January 24, 2013 appellant,
through counsel, requested reconsideration.7 In a January 7, 2013 report, Dr. Verstraete
described the duties of the modified position and opined that appellant’s nerve damage and pain
medications prevented her from any work. In a merit decision dated March 11, 2013, OWCP
denied modification of the September 7, 2012 decision.
In correspondence dated September 10, 2013, counsel requested that appellant’s claim be
expanded to a consequential injury to include compression fracture of the lumbar spine. In an
attached statement, appellant indicated that she fell down 12 steps on February 13, 2013 when
her right leg gave out. She related that this caused severe pain, and she was taken by ambulance
to a hospital emergency room and was discharged later that day. Appellant noted being
bedridden for weeks, and that Dr. Verstraete ordered a magnetic resonance imaging (MRI) scan.
By letter dated October 4, 2013, OWCP advised appellant of the medical evidence
needed to establish a consequential injury claim and asked her to forward all medical evidence
from February 13, 2013 to present.
Additional medical evidence submitted included an April 13, 2013 MRI scan of the
lumbar spine that demonstrated a compression fracture at L3. A June 24, 2013 MRI scan of the
sacrum also demonstrated the L3 compression fracture with an L2-3 disc bulge and asymmetry
of the piriformis musculature.
In treatment notes dated June 26 to September 17, 2013, Dr. Verstraete noted the history
of appellant’s February 2013 fall, indicated that appellant was in severe discomfort, and
described examination findings of right leg calf muscle atrophy. He diagnosed lumbago,
myalgia and myositis, and depressive disorder. On July 31, 2013 Dr. Verstraete noted that
6

Supra note 3.

7

The law firm of Steven E. Brown, Esquire began representing appellant on April 13, 2012.

3

appellant continued to have problems with pain and weakness associated with the February 9,
2010 employment injury. He advised that she had fallen numerous times due to this weakness
which further aggravated her injuries, noting that the most recent fall in February 2013 caused a
compression fracture in the lumbar spine which required vertebraplasty for repair. Dr. Verstraete
further indicated that appellant had well-documented progressive atrophy of her calf muscle, and
asymmetry of her piriformis muscle, as documented on the June 24, 2013 MRI scan. He
concluded that appellant had a permanent nerve injury which caused the weakness and muscle
abnormalities, opining she should have never been released to return to work following the
employment injury.
In a November 13, 2013 report, Dr. Daniel D. Zimmerman, a Board-certified internist
and OWCP medical adviser, noted his review of the record. He indicated that, prior to accepting
a compression abnormality, all medical records since the February 9, 2010 employment injury
should be reviewed.
Following a request by OWCP, appellant thereafter submitted additional medical
evidence. This included an ambulance report that appellant was transported to a hospital for
severe back and hip pain after a fall. A February 13, 2013 emergency room report noted
appellant’s complaint of increased right hip and lower body pain after a fall down steps. She was
discharged home with diagnoses of back pain.
In reports dated April 1 and May 11, 2014, Dr. Zimmerman, an OWCP medical adviser,
noted his review of the submitted records. He advised that additional conditions should not be
accepted.
In May 2014 OWCP referred appellant to Dr. William O. Hopkins, a Board-certified
orthopedic surgeon, for a second opinion evaluation. Dr. Hopkins was asked to comment on
what conditions should be accepted due to the February 9, 2010 employment injury and
February 13, 2013 fall. In a June 30, 2014 report, he advised that his review of the record
supported preexisting lumbar radiculopathy on the right side that was exacerbated by the
February 2010 employment injury, which led to progressive deterioration and progressive
neurological deterioration that had not resolved. Dr. Hopkins continued that appellant’s
progressive weakness caused the February 2013 fall which created the compression fracture,
noting that she had also developed an additional compression fracture at T12.
On August 28, 2014 OWCP additionally accepted T12 compression fracture.
Additional evidence submitted on October 10, 2014 included an August 21, 2014 MRI
scan of the cervical spine that demonstrated multilevel degenerative change. An MRI scan of the
thoracic spine that day demonstrated a compression fracture at T12.
On December 2, 2014 appellant filed claims for compensation (Form CA-7) for the
period February 9 to October 28, 2010 and November 1, 2010 to November 21, 2014.
On December 12, 2014 OWCP accepted L3 compression fracture.
On March 16, 2015 appellant filed a notice of recurrence (Form CA-2a), noting that the
recurrence occurred on February 13, 2013 when she fell down stairs at home. She indicated that
4

she stopped work in June 2010 under Dr. Verstraete’s instruction, and retired on
November 3, 2010.
In an April 15, 2015 letter, OWCP informed appellant of the evidence needed to support
her recurrence claim. On an OWCP development questionnaire, appellant described the
February 13, 2013 fall. In an April 29, 2015 report, Dr. Verstraete indicated that he had never
returned appellant to work after the February 9, 2010 work injury, but that she was forced to
return to work in 2010. He provided examination findings and noted the accepted conditions and
appellant’s physical limitations. Dr. Verstraete concluded that appellant’s objective studies
showed a worsening of her medical problems, all of which stemmed from her work injury and
led to a progressive decline in her stability which impacted her later injuries.
In a merit decision dated May 28, 2015, OWCP denied appellant’s recurrence claim
because there was insufficient evidence to establish that she was disabled solely due to the
conditions accepted after the February 13, 2013 fall.
Appellant, through counsel, requested reconsideration on September 11, 2015. In a
September 3, 2015 report, Dr. Verstraete reviewed the record, including objective testing. He
reiterated his opinion that the February 2010 employment injury led to progressive muscle
deterioration and progression neurological deterioration such that appellant could never work,
and should have never returned to work.
In a merit decision dated November 19, 2015, OWCP denied modification of the prior
decision, finding the evidence submitted insufficient to establish that she was disabled due to the
conditions accepted after the February 13, 2013 fall.
Appellant, through counsel, again requested reconsideration on November 1, 2016. An
October 11, 2016 functional capacity evaluation (FCE) indicated that appellant was incapable of
a sustained level of sedentary work for an eight-hour workday. In an October 19, 2016 report,
Dr. Verstraete advised that appellant’s condition had progressively deteriorated. He noted that
this opinion was shared by Dr. Hopkins in his June 30, 2014 report. Dr. Verstraete indicated that
he had ordered the FCE, advising that it was reliable and valid. He compared it with an FCE
done on June 1, 2010, noting that the latter study showed that her ability to do work tasks had
diminished such that she could no longer work an eight-hour day. In an attached work capacity
evaluation (OWCP Form 5c), Dr. Verstraete provided permanent restrictions based on the FCE,
indicating that appellant was totally disabled. He commented that appellant took pain
medication daily, needed to lie down frequently throughout the day, and that activity exacerbated
her constant pain.
By decision dated March 31, 2017, OWCP denied review of the merits of the case. It
listed the medical evidence submitted and the requirements to establish a recurrence of disability.
OWCP indicated that, as appellant stopped work on June 8, 2010, voluntarily retired, never
returned to work, and the light-duty assignment was not withdrawn or altered, there could be no
recurrence without a previous return to work.

5

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.8 Section 10.608(a) of OWCP’s regulations provides that a timely
request for reconsideration may be granted if OWCP determines that the employee has presented
evidence and/or argument that meets at least one of the standards described in section
10.606(b)(3).9 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that OWCP
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new
evidence not previously considered by OWCP.10 Section 10.608(b) provides that when a request
for reconsideration is timely but fails to meet at least one of these three requirements, OWCP
will deny the application for reconsideration without reopening the case for a review on the
merits.11
ANALYSIS
The only decision before the Board on this appeal is the nonmerit decision of OWCP
dated March 31, 2017 denying appellant’s application for review.
The underlying merit issue in this case is whether appellant established a recurrence of
disability. The Board notes that by its September 7, 2012 decision, it affirmed a January 12,
2012 OWCP decision, finding that appellant had not established a recurrence of disability on
June 8, 2010.12 OWCP subsequently accepted compression fractures at T12 and L3.
On December 12, 2014 appellant filed a recurrence claim, indicating that she sustained a
recurrence of disability on February 13, 2013 when she fell down stairs, causing the accepted
compression fractures. In merit decisions dated May 28 and November 19, 2015, OWCP denied
the recurrence claim. Counsel again requested reconsideration on November 1, 2016 and
submitted additional medical evidence including an October 11, 2016 FCE and an October 19,
2016 report from Dr. Verstraete.
The Board notes that, although OWCP indicated that it denied merit review in its
March 31, 2017 decision, it did not mention the requirements found in OWCP’s regulations at
section 10.608 described above.13 OWCP procedures require that a nonmerit decision should
8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.608(a).

10

Id. at § 10.606(b)(3).

11

Id. at § 10.608(b).

12

Supra note 3. The Board also notes that by decision dated March 11, 2013 OWCP affirmed the September 7,
2012 decision.
13

20 C.F.R. § 10.608.

6

include a discussion of the evidence submitted, or lack thereof, and should explicitly state the
basis for the finding of insufficiency. The decision should explain that the application for
reconsideration is denied on the basis that the evidence submitted in support of the application is
not sufficient to warrant review.14 In its March 31, 2017 decision, OWCP merely listed the
evidence presented and did not discuss the sufficiency of the evidence submitted on
reconsideration, i.e., whether the newly submitted evidence constituted relevant and pertinent
new evidence not previously considered by OWCP.15
The Board, however, finds that as appellant did not assert, in the November 1, 2016
reconsideration request, that OWCP erroneously applied or interpreted the law or advance a
relevant legal argument not previously considered by OWCP, she was not entitled to a review of
the merits of her claim based on the first and second above-noted requirements under section
10.606(b)(3).16
With respect to the third above-noted requirement under section 10.606(b)(3), as noted,
appellant submitted additional medical evidence including Dr. Verstraete’s October 19, 2016
report in which he advised that he had ordered the October 11, 2016 FCE and found it reliable
and valid, noting that it indicated that appellant could not work eight hours of sedentary duty.
He opined that he had compared the recent FCE with an FCE done on June 1, 2010, noting that
the October 2016 study showed that appellant’s ability to do work tasks had diminished such that
she could no longer work an eight-hour day. In an attached work capacity evaluation,
Dr. Verstraete provided permanent restrictions based on the FCE, indicating that appellant was
totally disabled. He commented that appellant took pain medication daily, needed to lie down
frequently throughout the day, and that activity exacerbated her constant pain.
The Board finds that Dr. Verstraete’s report, together with the October 11, 2016 FCE
ordered and deemed reliable by Dr. Verstraete, constitute new, relevant, and pertinent evidence
in regard to the matter of whether appellant established a recurrence of disability. It is not
necessary that the evidence be sufficient to establish the claim, only that it is new, relevant, and
pertinent to the issue presented.17
As OWCP did not follow its procedures regarding the content of a nonmerit decision,18
and as appellant submitted pertinent evidence on reconsideration that was not previously
considered by OWCP, appellant is entitled to a review of the merits of her claim under section
10.606(b)(3) of OWCP’s regulations. The case shall therefore be remanded to OWCP to review
the merits of the claim including Dr. Verstraete’s October 19, 2016 report, together with the
October 11, 2016 FCE. The Board will, therefore, set aside OWCP’s March 31, 2017 decision.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Non-Merit Decisions, Chapter 2.1602.7b

15

20 C.F.R. § 10.606(b)(3).

16

Id. at § 10.606(b)(3); see R.M., 59 ECAB 690 (2008).

17

C.L., Docket No. 14-1904 (issued May 18, 2015).

18

Federal (FECA) Procedure Manual, supra note 14.

7

After this and such further development deemed necessary, OWCP shall issue an appropriate
merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to section 8128(a) of FECA.
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this decision of the Board.
Issued: November 13, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Fort Drum, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0599
Issued: January 28, 2020

Case Submitted on the Record

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

JURISDICTION
On January 22, 2019 appellant, through counsel, filed a timely appeal from a July 31, 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 July 31, 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 diagnosed medical
conditions causally related to the accepted January 6, 2015 employment incident.
FACTUAL HISTORY
On January 21, 2015 appellant, then a 52-year-old Army substance abuse program
prevention coordinator, filed a traumatic injury claim (Form CA-1) alleging that on January 6,
2015 she injured her neck, back, ribs, and hip when she slipped on oil near a copier while in the
performance of duty. She did not fall. The alleged incident was reported to an employing
establishment supervisor on January 8, 2015. R.G., a coworker, provided an undated witness
statement noting that he saw appellant slip, but not fall and that she cleaned up oil on the floor.
Appellant stopped work on January 12, 2015.
Dr. Jason Swaby, an emergency medicine specialist, completed a report on
January 12, 2015. He noted appellant’s complaint of thoracic and lumbar back pain radiating into
the right buttock that began about six days prior when she slipped, twisted, and fell at work, without
striking the ground. Appellant’s physical examination demonstrated mild tenderness over the
thoracic and lumbar areas of the spine with limited back range of motion. Dr. Swaby reviewed a
computerized tomography (CT) scan of the thoracic spine that demonstrated mild anterior wedging
in T6, T7, and T8. A lumbar spine CT scan demonstrated no acute findings. The thoracic spine
CT scan further demonstrated that the middle and posterior columns were intact, and the thoracic
vertebrae were properly aligned. Dr. Swaby diagnosed acute mid and low back strain with acute
sciatica. He prescribed medication and recommended bed rest for two days and not to work for
seven days.
In a January 21, 2015 report, Dr. Julie Lapointe, a Board-certified internist, noted a history
that on January 6, 2015 appellant slipped in oil at work and twisted violently in an attempt to keep
herself from falling and to protect her right hip that had preexisting problems. She reported
complaints of severe pain of the entire spine radiating into the lower extremities and difficulty
moving. Dr. Lapointe reviewed the January 12, 2015 thoracic CT scan and indicated that it
appeared to show a compression fracture at T6-7. Physical examination demonstrated pain over
the thoracic spine. Dr. Lapointe advised that appellant could return to four hours of work per day
on January 26, 2015. In a January 29, 2015 report, she noted appellant’s complaint of continued
pain over the entire spine, radiating into both lower extremities with associated numbness and
weakness. Dr. Lapointe diagnosed thoracic compression fracture, emotional lability, and back
strain. In an attached duty status report (Form CA-17), she advised that appellant could work four
hours of restricted duty daily.
On February 5, 2015 Dr. Lapointe reported that appellant continued to have constant pain
and that she was stressed because she was unable to work due to pain. She also indicated that
appellant’s chronic right hip pain had worsened since the January 6, 2015 incident. In a
February 5, 2015 duty status report (Form CA-17), Dr. Lapointe advised that appellant could not
work. On February 9, 2015 she reported that appellant admitted that stress was a significant
component of her pain and this was much improved since she stopped work. Dr. Lapointe
continued to advise that appellant could not work.

2

In a February 17, 2015 report, Dr. Howard Huang, Board-certified in physical medicine,
rehabilitation, and pain medicine, noted a history that appellant slipped at work and contorted her
upper and lower back. He described her complaint of back pain, especially in the thoracic region.
Physical examination elicited tenderness over the cervical, thoracic, and lumbar areas of the spine
with painful neck and back range of motion. Dr. Huang reviewed appellant’s thoracic CT scan
report and diagnosed cervical and thoracic pain, reported a three-level thoracic compression
fracture, and lumbar spondylosis, degenerative disc, and pain. He advised that she could not work.
In a development letter dated March 13, 2015, OWCP noted that, when appellant’s claim
was first received, it appeared to be a minor injury that resulted in minimal or no lost time from
work and was therefore administratively approved for payment of a limited amount of medical
expenses. It reported that the merits of her claim had not been formally considered, and that
additional factual and medical evidence was necessary to establish her claim. OWCP afforded
appellant 30 days to provide the necessary factual and medical evidence.4
Appellant thereafter submitted a January 12, 2015 form report in which Dr. Swaby noted
that she was seen that day for a January 6, 2015 employment injury. Dr. Swaby noted preexisting
chronic back pain, reported examination findings of pain and abnormal range of motion, and
diagnosed lumbar and thoracic sprains and sciatica. He advised that appellant could not return to
work.
A March 12, 2015 magnetic resonance imaging (MRI) scan of appellant’s cervical spine
demonstrated cervical spondylosis at C3-4 and C4-5 without spinal cord compression. Acute
fractures could not be excluded. A March 12, 2015 MRI scan of her thoracic spine demonstrated
no disc bulge or herniation and old compression fractures of T6 through T8 vertebral bodies with
minimal loss of height. Acute fractures could not be excluded. A March 12, 2015 MRI scan of
appellant’s lumbar spine demonstrated a diffuse disc bulge at L4-5 with minimal thecal sac
compression and acute fractures could not be excluded. There was no change when compared to
an April 26, 2013 study.
On March 19, 2015 Dr. Huang reported that appellant had continued complaints and noted
his examination findings. He reviewed the MRI scan reports and indicated that her thoracic spine
scan showed no acute compression fracture. Dr. Huang recommended electrodiagnostic testing of
appellant’s upper extremities and advised that she could not work. In correspondence dated
March 26, 2015, he noted seeing her on February 17 and March 19, 2015. Dr. Huang indicated
that appellant reported the onset of her conditions when she slipped and twisted at work on
January 6, 2015, described examination findings, and repeated the MRI scan findings. He
diagnosed: cervical spondylosis, degenerative, rule out herniated disc, and pain; rule out
radiculopathy; thoracic pain and old compression fracture; lumbar spondylosis, degenerative, rule
out herniated disc, and pain, rule out radiculopathy. Dr. Huang recommended electrodiagnostic
testing because appellant’s symptoms extended down her upper extremities. He opined that her
symptoms were more likely than not related to the January 6, 2015 employment incident that
exacerbated her symptoms related to the above diagnoses.
In a signed statement dated March 27, 2015, appellant indicated that she immediately felt
pain through her entire spine following the January 6, 2015 incident. She reported that her pain
4

Appellant filed wage-loss compensation claims (Form CA-7) beginning February 22, 2015 which indicated that
she had received continuation of pay from January 7 to February 21, 2015.

3

increased and became unbearable, and that she had not immediately sought medical treatment
because she did not have a proper form from the employing establishment. Appellant also noted
that she had experienced low back pain in the past, but it had been stable for many years.
By decision dated April 15, 2015, OWCP denied the claim finding that the January 6, 2015
employment incident occurred as alleged, but that the medical evidence submitted was insufficient
to establish causal relationship.
Appellant requested a hearing before an OWCP hearing representative on May 13, 2015.
In an August 25, 2015 report, Dr. Lapointe noted that appellant continued to have constant
back pain and could only perform light activity at home. She reviewed appellant’s thoracic CT
scan findings, provided examination findings, and diagnosed cervical and lumbar spondylosis
without myelopathy, thoracic sprains and strains, and pathologic vertebrae fractures. Dr. Lapointe
commented that appellant’s cervical and lumbar spondylosis were aggravated when appellant
slipped and twisted violently at work on January 6, 2015. She explained that appellant had
developed new thoracic compression fractures, compared to the 2013 radiology reports of record.
Dr. Lapointe reported that appellant was awaiting an updated MRI scan to assess her status.
At the hearing, held on January 19, 2016, appellant described two prior injuries including
an October 1998 assault and a motor vehicle accident in 2013 when her low back was injured. She
testified that her last treatment for her back was in 2013, when she underwent a lumbar spine MRI
scan. Appellant indicated that she had returned to part-time work on October 20, 2015 following
the January 6, 2015 incident. The hearing representative requested that appellant submit copies of
the 2013 diagnostic studies, and the record was held open for 30 days. The requested studies were
not submitted.
In a February 4, 2016 report, Dr. Huang described examination findings, reiterated his
diagnoses, and advised that there had been no change in appellant’s condition. He indicated that
she could continue to work modified duty for 20 hours per week.
Following the hearing, counsel submitted a February 13, 2016 pleading in which she
maintained that the January 6, 2015 employment incident aggravated appellant’s previous
conditions and caused new conditions and therefore, as supported by the medical evidence of
record, her claim was compensable.5
By decision dated April 4, 2016, an OWCP hearing representative affirmed the April 12,
2015 decision finding that the medical evidence of record was insufficient to meet appellant’s
burden of proof because it had not differentiated, with objective findings, between the conditions
related to the accepted January 6, 2015 employment incident and her multiple preexisting
conditions. The hearing representative further noted that, although Dr. Lapointe diagnosed
thoracic compression fractures due to the January 6, 2015 employment incident, the March 12,
2015 MRI scan indicated that the fractures were old and Dr. Huang had noted on March 19, 2015
that there was no acute compression fracture.

5

Counsel also referenced an April 26, 2013 lumbar MRI scan that, as noted, is not found in the record before the
Board.

4

On February 24, 2017 appellant, through counsel, requested reconsideration. Appellant
again submitted Dr. Lapointe’s August 25, 2015 report, and a June 21, 2016 statement in which
Dr. Huang commented: “The activity that [appellant] was doing when she sustained the
compensable injury was being upright. The onset was a slip occurring while at work and she
reports that she slipped ... and ended up contorting her back on January 6, 2015.”
By decision dated May 22, 2017, OWCP found the medical evidence insufficient to
establish appellant’s burden of proof and denied modification of its prior decisions.
On July 5, 2017 appellant, through counsel, again requested reconsideration asserting that
the medical evidence was sufficient to establish causal relationship. She submitted evidence
previously of record and a June 16, 2017 report from Dr. Huang. In this new report, Dr. Huang
noted that he previously treated appellant for low back injuries in 1998 and for hip injuries after a
car accident in 2012, for which she had surgery. He advised that appellant’s back was
asymptomatic until her work injury of January 6, 2015. Dr. Huang noted that she reported a
history that, while at work that day, she slipped on an oily substance, twisted suddenly, and caught
herself from falling. He indicated that this sudden motion during the slip caused the injuries to her
neck and back as appellant’s spine was twisted and contorted, and this caused the vertebral body
to suffer a crush or wedging injury which resulted in the compression fracture at T6-8. Dr. Huang
further indicated that the “slip and fall” at work also caused undue stress on her neck and back and
resulted in pressure at the central core of the discs at L4-5, C3-4, and C5-6 to shift out of their
normal position and to bulge which placed pressure on the nearby nerves thus aggravating her
underling condition and caused sciatica. He related that appellant’s diagnoses from the January 6,
2015 incident were compression fracture at T6-8, sciatica, disc bulges at L4-5 and C3-4, and
protruding disc at C4-5. Dr. Huang concluded that, based on his review of her medical records, xrays, MRI scans, and physical examinations, it was his medical opinion that the cervical and
thoracic diagnoses were more likely than not caused or aggravated by the January 6, 2015 incident,
and that the preexisting disc bulge at L4-5 and sciatica were aggravated by this incident.
By decision dated September 26, 2017, OWCP denied modification of its prior decisions.
It noted that Dr. Huang’s June 16, 2017 report was inconsistent because he reported both a slip
and twist and a slip and fall. OWCP found his report insufficient to meet appellant’s burden of
proof.
On May 8, 2018 appellant, through counsel, requested reconsideration asserting that the
medical evidence of record contained sufficient rationale to establish the claim. Counsel also
submitted a February 27, 2018 report in which Dr. Huang reiterated that appellant’s current
diagnoses of compression fracture T6-8, disc bulge at C3-4, protruding disc at C4-5, and
aggravation to disc bulge at L4-5 were, to a reasonable degree of medical certainty, caused by the
injury that occurred at work on January 6, 2015 when appellant slipped on an oily substance,
twisted suddenly, and caught herself from falling. Dr. Huang maintained that this sudden motion
during the slip caused the injuries to her neck and back which resulted in the above diagnoses as
her spine was twisted and contorted. He again explained that the incident caused a vertebral body
to suffer a crush or wedging injury which resulted in the compression fracture at T6-8, and the
contortion also caused undue stress on appellant’s neck and back which resulted in pressure at the
central core of the discs at C3-4 and C5-6 to shift out of their normal bulge, placing pressure on
the nearby nerves. Dr. Huang opined that the slip at work also caused the bulging disc at L4-5 to
intensify, causing her sciatica. He reiterated that there was a functional difference in appellant’s
condition before and after the January 6, 2015 incident, indicating that he had ended treatment for
5

her low back pain in 2013, and her back was asymptomatic until January 6, 2015. Dr. Huang
indicated that, when last seen, she did not have an injury to the cervical or thoracic spines, noting
that x-rays after her motor vehicle accident in 2013 showed no injuries to the cervical or thoracic
spine and no change to the preexisting disc bulge at L4-5. He concluded that to a reasonable
degree of medical certainty, based on review of medical records, x-rays, MRI scans, and physical
examinations, appellant’s current cervical, thoracic, and lumbar spine conditions were a result of
the January 6, 2015 slip at work.
By decision dated July 31, 2018, OWCP denied modification of the prior decisions finding
that causal relationship had not been established.
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,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 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.8
To determine if an employee has sustained an injury in the performance of duty, OWCP
begins with an analysis of whether fact of injury has been established. Fact of injury consists of
two components which must be considered in conjunction with one another. The first component
to be established is that the employee actually experienced the employment incident which is
alleged to have occurred. The second component is whether the employment incident caused a
personal injury and generally can be established only by medical evidence.9
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.10 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident.11

6
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

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).
9

K.L., Docket No. 18-1029 (issued January 9, 2019).

10

M.K., Docket No. 19-0428 (issued July 15, 2019).

11

S.S., Docket No. 18-1488 (issued March 11, 2019).

6

ANALYSIS
The Board finds this case is not in posture for decision.
In his reports dated June 16, 2017 and February 27, 2018, Dr. Huang advised that
appellant’s back was asymptomatic until her employment injury of January 6, 2015 when she
reported that she slipped on an oily substance, twisted suddenly, and caught herself from falling.
He indicated that this sudden motion during the slip caused injuries to her neck and back as her
spine was twisted and contorted, and this caused the vertebral body to suffer a crush or wedging
injury, which resulted in the diagnosed compression fracture at T6-8. Dr. Huang explained that
the employment incident also caused undue stress on appellant’s neck and back which resulted in
pressure at the central core of the discs at L4-5, C3-4, and C5-6 and caused them to shift out of
their normal position and to bulge, and this placed pressure on the nearby nerves, thus aggravating
her underlying condition and caused sciatica. He reported that appellant’s diagnoses from the
January 6, 2015 incident were compression fracture at T6-8, sciatica, disc bulge at C3-4,
protruding disc at C4-5, and aggravation to disc bulge at L4-5. Dr. Huang concluded that, based
on his review of her medical records, x-rays, MRI scans, and physical examinations, it was his
medical opinion that appellant’s cervical and thoracic diagnoses were more likely than not caused
or aggravated by the January 6, 2015 employment incident, and that the preexisting disc bulge at
L4-5 and sciatica had been aggravated by this incident.
The Board finds that Dr. Huang’s reports, when read together, contain a complete factual
history of the January 6, 2015 employment incident which appellant claimed had caused her
conditions, accurately note the medical history of preexisting spinal conditions, identify detailed
findings upon examination, and provide medical rationale to explain how the employment incident
on January 6, 2015 had resulted in the diagnosed cervical and lumbar spinal conditions. In his
reports, Dr. Huang explained that the slipping incident had exerted pressure on her spine, thus
causing her current cervical and lumbar conditions. While Dr. Huang initially failed to diagnose
compression fractures of the thoracic spine, he later provided such a diagnosis and explained how
a crush or wedging injury had resulted in compression fractures at T6-8. To the extent that an
inconsistency remains as to whether a diagnosis of compression fractures from T6-8 is correct,
that is an issue to address through further development of the medical record.12 The Board finds
that Dr. Huang’s opinion, while not of sufficient rationale to meet appellant’s burden of proof, is
sufficient, given the absence of opposing medical evidence, to require further development of the
record as to whether appellant’s cervical, thoracic, and lumbar spine conditions are causally related
to the accepted employment incident.13
It is well established that proceedings under FECA are not adversarial in nature, and that
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. OWCP has an obligation to see that justice is

12

J.J., Docket No. 19-0789 (issued November 22, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.810.9.b(1) (June 2015) (a claims examiner should refer a claimant to a second opinion
specialist if he or she has gathered all the medical information and evidence from the attending physician and does
not have an adequately reasoned opinion about causal relationship to accept the case, but does have sufficient evidence
to suggest that the claimant might be entitled to benefits).
13

G.M., Docket No. 19-0657 (issued September 13, 2019); see also John J. Carlone, 41 ECAB 354 (1989); Horace
Langhorne, 29 ECAB 820 (1978).

7

done.14 The nonadversarial policy of proceedings under FECA is reflected in OWCP’s regulations
at section 10.121.15
The case will therefore be remanded to OWCP for further development of the medical
evidence and a referral to an appropriate medical specialist for an examination and opinion on the
issue of whether appellant sustained the diagnosed spinal conditions on January 6, 2015 when she
slipped and twisted at work. After such further development as OWCP deems necessary, it shall
issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 31, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: January 28, 2020
Washington, DC

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

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

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

14

S.C., Docket No. 19-0920 (issued September 25, 2019).

15

20 C.F.R. § 10.121.

8