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

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

Docket No. 13-738
Issued: July 8, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 11, 2013 appellant, through her attorney, filed a timely appeal of the
January 7, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for reconsideration as untimely filed and lacking clear evidence of error.
Because more than 180 days have elapsed from the most recent merit decision dated
November 29, 2011 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of this case pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, but has jurisdiction over the nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits as it was untimely filed and failed to demonstrate clear evidence of error.
On appeal, appellant’s counsel contends that OWCP’s decision was contrary to fact and
law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 12, 2010 appellant, then a 32-year-old sales and distribution clerk, filed a
traumatic injury claim alleging that on November 4, 2010 her hand slipped and hit the postbox
below, causing numbness in her right hand and wrist. She contended that, as a result thereof, she
suffered from carpal tunnel syndrome in the right palm of her hand. The employing
establishment controverted the claim.
By decision dated December 23, 2010, OWCP denied appellant’s claim as it found that
the evidence was not sufficient to establish that the event occurred as she described. Appellant’s
claim was also denied as OWCP determined that she did not submit any medical evidence to
establish that a diagnosed medical condition was causally related to the work injury or event.
She requested an oral hearing before an OWCP hearing representative and the hearing was held
on April 21, 2011.
By decision dated June 7, 2011, the hearing representative found that appellant submitted
sufficient evidence to establish that she was diagnosed with a medical condition, bilateral carpal
tunnel syndrome, and that this condition could be related to the claimed employment incident,
but that the medical evidence did not include a rationalized opinion on the cause of appellant’s
condition or discuss the relationship of appellant’s condition to the claimed incident.
Accordingly, the hearing representative affirmed as modified the decision based on the
determination that the medical evidence of record did not establish that appellant sustained a
condition related to the claimed employment incident of November 4, 2010. On October 20,
2011 appellant again requested reconsideration and submitted an updated medical report.
On November 29, 2011 OWCP denied modification after conducting a merit review. It
noted that the medical evidence did not provide medical rationale linking the diagnosed carpal
tunnel syndrome to the employment incident of November 4, 2011.
By letter dated August 22, 2012 and received by OWCP on August 30, 2012, appellant’s
counsel forwarded new medical evidence, asked OWCP to review the evidence and to provide
him with accepted allowance codes. The letter included a notation to OWCP’s file number for
appellant’s claim. In a November 8, 2010 report, Dr. David W. Schmidt, a neurologist,2 noted
that appellant has right-sided carpal tunnel syndrome. He also noted that electrodiagnostically,
her left side is almost as bad as her right side and that he suspected she will develop bilateral leftsided symptoms in the near future. Dr. Schmidt took a patient history, and discussed that on
November 4, 2010 she hit her hand on a postbox. He also noted that her job involves a
considerable amount of wrist motion used for sorting mail. Dr. Schmidt noted that carpal tunnel
syndrome has been associated with high levels of hand-arm vibration, prolonged work with a
flexed or extended wrist, high requirements for hand force, high repetitiveness and their
combination. He noted that, although pregnancy can aggravate preexisting carpal tunnel
syndrome, it was unlikely that appellant had the degree of axonal injury present solely due to her
pregnancy. Appellant’s counsel also submitted a July 20, 2010 form report by Dr. Joseph
Zucker, a Board-certified orthopedic surgeon, wherein he described the incident that caused the
2

The Board is unable to confirm that Dr. Schmidt is Board-certified.

2

injury as “patient hit palm of hand on a metal box at work.” Dr. Zucker conducted a physical
examination and a nerve conduction study and electromyogram. He diagnosed right carpal
tunnel syndrome.
By letter dated December 10, 2012, appellant’s attorney contended that on “October 22,
2012” [sic] he submitted additional medical evidence and that constituted a request for
reconsideration. He contended that the previous decision requested medical evidence, that the
medical evidence was submitted within one year from the date of the decision, and that OWCP
could not simply ignore the evidence. Counsel contended that the procedures of FECA do not
require that a request for reconsideration have a specific title or label, and that the prior
submission clearly constituted a request for reconsideration of the previous decision.
By letter dated December 14, 2012, appellant, through counsel, requested reconsideration
of the November 29, 2011 decision. He contended that the reconsideration was actually
submitted on August 22, 2012 when he submitted additional medical reports.
By decision dated January 7, 2013, OWCP denied appellant’s request for reconsideration
as it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.3 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.4
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, OWCP must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.5 OWCP regulations and procedure provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on the
part of OWCP.6

3

20 C.F.R. § 10.607(a).

4

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

5

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

6

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). OWCP procedures further provide that the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.

3

To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.7 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.11 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.12
ANALYSIS
The one-year time limitation begins to run on the date following the date of the original
OWCP decision. A right to reconsideration within one year accompanies any subsequent merit
decision on the issues.13 Therefore, appellant had one year from November 29, 2011 to submit a
timely request for reconsideration. OWCP found that her December 14, 2012 letter requesting
reconsideration was untimely as it was received more than one year after the November 29, 2011
merit decision. It proceeded to deny appellant’s request for reconsideration using the clear
evidence of error standard for untimely appeals.
However, the Board notes that on August 30, 2012 OWCP received a letter from
appellant’s counsel dated August 22, 2012 which pertained to appellant’s claim. The Board
finds that this letter constituted a request for reconsideration. Although the August 22, 2012
letter did not mention the word “reconsideration,” the Board has held that there may be a request
for reconsideration in situations where the letter does not contain the word “reconsideration.” In
Jack D. Johnson, the Board determined that a letter filed by appellant, which advised OWCP that
it was enclosing pertinent information related to the claim which had not been accepted and
provided the file number, constituted a request for reconsideration. The Board discussed prior
case law that found that while no special form is required for a letter to be considered a request
for reconsideration, the request must be in writing, identify the decision and the specific issue for
reconsideration and be accompanied by relevant and pertinent new evidence or argument not
previously considered. In Johnson, the Board noted that the decision below specifically advised
7

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

8

See Leona N. Travis, 43 ECAB 227, 240 (1991).

9

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

10

See Leona D. Travis, supra note 8.

11

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

12

Leon D. Faidley, Jr., supra note 4.

13

Donna M. Campbell, 55 ECAB 241 (2004).

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appellant that, if he disagreed with the attached decision, he had the right to submit new evidence
and request reconsideration, or if he had no additional information, he could appeal the decision
to the Board. The Board found that appellant addressed the information related to his claim,
provided the file number and submitted pertinent information.14
In the present case, appellant’s counsel wrote a letter to OWCP dated August 22, 2012,
within the one-year period for filing a request for reconsideration of the November 29, 2011
decision. The November 29, 2011 decision listed appellant’s appeal rights, and noted that, if she
had additional evidence or legal argument, she may submit that evidence within one year to
OWCP. With the August 22, 2012 letter, appellant’s counsel submitted new evidence, asked
OWCP to review the evidence and to provide him with the accepted allowance codes. The letter
clearly referred to OWCP’s file number for appellant’s claim. Considering these factors, the
Board finds that appellant’s August 22, 2012 letter constituted a timely request for
reconsideration of the November 29, 2011 OWCP merit decision.
As appellant timely requested reconsideration, the Board finds that OWCP improperly
denied his reconsideration request by applying the legal standard reserved for cases where
reconsideration is requested after more than one year. The Board will remand the case to OWCP
for review of the new medical evidence under the proper standard of review for a timely
reconsideration request and to undertake any appropriate additional development as necessary.
CONCLUSION
The Board finds that appellant’s counsel’s August 22, 2012 letter constituted a request for
reconsideration which was timely filed within one year of the November 29, 2011 merit decision.
The Board will remand the case for review of this evidence under the proper standard for review
for a timely reconsideration request,15 to be followed by any necessary further development and
the issuance of an appropriate decision.

14

57 ECAB 593 (2006) (and cases cited therein).

15

See 20 C.F.R. § 10.606(b)(3).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the January 7, 2013 decision of the
Office of Workers’ Compensation Programs is set aside and the case remanded to OWCP for
further proceedings consistent with this opinion of the Board.
Issued: July 8, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 11-813
Issued: October 20, 2011

Case Submitted on the Record

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

JURISDICTION
On February 3, 2010 appellant filed a timely appeal from an August 20, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) and a December 16, 2010
nonmerit decision refusing to reopen his case for reconsideration. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the cases.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the December 16, 2010 OWCP decision, appellant submitted
new evidence to the Board. However, the Board is precluded from reviewing evidence which was not before
OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence,
together with a formal written request for reconsideration to OWCP, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606.

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an injury causally related to factors of his federal employment, and (2) whether OWCP
properly refused to reopen appellant’s claim for merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 21, 2010 appellant, then a 56-year-old city carrier, filed an occupational disease
claim alleging that he sustained a swollen right hand as a result of his employment. He
explained that he could no longer hold or grip mail in both hands. Appellant first became aware
of this condition on March 22, 2010.
Along with the claim, appellant submitted a work release note dated April 29, 2010 from
MacNeal Physicians Group, signed by Dr. Robert Passovoy, Board-certified in internal
medicine. The note diagnosed appellant’s condition as “repetitive stress injuries of wrists,
tendin[i]tis and bilateral bursitis dorsal tendons.” Dr. Passovoy stated that appellant had been off
work due to the condition since April 20, 2010 and could return to work on May 3, 2010 with
restrictions of no gripping, lifting, sorting or throwing of mail.
On May 28, 2010 OWCP requested that appellant submit additional evidence including a
medical report containing a diagnosis of his condition and medical rationale explaining how the
condition was causally related to his employment activities. No further evidence was received
by OWCP.
By decision dated August 20, 2010, OWCP denied appellant’s claim on the grounds that
the medical evidence was not sufficient to establish that a medical condition was diagnosed in
connection with the claimed event and work factors.
Appellant disagreed with the decision and requested reconsideration on
December 6, 2010. He did not submit any evidence with the reconsideration request. In a
December 16, 2010 decision, OWCP denied appellant’s request to reopen his case for merit
review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the evidence,3 including that he sustained an
injury in the performance of duty and that any specific condition or disability for work for which
he claims compensation is causally related to that employment injury.4 As part of his burden, the
employee must submit rationalized medical opinion evidence based on a complete factual and
medical background showing causal relationship.5 The weight of medical evidence is determined
3

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

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

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

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by its reliability, its probative value, its convincing quality, the care of the analysis manifested
and the medical rationale expressed in support of the physician’s opinion.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7 In
addition, the Board has long held that medical conclusions unsupported by rationale are of
diminished probative value and insufficient to establish causal relationship.8
ANALYSIS -- ISSUE 1
OWCP has accepted that appellant was required to grip mail in the performance of his
employment duties as a city carrier. The Board finds that he has submitted insufficient medical
evidence to establish that his medical condition was caused by his federal employment.
The only medical evidence appellant submitted to the record in support of his claim was
the work release note signed by Dr. Passovoy, who diagnosed appellant with repetitive stress
injuries of wrists, tendinitis and bilateral bursitis dorsal tendons. Dr. Passovoy offered no
opinion regarding the cause of the diagnosed conditions.
OWCP advised appellant that it was his responsibility to provide a physician’s opinion
which included a medical explanation as to how work activities caused, contributed to, or
aggravated his medical condition.
However, appellant failed to submit any medical
documentation in response to the OWCP’s request. As there is no probative, rationalized
medical report containing a diagnosis of his condition and rationale addressing how his claimed
injuries were caused by his employment, he has not met his burden of proof in establishing that
he sustained an occupational disease in the performance of duty causally related to factors of
employment.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a point of law, by advancing a
relevant legal argument not previously considered by OWCP, or by constituting relevant and
pertinent evidence not previously considered by OWCP. Section 10.608(b) provides that when
an application for review of the merits of a claim does not meet at least one of these three
6

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

7

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

8

See Albert C. Brown, 52 ECAB 152 (2000).

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requirements OWCP will deny the application for review without reviewing the merits of the
claim.
ANALYSIS -- ISSUE 2
In this case, appellant failed to show that OWCP erroneously applied or interpreted a
point of law, to submit any new evidence or to advance any legal argument between the date of
initial denial, August 20, 2010, and the date of the reconsideration decision, December 16, 2010.
Therefore, he did not meet the requirements of 20 C.F.R. § 10.606(b), and accordingly his
request to reopen his case for further reconsideration on its merits was properly denied in
accordance with 20 C.F.R. § 10.608(b).
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained the diagnosed conditions in the performance of duty causally related to factors of his
federal employment, and that the refusal of OWCP to reopen his case for a further review on its
merits pursuant to 5 U.S.C. § 8128(a) did not constitute an abuse of discretion.
ORDER
IT IS HEREBY ORDERED THAT the December 16 and August 20, 2010 decisions of
Office of Workers’ Compensation Programs are affirmed.
Issued: October 20, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF DEFENSE, GROTON
COMMISSARY, Groton, CT, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 07-509
Issued: December 21, 2007

Oral Argument October 2, 2007

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

JURISDICTION
On December 14, 2006 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated December 1, 2006, which denied his claim for a
recurrence of total disability beginning November 30, 2001. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a recurrence of total disability
on and after November 30, 2001 due to his accepted November 10, 1998 employment injury
FACTUAL HISTORY
This is the second appeal before the Board. In the prior appeal, the Board reversed a
September 29, 2005 Office decision terminating appellant’s compensation.1 The Office decision
terminated appellant’s compensation on the grounds that he abandoned suitable work. On
1

Docket No. 06-81 (issued May 2, 2006).

March 1, 2001 appellant filed a claim for a recurrence of partial disability due to his
November 10, 1998 employment injury, which the Office accepted on January 10, 2002.2 Prior
to the acceptance of his claim for a recurrence of partial disability, appellant resigned his parttime light-duty position effective November 30, 2001.3 The findings of fact and conclusions of
law from the prior decision are hereby incorporated by reference.4
The facts as relevant to the issue currently before the Board are as follows. Appellant
resigned his position effective November 30, 2001. He noted the reason for his resignation was
due to his relocating out of the State of Connecticut. On September 24, 2002 Dr. Jeffrey A.
Salkin, a physician, reported “no change in his disability status.”
In an August 1, 2003 report, Dr. Salkin indicated that appellant’s “clinical status is
unchanged although he has lost some subtalar motion and is wearing out his shoes on the left.”
On April 30, 2004 the Office received a letter from appellant detailing his reasons for
resigning from the position. He contended that the job was not suitable as he was required to
work outside his restrictions. Appellant stated that the employing establishment did not “have
light-duty positions and due to the heavy flow of customers made it impossible to use my
scooter.”
On August 1, 2006 appellant filed an election to receive benefits under the Federal
Employees’ Compensation Act effective November 30, 2001.
In an August 17, 2006 report, Dr. Eric M. Garver, a second opinion Board-certified
orthopedic surgeon, diagnosed status post subtalar synovitis, talonavicular osteophyte formation
and sinus tarsi syndrome. Appellant related having constant pain and used his cane and scooter
intermittently. He also informed Dr. Garver that “he is now retired or considers himself retired.”
A physical examination revealed “marked limited active range of motion in terms of
dorsiflexion, flexion, eversion and inversion.” A review of an August 8, 2006 x-ray
interpretation revealed “a relatively well-preserved ankle mortise joint” and “hyperostosis
present on the distal aspect of the talus in the area of his tenderness.” Dr. Garver opined that
appellant currently required no further treatment for his accepted employment injury. With
respect to his ability to work, he concluded that appellant was capable of performing sedentary
work. In an accompanying work capacity evaluation form dated August 17, 2006, Dr. Garver
indicated that appellant was capable of working with restrictions.

2

On December 7, 2004 appellant filed a traumatic injury alleging that his right ankle condition was due to his
compensating for his left foot and ankle injury. He indicated that he was retired under “Employee’s job title.” As
the Office has not issued a final decision on this consequential injury issue, the Board has no jurisdiction to review if
for the first time on appeal. 20 C.F.R. §§ 501.2(c) and 501.3(d); see Annette Louise, 54 ECAB 783 (2003).
3

Appellant noted the reason for his resignation was due to his relocating out of the State of Connecticut.

4

The Office accepted that appellant, then a 33-year-old store worker, sustained a left ankle sprain on
November 10, 1998 and authorized left ankle arthroscopic surgery, which was performed on November 11, 1999.
Appellant returned to a light-duty job on February 6, 1999 working four hours per day five days a week. On
November 9, 2001 the Office authorized the purchase of a ramp to accompany his authorized scooter.

2

In a supplemental report dated October 11, 2006, Dr. Garver reviewed the part-time job
description appellant was performing when he stopped working on November 30, 2001 and the
information appellant provided regarding his job duties. He noted the activities appellant
described appeared to conflict with the duties noted in the job description. Dr. Garver
concluded:
“While I believe there is no question that the patient was at that time able to
perform sedentary and light-duty activities, if the patient was required to engage
in activities that were outside the scope of the enclosed job description then that
would be essentially a violation of his restrictions. Of course, the truth of the
basis of exactly what this patient was doing and required to do is [not] known to
me and I only have what the patient relates to me, but there is no question that the
patient would on that date have been able to perform a selected light duty with no
lifting or repetitive bending or excess walking.”
By decision dated December 1, 2006, the Office denied appellant’s claim for a recurrence
of total disability.
LEGAL PRECEDENT
Once the Office accepts a claim for a recurrence of partial disability, it has the burden of
justifying termination or modification of compensation benefits.5
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and that he cannot perform the light-duty position. As part of this burden of proof, the employee
must show either a change in the nature and extent of the injury-related condition or a change in
the nature and extent of the light-duty job requirements.6
A recurrence of disability is defined under the Office’s implementing federal regulations
as the inability to work after an employee has returned to work, caused by a spontaneous change
in a medical condition which had resulted from a previous injury or illness without an
intervening injury or new exposure to the work environment that caused the illness.7
ANALYSIS
Initially, the Board notes that on January 12, 2002 the Office accepted appellant’s
recurrence claim for partial disability beginning March 1, 2001. Thus, it is the Office’s burden
of proof to establish that appellant’s partial disability for four hours had ceased on
5

See T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007).

6

Bryant F. Blackmon, 57 ECAB ___ (Docket No. 04-564, issued September 23, 2005); Terry R. Hedman, 38
ECAB 222 (1986).
7

20 C.F.R. § 10.5(x).

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November 30, 2001. The Board finds that the Office failed to meet its burden of proof. The
record is devoid of any medical evidence showing that appellant’s condition had improved such
that he was capable of working more than four hours. The record contains medical reports from
Drs. Salkin and Garver. Dr. Salkin reported “no change in his disability status” in a
September 24, 2002 report. Dr. Garver opined that appellant was capable of performing the
light-duty position at the time he quit his job. As there is no medical opinion concluding that
appellant is capable of working more than four hours per day, the Office has not met its burden
to show that his disability had ceased on November 30, 2001.
To be entitled to compensation for an additional four hours per day on and after
November 30, 2001, it is appellant’s burden of proof to establish entitlement to these additional
four hours. He must provide medical evidence establishing that he was totally disabled due to a
worsening of his accepted work-related condition, left ankle sprain, or a change in his job duties
such that he was unable to perform his light-duty work.
The record reveals that appellant returned to modified light-duty work on February 6,
1999 working four hours per day. Appellant subsequently quit his light-duty position effective
November 30, 2001. He must demonstrate either that his condition has changed such that he
could not perform the activities required by his modified job or that the requirements of light
duty changed or were withdrawn. Although appellant alleges that he was required to work
outside his restrictions, there is no evidence supporting this allegation. The evidence establishes
that appellant resigned from his light-duty job on the grounds that he was moving out of state.
The record contains no evidence that the light-duty job requirements were changed or
withdrawn.
The record contains reports by Dr. Salkin diagnosing chronic sinus tarsi syndrome. He
reported appellant’s disability status was unchanged in reports dated September 24, 2002 and
August 1, 2003. Dr. Salkin, however, did not address the relevant issue of whether appellant was
totally disabled from his position as customer service clerk beginning November 30, 2001.
Whether a particular injury causes an employee to be disabled for work and the duration of that
disability are medical issues that must be proved by a preponderance of the probative and
reliable medical evidence.8
The Office referred appellant for a second opinion evaluation with Dr. Garver who
provided a report on August 17, 2006. Dr. Garver opined that appellant currently required no
further treatment for his accepted employment injury and was capable of performing sedentary
work. In a supplemental report, he noted that appellant would have been capable of performing
the duties of the light-duty position as written. As Dr. Garver opined that appellant was capable
of performing sedentary work, his report is insufficient to support appellant’s recurrence claim
for an additional four hours per day on and after November 30, 2001.
The Board finds that appellant has submitted insufficient evidence to show a change in
the nature and extent of his physical condition, arising from the employment injury which
prevented him from performing his light-duty position. There is no evidence showing that
appellant experienced a change in the nature and extent of the light-duty requirements or was
8

Amelia S. Jefferson, 57 ECAB ___ (Docket No. 04-568, issued October 26, 2005).

4

required to perform duties which exceeded his medical restrictions. Therefore, he failed to meet
his burden of proof and the Office properly denied his claim for a recurrence of total disability,
which would entitle him to an additional four hours per day of wage-loss compensation.
CONCLUSION
The Board finds that the Office failed to establish that appellant was not entitled to
compensation for partial disability due to his accepted November 10, 1998 injury. The Board
further finds that appellant failed to establish that he was entitled to an additional four hours per
day of wage-loss compensation on and after November 30, 2001.
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2006 decision of the Office of
Workers’ Compensation Programs is set aside in part, affirmed in part and the case remanded for
further proceedings in accordance with the above decision.
Issued: December 21, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.N., Appellant
and
DEPARTMENT OF JUSTICE, IMMIGRATION
& NATURALZATION SERVICE,
Calipatria, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-1810
Issued: May 25, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On June 29, 2010 appellant filed an appeal for review of a May 28, 2010 decision of the
Office of Workers’ Compensation Programs. The appeal was docketed as No. 10-1810.
This is the fourth appeal in this case to the Board. By order dated September 1, 2005, the
Board found that appellant had been denied her right to an oral hearing and remanded the case to
the Office, in order to provide appellant the opportunity to exercise her right to an oral hearing.1
In an order dated July 12, 2007, the Board dismissed appellant’s appeal of a May 19, 2006
decision of an Office hearing representative. As the hearing representative had directed the
Office to obtain a second opinion examination to determine whether appellant had a cervical
condition causally related to her accepted 1998 injury, the Board found that the case was in an
interlocutory posture.2 By order dated February 4, 2010, the Board remanded the case to the
Office for reconstruction of the record and an appropriate order to preserve appellant’s rights of

1

Docket No. 05-844 (issued September 1, 2005).

2

Docket No. 06-1552 (issued July 12, 2007).

appeal.3 The Board has duly considered this matter and concludes that this case is not is posture
for a decision.
Following the Board’s July 12, 2007 dismissal of her appeal, the Office referred appellant
to Dr. Irwin Shapiro, a Board-certified orthopedic surgeon, for a second opinion examination to
determine whether there was a causal relationship between her claimed cervical condition and
factors of employment, and whether she was disabled from August 19, 1998 through
January 1999. The examination was scheduled for June 2, 2009. On May 28, 2009 appellant
notified the Office that she was unable to attend the scheduled examination due to a previouslyscheduled surgery and requested that the examination be postponed until the first week in
August 2009 following her recovery from surgery.4
In a report dated June 2, 2009, Dr. Shapiro stated that he had not examined appellant but
that he had been asked to respond to the Office’s questions based upon his review of the medical
record. He opined that he saw no evidence that appellant had ever had cervical radiculopathy, as
claimed. Dr. Shapiro saw no evidence of a specific traumatic injury to account for neck strain.
Although there was documentation of a disc bulge, there was no evidence of a herniation.
Dr. Shapiro stated that objective findings did not support a diagnosis of a cervical condition. He
did not provide current examination findings, a statement of all records reviewed or a history of
injury.
In an August 24, 2009 decision, the Office denied appellant’s request to expand her claim
to include a cervical condition and denied compensation for disability from August 19, 1998
through January 1999, finding that the weight of the medical evidence was contained in
Dr. Shapiro’s second opinion report. Following the Board’s February 4, 2010 order remanding
the case, the Office issued a May 28, 2010 decision denying appellant’s claim, again relying on
Dr. Shapiro’s opinion.
It is well established that proceedings under the Act are not adversarial in nature, nor is
the Office a disinterested arbiter.5 While appellant has the burden to establish entitlement to
compensation, the Office shares responsibility in the development of the evidence to see that
justice is done.6 The Office undertook development of the medical evidence, first by requiring a
second opinion examination, and then by referring appellant to Dr. Shapiro. It therefore had an
obligation to secure a report adequately addressing the issue at hand, namely, whether appellant
had a cervical condition causally related to her accepted injury.7 On its face, Dr. Shapiro’s report
3

Docket No. 09-2350 (issued February 4, 2010).

4

The record contains a report from a Dr. Williams indicating that appellant would be out of work for six weeks
for recover from uterine surgery.
5

Vanessa Young, 55 ECAB 575 (2004).

6

Richard E. Simpson, 55 ECAB 490 (2004).

7

See Peter C. Belkind, 56 ECAB 580 (2005) (where the opinion of the Office’s second opinion physician was
unclear on whether the claimant had any permanent impairment due to his accepted employment injury, the Board
found that the Office should secure a report adequately addressing the relevant issue). In this case, appellant’s
request to reschedule the examination to early August 2009 was reasonable, given her previously scheduled surgery.

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is insufficient to satisfy the requirement of the May 19, 2006 decision to obtain a second opinion
examination to determine whether appellant had a cervical condition causally related to her
accepted 1998 injury. As he did not perform an examination of appellant, his report was not
based on his own current objective findings. Although Dr. Shapiro made references to various
records reviewed, he did not identify all records reviewed or provide a complete history of
injury. Therefore, his report is of limited probative value.
The Board finds that this case is not in posture for a decision. The case will be remanded
for appropriate development of the medical evidence, to be followed by an appropriate decision,
in order to protect appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the May 28, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to the Office for further
proceedings consistent with this order.
Issued: May 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
U.S. POSTAL SERVICE, NORTH TEXAS
PROCESSING & DISTRIBUTION CENTER,
Coppell, TX, Employer
__________________________________________

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Appearances:
Stephen Mack, for the appellant
Office of Solicitor, for the Director

Docket No. 10-600
Issued: September 13, 2010

Case Submitted on the Record

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

JURISDICTION
On January 5, 2010 appellant timely appealed the October 1, 2009 nonmerit decision of
the Office of Workers’ Compensation Programs, which denied reconsideration. As the Office’s
last merit denial of the claim was dated June 16, 2008 the Board lacks jurisdiction over the
merits of the claim.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the October 1, 2009 nonmerit decision.
ISSUE
The issue is whether the Office properly denied appellant’s December 29, 2008 request
for reconsideration under 5 U.S.C. § 8128(a).

1

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

FACTUAL HISTORY
On April 25, 2008 appellant, then a 29-year-old custodian, filed an occupational disease
claim for stress, depression and anxiety. She alleged that on October 1, 2007 she was subjected
to discrimination based on sex/pregnancy. That same day appellant reportedly suffered
pregnancy-related complications, for which she sought treatment in the hospital emergency
room. When she attempted to return to work on October 15, 2007, the employing establishment
allegedly retaliated against her by refusing to allow her to return to work.
The employing establishment challenged the claim. Thomas A. Pittman, maintenance
operations manager, stated that on October 1, 2007 at approximately 3:30 p.m. he observed
appellant casually sitting at one of the break tables nonchalantly thumbing through a magazine.
As appellant’s tour had begun only 45 minutes earlier, Mr. Pittman believed that it was too early
for someone to be sitting around reading magazines and being nonproductive. Mr. Pittman
reportedly contacted her supervisor, Daryl Looney and informed him of what he had just
observed. Shortly, afterwards he noticed that appellant appeared upset with Mr. Looney.
Mr. Pittman also stated that he had limited exposure to her in the four weeks that he had been
working at the facility. He recalled one prior instance when he had spoken to appellant about a
missing maintenance radio. Appellant reportedly told Mr. Pittman that she lost the radio or
someone had picked hers up. Mr. Pittman stated that he asked her to make sure she
communicated her needs to her supervisor because everyone was required to maintain
communication with radios.
In a May 15, 2008 supplemental statement, appellant indicated that she loved her job
prior to September 2007 when new management arrived at the facility. On September 14, 2007
Gary Russell, a supervisor, reportedly told her that Mr. Pittman wanted him to write her up for
not having a radio. But instead of writing her up, Mr. Russell reportedly told appellant that he
would find her a radio. Appellant stated that she received a broken radio that was already
assigned to someone else and she turned it in to be repaired. Then on September 17, 2007,
Mr. Pittman reportedly stopped her in the hallway and asked about her radio. Appellant stated
that she told him that her supervisor was trying to find her a radio. Mr. Pittman then asked her
why she kept losing her radio. Appellant replied that she had been assigned only one radio and it
was broken. Mr. Pittman reportedly asked if she had told her supervisor that she lost her radio.
In appellant’s May 15, 2008 statement, she indicated that her radio was not lost, but was being
repaired. She also stated that management should have known about the radio situation instead
of harassing her about it.
Appellant also described a September 18, 2007 incident allegedly involving Steven
Wright, a supervisor, who she claimed told her that some managers, including Mr. Pittman,
wanted him to escort her out of the facility because she was wearing short pants. She stated that
her pants were 1½ inches above her ankle and she had been wearing maternity pants for a few
months. Mr. Wright allegedly told her that he understood that she had been trying to save her
annual/sick leave for her baby and therefore he would not escort her out. Appellant stated that he
told her to try to wear longer pants tomorrow.
With respect to the October 1, 2007 employment incident, appellant indicated that after
she had finished sweeping around 3:30 p.m. she had difficulty breathing so she went to the

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Annex to catch her breath before cleaning the restrooms. She indicated that she had submitted a
light-duty request in July 2007 that allowed her to rest, which the previous management honored.
Appellant claimed that Mr. Pittman essentially harassed her for stopping to catch her breath.
The medical evidence included a November 30, 2007 report from Jean Bell Williams, a
licensed professional counselor, who diagnosed acute stress disorder, mood disorder and sleep
disorder due to a general medical condition. Ms. Williams indicated that appellant’s condition
was directly related to her October 1, 2007 work injury. The reported history of injury included
harassment regarding her not carrying a radio on two occasions, being accused of wearing short
pants and for taking a break to catch her breath, as she is pregnant. Ms. Williams also noted that
Mr. Pittman would not accommodate appellant’s medical restrictions. When she returned to
work on October 15, 2007, appellant was told that there was no light duty available that met her
restrictions.
In a decision dated June 16, 2008, the Office denied appellant’s emotional condition
claim. Appellant failed to substantiate her allegations. The Office did not address the medical
evidence of record.
On December 29, 2008 appellant requested reconsideration utilizing the appeal request
form that accompanied the Office’s June 16, 2008 decision. She also submitted a December 27,
2008 letter requesting reconsideration. The letter listed 25 items of evidence that appellant
enclosed for purposes of reconsideration. The list included several witness statements regarding
incidents that occurred on October 1 and 15, 2007. Other itemized documents included
pregnancy-related light-duty requests for June, July and October 2007, treatment notes dated
October 1, 2007 from the employing establishment health unit and November 27, 2007 work
restrictions from Dr. Clarence J. Brooks. Appellant submitted copies of several e-mails she
exchanged with her union steward, Stephen Mack. There were also copies of correspondence
between the union and the employing establishment regarding grievances filed on her behalf.
Mr. Mack, appellant’s union representative, submitted a November 16, 2008 statement regarding
interviews he conducted in September 2007 with Mr. Russell and Mr. Wright. Another union
steward, Cathy Wesley, provided a December 4, 2008 statement about what she witnessed when
she was called to the health unit on October 1, 2007.
In a decision dated October 1, 2009, the Office denied appellant’s request for
reconsideration. It noted that she provided “a series of statements and medical evidence that had
previously been submitted” and therefore could not be considered as new and relevant evidence.
LEGAL PRECEDENT
The Office has the discretion to reopen a case for review on the merits.2 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (1) shows that the Office erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by the Office; or
2

5 U.S.C. § 8128(a) (2006).

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(3) constitutes relevant and pertinent new evidence not previously considered by the Office.3
When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.4
ANALYSIS
Appellant argues that the Office erred in characterizing the evidence that she submitted
on reconsideration as “a series of statements ... that had previously been submitted....” The
Board agrees. Further merit review is appropriate where appellant submits relevant and pertinent
new evidence not previously considered by the Office.5 Appellant’s December 29, 2008 request
for reconsideration was accompanied by statements from Raymond Horsburgh, Michael R.
Wood, Mike Creech, Timothy Nguyen, Jonathan Masood Jr., Alvaro Garcia and Will Stark.
None of these statements were previously part of the record. Furthermore, the November 16 and
December 4, 2008 statements from Mr. Mack and Ms. Wesley clearly postdate the Office’s
June 16, 2008 decision and as such, could not have been previously considered by the Office.
The information contained in the above-noted statements is relevant to appellant’s allegations of
workplace harassment on September 14, 17 and 18, October 1 and 15, 2007.
The Board finds that appellant submitted relevant and pertinent new evidence with her
December 29, 2008 request for reconsideration, thereby satisfying the third requirement under 20
C.F.R. § 10.606(b)(2).6 Consequently, appellant is entitled to a review of the merits of her
claim.7 The case shall be remanded to the Office for merit review followed by the issuance of an
appropriate de novo decision.
CONCLUSION
The Office improperly denied appellant’s December 29, 2008 request for reconsideration.

3

20 C.F.R. § 10.606(b)(2) (2009).

4

Id. at § 10.608(b).

5

Id. at § 10.606(b)(2)(iii).

6

Id.

7

Id. at § 10.608(b).

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ORDER
IT IS HEREBY ORDERED THAT the October 1, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision.
Issued: September 13, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Milwaukee, WI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0712
Issued: March 27, 2020

Case Submitted on the Record

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

On February 19, 2019 appellant filed a timely appeal from a November 14, 2018 decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 19-0712.
The case has previously been before the Board.1 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On April 15, 2015 appellant, then a 46-year-old transportation security officer, filed an
occupational disease claim (Form CA-2) alleging recurrent facial cellulitis commencing in
December 2006 due to factors of her federal employment including exposure to methicillinresistant staphylococcus aureus (MRSA) in a breakroom and restroom. OWCP assigned the claim
File No. xxxxxx918.2 By decisions dated October 29, 2015 and August 2, 2016, it denied
1

Docket No. 16-1673 (issued February 20, 2018).

2
On May 31, 2017 appellant filed an occupational disease claim (Form CA-2) alleging that she sustained recurrent
facial cellulitis commencing May 8, 2015 due to alleged MRSA exposures in an employing establishment rest room
and break room. OWCP assigned that claim File No. xxxxxx633. On March 16, 2018 OWCP accepted that appellant
sustained a temporary aggravation of facial cellulitis.

appellant’s claim as she had not established the presence of MRSA bacteria at the employing
establishment. On August 17, 2016 appellant appealed to the Board.
By decision dated February 20, 2018 the Board affirmed OWCP’s August 2, 2016 OWCP
decision finding that appellant had not established the presence of MRSA bacteria at the employing
establishment as alleged.
On August 30, 2018 appellant requested reconsideration. She asserted that as OWCP
accepted facial cellulitis under File No. xxxxxx633, it was obligated to accept her occupational
disease claim for the same condition under File No. xxxxxx918. By decision dated November 14,
2018, OWCP denied modification finding that the evidence submitted on reconsideration failed to
establish the presence of MRSA bacteria at the employing establishment.
The Board has duly considered the matter and finds that the case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on cross-referencing between files.3 For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required.4
Appellant filed two occupational disease claims alleging that she sustained recurrent facial
cellulitis due to MRSA exposure while in the performance of duty. OWCP denied the claim under
File No. xxxxxx918, but accepted the claim under File No. xxxxxx633. For a full and fair
adjudication, the claims in File Nos. xxxxxx918 and xxxxxx633 must be administratively
combined.5 This will allow OWCP to consider all relevant claim files in developing this claim
and avoid further inconsistent results.6 Following this and such other further development as
deemed necessary, OWCP shall issue a de novo decision on appellant’s claims.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

A.C., Docket No. 18-1783 (issued July 29, 2019); J.M., Docket No. 19-0008 (issued July 10, 2019).

5

FECA Procedure Manual, supra note 3 at Chapter 2.400.8(c)(1); A.C., id.; L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018).
6

A.C., supra note 4; William T. McCracken, 33 ECAB 1197 (1982).

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IT IS HEREBY ORDERED THAT the November 14, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: March 27, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL, Newark, NJ,
Employer
__________________________________________

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

Docket No. 18-0681
Issued: November 1, 2018

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 February 9, 2018 appellant filed a timely appeal from an August 16, 2017 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 the case.
ISSUE
The issue is whether OWCP properly approved attorney fees in the amount of $5,117.00
for services rendered from May 3, 2013 to July 10, 2015.
FACTUAL HISTORY
On November 14, 2011 appellant, then a 59-year-old officer, filed a traumatic injury claim
(Form CA-1) alleging that earlier that day, while at work, he lost his grip on a ship’s ladder and
1

5 U.S.C. § 8101 et seq.

fell approximately six feet onto a metal deck. OWCP accepted the claim for a torn right rotator
cuff and right shoulder contusion. On January 25, 2012 appellant underwent authorized
arthroscopic right rotator cuff repair with biceps tenodesis, subacromial decompression, and
debridement. He remained off work following the January 25, 2012 surgery. OWCP paid
appellant compensation for total disability commencing January 12, 2013 on the supplemental
compensation rolls. It later expanded acceptance of the claim to include bilateral shoulder and
rotator cuff sprains.
On May 6, 2013 appellant authorized Thomas R. Uliase, Esq., of Uliase & Uliase, to
represent him before OWCP. Counsel requested a copy of the complete case record.
On May 7, 2013 counsel requested that OWCP place appellant on the periodic
compensation rolls due to the seriousness of the accepted injury.
In late May 2013, OWCP determined that it was necessary to obtain a second opinion in
the case and scheduled an appointment with a medical specialist. In a May 31, 2013 letter, counsel
requested that OWCP provide proof that it had selected the second opinion specialist according to
applicable OWCP procedures and Board precedent. He also requested a list of three qualified
specialists in appellant’s commuting area from which appellant could choose an examining
physician.
In a letter dated June 4, 2013, counsel requested that OWCP expand acceptance of the
claim to include a left rotator cuff tear and full-thickness tears of the right supraspinatus and biceps
tendons. He included recent medical reports and a summary of the relevant findings.
In a letter dated December 18, 2013, counsel notified OWCP that it had paid appellant
compensation at an incorrect rate from January 12 to March 8, 2013. He requested that OWCP
issue appropriate retroactive compensation. Counsel again requested that OWCP place appellant’s
case on the periodic compensation rolls due to the seriousness of the accepted injuries and ongoing
difficulties with the employing establishment’s processing of appellant’s claims for compensation
(Form CA-7). He reiterated this request in a letter dated April 25, 2014.
In a letter dated June 13, 2014, counsel requested that OWCP pay appellant compensation
for the period December 29, 2013 to April 19, 2014 as he had been found entitled, but had not yet
been paid for the entire period.
In a letter dated June 26, 2014, counsel requested that OWCP authorize appellant’s
physician’s request for Synvisc injections to the right shoulder. He attached the physician’s letter
of necessity.
On February 3, 2015 OWCP issued retroactive compensation for the periods December 29,
2013 to March 22, 2014 and April 6 to 19, 2014.
On February 27, 2015 the employing establishment offered appellant a modified position,
but did not include information regarding the work schedule or rate of pay. Counsel responded by
letter dated March 9, 2015, which asserted that the job offer failed to conform to specific sections
of OWCP’s procedures.

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In a letter dated May 4, 2015, counsel requested that OWCP authorize appellant’s
physician’s request for Orthovisc injections to the left shoulder. He attached the physician’s letter
of medical necessity.
In letters dated May 12, 2015, counsel advised OWCP that it had failed to notify him of a
second opinion examination scheduled for May 19, 2015. He requested that it provide him with
copies of all correspondence to appellant and the selected specialist. Counsel also requested that
OWCP provide a list of three qualified physicians in appellant’s commuting area so that he could
choose one to conduct the examination.
In a letter dated June 11, 2015, counsel requested that OWCP pay appellant compensation
for intermittent periods from May 26, 2014 through May 31, 2015 which had not yet been paid.
In a letter dated June 18, 2015, counsel requested that OWCP approve appellant’s
physician’s request to authorize Synvisc injections to the left shoulder. He reviewed a May 19,
2015 second opinion report and noted that the specialist had also recommended
viscosupplementation injections. Counsel again requested that OWCP expand acceptance of the
claim to include bilateral rotator cuff arthropathy as recommended by the second opinion
specialist.
In a letter dated June 26, 2015, counsel again requested that OWCP pay appellant all
compensation due and owing from June 20, 2014 onward. He noted that OWCP’s compensation
tracking function listed several periods as paid whereas no compensation payments had been
issued.
On July 7 and 10, 2015 OWCP issued retroactive compensation for the period
December 29, 2012 to June 13, 2015.
In a letter dated July 20, 2015, counsel requested that OWCP issue a formal decision
regarding its denial of requested viscosupplementation injections.
In letters dated July 28 and August 7, 2015, appellant stated that he no longer retained his
legal counsel. He contended that counsel’s July 21, 2015 billing statement for $5,692.50 was
unreasonable and that he was generally dissatisfied with counsel’s representation.
OWCP placed appellant’s case on the periodic rolls effective September 20, 2015.
On September 14, 2015 counsel submitted a fee petition in the amount of $5,692.50 for
services rendered from May 3, 2013 to July 10, 2015. The fee petition noted separate categories
for attorney, paralegal, secretarial, and law clerk time, with the hours worked and the hourly rate
for each individual’s services, as follows: 15.81 hours of attorney time at rates from $200.00 to
$300.00 an hour; 5.29 hours of paralegal time at $150.00 an hour; 7.52 hours of secretarial time at
$75.00 an hour, and 1.25 hours of law clerk time at $200.00 an hour. The fee petition listed the
specific services provided and the time spent on each activity. Many of the itemized services were
for correspondence to OWCP and review of communications from OWCP.
OWCP sent appellant an October 30, 2015 letter, noting that counsel had submitted a
request for authorization of $5,692.50 in attorney fees. Appellant was provided an opportunity to
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review the fee request, and was informed that if he did not respond within 30 days, it would be
assumed he did not wish to comment. OWCP indicated it would then approve a fee which it
determined to be fair and reasonable.
In a letter dated November 24, 2015, appellant asserted that he was opposed to the attorney
fee request as counsel did nothing to further his claim. He contended specifically that he should
not be billed for file reviews. Appellant noted that he periodically prohibited counsel from working
on various issues in his compensation claim as he wished to advocate on his own behalf or request
assistance from his elected representatives.
In response, counsel submitted his August 12, 2015 letter to appellant, explaining that had
appellant not prohibited him from pursuing retroactive compensation, counsel could have obtained
payment in a more timely manner.
By decision dated February 1, 2016, OWCP approved the fee petition in the amount of
$5,117.00, out of the requested $5,692.50 as reasonable, as counsel had performed the work for
which he had been retained. It excluded fees for counsel’s letters to OWCP on the following dates
as the correspondence had not been imaged into the electronic case record: May 3, 2013 (three
letters); May 6, 2013; May 31, 2013 (duplicate); June 3, 2013; July 11, 2013; February 14, 2014;
February 20, 2014; April 21, 2014; June 10, 2014; May 7, 2015.
On March 2, 2016 appellant requested a telephonic oral hearing before an OWCP hearing
representative. The hearing was held on October 3, 2016. At the hearing, appellant contended
that OWCP did not respond to any of counsel’s correspondence and that the services provided
were generally of no effect. He also asserted that counsel did not completely obey his directives
to cease pursuing issues in his claim. Appellant also argued that the retroactive compensation he
was paid was not in fact retroactive compensation because it was owed to him. He submitted
June 4 and 21, 2013 letters from counsel regarding how to request medical records from his
treating physicians and advising him that the firm did not pursue issues of medical malpractice.
Following the hearing, appellant submitted an October 15, 2016 statement generally
asserting that counsel’s services were of no effect and that the fees charged were excessive or
unreasonable. He submitted copies of letters to and from counsel regarding the January 25, 2012
surgical procedure and his allegations of medical malpractice. Appellant also provided copies of
numerous letters from counsel in May and June 2013 instructing him how to obtain the medical
reports necessary for OWCP to authorize requested treatment.
By decision dated December 13, 2016, an OWCP hearing representative affirmed OWCP’s
February 1, 2016 decision which approved counsel’s fee petition in the amount of $5,117.00. The
hearing representative found that the charges were reasonable and appropriate given the nature and
complexity of the case, and the customary charges for a representative of similar background and
experience.
In a letter dated February 14, 2017, counsel notified appellant of his intention to submit the
attorney fee to a collection process under applicable state law.
On March 21, 2017 appellant requested reconsideration. He alleged that counsel wrote
voluminous correspondence to inflate the bill and that his services were of no effect in his claim.
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Appellant provided a copy of an informational booklet from counsel with suggestions on how to
draft effective correspondence to OWCP and medical providers. He also submitted copies of
correspondence from counsel previously of record.
By decision dated August 16, 2017, OWCP affirmed its prior approval of counsel’s fee
request in the amount of $5,117.00. It found that appellant’s March 21, 2017 statement and copies
of counsel’s correspondence did not establish that the fee had been approved in error.
LEGAL PRECEDENT
It is not the Board’s function to determine the fee for representative services performed
before OWCP. That is a function within the discretion of OWCP based on the criteria set forth in
Title 20 of the Code of Federal Regulations and mandated by Board decisions. The Board’s sole
function is to determine whether the action by OWCP constituted an abuse of discretion.2
Generally, an abuse of discretion is shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.3
Section 10.703 of the Code of Federal Regulations provides in pertinent part that a
representative must submit a fee application, which includes an itemized statement showing the
hourly rate, number of hours worked, and the work performed.4 When a fee application has been
disputed, OWCP is required to provide the claimant with a copy of the fee application and request
the submission of further information in support of any objection.5 After the claimant has been
afforded 15 days, from the date the request was forwarded, to respond to the request, OWCP will
then proceed to review the fee application to determine whether the amount of the fee is
substantially in excess of the value of services received by looking at the following factors:
(1) usefulness of the representative’s services; (2) the nature and complexity of the claim; (3) the
actual time spent on development and presentation of the claim; and (4) customary local charges
for services for a representative of similar background and experience.6
ANALYSIS
The Board finds that OWCP did not abuse its discretion by approving attorney fees in the
amount of $5,117.00 for services rendered from May 3, 2013 to July 10, 2015.
As discussed above, the Board does not determine the fee for representative services before
OWCP. The Board reviews the issue to determine whether there was an abuse of discretion by
2

C.H., Docket No. 17-0623 (issued June 27, 2017); W.H., Docket No. 16-1297 (issued May 9, 2017); L.H., Docket
No. 11-900 (issued December 6, 2011); C.H., Docket No. 10-987 (issued March 22, 2011); Eric B. Petersen, 57
ECAB 680 (2006); Sharon Edwards, 56 ECAB 749 (2005).
3

Claudio Vazquez, 52 ECAB 496 (2001).

4

20 C.F.R. § 10.703(a)(1).

5

Id. at § 10.703(c).

6

Id.

5

OWCP. In this case OWCP approved $5,117.00 of the requested fee of $5,692.50, noting that
appellant had provided general allegations that he felt counsel’s services were ineffective. Having
reviewed the evidence, the Board does not find an abuse of discretion by OWCP.
OWCP reviewed the four factors under 20 C.F.R. § 10.703(c). As to usefulness of services,
the Board notes that, on May 6, 2013, appellant authorized counsel to represent him before OWCP.
Following his review of the case record, counsel requested on May 9, 2013 that appellant’s case
be placed on the periodic compensation rolls. He requested on May 31, 2013 that OWCP follow
its procedures in selecting a second opinion physician and requested on June 4, 2013 that OWCP
expand acceptance of the claim to include additional conditions. Counsel provided updated
medical reports from appellant’s physician in justification of the request for expansion.
Counsel also sent OWCP six letters dated from December 18, 2013 to June 26, 2015
requesting payment of retroactive compensation, with detailed explanations of the periods owed.
OWCP issued the retroactive compensation on February 3, July 7, and July 10, 2015.
Additionally, counsel submitted a May 4, 2015 letter which detailed the deficiencies of a
modified-duty job offer. OWCP took no additional action on the job offer.
Counsel also wrote letters from May 12 to July 12, 2015 regarding selection of second
opinion physicians and requesting authorization for viscosupplementation injections.
As to the nature and complexity of the case, the issues involved included medical evidence,
pay rate, periods of eligibility for compensation, and a modified-duty job offer. Appellant alleged
that counsel’s services did not obtain any favorable results and that he inflated his bill by writing
numerous useless letters. He did not provide evidence to establish that counsel failed to perform
the itemized services as authorized. OWCP found the time spent on activities, with the exception
of the letters which were not imaged into the electronic case record, was not unreasonable, and the
Board finds no abuse of discretion in this regard. It found that the hourly rates listed for attorneys,
secretaries, paralegals, and a law clerk were customary and no contrary evidence was presented.
The Board thus finds no abuse of discretion in this regard.
The Board has frequently held that it will not interfere with or set aside a determination by
OWCP of a fee for legal services unless the determination is clearly in error.7 OWCP has the
discretion to approve attorney fees, and in this case, the Board finds no abuse of discretion.8
CONCLUSION
The Board finds that OWCP did not abuse its discretion in approving attorney fees of
$5,117.00.

7

William Arthur Burney, 29 ECAB 253 (1978).

8

See C.H., supra note 2; R.H., Docket No. 14-0429 (issued July 28, 2014).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 16, 2017 is affirmed.
Issued: November 1, 2018
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Aurora, CO, Employer
__________________________________________

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

Docket No. 12-658
Issued: August 2, 2012

Case Submitted on the Record

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

JURISDICTION
On January 30, 2012 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) January 18, 2012 merit decision. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
traumatic injury to his left knee in the performance of duty on June 14, 2011.
FACTUAL HISTORY
On June 14, 2011 appellant, then a 55-year-old security screener, filed a traumatic injury
claim alleging that he sustained an injury to his left knee on that date while performing a “pat
1

5 U.S.C. § 8101 et seq.

down” on an airline passenger. When he squatted down to examine the passenger’s legs, he
reportedly felt and heard a pop in his left knee, followed by severe pain.
Appellant submitted a June 16, 2011 report from Dr. Daniel Lumian, Board-certified in
family medicine, who diagnosed left knee pain. Dr. Lumian stated that appellant was “doing a
‘pat down,’ squatting and had knee pain.” On examination, appellant had pain with flexion
greater than 90 degrees and effusion. Dr. Lumian indicated by placing a checkmark in the “yes”
box his belief that appellant’s condition was caused or aggravated by employment activities. He
recommended light duty for two weeks.
Appellant submitted an August 8, 2011 report from Dr. Steven Traina, a Board-certified
orthopedic surgeon, who stated that appellant experienced immediate pain and swelling in his
left knee while squatting during a “pat down.” Dr. Traina reported that appellant reinjured his
left knee at home on July 31, 2011 and again experienced pain and swelling. X-rays revealed
significant arthritis in the right knee and some patellofemoral arthrosis in the left knee.
Dr. Traina diagnosed “probable medial meniscal tear with ongoing chondromalacia” and
recommended that appellant undergo a magnetic resonance imaging (MRI) scan.
The record contains an August 11, 2011 report of a left knee MRI scan. The report
reflected a radial tear in the posterior horn of the medial meniscus at the root attachment with
slight subluxation, possibly due to increased mobility; chronic severe chondromalacia in the
trochlear groove with mild chronic chondromalacia on the patellar articular surface; and small
joint effusion and small uncomplicated Baker’s cyst.
In an August 15, 2011 report, Dr. Traina diagnosed meniscus tear. He noted that much of
appellant’s ongoing patellofemoral arthrosis was “old and chronic,” but that he could
arthroscopically alleviate a lot of medial joint line pain, which occurred from the work injury.
On August 16, 2011 Dr. Traina requested authorization to perform left knee surgery.
By letter dated August 31, 2011, OWCP informed appellant that the information
submitted was insufficient to establish his claim. It advised him to submit additional factual and
medical evidence, including a physician’s report with a diagnosis and a rationalized opinion
explaining how the diagnosed condition was causally related to the claimed event.
In an October 5, 2011 decision, OWCP denied appellant’s claim on the grounds that he
had not established fact of injury. The claims examiner found that evidence failed to establish
that he sustained a diagnosed condition causally related to the claimed incident.
On October 24, 2011 appellant requested reconsideration. He contended that the medical
evidence submitted established that he sustained a left knee injury on June 14, 2011.
The record contains an October 13, 2011 narrative report from the employing
establishment medical director, Dr. Marianne Cloeren, a Board-certified internist, who diagnosed
medial meniscus tear. Dr. Cloeren noted appellant’s claim that he sustained a left knee injury on
June 14, 2011 while patting down a passenger. She opined that his claimed reinjury to the left
knee, which occurred at home, “probably relate[d] to progression of the tear, which appear[ed] to
have started during the work activity.” Dr. Cloeren stated that appellant’s clinical history

2

supported a causal relationship between his diagnosed knee condition and the alleged work
incident.
By decision dated January 18, 2012, OWCP modified its October 5, 2011 decision to
accept that the June 14, 2011 incident occurred as alleged. It denied the claim, however, on the
grounds that the medical evidence was insufficient to establish a causal relationship between the
accepted incident and the diagnosed meniscal tear.
On appeal, appellant contends that the evidence of record is sufficient to establish his
traumatic injury claim.
LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.2 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of employment.3
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim, including the fact that he is an employee of the United States
within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 When an employee claims that he sustained a traumatic injury in the
performance of duty, he must establish the fact of injury, consisting of two components, which
must be considered in conjunction with one another. The first is whether the employee actually
experienced the incident that is alleged to have occurred at the time, place and in the manner
alleged. The second is whether the employment incident caused a personal injury and generally
this can be established only by medical evidence.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of

2

5 U.S.C. § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004).

5

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury” as defined by FECA refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).
6

Katherine J. Friday, 47 ECAB 591, 594 (1996).

3

compensation may not be based on appellant’s belief of causal relationship.7 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.8 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under FECA.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is evidence that includes a physician’s rationalized opinion on whether there is
a causal relationship between the claimant’s diagnosed condition and the established incident or
factor of employment. The opinion 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 established incident or factor of employment.10
ANALYSIS
OWCP accepted that appellant was a federal employee, that he timely filed his claim for
compensation benefits and that the June 14, 2011 workplace incident occurred as alleged. The
issue, therefore, is whether appellant has submitted sufficient medical evidence to establish that
the employment incident caused an injury. The medical evidence presented does not contain a
rationalized medical opinion from a qualified physician establishing that the work-related
incident caused or aggravated any particular medical condition or disability. Therefore,
appellant has failed to satisfy his burden of proof.
On June 16, 2011 Dr. Lumian provided examination findings and diagnosed left knee
pain. He failed, however, to provide a specific diagnosis. The Board has held that pain is a
symptom, rather than a compensable medical diagnosis.11 Dr. Lumian indicated by placing a
checkmark in the “yes” box his belief that appellant’s condition was caused or aggravated by
employment activities. A mere checkmark or affirmative notation in response to a form question
on causal relationship is not sufficient to establish a claim.12 The Board has held that a report
that addresses causal relationship with a checkmark, without a medical rationale explaining how
the work conditions caused the alleged injury, is of diminished probative value and is insufficient
to establish causal relationship.13 In this case, Dr. Lumian failed to explain how the events of
June 14, 2011 were competent to cause appellant’s diagnosed condition.
7

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

Id.

9

20 C.F.R. § 10.303(a).

10

John W. Montoya, 54 ECAB 306 (2003).

11

C.F., Docket No. 08-1102 (issued October 10, 2008).

12

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

13

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

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On August 8, 2011 Dr. Traina stated that appellant experienced immediate pain and
swelling in his left knee while squatting during a “pat down” and reported that appellant
reinjured his left knee at home on July 31, 2011. He diagnosed “probable medial meniscal tear
with ongoing chondromalacia” and recommended that appellant undergo an MRI scan.
Dr. Traina’s diagnosis of “probable meniscal tear” is speculative and tentative, in that it was
made prior to a review of MRI scan results. Additionally, Dr. Traina did not provide a definitive
opinion as to whether appellant’s current knee condition was caused by the accepted June 14,
2011 incident, the July 31, 2011 incident or both. Absent a rationalized explanation as to how
the June 14, 2011 incident was competent to have caused the left knee injury, his report is of
limited probative value.
On August 15, 2011 Dr. Traina diagnosed meniscus tear. He noted that much of
appellant’s ongoing patellofemoral arthrosis was “old and chronic,” but that he could
arthroscopically alleviate a lot of medial joint line pain, which occurred from the work injury.
Dr. Traina provided a definitive diagnosis. He did not provide a definitive opinion as to whether
the meniscal tear was due to the June 14, 2012 incident. Rather, Dr. Traina suggested that it may
have developed over a long period of time. His reports are unsupported by rationalized medical
evidence explaining the nature of the relationship between appellant’s left knee condition and the
accepted incident.14 The mere fact that a condition manifests itself during a period of
employment is insufficient to establish causal relationship.15 Therefore, Dr. Traina’s reports are
of limited probative value and are not sufficient to establish appellant’s claim.16
In her October 13, 2011 narrative report, Dr. Cloeren diagnosed medial meniscus tear,
noting appellant’s claim that he sustained a left knee injury on June 14, 2011 while patting down
a passenger. She opined that his claimed reinjury to the left knee, which occurred at home,
“probably relate[d] to progression of the tear, which appear[ed] to have started during the work
activity,” and stated that appellant’s clinical history supported a causal relationship between his
diagnosed knee condition and the alleged work incident. Dr. Cloeren’s report lacks probative
value on several counts. First, her speculative opinion is not based on an examination of
appellant. Moreover it is not supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the established June 14, 2011 incident.17 The
Board finds that Dr. Cloeren’s report is insufficient to establish appellant’s claim.
The record does not contain an opinion by any qualified physician sufficient to establish
appellant’s claim that his left knee condition was causally related to the June 14, 2011 incident.
Appellant expressed his belief that this condition resulted from the accepted employment
incident. The Board has held that the mere fact that a condition manifests itself during a period
of employment does not raise an inference that there is a causal relationship between the two.18
14

Leslie C. Moore, 52 ECAB 132 (2000).

15

Id.

16

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

17

John W. Montoya, supra note 10.

18

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

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Neither the fact that the condition became apparent during a period of employment, nor the belief
that the condition was caused or aggravated by employment factors or incidents, is sufficient to
establish causal relationship.19 Causal relationship must be substantiated by reasoned medical
opinion evidence, which it is appellant’s responsibility to submit. Therefore, appellant’s belief
that his condition was caused by the work-related incident is not determinative.
OWCP advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment, and the doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to submit
appropriate medical documentation in response to OWCP’s request. As there is no probative,
rationalized medical evidence addressing how his left knee condition was caused or aggravated
by his employment, appellant has not met his burden of proof to establish that he sustained an
injury in the performance of duty causally related to factors of his federal employment.
On appeal, appellant contends that the evidence of record is sufficient to establish her
traumatic injury claim. For reasons stated, the Board finds that she has failed to meet her burden
of proof in this case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a left leg injury in the performance of duty on June 14, 2011.

19

Id.

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ORDER
IT IS HEREBY ORDERED THAT the January 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 2, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Bloomfield, NM, Employer
__________________________________________

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

Docket No. 17-2022
Issued: March 7, 2018

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 September 28, 2017 appellant filed a timely appeal from a September 5, 2017 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 the claim.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to the accepted July 18, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its September 5, 2017 decision.
The Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On July 19, 2017 appellant, then a 26-year-old range technician, filed a traumatic injury
claim (Form CA-1) alleging that she injured her right arm on July 18, 2017 while pushing horses
out of a horse trap while in the performance of duty. She explained that the horses tried to go
through the panels and that the panels moved which caused her to fall. Appellant indicated that
her right arm was bruised and that she could not move it up or outward.
In a development letter dated July 28, 2017, OWCP advised appellant that additional
evidence was needed to establish her claim. This included a narrative medical report from a
physician which provided a diagnosis and an opinion supported by a medical explanation as to
how the reported work incident caused or aggravated a medical condition. OWCP afforded
appellant 30 days to submit the requested medical evidence.
In a July 24, 2017 report, a certified physician assistant noted that appellant reported pain
in the right shoulder and right lower leg since July 18, 2017 when a horse slammed her into a
panel. Appellant received a diagnosis of right lower leg contusion and right upper arm/shoulder
strain. Effective July 25, 2017, she was released to full duty without restrictions. On July 24,
2017 the certified physician assistant also completed a Physician’s Report of Workers’
Compensation Injury, a Patient Clinical Summary, and a work status note.
By decision dated September 5, 2017, OWCP denied appellant’s traumatic injury claim.
It accepted that the July 18, 2017 incident occurred as alleged, but denied the claim as appellant
failed to establish that a medical condition was diagnosed in connection with the July 18, 2017
incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.3
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.4 The second component is whether the employment incident caused a
personal injury.5

3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989).

2

Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.6
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.7
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to establish the
medical component of fact of injury. As there is no medical evidence from a qualified physician,
the record does not establish that appellant sustained a right arm or right leg injury due to the
employment incident, as alleged. The only evidence OWCP received was from a certified
physician assistant. The Board has consistently held that physician assistants are not competent
to render a medical opinion.8 These reports are entitled to no probative weight because a
physician assistant is not considered a “physician” as defined under FECA.9
Absent a specific injury-related diagnosis from a qualified physician, appellant has failed
to establish the medical component of fact of injury. Accordingly, she has failed to meet her
burden of proof to establish her traumatic injury claim.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish an injury
causally related to the accepted July 18, 2017 employment incident.

6

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

7

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).
8

See Janet L. Terry, 53 ECAB 570 (2002). The term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8102(2); Sean O Connell, 56 ECAB 195 (2004) (physician assistants); Jennifer L. Sharp,
48 ECAB 209 (1996) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B.
Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the
submission of probative medical evidence from a physician).
9

See supra note 6.

3

ORDER
IT IS HEREBY ORDERED THAT the September 5, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2018
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

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