United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, INDIAN HEALTH SERVICES,
Chinle, AZ, Employer
__________________________________________

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

Docket No. 19-1652
Issued: January 29, 2021

Case Submitted on the Record

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

JURISDICTION
On July 30, 2019 appellant, filed a timely appeal1 from a March 25, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP).2 As more than 180 days has elapsed
from the last merit decision, dated January 11, 2019, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
1
Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated October 28,
2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1652 (issued
October 28, 2020).
2
The Board notes that following the March 25, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 5, 2018 appellant, then a 62-year-old fabric worker, filed a traumatic injury claim
(Form CA-1) alleging that on April 2, 2018 she sustained strains of her left hand, neck, and left
shoulder, as well as bruising below her left knee when a laundry cart struck her while in the
performance of duty. She stopped work on April 7, 2018 and returned to work on April 23, 2018.
In an April 2, 2018 e-mail, S.C., appellant’s coworker, noted that at 7:15 a.m. that day
appellant lost control of a cart she was pushing. She indicated that the cart was rolling in her
direction and she had to push the cart away using her arm to prevent it from hitting her.
On April 3, 2018 Dr. Filiz A. Smith, a Board-certified family practitioner, examined
appellant and noted that on April 2, 2018 a coworker had shoved a laundry cart at her forcefully.
She reported pain in the left side of her neck, as well as her left upper extremity from the shoulder
to her hand. Appellant also reported paresthesias. Dr. Smith diagnosed musculoskeletal neck and
left upper extremity pain and workplace conflict.
OWCP also received April 3, 2018 notes from Deanne K. Schumaker, a registered nurse.
In an April 9, 2018 form report, a physician whose signature is illegible, noted that on
April 2, 2018 a coworker shoved a laundry cart at appellant causing her to experience pain on the
left side of her body. The physician indicated by checking a box marked “Yes” that her condition
was caused or aggravated by the employment activity.
On April 19, 2018 appellant submitted a duty status report (Form CA-17) from a family
nurse practitioner whose signature is illegible.
In an April 23, 2018 development letter, OWCP informed appellant of the evidence
necessary to establish her claim and requested a narrative medical report from her treating
physician, which contained a detailed description of findings and a diagnosis, explaining how her
work activities caused, contributed to, or aggravated her medical conditions. It afforded her 30
days to respond.
On April 19, 2018 Jagannath Shobha, a nurse practitioner, noted appellant’s history of
injury and diagnosed left shoulder injury, sprain of the right rotator cuff capsule.
In May 4, 2018 notes, Dr. Mital Patel, a Board-certified dermatologist, examined appellant
and diagnosed strain of the left rotator cuff capsule. On May 25, 2018 he completed a Form CA17 and diagnosed left rotator cuff sprain. Dr. Patel noted a history of injury of appellant pushing
a linen cart towards her coworker who then pushed the cart away to avoid being hit.

2

By decision dated May 30, 2018, OWCP denied appellant’s traumatic injury claim, finding
that she had not provided sufficient medical evidence establishing a causal relationship between
the accepted April 2, 2018 employment incident and her diagnosed left rotator cuff strain.
On July 2, 2018 appellant requested reconsideration of the May 30, 2018 decision. In
support of her request, she submitted a series of Form CA-17 reports signed by Anne K. Whitis, a
physical therapist, dated May 18 through November 20, 2018. Appellant also resubmitted
Ms. Jagannath’s April 19, 2018 note, Dr. Smith’s April 3, 2018 note, and Ms. Schumaker’s
April 3, 2018 note. OWCP also received physical therapy notes from April 3 through 18, 2018
from Katelyn Snyder, a physical therapist.
OWCP also received April 3, 2018 reports of x-rays of the left hand, wrist, elbow, humerus,
and shoulder which demonstrated mild degenerative changes of the left hand, but no fracture.
Appellant also underwent cervical spine x-rays on April 3, 2018 which demonstrated mild
discogenic degenerative changes at C4-5 and C5-6, but no evidence of fracture or malalignment.
OWCP subsequently received an April 2, 2018 authorization for examination and/or
treatment (Form CA-16) completed by the employing establishment.
On September 26, 2018 appellant again requested reconsideration of the May 30, 2018
decision.
By decision dated January 11, 2019, OWCP denied modification of its May 30, 2018
decision, finding that appellant had not submitted medical evidence sufficient to establish causal
relationship between her diagnosed conditions and her accepted employment incident.
On March 6, 2019 appellant requested reconsideration of the January 11, 2019 decision.
She submitted a compact disc (CD) containing the April 3, 2018 x-ray studies of her neck, left
shoulder humerus, left elbow, left wrist, and left hand. Appellant also resubmitted Form CA-17
reports completed by Ms. Whitis dated October 2 through November 5, 2018.
By decision dated March 25, 2019, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 81218(a).
LEGAL PRECEDENT
Section 8128 (a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

4
5 U.S.C. § 8128(a); L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

3

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In her timely request for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP. Thus, she is not entitled to a review of the merits based on the first and
second requirements under 20 C.F.R. §10.606(b)(3).8
In support of her request for reconsideration, appellant resubmitted a series of Form CA17 reports dated October 2 through November 5, 2018 from Ms. Whitis. The Board finds that
submission of this evidence does not require reopening appellant’s case for merit review, as it had
already been considered by OWCP. Providing additional evidence that either repeats or duplicates
information already in the record does not constitute a basis for reopening a claim.9 Therefore,
these reports are insufficient to require OWCP to reopen the claim for consideration of the merits.
Appellant also submitted diagnostic studies of her neck, left shoulder humerus, left elbow,
left wrist, and left hand dated April 3, 2018. These studies are also insufficient to warrant merit
review as diagnostic studies, standing alone, lack probative value and are insufficient to establish
the claim.10 The Board has held that the submission of evidence that does not address the particular
5
20 C.F.R. § 10.606(b)(3); L.D., id.; L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of its decision for which review is sought. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document
receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal Employees’
Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

8

20 C.F.R. § 10.606(b)(3); P.W., Docket No. 20-0380 (issued November 23, 2020); B.R., Docket No. 19-0372
(issued February 20, 2020); L.G., Docket No. 09-1517 (issued March 3, 2010).
9

P.W., id.; C.L., Docket No. 20-0410 (issued October 29, 2020); S.F., Docket No. 18-0516 (issued February 21,
2020); James W. Scott, 55 ECAB 606, 608 n.4 (2004).
10
J.K., Docket No. 20-0591 (issued August 12, 2020); J.P., Docket No. 19-0216 (issued December 13, 2019); A.B.,
Docket No. 17-0301 (issued May 19, 2017).

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issue involved does not constitute a basis for reopening a case.11 Because appellant has not
provided relevant and pertinent new evidence, she was not entitled to a review of the merits based
on the third requirement under 20 C.F.R. § 10.606(b)(3).12
The Board therefore finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

11

J.K., id.; G.Q., Docket No. 18-1697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).

12

J.K., id.

13

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); S.P., Docket No.
19-1904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54
ECAB 608 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the March 25, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.14
Issued: January 29, 2021
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

14
Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board after January 20, 2021.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sioux Falls, SD, Employer
__________________________________________

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

Docket No. 15-1735
Issued: December 24, 2015

Case Submitted on the Record

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

JURISDICTION
On August 14, 2015 appellant filed a timely appeal from a March 4, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision of February 25, 2014 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for further
review of the merits as her request for reconsideration was untimely filed and failed to establish
clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 23, 2013 appellant, then a 52-year-old rural carrier, filed a traumatic injury
claim alleging that on August 22, 2013 she injured her neck when she moved a heavy tub of mail
from the back of her vehicle to the front. She stopped work on August 24, 2013. The employing
establishment indicated that there was a possibility that the injury was not work related because
appellant was in a personal car accident a few days before the alleged employment injury
occurred.2
Appellant was examined by Dr. Craig M. Smith, a Board-certified family practitioner
specializing in sports medicine, who noted, in an August 23, 2013 report, that appellant worked
as a rural mail carrier and complained of acute neck pain beginning on August 23, 2013 when
she carried two heavy tubs of mail. Dr. Smith provided findings on examination and opined that
although appellant’s condition looked like a chronic problem, he suspected that she sustained an
acute disc rupture. He diagnosed degenerative joint disease with accompanying acute work
related to probable disc rupture. Dr. Smith recommended a magnetic resonance imaging (MRI)
scan examination for more information. He also provided return to work and duty status forms
and a September 12, 2013 attending physician’s report.
By letter dated September 10, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim and requested additional evidence.
In a September 17, 2013 report, Dr. Smith described appellant’s symptoms as
degenerative joint disc disease of the cervical spine and acute neck injury secondary to whiplash.
He opined that it was “certainly possible” that appellant’s symptoms resulted from the July 31,
2013 motor vehicle accident. Dr. Smith reported that appellant needed an MRI scan to
determine whether surgical intervention was needed.
In an October 3, 2013 report, Dr. Smith conducted a follow-up examination for
appellant’s whiplash-style injury with cervical radiculopathy. He noted that there was some
discrepancy regarding a previous car accident and the acute injury she had on the job. Dr. Smith
reported that appellant’s MRI scan demonstrated chronic spondylosis with moderate spinal
stenosis that looked chronic and disc space narrowing. He explained that the neck inflammation
and disc space narrowing could accompany acute pain from acute injury regarding whiplash.
Dr. Smith provided examination findings and diagnosed cervical degenerative spondylosis,
chronic, with acute whiplash. He provided a duty status report and return to work form which
recommended that appellant remain off work for three weeks.
On October 7, 2013 appellant responded to OWCP’s development letter. She explained
that on July 31, 2013 she was a passenger in a van when it was struck after clearing an
intersection. Appellant indicated that she had not sustained any injuries and provided a copy of
the motor vehicle accident report.

2

Appellant has two previously accepted traumatic injury claims for a January 14, 2011 employment incident (File
No. xxxxxx488) and a January 28, 2012 employment incident (File No. xxxxxx572). The record contains no other
information as to what conditions had been accepted.

2

In a decision dated October 16, 2013, OWCP accepted that the August 22, 2013
employment incident occurred as alleged and that appellant had a diagnosed cervical condition.
However, it denied her claim finding insufficient medical evidence to establish that her cervical
condition was causally related to the accepted incident.
On January 14, 2014 OWCP received appellant’s request for reconsideration. Appellant
described the August 22, 2013 employment incident and the medical treatment she received
shortly after the alleged injury. She alleged that the employing establishment erroneously
attributed her condition to a motor vehicle accident that occurred a few days earlier when, in fact,
the motor vehicle accident happened three weeks prior to the August 22, 2013 employment
incident. Appellant noted that she was including a new December 17, 2013 report by Dr. Smith.
Appellant submitted an October 25, 2013 return to work form from Dr. Smith which
noted that appellant could return to work with limitations on October 29, 2013.
In a letter dated December 17, 2013, Dr. Smith further indicated that appellant had
preexisting cervical degenerative disease and spondylosis. He explained that the acute whiplash
injury was related to the reported August 22, 2013 work injury and that appellant temporarily
aggravated a preexisting condition.
In a decision dated February 25, 2014, OWCP denied modification of the October 16,
2013 denial decision.
By letter dated February 23, 2015 and received by OWCP on March 2, 2015, appellant
again requested reconsideration. She reiterated that she injured herself as a result of lifting and
manipulating 20- to 75-pound tubs of mail six days a week in the performance of duty. First,
appellant alleged that OWCP admitted in its October 16, 2013 decision that she provided
sufficient evidence to establish her claim when it accepted that her employment factor occurred,
that a medical condition was diagnosed, and that she was in the performance of duty. She
asserted that OWCP contradicted itself when it accepted that she was in the performance of duty,
but denied her claim based on causal relationship. Secondly, appellant alleged that, once she
established her claim, the burden shifted to OWCP to present substantial evidence of absence of
or lack of connection between the injury and employment and cited Bath Iron Works Corp. v.
Preston.3 Third, she pointed out that even if her initial injury occurred as a result of the July 31,
2013 motor vehicle accident, her condition was aggravated by her employment duties. Fourth,
appellant alleged that OWCP and the Department of Labor violated her Sixth Amendment right
to counsel and Fourteenth Amendment right to equal protection under the law by not allowing
her to retain an attorney.
OWCP denied appellant’s March 2, 2015 request for reconsideration on March 4, 2015,
finding that it was untimely filed and did not establish clear evidence of error.

3

380 F. 3d 597 at p. 602 (2004).

3

LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit,
OWCP regulations provide that an application for reconsideration must be received by OWCP
within one year of the date of OWCP’s decision for which review is sought.4 The Board has
found that the imposition of the one-year time limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.5 The one-year period
begins on the date of the original decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues. This includes any hearing or review
of the written record decision, any denial of modification following reconsideration, any merit
decision by the Board, and any merit decision following action by the Board.6
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, it must
nonetheless undertake a limited review of the evidence previously of record to determine
whether the new evidence demonstrates clear evidence of error.7 OWCP regulations and
procedures provide that it 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.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest on
its face that OWCP committed an error.9 Evidence that does not raise a substantial question
concerning the correctness of OWCP’s decision is insufficient to establish clear evidence of
error.10 It is not enough merely to show that the evidence could be construed so as to produce a
contrary conclusion.11 In this regard, OWCP will limit its focus to a review of how the newly
submitted evidence bears on the prior evidence of record.12 To establish clear evidence of error,
the evidence submitted must not only be of sufficient probative value to create a conflicting
4

20 C.F.R. § 10.607.

5

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

6

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

7

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

8

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(d)
(October 2011). 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.
9

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

10

Jimmy L. Day, 48 ECAB 652 (1997).

11

Id.

12

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

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medical opinion or establish a clear procedural error, but must be of sufficient probative value to
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.13 The Board makes an independent determination of whether a
claimant has submitted clear evidence of error on the part of OWCP such that it improperly
denied merit review in the face of such evidence.14
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. The most recent OWCP merit decision in this case was issued on
February 25, 2014. OWCP did not receive appellant’s reconsideration request until March 2,
2015, more than one year after the February 25, 2014 merit decision. Therefore, it was not
timely filed. Consequently, appellant must demonstrate clear evidence of error on the part of
OWCP in denying her claim.
On appeal appellant alleges that computation of time should be based on the postmark
date and provided copies of section 1201.22 of Title 5 of the Code of Federal Regulations. She
noted that her reconsideration request was postmarked within one year of the February 25, 2014
OWCP decision and provided a copy of the mailing receipt. According to OWCP regulations,
however, an application for reconsideration must be received by OWCP within one year of its
decision for which review is sought.15 Appellant’s reliance on 5 C.F.R. § 1201.22 does not
pertain to filing a request for reconsideration before OWCP.16 Accordingly, the fact that
appellant’s reconsideration request was mailed within one year of the decision does not
constitute a timely filing according to 20 C.F.R. § 10.607(a).17 Because OWCP did not receive
appellant’s reconsideration request until March 2, 2015, more than one year after the
February 25, 2014 OWCP decision, her reconsideration request was not timely filed.
Accordingly, for OWCP to review the merits of appellant’s claim, she must demonstrate clear
evidence of error.
The Board finds that appellant has not established clear evidence of error by OWCP in
the denial of her present claim. Following the February 25, 2014 decision, appellant submitted a
statement along with her March 2, 2015 reconsideration request. She alleged that OWCP
contradicted itself when it accepted that appellant was in the performance of duty but denied her
claim based on causal relationship. Appellant contended that she provided sufficient evidence to
establish her claim and that once she did so, the burden shifted on OWCP to establish a lack of
connection between her condition and her employment. Despite her allegation, however, the
Board finds that appellant has not submitted sufficient evidence to establish error in OWCP’s
13

Annie L. Billingsley, 50 ECAB 210 (1998).

14

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).

15

20 C.F.R. § 10.607(a). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4 (October 2011).
16

The Board notes that Title 5, Sections 1200-1299 provide regulations for the Merit Systems Protection Board.

17

See D.C., Docket No. 15-293 (issued September 11, 2015).

5

February 25, 2014 decision. OWCP denied her claim due to insufficient evidence to establish a
causal relationship between her diagnosed condition and the August 22, 2013 employment
injury. Appellant has not presented any evidence that has raised a substantial question as to the
correctness of OWCP’s decision to deny her traumatic injury claim because of a lack of causal
relationship.
Appellant further asserted that even if her initial injury had occurred as a result of the
July 31, 2013 motor vehicle accident, her condition was aggravated by her employment duties.
She did not, however, submit any medical evidence to establish an aggravation of her preexisting
condition or to demonstrate that OWCP committed an error in denying her claim. As noted
above, it is not enough to show that the evidence could be construed so as to produce a contrary
conclusion. The weight of the evidence must shift in favor of the claimant.18 Accordingly,
appellant has not shown clear evidence of error in OWCP’s October 16, 2013 denial decision.
The Board notes that appellant also raised arguments in her reconsideration request that
are outside the jurisdiction of the Board. To the extent that appellant has asserted that she was
denied right to counsel and equal protection under the Sixth and Fourteenth Amendments, the
Board notes that this argument relates to constitutional questions. The Supreme Court has held
that constitutional questions are unsuited to resolution in administrative hearing procedures.19
As the Board is an administrative body, it does not have jurisdiction to review a constitutional
claim such as that made by appellant.20 Appellant’s arguments, therefore, do not show clear
evidence of error in OWCP’s decision denying her traumatic injury claim.
As none of the evidence of record raises a substantial question concerning the correctness
of OWCP’s decision, appellant has failed to establish clear evidence of error on the part of
OWCP in denying further merit review.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

18

Supra note 13.

19

See Johnson v. Robinson, 415 U.S. 361 (1974) and cases cited therein.

20

See also Robert F. Stone, 57 ECAB 292 (2005); Diana L. Smith, 56 ECAB 524 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the March 4, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 24, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 18-0905
Issued: December 10, 2018

Case Submitted on the Record

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

JURISDICTION
On March 27, 2018 appellant filed a timely appeal from a February 26, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral wrist and
left thumb injuries causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On March 9, 2017 appellant, then a 61-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral carpal tunnel and left thumb basilar
arthritis as a result of constantly using both hands to grab heavy bundles of magazines, cutting
1

5 U.S.C. § 8101 et seq.

them open, and transferring them to “ACTs [automation-compatible trays],” and performing other
similar jobs for 21 years at the employing establishment. She believed that the wear and tear from
repeated and constant use of her hands was the sole reason for her present symptoms. Appellant
alleged that she first became aware of her conditions on January 31, 2016 and of their relationship
to her federal employment on May 15, 2016. She did not stop work.
In an accompanying narrative statement dated March 9, 2017, appellant again alleged that
she sustained a work-related bilateral hand injury. She described her work duties. Appellant noted
that she injured her right wrist at work on January 7, 2016 while constantly lifting heavy trays and
putting them in proper trays at work, but that her claim was closed because she did not follow
through with workers’ compensation.2 She related that, outside of work, she only used her hands
to perform normal activities at home.
Appellant submitted a March 2, 2017 medical report from Dr. Eric F. Walsh, an attending
Board-certified orthopedic surgeon, who noted that she was seen for follow-up of her bilateral
hand numbness, tingling, and pain, and left basilar thumb pain. Dr. Walsh also noted her medical
history and discussed findings on physical examination. He diagnosed left basilar thumb arthritis
and bilateral carpal tunnel.
By letters dated April 12, 2017, the employing establishment controverted appellant’s
claim, noting that she had not established fact of injury.
OWCP, by development letter dated June 6, 2017, advised appellant of the factual and
medical deficiencies of her claim. It provided a questionnaire for her completion in order to
establish the employment factors alleged to have caused or contributed to her condition and a
medical report from her attending physician explaining how and why her federal work activities
caused, contributed to, or aggravated her medical condition. By separate letter dated June 6, 2017,
OWCP requested that the employing establishment respond to appellant’s allegations and submit
treatment notes if she was treated at an employing establishment medical facility. It afforded both
parties 30 days to submit additional evidence.
In additional statements dated June 20, 2017, appellant noted that after her January 7, 2016
right hand employment injury she compensated with her left hand. She noted that she had
mistakenly indicated that she became aware of the relationship between her employment and
claimed conditions on May 15, 2016 as she had a problem long before that date. Appellant
explained that the delay in filing her Form CA-2 was due to a problem finding a physician who
dealt with a work-related injury. She again described her work duties. Appellant indicated that
she had been advised by Dr. Walsh that constant repetitive use of her left hand at work caused
wear and tear, which resulted in carpal tunnel, bone wear, and arthritis in the basal area of her left
wrist.
Appellant submitted a September 12, 2016 medical report from Dr. Richard L. Cervone, a
Board-certified neurologist, who noted that she was referred to him for electromyogram and nerve
2

OWCP accepted an aggravation of right carpal tunnel syndrome under File No. xxxxxx761 resulting from the
accepted January 7, 2016 employment injury. Following endoscopic carpal tunnel release, appellant returned to fullduty work on July 30, 2017.

2

conduction velocity (EMG/NCV) testing to assess the bilateral upper extremities for carpal tunnel
syndrome. Dr. Cervone indicated that she presented with complaints regarding her right and left
hand and fingers and right wrist and forearm. He related a history that the onset of appellant’s
symptoms began approximately three years ago, but worsened in January 2016 after she picked up
a tray at work. Appellant informed Dr. Cervone that her symptoms were related to her job as a
mail handler. Her job required frequent and repetitive movement of her hands/upper extremities.
Appellant indicated that she had an open workers’ compensation claim for this condition, but due
to extreme difficulty in obtaining authorization for further examination and due to worsening hand
symptoms, she decided to go through her private health coverage. Dr. Cervone noted a history of
her social, family, and medical background. He described findings on physical examination and
indicated that appellant would undergo EMG/NCV testing.
A September 12, 2016 EMG/NCV study performed by Dr. Cervone demonstrated
moderate right carpal tunnel syndrome and very mild left carpal tunnel syndrome. There was no
EMG evidence of left or right cervical radiculopathy affecting the left or right upper extremities.
By decision dated July 6, 2017, OWCP denied appellant’s occupational disease claim. It
found that none of the medical evidence of record contained a rationalized-medical opinion
explaining how her diagnosed bilateral wrist and left thumb conditions were causally related to
accepted factors of her federal employment.
On July 25, 2017 appellant requested an oral hearing before an OWCP hearing
representative. Subsequently, on July 28, 2017 she requested a telephone hearing. Appellant
changed her previous request for a telephone hearing to a request for a review of the written record.
In an undated statement, appellant reiterated that she sustained a work-related left hand
injury. She also claimed that she sustained another employment-related left hand injury on
September 10, 2017 for which she filed a traumatic injury claim (Form CA-1).3
Appellant submitted additional reports dated October 18 and November 3, 2017 from
Dr. Walsh. Dr. Walsh reviewed x-ray test results and discussed physical examination findings.
He diagnosed left thumb carpometacarpal degenerative joint disease. Dr. Walsh opined that the
diagnosed condition was caused by appellant’s employment as she described to him. He noted
that she performed significant work with her nondominant left hand. Dr. Walsh recommended
surgery as all conservative management had failed. He also recommended that appellant remain
off work.
Appellant also submitted an October 31, 2017 attending physician’s report (Form CA-20)
from Dr. Walsh who indicated a date of injury as September 10, 2017. Dr. Walsh diagnosed left
basilar thumb osteoarthritis/degenerative joint disease. He checked a box marked “yes” indicating
that the diagnosed condition was caused or aggravated by an employment activity. Dr. Walsh also
indicated that appellant was totally disabled from September 9 through December 7, 2017.
By letter dated November 27, 2017, appellant requested that OWCP authorize the proposed
left hand surgery. She submitted further reports from Dr. Walsh who restated his prior diagnoses
3

That claim was assigned File No. xxxxxx197. OWCP denied that claim by decision dated November 9, 2017.

3

of left basilar thumb arthritis and left carpal tunnel syndrome and opined that the diagnosed
conditions were caused by her employment duties. In a November 16, 2017 report, Dr. Walsh
believed that appellant’s work on an advanced facer-canceler (which ran first-class mail), an
automated parcel bundler sorter machine (which involved pulling large postal boxes full of mail
and putting boxes weighing up to and more than 500 pounds on a line to be dispatched by forklifts),
and a “FFS “ machine (which sorted first, second, and third class postal items weighing up to 20
to 30 pounds) and at preparation stations, and repetitively lifting items, including magazines
weighing up to 20 to 30 pounds with both hands were all consistent with what was welldocumented in orthopedic hand literature to cause and/or exacerbate symptoms of left carpal tunnel
syndrome and left basilar thumb arthritis. He maintained that speciﬁc gripping, grasping, pinching,
holding on with the hand, and ﬂexing and extending the wrist were all consistent with the
development of these diagnosed conditions.
In a November 17, 2017 work capacity evaluation, Dr. Walsh advised that appellant was
unable to perform her usual job without restrictions. He further advised that she was unable to
work eight hours a day with physical restrictions.
By decision dated January 3, 2018, an OWCP hearing representative set aside the July 6,
2017 decision and remanded the case to OWCP. She found that, although Dr. Walsh’s
November 16, 2017 report was insufficiently rationalized to meet appellant’s burden of proof to
establish that she sustained wrist and left thumb injuries causally related to the accepted
employment factors, it was uncontroverted and raised an inference of causal relationship sufficient
to require further development by OWCP. On remand, the hearing representative instructed
OWCP to prepare an accurate and complete statement of accepted facts (SOAF) and request
Dr. Walsh to explain the medical process of how any specific work factor caused or contributed to
appellant’s diagnosed conditions and why her conditions would not have been due to nonwork
factors such as, age-related degenerative changes.
By letter dated January 8, 2018, OWCP requested that Dr. Walsh review a SOAF, which
included a description of appellant’s established work duties as a mail handler, and provide a wellrationalized opinion explaining how the accepted factors of her federal employment caused or
contributed to her bilateral carpal tunnel syndrome and left basilar thumb arthritis.
OWCP received additional reports dated May 4 and June 14, 2017 from Dr. Walsh who
indicated a diagnosis of right carpal tunnel syndrome and that he performed endoscopic carpal
tunnel release on the right hand.
In reports dated June 29 to September 28, 2017, Dr. Walsh noted that appellant was seen
for follow-up of her right carpal tunnel release. He examined her, again diagnosed right carpal
tunnel syndrome and also diagnosed right carpal tunnel release.
Dr. Walsh, in a February 16, 2018 letter, responded to OWCP’s January 8, 2018 letter
requesting information of how the work duties caused her present complaints. He noted that
appellant had bilateral carpal tunnel syndrome and ultimately underwent surgery on the right side.
Dr. Walsh also noted that she had some carpal tunnel syndrome on the left, but most of her
symptoms were due to the basilar thumb arthritis. He recommended surgery for appellant’s left
basal thumb as conservative management had not resolved her symptoms. Dr. Walsh related that

4

based on his experience as a hand surgeon for the last 15 years, if nonwork-related factors such as,
age-related degenerative changes, were the primary cause of bilateral carpal tunnel and basilar
thumb arthritis, then everybody over time would develop these problems and symptoms. He
maintained, however, that this was not the case. Based on the stresses across the basilar thumb
arthritis and the wrist and hand positioning, carpal tunnel syndrome and basilar thumb arthritis can
be directly related to work activities and exacerbate underlying conditions of arthritis that may be
nonwork related but, certainly can become symptomatic as a result of work behaviors. Dr. Walsh
believed within a degree of medical certainty and probability that appellant’s bilateral carpal tunnel
and left basilar thumb arthritis were in fact work related based on the fact that she had been
performing the described work duties for 22 years. He indicated that he would feel differently if
these work activities had only been performed over, for instance, one year to a few years.
However, Dr. Walsh believed that appellant’s injuries were work-related based on the significant
amount of stress across her bilateral hands and ﬁngers.
By decision dated February 26, 2018, OWCP again denied appellant’s occupational
disease claim. It found that Dr. Walsh’s February 16, 2018 report failed to sufficiently explain
how the established work factors caused or contributed to her diagnosed conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.

4

Id.

5

T.H., Docket No. 17-0747 (issued May 14, 2018); C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine
Pendleton, 40 ECAB 1143 (1989).
6
T.H., id.; S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB
153 (1989).

5

Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.7 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on whether there is causal
relationship between the employee’s diagnosed condition and the compensable employment
factors.8 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.9
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility to see that justice is done.10 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.11
OWCP’s procedures provide that the claims examiner should refer the case to a second
opinion physician when it has gathered all the medical evidence from the attending physician and
does not have enough evidence about a diagnosis or an adequately reasoned opinion about causal
relationship to accept the case, but does have sufficient evidence to suggest that the claimant might
be entitled to benefits.12
ANALYSIS
The Board finds that this case is not in posture for decision as to whether appellant’s
bilateral wrist and left thumb injuries were causally related to the accepted factors of her federal
employment.
By decision dated July 6, 2017, OWCP denied appellant’s occupational disease claim,
finding that none of the medical evidence of record contained a rationalized medical opinion
explaining how her diagnosed bilateral carpal tunnel syndrome and left basilar thumb arthritis were
causally related to the accepted factors of her federal employment. By decision dated January 3,
2018, an OWCP hearing representative determined that while a November 16, 2017 report of
Dr. Walsh, an attending physician, did not provide sufficient medical rationale to support his
opinion that her bilateral carpal tunnel syndrome and left basilar thumb arthritis were causally

7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D. 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
8

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 6.

10

See S.M., Docket No. 16-0990 (issued February 8, 2017); Jimmy A. Hammons, 51 ECAB 219 (1999).

11

20 C.F.R. § 10.121.

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluation Medical Evidence, Chapter
2.0810.9.b (1) (June 2015).

6

related to the established employment factors, it was uncontroverted and raised an inference of
causal relationship to warrant development of the medical evidence by OWCP.
OWCP undertook further development of the medical evidence upon the hearing
representative’s instructions and, consistent with its procedures, offered appellant’s attending
physician an opportunity to further expound upon his opinion.13
Upon response to OWCP’s January 8, 2018 development letter, Dr. Walsh submitted a
February 16, 2018 report. In a February 26, 2018 decision, OWCP again denied appellant’s claim.
It found that Dr. Walsh’s February 16, 2018 report was insufficiently rationalized to establish
causal relationship between appellant’s bilateral wrist and left thumb conditions and the
established employment factors.
In his February 16, 2018 report, Dr. Walsh opined that the established work duties, which
appellant had performed for 22 years, caused her bilateral carpal tunnel syndrome and left basilar
thumb arthritis, right carpal tunnel release, and need to undergo left basal thumb surgery. He
reasoned that the stresses across her basilar thumb arthritis and wrist and positioning of her hand
during the performance of the established work activities resulted in the diagnosed conditions.
Dr. Walsh described the specific machines, weights and tasks of gripping, grasping, pinching,
holding on with the hand, and flexing and extending the wrist.
Dr. Walsh has unequivocally stated that appellant’s bilateral carpal tunnel syndrome and
left basilar thumb arthritis were caused by the established employment factors. He responded to
OWCP’s request to review a SOAF which contained a description of her established work duties
and provided an opinion on the causal relationship between her diagnosed conditions and the
established work factors. The Board finds that Dr. Walsh’s opinion, while not sufficiently
rationalized to meet appellant’s burden of proof, is sufficient to require further development of the
case record.14 As noted, while the claimant has the burden of proof to establish entitlement to
compensation, OWCP shares responsibility in the development of the evidence. It has the
obligation to see that justice is done.15
The case will be remanded to OWCP for referral of appellant, the case record, and a SOAF
to an appropriate Board-certified specialist for a second opinion evaluation and rationalized
medical opinion regarding whether the established employment factors caused or contributed to
her bilateral wrist and left thumb conditions.16 On remand after such further development of the
case record as OWCP deems necessary, it shall issue a de novo decision.

13

Id. at Part 2 -- Claims, Initial Development of Claims, Chapter 2.0800.8c (1) (June 2011).

14

See J.G., Docket No. 17-1062 (issued February13, 2018); A.F., Docket No. 15-1687 (issued June 9, 2016). See
also John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).
15

C.H., Docket No. 18-0108 (issued July 19, 2018).

16

Supra note 12.

7

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 26, 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 decision of the Board.
Issued: December 10, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Otisville, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-2055
Issued: March 28, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 6, 2006 appellant, through his attorney, filed a timely appeal from an
August 24, 2006 merit decision of the Office of Workers’ Compensation Programs granting him
a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the schedule award decision.
ISSUE
The issue is whether appellant has more than a six percent permanent impairment of the
left upper extremity.
FACTUAL HISTORY
On February 3, 2000 appellant, then a 32-year-old correction officer, filed a claim
alleging that he sustained a traumatic injury to his left elbow and shoulder on February 1, 2000
when he picked up a bag from a cart. The Office accepted the claim for an aggravation of
epicondylitis of the left elbow.

On August 3, 2000 Dr. Mark Lazarus, an orthopedic surgeon, performed a diagnostic
elbow arthroscopy with an excision of chronic lateral epicondylitis and a decompression of the
radial tunnel of the left elbow. Appellant received compensation following his surgery until
December 18, 2000, when he resumed light duty.
In a decision dated October 19, 2001, the Office denied appellant’s claim for a schedule
award on the grounds that the medical evidence established that he had no ratable impairment
due to his employment injury. The Office based its conclusion on the opinion of Dr. David B.
Yanoff, a Board-certified orthopedic surgeon, who performed a second opinion examination on
September 26, 2001. He found that appellant had no employment-related upper extremity
impairment.
On March 11, 2006 appellant filed a claim for a schedule award. The Office, by letter
dated April 17, 2006, requested that he submit an impairment evaluation from his attending
physician in accordance with the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001) (A.M.A., Guides). Appellant submitted a report dated
April 24, 2006 from Dr. Emmanuel E. Jacob, a Board-certified physiatrist, who discussed
appellant’s complaints of left upper extremity pain and difficulty performing repetitive tasks. He
stated:
“The left elbow flexion is active to 120 degrees, extension 0 degrees and 75
degrees pronation and supination of 70 degrees. Shoulder flexion is 180 degrees,
extension of 30 degrees, 40 degrees of abduction, 90 degrees of adduction, 35
degrees of internal rotation and 40 degrees of external rotation. The sensation of
the upper limb is diminished along the left radial nerve distribution. No
observable muscle atrophy of the upper limb. His hand grip on the left side is 4/5
and the right side is 5/5.”
Dr. Jacob diagnosed a left elbow injury, status post decompression of the radial nerve and
an excision of chronic lateral epicondylosis. He found that appellant had a 35 percent maximum
upper extremity impairment due to a loss of power according to Table 16-32 on page 489, which
he multiplied by a 20 percent motor deficit1 to find a 7 percent upper extremity impairment.
Dr. Jacob further found that 140 degrees of elbow flexion and 0 degrees extension yielded no
impairment.2 He determined that 75 degrees forearm supination yielded no impairment and 70
degrees pronation yielded a one percent impairment.3 Dr. Jacob added the one percent
impairment due to loss of range of motion to the seven percent impairment due to motor deficit
to find an eight percent upper extremity impairment, which he converted to a three percent whole
person impairment. He then added a three percent whole person impairment due to pain under
Chapter 18 of the A.M.A., Guides, to find a total whole person impairment of six percent.

1

A.M.A., Guides at 484, Table 16-11.

2

Id. at 472, Figure 16-34. The Board notes that early in his report Dr. Jacob indicated that appellant had 120
degrees of elbow flexion.
3

Id. at 474, Figure 16-37.

2

An Office medical adviser reviewed Dr. Jacob’s report on July 12, 2006. He found that
Dr. Jacob inappropriately applied Table 16-13 on page 489 of the A.M.A., Guides which was
utilized for motor and sensory deficits arising from spinal impairments. The Office medical
adviser stated:
“It was a result of muscle weakness that resulted from his surgery of the wrist
extensors as part of the lateral epicondylitis operation. In this operation, the
extensor carpi radialis longus and brevis are removed from the bone prominence
of the medial epicondyles and the muscles are repaired. As a result of this surgery
there is weakness of the muscles. There is no involvement of the spinal nerves.”
He further found that Dr. Jacob should not have used Table 16-11 on page 484 as
appellant did not have a peripheral nerve disorder. The Office medical adviser determined that
75 degrees supination of the forearm constituted no impairment and 70 degrees pronation
constituted a one percent impairment according to Figure 16-37 on page 474. He found that
appellant had full range of motion of the elbow. Applying Table 16-35 on page 510 of the
A.M.A., Guides, the Office medical adviser stated:
“[T]he deficit in this case is determined to be based on 4/5 muscle weakness. The
muscle that is weak is the elbow extensor and based upon this chart it represents a
five percent impairment. This chart is appropriate based upon the description on
page 508, 16.8a Principles, where it states, ‘An example of this situation would be
loss of strength due to a severe muscle tear.’ The exact nature of the pathology is
a muscle tear of the wrist extensors and this is what was repaired at the time of the
surgery.”
The Office medical adviser concluded that appellant had a five percent loss of strength
which he combined with the one percent impairment due to loss of pronation to find a total left
upper extremity impairment of six percent.
By decision dated August 24, 2006, the Office granted appellant a schedule award for a
six percent impairment of the left upper extremity. The period of the award ran for 18.72 weeks
from April 25 to September 2, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,4 and its
implementing federal regulation,5 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

3

claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.6
Regarding loss of strength, the A.M.A., Guides states in relevant part:
“In a rare case, if the examiner believes the individual’s loss of strength represents
an impairing factor that has not been considered adequately by other methods in
the A.M.A., Guides, the loss of strength may be rated separately. An example of
this situation would be loss of strength due to a severe muscle tear that healed
leaving a palpable muscle defect. If the examiner judges that loss of strength
should be rated separately in an extremity that presents other impairments, the
impairment due to loss of strength could be combined with the other impairments,
only if based on unrelated etiologic or pathomechanical causes. Otherwise, the
impairment ratings based on objective anatomic findings take precedence.
Decreased strength cannot be rated in the presence of decreased motion, painful
conditions, deformities, or absence of parts (e.g., thumb amputation) that prevent
effective application of maximal force in the region being evaluated.”7 (Emphasis
in the original.)
ANALYSIS
The Office accepted that appellant sustained an aggravation of epicondylitis of the left
elbow due to a February 3, 2000 employment injury. On August 3, 2000 he underwent a left
elbow excision of chronic lateral epicondylitis and a decompression of the radial tunnel.
Appellant returned to light-duty employment on December 18, 2000.
On March 11, 2006 he filed a claim for a schedule award.8 In a report dated April 24,
2006, Dr. Jacob measured range of motion of the left elbow and shoulder. He concluded that
appellant had a one percent impairment for loss of pronation. The Board notes, however, that
120 degrees of flexion constitutes a two percent impairment, 0 degrees of extension constitutes
no impairment, 75 degrees of pronation constitutes a one percent impairment and 70 degrees
supination constitutes no impairment.9 Additionally, Dr. Jacob measured range of motion of the
left shoulder but did not provide an impairment determination for the shoulder. While a shoulder
condition has not been accepted as employment related, in determining entitlement to a schedule
award, preexisting impairments of the scheduled member of the body are to be included.10 The
scheduled member in this case is the upper extremity, which, under the A.M.A., Guides, is to be
evaluated as a whole.11 For the shoulder, Dr. Jacob found 180 degrees of flexion which
6

20 C.F.R. § 10.404(a).

7

A.M.A., Guides at 508.

8
9

The Office denied appellant’s prior claim for a schedule award in a decision dated October 19, 2001.
A.M.A., Guides at 472, 474, Figures 16-34, 16-37.

10

See Carl J. Cleary, 57 ECAB ___ (Docket No. 05-1558, issued May 10, 2006); Federal (FECA) Procedure
Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3.b (June 1993).
11

A.M.A., Guides at 515-18.

4

constitutes no impairment, 30 degrees extension which constitutes a one percent impairment, 40
degrees abduction which constitutes a six percent impairment, 35 degrees internal rotation which
constitutes a four percent impairment and 40 degrees which external rotation which constitutes a
one percent impairment.12
Dr. Jacob further found that appellant had grip strength of 4/5 on the left and 5/5 on the
right with a loss of sensation along the radial nerve distribution. He determined that appellant
had a seven percent impairment of the upper extremity due to loss of power pursuant to Tables
16-32 and 16-11 on pages 489 and 484 of the A.M.A., Guides, respectively. He added the one
percent impairment for loss of range of motion to the impairment due to motor deficit to find an
eight percent total upper extremity impairment. Dr. Jacob converted the eight percent upper
extremity impairment to a three percent whole person impairment and added an additional three
percent whole person impairment due to pain to find a whole person impairment of six percent.
The Act, however, does not provide for permanent impairment for the whole person.13 Further,
Dr. Jacob applied Table 16-32 on pages 489, which is relevant to determining impairments due
to spinal nerve deficits, in calculating the impairment due to loss of strength. Appellant did not
have a cervical spine injury and thus the use of Table 16-32 is inappropriate in determining the
extent of his impairment. Dr. Jacob also added an additional award for pain pursuant to Chapter
18 of the A.M.A., Guides. Examiners should not use Chapter 18 to rate pain-related impairments
for any condition that can be adequately rated on the basis of the body and organ impairment
systems given in other chapters of the A.M.A., Guides.14 As Dr. Jacob’s report does not conform
to the A.M.A., Guides, it is of diminished probative value.15
On July 12, 2006 an Office medical adviser reviewed Dr. Jacob’s report and applied the
tables and pages of the A.M.A., Guides to his findings. He determined that appellant reached
maximum medical improvement on April 24, 2006. The Office medical adviser opined that 75
degrees supination of the forearm constituted no impairment and 70 degrees pronation
constituted a one percent impairment according to Figure 16-37 on page 474. He further found
that appellant had no loss of elbow motion. As previously discussed, however, appellant has an
additional impairment due to loss of elbow flexion and may also be entitled to an additional
award due to loss of range of motion of the left shoulder. The Office medical adviser’s opinion
is thus insufficient to establish the extent of appellant’s left upper extremity impairment.
The Office medical adviser determined that appellant had 4/5 muscle weakness of the
elbow extensor which he found constituted a 5 percent impairment according to Table 16-35 on
page 510 of the A.M.A., Guides. Table 16-35 on page 510 of the A.M.A., Guides is used to
estimate impairment for strength deficits based on manual muscle testing. The A.M.A., Guides
12

Id. at 476, 477, 479, Figures 16-40, 16-43, 16-46. It appears that Dr. Jacob may have listed the wrong
measurements for abduction and adduction as an impairment percentage for 90 degrees measured adduction is not
depicted in Figure 16-43 on pages 477.
13

Robert Romano, 53 ECAB 649 (2002).

14

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); A.M.A., Guides at 18.3(b); see also Philip Norulak, 55 ECAB 690 (2004).
15

Mary L. Henninger, 52 ECAB 408 (2001).

5

indicates that the use of such a table is appropriate only in a rare case where the loss of strength
represents an impairing factor that has not been considered adequately by other methods.16 The
A.M.A., Guides provides that the table can be used for an individual who experienced a “severe
muscle tear that healed leaving a palpable muscle defect.”17 The Office medical adviser
explained that the use of the table was proper because appellant had muscle weakness resulting
from a muscle tear of the wrist extensors. The muscle tear was surgically repaired but the
weakness remained. The Office medical adviser properly found that appellant was entitled to a
separate rating for loss of strength under Table 16-35. He then combined the five percent
impairment due to loss of strength with the one percent impairment he found for loss of
pronation. The Board notes, however, that decreased strength cannot be rated in the presence of
decreased motion that prevents effective application of maximal force in the evaluated region.18
Appellant, consequently, is not entitled to an additional award due to loss of range of motion of
the elbow. The A.M.A., Guides further provides that an impairment due to loss of strength
cannot be combined with any other impairment unless based on unrelated etiologic or
pathomechanical causes. It is unclear whether the loss of range of motion of appellant’s shoulder
is due to an unrelated etiologic or pathomechanical cause or whether the decreased motion in the
shoulder prevents application of maximal force in the evaluated region such that it could not be
combined with an impairment for loss of strength. The case will be remanded for the Office to
seek clarification from the Office medical adviser on the extent of appellant’s permanent
impairment.
CONCLUSION
The Board finds that the case is not in posture for decision and will be remanded for
further development of the medical evidence. After such further development as the Office
deems necessary, it should issue an appropriate merit decision.

16

A.M.A., Guides at 508.

17

Id.

18

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 24, 2006 is set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: March 28, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 13-44
Issued: February 22, 2013

Case Submitted on the Record

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

JURISDICTION
On September 28, 2012 appellant filed a timely appeal from a July 3, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) which denied her traumatic injury
claim and an August 27, 2012 nonmerit decision which denied her request for review of the
written record as untimely. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a diagnosed condition causally related to a May 18, 2012 employment incident; and
(2) whether OWCP properly denied appellant’s request for a review of the written record as
untimely.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional medical evidence following the July 3, 2012 merit decision.
Since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision,
the Board may not consider this evidence for the first time on appeal.

FACTUAL HISTORY
On May 23, 2012 appellant, then a 45-year-old mail handler, filed a traumatic injury
claim alleging that on May 18, 2012 she sustained an insect bite in her upper chest in the
performance of duty. She explained that she leaned on a cage and felt a stinging, burning
sensation on her upper chest. Appellant noticed that it became black and swollen and
experienced muscle problems with her left arm. She related that her doctor informed her that it
was either a spider or ant bite. The employing establishment stated that it was unsure if the
injury occurred while appellant was working because it was unable to investigate.
On May 29, 2012 OWCP advised appellant that the evidence submitted was insufficient
to establish her claim and requested additional evidence to support her claim. It specifically
requested a medical report from a physician which included a history of injury, description of
examination findings, a firm medical diagnosis and a physician’s opinion, based on medical
rationale, explaining how appellant’s condition was causally related to the alleged employment
incident.
In a May 24, 2012 treatment note, a physician’s assistant noted that appellant was
examined on May 20, 2012 with a probable insect bite and excused her from work for one day.
In a June 11, 2012 treatment note, a physician’s assistant stated that appellant was
examined that day for worsening of infection on her left breast secondary to a bug bite she
received at work in May. Appellant was authorized to return to work on June 12, 2012.
In a decision dated July 3, 2012, OWCP denied appellant’s claim finding insufficient
medical evidence to establish that she sustained any condition as a result of the May 18, 2012
employment incident. It accepted that the May 18, 2012 incident occurred as alleged but found
that the medical evidence did not establish that she sustained any diagnosed condition causally
related to the accepted incident.
In an undated appeal form received into the record on August 7, 2012 and date stamped
as received by OWCP on August 6, 2012, appellant requested a review of the written record.
Appellant submitted various treatment notes co-signed by a physician’s assistant and Dr. Dan
Wallace, a family practitioner, dated May 20 to July 9, 2012.
By decision dated August 27, 2012, OWCP denied appellant’s request for a review of the
written record as untimely. It found that her request was received August 6, 2012, more than 30
days after the last OWCP decision of July 3, 2012. OWCP exercised its discretion by
considering appellant’s request and further denied it as the issue involved could be addressed
equally well pursuant to a valid request for reconsideration and submitting evidence not
previously considered to support her claim.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.9 The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.10 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.11
ANALYSIS -- ISSUE 1
OWCP accepted that on May 18, 2012 appellant sustained an insect bite in her upper
chest in the performance of duty but found that the medical evidence failed to establish that she
sustained any medical condition as a result of the accepted incident. The Board finds that
3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

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

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

11

James Mack, 43 ECAB 321 (1991).

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appellant failed to provide sufficient medical evidence demonstrating that she sustained any
condition causally related to the May 18, 2012 employment incident.
The only medical evidence appellant submitted to support her claim were May 24 and
June 11, 2012 treatment notes signed by a physician’s assistant. Section 8102(2) of FECA,
however, provides that 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. Because physician’s assistants are not “physicians” according
to FECA, their medical opinions regarding diagnosis and causal relationship are of no probative
medical value.12 These reports, therefore, are insufficient to establish appellant’s claim.
Because the record does not contain any medical evidence providing a firm medical
diagnosis or rationalized medical opinion establishing that appellant sustained any medical
condition as a result of the May 18, 2012 employment incident, the Board finds that appellant did
not meet her burden of proof to establish her claim. Appellant may submit that evidence to
OWCP along with a request for reconsideration.
Causal relationship is a medical issue that can only be shown by reasoned medical
opinion evidence that is supported by medical rationale.13 Appellant has not provided such
evidence in this case. Thus, the Board finds that she did not meet her burden of proof to
establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his or her claim before a representative of the
Secretary.14 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.15 A claimant is entitled to a hearing or
review of the written record as a matter of right only if the request is filed within the requisite 30
days as determined by postmark or other carrier’s date marking and before the claimant has
requested reconsideration.16 Although there is no right to a review of the written record or an
oral hearing if not requested within the 30-day time period, OWCP may within its discretionary
12

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).

13

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. §§ 10.616, 10.617.

16

Id. at § 10.616(a).

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powers grant or deny appellant’s request and must exercise its discretion.17 OWCP procedures
require that it exercise its discretion to grant or deny a hearing when the request is untimely or
made after reconsideration under section 8128(a).18
ANALYSIS -- ISSUE 2
Appellant requested a review of the written record in an undated appeal form that was
stamped as received by OWCP on August 6, 2012. OWCP determined that her request was
made more than 30 days after the date of issuance of OWCP’s July 3, 2012 decision.
Accordingly, it found that appellant’s request was untimely filed and she was not entitled to a
review of the written record as a matter of right. The Board finds that OWCP properly found
that appellant’s request was not timely filed.
The Board notes that the appeal form was not dated and the envelope in which the appeal
form was mailed was not included in the record. The Board has held that, if there is no
postmark, then other evidence of timeliness must be considered.19 In this case, the appeal form
requesting a review of the written record was stamped as received by OWCP on August 6, 2012.
Because appellant did not submit a timely request for review of the written record, her request
was untimely. OWCP, therefore, properly found that appellant was not entitled to an oral
hearing or examination of the written record as a matter of right.
On appeal, appellant alleges that she timely mailed her request for review of the written
record. She did not, however, provide any evidence to establish a timely date of mailing.
Although she contended that she mailed her request on August 3, 2012, appellant did not provide
any documentation, such as a return receipt, to support her contention.
OWCP also has the discretionary authority to grant a request for hearing or review of the
written record when a claimant is not entitled to such as a matter of right. In its August 27, 2012
decision, OWCP properly exercised its discretion by notifying appellant that it had considered
the matter in relation to the issue involved and indicated that additional argument and evidence
could be submitted with a request for reconsideration. The Board has held that the only
limitation on OWCP’s authority is reasonableness and an abuse of discretion is generally shown
through proof of manifest error, a clearly unreasonable exercise of judgment or actions taken
which are contrary to both logic and probable deductions from established facts.20 In this case,
the evidence of record does not indicate that OWCP abused its discretion in finding that
appellant could further pursue the matter through the reconsideration process. Consequently,
OWCP properly denied appellant’s request for a review of the written record.

17

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

18

See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).
19

Tonja M. Polly, Docket No. 04-1848 (issued December 2, 2004).

20

Samuel R. Johnson, 51 ECAB 612 (2000).

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CONCLUSION
The Board finds that appellant did not establish that she sustained any diagnosed
condition in the performance of duty on May 18, 2012. The Board further finds that OWCP
properly denied appellant’s request for a review of the written record pursuant to 5 U.S.C.
§ 8124(b)(1).
ORDER
IT IS HEREBY ORDERED THAT the August 27 and July 3, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 22, 2013
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
__________________________________________
C.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________

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

Docket No. 11-746
Issued: November 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 2, 2011 appellant filed a timely appeal of an October 15, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his
occupational disease claim. 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 case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed an
upper extremity condition in the performance of duty.
FACTUAL HISTORY
On August 25, 2010 appellant, then a 60-year-old mail carrier, filed an occupational
disease claim, alleging that he experienced pain in his hands and thumbs from performing
repetitive duties such as sorting letters and flats. He became aware of his condition on
1

5 U.S.C. §§ 8101-8193.

August 20, 2010 and realized it was causally related to his employment on August 21, 2010.
Appellant stopped work on August 24, 2010.
Appellant submitted an August 24, 2010 duty status report from a healthcare provider
whose signature was illegible. It listed clinical findings of bilateral thumb and wrist pain. The
healthcare provider diagnosed wrist and thumb tendinitis with possible left carpal tunnel
syndrome. Appellant was returned to work without restrictions. In an August 24, 2010 clinic
note, the healthcare provider diagnosed bilateral wrist and thumb sprain, bilateral wrist
tenosynovitis and possible left carpal tunnel syndrome. In an August 30, 2010 duty status report,
Dr. Michael A. Milek, a Board-certified orthopedic surgeon, noted clinical findings of
carpometacarpal (CMC) arthritis and indicated that the diagnoses was not due to injury.
Appellant also submitted an August 25, 2010 request for limited-duty work.
In an August 30, 2010 letter, OWCP advised appellant of the evidence needed to
establish his claim. It particularly requested that he submit a physician’s reasoned opinion
addressing the relationship of his claimed condition and specific work factors. In a letter of the
same date, OWCP requested the employing establishment address appellant’s allegations and
provide a description of his work duties.
Appellant submitted a September 27, 2010 statement explaining that on August 20, 2010
while on his mail route his thumbs started to hurt. He finished his mail route but still
experienced thumb pain and took Tylenol. On August 22, 2010 appellant’s thumb pain
worsened while casing mail and he informed his supervisor. In response to OWCP’s request for
information, he described casing mail for two hours a day, five days a week and delivering mail
for five and one half hours a day. Appellant noted that both casing and delivering mail involved
use of his hands, thumbs and wrist to go through mail. He noted his activities outside of work
included fishing, golfing and using a computer. Appellant reported no history of arthritis but a
prior history of tendinitis.
In an August 30, 2010 report, Dr. Milek treated appellant for problems related to the
carpometacarpal joints bilaterally. He stated that the condition was idiopathic in nature.
Dr. Milek noted that appellant worked as a letter carrier and developed sudden pain on
August 20, 2010 without any history of injury. He noted x-rays were essentially normal with no
carpometacarpal involvement. Examination was normal except for an abnormality of the
carpometacarpal joint which was tender over the radial thenar muscle area. Dr. Milek diagnosed
early carpometacarpal synovitis, etiology unclear. He injected xylocaine injections into the
thumbs. Dr. Milek returned appellant to regular duty on September 6, 2010. On September 22,
2010 he stated that, based on the available data, appellant’s use of his thumbs while at work
more likely than not contributed to or aggravated his CMC synovitis. Appellant also submitted
an article which described his duties as a letter carrier.
In a decision dated October 15, 2010, OWCP denied appellant’s claim on the grounds
that he failed to provide sufficient medical evidence.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim. When an employee claims that she sustained an injury in the
performance of duty, he must submit sufficient evidence to establish that he experienced a
specific event, incident or exposure occurring at the time, place and in the manner alleged.
Appellant must also establish that such event, incident or exposure caused an injury.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.3
ANALYSIS
It is not disputed that appellant’s duties as a letter carrier included performing repetitive
duties including sorting mail, lifting and carrying mail bundles and walking. It is also not
disputed that he has been diagnosed with bilateral carpometacarpal synovitis. However,
appellant has not submitted sufficient medical evidence to establish that his diagnosed bilateral
carpometacarpal synovitis was causally related to specific employment factors or conditions. On
August 30, 2010 OWCP advised him of the type of medical evidence needed to establish his
claim. Appellant did not submit a rationalized medical report from a physician addressing how
specific employment factors may have caused or aggravated his claimed conditions.
Appellant submitted an August 30, 2010 duty status report from Dr. Milek who noted
clinical findings of carpometacarpal arthritis and indicated that the diagnosis was not due to
injury. Similarly, in an August 30, 2010 report, Dr. Milek diagnosed early carpometacarpal
synovitis, etiology unclear. He opined that appellant’s condition was idiopathic in nature as
appellant reported developing pain suddenly on August 20, 2010 without any history of injury
2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
3

Solomon Polen, 51 ECAB 341 (2000).

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while performing his letter carrier duties. However, in a September 22, 2010 report, Dr. Milek
opined that, based on the available data, appellant’s use of his thumbs while at work “more likely
than not” contributed to and aggravated appellant’s medical condition of CMC synovitis. While
this report provides some support for causal relationship, he provided no medical reasoning to
support his opinion on causal relationship. The need for reasoning is particularly important since
Dr. Milek, in his August 30, 2010 reports, indicated that appellant’s condition was not due to an
injury and was of an unclear etiology. He did not indicate the reasons why he apparently
changed his opinion on causal relationship and he did not otherwise explain why particular work
factors would aggravate appellant’s CMC synovitis. Thus, Dr. Milek’s opinion provides
insufficient support for causal relationship.
Appellant also submitted an August 24, 2010 duty status report and an August 24, 2010
clinic note from a healthcare provider whose signature is illegible. However, these records
cannot be considered probative medical evidence in the absence of any indication that the person
who signed the documents is a physician.4 Thus, these documents are insufficient to establish
the claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.5 Causal relationship must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence, and OWCP
therefore properly denied appellant’s claim for compensation.6
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 did not meet his burden of proof to establish that his
claimed conditions were causally related to his employment.

4

See C.B., Docket No. 09-2027 (issued May 12, 2010) (a medical report may not be considered as probative
medical evidence if there is no indication that the person completing the report qualifies as a physician as defined in
5 U.S.C. § 8101(2) and reports lacking proper identification do not constitute probative medical evidence). See
5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also Charley V.B. Harley, 2 ECAB 208,
211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).
5

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

6

See 5 U.S.C. § 501.2(c). The Board’s jurisdiction is limited to the evidence that was before OWCP at the time it
issued its final decision; therefore, the Board is unable to review evidence submitted by appellant after the
October 29, 2008 OWCP decision.

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ORDER
IT IS HEREBY ORDERED THAT the October 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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