United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Augusta, GA, Employer
__________________________________________

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

Docket No. 06-1922
Issued: January 25, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 7, 2006 appellant filed an appeal of a decision of the Office of Workers’
Compensation Programs’ hearing representative dated June 30, 2006, denying his claim for a
traumatic injury as of March 22, 2005. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a traumatic injury on March 22, 2005 causally
related to his federal employment.
FACTUAL HISTORY
On March 30, 2005 appellant, then a 53-year-old clerk, filed a traumatic injury claim
alleging that on March 22, 2005 he sustained a strain of the right arm and shoulder while
performing his work duties.

In a letter dated April 22, 2005, the Office requested additional factual and medical
information.
In response appellant submitted medical records consisting of progress notes dated from
September 2001 until November 2001 indicating that appellant sought treatment during this time
period for right arm pain. These notes were unsigned but appear to have been prepared by
Dr. David Minter, a Board-certified orthopedic surgeon.
A progress note dated March 23, 2005, signed by Dr. Anna T. Mammen, Board-certified
in family medicine, provided the diagnosis of “right shoulder pain secondary to biceps tendinitis
versus supraspinatus tendinitis.” A medical record dated April 26, 2005 from the employee
health department gave the diagnosis of “right brachial radial nerve impingement” and was
signed, however, the signature is illegible and not identified.
By decision dated June 6, 2005, the Office found that the medical evidence did not
demonstrate that the claimed medical condition was related to appellant’s employment.
On May 7, 2006 appellant submitted a request for reconsideration. The Office had
received new medical evidence after the June 6, 2005 decision and granted a merit review. The
medical evidence included progress notes and physical therapy notes. The progress note dated
July 13, 2005 and signed by Dr. Minter, provided a diagnosis of “impingement syndrome from a
shoulder strain not improving.” The medical evidence also included physical therapy notes dated
June 15 and July 11, 2005 that noted shoulder pain but provided no diagnosis and were not
executed by a physician.
By decision dated June 30, 2006, the Office found the additional documentation
sufficient to proceed with a merit review of appellant’s claim but denied modification of the
June 6, 2005 decision stating that there was insufficient medical evidence to show that
appellant’s condition was causally related to the injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.3

1

5 U.S.C. §§ 8101-8193

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

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

2

In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident that is alleged to have occurred.4 The second
component is whether a personal injury was sustained in the performance of duty as alleged and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 Causal relationship is a
medical question that can generally be resolved only by rationalized medical opinion evidence.7
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on whether there is a causal relationship between the claimant’s diagnosed
condition and the established incident or factor of employment. The opinion must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the established incident or factor of employment.8
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.9
ANALYSIS
Appellant alleged that he sustained a right arm and shoulder injury on March 22, 2005
when he was removing dirty linen from the hamper. The Office accepted that the employment
incident occurred as alleged. The medical evidence presented, however, does not contain a
rationalized medical opinion establishing that the work-related incident caused appellant’s
diagnosed condition.

4

Elaine Pendleton, supra note 2.

5

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton supra note 2.

6

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

7

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, supra note 3.
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a reasonable degree
of medical certainty and must be supported by medical rationale, explaining the nature of the relationship between
the diagnosed condition and the claimant’s specific employment factors. Id.
8

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

9

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

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Dr. Minter’s reports fail to provide sufficient support to establish appellant’s claim. All
progress notes prior to March 22, 2005 are of no probative value as they are about previous
conditions and not related to the incident on that date. Dr. Minter’s letter on May 19, 2005
provided neither a diagnosis nor causal relationship. The July 13, 2005 progress note from
Dr. Minter provided a diagnosis but failed to discuss the employment incident or any causal
relation between the incident and the injury. While an opinion on causal relationship may not
require extensive explanation, this is not a case of clear-cut injury that requires no explanation.10
Appellant clearly had prior medical problems related to his right arm in 2001 and the medical
evidence from 2005 offers at least two diagnoses.
The remaining medical evidence of record is insufficient to establish appellant’s claim.
Dr. Mammen’s progress note on March 23, 2005 gave a diagnosis, however, it failed to discuss
the employment incident or any causal relation between appellant’s injury and incident. Notes
from June 15 and July 11, 2005 lack probative value on three counts, it lacks proper
identification in that it is unsigned, it lacks a diagnosis and it lacks any opinion on causal
relationship.
Appellant has expressed his belief that his right shoulder and arm condition resulted from
the March 22, 2005 employment incident. The Board has held that the mere fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.11 Neither the fact that a condition became apparent during a period
of employment nor the belief that the condition was caused or aggravated by employment factors
or incidents is sufficient to establish causal relationship.12
As there is no probative, rationalized medical evidence addressing how appellant’s
claimed back condition was caused or aggravated by his employment, appellant has not met his
burden of proof in establishing that he sustained an injury in the performance of duty causally
related to factors of his federal employment.
CONCLUSION
Appellant has not met his burden of proof to establish that he sustained a traumatic injury
to his right shoulder causally related to the March 22, 2005 employment incident.

10

Federal (FECA) Procedural Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805 (June 1995).

11

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

12

Roy L. Humphrey, 57 ECAB ___ (Docket No. 05-1928, issued November 23, 2005).

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ORDER
IT IS HEREBY ORDERED THAT the June 30, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 16-0412
Issued: September 25, 2017

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 January 4, 2016 appellant filed a timely appeal from a November 4, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from OWCP’s latest merit decision, dated November 28, 2014, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request
for an oral hearing.
1

Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated November 4, 2016, the Board exercised its discretion and denied the request as
appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case as
submitted on the record.
Order Denying Request for Oral Argument, Docket No. 16-0412 (issued
November 4, 2016).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 6, 2014 appellant, then a 51-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 2, 2014 she injured her left knee in the
performance of duty. She indicated that the injury or condition occurred from going up and
down stairs. As the employing establishment did not controvert continuation of pay (COP) or
challenge the merits of the case, payment of a limited amount of medical expenses was
administratively approved. Once appellant’s medical bills exceeded $1,500.00, OWCP reopened
the claim for consideration of the merits.
By decision dated November 28, 2014, OWCP denied the claim as fact of injury had not
been established. It found the evidence was insufficient to establish that the event(s) occurred as
described. OWCP also found that appellant did not submit any medical evidence to establish
that a diagnosed medical condition was causally related to the work injury or event.
In an appeal request form dated March 6, 2015, appellant requested a telephonic oral
hearing before a hearing representative of the Branch of Hearings and Review. On March 10,
2015 OWCP acknowledged receipt of the hearing request.
In a September 9, 2015 letter, OWCP’s Branch of Hearings and Review advised
appellant that a hearing was scheduled for October 15, 2015 at 11:15 a.m. Eastern Time.3 The
hearing notice included a toll-free number and pass code to enable access to the telephonic
hearing. OWCP advised appellant that postponement of the hearing would only be permitted
upon receipt of documentation showing her nonelective hospitalization or that the death of a
spouse, parent, or child prevented her attendance. It mailed the hearing notice to appellant’s
then-current address of record.4 However, appellant failed to participate in the scheduled
telephone hearing.
On November 4, 2015 a representative of the Branch of Hearings and Review issued a
decision finding that appellant abandoned her request for a hearing, which had been scheduled
for October 15, 2015. The hearing representative noted that appellant had been afforded 30-days
prior notice of the scheduled hearing, which she failed to attend. The hearing representative
further noted that there was no indication that appellant contacted the Branch of Hearings and
Review either before or after the scheduled hearing to explain her absence.
LEGAL PRECEDENT
A claimant dissatisfied with a decision on his or her claim is entitled, upon timely
request, to a hearing before an OWCP representative.5 Unless otherwise directed in writing by
3

As appellant resided in a different time zone (Denver, CO/Mountain Time), OWCP advised her to make certain
that her local time was adjusted accordingly.
4

After the November 28, 2014 decision was twice returned as undeliverable because appellant “moved [and] left
no [forwarding] address,” appellant advised OWCP of her change of address on February 13, 2015. By letter dated
February 20, 2015, OWCP acknowledged receipt of appellant’s change of address request.
5

5 U.S.C. § 8124(b); 20 C.F.R. § 10.616(a).

2

the claimant, the hearing representative will mail a notice of the time, place, and method of the
oral hearing to the claimant and any representative at least 30 days before the scheduled date.6 A
claimant who fails to appear at a scheduled hearing may request in writing within 10 days after
the date set for the hearing that another hearing be scheduled.7 Where good cause for failure to
appear is shown, another hearing will be scheduled and conducted by teleconference.8 The
“failure of the claimant to request another hearing within 10 days … shall constitute
abandonment of the request for a hearing.”9 With the exception of overpayment prerecoupment
hearings, where it has been determined that a claimant has abandoned his or her right to a
hearing, the Branch of Hearings and Review will issue a formal decision finding that the
claimant has abandoned his or her request for a hearing.10
ANALYSIS
On November 28, 2014 OWCP issued a final decision denying appellant’s traumatic
injury claim based upon her failure to establish fact of injury.11 The Branch of Hearings and
Review received a request for an oral hearing, which it acknowledged by letter dated
March 10, 2015. By September 9, 2015 letter, the Branch of Hearings and Review provided
appellant 30-days advanced written notice of her hearing, which was scheduled for
October 15, 2015. OWCP mailed the September 9, 2015 notice of hearing to appellant’s thencurrent address of record, and it has not since been returned as undeliverable.12 Absent evidence
to the contrary, a notice mailed in the ordinary course of business is presumed to have been
received by the intended recipient.13 This presumption is commonly referred to as the “mailbox
rule.”14 It arises when the record reflects that the notice was properly addressed and duly
mailed.15 The current record is devoid of evidence to rebut the presumption that appellant
received the Branch of Hearings and Review’s September 9, 2015 notice of hearing.

6

20 C.F.R. § 10.617(b).

7

Id. at § 10.622(f).

8

Id.

9

Id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
11

As previously noted, the November 28, 2014 merit decision is not currently before the Board. That decision
predated appellant’s January 4, 2016 application for review (AB-1) by more than 180 days, and therefore, OWCP’s
November 28, 2014 decision is not subject to Board review. See 20 C.F.R. § 501.3(e).
12

See supra note 4.

13

Kenneth E. Harris, 54 ECAB 502, 505 (2003).

14

Id.

15

Id.

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Appellant did not appear for the October 15, 2015 scheduled hearing, and there is no
indication that she requested postponement of the hearing.16 Moreover, she did not submit a
written request within the 10-day period following the scheduled hearing explaining her absence
and requesting that another hearing be scheduled.17 The regulations provide that where good
cause for failure to appear is shown, another hearing will be scheduled and conducted by
teleconference.18
On appeal appellant argued that she called in to the October 15, 2015 scheduled hearing
“a minute or [two] late,” and no one answered the telephone. However, she did not advise
OWCP in writing of these circumstances within 10 days after the date set for the hearing, and
request that another hearing be scheduled. Appellant also contended on appeal that OWCP owed
her back pay for the September 2, 2014 alleged injury. As noted, the Board lacks jurisdiction
over the merits of the case.19
The record establishes that the Branch of Hearings and Review provided appellant at
least 30-days advanced written notice of her scheduled hearing. Appellant did not request
postponement of the hearing, nor did she attend the October 15, 2015 scheduled hearing. Lastly,
appellant did not provide a written explanation for her absence within the 10-day period
following the scheduled hearing. Under the circumstances, the hearing representative properly
found that appellant abandoned her hearing request.
CONCLUSION
The Board finds that appellant abandoned her hearing request.

16

See 20 C.F.R. § 10.622(c).

17

Id. at § 10.622(f).

18

Id.

19

See supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the November 4, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2017
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Lanham, MD, Employer
__________________________________________

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

Docket No. 07-2158
Issued: May 22, 2008

Oral Argument April 2, 2008

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

JURISDICTION
On August 21, 2007 appellant filed a timely appeal from a July 24, 2007 Office of
Workers’ Compensation Programs’ decision terminating her compensation benefits. Under 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof in terminating appellant’s
compensation.
FACTUAL HISTORY
This is the third appeal before the Board. Appellant, a 36-year-old secretary, aggravated
a back injury while in the performance of duty on September 28, 1998. Her claim was accepted
for temporary aggravation of preexisting cervical and lumbar strains. The Office paid
appropriate compensation and placed her on the periodic rolls. By decision dated June 7, 1999,
the Office terminated appellant’s compensation benefits.

In a March 14, 2001 decision, the Board reversed the June 7, 1999 decision, finding that
the Office failed to meet its burden of proof in terminating appellant’s benefits. The Board
found a conflict in medical opinion between Dr. Hampton J. Jackson, Board-certified in
orthopedic surgery and appellant’s treating physician, and Dr. Harvinder S. Pabla, a Boardcertified orthopedic surgeon and the second opinion examiner. The facts of this case as set forth
in the Board’s decision are incorporated herein by reference.1
The Office referred the case to Dr. J. Michael Joly, a Board-certified orthopedic surgeon,
selected as the referee medical specialist. In a report dated November 29, 2001, he stated:
“I do not believe [appellant’s] current back and neck problem is affiliated with
moving file folders and office boxes on September 28, 1998.... [I]t is my firm
belief that timely and complete resolution of acute cervical, thoracic and lumbar
strain occurs within four to six months. Continued symptoms beyond six months,
in my opinion cannot be ascribed to low-energy events, such as lifting, and lowenergy motor vehicular accidents.”
Dr. Joly noted that both lumbar and cervical x-rays were normal. He stated that appellant
required no further treatment and would actually benefit from increased physical activity.
Dr. Joly opined that appellant should return to an eight-hour workday with restrictions of no
sitting or standing in one position for more than 30 minutes, with two to three walking breaks,
and no frequent lifting exceeding 10 pounds or occasional lifting exceeding 20 pounds.
By decision dated May 7, 2004, the Office terminated appellant’s compensation benefits,
finding that Dr. Joly’s impartial report represented the weight of the medical evidence. By
decision dated March 30, 2005, an Office hearing representative reversed the May 7, 2004
decision, finding that Dr. Joly did not consider all of the medical evidence pertaining to
appellant’s condition. The hearing representative remanded to the district office for referral to
Dr. Joly to review results of a magnetic resonance imaging (MRI) scan, cervical and lumbar
electromyelogram (EMG) and nerve conduction velocity (NCV) tests appellant underwent in
September 2001.
In a November 17, 2005 report, Dr. Joly reviewed the diagnostic studies and concluded
that they were normal. He also obtained three lumbosacral spine x-rays during his examination,
including a lateral flexion extension view, which were normal with no evidence of past trauma,
degeneration or instability. Dr. Joly stated:
“Presently, [appellant] is not suffering from any residuals of the work-related
injury from September 28, 1998. In my opinion, the patient is suffering from lack
of exercise and lack of gainful employment. Once again, [appellant] has
developed the dreaded illness behavior. The illness behavior develops as a result
of the patient not [being] encouraged [to] return back to work in a timely fashion
and as a result of [appellant] not being encouraged to engage in recreational

1

Docket No. 00-846 (issued March 14, 2001). The Board also denied appellant’s claim for benefits based on an
emotional condition.

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cardiovascular fitness exercise. I believe her employment-related conditions
ceased at the anniversary date of the injury, September 28, 1999.”
Dr. Joly recommended a second opinion EMG/NCS to evaluate appellant’s cervical and
lumbar nerve roots and her bilateral carpal tunnel syndrome. He reiterated his prior belief that
appellant was not totally disabled from all work solely due to the September 1998 work injury,
that she would benefit from exercise and a return to gainful employment with his previously
indicated restrictions.
In order to ascertain appellant’s condition, Dr. Joly referred her to undergo NVC, EMG
and carpal tunnel syndrome testing with Dr. Salim Y. Mansoor, Board-certified in physical
medicine and rehabilitation, which was scheduled for December 14, 2005. Appellant appeared at
the examination and underwent NVC testing; however, she refused EMG testing of the right
cervical paraspinal muscles, which rendered the EMG testing inconclusive.2
By decision dated March 31, 2006, the Office suspended appellant’s compensation on the
grounds that she obstructed a medical examination. By decision dated February 2, 2007, the
Board reversed the March 31, 2006 decision and reinstated her compensation benefits. The
Board directed the Office to refer appellant to a second impartial medical specialist to resolve the
conflict in medical evidence.3
The Office referred appellant to Dr. Kevin F. Hanley, a Board-certified orthopedic
surgeon, for an impartial medical examination. In a report dated April 17, 2007, he opined that
there were no residuals of the original work injury. Dr. Hanley stated that the MRI scan did not
suggest the basis for an ongoing problem and indicated that she had sustained a minor soft tissue
injury which should have resolved by this time. He advised that she had no symptoms, objective
findings or work restrictions stemming from the 1998 work injury.4
In a notice of proposed termination dated June 7, 2007, the Office, based on Dr. Hanley’s
report, found that the weight of the medical evidence demonstrated appellant was no longer
disabled due to her September 28, 1998 employment injury. The Office found that Dr. Hanley’s
referee opinion was sufficient to resolve the conflict in the medical evidence and constituted the
weight of the medical evidence. The Office allowed appellant 30 days to submit additional
evidence or legal argument in opposition to the proposed termination.
In a June 6, 2007 report, received by the Office on June 29, 2007, Dr. Jackson stated:
“[Appellant] returns today, admitting to significant worsening since we saw her
last. She says the paraspinal block given on April 27, 2007 worked well for ...
three or four days. Since then, she has gotten worse [which] is obvious from the

2

Dr. Monsoor noted complaints of mild weakness of the right hand grip, in addition to pain and swelling in the
right hand. He diagnosed mild right carpal tunnel syndrome, with no signs of denervation.
3

Docket No. 06-1801 (issued February 2, 2007).

4

Dr. Hanley also found that there was no evidence of carpal tunnel syndrome.

3

examination which shows increased spasm, but no progressive weakness in the
legs.”
Dr. Jackson diagnosed chronic spinal stenosis and lumbar disc syndrome.
By decision dated July 24, 2007, the Office terminated appellant’s compensation benefits.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened to order to justify termination or modification of compensation benefits.5
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.6 The Office’s burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.7
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee the Secretary shall appoint a
third physician who shall make an examination.8
ANALYSIS
In order to resolve the conflict in the medical evidence, the Office referred the case to a
referee medical specialist, Dr. Hanley, who stated in his April 17, 2007 report that appellant had
no symptoms, objective findings or work restrictions stemming from the September 28, 1998
work injury. He advised that she had sustained a minor soft tissue injury which should have
resolved and noted that MRI scan results did not indicate any basis for an ongoing problem.
Dr. Hanley opined that there were no residuals from the original lumbar and cervical injuries.
The Office relied on Dr. Hanley’s opinion in its July 24, 2007 decision, finding that appellant
had no residuals or continuing disability stemming from her September 1998 work injury and
was therefore not entitled to compensation or medical benefits.
The Board finds that Dr. Hanley’s referee opinion negated a causal relationship between
appellant’s condition and disability and constituted medical evidence sufficient to establish that
she no longer had any residuals from her accepted September 28, 1998 lumbar and cervical strain

5

Mohamed Yunis, 42 ECAB 325, 334 (1991).

6

Id.

7

See Mary Lou Barragy, 46 ECAB 781 (1995); see also Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

Regina T. Pellecchia, 53 ECAB 155 (2001).

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injuries.9 His opinion is sufficiently probative, rationalized, and based upon a proper factual
background. The Office properly accorded Dr. Hanley’s opinion the special weight of an
impartial medical examiner.10 Although appellant submitted the June 6, 2007 report from
Dr. Jackson, this report does not outweigh Dr. Hanley’s opinion nor negate the Office’s finding
that Dr. Hanley’s report represented the weight of the medical evidence. Dr. Jackson’s report
merely restated one side of the conflict which was resolved by Dr. Hanley’s referee medical
opinion. Accordingly, the Board finds that Dr. Hanley’s opinion constituted the weight of
medical opinion and supports the Office’s July 24, 2007 decision to terminate appellant’s
compensation and deny any entitlement to continuing disability based on the September 28, 1998
work injury.
CONCLUSION
The Board finds that the Office met its burden to terminate appellant’s compensation
benefits.

9

Appellant contends on appeal to the Board that termination of her compensation was improper because the
Office told her it would further develop the medical evidence pertaining to her right-sided carpal tunnel condition,
but failed to do so. However, a claim for carpal tunnel was ever accepted by the Office; nor did appellant submit
any evidence in support of such a claim. Dr. Joly noted in his November 17, 2005 report that appellant held her
right upper extremity in a flexed wrist posture, complaining of carpal tunnel syndrome, and referred her to
Dr. Monsoor for carpal tunnel testing in addition to the other diagnostic tests. While Dr. Monsoor did diagnose mild
right carpal tunnel syndrome, neither he nor Dr. Joly attributed this condition to factors of appellant’s federal
employment. In addition, Dr. Hanley indicated in his April 2007 report that there was no evidence of carpal tunnel
syndrome.
10

Gary R. Seiber, 46 ECAB 215 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the July 24, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 22, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
U.S. POSTAL SERVICE, MID-ISLAND
PROCESSING & DISTRIBUTION CENTER,
Islandia, NY, Employer
__________________________________________

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

Docket No. 20-1154
Issued: December 31, 2020

Case Submitted on the Record

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

JURISDICTION
On May 14, 2020 appellant filed a timely appeal from a May 4, 2020 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 his burden of proof to establish a diagnosed medical
condition causally related to the accepted March 16, 2020 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 23, 2020 appellant, then a 54-year-old tractor trailer operator, filed a traumatic
injury claim (Form CA-1) alleging that on March 16, 2020 he injured his neck and back in a motor
vehicle accident while in the performance of duty. He did not stop work.
In a March 19, 2020 postinjury evaluation form, Antonio Iyarsami, a physician assistant,
noted that appellant was injured on March 16, 2020 at work. He diagnosed back muscle spasm
and prescribed medication. In a duty status report (Form CA-17) of even date, Mr. Iyarsami
diagnosed neck pain and advised appellant to return to work on March 20, 2020. In a summary
report of even date, he again diagnosed back pain.
OWCP also received a copy of a position description for a tractor-trailer operator.
In a development letter dated April 1, 2020, OWCP informed appellant of the deficiencies
in his claim. It advised him of the type of factual and medical evidence necessary to establish his
claim, noting that the evidence of record did not contain a medical diagnosis. OWCP afforded
appellant 30 days to submit the necessary evidence. No further evidence was received.
By decision dated May 4, 2020, OWCP accepted that the March 16, 2020 employment
incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that
he had not submitted evidence containing a medical diagnosis in connection with the accepted
employment incident, noting that pain was a symptom, not a medical diagnosis. Consequently,
OWCP found that the requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,3 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.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. There
are two components involved in establishing fact of injury. First, the employee must submit
2

Supra note 1.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyet, 41 ECAB 992 (1990).

2

sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.6
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.7 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 specific employment factors
identified by the employee.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted March 16, 2020 employment incident.
In support of his claim, appellant submitted medical reports signed by a physician assistant.
The Board has held, however, that medical reports signed solely by a physician assistant are of no
probative value as physician assistants are not considered physicians as defined under FECA.9 As
such, this evidence is of no probative value and is insufficient to establish appellant’s claim.
As there is no evidence of record that establishes a medical diagnosis in connection with
the accepted March 16, 2020 employment incident, the Board finds that appellant has not met his
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted March 16, 2020 employment incident.

6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA). See also M.W.,
Docket No. 19-1667 (issued June 29, 2020) (physician assistants are not considered physicians under FECA).
9

3

ORDER
IT IS HEREBY ORDERED THAT the May 4, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 31, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 07-2404
Issued: March 17, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 24, 2007 appellant filed a timely appeal of a September 5, 2007 decision
of the Office of Workers’ Compensation Programs denying her emotional condition claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On May 2, 2007 appellant, a 58-year-old addiction therapist, filed an occupational
disease claim alleging that she experienced hallucinations, and developed a psychotic disorder
and depression due to factors of her federal employment. In a May 25, 2007 letter, the Office
informed appellant that the information submitted was insufficient to establish her claim. It

requested a detailed description of the conditions or incidents she believed caused or contributed
to her illness. The Office also advised her to submit a narrative medical report providing a
diagnosis and an opinion with an explanation as to how incidents of federal employment
contributed to the condition.
Appellant submitted unsigned notes dated March 7, 2007, reflecting her complaints of
headaches and hallucinations. She submitted March 10, 2007 nursing notes, bearing an illegible
signature, describing symptoms of increased depression. The record contains an undated
position description for an addiction therapist.
In a statement dated June 12, 2007, appellant identified conditions and incidents she
believed caused her emotional condition. She claimed that she experienced daily stress due to
the demands of her position at the busy outpatient substance abuse clinic. Her duties included
preparing four or five, three- to four-hour assessments per day. After teaching two groups
consisting of 30 to 60 people, she was required to enter notes on each individual. After
conducting individual interviews lasting 30 to 50 minutes, she was required to prepare
“biopsychosocials” on each client. She indicated that she often forgot paper work, misplaced
items and was constantly behind in her duties.
Appellant stated that working with a client population consisting of individuals who were
not only dealing with substance abuse issues, but who were also often violent and suicidal,
caused her substantial stress. She alleged that, because she received no training in her position,
she was confused and frustrated, while managing nearly 75 patients “with barely an
understanding of what [the] program was supposed to accomplish.” No staff debriefings were
held when clients committed suicide.
Appellant alleged that the employing establishment was a cold and uncaring place to
work. She felt lonely, isolated and rejected while doing her job. She noted that she was
“constantly under the gun” from her colleagues for missing a substantial amount of work due to a
surgical procedure in 2006. She stated that she had many altercations with Mr. Lane, a
coworker. On one occasion, he allegedly took appellant into her office, closed the door and
yelled at her for failing to provide a 15-minute break to her group, stating “The groups deserve[]
a 15-minute break, and if [you can’t] stick to the time frame, then we [will] take it up with
Mr. Field.” She indicated that “the lack of staff support, the ignorance of procedures, the time
consuming efforts to find places for these sick individuals, and not to mention all the ensuing,
daily, overwhelming pages of progress notes that had to be entered before going home may have
played a large part in my breakdown.”
Appellant submitted a September 22, 2005 progress note, signed by Willetta K. Jackson,
a nurse, indicating that appellant’s screen for post-traumatic stress disorder was negative. The
record contains an undated, unsigned partial progress note, reflecting a diagnosis of major
depressive disorder, recurrent moderate.
In a report dated March 8, 2007, Dr. Dominic J. Maxwell, Board-certified in psychiatry,
provided diagnoses of psychotic disorder, not otherwise specified, and depressive disorder. He
stated that appellant’s thought process was vague and somewhat circumstantial. Dr. Maxwell
noted no frank evidence of delusions or hallucinations. A March 30, 2004 intake note, prepared

2

by Amy D. Lott, reflects appellant’s report of “worsened depression.” September 19, 2005
emergency room triage notes, signed by Samie J. Pellegrine, a registered nurse, indicate that
appellant presented with head pain.
By decision dated September 5, 2007, the Office denied appellant’s claim. The Office
found that appellant had established compensable factors of employment under Cutler,1
including that her position involved a heavy workload in a busy workplace; new clients required
intake every day by hand and computer entry; appellant handled four to five assessments per day,
each lasting two to three hours; her case load included paranoid schizophrenics, who were often
violent and volatile; many clients were suicidal; and four clients committed suicide during her
employment. However, the claim was denied on the grounds that the medical evidence failed to
demonstrate that appellant’s claimed medical condition was causally related to the accepted
work-related events.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned work duties, or to a requirement imposed
by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act. On the other hand, the disability is not covered where it results from such
factors as an employee’s fear of a reduction-in-force, or her frustration from not being permitted
to work in a particular environment or to hold a particular position.
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of the Act. However, where the evidence demonstrates that the employing establishment either
erred or acted abusively in the administration of personnel matters, coverage may be afforded.2
Assignment of work is an administrative function of the employer,3 as is an investigation by the
employing establishment.4
Where the claimant alleges compensable factors of employment, she must substantiate
such allegations with probative and reliable evidence.5 The fact that a claimant has established
compensable factors of employment does not establish entitlement to compensation. The
employee must also submit rationalized medical opinion evidence from a physician establishing
that she has an emotional condition that is causally related to the compensable employment
1

Lillian Cutler, 28 ECAB 125 (1976).

2

Michael Thomas Plante, 44 ECAB 510 (1993).

3

James W. Griffin, 45 ECAB 774 (1994).

4

Jimmy B. Copeland, 43 ECAB 339 (1991).

5

Joel Parker, Sr., 43 ECAB 220 (1991).

3

factor.6 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific compensable employment factors identified by appellant.7
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of conditions of
her employment. The Office found that she established compensable factors of employment, but
denied her claim on the grounds that she failed to submit medical evidence establishing that the
claimed condition was causally related to accepted work factors.
The Board finds that appellant established compensable factors of employment to which
she attributed her emotional condition. It is not contested that appellant’s position involved a
heavy workload in a busy workplace. Her regularly assigned duties included preparing four or
five, three- to four-hour assessments per day; preparing notes on 30 to 60 clients after teaching
classes; and conducting individual interviews lasting 30 to 50 minutes. She worked with violent,
volatile individuals, many of whom were suicidal. In fact, several of her clients actually
committed suicide. Appellant stated that the above-mentioned work duties were responsible for
her psychotic disorder and depression. The Board finds that, under Cutler,8 these regular work
duties constitute compensable factors of employment.9
Appellant also attributed her emotional condition to the cold and uncaring environment in
the employing establishment. She stated that she felt lonely, isolated, and rejected while doing
her job, and noted that she was “constantly under the gun” from her colleagues, who complained
about her to her supervisors for missing a substantial amount of work. To the extent that
disputes and incidents alleged as constituting harassment and discrimination are established as
occurring and arising from appellant’s performance of her regular duties, these could constitute
employment factors.10 However, for harassment or discrimination to give rise to a compensable
disability under the Act, there must be evidence that harassment did in fact occur. Mere
perceptions of harassment are not compensable under the Act.11 Appellant has not provided any
evidence to substantiate harassment or discrimination, as required.12 Additionally, appellant’s
feelings of rejection and loneliness must be considered self-generated. Thus, the Board finds that
6

James W. Griffin, supra note 3.

7

Donna Faye Cardwell, 41 ECAB 730 (1990).

8

See Lillian Cutler, supra note 1.

9

See Larry J. Thomas, 44 ECAB 291, 300 (1992). (The Board found that the emotional reaction of a claimant
who came upon a suicide victim during the course of his assigned duties was compensable).
10

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

11

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

12

See Joel Parker, Sr., supra note 5 at 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).

4

appellant has not established a compensable employment factor under the Act with respect to
these above-described allegations.
Appellant alleged that, on one occasion, Mr. Lane yelled at her for failing to provide a
15-minute break to her group, stating “The groups deserve a 15-minute break, and if [you can’t]
stick to the time frame, then we [will] take it up with Mr. Field.” The Board has recognized the
compensability of verbal abuse in certain circumstances. This does not imply, however, that
every statement uttered in the workplace will give rise to coverage under the Act.13 Appellant
provided no evidence to corroborate when, where, or if the alleged statement was made.
However, assuming arguendo that the statement was actually made, the Board finds that it does
not constitute verbal abuse or harassment. While the statement may have engendered offensive
feelings, they would not have sufficiently affected the conditions of employment to constitute a
compensable factor.14 Appellant has not alleged, nor does the evidence reflect, that Mr. Lane
posed any threat to her. The Board finds that appellant’s emotional reaction to Mr. Lane’s
behavior must be considered self-generated, in that it resulted from her perceptions regarding his
actions.15 Appellant also stated that she had many other altercations with Mr. Lane. However,
she submitted no evidence to corroborate this allegation.
Appellant claimed that she was confused and frustrated due to lack of training; that no
staff debriefings were held when clients committed suicide; and that the staff was not supported
generally by management. The Board finds that appellant’s allegations in this regard relate to
administrative or personnel matters, unrelated to her regular or specially-assigned work duties
and do not fall within the coverage of the Act.16 Appellant has failed to establish that the
employing establishment erred or acted abusively in these administrative matters; she has not
provided any evidence substantiating her allegations. Additionally, the Board has held that an
employee’s dissatisfaction with perceived poor management constitutes frustration from not being
permitted to work in a particular environment and is therefore not compensable under the Act.17
Consequently, appellant has not established a compensable factor of employment with regard to
these matters.
Appellant’s burden of proof is not discharged by the fact that she has established
employment factors which may give rise to a compensable disability under the Act. To establish
her occupational disease claim, appellant must also submit rationalized medical evidence
establishing that her claimed conditions are causally related to the accepted compensable

13

See Mary A. Sisneros, 46 ECAB 155, 163-64 (1994); David W. Shirey, supra note 10.

14

See Denis M. Dupor, 51 ECAB 482, 486 (2000).

15

See David S. Lee, 56 ECAB 602 (2005).

16

See Lori A. Facey, 55 ECAB 217 (2004). See also Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath,
44 ECAB 555, 558 (1993); Apple Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 126667 (1988).
17

See Cyndia R. Harrill, 55 ECAB 522 (2004) (the Board noted that claimant’s reaction to perceived poor
management must be considered self-generated in that it resulted from her frustration in not being permitted to work
in a particular environment).

5

employment factors.18 While it is not disputed that appellant has an emotional condition, the
medical evidence does not adequately explain how the accepted employment factors caused or
contributed to her emotional condition.
In a March 8, 2007 report, Dr. Maxwell diagnosed psychotic disorder, not otherwise
specified, and depressive disorder. He stated that appellant’s thought process was vague and
somewhat circumstantial, and noted no frank evidence of delusions or hallucinations. While he
provided a definitive diagnosis, Dr. Maxwell offered no opinion as to the cause of appellant’s
diagnosed condition. He did not discuss appellant’s work duties or provide any rationale to
explain how or why the accepted employment factors caused or contributed to her emotional
condition. Therefore, his report is of diminished probative value, and is insufficient to meet
appellant’s burden of proof.19
The record does not contain an opinion by any qualified physician supporting appellant’s
contention that her emotional condition was causally related to factors of her federal
employment. The Board notes that appellant submitted notes and reports signed by a lay person
and several nurses. As these reports were not signed by individuals that qualify as physicians
under the Act, they do not constitute probative medical evidence.20 Similarly unsigned notes of
record, without proper identification, lack probative value.21
The Board finds that appellant has not submitted rationalized medical evidence
establishing that her claimed condition is causally related to the accepted compensable
employment factors.
CONCLUSION
Appellant has not met her burden of proof in establishing that she developed an
emotional condition in the performance of duty.

18

See William P. George, 43 ECAB 1159 (1992).

19

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006); Michael E. Smith, 50 ECAB
313 (1999). See also Jimmie H. Duckett, 52 ECAB 332, 336 (2001) (medical reports not containing rationale on
causal relation are of diminished probative value).
20

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). Section 8101(2) provides as
follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathis practitioners within the scope of their practice as defined by state law.” See Merton J. Sills, 39
ECAB 572, 575 (1988).
21

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the September 5, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 17, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.O., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Palatine, IL,
Employer
__________________________________________

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

Docket No. 11-562
Issued: November 10, 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 January 4, 2011 appellant, through her attorney, filed a timely appeal of a
December 8, 2010 Office of Workers’ Compensation Programs’ (OWCP) decision denying
reconsideration. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board will only consider the nonmerit issue.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Counsel did not request that the Board review the August 25, 2010 merit decision. See 20 C.F.R. § 501.3. In
the appeal letter dated December 20, 2010, counsel stated, “[W]e hereby appeal the decision of December 8, 2010.”
Appellant may request modification of the wage-earning capacity determination, supported by relevant evidence or
argument, at any time before OWCP.

FACTUAL HISTORY
On January 21, 2001 appellant, then a 35-year-old mail processor clerk, filed an
occupational disease claim alleging that she developed pain in her right shoulder due to repetitive
work on a machine. She stated that she developed a rotator cuff tear. OWCP accepted
appellant’s claim for right shoulder tendinitis on March 15, 2001. Appellant returned to lightduty work on March 17, 2001. She returned to full-duty on July 25, 2001. OWCP subsequently
accepted appellant’s claim for left shoulder tendinitis on July 21, 2004.
Appellant returned to work in a light-duty position in January 2007 answering the
telephone, traying return to sender mail and writing route numbers on parcels. Her physical
restrictions were no repetitive use of her hands, no lifting over the shoulder, no stooping,
bending, or climbing and no lifting or pushing over 10 pounds. Appellant accepted a new lightduty position on June 10, 2008 which entailed working as a city carrier driver, driving a carrier
to an appointed route and picking up daily eight hours a day. The physical restrictions included
no lifting, pushing or pulling over 10 pounds, no stooping, bending or climbing, seated work
only and no repetitive use of hands or lifting over the shoulder.
By decision dated March 4, 2009, OWCP reduced her compensation benefits based on
her actual earnings as a city carrier driver. It found that appellant began this position on June 10,
2008 and that her actual earnings fairly and reasonably represented her wage-earning capacity.
OWCP found that appellant had been employed in that position for more than two months and
that the work was considered suitable. It noted that appellant stopped work on December 23,
2008 due to a new injury filed under claim number xxxxxx948 and returned to restricted duty on
December 30, 2008.3
Appellant filed a claim for compensation commencing August 10 through 12, 2009. She
filed an Equal Employment Opportunity (EEO) complaint alleging discrimination based on
physical disability due to ongoing harassment since July 30, 2009, including being forced to
work outside of her restrictions on July 30, 2009 and on subsequent occasions. The employing
establishment responded on September 29, 2009 and stated that appellant was not required to
work outside her restrictions. The employer noted that she was instructed to sit in the parking lot
in a new van for up to one hour so that the carriers that had parked their private vehicles on the
lot could move out of the lot and so that no other employees could drive their vehicles on to the
lot while the parking lot was repaved. Appellant was in the vehicle from 3:30 until 4:00 when
her supervisor relieved her.
Dr. Robert J. Fink, a Board-certified orthopedic surgeon, examined appellant on
August 28, 2009 and noted her symptoms of pain in her shoulders. He found bilateral abduction
to 90 degrees with pain, positive impingement signs and weakness of external rotators in the
right left shoulders. Dr. Fink recommended magnetic resonance imaging (MRI) scans.
Appellant’s left shoulder MRI scan demonstrated tendinitis or bursitis in the shoulder. Her right

3

The record indicates that appellant has a separate claim number xxxxxx666 due to bilateral carpal tunnel
syndrome and left ganglion cyst. Appellant underwent left carpal tunnel release on March 2, 2006 and returned to
limited duty on April 5, 2006.

2

MRI scan demonstrated mild hypertrophic inferior spurring indenting the supraspinatus tendon
with early impingement. The test also revealed tendinitis or bursitis.
In a note dated October 16, 2009, Dr. Fink reviewed the MRI scans and diagnosed
tendinitis of the rotator cuff on the left and joint arthrosis with impingement and tendinitis of the
rotator cuff on the right. He found that appellant was totally disabled from October 28 through
November 30, 2009.
On November 24 and December 14, 2009 OWCP requested additional information
regarding appellant’s request for right shoulder surgery. It requested additional information from
appellant regarding her claimed disability on December 21, 2009.
In a letter dated January 28, 2010, OWCP noted receiving appellant’s claim for wage-loss
compensation for total disability beginning on August 10, 2009. It stated that appellant alleged
that her light-duty assignment became more demanding on August 10, 2009 and that her work
exceeded her restrictions. OWCP requested additional factual and medical evidence from
appellant supporting her claim.
Dr. Mangal Yeturu, completed a report on August 10, 2009 and stated that appellant was
unable to work from August 10 to 12, 2009. He indicated that appellant could return to work on
August 13, 2009 with no repetitive work involving the upper extremities. Dr. Yeturu stated, “I
believe that the neck pain and right shoulder pain is aggravated by the repetitive nature of the
work done on Saturday August 8, 2009.”
In a statement dated January 30, 2010, appellant stated that she worked outside her
restrictions on August 8, 2009 causing her shoulder injury to be aggravated. She stated that her
light-duty assignment as shuttle driver ended on December 22, 2008. Appellant stated that her
duties on August 8, 2009 did not comport with her restrictions.
Dr. Fink completed a note on February 1, 2010 and stated that appellant had undergone a
thorough course of nonoperative treatment for her right and left shoulders including physical
therapy and injections. He recommended surgery on the right shoulder for impingement
syndrome. Dr. Fink submitted a series of form reports supporting appellant’s ongoing disability
for work due to impingement of the rotator cuff.
By decision dated March 4, 2010, OWCP denied appellant’s claim for recurrence of
disability beginning August 8, 2009, finding that she had not submitted evidence warranting
modification of her wage-earning capacity determination.
On March 10, 2010 counsel requested an oral hearing before an OWCP hearing
representative.
OWCP’s medical adviser reviewed the record on April 7, 2010 and recommended
authorization of appellant’s right shoulder surgery. On April 12, 2010 Dr. Fink again stated that
conservative care had failed to improve appellant’s shoulder symptoms and requesting
authorization for arthroscopy with Neer acromioplasty first on her right and then her left
shoulder. He performed an open Neer acromioplasty of the right shoulder and arthroscopic
partial synovectomy of the right shoulder on May 21, 2010.
3

Counsel appeared at the oral hearing on June 9, 2010 and argued in the alternative, that
appellant had established a new injury, sustained a recurrence and that the original wage-earning
capacity determination was in error. In a statement dated June 14, 2010, appellant stated that she
was not able to work limited duty on August 10, 2009 as her upper extremity was painful and
paralyzed. She attributed her condition to the work she performed on August 9, 2009 which
consisted of repeatedly backing up a vehicle.
By decision dated August 25, 2010, an OWCP hearing representative found that appellant
had not met her burden of proof to modify the March 4, 2009 wage-earning determination. He
found that no physician had provided medical rationale or objective findings to support that there
was a material worsening of her condition so that she was no longer able to work limited duty as
of August 10, 2009.
Appellant requested reconsideration on August 28, 2010. She submitted work status
forms addressing her current condition dated September 8, October 13 and November 24, 2010
as well as progress notes dated August 4, September 8 and October 13, 2010. Appellant also
submitted notes from a physical therapist. She resubmitted her May 21, 2010 operative report.
OWCP entered appellant on the periodic rolls on October 4, 2010 authorizing
compensation at the augmented rate beginning September 25, 2010 and continuing in the amount
of $2,815.56 every 28 days.
By decision dated December 8, 2010, OWCP denied appellant’s request for
reconsideration on the grounds that the evidence submitted was not relevant to her claim and was
inconsequential to the issues in the August 25, 2010 decision.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.4
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.5 Section
10.608 of OWCP’s regulations provide that when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.6

4

5 U.S.C. §§ 8101-8193, 8128(a).

5

20 C.F.R. § 10.606.

6

Id. at § 10.608.

4

The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.7 The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case. While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.8
ANALYSIS
OWCP issued a wage-earning capacity determination on March 4, 2009 based on her
actual earnings as a city carrier driver. Appellant claimed additional periods of total disability
and OWCP denied modification of the March 4, 2009 decision on March 4, 2010. Appellant,
through her attorney, requested an oral hearing and by decision dated August 25, 2010 OWCP’s
hearing representative found that appellant had not submitted the necessary medical evidence to
establish a material change in the nature and extent of her injury-related condition or other basis
for modifying the wage-earning capacity determination. To reopen the case for merit review,
which in this case would evaluate modification of the wage-earning capacity determination,
appellant must meet one of the requirements of 10.606.(b)(2).9 In appellant’s request for
reconsideration, she submitted medical evidence bearing on her current condition which was for
the period on and after September 8, 2010. The form reports submitted did not mention her
disability beginning on or after August 8, 2009 and are not relevant to the issue of whether
appellant sustained a material change in her injury-related condition beginning on that date.
Appellant also submitted several physical therapy notes. A physical therapist’s reports are not
medical evidence as a physical therapist is not a physician under FECA.10 As such the physical
therapy notes are not relevant to the issue of whether appellant has submitted sufficient medical
evidence to establish a change in the nature and extent of her injury-related condition or whether
the original wage-earning capacity determination was in error. Appellant did not submit any
argument in support of her reconsideration request. The Board accordingly finds that appellant
did not meet any of the requirements of section 10.606(b)(2) and is not entitled to a merit review
of this case.
Appellant may request modification of the wage-earning capacity determination,
supported by relevant new evidence or argument, at any time before OWCP.
CONCLUSION
Appellant was not entitled to a merit review since she did not meet any of the
requirements of 20 C.F.R. § 10.606(b).

7

M.E., 58 ECAB 694 (2007).

8

Id.

9

L.C., 58 ECAB 535 (2007); Z.J., Docket No. 10-2285 (issued August 11, 2011).

10

5 U.S.C. §§ 8101-8193, 8101(2); Thomas R. Horsefall, 48 ECAB 180 (1996).

5

ORDER
IT IS HEREBY ORDERED THAT the December 8, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, DES MOINES POST
OFFICE, West Des Moines, IA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0995
Issued: March 12, 2020

Case Submitted on the Record

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

JURISDICTION

On April 16, 2018 appellant filed a timely appeal from a January 29, 2018 merit decision
and a March 23, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,898.43 for the period February 5 to March 4, 2017 for which she was without fault;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether it
properly denied appellant’s request for a prerecoupment hearing as untimely filed.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference.
On May 26, 1999 appellant, then a 40-year-old letter carrier, ﬁled an occupational disease
claim (Form CA-2) alleging that she sustained bilateral knee conditions due to walking and
standing while in the performance of duty. She did not immediately stop work. On July 19, 1999
OWCP accepted the claim for left knee patellofemoral stress syndrome. The record reflects that
OWCP paid appellant wage-loss compensation on the supplemental rolls commencing January 27,
2006 and on the periodic rolls commencing June 28, 2015.
Following vocational rehabilitation, by preliminary notice dated December 23, 2016,
OWCP proposed to reduce appellant’s compensation on the basis that she had the capacity to earn
wages as a call-out operator, Department of Labor, Dictionary of Occupational Titles, #237.367014, at the rate of $642.40 per week. It afforded appellant 30 days to respond. No response was
received.
In a February 2, 2017 decision, OWCP finalized the proposed reduction of compensation
dated December 23, 2016. It found that appellant had the capacity to earn wages as a call-out
operator at the rate of $642.40 per week. OWCP indicated that her compensation was being
reduced effective February 5, 2017.
On September 6, 2017 appellant elected Office of Personnel Management benefits.
In a November 28, 2017 preliminary determination, OWCP notified appellant that she was
overpaid benefits in the amount of $1,898.43 because she had received $3,254.01 for temporary
total disability for the period February 5 to March 4, 2017 after her compensation was reduced,
effective February 5, 2017, based upon her capacity to earn wages. It further found that appellant
was without fault in creating the overpayment. Appellant was advised that if she disagreed with
the fact or the amount of the overpayment, she had a right to submit new evidence in support of
her belief. Regarding actions appellant could take, she was advised of her rights, which included
a right to request a prerecoupment hearing before a representative of the Branch of Hearings and
Review. Appellant was advised that she should submit any supporting documentation along with
a completed OWCP-20 form within 30 days from the date of the preliminary decision.
OWCP provided a memorandum describing how the overpayment was calculated. It
explained that a compensation worksheet dated March 15, 2017 reflected that for the period
February 5 to March 4, 2017 appellant received $3,254.01. An April 21, 2017 worksheet revealed
that with a constructed earning capacity in the amount of $642.00 per week, after deductions for
insurance, appellant was entitled to $1,355.58 for the period February 5 to March 4, 2017.
On December 20, 2017 OWCP received appellant’s overpayment recovery questionnaire.
Appellant explained that she lived with her daughter and received social security benefits in the
amount of $1,704.90 and “Medicare” in the amount of $104.00. She listed her monthly expenses
2

Docket No. 14-1344 (issued December 4, 2014); Docket No. 12-1297 (issued June 18, 2013).

2

as: rent, $300.00; food, $200.00; clothing, $100.00; telephone, $55.00; gas, $80.00; and car
insurance, $171.00; credit card, $35.00; and storage, $81.00. Appellant further noted that she had
a total of $71.00 in checking and savings accounts.
On January 29, 2018 OWCP finalized the overpayment finding. It found that she was
without fault in the creation of the overpayment; however, the circumstances of her case did not
warrant waiver of recovery of the overpayment. OWCP demanded that appellant forward payment
for the full amount of $1,898.43 within 30 days, or contact OWCP to make appropriate payment
arrangements.
In a separate memorandum, OWCP concluded that the information provided was
insufficient to justify waiving recovery of the overpayment. It found that appellant had not
provided sufficient information to support a finding that the adjustment or recovery would defeat
the purpose of FECA or be against equity and good conscience.
On February 13, 2018 OWCP received appellant’s February 8, 2018 request for a
telephonic hearing. In a separate letter also dated February 8, 2018, she indicated that she was no
longer receiving social security benefits.
By decision dated March 23, 2018, OWCP denied appellant’s request for a prerecoupment
hearing, finding that a final decision concerning an overpayment was not subject to the hearing
provision of 5 U.S.C. § 8124(b).
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3 Section 8129(a) of FECA provides, in pertinent part, when an overpayment has been made
to an individual under this subchapter because of an error of fact or law, adjustment shall be made
under regulations prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.4
OWCP’s procedures provide that, once an overpayment is identified, it is responsible for
determining whether the claimant was with fault or without fault, issuing a preliminary finding,
and unless a hearing is requested, OWCP is responsible for issuing a final decision.5 These
procedures note that, if the claimant is determined to be without fault, a Form CA-2202
(preliminary finding notice) must be released (along with a Form OWCP-20) within 30 days of
the date the overpayment is identified. Both the reason that the overpayment occurred and the
reason for the finding of without fault must be clearly stated. A Form CA-2202 informs the
claimant of the right to submit evidence and the right to a prerecoupment hearing on the issues of:
(a) fact and amount of overpayment; and (b) waiver of recovery of the overpayment. Along with
3

5 U.S.C. § 8102.

4

Id. at § 8129(a).

5
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(a)(2) (May 2004).

3

the Form CA-2202, OWCP should provide a clearly written statement explaining how the
overpayment was created.6

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$1,898.43. The record supports, and appellant has not disputed, that she continued to receive
compensation after OWCP reduced her compensation, effective February 5, 2017, based upon her
capacity to earn wages in the constructed position of a call-out operator.
The record documents that appellant was paid $3,254.01 in compensation from February 5
to March 4, 2017 after her compensation was reduced. The evidence further shows that, due to
the February 2, 2017 wage-earning capacity decision, she was only entitled to receive $1,355.58
for this period. The difference between what she received and what she should have received
represents an overpayment of $1,898.43. The record therefore establishes that appellant received
an overpayment of compensation in the amount of $1,898.43.
The Board finds, however, that OWCP failed to follow its own procedures in issuing the
January 29, 2018 overpayment decision.7 As noted-above, OWCP’s procedures provide that a
Form CA-2202 preliminary finding notice must be released along with a Form OWCP-20
overpayment recovery questionnaire within 30 days of the date the overpayment is identified.8
OWCP finalized appellant’s loss of wage-earning capacity determination on
February 2, 2017. A March 15, 2017 worksheet reflected that appellant received $3,254.01 during
the period February 5 to March 4, 2017. An April 21 2017 worksheet reflected that based on the
LWEC determination appellant was only entitled to $1,355.58 during the period February 5 to
March 4, 2017, therefore an overpayment in the amount of $1,898.43 had been created. The Board
finds that these documents that OWCP generated in March and April 2017 establish that the
overpayment was identified by April 21, 2017. However, OWCP did not issue a preliminary
notice of overpayment until November 28, 2017, more than 30 days following April 21, 2017.
The Board thus finds that OWCP did not follow its own procedures as it did not issue a
preliminary notice of overpayment within 30 days of identifying the overpayment.9

6

Id.; see also P.H., Docket No. 18-1539 (issued August 2, 2019).

7

Id.

8

Supra note 5.

9

In light of the Board’s disposition in issue 1, issues 2, and 3 are rendered moot.

4

CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $1,898.43 for the period February 5 to
March 4, 2017.
ORDER

IT IS HEREBY ORDERED THAT the January 29, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 12, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Linthicum, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0617
Issued: October 3, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 22, 2019 appellant filed a timely appeal from a December 10, 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral carpal
tunnel syndrome causally related to the accepted factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

FACTUAL HISTORY
On February 13, 2018 appellant, then a 58-year-old postal clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome while in
the performance of duty. She attributed her condition to over 31 years of processing mail, which
included activities such as keying, pulling, lifting, and sorting mail and packages, as well as setting
up machines and equipment. Appellant first became aware of her condition and related it to factors
of her federal employment on September 30, 2017. She did not stop work, but she indicated that
her neurologist informed her that surgery was necessary.
A December 22, 2017 electrodiagnostic report noted moderately severe left median
neuropathy and mild-to-moderate right median neuropathy.
In a February 23, 2018 development letter, OWCP advised appellant of the deficiencies of
her claim. It requested additional factual and medical evidence and provided a questionnaire for
her completion. OWCP afforded appellant 30 days to respond. No evidence was received.
By decision dated April 4, 2018, OWCP denied appellant’s claim as she failed to establish
that the injury or event occurred as she alleged. It concluded, therefore, that the requirements had
not been met to establish an injury as defined by FECA.
On April 27, 2018 appellant requested an oral hearing before an OWCP hearing
representative. She also submitted an April 27, 2019 statement in response to OWCP’s
questionnaire. Appellant provided details regarding her employment duties over the past 31 years,
noting that repetitive hand movements were necessary. She noted that she was diagnosed with
carpal tunnel in 1991 and that the condition improved after she worked light duty for several
months. Appellant indicated that her carpal tunnel syndrome worsened during the past year and
that she underwent left carpal tunnel release on March 16, 2018. She submitted documentation
indicating that she was on leave from March 16 through May 9, 2018.
In a December 8, 2017 report, Jennifer A. Kerr-Logan, a certified physician assistant, noted
that appellant had numbness and tingling in her left hand, which begun approximately two months
ago with no specific accident or injury.
In a February 13, 2018 progress report, Dr. John Victor Ingari, a Board-certified orthopedic
surgeon, indicated that appellant had experienced many years of numbness and tingling in her left
hand, which had been effectively treated with bracing years ago. However, “this has gotten
significantly worse” in the past five to six months. Dr. Ingari noted that appellant currently had
bilateral hand pain, but worse on the left. After noting that appellant underwent electrodiagnostic
testing on December 22, 2017, he provided an impression of moderately severe left carpal tunnel
syndrome, with mild-to-moderate right carpal tunnel syndrome as well.
On March 16, 2018 Dr. Ingari performed a left carpal tunnel release. In March 16 and 28,
2018 work excuse notes, he let appellant off from work from March 16 through May 15, 2018. In
a March 28, 2018 postoperative report, Dr. Ingari indicated that, since appellant worked at the
employing establishment sorting and carrying heavy boxes on a regular basis, she would be kept
off work during the six-week postsurgical period.

2

On October 9, 2018 a telephonic hearing was held before an OWCP hearing representative.
At the hearing, appellant indicated that she had been treated for employment-related carpal tunnel
syndrome in 1991 and that her symptoms improved without surgery. She maintained that
performing her job duties for 31 years caused her condition to return. The hearing representative
advised appellant of the medical evidence needed to establish her claim and kept the record open
for 30 days for the submission of additional evidence.
In an October 12, 2018 report, Dr. Sujay Pathak, a Board-certified internist, opined that
appellant’s carpal tunnel syndrome was “the direct result of her work as a clerk for the [employing
establishment], and the repetitive hand motions required in her duties there.” He noted that
appellant had suffered from symptoms of carpal tunnel syndrome for years and that only recently
had it escalated to the point where she sought specialty care. Dr. Pathak noted that her
December 8, 2017 electromyogram (EMG) showed moderately severe left carpal tunnel syndrome
and mild-to-moderate right carpal tunnel syndrome and that she required and underwent a leftsided carpal tunnel release surgery on March 16, 2018 due to her symptoms. He opined that the
progressive nature of appellant’s symptoms with its nonresponse to conventional therapy was the
“direct result” of her occupation at the employing establishment.
By decision dated December 10, 2018, an OWCP hearing representative affirmed, as
modified, OWCP’s April 4, 2018 decision. The hearing representative modified the prior decision
to find that fact of injury had been established. However, the claim remained denied as the medica l
evidence was insufficient to establish causal relationship. The hearing representative found that
there was no rationalized medical opinion which established that the claimed condition was
causally related to appellant’s employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was 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.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or

3

A.F., Docket No. 18-1154 (issued January 17, 2019); C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine
Pendleton, 40 ECAB 1143 (1989).
4
A.F., id.; S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB
153 (1989).

3

condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant. 5
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence. 6 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 accepted employment incident. 7
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 incident identified by the employee. 8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish bilateral carpal
tunnel syndrome causally related to the accepted factors of her federal employment.
In his February 13, 2018 report, Dr. Ingari diagnosed moderately severe left carpal tunnel
and mild-to-moderate right carpal tunnel syndrome. He performed appellant’s March 16, 2018
left carpal tunnel release and provided a March 28, 2018 postsurgical report along with work
excuse notes. Dr. Ingari noted her employment-related duties and advised that she should not
perform such activities postsurgery. However, he did not offer an opinion as to whether appellant’s
bilateral carpal tunnel condition was employment related. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.9 Thus, this evidence is insufficient to establish
appellant’s claim.
In an October 12, 2018 report, Dr. Pathak opined that appellant’s carpal tunnel syndrome
was “the direct result of her work as a clerk for the [employing establishment] and the repetitive
hand motions required in her duties there.” He noted diagnostic findings of bilateral carpal tunnel
syndrome and related that she required and underwent a left-sided carpal tunnel release surgery on
March 16, 2018 due to her symptoms. Dr. Pathak, however, failed to offer medical rationale
explaining how appellant’s diagnosed bilateral carpal tunnel syndrome was caused or aggravated

5

See M.S., Docket No. 18-1554 (issued February 8, 2019).

6

C.B., Docket No. 18-0071 (issued May 13, 2019); Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58
ECAB 149, 155-56 (2006); D’Wayne Avila, 57 ECAB 642, 649 (2006).
7

C.B., id.; J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

8

R.Z., Docket No. 19-0408 (issued June 26, 2019); I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, supra
note 4.
9
P.S., Docket No. 18-1222 (issued January 8, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).

4

by her employment duties.10 A medical opinion must provide an explanation of how the specific
employment factors physiologically caused or aggravated the diagnosed conditions. 11 Without
medical reasoning explaining how the accepted employment activities caused or contributed to the
diagnosed condition, Dr. Pathak’s report is insufficient to establish the claim.
Appellant submitted a December 8, 2017 report from Ms. Kerr-Logan, a certified
physician assistant, who provided an assessment of numbness and tingling in left hand. The Board
has held that a medical report signed solely by a physician assistant is of no probative value as a
physician assistant is not considered a physician as defined under FECA and therefore is not
competent to provide a medical opinion. 12 Therefore, Ms. Kerr-Logan’s report has no probative
value.
Finally, appellant has submitted a December 22, 2017 electrodiagnostic report. The Board
has explained that diagnostic studies lack probative value as they do not address whether the
employment incident caused any of the diagnosed conditions. 13 This report is therefore also
insufficient to establish appellant’s claim.
As appellant has not submitted reasoned medical evidence explaining how her bilateral
carpal tunnel condition was causally related to her accepted employment factors, she has not met
her burden of proof.14
On appeal appellant contends that Dr. Pathak’s report establishes her claim. As previously
discussed, Dr. Pathak’s report is insufficient to establish her claim as he did not explain how her
accepted employment factors caused or contributed to her bilateral carpal tunnel condition.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral carpal
tunnel syndrome causally related to the accepted factors of her federal employment.
10

M.C., Docket No. 18-0361 (issued August 15, 2018); Calvin E. King, Jr., 51 ECAB 394 (2000); see also
Frederick E. Howard, Jr., 41 ECAB 843 (1990).
11

C.E., Docket No. 19-0192 (issued July 16, 2019); R.G., Docket No. 18-1778 (issued April 9, 2019).

12

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). T.K., Docket No. 19-0055 (issued
May 2, 2019) (physician assistants are not considered physicians under FECA); N.C., Docket No. 19-0299 (issued
June 24, 2019).
13

R.Z., supra note 8; J.S., Docket No. 17-1039 (issued October 6, 2017).

14

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

5

ORDER
IT IS HEREBY ORDERED THAT the December 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 3, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6