United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 09-287
Issued: August 12, 2009

Case Submitted on the Record

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

JURISDICTION
On November 10, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ schedule award decision dated September 15, 2008. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award in this case.
ISSUE
The issue is whether appellant sustained any permanent impairment causally related to
his accepted right hand fracture, thereby, entitling him to a schedule award under 5 U.S.C.
§ 8107.
FACTUAL HISTORY
Appellant, a 36-year-old outgoing clerk, injured his right hand on October 4, 1988 when
he struck it on a rail. The Office accepted the claim for a right hand fracture. On May 18, 2007
appellant filed a Form CA-7 claim for a schedule award based on a partial loss of use of his right
upper extremity.

In a report dated June 24, 2008, Dr. William K. Feinstein, a specialist in orthopedic
surgery, stated:
“[Appellant] does have a healed right fifth1 metacarpal fracture, but his symptoms
relate to the index finger. It is my medical opinion that his current symptoms are
not related to the injury from October 4, 1988. There is no loss of function due to
pain, limitation of motion, or muscle weakness or atrophy relative to the
October 4, 1988 injury. There is no loss of function due to other additional
fractures relative to [the] October 4, 1988 injury such as a amputation, causalgia,
or RSD [reflex sympathetic dystrophy]. [Appellant] does have pain and
discomfort, but it relates to the index finger which is away from the fracture on
the other side of the hand. He does have limited range of motion of the index
finger, but again the fracture is on the ulnar side of the hand -- [his] fifth
metacarpal. The index finger articulates with the second metacarpal. [Appellant]
may have some weakness in the hand, but again, I related it to the flexor tendinitis
in the index finger rather than the healed fifth metacarpal fracture from 1988.
Since it is now 20 years after the injury, it is difficult to determine the date of
maximum medical improvement, but I would feel safe estimating the date of
[maximum medical improvement] as one year after the injury, November 4, 1988.
[Appellant] might benefit from treatment of his flexor tendinitis in the index
finger and this may improve his symptoms, but I do not relate it to the injury of
October 4, 1988. [Appellant] does not have any work restrictions relative to the
October 4, 1988 hand injury. There is no permanent partial disability relative to
the October 4, 1988 injury.”
In a report dated September 3, 2008, an Office medical adviser reviewed Dr. Feinstein’s
opinion and agreed with his finding of a zero percent impairment of the right upper extremity
pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (fifth edition) [the A.M.A., Guides]. The Office medical adviser took into account
Dr. Feinstein’s finding of a healed fractured fourth metacarpal with no gross deformity or carpal
tunnel syndrome. He agreed that appellant should not be awarded any impairment for his
accepted condition. The Office medical adviser noted that Dr. Feinstein found that appellant had
some weakness in the hand, but noted that this stemmed from tendinitis in the index finger rather
than the healed fifth metacarpal fracture stemming from the 1988 work injury.
By decision dated September 15, 2008, the Office denied appellant’s claim for a schedule
award. It found that the medical evidence of record did not support that he sustained any
employment-related permanent impairment.

1

Dr. Feinstein incorrectly stated that appellant’s work-related right hand injury was to his fifth metacarpal; the
actual injury was to the fourth metacarpal.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.3 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule
losses.4 The claimant has the burden of proving that the condition for which a schedule award is
sought is causally related to his or her employment.5
ANALYSIS
The Office medical adviser found that appellant had no permanent impairment of the
right upper extremity based on Dr. Feinstein’s examination of the fourth metacarpal fracture.
Dr. Feinstein advised that the fracture had fully healed with no residual weakness or deformity.
While Dr. Feinstein did note some tendinitis in appellant’s index finger, or second metacarpal, he
indicated that this condition was not related to the accepted injury.6 The Office medical adviser
properly determined that there were not sufficient physical findings stemming from appellant’s
accepted right hand fracture to warrant an impairment rating under the A.M.A., Guides.
The Board finds that the Office’s September 15, 2008 decision finding that appellant has
a zero percent impairment of his right upper extremity was properly based on the available
evidence of record. Appellant has failed to provide probative medical evidence that he sustained
permanent impairment from his accepted right hand fracture. For this reason, he is not entitled to
a schedule award.
CONCLUSION
The Board finds that appellant has not sustained any permanent impairment due to his
right fourth finger fracture.

2

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

3

Id. at § 8107(c)(19).

4

20 C.F.R. § 10.404.

5

Veronica Williams, 56 ECAB 367, 370 (2005).

6

The Board notes that none of the contemporaneous medical reports indicated that appellant had any other
condition in his right hand at the time of his 1988 fourth metacarpal fracture.

3

ORDER
IT IS HEREBY ORDERED THAT the September 15, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: August 12, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, INDIAN HEALTH SERVICE,
Phoenix, AZ, Employer
__________________________________________

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

Docket No. 18-0573
Issued: November 5, 2018

Case Submitted on the Record

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

JURISDICTION
On January 23, 2018 appellant filed a timely appeal from a September 27, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for
authorization of left shoulder surgery.
FACTUAL HISTORY
On March 30, 2016 appellant, then a 60-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on March 22, 2016 she sustained a left shoulder injury at work
1

5 U.S.C. § 8101 et seq.

when she was helping a patient from his bed when he began to fall, causing her to lean into him
with her left shoulder to prevent the fall. She stopped work the next day on March 23, 2016.
Appellant did not return to work as the employing establishment could not accommodate her
physician’s work restrictions. By decision dated April 3, 2016, OWCP accepted the claim for
inferior subluxation of the left shoulder humerus.2 It paid appellant wage-loss compensation and
medical benefits on the supplemental rolls as of May 7, 2016.
Appellant sought treatment with Dr. Evan Lederman, a Board-certified orthopedic
surgeon. In a July 11, 2016 medical report, Dr. Lederman reported that a magnetic resonance
imaging (MRI) scan of appellant’s left shoulder revealed advanced glenohumeral joint
degenerative arthritis, large humeral osteophyte, degenerative circumferential labral pathology
consistent with degenerative arthritis, a fairly large posterosuperior paralabral cyst, and tendinosis
of the rotator cuff. He diagnosed left shoulder strain during the course of employment, underlying
advanced glenohumeral joint degenerative arthritis, degenerative labrum, and nonacute paralabral
cyst. Dr. Lederman reported that appellant had not improved despite treatment and was
experiencing worsening mechanical pain which would suggest some damage as a result of her
injury, despite her underlying degenerative arthritis. He suspected that most of her pain was related
to the labral pathology and large paralabral cyst. Dr. Lederman further speculated that she either
worsened her articular cartilage damage or worsened her labral tear as a result of her injury, which
fit the mechanism of injury.
In an August 29, 2016 report, Dr. Lederman diagnosed left shoulder advanced
glenohumeral arthritis and labral tear. He noted that appellant was not a candidate for arthroscopic
surgery due to the severe degenerative arthritis. However, if surgery became necessary, appellant
would require a shoulder replacement. Dr. Lederman noted that the consideration was whether
the shoulder replacement was the responsibility of the industrial carrier or a preexisting condition.
He reported that appellant appeared to have aggravated a preexisting condition that was
unresponsive to conservative care and therefore, would qualify as a permanent aggravation.
Dr. Lederman recommended that appellant be referred for another medical evaluation to determine
causation and whether further total shoulder arthroplasty due to severe degenerative arthritis
should be performed.
On September 15, 2016 OWCP received a request for authorization of left shoulder
replacement surgery.
On January 18, 2017 OWCP referred appellant, the case file, a statement of accepted facts
(SOAF), and a series of questions to Dr. Michael A. Steingart, a Board-certified orthopedic
surgeon, for a second opinion examination as to the status of appellant’s employment-related
injury and need for the requested surgery. The accompanying SOAF noted the accepted condition
of inferior subluxation of the left humerus as causally related to the March 22, 2016 work injury.
It further noted that the preexisting or concurrent medical conditions of advanced left shoulder
glenohumeral osteoarthritis and labral tear. OWCP requested that Dr. Steingart determine all
diagnoses related to the March 22, 2016 employment injury, whether the recommended left total

2
A March 28, 2016 x-ray of the left shoulder revealed inferior subluxation of the left humeral head with underlying
degenerative joint disease.

2

shoulder replacement surgery was medically necessary and related to the accepted injury, and the
nature and extent of all residuals from the employment injury.
In a February 10, 2017 medical report, Dr. Steingart provided findings based upon
appellant’s physical examination. He discussed her medical history and past diagnostic reports.
With respect to her diagnosis, Dr. Steingart reported that appellant did not sustain a work-related
injury on March 22, 2016 when protecting a patient from falling by leaning into the patient,
because this would not have caused dislocation or subluxation of the left shoulder. He reported
that appellant’s chronic degenerative change of the left shoulder was ongoing and she had issues
prior to the work-related injury. Dr. Steingart further reported that the record supported that she
was able to carry fish with her left hand singly, which was something she said she would not be
able to do because of her chronic left shoulder pain. He opined that appellant did not injure herself
when trying to prevent a patient from falling3 and her diagnosis was not related to her work injury.
Dr. Steingart reported that appellant’s conditions were preexisting which were aggravated by her
fishing trip, reiterating that she never sustained a traumatic injury on March 22, 2016. He
concluded that she was a candidate for a left total shoulder replacement, but that it was unrelated
to any work injury.
By decision dated April 5, 2017, OWCP denied appellant’s request for authorization of left
shoulder surgery finding that the evidence of record did not establish that it was medically
necessary to address the effects of her work-related injury.
On May 1, 2017 appellant requested an oral hearing before an OWCP hearing
representative. In a May 3, 2017 statement, she described the March 22, 2016 incident when she
prevented a 200-pound patient from falling. Appellant provided a history of her medical treatment
and reported that she held fish during a trip to Alaska just long enough to have her photograph
taken, and was in severe pain while doing so.
In an April 3, 2017 medical report, Dr. Lederman noted review of Dr. Steingart’s second
opinion report which was provided to him by appellant.4 He related that he disagreed with most
of Dr. Steingart’s conclusions, although he agreed with his opinion that appellant had degenerative
arthritis of the left shoulder prior to her injury. Dr. Lederman also agreed that she sustained an
injury with a significant increase in pain of her left shoulder, which would be expected to be a
temporary aggravation. However, as one year had passed, he reported that her injury would now
qualify as a permanent aggravation of her underlying degenerative arthritis. Dr. Lederman opined
that appellant was a candidate for left total shoulder arthroplasty which was related to her work
injury with an unfortunate permanent aggravation of her underlying preexisting condition.
In a May 4, 2017 report, Dr. Susan Del Sordi-Staats, an osteopathic physician, reported
that she had been appellant’s primary care physician for over 10 years. She noted that, despite
3
Dr. Steingart was provided a questionnaire which noted that appellant had taken a vacation to Alaska and posted
pictures of herself fishing on July 16, 2016, holding up two fish with one in each arm, one weighing 20 pounds and
one weighing 30 pounds, which exceeded her lifting restrictions. OWCP reported that this was based on a statement
provided by the employing establishment.
4
Dr. Lederman noted that, on March 24, 2017, OWCP requested he comment and review on Dr. Steingart’s report,
but failed to provide him with the second opinion.

3

chronic shoulder changes seen on a left shoulder MRI scan in 2005, appellant was not treated for
any shoulder complaints as it was not an active issue for her until March 23, 2016, when she
presented to her office and an x-ray of her left shoulder revealed dislocation. Appellant was
referred to an orthopedist and an updated MRI scan of the left shoulder revealed underlying severe
degenerative changes, a ganglion cyst, and labral/rotator cuff injury. Dr. Sordi-Staats opined that
the March 22, 2016 incident clearly triggered appellant’s situation requiring surgery. She noted
that the fact that appellant had underlying chronic degenerative shoulder issues did not change the
fact that her work activity induced an injury to that shoulder. Dr. Sordi-Staats explained that the
mechanism by which she helped her patient from falling would explain a dislocation, and the
complaint of pain and limitation in movement that followed the incident were not present in that
shoulder prior to the work injury. She reported that any activity, such as lifting a fish on a vacation,
were activities that she had performed in the past and did not change the mechanism of injury at
work that directly led to her need for a shoulder replacement surgery. Dr. Sordi-Staats requested
appellant’s surgery be approved by OWCP.
By decision dated September 27, 2017, an OWCP hearing representative affirmed the
April 5, 2017 decision denying appellant’s request for authorization of left shoulder surgery. It
noted that the weight of the medical evidence rested with Dr. Steingart’s opinion that appellant’s
left shoulder condition was preexisting.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician who OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.5 In interpreting section 8103(a), the Board
has recognized that OWCP has broad discretion in approving services provided under FECA to
ensure that an employee recovers from his or her injury to the fullest extent possible in the shortest
amount of time.6 The Board therefore has broad administrative discretion in choosing means to
achieve this goal. The only limitation on OWCP’s authority is that of reasonableness.7
In order to be entitled to reimbursement for medical expenses, a claimant must establish
that the expenditures were incurred for treatment of the effects of an employment-related injury
by submitting rationalized medical evidence that supports such a connection and demonstrates that
the treatment is necessary and reasonable.8 While OWCP is obligated to pay for treatment of
employment-related conditions, the employee has the burden of proof to establish that the
expenditure is incurred for treatment of the effects of an employment-related injury or condition.9
Proof of causal relationship in a case such as this must include supporting rationalized medical
5

5 U.S.C. § 8103(a).

6

See Dale E. Jones, 48 ECAB 648, 649 (1997).

7

Dr. Mira R. Adams, 48 ECAB 504 (1997).

8

See Debra S. King, 44 ECAB 203 (1992).

9

Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

4

evidence.10 In order for a surgical procedure to be authorized, a claimant must submit evidence to
show that the surgery is for a condition causally related to an employment injury and that it is
medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.11
ANALYSIS
The Board finds that this case is not in posture for decision.12
The Board notes that OWCP accepted the condition of inferior subluxation of left humerus.
On January 18, 2017 OWCP referred appellant, the case file, the SOAF, and a series of questions
to Dr. Steingart, serving as a second opinion physician, for review and determination regarding
appellant’s diagnoses related to the accepted March 22, 2016 employment injury and the need for
the requested surgery. The Board finds, however, that Dr. Steingart’s opinion was not sufficiently
rationalized because it was based on an inaccurate background and accordingly, failed to resolve
whether appellant’s requested surgery should be authorized as related to the March 22, 2016
employment injury.13
In his February 10, 2017 medical report, Dr. Steingart opined that the accepted condition
of inferior subluxation of the left humerus was not related to the March 22, 2016 work injury, and
that she sustained no injury to her left shoulder at work on that date.14 OWCP procedures indicate
that, when an OWCP medical adviser, second opinion specialist, or referee physician renders a
medical opinion based on a SOAF which is incomplete or inaccurate, or does not use the SOAF
as the framework in forming his or her opinion, the probative value of the opinion is seriously
diminished or negated altogether.15 Dr. Steinhart’s opinion that the left shoulder surgery should
not be authorized because appellant’s inferior subluxation of the left humerus was not caused by
the March 22, 2016 employment injury was outside of the SOAF and was therefore based on an
inaccurate factual history.16 Accordingly, the Board finds that Dr. Steingart’s opinion is of limited
or no probative value.

10

M.B., 58 ECAB 588 (2007).

11

R.C., 58 ECAB 238 (2006).

12

T.H., Docket No. 17-0025 (issued July 6, 2017).

13

See D.B., Docket No. 14-0830 (issued August 22, 2014).

14

L.J., Docket No. 14-1682 (issued December 11, 2015).

15
Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.5
(September 2009). See also A.C., Docket No. 07-2423 (issued May 15, 2008). The Board held that the SOAF did not
accurately reflect the conditions OWCP accepted as employment related and, therefore, the physician’s report was of
diminished probative value, and insufficient to resolve the conflict in medical opinion.
16
V.A., Docket No. 14-722 (issued May 8, 2014). See also FECA Procedure Manual, Part 3 -- Medical,
Requirements for Medical Reports, Chapter 3.600.3 (October 1990).

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OWCP shares responsibility to see that justice is done.17 Once OWCP undertakes to
develop the medical evidence further, it has the responsibility to do so in a proper manner. The
Board has previously explained that as OWCP undertook development of the medical evidence,
but failed to obtain an opinion that rationally resolved whether appellant’s requested left shoulder
surgery should be authorized, OWCP has an obligation to pursue the issue further.18
OWCP shall refer appellant, together with a SOAF and her medical record, to a second
opinion physician for a rationalized medical opinion as to whether appellant’s left shoulder surgery
should be authorized.19 After this and such further development as deemed necessary, OWCP
shall issue an appropriate de novo decision on appellant’s request for left shoulder surgery.
CONCLUSION
The Board finds that this case is not in posture for decision

17

See E.W., Docket No. 17-0707 (issued September 18, 2017).

18

Supra note 13.

19

R.R., Docket No. 15-1055 (issued December 16, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the September 27, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: November 5, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tulsa, OK, Employer
__________________________________________

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Appearances:
C.B. Weiser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-947
Issued: September 11, 2007

Case Submitted on the Record

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

JURISDICTION
On February 21, 2007 appellant filed a timely appeal from a November 16, 2006
nonmerit decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration and a September 7, 2006 decision denying her emotional condition claim. Under
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over both the merit and nonmerit
issues of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty causally related to her federal
employment; and (2) whether the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128.
FACTUAL HISTORY
On July 27, 2006 appellant, then a 55-year-old supervisor, filed a traumatic injury claim
alleging that she sustained psychological trauma on July 10, 2006 when she was attacked by

Barry Burke, a supervisor, and John Ferrante, the station manager. She alleged that management
created an unsafe and hostile environment. Appellant stopped work on July 10, 2006. It is
unclear whether she returned to work.
On August 7, 2006 the Office notified appellant that the evidence submitted was not
sufficient to establish her claim. It requested a detailed description as to how her injury
occurred; a statement from any persons who witnessed her injury or had immediate knowledge
of it or other documentation which supported her claim; a statement regarding the immediate
effects of the injury and what she did thereafter; a statement of whether she sustained any other
injury on or off-duty; and a medical report which described symptoms, treatment and an
explanation as to how the alleged work incidents or exposure contributed to her condition.
Appellant responded with a detailed account of the July 10, 2006 incident. She stated
that she was attending a staff meeting in Mr. Ferrante’s office when Mr. Burke began to scream
and yell at her in a threatening voice. Appellant alleged that Mr. Burke threw an overtime
tracking report at her and that it hit her left hand. She feared for her life due to Mr. Burke’s
history of irate and uncontrollable behavior in staff meetings and on the workroom floor.
Appellant noted that Mr. Burke’s behavior had been reported to the Crisis Intervention Team but
nothing was done. She got up to leave the room and told Mr. Ferrante that she was calling
Richard Schweitzer with the Crisis Intervention Team. Appellant indicated that Mr. Ferrante did
not address Mr. Burke’s behavior or stop him from attacking her. When she left, Mr. Ferrante
came out of his office and yelled at her to hang up the telephone and to come back into his
office. Appellant alleged that Mr. Ferrante’s yelling created a hostile work environment. She
alleged that she was so fearful and scared that she could not move. Appellant stated that she felt
she had no choice but to return to her manager’s office. She stated that Dale Wells, a clerk, came
to see if she was okay.
Appellant alleged that she was not properly trained and described situations with
Mr. Ferrante concerning the correction of clock ring errors and counting mail. She alleged that
Mr. Burke would not give her any assistance in running her zone. Appellant stated that she was
blamed for causing the carriers in Zone 12 to work after dark. She indicated that she was
providing witness statements from Mr. Wells and Kathy Davis and Tiffany O’Donnell,
coworkers regarding Mr. Burke’s behavior towards women at the station. Statements from
Mr. Wells and Ms. O’Donnell were not of record. In an undated statement Ms. Davis generally
discussed Mr. Burke’s behavior. She noted that during an April 12, 2006 meeting with
Bill Schemleck, the station manager, and Ms. O’Donnell, Mr. Schemleck stated that Mr. Burke
“has a problem with women.”
In a September 6, 2006 report, Dr. Mark A. Kelley, a Board-certified psychiatrist, noted
the history of injury and advised that appellant’s acute stress disorder had turned into a posttraumatic stress disorder. He opined that appellant was totally disabled from any employment
activity.
In an August 2, 2006 statement, Greg Rowland, manager, controverted appellant’s claim.
He indicated that an enclosed statement from Mr. Ferrante provided a different account of the
July 10, 2006 events. Mr. Ferrante’s statement was not of record.

2

By decision dated September 7, 2006, the Office denied appellant’s claim. It found that
the evidence submitted was insufficient to establish that the event(s) occurred as alleged and that
there was no medical evidence that provides a diagnosis which could be connected to the
claimed events.
On September 11, 2006 appellant requested reconsideration and indicated that she was
submitting relevant evidence. She resubmitted her response to the Office’s questions
Dr. Kelley’s September 6, 2006 report and Ms. Davis’ statement. Appellant also submitted new
evidence, consisting of undated statements from Mr. Wells and Ms. O’Donnell.
In a September 21, 2006 statement, Mr. Ferrante disputed appellant’s allegations and
account of the events of July 10, 2006.
By decision dated November 16, 2006, the Office denied reconsideration. It found that
appellant’s letter neither raised substantive legal questions nor included new and relevant
evidence to warrant a review of its prior decision. On appeal, her attorney argued that appellant
established a compensable factor of employment.
LEGAL PRECEDENT -- ISSUE 1
To establish a claim that an emotional condition arose in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that he or she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to the condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to the emotional condition.1
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 illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to his regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Federal Employees’ Compensation Act. The same result is reached when the
emotional disability resulted from the employee’s emotional reaction to the nature of his work or
his fear and anxiety regarding his ability to carry out his work duties.2 By contrast, there are
disabilities having some kind of causal connection with the employment that are not covered
under workers’ compensation law because they are not found to have arisen out of employment,
such as when disability results from an employee’s fear of reduction-in-force or frustration from
not being permitted to work in a particular environment or hold a particular position.3 An
employee’s emotional reaction to an administrative or personnel matter is generally not covered
1

D.L., 58 ECAB ___ (Docket No. 06-2018, issued December 12, 2006).

2

Ronald J. Jablanski, 56 ECAB ____ (Docket No. 05-482, issued July 13, 2005); Lillian Cutler, 28 ECAB 125,
129 (1976).
3

Id.

3

by workers’ compensation. The Board has held, however, that error or abuse by the employing
establishment in an administrative or personnel matter may afford coverage.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered. If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.5
As a rule, allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim but rather must be corroborated by the evidence.6 Mere
perceptions and feelings of harassment or discrimination will not support an award of
compensation. The claimant must substantiate such allegations with probative and reliable
evidence.7 The primary reason for requiring factual evidence from the claimant in support of her
allegations of stress in the workplace is to establish a basis in fact for the contentions made, as
opposed to mere perceptions of the claimant, which in turn may be fully examined and evaluated
by the Office and the Board.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty. She related her stress disorder to
harassment by her supervisors on July 10, 2006 and to general job stress.
Appellant’s general allegations of job stress are insufficient to establish a compensable
employment factor. She cited an example of not being properly trained with respect to certain
4

Margreate Lublin, 44 ECAB 945 (1993). See generally Thomas D. McEuen, 42 ECAB 566 (1991), reaffirming
Thomas D. McEuen, 41 ECAB 387 (1990).
5

A.K., 58 ECAB ___ (Docket No. 06-626, issued October 17, 2006); C.S., 58 ECAB ___ (Docket No. 06-1583,
issued November 6, 2006); T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006); D.L., supra
note 1.
6

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and Ruthie M.
Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether
or not the evidence established such allegations).
7

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
8

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

4

tasks concerning clock rings and counting mail.9 Appellant further alleged that she had no
assistance in running her zone. The Board has held that stress or anxiety over an employee’s
normal or specially assigned work duties may constitute a compensable factor of employment.10
However, in the present case, appellant has not provided sufficient information to establish a
compensable employment factor. She alleged that she was not properly trained in certain matters
and had no assistance in “running her zone.” However, appellant did not submit sufficient
evidence to corroborate her allegations. She did not provide any details regarding her assigned
duties with respect to the clock rings, the mail counts or what work she was required to perform
in her zone. As noted, appellant bears the burden of proving that she developed an emotional
condition as a result of a compensable employment factor. This burden includes the submission
of detailed factual evidence and explanation concerning the incidents or assignments she believes
constituted a compensable employment factor.11 Appellant has presented only vague allegations
of general job stress and stress from being assigned to various tasks. She has not submitted
sufficient evidence to establish these allegations as compensable factors.12
Appellant asserted that her supervisors created a hostile work environment for her on
July 10, 2006 by verbally and physically abusing her. To the extent that disputes and incidents
alleged as constituting harassment and discrimination by supervisors are established as occurring
and arising from appellant’s performance of her regular duties, these could constitute
employment factors.13 However, for harassment or discrimination to give rise to a compensable
disability under the Act, there must be evidence that harassment or discrimination did in fact
occur. Mere perceptions of harassment or discrimination are not compensable under the Act.14
Appellant alleged that Mr. Burke yelled at her and threw an overtime tracking report at her
during a July 10, 2006 meeting. There is no evidence of record establishing that the incident
occurred as alleged or that Mr. Burke posed any threat to appellant. While appellant may have
felt intimated by Mr. Burke, she provided no corroborating evidence, such as witness statements,
sufficient to establish that any statements were actually made or that the actions actually
occurred.15 The statement of Ms. Davis did not address the July 10, 2006 incident. Rather, she
generally reformed to a statement made by Mr. Schemleck on April 12, 2006. Her allegations

9

The Board notes that matters pertaining to training are considered an administrative function of the employer.
An administrative matter will be considered an employment factor only where the evidence discloses error or abuse
by the employing establishment. Jose L. Gonzalez-Garced, 46 ECAB 559 (1995). In the present case, there is
insufficient evidence to show error or abuse by the employing establishment with regard to any training afforded
appellant.
10

See Thomas D. McEuen, supra note 4; Lillian Cutler, supra note 2.

11

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

12

See, e.g. George Tseko, 40 ECAB 948 (1989).

13

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

14

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

15

See William P. George, 43 ECAB 1159, 1167 (1992).

5

alone are insufficient to establish a factual basis for her claim.16 Appellant has not established
her allegations of harassment pertaining to Mr. Burke.
The Board also finds that Mr. Ferrante’s alleged yelling at appellant to hang up the
telephone and return to his office does not rise to the level of coverage under the Act. The
employing establishment contested appellant’s version of events. Although appellant advised
that she was submitting witness statements which would corroborate her version of the incident
with Mr. Ferrante, such statements were not of record at the time the Office rendered its
September 7, 2006 decision. While the Board has recognized the compensability of verbal abuse
in certain situations, this does not imply, however, that every statement uttered in the workplace
will give rise to coverage under the Act.17 Based on the evidence of record the Board finds that
Mr. Ferrante’s remarks, did not constitute verbal abuse or harassment under the Act.18
Appellant reported that she felt intimidated by the actions of Mr. Burke and Mr. Ferrante
and felt that she was in a hostile work environment. However, under the circumstances of this
case, the Board finds that appellant’s emotional reaction must be considered self-generated, in
that it resulted from her perceptions regarding her supervisor’s actions.19
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.20
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office regulation provides that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.22 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.23 When a claimant fails to meet one of the above
21

16

Charles E. McAndrews, supra note 6; see also Arthur F. Hougens, supra note 6 and Ruthie M. Evans, supra
note 6 (in each case, the Board looked beyond the claimant’s allegations to determine whether or not the evidence
established such allegations).
17

See Leroy Thomas, III, 46 ECAB 946, 954 (1995).

18

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

19

See David S. Lee, 56 ECAB ___ (Docket No. 04-2133, issued June 20, 2005).

20

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret S. Krzycki, 43 ECAB 496 (1992).
21

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on her own motion or on application.
22

20 C.F.R. § 10.606(b)(2).

23

Id. at § 10.607(a).

6

standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.24
The requirements for reopening a claim for merit review do not include the requirement
that a claimant submit all evidence which may be necessary to discharge his or her burden of
proof.25 The requirements pertaining to the submission of evidence in support of reconsideration
only specifies that the evidence be relevant and pertinent and not previously considered by the
Office.26 If the Office should determine that the new evidence lacks substantive probative value,
it may deny modification of the prior decision, but only after the case has been reviewed on the
merits.27
ANALYSIS -- ISSUE 2
In its merit decision dated September 7, 2006, the Office denied appellant’s claim for
compensation on the grounds that no compensable work factor was established. The Office
found, in part, that the evidence submitted was insufficient to establish that the event(s) occurred
as alleged. In its November 16, 2006 decision denying appellant’s request for reconsideration,
the Office determined that the evidence submitted was irrelevant and thus insufficient to warrant
a merit review of her claim.
In support of her reconsideration request, appellant neither alleged nor demonstrated that
the Office erroneously applied or interpreted a specific point of law. Additionally, she did not
advance a relevant legal argument not previously considered by the Office. Consequently, she is
not entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(2).28
With regard to the submission of new and relevant evidence, appellant submitted copies
of previously submitted evidence comprised of her responses to the Office’s questions,
Dr. Kelley’s September 6, 2006 medical report and Ms. Davis’ statement.
Appellant also submitted statements from Mr. Wells and Ms. O’Donnell. While the
Office indicated that, the evidence submitted was irrelevant, the Board finds that these
statements constitute relevant new evidence on the issue of whether appellant established a
compensable work factor. As this evidence was not previously of record and pertains directly to
the relevant issue, it is sufficient to reopen her case for further review of the merits. The
requirement for reopening a claim for merit review does not include the requirement that a
claimant shall submit all evidence necessary to discharge her burden of proof. The claimant

24

Id. at § 10.608(b).

25

Donald T. Pippin, 53 ECAB 631 (2003).

26

Id.

27

See Annette Louise, 53 ECAB 783 (2003).

28

20 C.F.R. § 10.608(b)(2)(i) and (ii).

7

need only submit evidence that is relevant and pertinent and not previously considered.29 The
Office improperly denied appellant’s request for review of the merits of the claim. The case will
be remanded to the Office to conduct an appropriate merit review of the claim. Following this
and such other development as deemed necessary, the Office shall issue a merit decision on the
claim.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
developed an emotional condition in the performance of duty. The Board also finds that the
Office improperly denied appellant’s request for further review of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 7, 2006 is affirmed. The decision dated November 16,
2006 is set aside and the case is remanded for further proceedings consistent with this decision of
the Board.
Issued: September 11, 2007
Washington, DC

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

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

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

29

Donald T. Pippin, supra note 25; Sydney W. Anderson, 53 ECAB 347 (2002).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS CANTEEN SERVICE,
Lake City, FL, Employer
__________________________________________

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

Docket No. 11-1366
Issued: December 12, 2011

Case Submitted on the Record

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

JURISDICTION
On May 9, 2011 appellant filed a timely appeal from an April 20, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which suspended her compensation
for failure to report for a medical examination. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation under 5
U.S.C. § 8123(d) for failure to attend a medical examination on March 21, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 10, 2007 appellant, then a 40-year-old supply clerk, filed a traumatic injury
claim alleging that, on July 30, 2007, she sprained her lower back when she lifted a case of
bottled water at work. OWCP accepted her claim for sprained back, displacement of lumbar
intervertebral left disc and spinal stenosis.
On September 8, 2008 appellant was placed on the periodic rolls for temporary total
disability.
On January 26, 2011 OWCP referred appellant for a second-opinion examination to
address the nature of her condition, extent of disability and appropriate treatment. Appellant was
advised that if she failed to keep the scheduled appointment she was to inform OWCP in writing
within seven days. She was also informed that her compensation could be suspended for failure
to attend the examination or for obstruction of the examination.
In a properly addressed letter dated February 15, 2011, OWCP informed appellant that an
appointment was made with Dr. Steven J. Lancaster, a Board-certified orthopedic surgeon, at
4:30 p.m. on March 21, 2011. This letter was addressed to appellant at her address of record.
On March 31, 2011 OWCP was informed that appellant did not show up to the scheduled
appointment.
On March 31, 2011 OWCP proposed to suspend appellant’s compensation benefits
pursuant to section 8123(d) of FECA for failure to attend the March 21, 2011 examination with
Dr. Lancaster. Appellant was advised to provide a written explanation of her reasons, with
substantive corroborating evidence, within 14 days for failing to attend the scheduled
examination.
In an April 8, 2011 letter, appellant stated that she missed the March 21, 2011
appointment with Dr. Lancaster because she did not receive an appointment letter and was not
aware it was scheduled. She also submitted a March 25, 2011 physician’s assistant report.
By decision dated April 20, 2011, OWCP finalized its proposed suspension, effective
May 8, 2011. It addressed appellant’s April 8, 2011 letter in which she stated she did not receive
the appointment letter and found that the letter was sent to the address of record. OWCP also
stated that, in the absence of contrary evidence, a notice mailed to an individual in the ordinary
course of business was presumed received by that individual. OWCP informed appellant that her
compensation would be reinstated after she attended and fully cooperated with an examination.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.2
The determination of the need for an examination, the type of examination, the choice of locale,
2

5 U.S.C. § 8123.

2

and the choice of medical examiners are matters within the province and discretion of OWCP.3
OWCP regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.4
Section 8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit
to or obstructs a directed medical examination, his or her right to compensation is suspended
until the refusal or obstruction ceases.5 OWCP procedures provide that, before OWCP may
invoke these provisions, the employee is to be provided a period for 14 days within which to
present in writing his or her reasons for the refusal or obstruction.6 If good cause for the refusal
or obstruction is not established, entitlement to compensation is suspended in accordance with
section 8123(d) of FECA.7
In the absence of evidence to the contrary, a letter properly addressed and mailed in the
due course of business, such as in the course of OWCP’s daily activities, is presumed to have
arrived at the mailing address in due course. This is known as the mailbox rule.8
ANALYSIS
OWCP scheduled a second opinion examination on March 21, 2011. Appellant did not
appear for the scheduled examination. By decision dated April 20, 2011, OWCP suspended her
compensation for failure to attend the scheduled examination. The Board finds that it properly
suspended appellant’s compensation for failure to attend a medical examination on
March 21, 2011.
Appellant alleges that she did not receive the February 15, 2011 appointment letter which
informed her of her scheduled March 21, 2011 second-opinion examination. Under the mailbox
rule, however, it is presumed that a letter properly addressed and mailed to an individual in the
ordinary course of business arrived at that address.9 The record in this case reveals a properly
addressed copy of the February 15, 2011 appointment notice informing appellant about the
scheduled March 21, 2011 examination. The Board finds that there is no evidence to rebut the
presumption of receipt by appellant under the mailbox rule. Because appellant failed to attend
the March 21, 2011 medical examination and did not provide good cause for the failure within
14 days of OWCP’s March 31, 2011 notice of proposed suspension, OWCP properly suspended
her compensation benefits effective May 8, 2011.

3

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007); James C. Talbert, 42 ECAB 974 (1991).

4

20 C.F.R. § 10.320.

5

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).
7

Id.

8

C.D., Docket No. 11-598 (issued September 23, 2011); C.T., Docket No. 08-2160 (issued May 7, 2009).

9

Id.

3

Entitlement to compensation was properly suspended in accordance with 5 U.S.C.
§ 8123(d) until the date on which the claimant agrees to attend the examination. When the
claimant actually reports for examination, payment retroactive to the date on which the claimant
agreed to attend the examination may be made.10
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
effective May 8, 2011 for failure to attend a medical examination.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 20, 2011 is affirmed.
Issued: December 12, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

E.B.,59 ECAB 298 (2008).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE INTERIOR, BIA
REGULAR EMPLOYEE FUNCTIONS,
Many Farms, AZ, Employer
__________________________________________

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Appearances:
Lori N. Brown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1260
Issued: December 2, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On May 7, 2013 appellant, through his attorney, filed a timely appeal from a December 3,
2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for reconsideration on the grounds that it was untimely filed and failed to establish clear
evidence of error. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit decision by
OWCP. The last merit decision of record was OWCP’s January 25, 2011 decision. Because
more than one year elapsed between the last merit decision to the filing of this appeal, the Board
lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that it was untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
On November 19, 2010 appellant, then a 47-year-old maintenance worker, filed a
traumatic injury claim (Form CA-1) alleging that on September 13, 2010 he sustained a right
wrist injury after he was carrying sheetrock and a wind gust caused him to twist his right wrist
and hurt his tendon. He stated that he sought medical treatment 10 days later when the pain did
not go away. A witness statement from James Roland, a fellow employee, was provided which
stated that he was not working on the date of the incident and appellant informed him of the
incident several days later. Appellant first sought treatment on September 24, 2010, stopped
work on September 27, 2010 and notified his supervisor on November 19, 2010. The employing
establishment controverted the claim stating that he never reported or identified any injury or
possible injury on duty.
By letter dated December 16, 2010, OWCP informed appellant that the evidence of
record was insufficient to support his claim. Appellant was advised of the medical and factual
evidence needed, provided a questionnaire for completion and directed to submit it within
30 days. No evidence was received.
By decision dated January 25, 2011, OWCP denied appellant’s claim finding that the
evidence failed to establish that the incident occurred as alleged. It also found that the medical
evidence failed to establish a firm diagnosis which was related to the alleged employment
incident. OWCP noted that its December 16, 2010 development letter provided appellant with
the information needed to support his claim but no evidence was received.
On November 19, 2012 appellant requested reconsideration of OWCP’s decision. In a
November 19, 2012 narrative statement, he reported that he was employed at Many Farms High
School since 1992 and that there were two employees with the same name at the high school.
Appellant stated that, because there were two men with the same name, he did not get his letters
right away and often received them late. He noted that he only received his OWCP papers
approximately three weeks ago from a Mr. Tungovia, the safety officer, which showed his
denial. As a result, appellant was unable to provide a timely reconsideration request. He
provided details regarding how his injury occurred and the active medical treatment he was
seeking for his wrist condition. Appellant stated that he had used most of his sick leave and was
released to light duty but was informed that there was no light-duty job available. He also
provided the completed questionnaire which OWCP sent to him on December 16, 2010.
In support of his claim, appellant provided a September 14, 2012 letter written to the
principal of Many Farms High School, which described the incident that occurred on
September 13, 2010 and the course of his medical treatment. He requested help reopening his
OWCP claim.

2

Appellant also submitted progress notes dated February 21 to October 30, 2012 from
physician’s assistant Tobin Purslow, a March 6, 2012 diagnostic report documenting a magnetic
resonance imaging (MRI) scan of appellant’s right wrist, an April 4, 2012 right wrist operative
report, a July 30, 2012 right wrist ulnar shortening osteotomy operative report from Dr. Mark
Mellinger and various work release notes.
By decision dated December 3, 2012, OWCP denied appellant’s reconsideration request
as untimely filed and failing to establish clear evidence of error.3
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.4
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.5
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation, if the claimant’s application for review shows clear evidence of error on the part
of OWCP in its most recent merit decision. To establish clear evidence of error, a claimant must
submit evidence relevant to the issue decided by OWCP. The evidence must be positive, precise
and explicit and it must manifest on its face that OWCP committed an error.6
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.7
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.8 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.9 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
3

The Board notes that appellant submitted additional evidence after OWCP rendered its December 3, 2012
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
4

20 C.F.R. § 10.607(a).

5

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

6

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

7

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

8

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

9

Id.

3

demonstrates clear error on the part of OWCP.10 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of
OWCP.11
ANALYSIS
In its December 3, 2012 decision, OWCP properly determined that appellant failed to file
a timely application for review. An application for reconsideration must be sent within one year
of the date of OWCP’s decision.12 Aright to reconsideration within one year also accompanies
any subsequent merit decision on the issues.13 As appellant’s November 19, 2012 request for
reconsideration was submitted more than one year after the date of the last merit decision of
record on January 25, 2011, it was untimely. Consequently, he must demonstrate clear evidence
of error by OWCP in denying his claim.14
In his November 19, 2012 statement, appellant alleged that he never received the
January 25, 2011 decision until approximately three weeks prior to the filing of his appeal on
November 19, 2012. He did not assert that his address changed or that the address used by
OWCP was otherwise incorrect. Appellant stated that there were two men employed at Many
Farms High School with the same name and that he often did not receive his mail. However, he
has provided no evidence establishing that his mail was delivered incorrectly. The address used
by OWCP in its January 25, 2011 decision is the same as the address of record and the same as
the one appellant used in his appeal to the Board. The Board has found that, in the absence of
evidence to the contrary, a letter properly addressed and mailed in the due course of business,
such as in the course of OWCP’s daily activities, is presumed to have arrived at the mailing
address in due course.15 This is known as the mailbox rule.16 Appellant submitted no evidence
substantiating why the presumption would not apply. Therefore, the Board finds that he is
presumed to have received the January 25, 2011 decision.
The Board finds that appellant has not established clear evidence of error on the part of
OWCP. The underlying claim for compensation was denied on the grounds that he had not
established fact of injury due to the lack of the factual and medical evidence. On
reconsideration, appellant provided a detailed statement dated November 19, 2012 explaining the
circumstances of his alleged injury to establish that the employment incident occurred at the
time, place and in the manner alleged on September 13, 2010. The only evidence received by
OWCP prior to the denial of his claim on January 25, 2011 was the CA-1 form. This included a
10

Id.

11

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

12

Supra note 6.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).

14

See Debra McDavid, 57 ECAB 149 (2005).

15

M.Y., Docket No. 07-2202 (issued February 12, 2008).

16

Jeffrey M. Sagrecy, 55 ECAB 724 (2004).

4

review of comments provided by the employing establishment, as well as appellant’s coworker,
which cast doubt as to whether the incident occurred as alleged.17 In the December 16, 2010
OWCP development letter, appellant was informed of the information required to establish his
claim and provided a questionnaire to complete describing the factual circumstances surrounding
his claim. He did not respond. Appellant alleged that he timely submitted his traumatic claim
form and OWCP should accept the incident as alleged, but he did not submit probative evidence
establishing clear evidence of error in the finding that the incident did not occur at the time, place
and in the manner alleged. As noted above, it is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion. The weight of the evidence must shift
in favor of the claimant. Appellant did not show clear evidence of error in OWCP’s finding as to
the occurrence of an employment incident on September 13, 2010.18
In support of his request for reconsideration, appellant also submitted various medical
records documenting treatment for his right wrist. This evidence, however, is insufficient to
establish that OWCP erred in its denial of his claim.19 The Board notes that clear evidence of
error is intended to represent a difficult standard. Evidence, such as a detailed well-rationalized
medical report, which if submitted before the merit denial might require additional development
of the claim, is insufficient to establish clear evidence of error.20 While the reports of appellant’s
physician are supportive of his claim to establish a firm medical diagnosis, they do not establish
clear evidence of error on the part of OWCP as they were submitted after OWCP’s January 25,
2011 merit decision.21 Thus, the medical reports do not raise a substantial question as to the
correctness of OWCP’s January 25, 2011 merit decision or demonstrate clear evidence of error.22
On appeal, counsel for appellant argues that his supervisor would not assist him in filing
a workers’ compensation case and appellant had to seek the help of Mr. Tungovia. Counsel
further argued that the claims examiner failed to review the medical evidence which established
appellant’s claim. She focuses on evidence that she believes supports his claim and errors which
she believed that the employing establishment and OWCP committed in handling his claim. The
Board reiterates that appellant submitted no evidence prior to the January 25, 2011 decision other
than the CA-1 form. As appellant filed his reconsideration request more than one year after the
initial decision on January 25, 2011, he was not entitled to a merit review of his claim. As
previously noted, the Board does not have jurisdiction over the merits of the claim.
To the extent that counsel for appellant asserts that he was denied due process because
his claim was denied on a substantive issue, the Board notes that this argument would be related
to a constitutional question. The Supreme Court has held that constitutional questions are
17

S.P., 59 ECAB 184 (2007); Gene A. McCracken, 46 ECAB 593 (1995); Mary Joan Coppolino, 43 ECAB
988 (1992).
18

D.H., Docket No. 12-1586 (issued February 15, 2013).

19

See W.R., Docket No. 09-2336 (issued June 22, 2010).

20

Federal (FECA) Procedure Manual, supra note 13 at Chapter 2.1602.3(c) (March 2011).

21

V.W., Docket No. 12-1901 (issued March 5, 2013).

22

Docket No. 12-90 (issued July 2, 2012).

5

unsuited to resolution in administrative hearing procedures.23 As the Board is an administrative
body, it does not have jurisdiction to review a constitutional claim such as that made by
appellant.24 The federal courts retain jurisdiction over decisions under FECA where there is a
charge of a violation of a clear statutory mandate or there is a constitutional due process claim.25
The Board notes that appellant’s traumatic injury claim was denied because he did not provide
any factual and medical evidence to establish that he suffered an injury causally related to the
alleged September 13, 2010 injury. Appellant appealed the January 25, 2011 decision more than
one year later. These arguments do not show clear evidence of error in OWCP’s decision
denying his traumatic injury claim.26
As none of the evidence raises a substantial question concerning the correctness of
OWCP’s decision, appellant has failed to establish clear evidence of error on the part of OWCP
in denying further merit review.27
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

23

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

24

See Robert F. Stone, 57 ECAB 292 (2005); Diana L. Smith, 56 ECAB 524 (2005); Vittorio Pittelli, 49 ECAB
181 (1997).
25

See Andrew Fullman, 57 ECAB 574 (2006).

26

F.G., Docket No. 08-573 (issued October 7, 2008).

27

A.S., Docket No. 11-356 (issued September 16, 2011).

6

ORDER
IT IS HEREBY ORDERED THAT the December 3, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 2, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Chamblee, GA, Employer
__________________________________________

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

Docket No. 17-1025
Issued: August 18, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 10, 2017 appellant filed a timely appeal from a November 14, 2016 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 met her burden of proof to establish a right foot condition
causally related to the September 20, 2016 employment incident.
On appeal, appellant contends that, contrary to OWCP’s denial of her claim, because her
physician assistant’s medical report was not countersigned by a physician, the report was
countersigned by Dr. Augustine Conduah, an attending Board-certified orthopedic surgeon. She

1

5 U.S.C. § 8101 et seq.

also contends that, while OWCP’s decision found that pain was not a valid diagnosis, she had
submitted a report which indicated that she had a right medial ankle sprain.
FACTUAL HISTORY
On September 27, 2016 appellant, then a 64-year-old contact representative, filed a
traumatic injury claim (Form CA-1) alleging that on September 20, 2016 she sustained a right
foot injury in a parking deck before her tour of duty. She claimed that she was coming down the
steps from the second floor of the garage when her foot rolled as she placed it on the bottom step.
Appellant stopped work on the date of injury. On the reverse side of the form, the employing
establishment noted that the alleged incident occurred in the parking deck before appellant’s tour
of duty. It controverted the claim, contending that she had not submitted any medical documents
to establish a causal relationship between her injury and work environment or any evidence to
establish that her injury was sustained in the performance of duty. The employing establishment
also contended that appellant did not lose any time from work, and controverted continuation of
pay because she had failed to submit any medical evidence to support her disability from work
from September 20 to 30, 2016.
OWCP received a description of appellant’s contact representative position.
By letter dated October 13, 2016, OWCP advised appellant of the deficiencies of her
claim. It requested that she submit additional factual and medical evidence, including a detailed
report from her physician explaining how the reported work incident caused or aggravated her
claimed medical condition. In a separate October 13, 2016 letter, OWCP requested that the
employing establishment respond to several questions regarding such matters as the location of
appellant’s claimed injury relative to the ownership of the parking lot facilities, whether the
public was permitted to use the parking lot, whether appellant was required to use the parking
lot, and whether parking spaces were assigned.
OWCP received an unsigned patient clinical summary report dated September 20, 2016
from Southeast Urgent Care. The report noted appellant’s chief complaint of right foot pain,
discussed examination findings, and provided a diagnosis of sprain of an unspecified ligament of
the right ankle.
A September 30, 2016 medical report, signed by Elizabeth A. Berlin, a physician
assistant, and cosigned by Dr. Conduah, noted that appellant presented for right ankle pain. The
report also noted a history of injury that on September 20, 2016 appellant twisted her ankle while
walking on steps out of a parking garage. She was examined and assessed as having acute right
ankle pain and medial right ankle sprain.
On November 1, 2016 the employing establishment responded to OWCP’s development
letter. It noted that it owned, controlled, and managed the parking facilities. The employing
establishment indicated that the public was not permitted to use the lot. The parking lot was only
for employees who had a parking decal. It related that appellant could have parked in either the
parking lot or third floor parking deck on its campus. The employing establishment advised that
only employees with handicap decals, department managers, the director, certain managers, and
union officials had assigned parking spaces. The remaining spaces in the parking lot and parking

2

deck were open to all employees. The employing establishment maintained that it paid for
parking.
In a separate letter dated November 1, 2016, appellant responded to OWCP’s
development questionnaire. She indicated that while reporting to work she descended steps from
the parking garage and her foot rolled over on the last step. After an hour or two her foot started
throbbing and swelling. Appellant sought treatment from a nurse at work. By the end of the
day, her ankle had swollen so badly that she could not put any weight on it. Appellant left work
and went to Southeast Urgent Care where her foot was x-rayed and she was given crutches, an
ankle brace, and a prescription for pain medication. She was advised that her ankle would heal
in six weeks and that she should follow-up with her physician in a few days. Appellant noted
that later that day, she telephoned the employing establishment to ask about filing a workers’
compensation claim. She started the process and received a call that same day from a security
officer at the employing establishment who planned to submit an accident report regarding her
claimed injury. Appellant was referred to Dr. Conduah who released her to return to work on
October 17, 2016. She maintained that the medical reports submitted clearly state that she had
an ankle sprain caused by stress.
In a September 30, 2016 work/school status note, Dr. Conduah indicated that appellant
was unable to work through October 16, 2016. He advised that she could return to regular
work/activity on October 17, 2016.
By decision dated November 14, 2017, OWCP found that the claim was timely and that
the evidence supported that the injury occurred as described, but denied appellant’s traumatic
injury claim because the medical evidence of record did not contain a medical diagnosis in
connection with the accepted September 20, 2016 employment incident. It noted that a finding
of pain alone was not a diagnosis, but rather a symptom. OWCP also noted that a physician
assistant was not considered a qualified physician as defined under FECA unless his or her report
was countersigned by a physician.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence2 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.3
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.4
There are two components involved in establishing the fact of injury. First, the employee must
2

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

3

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

4

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

3

submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.5
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.6 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.7 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury caused or aggravated by the accepted September 20, 2016 employment incident.
Appellant failed to submit sufficient medical evidence to establish a right foot condition causally
related to the accepted employment incident.
Dr. Conduah’s September 30, 2016 work/school status note found that appellant was
unable to work through October 16, 2016 and that she could return to regular work/activity on
October 17, 2016. This evidence failed to provide a history of injury,9 examination findings, a
firm diagnosis of a particular medical condition,10 or a specific opinion as to whether the
accepted September 20, 2016 employment incident caused or aggravated appellant’s condition
and resultant disability.11 The Board finds, therefore, that Dr. Conduah’s note is of limited
probative value.12
Similarly, the September 30, 2016 report signed by Ms. Berlin and cosigned by
Dr. Conduah is insufficient to establish appellant’s claim as it did not offer a medical opinion
addressing whether appellant’s diagnosed right ankle pain and medial right ankle sprain were
5

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

6

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
7

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

8

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

9

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).
10

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
11

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship).
12

D.M., Docket No. 16-1885 (issued February 15, 2017).

4

caused or aggravated by the accepted September 20, 2016 employment incident.13 Thus, this
evidence is insufficient to meet appellant’s burden of proof.
The unsigned September 20, 2016 report from Southeast Urgent Care is insufficient to
establish appellant’s claim. A report that is unsigned or bears an illegible signature lacks proper
identification and cannot be considered probative medical evidence.14
Appellant’s belief that, factors of employment caused or aggravated her condition is
insufficient, by itself, to establish causal relationship.15 The issue of causal relationship is a
medical one and must be resolved by probative medical opinion from a physician. The Board
finds that there is insufficient medical evidence of record to establish that appellant’s right foot
condition was caused or aggravated by the September 20, 2016 employment incident. Appellant,
therefore, did not meet her burden of proof.
On appeal, appellant contends that OWCP’s denial of her claim because her physician
assistant’s medical report was not countersigned by a physician was erroneous as the physician
assistant’s report was countersigned by Dr. Conduah. She also contends on appeal that while
OWCP’s decision found that pain was not a valid diagnosis, she had submitted a report which
indicated that she had a right medial ankle sprain. While Ms. Berlin’s report was cosigned by
Dr. Conduah and the report provided a diagnosis of right medial ankle sprain, this evidence is of
limited probative because, as noted above, it did not provide a medical opinion addressing
whether there was a causal relationship between appellant’s right ankle condition and the
September 20, 2016 employment incident.16
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 failed to meet her burden of proof to establish a right
foot condition causally related to the September 20, 2016 employment incident.

13

See supra note 11.

14

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

15

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

16

See supra note 11.

5

ORDER
IT IS HEREBY ORDERED THAT the November 14, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 18, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Jacksonville, FL,
Employer
__________________________________________

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

Docket No. 17-0887
Issued: October 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 15, 2017 appellant filed a timely appeal from an October 28, 2016 merit
decision and a January 19, 2017 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 to consider the merits of the case.
ISSUES
The issues are: (1) whether the Branch of Hearings and Review properly denied
appellant’s request for a review of the written record as untimely filed; and (2) whether appellant
has met his burden of proof to establish a left knee condition causally related to factors of his
federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 18, 2016 appellant, then a 52-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that he injured his left knee performing his
employment duties of bending, lifting, and turning. He noted that he had an earlier similar right
knee injury which required surgery2 and that, in an effort to protect his right knee, he injured his
left knee. Appellant first became aware of his condition on November 26, 2015 and first
attributed the condition to his employment on that date.
In support of his claim, appellant submitted a July 13, 2016 duty status report (Form
CA-17) from Dr. Rahul V. Deshmukla, a Board-certified orthopedic surgeon, diagnosing
meniscal tear and providing work restrictions. Dr. Deshmukla completed an attending
physician’s report (Form CA-20) on July 14, 2016 and diagnosed tear of the medial meniscus of
the left knee. He listed appellant’s history as “injury/pain to the [left] knee while [at] work.”
Dr. Deshmukla checked a box marked “yes” to indicate that the condition was caused or
aggravated by an employment activity. He provided work restrictions and recommended
surgery.
On August 9, 2016 OWCP requested additional factual and medical evidence from
appellant in support of his occupational disease claim. It afforded him 30 days to respond.
Medical evidence provided by appellant included a December 28, 2015 magnetic
resonance imaging (MRI) scan of the left knee which showed a mild partial tear of the posterior
meniscal root and degeneration of the posterior horn. An August 10, 2016 work capacity
evaluation (OWCP-5c) from a physician assistant was submitted.
Dr. Deshmukla examined appellant on July 13, 2016 due to left knee pain. He noted that
appellant denied any acute injury or trauma, but that his pain was aggravated by climbing and
descending stairs, walking, and standing. Appellant attributed his knee condition to overuse at
work. Dr. Deshmukla opined, “52[-]year-old [appellant] with progressive left knee pain due to
overcompensation for right knee work injury. He also has worsened left knee pain and
instability with evidence of medial meniscal tearing.”
On August 10, 2016 Dr. Kevin Peterson, a Board-certified family practitioner, reported
examining appellant due to right knee pain. He noted that appellant experienced more right knee
pain after injuring his left knee. Appellant had undergone right knee surgery on January 5, 2010
due to medial meniscus tear and chondromalacia patella. Dr. Peterson reported that appellant
had progressive left knee pain due to overcompensation for right knee work injury as well as left
knee instability with evidence of medial meniscal tearing.
Appellant accepted a modified-duty assignment from the employing establishment on
August 14, 2016.

2

OWCP had earlier accepted a right meniscal tear under OWCP File No. xxxxxx029 with a date of injury of
August 11, 2007. This claim is not before the Board on the present appeal.

2

Dr. Deshmukla completed a duty status report (Form CA-17) on August 25, 2016 and
indicated that appellant could not climb, kneel, or twist. On September 6, 2016 he diagnosed
progressive left knee pain due to overcompensating for the right knee work injury.
Dr. Deshmukla noted that appellant’s left knee MRI scan dated December 28, 2015 confirmed
meniscal tearing. He continued submitting status reports noting appellant’s work restrictions.
Appellant had a right knee MRI scan on September 16, 2016 which revealed
degeneration of the medial meniscus and a parameniscal cyst. He also demonstrated altered
patellofemoral tracking of the right knee and a large full-thickness chondral defect.
Appellant responded to OWCP’s request for factual information on September 16, 2016.
He asserted that he developed progressive left knee pain due to overcompensating for the workrelated right knee condition. Appellant attributed his left knee condition to working on a
concrete floor, as well as standing, twisting, and bending for two to four hours during a work
night. He noted that he was required to lift and carry up to 70 pounds. Appellant concluded that
“sudden turns, twisting, bending, and lifting and the workroom hard concreted floors”
contributed to his left knee condition.
On January 25 and September 16, 2016 Dr. Luis F. Anez, a Board-certified family
practitioner, examined appellant due to left knee pain and acute meniscal tear of the left knee.
He noted that appellant’s MRI scan demonstrated meniscal tear and degeneration and that
appellant had undergone right knee surgery. Dr. Anez indicated that appellant sought medical
evidence that substantiated that his left meniscus tear was caused or aggravated by work. He
opined that appellant tore his meniscus on November 26, 2015, that his back had been hurting for
more than 20 years, and that his left knee buckled when he walked. Dr. Anez noted that
appellant attributed his left knee condition to overcompensation for his prior right knee injury.
By decision dated October 28, 2016, OWCP denied appellant’s occupational disease
claim finding that he had not established a causal relationship between his left knee meniscal tear
and his job duties.
Appellant requested a review of the written record of OWCP’s October 28, 2016 decision
from OWCP’s Branch of Hearings and Review in an appeal request form report dated
November 28, 2016 and postmarked November 29, 2016. By decision dated January 19, 2017,
the Branch of Hearings and Review denied his request for review of the written record as
untimely filed. It further exercised its discretion and found that the issue could equally well be
addressed by requesting reconsideration and submitting medical evidence.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b) of FECA concerning a claimant’s entitlement to a hearing before an
OWCP representative, indicates: “Before review under section 8128(a) of this title, a claimant ...
not satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after
the date of issuance of the decision, to a hearing on his claim before a representative of the
Secretary.”3 Section 10.615 of OWCP’s regulations implementing this section of FECA
3

5 U.S.C. § 8124(b)(1).

3

provides that a claimant shall be afforded a choice of an oral hearing or a review of the written
record.4 OWCP regulations provide that the request must be sent within 30 days (as determined
by the postmark or other carrier’s date marking) of the date of the decision for which a review of
the written record is sought and also that the claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same decision.5
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA,6 has the power to hold hearings and reviews of the written record in certain
circumstances where no legal provision was made for such reviews and that OWCP must
exercise this discretionary authority in deciding whether to grant a hearing or review of the
written record.7 OWCP procedures, which require OWCP to exercise its discretion to grant or
deny a hearing or review of the written record when the request is untimely or made after
reconsideration, are a proper interpretation of FECA and Board precedent.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined appellant’s request for a review of the
written record, postmarked on November 29, 2016, was not timely filed as it was made more
than 30 days after the issuance of the OWCP’s October 28, 2016 decision. OWCP, therefore,
properly denied his hearing as a matter of right.
OWCP then proceeded to exercise its discretion, in accordance with Board precedent, to
determine whether to grant a review of the written record in this case. It determined that this was
not necessary as the issue in the case could be addressed through the submission of new evidence
in the reconsideration process. Therefore, OWCP properly denied appellant’s request for review
of the written record as untimely filed and properly exercised its discretion in determining to
deny his request for review of the written record as he had other appeal options available.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA9 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence, including the fact that the individual is an “employee of the United States” within the
meaning of FECA and that the claim was timely filed within the applicable time limitation
period of FECA, that an injury was sustained in the performance of duty as alleged and that any

4

20 C.F.R. § 10.615.

5

Id. at § 616(a).

6

Supra note 1.

7

Marilyn F. Wilson, 52 ECAB 347 (2001).

8

Daniel J. Perea, 42 ECAB 214, 221 (1990).

9

Supra note 1.

4

disability or specific condition for which compensation is claimed is causally related to the
employment injury.10
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”11 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.12 Medical rationale includes a physician’s detailed opinion on
the issue of whether these is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, 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 activity or factors identified by the
claimant.13
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish a causal
relationship between his diagnosed left knee condition and his federal job duties.
In support of his claim for an occupational disease, appellant submitted a series of reports
from Dr. Deshmukla diagnosing meniscal tear of the left knee. On July 14, 2016 Dr. Deshmukla
indicated that appellant experienced pain in his knee at work and checked a box marked “yes” to
indicate that he believed that appellant’s left knee condition was caused or aggravated by an
employment activity. The Board has held that an opinion on causal relationship which consists
only of a physician checking the box “yes” in answer to a medical form report question of whether
the claimant’s condition was related to the history given is of little probative value. Without any
explanation or rationale for the conclusion reached, such report is insufficient to establish causal
relationship.14

10

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

11

20 C.F.R. § 10.5(q).

12

T.F., 58 ECAB 128 (2006).

13

A.D., 58 ECAB 149 (2006).

14

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

5

On July 13 and September 6, 2016 Dr. Deshmukla opined that appellant’s progressive
left knee pain was due to overcompensation for right knee work injury. A mere conclusion,
without the necessary rationale explaining how and why he believes that appellant sustained his
left knee condition, is insufficient to meet appellant’s burden of proof.15 Other reports from
Dr. Deshmukla are of limited probative value as they did not specifically address whether
appellant’s diagnosed condition was causally related to employment factors.16
Dr. Peterson examined appellant on August 10, 2016, he opined that appellant had
progressive left knee pain due to overcompensation for right knee work injury as well as left
knee instability with evidence of medial meniscal tearing. This report is also insufficient to meet
appellant’s burden of proof as Dr. Peterson did not explain how and why appellant’s left torn
medial meniscus was caused or contributed to by his work.17
On January 25 and September 16, 2016 Dr. Anez diagnosed acute meniscal tear of the
left knee. He opined that appellant tore his meniscus on November 26, 2015. Dr. Anez suggests
that appellant sustained an injury on a specific date rather than developing his torn meniscus over
a period of time longer than a work shift. This opinion supporting a traumatic injury is not
consistent with appellant’s claim for an occupational disease.18 Dr. Anez also noted that
appellant attributed his left knee to overcompensation for his prior right knee injury. An award
of compensation may not be based on surmise, conjecture, speculation, or upon appellant’s own
belief that there is a causal relationship between his claimed condition and his employment.19
Appellant also submitted a note dated August 10, 2016 from a physician assistant.
However, this report is of no probative value. FECA provides that a physician includes:
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by state law.20 Healthcare providers
such as licensed clinical social workers, nurses, acupuncturists, physician assistants, and physical
therapists are not considered physicians under FECA and their reports and opinions do not
constitute competent medical evidence to establish a medical condition, disability, or causal
relationship.21

15

D.R., Docket No. 16-0528 (issued August 24, 2016).

16

See S.E., Docket No. 08-2214 (issued May 6, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).
17

Supra note 15.

18

Supra note 11; supra note 15.

19

R.W., Docket No. 15-0345 (issued September 20, 2016); Robert A. Boyle, 54 ECAB 381 (2003).

20

5 U.S.C. § 8101(2).

21

T.R., Docket No. 17-0239 (issued April 12, 2017); V.C., Docket No. 16-0642 (issued April 19, 2016); K.W., 59
ECAB 271, 279 (2007); David P. Sawckuk, 57 ECAB 316, 320 n.11 (2006); Allen C. Hundley, 53 ECAB
551 (2002). See also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40
ECAB 649 (1989); Jane A. White, 34 ECAB 515 (1983).

6

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.22
CONCLUSION
The Board finds that OWCP’s Branch of Hearings and Review properly denied
appellant’s request for a review of the written record as the request was untimely filed. The
Board further finds that he had not met his burden of proof to establish a left knee condition
causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT January 19, 2017 and October 28, 2016 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 13, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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Once the primary injury is causally connected with the employment, a subsequent injury whether an
aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a
compensable primary injury. See S.L., Docket No. 14-1250 (issued December 2, 2015). If appellant believes that he
has developed a consequential injury from prior work injury, he may file an appropriate claim with OWCP under the
other claim file.

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