United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
U.S. POSTAL SERVICE, MEDFORD POST
OFFICE, Medford, MA, Employer
__________________________________________

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Appearances:
John L. De Generes, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0518
Issued: July 27, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 7, 2020 appellant, through counsel, filed a timely appeal from a November 5,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
Appellant, through counsel, submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b).
Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R.
§ 501.5(a). In support of the oral argument request, appellant asserted that oral argument should be granted because
it would allow her to more completely explain the uncontroverted evidence which established her claim. The Board,
in exercising its discretion, denies appellant’s request for oral argument because this matter requires an evaluation of
the medical evidence presented. As such, the Board finds that the arguments on appeal can adequately be addressed
in a decision based on a review of the case record and that oral argument would further delay issuance of a Board
decision and would not serve a useful purpose. As such, the oral argument request is denied, and this decision is based
on the case record as submitted to the Board.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a bilateral knee
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On September 8, 2017 appellant, then a 57-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral knee osteoarthritis as the result of
walking 15 miles per day while in the performance of duty. She did not stop work.
On September 1, 2017 Rachel E. Furnas, a physician assistant, diagnosed bilateral knee
osteoarthritis and noted that appellant could return to light-duty work with restrictions on
September 1, 2017. She completed a duty status report (Form CA-17) of even date wherein she
related appellant’s diagnosis of bilateral knee osteoarthritis and indicated that appellant could
return to full-duty work on September 7, 2017.
In a September 7, 2017 report, Ms. Furnas indicated that appellant could return to work on
September 7, 2017 with restrictions, which included limiting standing to three hours per day,
walking two hours per day, stooping one hour per day, and limited use of stairs.
In a September 8, 2017 attending physician’s report (Form CA-20), Ms. Furnas noted that
appellant had a history of primary osteoarthritis of the bilateral knees and knee pain for many
years. She diagnosed osteoarthritis and tricompartmental degenerative changes. In response to
the question whether the condition was caused or aggravated by an employment activity,
Ms. Furnas marked the box “Yes” and indicated “too much walking and climbing stairs.” She also
completed a Form CA-17 report on September 8, 2017, relating that appellant could return to fulltime work with restrictions.
In a development letter dated October 25, 2017, OWCP informed appellant that the
evidence submitted was insufficient to establish her claim. It advised her of the type of factual
and medical evidence needed, including a reasoned medical report from a physician providing an
opinion on causal relationship. OWCP provided appellant with a questionnaire for completion. In
a separate letter of even date, it asked the employing establishment to comment on the accuracy of
her statements. OWCP afforded appellant and the employing establishment 30 days to submit the
necessary evidence.
In a November 8, 2017 statement, J.W., an employing establishment manager, provided
the physical requirements of appellant’s letter carrier position. The requirements included lifting
and carrying from 10 to 70 pounds for up to six hours per day, standing for up to eight hours per

3

5 U.S.C. § 8101 et seq.

2

day, walking for up to six hours per day, bending/stooping for up to two hours per day, driving a
vehicle for up to six hours per day, and climbing to include stairs for up to three hours per day.
By decision dated November 24, 2017, OWCP found that appellant had established the
alleged factors of her federal employment, but she had not submitted any medical evidence that
established a diagnosis in connection with the accepted factors of her federal employment. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
On December 21, 2017 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
OWCP thereafter received a January 22, 2017 report wherein Dr. Arthur Haffner, a family
medicine specialist, related that appellant had a long history of bilateral degenerative joint disease
of the knees. Dr. Haffner diagnosed bilateral knee osteoarthritis, lateral compartment narrowing
of the left knee, and medial compartment narrowing of the right knee.
In a February 3, 2017 report, Ms. Furnas noted appellant’s longstanding history of bilateral
knee pain. She related a diagnosis of localized osteoarthrosis of the right knee.
In an August 11, 2017 progress note, Dr. Toru Endo, Board-certified in internal medicine,
noted that appellant was a postal worker, walked her routes daily, and was required to ascend and
descend stairs. He also noted that appellant reported increased pain in her right knee, worsened
with ambulation or prolonged standing. Dr. Endo diagnosed primary localized osteoarthritis of
the knee, unspecified laterally, and recommended refraining from prolonged ambulation or
standing.
A November 21, 2017 left knee x-ray read by Dr. Karen Shore, a radiologist, revealed
tricompartmental degenerative changes.
In a progress note dated November 21, 2017, Dr. Chris Sambaziotis, a Board-certified
orthopedic surgeon, related that appellant presented with bilateral knee pain that was intermittent,
moderate, and had been present for almost a year. He indicated that the pain was aggravated with
ambulation, stairs, and inclines. Dr. Sambaziotis noted that appellant worked as a mail carrier and
had switched to a desk job due to her discomfort. He diagnosed moderate-to-advanced
degenerative joint disease (DJD) of both knees and recommended left knee total replacement.
In a January 13, 2018 report, Dr. Justin W. Kung, a Board-certified radiologist, noted that
he reviewed appellant’s November 21, 2017 bilateral knee x-rays and determined that appellant
had severe degenerative change in the right knee medial compartment and moderate degenerative
change in the left knee medial compartment.
In a June 15, 2018 report, Dr. Byron V. Hartunian, a Board-certified orthopedic surgeon,
noted that appellant had a mail route, which required walking for 15 miles a day in all kinds of
weather and over all kinds of terrain while carrying a 35-pound satchel. He also noted that she
had to lift, carry, or move up to 70 pounds, and that her work required repetitive twisting, bending,
lifting, squatting, stooping, climbing, and reaching. Dr. Hartunian diagnosed joint arthritis
primary right knee, with one millimeter cartilage interval at medial femorotibial joint, and primary
3

left knee with two millimeters cartilage interval at medial femorotibial joint. He opined that
appellant’s bilateral knee osteoarthritis was “likely” aggravated and accelerated by her workrelated activities. Dr. Hartunian also related that appellant’s bilateral knee arthritis was
permanently aggravated by her work activities over 26 years, as her knee cartilage degraded as she
worked to the point where she had significant loss of cartilage, which caused a permanent condition
in her knee joints.
On June 19, 2018 OWCP received a statement from appellant describing her employment
duties as a letter carrier for over 26 years.
On June 19, 2018 then-counsel for appellant requested that appellant’s hearing request be
converted to a review of the written record.
By decision dated August 29, 2018, OWCP’s hearing representative affirmed the
November 24, 2017 decision, as modified, finding that the medical evidence did not contain a
sufficiently rationalized, non-speculative physician’s opinion linking the bilateral knee condition
to accepted factors of appellant’s federal employment.
On August 7, 2019 appellant requested reconsideration.
In a July 31, 2019 report, Dr. Hartunian provided clarification regarding the cause of
appellant’s diagnosed conditions. He noted that he had used the term “likely” in one paragraph of
his prior report, and opined that, “her work activities including lifting, walking and climbing,
caused a permanent aggravation of her bilateral hip osteoarthritis.” Dr. Hartunian noted that his
ultimate statement was not qualiﬁed by the word “likely” and was an unequivocal statement in
favor of causal relationship. He explained that, without appellant’s work as a letter carrier, her
condition would not have progressed as early and fast as it did, and there was no doubt that the
high impact loading activities contributed to the development and progression of her arthritis.
Dr. Hartunian also discussed whether appellant’s preexisting condition had progressed beyond
what might be expected from the natural progression of that condition. He explained that there
was no medically-accepted deﬁnition of the “natural progression” of bilateral hip arthritis that was
universally applicable to all persons in all situations. Dr. Hartunian related that, “Medicine knows
that lower extremity arthritis of the hips and knees is multi-factorial with a number of contributing
factors, including weight/body habitus, genetics, age, repetitive loading activities, trauma, disease
and medication side effects amongst others. All of these contributors are well known and accepted
by the medical community. There is no way to parse out the relative contributions of each.
However, impact loading activities are a deﬁnite contributor.” He further related that
biomechanical research had shown that ascending stairs loads on the lower extremity joints
approximately six times body weight. Dr. Hartunian explained that a letter carrier ascending stairs
with a full mail satchel added approximately 100 pounds to effective body weight, and descending
stairs approximately 200 pounds; therefore, appellant’s job as a letter carrier was a definite
contributing factor to the progression of her arthritis.
By decision dated November 5, 2019, OWCP denied modification of its prior decision.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; 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.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.10
Neither the mere fact that a disease or condition manifests itself during a period of employment
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.11

4

Id.

5
S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6

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

S.C., id.; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7,
2014); Delores C. Ellyett, 41 ECAB 992 (1990).
8

C.D., Docket No. 17-2011 (issued November 6, 2018); Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

9

E.V., Docket No. 18-1617 (issued February 26, 2019); A.M., Docket No. 18-0685 (issued October 26, 2018).

10

E.V., id.

11

B.J., Docket No. 19-0417 (issued July 11, 2019).

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ANALYSIS
The Board finds that appellant has not met her proof to establish bilateral knee conditions
causally related to the accepted factors of her federal employment.
Appellant provided a January 22, 2017 report from Dr. Haffner, who diagnosed bilateral
knee osteoarthritis, lateral compartment narrowing of the left knee, and medial compartment
narrowing of the right knee, an August 11, 2017 progress note from Dr. Endo who diagnosed
primary localized osteoarthritis of the knee, unspecified laterally, a November 21, 2017 report
from Dr. Sambaziotis, who diagnosed moderate-to-advanced degenerative joint disease of both
knees, and a January 13, 2018 report from Dr. Kung, who diagnosed severe degenerative change
in the right knee medial compartment and moderate degenerative change in the left knee medial
compartment. These physicians provided diagnoses, but did not offer an opinion on causal
relationship. The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition is of no probative value on the issue of causal relationship.12
As such, these reports are insufficient to establish appellant’s claim.
In a June 15, 2018 report, Dr. Hartunian noted appellant’s job requirements and opined that
her bilateral knee osteoarthritis was “likely” aggravated and accelerated by her work-related
activities. As such, his opinion was speculative.13 The Board finds that this report is insufficient
to establish appellant’s claim.
In a July 31, 2019 report, Dr. Hartunian indicated that he was clarifying his prior report.
He noted that his June 15, 2018 report opined that the bilateral knee osteoarthritis was “likely”
aggravated and accelerated by appellant’s work activities. In his July 31, 2019 supplemental
report, Dr. Hartunian opined that appellant’s “work activities including lifting, walking, and
climbing caused a permanent aggravation of her bilateral hip osteoarthritis.” However, the Board
notes that the July 31, 2019 report discusses “bilateral hip osteoarthritis” while appellant is
claiming bilateral knee conditions. As such, the Board finds that Dr. Hartunian has not provided
a clear and unequivocal opinion regarding causal relationship between appellant’s bilateral knee
conditions and the accepted factors of her federal employment. The Board has consistently held
that, if the physician is opining that work activity caused a diagnosed medical condition, there
must be a clear explanation as to the mechanism of injury and how the work activity caused the
diagnosed medical condition.14 In this case, Dr. Hartunian initially gave a speculative opinion
regarding the claimed bilateral knee condition, and subsequently discussed appellant’s hip
conditions, rather than the claimed bilateral knee condition. His opinion is therefore of limited
probative value.
12

See C.G., Docket No. 20-0957 (issued January 27, 2021); L.G., Docket No. 20-0433 (issued August 6, 2020);
S.D., Docket No. 20-0413 (issued July 28, 2020); S.K., Docket No. 20-0102 (issued June 12, 2020); L.B., Docket No.
18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018)..
13
See B.S., Docket No. 20-0927 (issued January 29, 2021); R.C., Docket No. 18-1695 (issued March 12, 2019);
Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not be
one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be expressed
in terms of a reasonable degree of medical certainty).
14

W.R., Docket No. 20-1101 (issued January 26, 2021); A.S., Docket No. 16-1028 (issued August 17, 2016).

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OWCP received reports dated February 3 and September 1, 7, and 8, 2017 from
Ms. Furnas, a physician assistant, who diagnosed bilateral knee osteoarthritis. Certain healthcare
providers, such as physician assistants, are not considered “physician[s]” as defined under FECA.15
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.16
The record also contains reports summarizing diagnostic testing. The Board has held that
diagnostic studies, standing alone, lack probative value on the issue of causal relationship, as they
do not address whether the employment incident caused any of the diagnosed conditions.17 Thus,
these reports are insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence explaining causal
relationship between her bilateral knee conditions and the accepted factors of her federal
employment, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her proof to establish bilateral knee conditions
causally related to the accepted factors of her federal employment.

15

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

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 CF.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (Lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); see also E.T., Docket No. 21-0014 (issued May 20, 2021); K.W., 59 ECAB 271, 279 (2007).
16

17

K.S., Docket No. 19-1623 (issued March 19, 2020); M.J., Docket No. 19-1287 (issued January 13, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the November 5, 2019 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: July 27, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, 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
__________________________________________
E.B., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Morgantown, WV, Employer
__________________________________________

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

Docket No. 16-1521
Issued: February 3, 2017

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 July 22, 2016 appellant filed a timely appeal from a July 7, 2016 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). The most recent merit decision was
the November 22, 2010 decision of the Board, which became final after 30 days of issuance and
is not subject to further review. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c), 501.3 and 501.6(d), the Board lacks jurisdiction over the merits of
this claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence following the July 7, 2016 decision. Since the Board’s
jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board may not
consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB
126 (2005).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as
presented in the prior decisions and orders of the Board are incorporated herein by reference.
The relevant facts are set forth below.
On August 18, 1978 appellant, then a 35-year-old cook foreman, resigned from the
employing establishment. On November 20, 2008 he filed an occupational disease claim (Form
CA-2) alleging that he developed delayed onset of post-traumatic stress disorder (PTSD) due to
his constructive termination from employment on or about August 6, 1978. Appellant indicated
that he first became aware of his condition and realized it resulted from his employment on
February 15, 2004. He explained that he did not file his claim within 30 days of becoming aware
of his employment-related condition because the condition was not diagnosed prior to
February 15, 2004.4
In a letter dated November 21, 2008, appellant related that he was diagnosed with
delayed onset PTSD on February 15, 2004. He noted that he promptly notified the employing
establishment in 2004 when he learned of his mental impairment. Appellant alleged that the
constructive discharge by the employing establishment on or about August 6, 1978 caused or
contributed to his diagnosis.
Appellant provided a July 7, 2004 neuropsychological evaluation report by Dr. Martin L.
Boone, a neuropsychologist. Dr. Boone reviewed appellant’s history and indicated that he likely
began to experience symptoms of PTSD when he returned from Vietnam in 1968. He reported
that appellant experienced a substantial increase in symptoms after he was forced to retire from
the employing establishment due to a very stressful occupational experience associated with his
employment at the employing establishment in the late 1970s. He explained that the employing
establishment forced appellant to resign or he would be fired without any apparent justification.
Dr. Boone diagnosed delayed onset PTSD.
By letter dated December 15, 2008, C.D., a workers’ compensation and employee health
coordinator at the employing establishment, controverted appellant’s claim alleging that it was
untimely filed within the three-year time limitation. She asserted that he indicated that he first
became aware of his condition on February 15, 2004, but did not file an occupational disease
claim until November 2008. C.D. also pointed out that appellant had not been employed by the
employing establishment since 1978 and that he has been gainfully employed since he retired.
By letter dated February 20, 2009, OWCP advised appellant that the evidence submitted
was insufficient to establish his occupational disease claim. It requested additional evidence to
support that he sustained a diagnosed medical condition as a result of factors of his employment.
3

Docket No. 15-0766 (issued October 5, 2015); Docket No. 14-141 (issued May 14, 2014); Docket No. 12-0004
(issued January 25, 2012); Docket No. 10-0673 (issued November 22, 2010).
4

Appellant is currently receiving benefits from the Department of Veterans Affairs (VA) for service-connected
PTSD due to his military service from 1967 to 1976. He is also receiving disability benefits from the Social
Security Administration (SSA) for anxiety disorders.

2

OWCP specifically noted that it did not appear that appellant timely filed his claim within three
years of the date of injury or date of awareness of a relationship between the claimed condition
and his employment as required under 5 U.S.C. § 8122. It requested evidence to support that his
claim was timely filed. Appellant was afforded 30 days to submit the additional evidence.
On May 15, 2009 OWCP received appellant’s response to its development letter and
completed questionnaire form. Appellant related that in July 2004 Dr. Boone diagnosed delayed
onset PTSD and opined that his condition was a result of the forceful resignation by his
supervisors. He explained that he began having problems in 1978, but he never really knew what
his problems were prior to 2004. Appellant discussed the medical treatment he received.
OWCP denied appellant’s occupational disease claim in a decision dated July 10, 2009.
It determined that the record of evidence established that appellant was aware or should have
been aware of his alleged employment-related condition on or about July 7, 2004. OWCP noted
that because appellant did not file his occupational disease claim until November 20, 2008, his
claim was untimely filed within the three-year time limitation pursuant to 5 U.S.C. § 8122.
Appellant, through counsel, requested a telephone hearing before an OWCP hearing
representative in a letter dated July 23, 2009. A hearing was held on October 23, 2009. Counsel
was present. Appellant explained that in 2004 he was diagnosed with delayed onset PTSD due
to his alleged forceful resignation in 1978 and he had immediately reported the injury to the
employing establishment. He related that the employing establishment advised him to reopen his
old Equal Employment Opportunity Commission (EEOC) case for discrimination and did not
inform him about filing a workers’ compensation claim. Appellant asserted that if he had known
about filing a workers’ compensation injury in 2004 he would have filed a claim. He noted that
he did not know that he could file a workers’ compensation claim until 2008. Counsel argued
that this case was not a question of when appellant knew about his condition, but whether he
knew what to do about filing a claim. He alleged that appellant properly informed the employing
establishment about the delayed onset PTSD in 2004.
In a July 27, 2009 progress note, Dr. Abdel Massoud, a psychiatrist, related that appellant
had been under his care since 2001 for depression and PTSD, which made him not able to make
good decisions for himself in a timely manner.
On September 3, 2009 OWCP received a statement from appellant. Appellant corrected
discrepancies he found in the record and alleged that the various errors in his record were
affecting how OWCP reviewed his case. He further clarified that he believed his serviceconnected PTSD with the VA was different from the PTSD delayed onset that he experienced
after his alleged forceful resignation in August 1978.
Appellant submitted various documents from the EEOC. He provided a September 19,
2007 letter, which advised appellant that he had exhausted all administrative remedies regarding
his April 12, 2004 complaint. Appellant also submitted a decision dated June 20, 2006 from the
U.S. District Court for the Northern District of West Virginia, which denied defendant’s motion
for summary judgment regarding a civil action that appellant filed on March 29, 2005 for
disability due to delayed onset PTSD as a result of forceful resignation. He also provided a

3

decision dismissing plaintiff’s complaint from the U.S. District Court for the Northern District of
West Virginia.
In a decision dated December 14, 2009, the hearing representative affirmed OWCP’s
July 10, 2009 decision. He determined that the record established that appellant did not file a
timely occupational disease claim under 5 U.S.C. § 8122 and appellant’s unawareness of the law
was insufficient to provide an exception to the three-year filing requirement.
Appellant filed an appeal before the Board. By decision dated November 22, 2010, the
Board affirmed the December 14, 2009 decision. The Board determined that appellant’s
November 20, 2008 claim was untimely filed within three years pursuant to 5 U.S.C. § 8122 and
there was no evidence that appellant’s supervisor had actual knowledge of his injury within 30
days of his last date of employment exposure.5
Appellant subsequently filed multiple requests for reconsideration of OWCP’s
December 14, 2009 decision. OWCP denied appellant’s reconsideration requests by nonmerit
decisions dated January 5, 20116 and July 12, 2013,7 both of which were subsequently reviewed
by the Board.
OWCP received appellant’s latest request for reconsideration on January 5, 2016. In a
letter dated December 21, 2015, appellant noted that he contacted OWCP multiple times but had
not heard back about his 2004 work-related injury. He alleged that he put the employing
establishment on notice when he was first diagnosed with a work-related injury. Appellant
claimed that in February and July 2004 he reported his injury to the employing establishment,
but they failed to inform OWCP of the reported injury. He stated that the employing
establishment did not inform him of how to file a workers’ compensation claim, but instead
advised him to re-file his claim with the EEOC. Appellant noted that he was enclosing a copy of
the 8120 form (Report of Injury) and EEOC documentation. He asserted that the documentation
would prove that the employing establishment had actual knowledge of the injury in 2004. No
additional documentation was enclosed with the reconsideration request.
5

Docket No. 10-0673 (issued November 22, 2010). Appellant filed a petition for reconsideration of the Board’s
decision. On June 10, 2011 the Board issued an Order Denying Petition for Reconsideration. Docket No. 10-673
(issued June 10, 2011).
6

Appellant filed an appeal of OWCP’s January 5, 2011 nonmerit decision before the Board. In Order Dismissing
Appeal dated January 25, 2012, the Board dismissed appellant’s appeal as untimely filed. Docket No. 12-0004
(issued January 25, 2012).
7

Docket No. 14-141 (issued May 14, 2014). Appellant appealed OWCP’s July 12, 2013 nonmerit decision,
which the Board affirmed by decision dated May 14, 2014. Docket No. 14-141 (issued May 14, 2014). Appellant
subsequently filed a petition for reconsideration, which the Board dismissed as untimely filed in an Order
Dismissing the Petition. Docket No. 14-141 (issued March 12, 2015). Following the Board’s March 12, 2015 Order
Dismissing the Petition, appellant wrote to the Board in a letter dated January 26, 2015. The Board considered the
letter as a request for a new appeal and assigned Docket No. 15-0766. By Order Dismissing Appeal dated May 11,
2015, the Board dismissed appellant’s appeal because there was no final adverse OWCP decision over which the
Board may properly exercise jurisdiction. Docket No. 15-766 (issued May 11, 2015). Appellant filed a petition for
reconsideration before the Board, which the Board dismissed by Order Dismissing Petition for Reconsideration
dated October 5, 2015.

4

In letters dated January 10 and 17, 2016, appellant asserted that after Dr. Boone informed
him in July 2004 that he had a work-related injury he reported the injury to the employing
establishment, but they did not report his work-related injury to OWCP as required. He related
that the employing establishment advised him to file an EEOC claim, which they eventually
denied, and did not inform him to file a claim for workers’ compensation. Appellant noted that
he had been fighting the employing establishment for years and they continued to allege that his
claim was untimely filed even though they had actual knowledge of his work injury in 2004. He
claimed that he followed all OWCP rules and that the employing establishment had not.
Appellant explained that he had a latent condition, which meant that the time began to run when
he became aware of his condition. He noted that he was unaware of his condition until
Dr. Boone examined him in 2004.
Appellant provided an annotated copy of 5 U.S.C. § 8120 regarding the employing
establishment’s responsibility to report an injury and 5 U.S.C. § 8122 regarding the timeframe to
file a claim under FECA.
By decision dated February 24, 2016, OWCP denied merit review of the Board’s May 11,
2015 order because appellant’s January 5, 2016 reconsideration request did not meet any of the
requirements requiring further merit review under 5 U.S.C. § 8128(a). The Board found that he
did not establish that OWCP erroneously applied or interpreted a point of law or advance any
new legal argument not previously considered. OWCP further determined that the evidence
submitted was cumulative, and thus, substantially similar to evidence or documentation already
considered.
Appellant filed an appeal before the Board. By decision dated June 1, 2016, the Board
set aside the February 24, 2016 OWCP decision, which denied further merit review of
appellant’s claim under 5 U.S.C. § 8128(a).8 It determined that OWCP erroneously noted that
the decision under review was the Board’s May 11, 2015 order, which dismissed appellant’s
January 26, 2015 appeal for lack of jurisdiction, but the last OWCP merit decision was the
OWCP hearing representative’s December 14, 2009 decision.9 The Board remanded the case for
OWCP to properly adjudicate appellant’s January 5, 2016 reconsideration request under the
standard for an untimely request for reconsideration.
By de novo decision dated July 7, 2016, OWCP denied appellant’s January 5, 2016
reconsideration request because it was untimely filed and failed to demonstrate clear evidence of
error. It determined that because appellant’s reconsideration request of the last merit decision
was received on January 5, 2016 it was not timely filed within the one-year time limitation.
OWCP further found that appellant’s reconsideration request and evidence submitted failed to
demonstrate clear evidence that OWCP’s decision was in error.
8

Docket No. 16-0746 (issued June 1, 2016). The above-mentioned Board decision is incorporated herein by
reference.
9

While the Board’s prior decision noted that the last OWCP merit decision was the December 14, 2009 decision,
the Board notes that the Board’s November 22, 2010 decision was the last merit decision of record. Appellant had
one year from November 22, 2010 to file a timely request for reconsideration with OWCP. A right to
reconsideration within one year accompanies any subsequent merit decision. This includes ... any merit decision by
the Board. R.M., Docket No. 15-538 (issued September 23, 2016).

5

LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant’s application for reconsideration must be received by OWCP within one year of the
date of OWCP’s decision for which review is sought.10 The Board has found that the imposition
of the one-year time limitation does not constitute an abuse of the discretionary authority granted
OWCP under section 8128(a) of FECA.11
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, it must nonetheless
undertake a limited review of the evidence previously of record to determine whether the new
evidence demonstrates clear evidence of error on the part of OWCP in its most recent merit
decision.12 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record.13 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of OWCP
such that it improperly denied merit review in the face of such evidence.14
To demonstrate 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.15 Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error.16 It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. 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.17
ANALYSIS
The last merit decision in the case was the Board’s November 22, 2010 decision, which
affirmed OWCP’s December 14, 2009 decision denying appellant’s occupational disease claim
because it was untimely filed under 5 U.S.C. § 8122. Appellant submitted several requests for

10

20 C.F.R. § 10.607(a).

11

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

12

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

13

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

14

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

15

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

16

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

17

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

6

reconsideration before OWCP, which were denied. Appellant’s latest request for reconsideration
was dated December 21, 2015 and received on January 5, 2016.
The only decision before the Board on this appeal is the July 7, 2016 OWCP decision,
which declined to reopen appellant’s case on the merits because his request was untimely filed
and failed to demonstrate clear evidence of error. The Board finds that OWCP properly
determined that appellant failed to file a timely application for review. OWCP received
appellant’s latest request for reconsideration on January 5, 2016, which was more than one year
after the November 22, 2010 decision and was therefore outside the one-year time limit.18
Consequently, appellant must demonstrate clear evidence of error by OWCP in denying his
claim for compensation.19
The Board finds that appellant has not demonstrated clear evidence of error by OWCP.
OWCP denied appellant’s occupational disease claim because he did not file a timely claim
under 5 U.S.C. § 8122. It found that appellant was aware or should have been aware of his
alleged work-related injury on or about July 7, 2004, but he did not file his occupational disease
claim until, approximately four years later on November 20, 2008. OWCP determined that
appellant did not file his claim within the three-year time limitation under 5 U.S.C. § 8122 and
failed to establish that the employing establishment had actual knowledge of his injury within 30
days. Along with his most recent January 5, 2016 reconsideration request, appellant reiterated
his previous arguments that the employing establishment had actual knowledge of his workrelated injury within 30 days of July 7, 2004. He reported that he informed the employing
establishment about his injury in February and July 2004, and they advised him to file an EEOC
complaint. Appellant asserted that the employing establishment failed to inform him that he
needed to file a separate claim for workers’ compensation and also failed to report the injury to
OWCP as required by OWCP regulations. He provided an annotated copy of two FECA
statutory provisions, 5 U.S.C. §§ 8120 and 8122.
The Board finds that appellant’s duplicative contentions do not raise a substantial
question as to whether OWCP’s decision finding that his claim was untimely filed was
erroneous.20
Appellant merely reasserted his previous arguments that the employing
establishment had actual knowledge of his alleged work-related injury because he informed them
of his condition in 2004. OWCP has previously considered these arguments in its prior decision
and found them to be insufficient. Appellant’s assertions did not raise a substantial question as
to the correctness of OWCP’s decision.21 Furthermore, the annotated copy of FECA statutes also
fail to support that OWCP committed an error in denying appellant’s occupational disease

18

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602(4) (October 2011).
For decisions issued on or after August 29, 2011, the one-year period begins on the date of the original decision, and
the application for reconsideration must be received by OWCP within one year of the date of its decision for which
review is sought.
19

20 C.F.R. § 10.607(b); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005).

20

Supra note 16.

21

Id.

7

claim.22 Appellant has not presented any additional evidence to establish that he filed a timely
occupational disease claim under 5 U.S.C. § 8122 or that the employing establishment had actual
knowledge of his work-related injury within 30 days sufficient to establish that OWCP’s denial
decision was clearly erroneous.
To demonstrate clear evidence of error, it is not sufficient to merely show that the
evidence could be construed so as to produce a contrary conclusion. The term clear evidence of
error is intended to represent a difficult standard.23 The Board finds that the arguments and
evidence submitted by appellant in support of his untimely request for reconsideration do not
constitute positive, precise, and explicit evidence, which manifested on its face that OWCP
committed an error in denying appellant’s occupational disease claim.24 Therefore, appellant
failed to meet his burden of proof to demonstrate clear evidence of error on the part of OWCP.
On appeal, appellant alleges that the reconsideration of all his cases were filed within the
one-year time limitation. He notes that he requested an appeal before the Board on
November 22, 2010 and a hearing before an OWCP hearing representative on December 19,
2010, which would be within the one-year time limitation of the December 14, 2009 decision.
The Board notes that the November 22, 2010 appeal and December 14, 2009 hearing request are
not presently before the Board. These previous appeals have been considered. The current issue
before the Board is whether appellant’s latest reconsideration request dated December 21, 2015
and received on January 5, 2016 demonstrated clear evidence of error by OWCP sufficient to
warrant further merit review of appellant’s case. For reasons explained above, the Board has
found that appellant did not meet his burden of proof to establish that his untimely January 5,
2016 reconsideration request demonstrated clear evidence of error in OWCP’s December 14,
2009 merit decision. Accordingly, OWCP properly denied his request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

22

Supra note 14.

23

Supra note 18 at Chapter 2.1602.5a (October 2011).

24

Supra note 15.

8

ORDER
IT IS HEREBY ORDERED THAT the July 7, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 3, 2017
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

9


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

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

Docket No. 11-811
Issued: February 2, 2012

Case Submitted on the Record

ERRATUM
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

The Board issued an order remanding case in the above-entitled case on
December 19, 2011. On page 1 of its order, the first sentence stated: “On February 11, 2011
appellant filed a timely appeal from August 18 and November 10, 2010 merit decisions of the
Office of Workers’ Compensation Programs (OWCP) granting him a schedule award.” The
Board notes that the correct first sentence should read: “On February 11, 2011 appellant filed a
timely appeal from August 18 and November 12, 2010 merit decisions of the Office of Workers’
Compensation Programs (OWCP) granting him a schedule award.”
On page 2 of its order, the following was included in the “Order” portion: “IT IS
HEREBY ORDERED THAT the decisions of the Office of Workers’ Compensation Programs
dated November 10 and August 18, 2010 are set aside and the case is remanded for further
proceedings consistent with this order of the Board.” The Board notes that the correct “Order”
should read: “IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 12 and August 18, 2010 are set aside and the case is
remanded for further proceedings consistent with this order of the Board.”

Issued: February 2, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oak Ridge, TN, Employer
__________________________________________

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

Docket No. 13-102
Issued: March 28, 2013

Case Submitted on the Record

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

JURISDICTION
On October 15, 2012 appellant filed a timely appeal from a July 19, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
benefits effective July 19, 2012 on the grounds that she no longer had any disability causally
related to her accepted employment-related injuries.
FACTUAL HISTORY
This case has previously been before the Board. In a March 19, 2012 decision, the Board
reversed OWCP’s April 18, 2011 decision terminating compensation benefits. It found that
1

5 U.S.C. §§ 8101-8193.

OWCP improperly based its termination decision on the medical opinion of Dr. Arsen H.
Manugian, an attending Board-certified orthopedic surgeon. The Board found that OWCP did
not meet its burden of proof to terminate wage-loss compensation benefits.2 Appellant’s
compensation for wage loss was reinstated effective May 8, 2011. The facts of the case as set
forth in the Board’s prior decision are incorporated herein by reference.
In a January 31, 2012 report, Dr. Manugian noted appellant’s complaints of right wrist
pain, which occurred at work, and left heel pain. He noted that she had not returned to work
since her last visit. While it was previously recommended that she return to regular duty to an
eight-hour shift standing and walking for four hours at a time, his recommendation was
apparently unclear. Dr. Manugian noted examination findings. He released appellant to regular
duty, noting that she could work an eight-hour shift but could only stand and walk for four hours
a day and follow-up as needed. Dr. Manugian noted that there were no new recommendations,
stating that the natural history of plantar fasciitis was discussed with appellant.
OWCP referred appellant to Dr. James T. Galyon, a Board-certified orthopedic surgeon,
for a second opinion examination to determine the extent of work-related disability. In a
May 16, 2012 report, Dr. Galyon reviewed the statement of accepted facts and the medical
record and provided findings on examination. He found that appellant no longer had disability or
physical restrictions for work as a result of her employment injury. Dr. Galyon stated that she
had a multiplicity of problems, with the conditions of plantar fasciitis in her left foot and
de Quervain’s tenosynovitis of the right wrist being accepted as work related. With regard to the
de Quervain’s of the right wrist, he opined that it had been satisfactorily treated and had
resolved. Appellant’s complaints in both hands and specifically the right hand was clearly
related to carpal tunnel syndrome because it followed the enervation of the median nerve into her
thumb, index and middle fingers on both hands and was essentially symmetrical on the operated
and unoperated right and left hands. Dr. Galyon did not believe that the carpal tunnel syndrome
was work related and it was not listed in the statement of accepted facts. He stated that the
current disability due to the wrist, if any, was due to persistent carpal tunnel syndrome and
peripheral neuropathy, neither of which was accepted as work related. With regard to the left
foot plantar fasciitis, Dr. Galyon noted that the condition was work related and had been treated
appropriately. He opined that the symptoms of appellant’s plantar fasciitis were not significant
enough to render her disabled and that she could work at her usual job; however, he believed that
she needed continued treatment for her plantar fasciitis. Dr. Galyon advised that a course of
exercises to stretch out the plantar fascia would likely resolve the situation. He stated that
appellant may be restricted from her regular work due to her other medical problems, which were
nonwork-related conditions.
On June 12, 2012 OWCP issued a notice of proposed termination of medical benefits for
the aggravation of de Quervain’s tenosynovitis, right wrist and compensation for wage loss for
the accepted conditions of aggravation of de Quervain’s tenosynovitis, right wrist and left foot

2

Docket No. 11-1701 (issued March 19, 2012). On July 1, 2010 appellant, a sales service associate, filed an
occupational disease claim for her right wrist and left foot problems. She stopped work and did not return. OWCP
accepted the claim for aggravation of de Quervain’s tenosynovitis, right wrist and left foot plantar fasciitis.
Appropriate compensation for medical and wage loss were paid.

2

plantar fasciitis based on the Dr. Galyon’s May 16, 2012 medical opinion.
afforded 30 days to submit additional evidence.3

Appellant was

In a July11, 2012 letter, appellant requested a copy of the statement of accepted facts and
an extension of time to reply to OWCP’s pending review of the statement of accepted facts. In
another July 11, 2012 letter, she disagreed with the proposed termination of wage-loss
compensation. Appellant argued that OWCP could not terminate compensation for her accepted
left foot plantar fasciitis condition as Dr. Galyon found that it had not resolved and continued to
be painful and work related. She argued that Dr. Galyon’s opinion was filled with inaccuracies,
discussed other medical problems and diagnoses for which he did not have sufficient references
or documentation and was based on an inaccurate statement of accepted facts. Appellant
contended that the statement of accepted facts did not contain an accurate job description. She
noted that she was a sales service and distribution associate clerk and that the distribution part of
the job required strenuous challenging duties. Appellant also argued that a medical conflict
existed between Dr. Manugian and Dr. Galyon regarding the accepted plantar fasciitis of the left
foot.
By decision dated July 19, 2012, OWCP terminated appellant’s wage-loss and medical
benefits for the aggravation of de Quervain’s tenosynovitis, right wrist and wage-loss benefits for
left foot plantar fasciitis.4
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.6 OWCP’s burden of proof in terminating compensation includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.8 To terminate authorization for medical treatment,

3

OWCP noted that appellant would continue to receive medical benefits for the left foot plantar fasciitis
condition due to the March 31, 2010 employment injury.
4

Appellant’s request for a copy of the statement of accepted facts and an extension of time to review the accuracy
of the statement of accepted facts was denied as a copy of the case file, which included the statement of accepted
facts, was provided to her on May 24, 2012.
5

Bernadine P. Taylor, 54 ECAB 342 (2003).

6

Id.

7

Gewin C. Hawkins, 52 ECAB 242 (2001).

8

Roger G. Payne, 55 ECAB 535 (2004).

3

OWCP must establish that appellant no longer has residuals of an employment-related condition
which requires further medical treatment.9
ANALYSIS
OWCP accepted that appellant sustained aggravation of de Quervain’s tenosynovitis,
right wrist and left foot plantar fasciitis. It terminated her compensation benefits for the wrist
condition and wage-loss benefits for the left foot condition effective July 19, 2012 on the
grounds that the conditions had resolved or there was no disability from work due to the
March 31, 2010 work injury. OWCP accorded determinative weight to the opinion of
Dr. Galyon, the second opinion specialist.
The Board finds Dr. Galyon’s opinion sufficiently rationalized to establish that
appellant’s employment-related aggravation of de Quervain’s tenosynovitis of the right wrist had
resolved and that the residuals from the accepted left plantar fasciitis do not disable her from
performing her date-of-injury job. In a comprehensive report dated May 16, 2012, Dr. Galyon
reviewed the statement of accepted facts and the medical record and reported findings on
physical examination. He opined that the employment-related aggravation of de Quervain’s
tenosynovitis of the right wrist had been satisfactorily treated and had resolved. Dr. Galyon
opined that appellant’s current complaints in both hands, specifically the right hand, were
attributable to carpal tunnel syndrome and/or peripheral neuropathy and that neither condition
was work related or listed as an accepted condition in the statement of accepted facts.10 He
further opined that the employment-related left plantar fasciitis, while symptomatic, was not
significant enough to be disabling. Dr. Galyon explained that any job restrictions were
attributable to nonwork-related conditions.
Dr. Manugian, appellant’s attending physician, released appellant to regular duty for her
plantar fasciitis condition, noting that she may work an eight-hour shift but could only stand and
walk for four hours of an eight-hour day. These restrictions, however, are prophylactic in nature
as he stated such recommendations of standing and walking for half of an eight-hour shift might
be helpful. Dr. Manugian did not explain the reasons why any continuing restrictions would be
due to appellant’s accepted conditions. The medical evidence of record did not provide reasoned
support to establish that appellant had any ongoing disabling residuals due to the March 31, 2010
work injury. As noted, OWCP did not terminate medical benefits for the left plantar fasciitis.
Before OWCP and on appeal, appellant contended that Dr. Galyon’s report was not based
on an accurate factual and medical background. While she contends that the statement of
accepted facts contains inaccuracies, she has failed to elaborate on any activities she performs
which were not described as part of the physical requirements of her job. An inaccurate job title
would not render a statement of accepted facts inaccurate.

9

Pamela K. Guesford, 53 ECAB 726 (2002).

10

See T.M., Docket No. 08-975 (issued February 6, 2009) (for conditions not accepted or approved by OWCP as
being due to an employment injury, the claimant bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence).

4

The Board finds that Dr. Galyon’s report is based on an accurate factual background and
provides sufficient medical rationale for his conclusions.11 OWCP, therefore, met its burden of
proof to terminate appellant’s medical benefits for the employment-related aggravation of
de Quervain’s tenosynovitis of the right wrist and wage-loss compensation for both the
employment-related aggravation of de Quervain’s tenosynovitis of the right wrist and the left
plantar fasciitis as the weight of the medical evidence indicates that she no longer had any
disability causally related to her accepted employment-related injuries.
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 OWCP met its burden of proof to terminate appellant’s benefits
effective July 19, 2012 on the grounds that she no longer had any disability causally related to
her accepted employment-related injuries. Appellant remains entitled to medical benefits for her
left plantar fasciitis.

11

Michael S. Mina, 57 ECAB 379 (2006) (in accessing medical evidence, the weight of such evidence is
determine by its reliability, its probative value and its convincing quality; the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested and the medical rationale expressed in support of the physician’s opinion, are facts which
determine the weight to be given to each individual report).

5

ORDER
IT IS HEREBY ORDERED THAT the July 19, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DORIS MILLER VA MEDICAL CENTER,
Waco, TX, Employer
__________________________________________

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

Docket No. 21-1296
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On August 28, 2021 appellant filed a timely appeal from an April 5, 2021 merit decision
and an August 24, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 24, 2021 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a traumatic
injury in the performance of duty on January 29, 2021, as alleged; and (2) whether OWCP properly
denied appellant’s request for an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On February 24, 2021 appellant, then a 61-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that, on January 29, 2021, she sustained injuries to her neck,
back, hips, right arm, right elbow, right leg, and right knee while in the performance of duty. She
reported that, as she turned right on the sidewalk toward her car, she stepped into a hole in the
ground, causing her to lose her balance, twist her body, and fall backwards. Appellant also claimed
that she experienced blurred vision, difficulty balancing, and intermittent headaches. On the
reverse side of the claim form, her supervisor, indicated that appellant was not injured in the
performance of duty because she was leaving work for the day at the time of the fall. She stopped
work on February 1, 2021.
In a March 2, 2021 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her as to the type of factual and medical evidence required and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to respond. No further
evidence was received.
By decision dated April 5, 2021, OWCP denied appellant’s traumatic injury claim, finding
that the submitted evidence did not establish that the January 29, 2021 incident occurred, as
alleged. It noted that appellant had not completed and returned its factual questionnaire. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
OWCP subsequently received a February 5, 2021 medical report from Dr. Gilbert
Mayorga, a Board-certified family medicine specialist, relating that appellant was “performing her
usual job duties” on or about January 29, 2021 and, as she was exiting the building, lost her footing,
slipped, and fell backwards, twisting her right knee. He noted appellant’s symptoms of pain,
discomfort, and loss of range of motion in her neck, thoracic spine, and lumbosacral spine, pain
and discomfort of the right upper extremity, intermittent numbness and tingling in the upper and
lower extremities, and pain, discomfort, swelling, and abrasions to her right knee. He examined
appellant and diagnosed sprains of the cervical spine, thoracic spine, lumbosacral spine, right
elbow, right shoulder, right wrist, and right knee, as well as lumbar radiculitis, cervical radiculitis,
and abrasions and contusions of the right arm and right knee. Dr. Mayorga advised that appellant
should remain off work. 3

3

Appellant underwent multiple x-ray scans on February 12, 2021. The cervical spine x-ray revealed C2-3 facet
fusion and multilevel spondylosis with C4-5 anterior osteophyte formation. The lumbar spine x-ray revealed no acute
findings. The right knee x-ray revealed a bipartite patella with advanced degenerative change versus old healed
fracture with advanced degenerative change in the patellofemoral articulation. The right shoulder x -ray revealed
acromioclavicular arthropathy and probably calcific peritendinitis, but no evidence of fracture. The right elbow and
right wrist x-rays were negative for fracture or dislocation.

2

On July 2, 2021 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
By decision dated August 24, 2021, OWCP denied appellant’s request for an oral hearing
as untimely filed, finding that her request was not made within 30 days of the April 5, 2021 OWCP
decision as it was postmarked on July 2, 2021. It further exercised discretion and determined that
the issue in this case could equally well be addressed by a request for reconsideration before
OWCP along with the submission of new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 5 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury. 6 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 8 Fact
of injury consists of two components that must be considered in conjunction with one another.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time and place, and in the manner alleged. 9 Second, the employee
must submit sufficient evidence to establish that the employment inc ident caused a personal
injury.10
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.11 The employee has not met his or her burden of proof to establish th e occurrence of an
4

Supra note 1.

5

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

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

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

3

injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established. 12 An employee’s
statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on January 29, 2021, as alleged.
Appellant has not established the factual component of her claim as she has insufficiently
explained how and where the claimed injury occurred. 14 In her February 24, 2021 Form CA-1,
she indicated that on January 29, 2021 she sustained multiple injuries when she turned right on the
sidewalk toward her car, stepped into a hole in the ground, lost her balance, twisted, and fell
backwards. On the reverse side of the claim form her supervisor indicated that appellant was
leaving work for the day at the time of her injury. Appellant did not submit a detailed account of
the alleged injury or any additional corroborating factual evidence describing how and where she
sustained an injury on January 29, 2021. The Board has held that such a vague recitation of facts
does not support a claimant’s allegation that a specific event occurred to cause a work-related
injury.15
OWCP, in its March 2, 2021 development letter, informed appellant of the type of factual
and medical evidence needed to establish her traumatic injury claim. It requested that she complete
an attached questionnaire and provide a detailed factual description of the alleged employment
incident. Appellant, however, did not respond.16
Appellant has not provided a sufficient description of the alleged employment incident and
the mechanism by which she sustained an injury; therefore, the Board finds that she has not met
her burden of proof.17 As appellant has not met her burden of proof to establish that an incident
occurred in the performance of duty, as alleged, it is unnecessary to address the medical evidence
of record regarding causal relationship.18

12

Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

13

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

14

See E.C., Docket No. 19-0943 (issued September 23, 2019).

15

M.C., supra note 13; M.B., Docket No. 11-1785 (issued February 15, 2012).

16

See M.F., supra note 11.

17

H.D., Docket No. 15-1698 (issued May 4, 2016).

18

J.C., Docket No. 19-0542 (issued August 14, 2019); see M.P., Docket No. 15-0952 (issued July 23, 2015);
Alvin V. Gadd, 57 ECAB 172 (2005).

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”19
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary. 20 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration. 21
Although there is no right to a review of the written record or an oral hearing if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124(b).
OWCP’s regulations provide that the request for an oral hearing must be made within 30
days of the date of the decision for which review is sought. 22 Because appellant’s hearing request
was postmarked on July 2, 2021, it post-dated OWCP’s April 5, 2021 decision by more than 30
days and, therefore, is untimely. Appellant was, therefore, not entitled to an oral hearing as a
matter of right. 23
OWCP, however, has the discretionary authority to grant the request and it must exercise
such discretion. 24 The Board finds that, in the August 24, 2021 decision, OWCP properly
exercised its discretion by determining that the issue in the case could be equally well addressed
through a request for reconsideration before OWCP, along with the submission of additional
evidence.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
19

5 U.S.C. § 8124(b)(1).

20

20 C.F.R. §§ 10.616, 10.617.

21

Id. at § 10.616(a).

22

Supra note 19; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record,
Chapter 2.1601.4(a) (September 2020).
23

See P.C., Docket No. 19-1003 (issued December 4, 2019).

24

Id.

5

exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.25 In this case, the evidence of record does not indicate that OWCP abused
its discretion by denying appellant’s request for an oral hearing. Accordingly, the Board finds that
OWCP properly denied her request for an oral hearing pursuant to 5 U.S.C. § 8124(b) as untimely
filed.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on January 29, 2021, as alleged. The Board further finds that
OWCP properly denied her request for an oral hearing as untimely filed pursuant to 5 U.S.C.
§ 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the April 5 and August 24, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

25

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
TENNESEE VALLEY AUTHORITY, BROWNS
FERRY NUCLEAR POWER PLANT,
Decatur, AL, Employer
__________________________________________

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

Docket No. 08-2189
Issued: May 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 8, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs nonmerit decision dated November 7, 2007 that denied her request for
reconsideration. Because more than one year has elapsed between the most recent merit decision
of June 22, 2006 and the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly utilized the proper standard of review when it
denied appellant’s request for reconsideration on the grounds that it was not timely filed and
failed to establish clear evidence of error.
FACTUAL HISTORY
On December 22, 2005 appellant, a 53-year-old laborer filed an occupational disease
claim (Form CA-2) for hearing loss. She reported having to ask people to repeat words during

conversations and speaking in loud tones. Appellant became aware of her hearing loss and its
connection to her employment on November 20, 2005. In support of her claim, she submitted
medical evidence consisting of the results from an audiogram performed October 20, 2005.
On March 29, 2006 the Office referred appellant to Dr. Benjamin Light, Board-certified
otolaryngologist, for a second opinion evaluation. By report dated May 24, 2006, Dr. Light
asserted that appellant had normal hearing. He further opined that if appellant had sustained any
measurable hearing loss, it was not likely to be consistent with a work-related injury.
By decision dated June 22, 2006, the Office denied appellant’s hearing loss claim
because the evidence submitted was insufficient to establish that she sustained an injury as
defined by the Federal Employees’ Compensation Act.
By letter dated October 18, 2006, appellant requested reconsideration.
In support of her request, appellant submitted two medical reports dated September 20
and 25, 2006, from Dr. Jason P. Lockette, a Board-certified otolaryngist, diagnosing appellant
with sensorineural hearing loss. Dr. Lockette’s medical history reported that appellant’s hearing
problem first began as chronic and was best described as both ears affected. Moreover, in a
September 16, 2006 medical report he reported that appellant’s hearing loss is consistent with
presbycusis and/or noise-induced hearing loss.
Appellant also submitted a September 25, 2006 audiogram performed by H. Gregory
Adams, an audiologist, who noted that the test results did not indicate a large hearing loss.
By decision dated November 7, 2007, the Office denied appellant’s request for
reconsideration of the June 22, 2006 decision, finding the request untimely and that she had not
established clear evidence of error by the Office.
LEGAL PRECEDENT
The Act provides that the Office may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision. The
employee shall exercise this right through a request to it. The request, along with the supporting
statements and evidence, is called the application for reconsideration.1
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.2
1

20 C.F.R. § 10.605 (1999).

2

Id. at § 10.606.

2

An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.3 A timely request for reconsideration may be granted if it
determines that the employee has presented evidence or argument that meets at least one of these
three standards. If reconsideration is granted, the case is reopened and the case is reviewed on its
merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.4
The Office will consider an untimely application only if the application demonstrates
clear evidence of error on the part of the Office in its most recent merit decision. The application
must establish, on its face, that such decision was erroneous.5
ANALYSIS
Appellant’s October 18, 2006 request for reconsideration was timely. She made this
request on October 18, 2006, only 17 weeks after the Office’s June 22, 2006 decision to deny
compensation for her hearing loss claim. It, therefore, should have determined whether appellant
presented evidence or argument that meets at least one of the three standards noted above. The
Office instead applied the standard reserved for untimely requests, namely, whether appellant’s
application presented clear evidence of error in the Office’s June 22, 2006 decision. This is a
higher standard of review not warranted by the circumstances of the case.
The Board will, therefore, set aside the Office’s November 17, 2007 decision denying
reconsideration and will remand the case to it for application of the proper standard of review
and for an appropriate final decision on appellant’s October 18, 2006 request for reconsideration.
CONCLUSION
The Board finds that the Office applied the wrong standard of review in denying
appellant’s October 18, 2006 request for reconsideration.

3

Id. at § 10.607(a).

4

Id. at § 10.608.

5

Id. at § 10.607.

3

ORDER
IT IS HEREBY ORDERED THAT November 7, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: May 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Louisville, KY,
Employer
__________________________________________

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

Docket No. 18-0932
Issued: March 24, 2020

Case Submitted on the Record

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

JURISDICTION
On April 3, 2018 appellant filed a timely appeal from a February 15, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the February 15, 2018 decision, appellant submitted additional evidence on appeal.
However, the Board’s Rules of Procedure provides: “the Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally related
to the accepted December 31, 2017 employment incident.
FACTUAL HISTORY
On January 2, 2018 appellant, then a 27-year-old maintenance worker, filed a traumatic
injury claim (Form CA-1) alleging that on December 31, 2017, he sustained a large knot on the
left side of his head and experienced soreness in his shoulder due to a motor vehicle accident
(MVA) while in the performance of duty. On the claim form a supervisor noted that appellant was
on a Hurricane Maria debris mission and acknowledged that he was in the performance of duty at
the time of the MVA.
An attached incident report indicated that the accident was work related. It noted that
appellant was traveling in his government-rented vehicle to a hotel to check in and was moving
slowly through a six-lane intersection which had a non-functional traffic signal when a vehicle in
the opposing lanes proceeded through the intersection at a high rate of speed, striking appellant’s
vehicle on the passenger’s side and causing it to roll over.
In an incident form report dated December 31, 2017, it was noted that Dr. Lloyd Santiago
Rodriguez, who practices family medicine, diagnosed a head contusion status-post a motor vehicle
incident and recommended rest and no physical activity for 24 to 48 hours and advised that
appellant should follow up for neurological deficit symptoms. The incident report also cleared
appellant to drive after 24 hours.
By development letter dated January 12, 2018, OWCP advised appellant that the evidence
of record was insufficient to support his claim. It informed him that he needed to submit a
physician’s opinion with a medical explanation as to how the December 31, 2017 incident resulted
in the diagnosed condition. OWCP afforded appellant 30 days to submit the requested medical
information. Appellant submitted no additional evidence within the allotted time.
By decision dated February 15, 2018, OWCP denied appellant’s claim. It found that,
although the evidence of record supported that the December 31, 2017 employment incident
occurred as alleged, the medical evidence submitted was insufficient to establish a medical
condition caused by the December 31, 2017 employment incident. OWCP concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time

3

Supra note 1.

2

limitation period of FECA, that an injury4 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place, and in the manner alleged. Second, the employee must
submit sufficient evidence, in the form of medical evidence, to establish that the employment
incident caused a personal injury.7 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical opinion evidence.8
Rationalized medical opinion evidence is medical evidence that includes a physician’s rationalized
opinion on whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty, and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury due to
the December 31, 2017 employment incident.
In his December 31, 2017 incident form report, Dr. Rodriguez diagnosed a head contusion
status-post a motor vehicle incident. As this is an incident report and not a medical report, it does
not constitute medical evidence and therefore lacks probative value on the issue of casual
relationship.11 The record contains no other medical evidence.
The issue of a causal relationship between a claimant’s claimed conditions and a workrelated incident is a medical question that must be established by probative medical opinion from
4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).
5

D.J., Docket No. 19-1301, issued January 29, 2020; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Id.

7

F.H., Docket No. 18-0869 (issued January 29, 2020); John J. Carlone 41 ECAB 354 (1989).

8

T.H., Docket No. 19-0599 (issued January 28, 2020); Robert G. Morris, 48 ECAB 238 (1996).

9

K.C., Docket No. 18-0529 (issued January 21, 2020); Victor J. Woodhams, 41 ECAB 345 (1989).

10

Supra note 5.

11

See C.S., Docket No. 12-1169 (issued November 5, 2012).

3

a physician.12 The Board finds that the medical evidence appellant submitted does not constitute
rationalized medical evidence sufficient to establish causal relationship between the December 31,
2017 work incident and any diagnosed condition.13 Accordingly, the Board finds that he has not
met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the December 31, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 15, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12

K.C., supra note 9.

13

See L.C., Docket No. 19-1301 (issued January 29, 2020).

4