United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., a.k.a., L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 13-1203
Issued: November 22, 2013

Case Submitted on the Record

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

JURISDICTION
On April 19, 2013 appellant filed a timely appeal of an October 22, 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 properly terminated appellant’s compensation effective
March 1, 2010 because she refused an offer of suitable work under 5 U.S.C. § 8106.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated May 13, 1998, the
Board affirmed an OWCP decision denying appellant’s request for authorization for surgery, as

1

5 U.S.C. § 8101 et seq.

untimely filed and failing to establish clear evidence of error.2 The facts as set forth in the
Board’s prior decision are hereby incorporated by reference.
On June 23, 1992 appellant, then a 34-year-old letter carrier, filed a traumatic injury
claim alleging that she fell on her back trying to escape some wasps that had flown out of a
mailbox. OWCP accepted the claim for lumbosacral strain and contusion of the back and paid
compensation benefits.
In order to determine the nature and degree of appellant’s employment-related disability,
on November 7, 2007, OWCP referred appellant to Dr. Bernard Albina, a Board-certified
orthopedic surgeon, for a second opinion. In a report dated November 27, 2007, Dr. Albina
opined that appellant had chronic lumbar strain, degenerative lumbar disc disease and
spondylolisthesis at L5-S1. He noted that the chronic lumbar strain was connected to the injury
on the job and that the chronic pain in her lower back with intermittent lumbar radiculopathy
were residuals of the employment injury. Dr. Albina gave appellant physical limitations
resulting from the employment-related disability of not lifting in excess of 10 pounds and no
repeated stooping and bending. He noted that appellant could probably do sedentary to lightduty type work and the potential for rehabilitation is affected by her amount of pain as well as
the chronicity of the pain that she suffered as a result of her injury.
In a February 20, 2008 report, Dr. Raul Sepulveda, appellant’s treating Board-certified
neurosurgeon, opined that appellant suffered a herniated disc in the lumbar spine with chronic
compression upon a nerve that produced chronic lumbar radiculopathy. He did not believe that
the diagnosis of chronic lumbar strain by itself fully explained appellant’s problems.
Dr. Sepulveda noted that appellant has physical limitations and that she had to take significant
analgesics and that this prevented her from driving safely. He opined that, at this point, he did
not feel it was safe for her to be in a working environment given the amount of medication she
had to take. Dr. Sepulveda did believe that appellant could perform sedentary-type activities, but
believed that these activities should be in a safe environment, such as her house. Accordingly,
there existed a conflict between Drs. Sepulveda and Albina with regard to whether appellant
should return to work.
On August 21, 2008 OWCP referred appellant to Dr. James Hood, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a report dated October 8, 2008,
Dr. Hood noted that the current diagnosis from the work injury is lumbar sprain. He noted that
he did not have the imaging films, so it was impossible to determine if appellant had
spondylolisthesis at its origin. Dr. Hood questioned appellant’s use of Bioflex gel, Vicodin (with
Tylenol) and Xanax. He did not believe that appellant should be off work. Specifically,
Dr. Hood opined that to be off work since 1992 because of soreness in one’s back without
neurological abnormalities is indefensible. He opined that appellant could work at a sedentary
level which allows for an occasional lifting of 1 to 10 pounds but that appellant cannot at this
time return to unrestricted duties as a letter carrier. In a work capacity evaluation of the same
date, Dr. Hood indicated that appellant could work eight hours a day, but did limit walking to
one hour; standing; bending/stooping and twisting to two hours; and reaching, including reaching
2

Docket No. 96-1887 (issued May 13, 1998).

2

above shoulder, to six hours. He also indicated that appellant should take a 15-minute break
every two hours.
On September 9, 2008 OWCP awarded appellant a schedule award for a two percent
impairment to the right lower extremity and a two percent impairment to the left lower extremity.
However, it noted that appellant was currently in receipt of compensation payments, and that a
schedule award and compensation payments cannot be paid simultaneously. OWCP also advised
appellant that, if she elected retirement benefits, she could collect schedule award benefits
concurrently, but that she must indicate her desire in writing.
Appellant continued to be treated by Dr. Sepulveda for chronic aching, burning and
occasional sharp low back pain with radiation into both legs. He continued to list appellant’s
problems as herniated lumbar disc and aftercare, long term use of medications.
On August 3, 2009 the employing establishment made an offer of limited duty to
appellant for work as a letter carrier. She would case the route, answer telephones and perform
customer service. The physical requirements of the modified assignment were standing,
reaching above the shoulder and fine manipulation limited to two hours, and communicating
with customers limited to six hours.
On January 26, 2010 appellant refused the modified assignment, contending that it was
against her doctor’s advice to accept the position. She noted that she was in a lot of pain and on
medication and that her doctor did not want her to be in a work environment. Appellant
contended that she would not be able to do the job and that she is retired.
On February 9, 2010 OWCP informed appellant that the duties of the position offered by
the employing establishment were within appellant’s restrictions as set by Dr. Hood, that the
employing establishment confirmed that the position remained available to her, and that she
should either accept the position or provide a written explanation of reasons for refusing the
position within 30 days.
By letter dated March 5, 2010, appellant contended that OWCP did not send Dr. Hood all
her medical reports that he refused the ones that she attempted to give him and that she saw
Dr. Hood for only 15 minutes but had been seeing her physician for 10 years. She argued that
her doctor contended that it was not safe for her to be in a work environment; that she had nerve
damage in her right leg which was resulting in falls; that she is always in pain in her back
radiating down her legs; that she suffers from a lot of pain in her knee shooting in to her hip; that
she cannot stand and case for two hours; and that her doctor till did not want her to reach above
her shoulder.
By letter dated March 17, 2010, OWCP noted that appellant’s reasons for not accepting
the position were not valid and it gave her an additional 15 days to report to the assignment.
On August 18, 2010 OWCP terminated appellant’s compensation and for wage loss and
schedule awards effective March 1, 2010 because the evidence established that she refused to
accept suitable work.

3

By letter dated October 6, 2010, appellant requested an oral hearing before an OWCP
hearing representative. OWCP’s Branch of Hearings and Review denied this request as untimely
in a decision dated December 27, 2010.
In a February 2, 2011 report, Dr. Sepulveda continued to list his impressions as herniated
lumbar disc and lumbar back pain. He opined that appellant was unable to stand up for the
required two hours to case mail, was unable to do overhead work for more than very limited
periods of time and that her ability to work with customers was at least partially limited due to
the fact that she has to take Trazadone and Xanax as adjuvants for control of pain as well as the
use of Hydrocodone which could possibly affect her ability to make decisions. In a May 12,
2011 decision, Dr. Sepulveda listed his impressions as herniated lumbar disc and aftercare, longterm use, medications necessary.
By letter dated February 3, 2011, appellant requested reconsideration. She stated that she
was trying to receive the schedule award that had already been awarded to her.
By decision dated September 7, 2011, OWCP denied appellant’s request for
reconsideration as the evidence was insufficient to warrant modification of the prior termination
decision dated August 18, 2010.
Appellant continued to submit reports by Dr. Sepulveda. In an August 31, 2011 report,
Dr. Sepulveda listed his impression as aftercare, long-term use of medications and herniated
lumbar disc.
He reiterated these impressions in reports of November 30, 2011 and
February 29, 2012. In his November 30, 2011 report, Dr. Sepulveda also noted that appellant
needed to have a workup for her hips to include a magnetic resonance imaging (MRI). He
informed appellant that the workup should be done with private insurance as there is no evidence
that this problem is related to her employment injury.
On September 5, 2012 appellant again requested reconsideration. She contended that her
doctor told her not to accept the job offer on February 3, 2011. Appellant stated that she was
tricked into choosing retirement benefits. She stated that she needs two hip replacements and
was not physically able to accept the job offer. Appellant contended that she was still suffering
from the same pain multiplied by 100 and still uses a cane for assistance with walking.
By decision dated October 22, 2012, OWCP denied modification of the previous
decisions.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 Section 8106(c)(2) of FECA4 provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or

3

Barry Neutuch, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).

4

5 U.S.C. §§ 8101-8193.

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secured for the employee is not entitled to compensation.5 OWCP may not terminate
compensation without establishing that the disability ceased or that it is no longer related to the
employment.6 The Board has started that monetary compensation payable to an employee under
section 8107 are payments made from the Employees’ Compensation Fund and are, therefore,
subject to penalty provision of section 8106(c).7
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refused to work after suitable work has been offered to or secured for the employee, has the
burden of showing that such refusal or failure to work was reasonable or justified.8 Pursuant to
section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.9
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.10
ANALYSIS
OWCP found a conflict in medical opinion arose between Dr. Sepulveda, appellant’s
treating physician, and the second opinion physician, Dr. Albina, with regard to appellant’s
ability to work. Accordingly, it referred appellant to Dr. Hood to resolve the conflict. In an
August 21, 2008 report, Dr. Hood found that appellant could work at a sedentary level which
allowed for an occasional lift of 1 to 10 pounds. He noted that, while the initial MRI scan
indicated a paracentral protrusion, at this time there was no focal nerve root compression or mass
effect on the exiting nerve roots, and that this has held through on subsequent imaging studies
indicating only minimal disc bulge. Dr. Hood stated that she relates that she has nerve damage,
but there was no evidence of that, noting that the EMG nerve conduction study done after the
work accident was normal. He noted that in addition to this, appellant had a normal neurological
examination with no significant signs of radiculopathy or neurological compromise. As this
impartial opinion is based on a proper factual and medical background it is, therefore, entitled to
special weight.11 The Board finds that the position offered by the employing establishment was
specifically set within the restrictions as advised by Dr. Hood. Accordingly, OWCP properly
relied upon the opinion of Dr. Hood, the impartial medical specialist, in determining that

5

Id. at § 8106(c)(2); see also Linda D. Guerrero, 54 ECAB 556 (2003).

6

Ronald M. Jones, 52 ECAB 190 (2000); Arthur R. Reck, 47 ECAB 339 (1995).

7

Sandra A. Sutphen, 49 ECAB 174 (1997); Stephen R. Lubin, 43 ECAB 564 (1992).

8

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 6.

9

Supra note 8 at § 10.516; see Kathy E. Murray, 55 ECAB 288 (2004).

10

Anna M. Delaney, 53 ECAB 384 (2002).

11

Darlene R. Kennedy, 57 ECAB 414 (2006).

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appellant had failed to accept suitable employment at the position with the employing
establishment and in terminating her compensation benefits.
The Board further notes that OWCP complied with its procedural requirements in
advising appellant that the position was found suitable, providing her with the opportunity to
accept the position or provide her reasons for refusing the job offer and notifying her of the
penalty provision of section 8106(c).12
The medical evidence submitted after the termination of compensation benefits is
insufficient to outweigh the well-rationalized opinion of the impartial medical examiner,
Dr. Hood. On reconsideration, appellant submitted multiple reports by her treating physician,
Dr. Sepulveda, who continued to list his impressions as herniated lumbar disc and lumbar back
pain. In a February 2, 2011 report, Dr. Sepulveda opined that appellant was unable to stand the
required two hours to case mail; that she was unable to do overhead work for more than very
limited periods of time and that her ability to work with customers was limited due to the fact
that she was on medication that would affect her ability to make decisions. As he was on one
side of the conflict that Dr. Hood resolved, his report is insufficient to overcome that of Dr. Hood
or to create a new medical conflict.13
On reconsideration, appellant contended that she needed two hip replacements.
However, her claim has not been accepted for an injury to her hips. In fact, Dr. Sepulveda,
appellant’s attending physician, specifically stated that appellant’s hip problems were not related
to her employment injury.
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 properly terminated appellant’s compensation effective
March 1, 2010 because she refused an offer of suitable work under 5 U.S.C. § 8106.

12

See Bruce Sanborn, 49 ECAB 176 (1997).

13

See S.J., Docket No. 09-1794 (issued September 20, 2010) (submitting a report from a physician who was on
one side of a medical conflict that an impartial specialist resolved is generally insufficient to overcome the weight
accorded to the report of the impartial medical examiner or to create a new conflict). See also Michael Hughes, 52
ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy Sidwell, 41 ECAB 857 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 22, 2012 is affirmed.
Issued: November 22, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, OFFICE OF THE
INSPECTOR GENERAL, San Juan, Puerto Rico,
Employer
__________________________________________

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

Docket No. 11-739
Issued: October 4, 2011

Case Submitted on the Record

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

JURISDICTION
On February 2, 2011 appellant filed a timely appeal from a December 2, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for
traumatic injury. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury on July 29, 2009 while in the performance of duty.

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2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the December 2, 2010 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence, together with a formal written
request for reconsideration to OWCP, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

FACTUAL HISTORY
On August 5, 2009 appellant, then a 42-year-old Office of Inspector General special
agent, filed a traumatic injury claim alleging that he was injured on July 29, 2009 when a letter
carrier he was investigating punched his chest and pushed him out of a vehicle causing him to
fall on the ground. Appellant landed on his hands and sustained minor abrasions to both palms.
He also sustained right shoulder bruising and left-sided chest pain.
Appellant submitted prescription slips dated July 29 and 30, 2009. A chart note from
General Medical dated July 29, 2009 was submitted which is largely illegible but which noted a
history of blunt trauma.
On August 18, 2009 OWCP requested appellant submit further evidence in support of his
claim, including a medical report that contained a diagnosis of his condition, and provided
medical rationale explaining whether the condition diagnosed was caused or exacerbated by
specific factors of his employment. The letter specified that he had 30 days to submit the
requested evidence.
In a September 18, 2009 decision, OWCP accepted that the July 29, 2009 incident
occurred as alleged, but denied the claim as appellant had not submitted sufficient medical
evidence to substantiate a diagnosed condition causally related to the accepted incident.
Appellant requested reconsideration on September 1, 2010. He submitted results of a
chest x-ray dated July 29, 2009, which was electronically signed by Oscar Alarcon.3 The x-ray
report recorded findings that “lungs are clear of consolidation. Cardiac silhouette is within
normal limits. Costophrenic angles are free.” It also noted that there was “no evidence of
pulmonary consolidation.”
Appellant submitted a September 15, 2009 medical note from Dr. David Storer-Blasini,
Board-certified in internal medicine, who stated that appellant had a “history of being attacked
by postal employee, which caused a fall,” and sustained trauma to his chest and abrasion to the
hands.
OWCP also received an October 28, 2009 letter from the Department of Justice. It
informed appellant of the criminal conviction of the letter carrier who assaulted him on
July 29, 2009.
By decision dated December 2, 2010, OWCP found that appellant did not establish a
medical condition causally related to the accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden to establish the essential
elements of his claim including the fact that the individual is an employee of the United States
3

The Board cannot verify whether Oscar Alarcon is a physician.

4

5 U.S.C. §§ 8101-8193.

2

within the meaning of FECA, that the claim was timely filed, 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
ANALYSIS
OWCP accepted that appellant was assaulted on July 29, 2009. On December 2, 2010 it
denied the claim based on the insufficiency of the medical evidence. The Board finds that
appellant has established that he sustained abrasions of his palms caused by the accepted
incident; however he has not submitted sufficient medical evidence to establish that he sustained
a shoulder or chest injury as a result of the accepted assault. Appellant explained that he was
pushed from his vehicle on July 29, 2009. He broke his fall with his hands and landed on his
palms, sustaining abrasions. In his September 15, 2009 report, Dr. Storer-Blasini provided an
accurate history of the accepted incident and provided findings of abrasions to appellant’s palm.8
Given the simple nature of this injury, the Board accepts that he sustained abrasions to his palms
on July 29, 2009.
Appellant has submitted insufficient medical evidence, however, to establish other
medical conditions, caused by the accepted incident. None of the evidence of record diagnosed
appellant with a shoulder or chest condition. The July 29, 2009 diagnostic test results indicated
there was “no evidence of pulmonary consolidation.” Dr. Storer-Blasini’s report generally
indicated that the attack led to trauma to appellant’s chest; but any such trauma was not
described in detail nor was a firm medical diagnosis provided. His report does not satisfy
appellant’s burden of proof.

5

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

8

In clear-cut traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative statement
is sufficient and no rationalized opinion on causal relationship is needed. In all other traumatic injury claims a
rationalized medical opinion supporting causal relationship is required. Federal (FECA) Procedure Manual, Part 2 -Claims, Causal Relationship, Chapter 2.805.3(d)(2) (June 1995).

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CONCLUSION
The Board finds that appellant sustained abrasions to his palms on July 29, 2009.
Appellant has not established that he sustained a shoulder or chest injury due to the July 29, 2009
incident.
ORDER
IT IS HEREBY ORDERED THAT the December 2, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: October 4, 2011
Washington, DC

Alec J. Koromilas, 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.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Charlotte, NC,
Employer
__________________________________________

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

Docket No. 10-1077
Issued: March 17, 2011

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 March 10, 2010 appellant filed a timely appeal from an October 22, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs. Because more than 180 days
elapsed between the Office’s last merit decision dated April 24, 2009 to the filing of this appeal,
the Board lacks jurisdiction to review the merits of the case pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether appellant abandoned a hearing scheduled for October 6, 2009.
FACTUAL HISTORY
On January 26, 2009 appellant, then a 41-year-old mail processing clerk, filed an
occupational disease claim alleging that she sustained severe left shoulder and moderate right
shoulder pain as a result of lifting mail trays weighing up to 30 pounds over her head for 8 to 12
hours each workday. She became aware of her condition on November 25, 2008 and its

relationship to her federal employment on December 3, 2008. Appellant did not stop work. She
noted that she previously injured her left shoulder in 2004 or 2005 while performing the same
task at the employing establishment.
Appellant submitted 2006 medical reports from several physicians regarding her left
shoulder condition. In a December 3, 2008 report, Dr. James Fleischli, a Board-certified
orthopedic surgeon, noted that appellant presented with bilateral shoulder pain and finger
numbness stemming from a November 25, 2008 work injury. He noted examination findings
and diagnosed bilateral shoulder impingement, left acromioclavicular arthritis and right bicep
tendinitis and opined that appellant’s condition was due to repetitive lifting at work.
On February 2, 2009 the Office informed appellant that the evidence was insufficient and
advised her about the evidence needed to establish her claim.
In a February 9, 2009 report, Dr. Fleischli noted that appellant sustained left shoulder
impingement and acromioclavicular arthritis as a result of repetitive reaching and use of the
upper extremity at the workplace. He advised an arthroscopy with subacromial decompression
and distal clavicle excision. Dr. Fleischli pointed out that appellant’s right shoulder improved
after receiving a cortisone injection.
By decision dated April 24, 2009, the Office denied appellant’s claim, finding that the
medical evidence was insufficient to demonstrate that work factors caused or aggravated a
preexisting left shoulder or right shoulder condition.
On May 22, 2009 appellant requested an oral hearing. In a September 3, 2009 notice, the
Office’s Branch of Hearings and Review scheduled a telephonic hearing for 11:00 a.m. on
October 6, 2009. It provided appellant with the telephone number and the pass code for
accessing the hearing. The Office advised appellant that postponement of the hearing would
only be permitted upon receipt of documentation showing her nonelective hospitalization or that
the death of a spouse, parent or child prevented her attendance. The notice was mailed to her
address of record.
By decision dated October 22, 2009, the Office hearing representative found that
appellant failed to appear at the hearing and had abandoned her request. There was no evidence
that she contacted the Office prior to or subsequent to the scheduled hearing.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act and its implementing regulations, a
claimant who has received a final adverse decision by the Office is entitled to receive a hearing
upon writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.1 Unless otherwise directed in writing by the claims examiner, the
Office hearing representative will mail a notice of the time and place of the hearing to the

1

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

claimant and any representative at least 30 days before the scheduled date.2 The Office has the
burden of proving that it mailed notice of a scheduled hearing to a claimant.3
The Office’s procedure manual provides that a hearing can be considered abandoned only
under very limited circumstances.4 All three of the following conditions must be present: (1) the
claimant has not requested a postponement; (2) the claimant has failed to appear at a scheduled
hearing; and (3) the claimant has failed to provide any notification for such failure within 10
days of the scheduled date of the hearing. Under these circumstances, the Office hearing
representative will issue a formal decision finding that the claimant has abandoned his or her
request for a hearing.5
ANALYSIS
The record shows that the Office scheduled an October 6, 2009 telephonic hearing before
an Office hearing representative and mailed proper written notice to appellant on
September 3, 2009 to her address of record. In its September 3, 2009 notice, the Office noted the
time of the hearing and provided appellant the telephone number and pass code for accessing the
scheduled hearing. Appellant did not telephone at the appointed time. The record also shows
that she did not request postponement or explain her failure to appear at the hearing within 10
days of the scheduled hearing date. The Board finds that, under these circumstances, appellant
abandoned her request for a hearing.
Appellant argues on appeal that she was unable to participate in the October 6, 2009 oral
hearing “due to mitigating circumstances.” As noted, she provided no reason for her
nonattendance at the hearing within 10 days of the scheduled hearing nor did she request a
postponement of the hearing. The Office properly found that she abandoned her hearing request.
Appellant also asserts that she frequently had shoulder pain due to her job and that her claim
should be accepted. The Board only has jurisdiction to consider whether the Office properly
determined that she abandoned her hearing request.
CONCLUSION
The Board finds that the Office properly found that appellant abandoned her request for
an oral hearing.

2

20 C.F.R. § 10.617(b).

3

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

4

Claudia J. Whitten, 52 ECAB 483 (2001).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).

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ORDER
IT IS HEREBY ORDERED THAT the October 22, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 17, 2011
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Melville, NY, Employer
__________________________________________

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

Docket No. 12-728
Issued: September 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 14, 2012 appellant, through her attorney, filed a timely appeal from a
January 11, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which terminated her compensation benefits on the grounds that she had refused an offer of
suitable employment. 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 claim.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits
effective March 13, 2011 pursuant to 5 U.S.C. § 8106(c).
FACTUAL HISTORY
On January 29, 2007 appellant, then a 48-year-old clerk keyer, filed an occupational
disease claim alleging that her upper extremity symptoms were related to her employment duties.
1

5 U.S.C. § 8101 et seq.

OWCP accepted the claim for bilateral wrist and hand tendinitis and later expanded to include
bilateral carpal tunnel syndrome. It paid wage-loss benefits, including a recurrence of
September 24, 2007; a right carpal tunnel release of February 27, 2008 and a left carpal tunnel
release of June 23, 2009. Appellant was approved for disability retirement on July 27, 2009 but
elected to receive wage-loss compensation from OWCP.
In a December 4, 2009 report, Dr. Michael J. Katz, a Board-certified orthopedic surgeon
and OWCP referral physician, noted the history of injury, reviewed the statement of accepted
facts and medical record and set forth findings on examination. He diagnosed status post
bilateral carpal tunnel syndrome and left cubital tunnel syndrome and opined that appellant was
partially disabled. Dr. Katz opined that she could perform limited work eight hours a day with
lifting limited to five pounds in both hands and outlined her restrictions in a December 4, 2009
work capacity evaluation. He stated that appellant had not reached maximum medical
improvement and it was uncertain if her disability was permanent. On January 28, 2010
Dr. Katz reviewed a January 21, 2010 magnetic resonance imaging (MRI) scan of the left, wrist
which demonstrated status post carpal tunnel release surgery with findings suggestive of
recurrent carpal tunnel syndrome as well as slight degenerative osteoarthritis affecting the first
metacarpal joint. Based on the left wrist MRI scan, he stated that appellant had recurrent carpal
tunnel syndrome with degenerative osteoarthritis. Dr. Katz stated that while she may need
another carpal tunnel release as well as a basal joint replacement in the future, her condition
appeared permanent and the work restrictions previously given were appropriate.
Dr. Edwardo M. Yambo, a family practitioner, continued to advise that appellant was
totally disabled and that she had reached maximum medical improvement.
On June 17, 2010 the employing establishment offered appellant a position as a modified
mail processing clerk. The physical requirements of the position required her to pick up letters
and reach above shoulder level up to four hours a day and had a five-pound lifting restriction for
both hands.
In a July 19, 2010 letter, appellant noted that she was officially retired and considered
unable to work again. She also stated that her physicians made it clear that she was unable to
return to repetitive duty of any kind.
To resolve the conflict in medical opinion between Dr. Yambo and Dr. Katz as to
appellant’s capacity to return to a full-time limited-duty position, OWCP referred her to
Dr. Bradley L. White, an orthopedic surgeon, for an impartial medical evaluation. In an
October 12, 2010 report, Dr. White reviewed the history of injury and medical record and set
forth examination findings. He opined that injuries causally related to appellant’s work duties
consisted of aggravation of preexisting bilateral carpal tunnel only. Dr. White stated that her
complaints were mainly on the right side and were related to osteoarthritis of the thumb basal
joint combined with ulnar nerve entrapment symptoms, which were not causally related to the
work injury. There was no evidence of any further need for treatment and that appellant had a
mild permanent partial disability as a result of her accepted injuries, for which she reached
maximum medical improvement. Dr. White noted that her continuing symptomatology of thumb
basal joint arthropathy and ulnar nerve entrapment might require further treatment. He found
that since the modified mail processing clerk position the employing establishment offered

2

appellant did not require lifting anything greater than five pounds, she would be able to work the
position on an eight hour a day basis. In an October 12, 2010 work capacity evaluation form,
Dr. White advised that appellant could work eight hours a day in the official modified position
with permanent restrictions of no pushing, pulling or lifting more than five pounds.
On November 2, 2010 OWCP advised appellant that the position of modified mail
processing clerk was suitable to her work capabilities. It found that Dr. White, the impartial
medical specialist, determined that she was able to return to the modified position eight hours a
day and that the physical requirements complied with her medical restrictions. OWCP also
verified with the employing establishment that the position was currently available. It informed
appellant of the penalty provisions of 5 U.S.C. § 8106(c)(2) with respect to refusal of suitable
work and afforded her 30 days to either accept the position or provide an explanation of reasons
for rejecting the position. On November 29, 2010 appellant declined the position stating that she
was unable to accept the position because of her inability to perform the job requirements.
In a report dated November 24, 2010, Dr. Yambo opined that appellant could not perform
her regular job but could work light duty. He continued to opine that she was partially disabled.
In a December 1, 2010 report, Dr. Ather Mirza, a Board-certified orthopedic surgeon,
opined that appellant was totally disabled and unable to perform any duties of a mail processing
clerk. She continued to opine that appellant was disabled as a clerk.
On January 7, 2011 OWCP advised appellant that it proposed to terminate her
compensation. It noted the weight of the medical evidence rested with the impartial medical
specialist. Appellant was given 15 days to accept the position or face sanctions.
In a February 10, 2011 letter, appellant’s attorney stated that appellant had called the
employing establishment about her return to work and was told that there was no job for her.
In a February 17, 2011 electronic mailing, Tina DeRosa, district assessment team leader
at the employing establishment, verified that appellant had been approved for disability
retirement on September 28, 2009. In light of her approved retirement, appellant was advised
that if she wanted to return to work and accept the offered position, then she had to put her intent
to return to work in writing.
In a March 4, 2011 letter to appellant, David H. Padilla, manager, Health and Resource
Management at the employing establishment, noted that if she wished to return to work at the
proposed job offer she previously refused, then she needed to state so in writing. Failure to
communicate her acceptance in writing would leave her in a refused status.
On March 9, 2011 OWCP verified with the employing establishment that the limitedduty job offer remained available.
By decision dated March 9, 2011, OWCP terminated appellant’s monetary compensation
benefits effective March 13, 2011 on the grounds that she neglected an offer of suitable work
under 5 U.S.C. § 8106(c)(2). It found that the weight of the medical evidence rested with
Dr. White, the impartial specialist and that the information she provided in response to the
15-day letter was not sufficient to support her failure to accept the offered position.
3

On March 16, 2011 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on November 16, 2011. She testified that she had called the
employing establishment to indicate that she accepted the offered position, but was advised that
she was “not eligible to go back to work” because she had taken disability retirement.
Appellant’s attorney referenced the March 4, 2011 letter from the employing establishment
advising appellant to put her intent to return to work in writing.
Following the hearing, the employing establishment confirmed that, given appellant’s
prior refusal of the position on the grounds that she was retired, it had requested a written
statement of her intent to return to work which, it noted, had not been provided to date.
By decision dated January 11, 2012, an OWCP hearing representative affirmed the
March 9, 2011 decision. The hearing representative found that appellant had refused, the
modified-duty job offered by the employing establishment and refused suitable work.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.2 Section 8106(c)(2) of FECA provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or
secured for the employee is not entitled to compensation.3 OWCP may not terminate
compensation without establishing that the disability ceased or that it is no longer related to the
employment.4 The Board has stated that monetary compensation payable to an employee under
section 8107 are payments made from the Employees’ Compensation Fund and are, therefore,
subject to penalty provision of section 8106(c).5
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refused to work after suitable work has been offered to or secured for the employee, has the
burden of showing that such refusal or failure to work was reasonable or justified.6 Pursuant to
section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.7
In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving

2

Barry Neutuch, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).

3

5 U.S.C. § 8106(c)(2); see also Linda D. Guerrero, 54 ECAB 556 (2003).

4

Ronald M. Jones, 52 ECAB 190 (2000); Arthur R. Reck, 47 ECAB 339 (1995).

5

Sandra A. Sutphen, 49 ECAB 174 (1997); Stephen R. Lubin, 43 ECAB 564 (1992).

6

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 4.

7

Id. at § 10.516; see Kathy E. Murray, 55 ECAB 288 (2004).

4

the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.8
ANALYSIS
OWCP accepted that appellant sustained bilateral wrist and hand tendinitis and bilateral
carpal tunnel syndrome as a result of her work duties and authorized both right and left carpal
tunnel releases, which she underwent. On January 11, 2012 an OWCP hearing representative
affirmed a March 9, 2011 decision terminating her compensation benefits based on her refusal of
work in a modified mail processing clerk position. Determinative weight was accorded to
Dr. White, an orthopedic surgeon serving as an impartial medical specialist, who opined that the
modified mail processing clerk position was suitable.
OWCP properly determined that there was a conflict in medical opinion between
Dr. Yambo, appellant’s treating physician, and Dr. Katz, OWCP’s referral physician, on the
issue of her work capacity. Dr. Yambo opined that appellant was totally disabled while Dr. Katz
opined that she was partially disabled and could work limited duty eight hours a day. To resolve
the conflict, it properly referred her, pursuant to section 8123(a) of FECA, to Dr. White for an
impartial medical examination and an opinion on the matter. In an October 12, 2010 report,
Dr. White opined that appellant had a mild permanent partial disability as a result of her
causally-related conditions. He reviewed her findings and determined that she was able to work
eight hours a day in the official modified mail processing clerk position with permanent
restrictions of no pushing, pulling or lifting more than five pounds.
The Board finds that Dr. White’s October 12, 2010 report is sufficiently rationalized to
establish that appellant is capable of performing the modified mail processing clerk position.
Dr. White examined her and reviewed the medical record along with a copy of the June 17, 2010
modified position and a statement of accepted facts. He opined that appellant was able to work
eight hours a day in the official modified position with permanent restrictions of no pushing,
pulling or lifting more than five pounds. Dr. White’s report contained an in-depth evaluation of
her medical condition based on an accurate factual and medical background which properly
served as the basis upon which he could render an opinion as to whether the modified mail
processing clerk position was suitable. His opinion that appellant could work the modified mail
processing clerk position is accorded special weight due to his status as an impartial medical
examiner.9 Thus, OWCP properly relied on Dr. White’s opinion in finding the modified mail
processing clerk position suitable.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP
advised appellant on November 2, 2010 that it found the job offer of modified mail processing
clerk to be suitable and gave her an opportunity to provide reasons for refusing the position
within 30 days. It advised her in a January 7, 2011 letter that her reason that she could not
perform the job requirements of the modified position was insufficient and that she had 15
additional days to accept the offered position. While Dr. Mirza opined that appellant was totally
8

Manuel Gill, 52 ECAB 282 (2001).

9

See L.W., 59 ECAB 471 (2008).

5

disabled from the duties of a mail processing clerk, the offered position was that of a modified
mail processing clerk and Dr. Mirza offered no rationale or explanation as to how or why
appellant was totally disabled. Furthermore, Dr. Yambo opined that appellant was capable of
performing light duty as she was only partially disabled. The fact that appellant was already
retired prior to the job offer is an insufficient reason to refuse suitable work.10 The Board finds
that OWCP followed established procedures prior to the termination of compensation pursuant to
section 8106(c) of FECA.
Appellant argued before OWCP that she intended to return to work and accept the job
offered by the employing establishment, but was prevented from doing so when the employing
establishment stated that she had taken disability retirement. The record indicates that, as she
previously retired, the employing establishment requested that she put her intent to work and
accept the offered position in writing due to the fact she was retired. Appellant, however, never
put her intent to return to work in writing. A similar situation was presented in R.F., where the
claimant had applied and was approved for disability retirement and then returned to the work
site with an intent to work.11 The Board noted that retirement is not an acceptable reason for
refusing an offer of suitable work and there was no evidence that the disability retirement had
been rescinded or set aside. The Board indicated that, when the claimant accepted retirement,
she effectively removed herself from the employing establishment rolls. Therefore, the Board
found the suitable job offer had not been withdrawn and OWCP properly terminated
compensation.
In the present case, the evidence indicates that appellant had an approved disability
retirement with no evidence it had been rescinded or set aside. The employing establishment
indicated that the offered position of modified mail processing clerk remained available but
advised that appellant would provide no written indication that she would return to the modified
position. It clearly indicated that the job offer remained available and there was no contrary
evidence. As noted, disability retirement is an insufficient reason to refuse suitable work.12
The Board finds that the position offered was medically and vocationally suitable and
OWCP complied with the procedural requirements of section 8106(c) of FECA. OWCP met its
burden of proof to terminate appellant’s compensation benefits based on her refusal to accept
suitable work.
On appeal, appellant’s counsel argues that OWCP’s decision is contrary to fact and law.
However, as noted, the position offered was medically and vocationally suitable and OWCP
complied with the procedural requirements of section 8106(c) of FECA.

10

The Board has long held that electing to receive retirement is not a justifiable reason to refuse an offer of
suitable work. Roy E. Bankston, 38 ECAB 380 (1987). See Procedure Manual, Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Refusal of Job Offer, Chapter 2.814.5(c)
(July 1997).
11

Docket No. 10-1020 (issued January 13, 2011). See M.C., Docket No. 11-2025 (issued April 23, 2012).

12

Roy E. Bankston, supra note 10.

6

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden to terminate appellant’s compensation
benefits pursuant to 5 U.S.C. § 8106.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated January 11, 2012 is affirmed.
Issued: September 26, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________

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

Docket No. 11-1322
Issued: December 13, 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 10, 2011 appellant filed a timely appeal from a January 20, 2011 Office of
Workers’ Compensation Programs (OWCP) decision denying his request for reconsideration of
the merits of his claim. As more than 180 days has elapsed from the date of the last merit
decision of August 5, 2010 to the filing date of the current appeal on May 10, 2011, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board only has jurisdiction over the nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 23, 2009 appellant, then a 53-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sprained two fingers on his right hand after he slipped on ice
in the performance of duty on December 17, 2009.
On January 5, 2010 the employing establishment controverted appellant’s claim.
Appellant submitted a December 18, 2009 report by Dr. Amy Rodgers, a family
practitioner, diagnosed right hand pain and restricted him from grasping and lifting with his right
hand for five days.
In another December 18, 2009 report, Dr. Charles E. O’Brien, a radiologist, reviewed an
x-ray of appellant’s right hand and wrist and diagnosed possible nondisplaced fracture at the base
of the middle phalanx of the middle finger, verses Mach effect, normal wrist and early
degenerative changes of the interphalangeal joints of the fingers.
On December 19, 2009 Dr. Rodgers reiterated her diagnosis and restricted appellant from
using his right hand.
In a December 30, 2009 report, Diana W. Brennan, a physician’s assistant, diagnosed
hand sprain and released appellant to full duty as of January 6, 2010.
By decision dated February 9, 2010, OWCP denied appellant’s claim on the basis that the
evidence submitted was not sufficient to establish fact of injury.
Subsequently, appellant submitted a December 22, 2009 report by Dr. John T. Chance, a
Board-certified orthopedic hand surgeon, who diagnosed right hand sprain with residual pain
over the third phalanx. Dr. Chance indicated that appellant stepped out of his truck and slipped
on black ice spraining his right hand in the performance of duty as a postal carrier. He placed
appellant in a short-arm splint.
On March 4, 2010 appellant requested an oral hearing via telephone and submitted two
narrative statements dated January 25 and February 3, 2010.
On June 16, 2010 an oral hearing was held via telephone before an OWCP hearing
representative.
By decision dated August 5, 2010, an OWCP hearing representative affirmed the
February 9, 2010 decision, finding that, while appellant established that the incident occurred as
alleged, the evidence he submitted did not establish causal relationship between his right hand
injury and the December 17, 2009 slip and fall incident.
On November 5, 2010 appellant requested reconsideration and submitted additional
evidence, including a September 13, 2010 report by Diana H. Wagman, a physician’s assistant,
indicating that he was seen on December 22, 2009 with an injury sustained while working which
she related was well documented in an initial note and on forms used for workers’ compensation.
He also submitted a December 22, 2009 report by Ms. Brennan, indicating that he was on mail

2

delivery, slipped on ice and injured fingers on his right hand. Appellant also resubmitted a
December 18, 2009 report by Dr. O’Brien and a December 30, 2009 report by Ms. Brennan.
By decision dated January 20, 2011, OWCP denied appellant’s request for
reconsideration of the merits finding that he did not submit new relevant and pertinent new
evidence, did not show that OWCP erroneously applied or interpreted a point of law nor
advanced a point of law or a fact not previously considered by OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.2 OWCP, through regulations, has imposed limitation on
the exercise of its discretionary authority under section 8128(a).3
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP 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.5 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.6
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument is already in the case record.7
ANALYSIS
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; he has not advanced a relevant legal argument not previously
considered by OWCP; and he has not constituted relevant and pertinent new evidence not
previously considered by OWCP.

2

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
3

See Annette Louise, 54 ECAB 783, 789-90 (2003).

4

20 C.F.R. § 10.606(b)(2). See A.L., Docket No. 08-1730 (issued March 16, 2009).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

See A.L., supra note 4. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

3

In support of his November 5, 2010 reconsideration request, appellant submitted a
September 13, 2010 report by Ms. Wagman and a December 22, 2009 report by Ms. Brennan.
The Board finds that submission of these reports did not require reopening his case for merit
review. OWCP denied appellant claim based on the lack of supportive medical evidence. These
reports do not constitute medical evidence as physician’s assistants are not physicians under
FECA.8 As the underlying issue is medical in nature, these reports are not sufficient to require
OWCP to reopen the claim for consideration of the merits.
Appellant also submitted a December 18, 2009 report by Dr. O’Brien and a
December 30, 2009 report by Ms. Brennan. The Board finds that submission of these reports did
not require reopening appellant’s case for merit review because he had submitted the same
reports, which were previously reviewed by OWCP in a decision dated February 9, 2010. As the
reports repeat evidence already in the case record, they are duplicative and do not constitute
relevant and pertinent new evidence. Therefore, appellant has not established a basis for
reopening his case.9
Because appellant only submitted repetitive and duplicative evidence with his request for
reconsideration, the Board finds that OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant failed to submit relevant and pertinent new evidence, a
relevant legal argument not previously considered by OWCP or evidence or argument which
shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP
properly refused to reopen his claim for further consideration of the merits of his claim under 5
U.S.C. § 8128.

8

5 U.S.C. § 8101(2).

9

D.K., 59 ECAB 141 (2007).

4

ORDER
IT IS HEREBY ORDERED THAT the January 20, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 13, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Tacoma, WA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0952
Issued: November 5, 2019

Case Submitted on the Record

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

JURISDICTION
On April 1, 2019 appellant, through counsel, filed a timely appeal from a March 11, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 11, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish that he developed
left-sided hearing loss and tinnitus causally related to the accepted May 26, 2017 employment
incident.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as presented in the prior Board decisions are incorporated herein by reference. The relevant facts
are as follows.
On June 8, 2017 appellant, then a 46-year-old criminal investigator and firearms instructor,
filed a traumatic injury claim (Form CA-1) alleging that hazardous noise during firearms training
while in the performance of duty on May 26, 2017 caused constant ringing in his left ear that had
not abated after seven days.
In a report dated June 29, 2017. Dr. Mario Alinea, a Board-certified family practitioner,
noted appellant’s complaints of left-sided hearing loss and tinnitus following exposure to firearms
noise at a shooting range. Appellant asserted that he had no exposure to hazardous noise outside
of his occupational exposure to firearms. Dr. Alinea obtained an audiogram on June 29, 2017. At
the frequency levels of 500, 1,000 2,000, and 3,000 Hertz (Hz) in the right ear, appellant exhibited
decibel (dB) losses of 10, 15, 10, and 20, respectively. Testing at the same frequency levels for
the left ear revealed dB losses of 20, 30, 20, and 40, respectively. Tympanometry was within
normal limits bilaterally. Dr. Alinea diagnosed left-sided sensorineural hearing loss with tinnitus.
He explained that, based on appellant’s history and clinical findings, he was “unclear if this hearing
loss [was] attributable to firearms noise exposure on a more probable than not basis.” Dr. Alinea
remarked that, as most occupational noise exposures were symmetric, hearing loss was typically
bilateral. He referred appellant to an audiologist to rule out other causes of unilateral hearing loss.
In the attending physician’s portion of an authorization for examination and/or treatment
(Form CA-16) Dr. Alinea, on June 29, 2017 diagnosed tinnitus and sensorineural hearing loss. He
checked a box marked “yes” indicating his support for a causal relationship between the diagnosed
conditions and exposure to firearms noise at work.5 Dr. Alinea also completed a duty status report
(Form CA-17) on June 29, 2017, in which he checked a box marked “yes” in support of causal
relationship.
Also provided was a July 17, 2017 report from Jessica Hesson, an audiologist, who noted
appellant’s complaints and her findings on audiologic examination.
4

Docket No. 17-1755 (issued March 9, 2018).

5

The Form CA-16 of record was not signed or otherwise executed by an employing establishment official. Block
8, designated for the signature of the authorizing official, and block 9, designated for the official’s name and title, are
blank. Where an employing establishment properly executes a Form CA-16 authorizing medical treatment related to
a claim for a work injury, the form creates a contractual obligation, which does not involve the employee directly, to
pay for the cost of the examination/treatment regardless of the action taken on the claim. C.W., Docket No. 17-1293
(issued February 12, 2018). See Tracy P. Spillane, 54 ECAB 608 (2003). However, as the Form CA-16 of record
was not signed by an employing establishment official, no contractual obligation was created.

2

By decision dated July 27, 2017, OWCP accepted that appellant participated in firearms
practice on May 26, 2017 as alleged, but denied the claim as causal relationship was not established
between the accepted employment incident and the diagnosed left-sided sensorineural hearing loss.
It found that Dr. Alinea did not provide medical rationale in support of a causal relationship
between the diagnosed sensorineural hearing loss and the accepted May 26, 2017 employment
incident. Appellant appealed to the Board.
During the pendency of the prior appeal, appellant submitted a July 17, 2017 report by
Dr. Sepehr Oliaei, a Board-certified otolaryngologist. Dr. Oliaei noted a history of gradual onset
of bilateral hearing loss, and that appellant had constant exposure to loud noise in his work as a
firearms instructor. Appellant noted wearing hearing protection, but that he could “still hear the
shots at very loud levels.” Dr. Oliaei obtained an audiogram demonstrating normal hearing in the
right ear, and a mild sloping to moderate sensorineural hearing loss from 1,000 through 8,000 Hz
in the left ear. He diagnosed tinnitus, noise-induced hearing loss, and sensorineural hearing loss
in the left ear. Dr. Oliaei opined that appellant’s “current hearing protection device may be
defective or inadequate for hearing protection” and suggested an audiological consultation.
By decision issued March 9, 2018,6 the Board affirmed OWCP’s July 27, 2017 decision,
finding that the medical evidence of record did not contain sufficient medical rationale supporting
causal relationship to meet appellant’s burden of proof.
On August 7, 2018 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review of OWCP’s July 27, 2017 decision.7
By decision dated August 14, 2018, an OWCP hearing representative denied appellant’s
request for a telephonic hearing. She indicated to counsel that the final decision on the issue was
the Board’s March 9, 2018 decision, and that OWCP’s Branch of Hearing and Review did not
have jurisdiction to review final decisions of the Board. As such, appellant was not entitled to a
hearing as a matter of right. OWCP’s hearing representative exercised her discretion and further
denied the hearing request for the reason that the issue in the case could equally well be addressed
by requesting reconsideration and submitting new evidence establishing an employment-related
injury.
On March 6, 2019 appellant, through counsel, requested reconsideration.
submitted additional evidence.

Counsel

In a February 22, 2019 report, Dr. John J. Simmer, a Board-certified otolaryngologist,
noted the accepted May 26, 2017 employment incident and subsequent treatment. He related
appellant’s complaints of constant left-sided tinnitus interfering with sleep. Dr. Simmer reviewed
an audiogram obtained by Stefanie M. Allan, an audiologist, which demonstrated a mild or
borderline hearing loss in the left ear at frequencies greater than 2,000 Hz, and a borderline hearing
loss on the right at 3,000 Hz and from 6,000 to 8,000 Hz. He diagnosed sensorineural hearing loss
of the left ear with interval improvement since 2017, restricted hearing in the right ear, and tinnitus
of the left ear. Dr. Simmer opined that loud noise exposure was a recognized cause of
6

Supra note 4.

7
The August 7, 2018 letter notes the year of the July 27, 2017 decision as 2018. This appears to be a harmless
typographical error.

3

sensorineural hearing loss and tinnitus, which could occur as an acute event “with exposure to
extreme loud noise or can be gradual with frequent, regular exposure to loud noise.” He further
noted that the temporal relationship of onset of appellant’s symptoms to presence on the firing
range would suggest loud noise exposure as the source of appellant’s condition. Dr. Simmer
indicated that appellant had “worse hearing in left ear on testing in 2017. Temporary HL [hearing
loss] after acute noise exposure can happen.” He noted that tinnitus was subjective and could not
be measured.
In a February 25, 2019 report, Dr. Nancy A. Becker, an osteopathic physician Boardcertified in otolaryngology, noted appellant’s account of a 2004 employment incident in which he
was exposed to firearms noise and lost hearing in his left ear for one month. Appellant had a
second episode in May 2017 when the employing establishment changed to a short barrel assault
weapon with a louder report than previous firearms used. He experienced bilateral tinnitus which
abated on the right after one week. Appellant posited that noise reverberating from trees on the
left side of the shooting range caused more severe tinnitus on the left. A February 25, 2019
audiogram demonstrated a 5 to 10 dB conductive hearing loss on the left and a sensorineural
hearing loss on the left. Tympanometry was within normal limits bilaterally. Dr. Becker
diagnosed left conductive hearing loss, left sensorineural hearing loss, left tinnitus, chronic rhinitis,
and a eustachian tube dysfunction. She opined that the eustachian tube dysfunction “might be
accounting for part of the conductive hearing loss.”
By decision dated March 11, 2019, OWCP denied modification of its July 27, 2017
decision. It found that the evidence presented was insufficient to establish that the diagnosed
hearing loss and tinnitus were caused by the accepted May 26, 2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA8 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 of FECA,9 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.10 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.11

8

Supra note 2.

9

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
10

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
11
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).

4

In order to determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established.12
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.13 Second, the employee must submit evidence, generally
only in the form of probative medical evidence, to establish that the employment incident caused
a personal injury.14
To establish causal relationship between the condition and the employment event or
incident, the employee must submit rationalized medical opinion evidence.15 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 factor(s)
identified by the employee.16 The weight of the medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.17
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
developed left-sided hearing loss and tinnitus causally related to the accepted May 26, 2017
employment incident.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
that was previously considered in its March 9, 2018 decision. Findings made in prior Board
decisions are res judicata, absent any further review by OWCP under section 8128 of FECA.18
Following the Board’s March 9, 2018 decision, OWCP received a July 17, 2017 report by
Dr. Oliaei, who diagnosed gradual onset left-sided, noise-induced hearing loss, sensorineural
hearing loss, and tinnitus, rather than the acute hearing loss and tinnitus appellant alleged. While
Dr. Oliaei indicated that inadequate hearing protection when at work may have contributed to
appellant’s noise-induced hearing loss, he did not support a causal relationship between the
diagnosed conditions and the accepted May 26, 2017 employment incident. Because he did not
provide a reasoned opinion explaining how the May 26, 2017 employment incident caused or
12

D.B., Docket No. 18-1348 (issued January 4, 2019); E.J., supra note 4; R.H., Docket No. 16-1055 (issued May 22,
2017); S.P., 59 ECAB 184 (2007).
13

D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

14

B.M., Docket No. 17-0796 (issued July 5, 2018); E.J., supra note 4; R.H., supra note 12; David Apgar, 57 ECAB
137 (2005); John J. Carlone, 41 ECAB 354 (1989).
15

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

16
H.M., Docket No. 19-0188 (issued April 26, 2019); M.V., Docket No. 18-0884 (issued December 28, 2018); I.J.,
59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).
17

James Mack, 43 ECAB 321 (1991).

18

K.S., Docket No. 19-0537 (issued August 23, 2019); T.B., Docket No. 19-0029 (issued June 21, 2019).

5

contributed to appellant’s left-sided hearing loss and tinnitus, his report is insufficient to establish
appellant’s claim.19
Dr. Simmer, in his February 22, 2019 report, opined that the temporal relationship between
appellant’s presence at the firing range on May 26, 2017 and the onset of his symptoms suggested
that hazardous noise exposure caused appellant’s left sensorineural hearing loss and tinnitus.
However, the Board has held that the fact that a condition manifests itself during a period of
employment is insufficient to establish causal relationship. Temporal relationship alone will not
suffice.20
In a February 25, 2019 report, Dr. Becker noted a 2004 employment incident with
temporary left-sided hearing loss, as well as exposure to firearms noise at work in May 2017. She
diagnosed left-sided conductive and sensorineural hearing loss, left tinnitus, chronic rhinitis, and
a eustachian tube dysfunction. Dr. Becker did not address a causal relationship between the
accepted May 26, 2017 employment incident and the diagnosed conditions. As she did not address
the issue of causal relationship between appellant’s hearing loss and tinnitus to the accepted
May 26, 2017 employment incident, her report is of no probative value and, thus, is insufficient to
establish his claim.21
An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relation.22 Appellant’s honest belief that the May 26, 2017
employment incident caused left-sided hearing loss and tinnitus, however sincerely held, does not
constitute medical evidence necessary to establish causal relationship.23 As he has not provided a
rationalized medical opinion sufficient to establish a causal relationship between the claimed
hearing loss and tinnitus and the accepted May 26, 2017 employment incident, he has failed to
meet his burden of proof.24
On appeal counsel contends that OWCP’s March 11, 2019 decision is “contrary to law and
fact.” However, for the reasons set forth above, appellant has not met his burden of proof to
establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

19

D.E., Docket No. 18-1770 (issued March 20, 2019).

20

S.S., Docket No. 19-0675 (issued August 22, 2019); M.H., Docket No. 18-1737 (issued March 13, 2019);
Daniel O. Vasquez, 57 ECAB 559 (2006).
21

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

22

E.J., supra note 4; D.D., 57 ECAB 734 (2006).

23

Id.; R.H., supra note 12.

24

E.J., supra note 4; R.H., supra note 12; D.D., supra note 22.

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
developed left-sided hearing loss and tinnitus causally related to the accepted May 26, 2017
employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 11, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Longmont, CO, Employer
__________________________________________

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

Docket No. 08-938
Issued: September 12, 2008

Case Submitted on the Record

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

JURISDICTION
On February 12, 2008 appellant filed a timely appeal from a November 16, 2007 merit
decision of the Office of Workers’ Compensation Programs denying his claim for compensation.
Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained an
injury in the performance of duty.
FACTUAL HISTORY
On January 25, 2007 appellant, then a 56-year-old rural letter carrier, filed an
occupational disease claim alleging his left shoulder bursitis condition resulted from the
repetitive nature of his job. He became aware of his condition on June 1, 2004 but did not stop
work. Appellant believed his condition was part of the aging process and that cortisone
injections would help. He started working limited duty on October 2007.

The employing establishment controverted the claim on August 20, 2007. It submitted an
August 14, 2007 statement from Connie Hanlon, a supervisor, who advised that appellant
worked as a retail and night stock clerk for 20 years prior to his current employment. Appellant
was observed a month prior by numerous people grabbing and lifting another carrier onto his left
shoulder. He operated a right-hand drive postal vehicle.
In a February 6, 2007 duty status report, Dr. Peter Wood, a Board-certified orthopedic
surgeon, noted that appellant was a rural letter carrier who repetitively used the left shoulder. A
diagnosis of left impingement was provided on June 21, 2006. Dr. Wood indicated that appellant
was able to perform limited duty with the following restrictions as per patient: “by nature of
delivering mail; [with] a right-hand drive vehicle, left side of body is used for lifting articles for
transfer to right side of body for delivery as well as actual steering of vehicle.”
In a letter dated August 27, 2007, the Office advised appellant of the factual and medical
evidence needed to establish his claim.
In a September 4, 2007 statement, appellant noted that he did not have any diagnosed
shoulder condition until 2004, when he had cortisone injections for impingement of the left
shoulder and arthritis of the right shoulder. In an August 28, 2007 duty status report, Dr. Wood
diagnosed a left shoulder impingement and advised that appellant could return to work on
August 29, 2007, with restrictions which “patient tells me he can do.”
In a September 18, 2006 letter, the employing establishment submitted the requirements
of appellant’s position as a regular rural carrier as well as copies of limited-duty job offer
documents dated October 3 and 16, 2007. A copy of Job Analysis/Essential Functions of a rural
carrier, with the tasks of delivering and casing, was of record. The description noted that the
tasks of carrying parcels and lifting contained repetitive action.
In an October 16, 2007 work restriction evaluation, Dr. Wood indicated that there were
no changes from the last evaluation. On October 16, 2007 he approved the limited-duty
assignment offered by the employing establishment, which consisted mainly of answering
telephones.
By decision dated November 16, 2007, the Office denied appellant’s claim on the
grounds that the evidence did not establish that he sustained an injury. It noted that appellant did
not provide evidence of any specific work-related task(s) performed, which he believed caused
or aggravated his left shoulder condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that an injury was

1

5 U.S.C. §§ 8101-8193.

2

sustained in the performance of duty as alleged2 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.3
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 the 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
diagnosed condition is causally related to the employment factors identified by the claimant.4
An alleged work incident does not have to be confirmed by eyewitnesses in order to
establish that an employee sustained an injury in the performance of duty, but the employee’s
statement must be consistent with the surrounding facts and circumstances and his subsequent
course of action.5 A consistent history of the injury as reported on medical reports, to the
claimant’s supervisor and on the notice of injury can also be evidence of the occurrence of the
incident.6 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.7 Although an
employee’s statement 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,8 an
employee has not met this burden when there are inconsistencies in the evidence such as to cast
serious doubt upon the validity of the claim.9
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to that claimant’s diagnosed
condition. To be of probative value, the opinion of the physician must be based on a complete
2

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202 (2001). When an employee
claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish that he
experienced a specific event, incident or exposure occurring at the time, place and in the manner alleged. He must
also establish that such event, incident or exposure caused an injury. See also 5 U.S.C. § 8101(5) (injury defined);
20 C.F.R. § 10.5(q) and (ee) (occupational disease or illness and traumatic injury defined).
3

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

4

Michael R. Shaffer, 55 ECAB 386 (2004); see also Solomon Polen, 51 ECAB 341 (2000).

5

D.B., 58 ECAB ___ (Docket No. 07-440, issued April 23, 2007); V.F., 58 ECAB ___ (Docket No. 06-1497,
issued January 30, 2007); Rex A. Lenk, 35 ECAB 253, 255 (1983).
6

Id., Barbara R. Middleton, 56 ECAB 634 (2005) (a consistent history of the injury, as reported on medical
reports to the claimant’s supervisor and on the notice of injury, can be evidence of the occurrence of the incident).
7

Dorothy M. Kelsey, 32 ECAB 998 (1981).

8

Robert A. Gregory, 40 ECAB 478 (1989).

9

Joseph A. Fournier, 35 ECAB 1175 (1984).

3

factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.10 An award
of compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.11
ANALYSIS
The Office denied appellant’s claim on the grounds that he failed to describe or establish
work factors alleged to have caused his claimed condition. The Board finds that the evidence
supports that appellant’s duties as a rural letter carrier involved repetitive tasks such as the
carrying of parcels and lifting in delivery and casing requirements. Appellant’s claim form
asserted that he performed repetitive duties. Ms. Hanlon, appellant’s supervisor, did not dispute
that appellant drove a right-hand drive postal vehicle, the work duties of a rural letter carrier or
that repetitive tasks were involved in the job. Appellant provided a consistent description of his
work duties as listed in the medical evidence. In a February 6, 2007 report, Dr. Wood noted that
appellant was a rural letter carrier who repetitively used his left shoulder and drove a right-hand
drive postal vehicle. The Board finds that the evidence supports that appellant’s work duties as a
rural letter carrier involved some repetitive activities and driving a right-hand drive postal
vehicle.
The Board finds, however, that the medical evidence is insufficient to establish that
appellant’s left shoulder condition was caused or aggravated by the accepted employment
factors. On August 27, 2007 the Office advised appellant of the medical evidence needed to
establish his claim. While appellant claimed that his shoulder problem began in 2004, he
provided insufficient medical evidence to support causal relation.
In February 6 and August 28, 2007 reports, Dr. Wood diagnosed a left shoulder
impingement; however, he did not provide a full opinion of causal relationship. In an
October 16, 2007 report, he advised that appellant’s restrictions were unchanged from his last
evaluation. While Dr. Wood noted that appellant was a rural letter carrier and was aware that he
drove a right-hand drive postal vehicle, he failed to explain with rationale the process by which
the specific employment duties would cause or aggravate appellant’s left shoulder condition.12
He further did not address whether appellant had this condition since 2004 as claimed or how
appellant’s duties could aggravate or cause such a condition. Therefore, these reports are
insufficient to meet appellant’s burden of proof.

10

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

11

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 3 at 218.

12

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

4

There are no other medical reports of record. An award of compensation may not be
based on surmise, conjecture or speculation. Neither the fact that appellant’s condition became
apparent during a period of employment nor the belief that his condition was caused, precipitated
or aggravated by his employment is sufficient to establish causal relationship.13 Causal
relationship must be established by rationalized medical opinion evidence. Appellant failed to
submit such evidence and the Office therefore properly denied appellant’s claim for
compensation.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
developed an employment-related injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 16, 2007 is affirmed.
Issued: September 12, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

See Dennis M. Mascarenas, supra note 3.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 13-970
Issued: July 23, 2013

Case Submitted on the Record

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

JURISDICTION
On March 15, 2013 appellant filed a timely appeal from a January 29, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
March 2, 2011.
FACTUAL HISTORY
On December 24, 2012 appellant, then a 59-year-old electroplater, filed a traumatic
injury claim alleging that he sustained a left shoulder injury in the performance of duty on
1

5 U.S.C. § 8101 et seq.

March 2, 2011. On the claim form, he stated that he was carrying equipment while on a ladder,
and the equipment slipped and he grabbed the falling equipment with his left arm. By letter
dated December 27, 2012, OWCP requested that appellant submit additional factual and medical
evidence with respect to the claim for compensation.
On January 8, 2013 appellant submitted a narrative statement dated March 2, 2011
describing the employment incident. He stated that he was working on a ship and when he was
on a ladder saw a piece of equipment weighing approximately 28 pounds begin to slide.
Appellant reached for the equipment with his left arm and felt a loud pop in his left shoulder. In
a statement dated March 5, 2011, a supervisor stated that appellant had “reinjured” his left
shoulder on March 2, 2011 while bringing equipment up a ladder.
With respect to medical evidence, appellant submitted a report dated May 11, 2011 from
Dr. Marc Suffis, Board-certified in emergency medicine, who reported a date of injury as
March 3, 2011, stating “Work related: Yes.” Dr. Suffis indicated that appellant could return to
work with restrictions, including five pounds occasional lifting above shoulder. The record
contains a form report regarding work limitations signed by Dr. Suffis on July 7, 2011 and an
employing establishment physician on July 19, 2011. Appellant also submitted an undated note
from Dr. Suffis diagnosing left shoulder strain and authorizing physical therapy and a report
from a physician’s assistant.
By decision dated January 29, 2013, OWCP denied the claim for compensation. It found
the medical evidence was insufficient to establish the claim.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”2 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”3 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.4 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by medical evidence.5

2

5 U.S.C. § 8102(a).

3

Valerie C. Boward, 50 ECAB 126 (1998).

4

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

2

OWCP’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.6 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.7
Rationalized medical opinion evidence is medical evidence based on a complete factual
and medical background, of reasonable medical certainty and supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant. The weight of medical evidence is determined by
its reliability, its probative value, its convincing quality, the care of the analysis manifested and
the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
In the present case, appellant filed a traumatic injury claim in December 2012 for a
March 2, 2011 incident. He provided a narrative statement describing the incident and OWCP
accepted that the incident occurred as alleged.
The issue is whether the medical evidence is sufficient to establish a diagnosed injury
causally related to the March 2, 2011 employment incident. As noted above, this requires a
medical opinion on causal relationship that is based on a complete and accurate background and
is supported by medical rationale. The evidence before OWCP at the time of the January 29,
2013 OWCP decision does not contain a rationalized medical opinion on the issue presented.
The statement “yes” that a condition is employment related in the May 11, 2011 report from
Dr. Suffis is of little probative value without additional explanation.9 Dr. Suffis did not provide
a factual or medical history, results on examination, a diagnosis or a rationalized medical opinion
relating the diagnosed condition to a March 2, 2011 incident. As to medical evidence from a
physician’s assistant, this does not constitute competent medical evidence as a physician’s
assistant is not a physician under 5 U.S.C. § 8101(2).10
In the absence of a rationalized medical opinion on the issue of causal relationship
between a diagnosed condition and the March 2, 2011 employment incident, the Board finds that
appellant did not meet his burden of proof in this case. On appeal, appellant submitted additional
medical evidence. The Board can review only evidence that was before OWCP at the time of the
final decision on appeal.11 Appellant may submit new evidence or argument with a written
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3 (January 2013).

7

Id.

8

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

9

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

10

George H. Clark, 56 ECAB 162 (2004).

11

20 C.F.R. § 501.2(c)(1).

3

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 established an injury in the performance of duty on
March 2, 2011.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 29, 2013 is affirmed.
Issued: July 23, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4