United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 11-245
Issued: September 14, 2011

Case Submitted on the Record

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

JURISDICTION
On November 8, 2010 appellant, through his attorney, filed a timely appeal from a
September 28, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
reducing his compensation benefits based on his capacity to earn wages. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation based on its
finding that he had the capacity to earn wages as a surveillance system monitor.
FACTUAL HISTORY
On December 20, 2001 appellant, then a 41-year-old mail handler, filed an occupational
disease claim alleging that he sustained bilateral elbow pain causally related to factors of his
1

5 U.S.C. § 8101 et seq.

federal employment. OWCP accepted the claim for bilateral lateral epicondylitis of the elbow.
Appellant returned to modified employment until July 15, 2003, when he stopped work and did
not return. He underwent left elbow surgeries on December 18, 2003, February 15, 2005 and
June 19, 2007 and right elbow surgery on September 6, 2005. OWCP placed appellant on the
periodic rolls beginning August 10, 2003.
On September 6, 2007 OWCP referred appellant to Dr. William A. Somers, a Boardcertified orthopedic surgeon, for a second opinion evaluation. On October 3, 2007 Dr. Somers
diagnosed chronic and unremitting bilateral lateral epicondylitis, to rule out bilateral radial nerve
entrapment and to rule out bilateral C6 radiculopathy. He found that appellant was disabled from
his usual employment as he “cannot use his hands in an unsupported manner. Dr. Somers would
have trouble doing even light, very light, work holding things with his hands because of the
lateral epicondylar pain.” He asserted that appellant was a candidate for vocational rehabilitation
and could use a computer if he had hand support. In an accompanying work restriction
evaluation, Dr. Somers advised that appellant could perform no reaching, repetitive movements
of the wrists and elbows, pushing, pulling, lifting or climbing.
On November 29, 2007 appellant underwent a revision of a lateral epicondyle release of
the right elbow and an excision of a right elbow osteophyte.
On January 8, 2008 OWCP referred appellant for vocational rehabilitation. In an initial
report dated February 18, 2008, the rehabilitation counselor noted that he had graduated high
school and “took some business courses” in the military. She asserted that a transferable skills
analysis revealed that appellant could work in areas such as a surveillance system monitor or
clerk.
In a report dated March 11, 2008, a physician’s assistant for Dr. Jerry Barron, a Boardcertified orthopedic surgeon, indicated that appellant could work lifting 10 pounds occasionally
and performing no repetitive movement.
On April 29, 2008 Dr. Barron noted that appellant was probably “not employable based
upon his current disability.” He diagnosed chronic pain of the elbow, neck and back.
OWCP’s rehabilitation specialist approved 90 days of job placement services to assist
appellant finding a job as a customer service representative or surveillance system monitor. On
October 17, 2008 the rehabilitation counselor completed a job classification form for the position
of surveillance system monitor. The job description from the Department of Labor’s Dictionary
of Occupational Titles (DOT) indicated that the physical demands were sedentary with
occasional reaching, occasional lifting up to 10 pounds and frequent handling, fingering and
feeling. The rehabilitation counselor determined that appellant met the specific vocational
preparation of six months to a year through his military background. She confirmed with the
state employment commission that the job was reasonably available within his commuting area
at wages of $8.50 to $10.00 per hour.

2

On October 21, 2008 Dr. Barron advised that he had released appellant to return to work
with restrictions but that he “may not be employable based upon his restrictions, education level
and requirement of pain management.”2
On April 28, 2009 OWCP requested that Dr. Barron review the enclosed job description
and physical requirements for the positions of customer service representative and surveillance
system monitor and indicate by checkmark whether appellant could perform the duties of either
job full time. On June 4, 2009 Dr. Barron indicated that appellant had the physical capacity to
work as a surveillance system monitor but not a customer service representative.
In a report dated August 17, 2009, Dr. Barron noted that appellant related that he was
unable to work because of his elbows and also had symptomatic human immunodeficiency virus
(HIV). He noted that appellant “has been infected with the [acquired immunodeficiency virus]
for some time but has not been symptomatic.” Dr. Barron related that his opinion had not
changed from November 24, 2008.3 He stated, “I recommended at that time that [appellant] be
treated with acupuncture and pain management. I also stated then that he might not be
employable based upon his chronic pain management. This opinion is even stronger at this time
because [appellant] now is apparently being treated for HIV symptoms. In summary I feel that
he is unemployable and his current work status is unchanged.”
In a report dated September 14, 2009, the rehabilitation counselor related that the state
employment security commission advised her that the unemployment rate was high at the present
time but that there were “periodic positions in customer service as well as security (involving
surveillance monitoring) listed….” She noted that there were two positions currently available in
surveillance monitoring with the state employment commission and that she had located another
position independently.
On September 18, 2009 OWCP’s rehabilitation specialist advised that the rehabilitation
counselor had confirmed that the positions of customer service representative and surveillance
system monitor remained reasonably available within appellant’s commuting area at wages of
$320.00 per week.
On December 9, 2009 OWCP notified appellant of its proposed reduction of his
compensation based on its finding that he had the capacity to earn wages as a surveillance system
monitor.
By letter dated December 15, 2009, appellant related that he was unable to work because
of problems with his “arms, neck, back, HIV, stress, psychiatric state, body fatigue, medicines
and pain management. He indicated that OWCP could obtain copies of his medical records from
his physicians. Appellant maintained that his digestive system was not working and that he also
had post-traumatic stress disorder.

2

On November 14, 2008 Dr. Neal Taub, a Board-certified physiatrist, diagnosed bilateral chronic epicondylitis
and began acupuncture treatments.
3

The record does not contain a report from Dr. Barron dated November 24, 2008.

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By decision dated March 24, 2010, OWCP reduced appellant’s compensation benefits
based on the constructed position of surveillance system monitor. It calculated his wage-earning
capacity in accordance with the principles set forth in Albert C. Shadrick.4
On April 11, 2010 appellant, through his attorney, requested a telephone hearing. At the
hearing, held on July 13, 2010, counsel argued that the position of surveillance system monitor
was not reasonably available in his area. Appellant related that he had inquired into six job
openings but each position required an individual to perform duties in addition to viewing a
monitor. He noted that he did not have any college education but had military service.5
By decision dated September 28, 2010, the hearing representative affirmed the March 24,
2010 decision.6
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction of benefits.7 Under section 8115(a), wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent his or her wageearning capacity or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, his or
her usual employment, age, qualifications for other employment, the availability of suitable
employment and other factors or circumstances which may affect wage-earning capacity in his or
her disabled condition.8
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position listed in the Department of Labor’s DOT or otherwise available in the
open market, that fits the employee’s capabilities with regard to his or her physical limitations,
education, age and prior experience.9 Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in

4

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

5

In a report dated August 13, 2010, Dr. Taub diagnosed chronic bilateral lateral epicondylitis of the elbows. He
noted that appellant was not working and performed acupuncture treatments. Dr. Taub also performed acupuncture
treatments on September 1, 8, 23 and 27, 2010.
6

The hearing representative noted that appellant was also receiving retirement benefits from the Office of
Personnel Management.
7

T.O., 58 ECAB 377 (2007).

8

Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999).

9

Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000).

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Albert C. Shadrick10 will result in the percentage of the employee’s loss of wage-earning
capacity.
ANALYSIS
OWCP accepted that appellant sustained employment-related bilateral lateral elbow
epicondylitis and authorized multiple surgeries. Appellant received compensation on the
periodic rolls beginning August 10, 2003.
OWCP referred appellant to Dr. Somers for a second opinion examination. On
October 3, 2007 Dr. Somers diagnosed chronic, unremitting bilateral lateral epicondylitis,
possible bilateral radial nerve entrapment and possible bilateral C6 radiculopathy. He found that
appellant “would have trouble doing even light, very light, work holding things with his hands
because of the lateral epicondylar pain.” Dr. Somers determined that appellant might be able to
use a computer with hand support. He asserted that appellant could work full time performing
no reaching, repetitive motion with the wrists and elbows, pushing, pulling, lifting or climbing.
Based on Dr. Somers’ report, OWCP referred appellant for vocational rehabilitation.11
The Board finds that the medical evidence is insufficient to show that appellant had the
physical capacity to perform the duties of a surveillance system monitor. The position is
classified as sedentary work with occasional reaching, lifting up to 10 pounds and frequent
handling, fingering and feeling. The restrictions of no reaching and no repetitive movement set
forth by Dr. Somers, are inconsistent with the occasional reaching and frequent fingering
required for the position. Further, OWCP provided a copy of the position description of
surveillance system monitor to Dr. Barron for review. On June 4, 2009 Dr. Barron indicated that
appellant had the physical capacity to perform the duties. On August 17, 2009, however, he
found continued “significant pain along the lateral epicondyle bilateral elbows” with mild
swelling and loss of motion. Dr. Barron discussed his previous finding that appellant might be
unemployable due to his chronic pain and maintained that his opinion was “even stronger at this
time because he now is apparently being treated for HIV symptoms. In summary I feel that
[appellant] is unemployable and his work status is unchanged.12” He does not explain the
apparent inconsistencies between his June 4 and August 17, 2009 reports, which are just a little
over two months apart. Consequently, at the time OWCP reduced appellant’s compensation,
March 24, 2010, the medical evidence did not establish that he was capable of performing the
duties of the selected position. Consequently, the Board finds that OWCP did not meet its
burden of proof to reduce his compensation.

10

See supra note 4.

11

See N.J., 59 ECAB 171 (2007).

12

Dr. Barron attributed appellant’s disability in part to HIV. In determining an employee’s wage-earning
capacity based on a position deemed suitable, but not actually held, OWCP must consider impairments both
resulting from injury-related and preexisting conditions, but not impairments resulting from postinjury or
subsequently acquired conditions. See N.J., supra note 11; John D. Jackson, 55 ECAB 465 (2004).

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CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation based on its
finding that he had the capacity to earn wages as a surveillance system monitor.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2010 merit decision of the
Office of Workers’ Compensation Programs is reversed.
Issued: September 14, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., Appellant
and
DEPARTMENT OF THE NAVY, PUGENT
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 18-1506
Issued: April 24, 2019

Case Submitted on the Record

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

JURISDICTION
On August 1, 2018 appellant filed a timely appeal from an April 3, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days have elapsed
from OWCP’s last merit decision, dated July 31, 2017, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 10, 2017 appellant, then a 68-year-old sheet metal mechanic, filed an
occupational disease claim (Form CA-2) alleging that he sustained increasing back pain over time
following a fall that occurred on May 2, 2016 while in the performance of duty. He indicated that
he was diagnosed with spondylolisthesis in the lumbar region and he underwent surgery on
September 2, 2016. Appellant reported that he returned to work on November 10, 2016 and was
placed on light duty.
In a development letter dated March 17, 2017, OWCP related that the medical and factual
evidence received to date was insufficient to establish his claim. Appellant was advised that he
should submit a physician’s report which provided a diagnosis of his lumbar condition and a
rationalized medical opinion regarding causal relationship. OWCP attached a factual
questionnaire for his completion. Appellant was afforded 30 days to submit the requested factual
and medical evidence.
The employing establishment controverted the claim on April 25, 2017 indicating that
appellant had not provided a physician’s opinion supported by medical rationale explaining how
his employment duties caused, contributed to, or aggravated his medical condition.
Appellant provided an undated statement, received by OWCP on May 1, 2017. He
explained that on May 2, 2016 he was walking and felt a sharp pain in his lower back that caused
both legs to go numb causing him to fall in the street. Appellant reported that, since that incident,
he experienced the same pain and numbness and had fallen in front of his supervisors and
coworkers. He relayed that he believed working on hard surfaces and handling sheet metal for
over 26 years in the sheet metal shop and on the waterfront, which required kneeling, bending,
lifting in awkward positions, and in tight spaces to complete his job assignments, had caused his
back condition.
Dr. A. Alex Mohit, a Board-certified neurosurgeon, performed lumbar surgery on
September 2, 2016 and diagnosed spondylolisthesis in the lumbar region.
In a November 10, 2016 report, Dr. Bruce Christen, Board-certified in occupational
medicine, indicated that appellant had a nonoccupational condition involving ongoing back
pain/neuropathy which required him to have fusion surgery at L4-L5-S1 on September 2, 2016.
He noted that appellant indicated that he no longer had radiculopathy.
By decision dated May 19, 2017, OWCP denied appellant’s claim, finding that the medical
evidence submitted did not establish a medical diagnosis causally related to his employment
factors.
In a May 25, 2017 report, Dr. Mohit opined that appellant’s diagnosed lumbar region
spondylolisthesis was directly related to his work duties. He explained that appellant had lumbar
back surgery with L2-S1 laminectomy and L4-S1 fusion with posterior instrumented stabilization
on September 2, 2016. Dr. Mohit noted that appellant continued with pain in the sciatic joint, both
legs and ankles, which caused falls before and after surgery. He recommended that appellant avoid

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standing for prolonged hours on hard surfaces, heavy lifting, operating of equipment, or climbing
up or down ladders. Dr. Mohit opined that appellant should be considered for medical retirement.
On June 19, 2017 appellant requested reconsideration.
By decision dated June 28, 2017, OWCP modified the May 19, 2017 decision. It found
that the medical evidence submitted was insufficient to establish that the medical condition was
causally related to accepted work events.
On July 20, 2017 appellant requested reconsideration.
In an undated report received on July 20, 2017, Dr. Mohit explained that appellant’s
employment duties required heavy lifting of sheet metal, standing on hard surfaces for prolonged
hours, kneeling, stooping, and lifting sheet metal in awkward positions and in confined spaces. He
opined that “[t]his type of work causes a significant amount of strain on [appellant’s] back and
overall body.” As a result, appellant underwent a lumbar fusion surgery on September 2, 2016.
Dr. Mohit explained that appellant reported continued sacroiliac joint pain and pain radiating down
both legs and ankles which caused appellant to fall before and after surgery. He recommended
that appellant avoid standing for prolonged hours on hard surfaces, no heavy lifting, or climbing
up or down ladders. Dr. Mohit opined that appellant should be considered for medical retirement.
By decision dated July 31, 2017, OWCP denied modification of its prior decision. It
explained that Dr. Mohit had not provided a well-reasoned opinion as to how appellant’s specific
duties caused or aggravated the diagnosis of spondylolisthesis.
On August 8, 2017 appellant requested reconsideration. He provided a copy of Dr. Mohit’s
previously reviewed undated report.
By decision dated September 28, 2017, OWCP denied appellant’s request for
reconsideration, finding that the evidence submitted was cumulative and substantially similar to
evidence or documentation previously considered.
On March 21, 2018 appellant requested reconsideration.
In a March 19, 2018 report, Dr. Mohit opined that it was his medical opinion that
appellant’s duties at work required that he lift sheet metal in awkward positions in confined spaces.
He explained that this type of work caused a significant amount of strain on appellant’s back and
overall body. Dr. Mohit noted that, due to appellant’s back issues, he underwent an L2-S1
laminectomy with L4-S1 posterior spinal fusion on September 2, 2016. He also noted that
appellant underwent a right sacroiliac joint fusion on July 24, 2017. Dr. Mohit noted that appellant
had complaints of continued sacroiliac joint pain, pain radiating down both legs and ankles, and
numbness in his leg which caused him to have near falls. He explained that these were residual
symptoms after surgical intervention that might improve with physical therapy. Dr. Mohit
recommended that appellant avoid standing for prolonged hours on hard surfaces and no heavy
lifting or climbing up or down ladders, as these could aggravate symptoms and potentially cause
harm.

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By decision dated April 3, 2018, OWCP denied appellant’s request for reconsideration
with conducting a merit review.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.3 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.4
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.5 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration, without
reopening the case for a review on the merits.6
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s request for reconsideration did not show that OWCP erroneously applied or
interpreted a specific point of law or advance a new and relevant legal argument not previously
considered by OWCP. Consequently, he was not entitled to a review of the merits based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant has not submitted relevant and pertinent new
evidence in support of his request for reconsideration under 20 C.F.R. § 10.606(b)(3). The Board
notes that the underlying issue in this case is whether he established that he sustained a lumbar
condition causally related to accepted factors of his federal employment as a sheet metal mechanic.

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his] own motion or on application.” 5 U.S.C. § 8128(a).
2

3

20 C.F.R. § 10.607.

4

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of its decision for which review is sought. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document
receipt date of the request for reconsideration as indicated by the received date in the integrated Federal Employees’
Compensation System. Id. at Chapter 2.1602.4b.
5

Id. at § 10.606(b)(3).

6
Id. at § 10.608(a), (b); C.C., Docket No. 18-0316 (issued March 14, 2019); see also E.R., Docket No. 09-1655
(issued March 18, 2010).

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That is the medical issue which, on reconsideration, must be addressed by relevant medical
evidence not previously considered.7
On reconsideration OWCP received a copy of Dr. Mohit’s undated report received on
July 20, 2017 which was not new and a new report from him dated March 19, 2018. The Board
has held that the submission of evidence which repeats or duplicates evidence already in the case
record does not constitute a basis for reopening a case.8 The undated report was duplicative of a
prior submission and the March 19, 2018 report was cumulative and substantially similar to
Dr. Mohit’s previous reports. The March 19, 2018 report while new, still did not provide
additional rationale on the issue of causal relationship. Evidence which does not address the
particular issue under consideration does not constitute a basis for reopening a case.9 Thus,
appellant is also not entitled to a review of the merits of his claim based on the third above-noted
requirement under section 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

7

See Bobbie F. Cowart, 55 ECAB 746 (2004).

8

See L.R., Docket No. 18-0400 (issued August 24, 2018).

9

H.H., Docket No. 18-1660 (issued March 14, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the April 3, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 24, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.S., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 07-457
Issued: May 1, 2007

Case Submitted on the Record

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

JURISDICTION
On December 8, 2006 appellant filed a timely appeal of the June 27, 2006 decision of the
Office of Workers’ Compensation Programs which denied further merit review because his
request for reconsideration was untimely and failed to demonstrate clear evidence of error. The
most recent merit decision is dated May 21, 1997. Because appellant filed the current appeal
more than a year after the last merit decision the Board does not have jurisdiction over the merits
of the claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for merit
review under 5 U.S.C. § 8128(a).

1

20 C.F.R. §§ 501.2(c), 501.3(d) (2006).

FACTUAL HISTORY
This case was previously before the Board.2 Appellant, a 58-year-old retired marine
machinery mechanic, has an accepted claim for an employment-related back injury that arose on
August 1, 1990.3 The Office terminated his entitlement to wage-loss compensation effective
November 12, 1995, because he abandoned suitable employment.4 Appellant accepted an
April 11, 1995 offer of full-time, limited-duty work that the Office deemed suitable. However,
after accepting the assignment, he worked only four hours each day and requested leave for the
remainder of his eight-hour shift.5 The Office of Personnel Management (OPM) later granted
appellant a disability retirement and he stopped working effective July 22, 1995.
The decision to terminate appellant’s benefits was last reviewed on the merits by the
Branch of Hearing & Review, which issued a May 21, 1997 decision affirming the termination.
In the prior appeal, the Board reviewed three nonmerit decisions in which the Office denied
appellant’s various requests for reconsideration. In a March 20, 2001 decision, the Board
affirmed the Office’s decisions denying merit review.6
Appellant requested reconsideration on May 25, 2006. He submitted a copy of the
April 11, 1995 limited-duty job offer and an April 19, 1995 memorandum from the employing
establishment that proposed to terminate appellant’s employment because of his injury-related
disability. Appellant also submitted several documents pertaining to his OPM disability
retirement and an August 5, 1995 record of leave. In a June 27, 2006 decision, the Office denied
reconsideration because his request was untimely and he failed to demonstrate clear evidence of
error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act does not entitle a claimant
to a review of an Office decision as a matter of right.7 The Office has discretionary authority in
this regard and it has imposed certain limitations in exercising its authority.8 One such limitation
is that the application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.9 When a request for reconsideration is untimely, the Office
2

Docket No. 99-870 (issued March 20, 2001).

3

The Office accepted the claim for aggravation of degenerative disc disease and subluxations at C7, T2 and L5.

4

Pursuant to 5 U.S.C. § 8106(c)(2), a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for him is not entitled to compensation. See also 20 C.F.R. § 10.517.
5

Appellant had been performing limited-duty work on a part-time basis dating back to January 1993.

6

The Board’s March 20, 2001 decision is incorporated herein by reference.

7

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a) (2000).
8

20 C.F.R. § 10.607.

9

20 C.F.R. § 10.607(a).

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will undertake a limited review to determine whether the application presents “clear evidence of
error” on the part of the Office in its “most recent merit decision.”10
ANALYSIS
Appellant’s request for reconsideration was dated May 25, 2006, which is more than a
year after the Office’s May 21, 1997 merit decision.11 Because his request was untimely he must
demonstrate “clear evidence of error” on the part of the Office in terminating benefits effective
November 12, 1995.12
In his May 25, 2006 request for reconsideration, appellant argued that the April 11, 1995
job offer he initially accepted was not suitable because it did not take into account his preexisting
carpal tunnel syndrome. Appellant, however, has not submitted with his reconsideration request
any medical evidence indicating that he was physically unable to perform the required duties of
the position as a result of either his accepted condition or any preexisting conditions. The record
indicates that the offered position was consistent with the March 17, 1995 physical limitations
imposed by appellant’s then-treating physician, Dr. Bala C. Marar.
Appellant also argued that the offered position was temporary and, therefore, could not
be considered suitable. He based this argument on the fact that Mare Island Naval Shipyard was
scheduled for closure on April 1, 1996. The fact that appellant’s position was not guaranteed
beyond one year does not make it a temporary position. Although appellant was advised that the
shipyard was scheduled for closure, the April 11, 1995 offer did not specifically limit the term of
the appointment. An employee on limited duty is not exempt from the effects of a potential
reduction-in-force.13 Moreover, in connection with appellant’s application for retirement
disability, the employing establishment represented to OPM on June 9, 1995 that appellant was
“currently occupying a permanent position.”
The August 5, 1995 record of leave appellant submitted on reconsideration indicated that
in the 6½ months preceding his July 22, 1995 retirement, appellant was absent without pay for
more than 700 hours. He also used a combined 60 hours of annual and sick leave during this
10

20 C.F.R. § 10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the
issue that was decided by the Office. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive,
precise and explicit and it must be apparent on its face that the Office committed an error. See Leona N. Travis, 43
ECAB 227 (1991). It is not enough to merely show that the evidence could be construed to produce a contrary
conclusion. Id. Evidence that does not raise a substantial question concerning the correctness of the Office’s
decision is insufficient to establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The
evidence submitted must not only be of sufficient probative value to create a conflict in medical opinion or establish
a clear procedural error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of the Office decision. Thankamma
Mathews, 44 ECAB 765, 770 (1993).
11

The Office received appellant’s May 25, 2006 request on June 1, 2006.

12

20 C.F.R. § 10.607(b).

13

See 20 C.F.R. § 10.5(x) (a recurrence of disability does not include a withdrawal of a light-duty assignment due
to a reduction-in-force).

3

time frame. Appellant argued on reconsideration that the employing establishment tacitly
approved his absence when he continued to work four-hour days after accepting the April 11,
1995 offer of full-time employment. Because of the employing establishment’s approval, he
could not be found to have refused suitable work. There is no merit to appellant’s argument. He
has not presented any evidence that the employing establishment approved his routine absences
following his acceptance of the full-time limited-duty position. The leave report appellant
submitted indicated that he did not have sufficient annual or sick leave available to cover his
absences.
Appellant also argued that the Office could not terminate compensation under 5 U.S.C.
§ 8106(c) because of his election to receive a retirement disability annuity from OPM.14
Although the termination process commenced after appellant’s July 22, 1995 retirement, the
Office did not terminate his benefits because he elected to retire on an OPM disability annuity.
Appellant’s benefits were terminated under 5 U.S.C. § 8106(c)(2), because he refused full-time,
limited-duty work with the employing establishment. The employing establishment’s April 19,
1995 memorandum proposing to terminate appellant’s employment because of his injury-related
disability is of little importance to the current issue because the proposed termination was never
carried out.
As appellant failed to demonstrate clear evidence of error in his May 25, 2006
reconsideration request, there is no justification for further merit review. Accordingly, the Office
properly declined to reopen appellant’s case under 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant’s May 25, 2006 request was untimely and he failed to
demonstrate clear evidence of error. Therefore, appellant is not entitled to further merit review.

14

Additionally, appellant claimed that the Office issued a formal loss of wage-earning capacity determination on
June 30, 1995. This notification, however, was not a formal decision, but merely a notice advising him that his
monetary compensation was effectively reduced to zero because of his return to full-time employment effective
April 12, 1995. The Office did not find that appellant’s actual earnings of $772.00 per week fairly and reasonably
represented his wage-earning capacity.

4

ORDER
IT IS HEREBY ORDERED THAT the June 27, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 21-0742
Issued: December 14, 2021

Case Submitted on the Record

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

JURISDICTION
On April 20, 2021 appellant filed a timely appeal from a March 31, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted January 16, 2021 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 31, 2021 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review
of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus,
the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On January 16, 2021 appellant, then a 41-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on that date he injured his left ankle when he stepped in a
“devit” while walking to his truck, experienced a snap and rolled his ankle to the left side while in
the performance of duty. He stopped work on January 17, 2021.3
In a January 20, 2021 duty status report (Form CA-17), an unidentifiable healthcare
provider diagnosed left ankle sprain and provided work restrictions.
In a January 28, 2021 authorization for examination and/or treatment (Form CA-16), the
employing establishment authorized appellant to seek medical care.
OWCP received a February 1, 2021 physical therapy report.
In a February 12, 2021 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed to establish his
claim and provided a factual questionnaire for his completion. OWCP afforded appella nt 30 days
to respond.
In a January 16, 2021 first aid report, William Stilwell, a nurse practitioner, noted that
appellant sustained a left ankle injury when he stepped in a pothole and rolled his ankle. He
conducted a physical examination and diagnosed sprain of unspecified ligament of left ankle. In
a State of New York workers’ compensation report of even date, Mr. Stilwell checked a box
marked “Yes” in response to whether the incident appellant described was the competent cause of
the injury or illness and in response to whether appellant’s complaints were consistent with the
history of the injury/illness.
A January 16, 2021 x-ray of the left ankle revealed no acute osseous abnormality, but
demonstrated mild osteoarthritic changes.
In a March 10, 2021 work restrictions note, Rocco Rosano, a physician assistant, noted that
appellant could return to work without restrictions on March 15, 2021.
OWCP also received a resignation/transfer form signed by appellant on March 16, 2021.
By decision dated March 31, 2021, OWCP denied appellant’s traumatic injury claim. It
accepted that the January 16, 2021 employment incident occurred as alleged, but denied his claim
because he had failed to submit sufficient medical evidence to establish a medical diagnosis.
OWCP concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.

3

The Board notes that appellant submitted a separate Form CA-1 dated January 28, 2021. Appellant described the
January 16, 2021 employment incident of stepping in a “devit or pothole” and twisting and spraining his left ankle as
he fell.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 5 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that 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. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted January 16, 2021 employment incident.

4

Supra note 1.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

In support of his claim, appellant submitted reports from a nurse practitioner, a physical
therapist, and a physician assistant. The Board has long held that certain healthcare providers such
as physician assistants, nurses, nurse practitioners, physical therapists, and social workers are not
considered physician[s] as defined under FECA. 11 Consequently, their medical findings and/or
opinions will not suffice for purposes of establishing entitlement to FECA benefits. 12
Appellant submitted a January 20, 2021 Form CA-17, which provided a diagnosis of left
ankle sprain. However, the report contained an illegible signature from an unidentifiable
healthcare provider. The Board has held that reports that are unsigned or bear an illegible signature
lack proper identification and cannot be considered probative medical evidence as the author
cannot be identified as a physician.13 Thus, this report is insufficient to establish appellant’s claim.
Appellant also submitted a January 16, 2021 x-ray of the left ankle. The Board has
explained, however, that diagnostic studies, standing alone, lack probative value as they do not
address whether the employment incident caused any of the diagnosed conditions. 14 Thus, this
evidence is also insufficient to meet appellant’s burden of proof.
As the record lacks rationalized medical evidence establishing a diagnosed medical
condition causally related to the accepted January 16, 2021 employment incident, the Board finds
that appellant has not met his burden of proof to establish his claim. 15
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.

11

Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA). See also J.D., Docket No. 21-0164 (issued June 15, 2021) (nurse practitioners); A.M., Docket No. 20-1575
(issued May 24, 2021) (physical therapists); A.C., Docket No. 20-1510 (issued April 23, 2021) (physician assistants).
12

Id.

13

T.D., Docket No. 20-0835 (issued February 2, 2021); R.C., Docket No. 19-0376 (issued July 15, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
14

M.B., Docket No. 19-1638 (issued July 17, 2020); T.S., Docket No. 18-0150 (issued April 12, 2019).

15

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

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted January 16, 2021 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 14, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
M.L., Appellant
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
Spokane, WA, Employer
)
___________________________________________ )
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1396
Issued: February 2, 2011

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 April 27, 2010 appellant filed a timely appeal from a March 29, 2010 merit decision
of the Office of Workers’ Compensation Programs that affirmed the termination of his
compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective October 6, 2009.
FACTUAL HISTORY
On March 3, 2008 appellant, then a 42-year-old claims clerk, filed an occupational
disease claim alleging that his asthma was aggravated by a new carpet and renovations in his

work environment.1 He stopped work on February 25, 2008, returned on March 4, 2008.
Appellant stopped work again on March 17, 2008. The Office accepted his claim for temporary
aggravation of preexisting asthma. Appellant received compensation.2
In a June 26, 2008 report, Dr. Jennifer Mayfield, a Board-certified family practitioner and
treating physician reviewed appellant’s history, which included that his breathing problems were
exacerbated by working at the employing establishment in Building 32. She noted that appellant
had ongoing pulmonary problems since August 2004. Dr. Mayfield advised that appellant
needed to lose 30 to 50 pounds before undergoing a Nissen fundoplication. She diagnosed
chronic asthma without mention of status asthmaticus, hiatal hernia, obstructive sleep apnea,
morbid obesity and osteopenia due to chronic steroid use. Dr. Mayfield noted that appellant’s
condition was nearly static and opined that he was unlikely to experience major improvements in
his ability to breathe in the next year. She opined that appellant would not able to return to work
in the next year.3
In letters dated March 24 and April 7, 2009, the Office requested that Dr. Mayfield
provide an update on appellant’s condition. It also requested that she provide a rationalized
opinion with regard to whether the work-related aggravation of his preexisting asthma was still
active and causing symptoms despite his absence from the workplace for over a year.
Dr. Mayfield did not respond.
On June 5, 2009 the Office referred appellant to Dr. Robert Cox, a Board-certified
pulmonologist, for a second opinion. In a July 21, 2009 report, Dr. Cox noted appellant’s history
and medical treatment. He examined appellant for complaints of asthma and shortness of breath.
The pulmonary examination revealed a normal breathing pattern at rest, normal chest inspection,
and normal chest percussion. On auscultation, Dr. Cox determined that appellant had +1
expiratory wheeze, primarily heard over the anterior region of the throat. Appellant denied
smoking except for a cigar “once in a while.” Dr. Cox diagnosed persistent asthma solely based
on appellant’s self-report of symptoms throughout the day and repeated daily use of short-acting
beta agonists and not on objective findings from a current pulmonary function study or physical
examination.
Regarding vocal cord dysfunction, he noted that appellant was wheezing over the
laryngeal area and, while this was nonspecific, he was suspicious as appellant exhibited poor
asthma control in spite of an excellent medical regimen. Appellant was a possible smoker and
exposed to high levels of second-hand smoke. Dr. Cox noted that appellant’s urinary cotinine
1

The record reflects that appellant has preexisting conditions which include: hiatal hernia, osteopenia, migraine,
adjustment reaction with mixed emotion, hypertension, hyperlipidemia, allergies, diverticulitis (colonic), bipolar
disorder, arthralgia, paresthesias, obesity, depressive disorder, esophageal reflux and asthma.
2

The Office accepted appellant’s claims for disability compensation for the periods February 8 to 25, 29, March 3
through 6, and March 7 through 13, 2008.
3

On June 24, 2008 Dr. Lawrence Klock, a Board-certified pulmonologist and an Office referral physician, opined
that appellant’s asthma, which he had since age 26, was temporarily exacerbated by unspecified pathogens in
Building 32 at work. He noted that no specific allergen or infectious agent had been isolated at work and that his
opinion was based on a temporal relationship and the timing of appellant’s symptoms.

2

levels were positive, which would either indicate active smoking of cigarettes or cigars or
exposure to high levels of passive cigarette smoke. He explained that, if appellant was either
exposed to active smoking or high levels of passive smoke, he would be susceptible to worsening
of the underlying asthma condition. Dr. Cox advised that appellant’s current asthma was not
related to any temporary aggravation of his preexisting condition from his work environment.
Appellant had been completely out of the work environment for over a year and his symptoms
continued unabated. Dr. Cox explained that there was no report of any toxic substance in the
work space that would account for this duration of symptoms and removal from the workplace
should have resulted in improvement if there was anything in the work environment that was
causing temporary aggravation. Appellant was not currently disabled from employment as a
result of the temporary aggravation of his preexisting asthma or due to his current asthma status.
Dr. Cox noted that appellant’s current pulmonary function was only mildly reduced in spite of
self-reported extreme symptoms. He concluded that appellant did not currently have any workrelated condition. Dr. Cox advised that there was no medical reason that appellant could not
work at a sedentary job in an office setting and that he had no current disability due to the
accepted aggravation of his condition. He completed a work capacity evaluation on July 23,
2009 which included restrictions on exposure to temperature extremes, airborne particles and gas
or fumes.
On September 4, 2009 the Office issued a notice of proposed termination of
compensation. It noted that the weight of medical evidence was represented by the report of
Dr. Cox. It established that appellant’s temporary aggravation of his preexisting asthma had
ceased and he no longer had any disability or residuals due to the accepted condition.
In an October 6, 2009 decision, the Office terminated appellant’s compensation benefits
effective that date. It found that the weight of medical evidence rested with Dr. Cox and
supported that appellant no longer had residuals of the accepted work-related aggravation.
On October 14, 2009 appellant’s representative requested a telephonic hearing, which
was held on January 13, 2010. During the hearing, appellant advised that he had a 60 percent
military service-connected disability for asthma.
In a letter dated October 27, 2009, appellant’s representative provided the Office with
employing establishment treatment records. In a September 18, 2009 report, Dr. James McHugh,
a Board-certified family practitioner and employing establishment physician, addressed
appellant’s history. He noted findings and diagnosed various conditions including hiatal hernia,
osteopenia, asthma and morbid obesity. In a September 21, 2009 pulmonary function report,
Dr. McHugh diagnosed moderately severe obstructive airway disease.
A July 21, 2009 chest x-ray was read by Dr. Alice B. Josafat, a Board-certified
radiologist, who noted appellant had a clinical history of asbestos exposure. Dr. Josafat
indicated that there were no acute consolidations in the lungs and no radiographic evidence for
asbestos exposure.
By decision dated March 29, 2010, an Office hearing representative affirmed the
October 6, 2009 termination decision.

3

LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5
ANALYSIS
The Office accepted that appellant sustained temporary aggravation of preexisting
asthma.
On March 24 and April 7, 2009 the Office requested that appellant’s treating physician
provide an updated opinion regarding his disability status. When Dr. Mayfield did not respond,
the Office referred appellant for a second opinion examination with Dr. Cox.6
The Board finds that Dr. Cox’s opinion is well rationalized and represents the weight of
the medical evidence regarding appellant’s accepted conditions.
Dr. Cox examined appellant and explained that the pulmonary examination revealed a
normal breathing pattern at rest, normal chest inspection and normal chest percussion. He
diagnosed persistent asthma based on appellant’s self-reported symptoms but noted it was not
confirmed by his review of diagnostic testing or findings on examination. While appellant
demonstrated vocal cord dysfunction and wheezing over the laryngeal area, this was a
nonspecific finding. Dr. Cox noted that appellant exhibited poor asthma control in spite of an
excellent medical regimen. He determined that appellant was a possible smoker or exposed to
high levels of second-hand smoke based on positive urinary nicotine levels. Dr. Cox explained
that, if appellant was exposed to active smoking of high levels or to passive smoke, he would be
susceptible to worsening of his underlying asthma condition. He opined that appellant’s current
asthma was not related to the accepted temporary aggravation of his preexisting condition from
his work environment. Appellant had been out of the work environment for over a year but his
symptoms continued unabated. Dr. Cox advised that there was no report of any specific toxic
agent in the work space that would account for this duration of symptoms. He noted that
appellant’s long absence from the workplace should have resulted in improvement if there was
anything in the work environment that was causing temporary aggravation. Dr. Cox found that
appellant was not currently disabled from employment as a result of any temporary aggravation
of his preexisting asthma or due to his current status. Appellant’s current pulmonary function
studies were only mildly reduced in spite of self-reported extreme symptoms. There was no
medical reason that appellant could not return to work in a sedentary environment in an office
setting. Dr. Cox completed a work capacity evaluation which included restrictions on exposure
4

Curtis Hall, 45 ECAB 316 (1994).

5

Jason C. Armstrong, 40 ECAB 907 (1989).

6

See 20 C.F.R. § 10.320.

4

to temperature extremes, airborne particles and gas or fumes. He concluded that appellant did
not have residuals from the employment injury. Furthermore, Dr. Cox did not attribute any
inability to work to the accepted employment exposure or conditions.
The Board notes that appellant submitted employing establishment treatment records,
including a September 18, 2009 report and a September 21, 2009 pulmonary function report,
from Dr. McHugh. The pulmonary function study merely provided a diagnosis of moderately
severe obstructive airway disease. Dr. McHugh did not offer any opinion addressing how this
was related to appellant’s accepted exposure in 2008. The July 29, 2009 chest x-ray from
Dr. Josafat did not provide an opinion on the issue of whether appellant continued to have any
employment-related condition. Medical evidence which does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.7
The Board finds that the weight of medical opinion is represented by Dr. Cox. He found
that appellant no longer had residuals or disability related to his accepted employment exposure
and the Office properly terminated appellant’s compensation benefits effective October 6, 2009.
The Office’s decision to terminate appellant’s compensation benefits shall be affirmed.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective October 6, 2009.

7

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009); Michael E. Smith, 50 ECAB 313 (1999).

5

ORDER
IT IS HEREBY ORDERED THAT the March 29, 2010 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: February 2, 2011
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Gulfport, MS, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-0860
Issued: June 25, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On May 12, 2021 appellant filed an appeal from a June 22, 2018 merit decision of the
Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
assigned Docket No. 21-0860.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.2
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.3

1

Appellant’s Form AB-1 requests an appeal from a purported August 24, 2019 decision. However, the case record
as transmitted to the Board does not contain final adverse decision of that date. The most recent final adverse decision
of record is dated June 22, 2018.
2

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

3

Id. at § 501.3(e).

The 180th day following the June 22, 2018 decision was December 19, 2018. As appellant
did not file an appeal with the Board until May 12, 2021, more than 180 days after the June 22,
2018 OWCP decision, the Board finds that the appeal docketed as No. 21-0860 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not offered a reason to
explain the failure to timely file an appeal with supporting documentation sufficient to establish
compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”4
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0860 is dismissed.
Issued: June 25, 2021
Washington, DC

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

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

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

4

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Washington, DC, Employer
)
__________________________________________ )
T.S., Appellant

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

Docket Nos. 17-1592 &
17-1629
Issued: November 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 17, 2017 appellant filed a timely appeal from an April 14, 2017 merit decision
and a May 3, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a cervical
condition causally related to the July 6, 2015 employment incident; and (2) whether OWCP
properly denied appellant’s request for reconsideration of the merits of his claim pursuant to
5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.2 On July 10, 2015 appellant, a 54-year-old
marshal, filed a claim for recurrence of disability (Form CA-2a) for medical treatment only
under OWCP File No. xxxxxx200. He had previously injured his neck and left upper extremity
on January 6, 1997, which OWCP accepted for neck sprain and left elbow/forearm contusion.
On his Form CA-2a, appellant identified July 6, 2015 as the date of recurrence and explained that
the pain in his neck, left arm, and hand “came back a day after [he] was moving some boxes
around at work.” Based on appellant’s description of events, OWCP treated his recurrence claim
as a claim for a new traumatic injury.
Appellant submitted medical evidence indicating that the July 6, 2015 employment
incident aggravated an underlying cervical condition, which produced left arm pain. His treating
physician, Dr. David C. Waters, a Board-certified neurosurgeon, diagnosed left C8 radiculopathy
and recommended surgical intervention. In a November 17, 2015 report, Dr. Waters indicated
that appellant’s July 6, 2015 work activities aggravated his underlying cervical condition.
By decisions dated November 9, 2015 and April 4, 2016, OWCP denied appellant’s
traumatic injury claim finding that the medical evidence submitted was insufficient to establish
causal relationship between appellant’s condition and the employment incident.
On August 30, 2016 appellant requested reconsideration and purportedly submitted new
medical evidence from his treating physician. However, there was no indication that OWCP
received any additional evidence subsequent to its April 4, 2016 decision. OWCP denied
appellant’s request for reconsideration by decision dated September 14, 2016. When the case
was on prior appeal on January 25, 2017, the Board had affirmed OWCP’s September 14, 2016
nonmerit decision.3 The facts and circumstances of the case as set forth in the Board’s
January 25, 2017 decision are incorporated herein by reference.
On January 30, 2017 appellant requested reconsideration and submitted a May 3, 2016
report from Dr. Waters who diagnosed left C8 radiculopathy. Dr. Waters noted that appellant
had C8 radiculopathy since a motor vehicle accident in January 1997 and then experienced
recurrent symptoms after stacking and unloading luggage while at work in May 2007.
Dr. Waters reported that appellant was symptom-free until 2013 when he was “carrying boards
on his left shoulder at home [and] he began to have recurrent symptoms.” He further indicated
that appellant was diagnosed as having a pinched bone in his neck and his symptoms resolved
after five months. Appellant had no symptoms between 2013 and July 2015. Dr. Waters noted
that on July 6, 2015 appellant was moving two 41-pound ammunition boxes from the floor at his
work location and placing them over his shoulder in a turning motion toward the left. While
doing this, he felt some discomfort, sudden onset of pain in the upper scapula, and by the next
day, he had pain radiating down his left arm with an electric current, which fit with the C8 nerve
root distribution. Dr. Waters found that appellant had consistent C8 medical problems and

2

Docket No. 17-0291 (issued January 25, 2017).

3

See supra note 2.

2

opined that his persistent left C8 radiculopathy was aggravated by the July 6, 2015 work
incident.
By decision dated April 14, 2017, OWCP denied modification of its prior decision
because the medical evidence of record failed to establish a causal relationship between
appellant’s cervical condition and the July 6, 2015 employment incident.
On April 20, 2017 appellant again requested reconsideration. In support of his request,
he submitted an April 20, 2017 narrative statement. Appellant reiterated the factual history of
his claim and argued that Dr. Waters had in fact provided medical rationale in his May 3, 2016
report, which appellant resubmitted.
By decision dated May 3, 2017, OWCP denied appellant’s request for reconsideration
without a merit review. It found that no new evidence had been submitted and the May 3, 2016
report from Dr. Waters was repetitious.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic 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 that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a
personal injury.6 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.7

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

3

The fact that a condition manifests itself during a period of employment is insufficient to
establish causal relationship.8 Temporal relationship alone will not suffice.9 Entitlement to
FECA benefits may not be based on surmise, conjecture, speculation, or on the employee’s own
belief of a causal relationship.10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS -- ISSUE 1
OWCP accepted that the July 6, 2015 employment incident occurred as alleged, and also
accepted that there was a medical diagnosis in connection with the employment incident.
However, it denied appellant’s traumatic injury claim finding that the medical evidence was
insufficient to establish a causal relationship between the diagnosed condition and the accepted
employment exposure. The issue is whether appellant’s new cervical condition resulted from the
July 6, 2015 employment incident. The Board finds that appellant failed to meet his burden of
proof to establish causal relationship.
In a November 17, 2015 report, Dr. Waters indicated that appellant’s July 6, 2015 work
activities aggravated his underlying cervical condition. He explained that appellant was moving
boxes at work and he had another episode of severe left C8 radicular symptoms. However,
Dr. Waters did not adequately explain how the July 6, 2015 employment incident aggravated
appellant’s preexisting cervical condition. A physician’s opinion on causal relationship must be
supported by medical rationale, explaining the nature of the relationship between the diagnosed
condition and appellant’s specific employment factor(s).12
In his May 3, 2016 report, Dr. Waters diagnosed left C8 radiculopathy. He noted that
appellant had C8 radiculopathy since a January 1997 motor vehicle accident, and then
experienced recurrent symptoms after stacking and unloading luggage at work in May 2007.
Dr. Waters also reported that appellant was symptom-free until 2013 when he was carrying
boards on his left shoulder at home and began to have recurrent symptoms. At that time,
appellant was diagnosed with a pinched bone in his neck, and his symptoms reportedly resolved
after five months. Dr. Waters noted that on July 6, 2015 appellant was moving two 41-pound
ammunition boxes from the floor at his work location and placing them over his shoulder in a
turning motion toward the left. While doing this, he felt some discomfort, sudden onset of pain
in the upper scapula, and by the next day, he had pain radiating down his left arm with an electric
8

20 C.F.R. § 10.115(e).

9

See D.I., 59 ECAB 158, 162 (2007).

10

See M.H., Docket No. 16-0228 (issued June 8, 2016).

11

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

12

Victor J. Woodhams, supra note 6.

4

current, which fit with the C8 nerve root distribution. Dr. Waters opined that appellant’s
persistent left C8 radiculopathy was aggravated by the July 6, 2015 work incident. The Board
finds that Dr. Waters failed to provide sufficient medical rationale explaining how moving boxes
at work on July 6, 2015 either caused or contributed to appellant’s condition. As noted, a
physician’s opinion must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed conditions and appellant’s specific employment factor(s).13
The need for rationale is particularly important as the evidence indicates that appellant had a
preexisting cervical condition and prior, intervening injuries in 2007 and 2013.14 Thus, the
Board finds that Dr. Waters’ latest report is similarly insufficient to establish that appellant
sustained an employment-related injury on July 6, 2015.
As appellant has not submitted any rationalized medical evidence to support his claim
that he sustained a cervical injury causally related to the July 6, 2015 employment incident, he
has failed to meet his burden of proof to establish entitlement to compensation benefits.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.15 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.16 One such limitation is that the request for
reconsideration must be received by OWCP within one year of the date of the decision for which
review is sought.17 A timely application for reconsideration, including all supporting documents,
must set forth arguments and contain evidence that either: (i) shows that OWCP erroneously
applied or interpreted a specific point of law; (ii) advances a relevant legal argument not
previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not
previously considered by OWCP.18 When a timely application for reconsideration does not meet

13

Victor J. Woodhams, supra note 6.

14

See supra note 11.

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
15

16

20 C.F.R. § 10.607.

17

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System; see Chapter 2.1602.4b.
18

20 C.F.R. § 10.606(b)(3).

5

at least one of the above-noted requirements, OWCP will deny the request for reconsideration
without reopening the case for a review on the merits.19
ANALYSIS -- ISSUE 2
Appellant’s April 20, 2017 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. He submitted an April 20,
2017 narrative statement reiterating the factual history of his claim and arguing that OWCP did
not reference any of Dr. Waters’ May 3, 2016 report wherein he provided medical rationale to
support his opinion. The Board finds, however, that he has not advanced a relevant legal
argument not previously considered by OWCP. Consequently, appellant is not entitled to further
review of the merits of his claim based on the first and second above-noted requirements under
section 10.606(b)(3).
With respect to the third requirement under section 10.606(b)(3), appellant has not
submitted any relevant and pertinent new evidence. He resubmitted a May 3, 2016 report from
Dr. Waters, but the Board finds that the submission of this evidence did not require reopening
appellant’s case for merit review because appellant had submitted the same evidence, which was
previously reviewed by OWCP in its April 14, 2017 decision. As the report repeats evidence
already in the case record, it is duplicative and does not constitute relevant and pertinent new
evidence.20
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(3), and properly denied his request for reconsideration.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a cervical
condition causally related to a July 6, 2015 employment incident. The Board further finds that
OWCP properly denied appellant’s request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

19

Id. at § 10.608(a), (b).

20

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

6

ORDER
IT IS HEREBY ORDERED THAT the May 3 and April 14, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 13, 2017
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
Q.U., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-241
Issued: June 9, 2014

Case Submitted on the Record

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

JURISDICTION
On November 15, 2013 appellant filed a timely appeal of a May 20, 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 met his burden of proof to establish an injury in the
performance of duty.
On appeal appellant contends that the medical evidence establishes that the stress of his
work caused his myocardial infarction.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 14, 2012 appellant, then a 65-year-old customs and border patrol
technician, filed a traumatic injury claim alleging that he sustained chest pain, back pain, left arm
pain, dizziness, sweating and difficulty breathing that day while in the performance of duty. He
stopped work.
In an undated disability note, Dr. Stan Mathioulakis, a treating Board-certified internist,
restricted appellant to light-duty work for the period November 14, 2012 to January 14, 2013.
In a November 26, 2012 report, Dr. Jaime Henriquez, an examining Board-certified
cardiologist, noted that appellant was seen for posthospital weakness. He diagnosed an old
myocardial infarction.
By letter dated December 6, 2012, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant’s claim had been received and appeared to be a
minor injury and the merits of the claim had not been adjudicated. As he had not returned to
work, OWCP was reopening his claim for a merit review. Appellant was advised as to the
medical and factual evidence required to establish his claim and given 30 days to provide this
information.
In response, appellant submitted a statement and medical evidence. He attributed his
illness to being rotated among three different terminals over the past year, lifting heavy suitcases,
working long hours and being forced to work beyond his shift. Appellant noted that he ended up
working about 16 hours per day.
In an August 31, 2011 report, Dr. Vincent L. Antosz, an examining Board-certified
internist, reported that appellant had a family history of atherosclerotic heart disease and he had a
history of hyperlipidemia. Appellant reported having episodes of exercise-induced chest pains
over the past three months that were transient. Dr. Antosz stated that appellant was admitted to
Methodist Hospital for possible unstable angina. The diagnoses included chest pain and
hyperlipidemia.
In a December 21, 2012 report, Dr. Stan stated that appellant had a history of myocardial
infarctions. He recommended that appellant not perform any heavy lifting.
In an undated disability note, Dr. Mathioulakis released appellant to light-duty work on
January 13, 2013 with restrictions. He advised that appellant was totally disabled for work from
November 24, 2012 to January 12, 2013.
By decision dated January 17, 2013, OWCP denied appellant’s claim on the grounds that
he failed to establish fact of injury. It found that the factual record contained general information
without evidence of a specific incident at work.
On February 11, 2013 appellant requested a review of the written record by an OWCP
hearing representative and submitted additional evidence.

2

In an undated note, Dr. Mathioulakis stated that appellant had a history of stress, anxiety
and stent placement with severe dyslipidemia. Appellant attributed his condition to stress in his
work.
In an April 21, 2013 statement, Mohommad Khan, a customs and border patrol
agricultural specialist, reported that on November 14, 2012 he was notified that appellant was
having a heart attack. He rushed to where appellant was and stayed with him until the
paramedics arrived.
By decision dated May 20, 2013, an OWCP hearing representative affirmed the denial of
appellant’s claim. She found that he failed to submit any evidence supporting the work factors
that he alleged caused his myocardial infarction. The hearing representative noted that it was
appellant’s burden to provide a clear and detailed account of the mechanism of injury, whether
the claim was occupational or traumatic in nature, which he failed to do. It was unclear from the
record whether he was claiming specific factors occurring during one work shift or to factors
occurring over more than one work shift, which would constitute an occupational disease claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.6 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
2

5 U.S.C. § 8101 et seq.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
6

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

3

ANALYSIS
OWCP denied appellant’s claim in a decision dated January 17, 2013 finding that the
injury did not occur in the manner alleged.
The Board finds that factual evidence of record does not support appellant’s claim of a
traumatic injury on November 14, 2012. Appellant mentioned generally that he was being
rotated among three different terminals over the past year, lifting heavy suitcases, working long
hours and being forced to work beyond his shift. He submitted no evidence to support his
allegations. Appellant provided no job description or any other evidence corroborating his
description of his job duties and the hours he worked. As noted, a traumatic injury is related to
work incidents arising within a single shift or workday, as in contrast to an occupational disease.
It is not disputed that appellant was in the performance of duty on November 14, 2012.
The Board finds that he failed to establish the fact of injury. Appellant did not meet his burden
of proof to establish that he sustained a traumatic injury on November 14, 2012.
In his CA-1 form, appellant provided no detailed account of the alleged incident or
corroborating evidence. He presented no evidence regarding the specific mechanism of injury,
as required in a claim for traumatic injury, nor did he allege that he experienced a specific event,
incident or exposure at a definite time, place and manner.8 Appellant did not advise exactly what
duties he was performing on November 14, 2012 that caused or aggravated his medical
condition. His recitation of the facts does not support his allegation that a specific event
occurred which caused a work-related injury.9
Appellant contends on appeal that the medical evidence is sufficient to establish his
claim. As explained, he did not provide any factual evidence establishing the work factors that
he alleged caused or aggravated his myocardial infarction. Consequently, the Board does not
need to consider the medical evidence with respect to causal relationship.10
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. As appellant has failed to submit any probative medical evidence
establishing that he sustained an injury due to the employment factors he identified, he has failed
to meet his burden of proof. As he has not met his burden of proof to establish the fact of injury,
it is not necessary to discuss the probative value of the medical reports.11

8

See Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54 ECAB 174 (2002).

9

Paul Foster, 56 ECAB 208 (2004) (the Board found that appellant had failed to establish the fact of injury
where his allegations were vague and undocumented and did not relate with specificity the cause or immediate
consequences of the claimed injury).
10

D.F., Docket No. 10-1774 (issued April 18, 2011); Bonnie A. Contreras, supra note 3.

11

See Tracey P. Spillane, supra note 8.

4

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that an injury was sustained in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 20, 2013 is affirmed.
Issued: June 9, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5