United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.V., Appellant
and
DEPARTMENT OF THE TREASURY, OFFICE
OF THE COMPTROLLER OF THE
CURRENCY, Washington, DC, Employer
__________________________________________

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

Docket No. 14-876
Issued: May 27, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 7, 2014 appellant filed a timely appeal from an October 29, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim as
untimely filed and a February 20, 2014 nonmerit decision denying his request for
reconsideration. 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’s occupational disease claim is barred by the
applicable time limitation provisions of FECA; and (2) whether OWCP properly denied his
request for further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 29, 2013 appellant, then a 65-year-old retired organizational effectiveness
supervisor, filed an occupational disease claim (Form CA-2) alleging that he developed a back
injury due to his federal employment duties. He stated that he first became aware of his
condition and of its relationship to his employment on April 1, 1997. Appellant noted that in
April 1997, he became aware of increasing back pain due to the frequent travel required by his
employment. He further stated that he was retired by the army due to a back injury and worked
for the next 25 years for the Department of the Treasury without incident until December 1997
when he was no longer able to work and was placed on medical leave. On the reverse side of the
form, appellant’s supervisor reported that he was first notified of the injury on August 12, 2013.
By letter dated August 20, 2013, OWCP advised appellant that the evidence of record
was insufficient to establish his claim and requested that he submit additional factual and
medical evidence. It also requested that the employing establishment provide a statement
detailing appellant’s job duties, dates of employment and any other evidence regarding his
allegations.
By letter dated August 28, 2013, appellant stated that he provided timely notification of
his injury because he was processed for and received disability retirement from the Office of the
Comptroller of Currency (OCC). In support of his claim, he submitted an April 7, 1976
Department of the Air Force Memorandum which noted that he retired from the U.S. Army on
May 11, 1971 due to disability.
By letter dated October 17, 2013, the employing establishment reported that appellant’s
supervisors were no longer with the employing establishment and could not comment on the
allegations made. It controverted the claim stating that his file contained nothing that would
indicate an on-the-job injury. The employing establishment reported that appellant was
receiving long-term disability benefits from OCC. It further noted that the policy was not in lieu
of and did not affect any requirements under workers’ compensation.
The employing establishment provided an official position description for a customer
service and organizational performance officer as well as a copy of appellant’s performance
evaluation.
By decision dated October 29, 2013, OWCP denied appellant’s claim on the grounds that
it was not timely filed. It found that he had failed to file a claim within three years of the date of
alleged injury, April 1, 1997. OWCP further noted that there was no evidence that a supervisor
had actual knowledge of appellant’s claim within 30 days of the date of injury.
On November 20, 2013 appellant requested reconsideration of OWCP’s decision.
In a November 20, 2013 narrative statement, appellant reported that the employing
establishment never presented him with the option to file a workers’ compensation claim. He
noted that it processed him for disability retirement and he received long-term disability
payments which would be terminated in October 2014, causing him to file a workers’
compensation claim.

2

Appellant submitted a Civil Service Retirement System (CSRS) “supervisor’s statement
form” for disability retirement. His supervisor reported that his back injury was making it
difficult for him to travel to office sites and would not be able to perform his job according to
expectation. The form did not have a legible date.
Appellant also submitted a February 3, 1998 OCC letter documenting his long-term
disability claim with an attending physician’s report, a March 31, 1998 CSRS application for
immediate retirement, an April 23, 1998 Office of Personnel Management (OPM) letter
welcoming him to CSRS and an October 22, 2005 medical report.
By decision dated February 20, 2014, OWCP denied appellant’s request for
reconsideration finding that he neither raised substantive legal questions nor included new and
relevant evidence. It noted that, while he submitted new evidence, it was irrelevant and
immaterial to the issue upon which his claim was denied.
LEGAL PRECEDENT -- ISSUE 1
In cases of injury on or after September 7, 1974, section 8122(a) of FECA provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death. Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”2
The three-year time period begins to run from the time the employee is aware or by the
exercise of reasonable diligence should have been aware, that his or her condition is causally
related to the employment. For actual knowledge of a supervisor to be regarded as timely filing,
an employee must show not only that the immediate superior knew that he or she was injured,
but also knew or reasonably should have known that it was an on-the-job injury.3
Even if an original claim for compensation for disability or death is not filed within three
years after the injury or death, compensation for disability or death may be allowed if written
notice of injury or death as specified in section 8119 was given within 30 days. Section 8119
provides that a notice of injury or death shall be given within 30 days after the injury or death; be
given to the immediate superior of the employee by personal delivery or be depositing it in the
mail properly stamped and addressed; be in writing; state the name and address of the employee;
state the year, month, day and hour when and the particular locality where the injury or death
occurred; state the cause and nature of the injury or in the case of death, the employment factors
2

Id.

3

Duet Brinson, 52 ECAB 168 (2000).

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believed to be the cause; and be signed by and contain the address of the individual giving the
notice.4 Actual knowledge and written notice of injury under section 8119 serve to satisfy the
statutory period for filing an original claim for compensation.5
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between his or her condition and his or her employment. When an employee becomes aware or
reasonably should have been aware that he has a condition which has been adversely affected by
factors of his or her federal employment, the limitation period begins to run even if the employee
does not know the precise nature of the impairment or whether the ultimate result of such affect
will be temporary or permanent.6 Where the employee continues in the same employment after
he or she reasonably should have been aware that he or she has a condition which has been
adversely affected by factors of the federal employment awareness, the time limitation begins to
run on the date of the last exposure to the implicated factors.7 The requirement to file a claim
within three years is the claimant’s burden and not that of the employing establishment.8
ANALYSIS -- ISSUE 1
Appellant claimed that he developed a back condition due to conditions of his
employment as an organizational effectiveness supervisor. By decision dated October 29, 2013,
OWCP denied his claim on the grounds that it was untimely filed. The Board finds that
appellant’s claim for compensation is barred by the applicable time limitation provisions of
FECA.
On his Form CA-2, appellant alleged that he was last exposed to his work conditions on
April 1, 1997 when he retired. He further alleged that he became aware of his back injury and of
its relationship to his employment on April 1, 1997. Appellant did not deny knowing that his
condition was caused by his employment, but rather blamed his delay in filing a claim on the
employing establishment which allegedly failed to inform him that he was eligible for workers’
compensation. He also argued that he initially did not file a claim because he was receiving
disability retirement from OCC. Appellant however also states that he was aware of an
employment-related injury beginning April 1, 1997 for which he received disability retirement.
The Board finds that the evidence establishes that he knew or reasonably should have known of a
relationship between his claimed condition and that alleged factors of his employment at the time
of his last exposure.
When an employee continues in the same employment after he reasonably should have
been aware that he has a condition which has been adversely affected by factors of federal
4

Larry E. Young, 52 ECAB 264 (2001).

5

Laura L. Harrison, 52 ECAB 515 (2001).

6

Supra note 4.

7

Id.

8

Debra Young Bruce, 52 ECAB 315 (2001).

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employment,9 the time limitation begins to run on the date of the last exposure to the implicated
factors.10 Therefore, the time limitation in this case began to run on April 1, 1997, appellant’s
last day of work and exposure to the implicated employment factors. Since appellant did not file
a claim until July 29, 2013, his claim was filed well outside the three-year limitation period.
While the Board has determined that appellant’s claim does not fall within the three-year
limitation period, his claim would still be regarded as timely under section 8122(a)(1) of FECA
if his immediate supervisor had actual knowledge of the injury within 30 days of his last
exposure to the conditions alleged to have caused his condition, i.e., within 30 days of
April 1, 1997. The knowledge must be such as to put the immediate superior reasonably on
notice of an on-the-job injury or death.11 Additionally, the claim would be deemed timely if
written notice of injury or death was provided within 30 days.12 Appellant, however, has not
alleged that his supervisor had actual knowledge of an on-the-job injury within 30 days of his
last exposure and did not submit evidence to establish that his supervisor, another employing
establishment official or an employing establishment physician or dispensary, had actual
knowledge of his claimed employment injury within 30 days after the date of his last exposure to
the implicated employment factors.13
The Board finds that appellant has not established actual knowledge by his supervisors of
his work-related condition within 30 days. Therefore, appellant has not established a timely
claim.
Appellant argues that the employing establishment failed to inform him that he was
eligible for workers’ compensation. Section 8122(d)(3) of FECA14 provides that time
limitations for filing a claim do not run against any individual whose failure to comply is
excused by the Secretary on the grounds that such notice could not be given because of
exceptional circumstances. None of the exceptions relating to appellant’s ability to file a claim
apply in this case. Appellant was not a minor, has not alleged that he was incompetent and has
not provided evidence of an exceptional circumstance that would excuse his failure to timely file
a claim.15 His excuse for not filing a timely claim was that he was unaware that he was eligible
for workers’ compensation. However, the Board has held that unawareness of possible
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993); see James A.
Sheppard, 55 ECAB 515 (2004).
10

Id.

11

5 U.S.C. § 8122(a)(1); see Jose Salaz, 41 ECAB 743, 746 (1990); Kathryn A. Bernal, 38 ECAB 470,
472 (1987).
12

Id. at §§ 8122(a)(1) and (2).

13

See Ralph L. Dill, 57 ECAB 248 (2006) (appellant’s statement on his claim form that he reported his injury to
his supervisor was insufficient to show that his supervisor was on notice in the absence of other evidence that his
supervisor had actual knowledge of a work injury within 30 days of his last workplace exposure).
14

5 U.S.C. § 8122(d)(3).

15

E.B., claiming as widow of N.B., 58 ECAB 629 (2007).

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entitlement,16 lack of access to information17 and ignorance of the law or of one’s obligations
under it18 do not constitute exceptional circumstances that could excuse a failure to file a timely
claim.19 Thus, appellant did not establish that he was prevented from filing a timely claim by
exceptional circumstances as that term is used in section 8122(d)(3) of FECA. The Board finds
that he has not established that he timely filed a claim for compensation within three years after
his retirement April 1, 1997.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
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.20 Section 10.608(b) of OWCP regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.21
ANALYSIS -- ISSUE 2
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the
claim. In his November 20, 2013 application for reconsideration, appellant did not show that
OWCP erroneously applied or interpreted a specific point of law. He did not advance a new and
relevant legal argument. Appellant’s argument was that the employing establishment never
presented him with the option to file a workers’ compensation claim and he was receiving
disability retirement beginning April 1, 1997. As previously noted, unawareness of possible
entitlement, lack of access to information and ignorance of the law or of one’s obligations under
it do not constitute exceptional circumstances that could excuse a failure to file a timely claim.22
As such, appellant’s arguments fail to establish a basis for review of the merits of his claim.

16

See supra note 12.

17

Kathryn L. Cornett (Elmer Cornett), 54 ECAB 812 (2003).

18

George M. Dickerson, 34 ECAB 135 (1982).

19

Michael Thomas Plante, 44 ECAB 510 (1993).

20

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

21

K.H., 59 ECAB 495 (2008).

22

M.D., Docket No. 10-938 (issued January 10, 2011).

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The underlying issue in this case was whether appellant’s claim for compensation was
barred by the applicable time limitation provisions of FECA. Appellant filed his July 29, 2013
occupational disease claim more than three years after the April 1, 1997 date of last exposure
when he retired from his federal employment. The relevant issue, therefore, was whether his
immediate superior had knowledge of a work injury within 30 days of April 1, 1997 or whether
written notice of the April 1, 1997 injury, as specified in section 8119, was given within 30
days.23 While appellant submitted new evidence in support of his claim, the evidence was
irrelevant and immaterial to the issue at hand.24
The Board notes that the February 3, 1998 OCC letter, March 31, 1998 CSRS application
for immediate retirement and April 23, 1998 OPM letter welcoming appellant to CSRS all fail to
establish that the employing establishment had knowledge of an employment-related back injury
within 30 days of April 1, 1997. The Board has held that disability and factual determinations
made by other agencies pursuant to other statutory schemes are not binding on OWCP or the
Board with respect to whether the individual is disabled under FECA.25 The documents
establishing appellant’s disability retirement beginning in April 1997 have no bearing on this
claim as they fail to establish a supervisor’s knowledge of a work-related employment injury
within 30 days of April 1, 1997.26 Medical reports are not relevant because it is premature to
consider causal relationship between a condition and appellant’s employment duties until it is
established that a claim is timely filed.27
The CSRS “supervisor’s statement form” also fails to establish that appellant’s claim was
timely filed and is immaterial to the issue at hand. The form does not contain a legible date to
determine if it was signed within 30 days of April 1, 1997. Moreover, while appellant’s
supervisor indicates that appellant could not perform his employment duties due to a back injury,
the supervisor makes no indication that he knew or reasonably should have known that
appellant’s back injury was caused by his federal employment duties.28 The Board has held that
the submission of evidence which does not address the particular issue involved does not
constitute a basis for reopening a case.29 Claimant may obtain a merit review of an OWCP
decision by submitting new and relevant evidence. In this case, while appellant submitted new
evidence, it was not relevant in the issue in this case.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
23

Supra note 1. See also D.S., Docket No. 11-1498 (issued February 15, 2012).

24

Van Frachen, Docket No. 03-925 (issued June 20, 2003).

25

See Stephen R. Lubin, 43 ECAB 564, 568 (1992); Hazelee K. Anderson, 37 ECAB 277, 283 (1986).

26

Nancy J. Yost, Docket No. 00-1992 (issued February 27, 2002).

27

See L.W., Docket No. 11-331 (issued September 6, 2011); Louis Alterisio, 32 ECAB 378, fn. 6 (1980) (where a
claim is not timely filed, it is unnecessary to address the issue of causal relationship).
28

D.H., Docket No. 11-2130 (issued May 11, 2012).

29

Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).

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specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.30
CONCLUSION
The Board finds that appellant’s occupational disease claim was untimely filed. OWCP
properly denied his request for reconsideration without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated February 20, 2014 and October 29, 2013 are affirmed.
Issued: May 27, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

30

Gene E. Harris, Docket No. 94-162 (issued July 11, 1995).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
RANDOLPH AIR FORCE BASE, CA, Employer
__________________________________________

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Appearances:
Max Gest, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1754
Issued: January 10, 2018

Case Submitted on the Record

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 31, 2016 appellant, through counsel, filed a timely appeal from an August 2,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more
than 180 days elapsed since the last merit decision dated February 10, 2016, to the filing of this

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

On July 14, 2017 the Board issued an order dismissing the appeal as it had not received a signed authorization
form from appellant authorizing counsel to represent him. See Order Dismissing Appeal, Docket No. 16-1754
(issued July 14, 2017). On December 1, 2017 the Board vacated the order and reinstated the appeal as the statement
of representation was submitted with appellant’s petition for reconsideration. See Order Vacating Prior Board
Order & Reinstating Appeal, Docket No. 16-1754 (issued December 1, 2017).

appeal, pursuant to the Federal Employees’ Compensation Act3 (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).
FACTUAL HISTORY
On November 15, 2013 appellant, then a 56-year-old supervisory firefighter, filed an
occupational disease claim (Form CA-2) alleging that his federal employment duties
permanently aggravated his cervical degenerative disc disease and cervical spinal stenosis. He
indicated that he first became aware of this condition on July 1, 2010, but did not realize the
connection to his employment until March 19, 2013.
By correspondence dated November 27, 2013, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him regarding the medical
and factual evidence necessary to establish his claim. Appellant was afforded 30 days to submit
additional evidence.
OWCP thereafter received additional medical evidence. In a July 21, 2012 report,
Dr. Laura Gridley, a treating Board-certified family practitioner, diagnosed muscle spasm and
cervical disc disorder with myelopathy. She noted that appellant was seen for neck pain and that
he had a cervical spinal fusion in 2005 and a history of chronic cervical pain. Physical findings
included decreased neck range of motion. Dr. Gridley reported that appellant’s neck pain had
been aggravated the prior week when he threw a football at work.4
In an August 1, 2012 addendum to Dr. Gridley’s report, Dr. Todd M. Goldenberg, a
treating Board-certified neurological surgeon, related that appellant was seen in September 2001
for treatment of a C5-6 herniated nucleus pulposus with cervical myelopathy and that he had
experienced continued chronic neck pain since his cervical surgery in 2005. Appellant had
related that on July 17, 2012 “he tweaked his neck” when he threw a football at work.
Dr. Goldenberg reviewed objective tests and conducted a physical examination. He diagnosed
cervical spine stenosis with cervical myelopathy due to C5-6 herniated disc. Dr. Goldenberg
recommended surgery to prevent a worsening of appellant’s neurologic condition. In reports
dated August 21 and September 28, 2012, he reiterated his findings and conclusions.
In a March 19, 2013 report, Dr. Jacob E. Tauber, an examining Board-certified
orthopedic surgeon, noted appellant’s history of injury, performed a physical examination, and
reviewed medical evidence. Appellant’s physical examination revealed diffuse weakness and
3

5 U.S.C. § 8101 et seq.

4

Appellant has a prior traumatic claim, assigned OWCP File No. xxxxxx425, wherein he alleged that on July 17,
2012 he sustained a shoulder injury as a result of playing and throwing a football during work hours. OWCP denied
that claim and it is not presently before the Board.

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sensory deficits, hyperreflexia, and positive bilateral Hoffman’s signs. Under discussion,
Dr. Tauber opined that appellant’s firefighter duties contributed to his cervical degeneration. He
also opined that appellant’s throwing of a football as part of his training program in July 2012
aggravated this condition. Specifically, Dr. Tauber opined that appellant had a traumatic
aggravation, but that the cervical condition itself was due in part to his employment duties as a
firefighter. He opined that a cervical condition should be accepted as employment related as
“[appellant’s] years of work contributed to this condition and the specific incident aggravated his
underlying condition.”
By decision dated January 30, 2014, OWCP denied appellant’s claim as it found the
evidence of record insufficient to establish causal relationship between the claimed cervical
condition and factors of his federal employment.
In a letter dated February 5, 2014, appellant, through counsel, requested an oral hearing
before an OWCP hearing representative. A telephonic hearing was held on September 9, 2014.
In a February 21, 2014 report, Dr. Tauber reviewed and responded to OWCP’s
November 30, 2014 decision. He described appellant’s employment duties as a firefighter,
which appellant had performed since 1981, and opined that they contributed to his cervical spinal
stenosis. Dr. Tauber observed that appellant performed extensive strenuous duties which are
well known to cause spinal degeneration. Furthermore, appellant’s cervical condition had been
aggravated by throwing a football during a training program in addition to the aggravation
caused by his firefighter duties. Dr. Tauber diagnosed postsurgical cervical myelopathy, which
was employment related.
By decision dated November 24, 2014 OWCP’s hearing representative vacated the
September 9, 2014 decision and remanded for further development of the medical opinion
evidence. She found that the medical evidence of record established a prima facie claim and that
OWCP had an obligation to either notify appellant as to additional evidence required to establish
the claim or to develop the evidence to reach a determination on the claim. The hearing
representative also found that there was an outstanding issue as to whether the 2012 football
incident occurred in the performance of duty.
On October 9, 2015 OWCP referred appellant for a second opinion evaluation with
Dr. Michal J. Einbund, a Board-certified orthopedic surgeon, for an opinion as to whether
appellant’s cervical condition had been caused or aggravated by his firefighter duties. It
provided a February 27, 2015 statement of accepted facts (SOAF) which listed appellant’s
accepted factors of federal employment and his medical history. OWCP noted that he had filed a
separate claim for the July 17, 2012 incident, and that claim had been denied. The SOAF noted
that appellant was currently employed as a supervisory firefighter by the employing
establishment.
In an October 29, 2015 report, Dr. Einbund, based upon a review of the medical
evidence, SOAF, and physical examination, diagnosed cervical spine intervertebral disc disorder
with myelopathy and status post cervical fusion. He concluded, based on the periodic diagnostic
testing, that the cervical changes appellant experienced since the September 2001 cervical spinal
fusion were a natural progression of the condition and were age related. Dr. Einbund opined that

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appellant’s work duties did not aggravate the underlying cervical condition as the changes were
progressive in nature. He concluded that the medical evidence he reviewed was insufficient to
support a work injury and also concluded that there was no relationship directly correlating
appellant’s cervical condition to the identified work activities.
In a November 12, 2015 letter, counsel informed OWCP that the SOAF was inaccurate.
He stated that appellant was no longer employed by the employing establishment as he had
retired.
By decision dated February 10, 2016, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the accepted employment factors caused or
aggravated the diagnosed cervical conditions. It found that the weight of the medical opinion
evidence rested with Dr. Einbund’s well-rationalized opinion which found no causal relationship.
On April 16, 2016 Dr. Tauber reviewed Dr. Einbund’s second opinion examination report
and disagreed with his opinion that appellant’s cervical condition had not been aggravated by his
employment duties. He noted that both he and Dr. Einbund described the same employment
duties, but reached different conclusions as to whether appellant’s cervical condition had been
aggravated by those duties. Dr. Tauber reiterated his opinion that appellant’s employment duties
aggravated appellant’s cervical condition observing that it was inconceivable not to reach this
conclusion.
In a letter dated May 9, 2016 appellant, through counsel, requested reconsideration.
Counsel noted that the February 27, 2015 SOAF was inaccurate as it indicated that appellant was
employed by the employing establishment as a firefighter, but appellant had retired. Further, he
noted that the hearing representative had previously found that Dr. Tauber’s report established a
prima facie claim in her November 24, 2014 decision. Counsel argued that there was an
unresolved conflict in the medical opinion evidence between Dr. Tauber and Dr. Einbund on the
issue of causal relationship.
By decision dated August 2, 2016, OWCP denied appellant’s request for reconsideration.
It found that the reports from Dr. Tauber were cumulative and substantially similar to his prior
reports.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
OWCP’s regulations provide that 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.6 To be entitled to a merit review of an OWCP decision denying or
5

Supra note 3. Section 8128(a) of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.
6
20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-0218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).

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terminating a benefit, a claimant’s application for review must be received by OWCP within one
year of the date of that decision.7 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.8
ANALYSIS
The Board finds that OWCP erroneously denied reconsideration of the merits of
appellant’s claim. As previously noted, in order to require OWCP to open a case for merit
review, appellant must show that OWCP erroneously applied or interpreted a specific point of
law; advance a new relevant legal argument not previously considered by OWCP; or submit
relevant and pertinent new evidence not previously considered by OWCP.9 The Board finds that
counsel has advanced a new legal argument that warrants further merit review under 5 U.S.C.
§ 8128(a).
In support of his reconsideration request, counsel argued that the opinion of OWCP’s
referral physician was based on an inaccurate SOAF, which incorrectly noted that appellant
continued to be employed by the employing establishment as a firefighter when he had retired.
He had previously raised the issue that the SOAF was inaccurate. Evidence that repeats or
duplicates evidence already in the case record has no evidentiary value and does not constitute a
basis for reopening a case.10
Counsel further argued on reconsideration that there was an unresolved conflict in the
medical opinion evidence between Dr. Tauber and Dr. Einbund. This argument relates to the
underlying issue of causal relationship between the claimed cervical conditions and the accepted
factors of federal employment. As this is a relevant legal argument not previously considered by
OWCP, the Board finds that OWCP improperly denied merit review its August 2, 2016
decision.11 The case will be remanded to OWCP for further consideration of the merits of
appellant’s claim, to be followed by the issuance of an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s May 9, 2016 request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

7

Id. at 10.607(a).

8
Id. at § 10.608(b). See Y.S., Docket No. 08-0440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
9

Supra note 6.

10

Richard Yadron, 57 ECAB 207 (2005); Eugene Butler, 36 ECAB 393 (1984).

11

Supra note 6.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 2, 2016 is set aside and the case is remanded for further
proceedings consistent with this decision.
Issued: January 10, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE,
)
AIR FORCE SYSTEMS COMMAND, HILL AIR )
FORCE BASE, Ogden, UT, Employer
)
__________________________________________ )
J.R., Appellant

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

Docket No. 12-351
Issued: June 14, 2012

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 December 9, 2011 appellant filed a timely appeal of the November 22, 2011 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
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 was a federal employee within the meaning of FECA for
purposes of receiving compensation for a left shoulder injury he allegedly sustained in the
performance of duty on April 29, 2009.
On appeal, appellant contends that the evidence of record is sufficient to establish that he
has an employment-related left shoulder injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 5, 2011 OWCP received an unsigned traumatic injury claim (Form CA 1),
OWCP File No. xxxxxx009 alleging that appellant, then a 59-year-old nonfederal truck driver
sustained a torn rotator cuff in his left shoulder on April 29, 2009. He experienced sharp pain in
his right ankle that caused him to stumble and fall as he walked in his backyard.2 Appellant
broke his fall by using his left hand.
On the claim form, the employing establishment contended that on April 29, 2009
appellant was not in the performance of duty. It explained that he was not a federal employee
and he fell at home.
By letter dated October 13, 2011, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It addressed the factual and medical evidence he needed
to submit to support an injury. Also, OWCP requested that the employing establishment submit
factual and medical evidence in response to appellant’s claim.
In an October 12, 2011 letter, the employing establishment controverted appellant’s claim
based on inconsistencies regarding the cause of injury. It contended that there was no evidence
establishing that he was a federal employee at the time of the April 29, 2009 incident. Appellant
was working as a truck driver for a private company on the date of injury. The employing
establishment also contended that he failed to submit any medical evidence to support his claim.
In an April 5, 2011 letter, appellant attributed his alleged left shoulder injury to a right
ankle injury he sustained on May 30, 2008 while working as a truck driver. He stated that his
May 30, 2008 right ankle injury was accepted by the Workers’ Compensation Fund of Utah.
Appellant further stated that the Utah Department of Labor determined that the medical evidence
established that his left rotator cuff injury resulted from residuals of a June 7, 1989 employment
injury and not the May 30, 2008 right ankle injury.
Appellant submitted a July 29, 2010 decision from the Utah Labor Commission
Adjudication Division which found that he did not sustain left knee and shoulder injuries as a
result of the May 30, 2008 injury. It concluded that neither his employer, Dave Brown Sales and
Equipment, nor the Utah Workers’ Compensation Fund, was responsible for payment of
temporary total disability compensation or medical expenses related to his claimed conditions.

2

Also, on April 5, 2011 appellant filed another Form CA-1 regarding the alleged injury he sustained on April 29,
2009 under OWCP File No. xxxxxxx903. The Board notes that under File No. xxxxxxx903 OWCP previously
accepted that on June 7, 1989 he sustained an employment-related injury. Following the receipt of a November 16,
2010 correspondence discussing the process for reimbursement of medical expenses under OWCP File No.
xxxxxx903, appellant appealed to the Board. In an order dated September 26, 2011, the Board dismissed his appeal,
on the grounds that the record did not contain a final adverse OWCP decision over which it could take jurisdiction.
The Board found that the record contained an informational letter dated November 16, 2010 which did not constitute
a final adverse decision. Docket No. 11-471 (issued September 29, 2011). On return of the case record, by letter
dated September 29, 2011, OWCP advised appellant that it could not adjudicate his traumatic injury claim for the
purported injury sustained on April 29, 2009 as it did not constitute a valid submission of a new claim because it
was not filed through the employing establishment.

2

In an October 31, 2011 letter, appellant contended that OWCP invented his nonfederal
truck driver position because it “does not exist.” He further contended that there was no
evidence to establish that David Brown Trucking, also known as David Brown Sales and Leasing
was connected to the employing establishment or any other federal employer, not even as a
federal contractor. Appellant stated that he never mentioned or claimed in his Form CA-1 that
on April 29, 2009 he was a federal civilian employee. He related that he no longer worked at
David Brown Trucking on the date of injury. Appellant pointed out that he was attributing his
April 29, 2009 injury to the June 7, 1989 employment injury accepted by OWCP under claim
File No. xxxxxx903 and, thus, he was a federal civil employee at the time of the April 29, 2009
injury.3 He noted the Utah Department of Labor’s decision and contended that since the
residuals of his accepted June 7, 1989 employment injury were not limited to actual time on
duty, it was not necessary to prove that his April 29, 2009 injury occurred while he was
performing his official work duties.4
Appellant submitted a compact disc which contained medical evidence in support of his
claim.
In a November 22, 2011 decision, OWCP denied appellant’s claim. It found that he was
not a federal civil employee at the time of his injury on April 29, 2009. OWCP also found that
the evidence failed to establish that the claimed injury occurred as alleged. Lastly, the medical
evidence failed to establish a causal relationship between a medical condition and the April 29,
2009 incident.
LEGAL PRECEDENT
An employee seeking compensation under FECA5 has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence,6
including that he is an employee within the meaning of FECA7 and that he filed his claim within
the applicable time limitation.8 The employee must also establish that he sustained an injury in
the performance of duty as alleged and that his disability for work, if any, was causally related to
the employment injury.9
3

Under OWCP File No. xxxxxx903, OWCP accepted that appellant sustained closed fracture of scapula,
contusion of face, scalp and neck, headache and psychogenic pain resulting from a federal employment-related
injury sustained on June 7, 1989.
4

The Board notes that OWCP has not adjudicated whether the alleged April 29, 2009 injury is a consequence of
the accepted June 7, 1989 employment injury in OWCP File No. xxxxxx903.
5

5 U.S.C. §§ 8101-8193.

6

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

7

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
8

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

9

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

3

Section 8102(a) of FECA provides that compensation can only be paid for the disability
or death of an employee resulting from personal injury sustained while in the performance of
duty.10 For purposes of awarding compensation benefits under FECA, section 8101(1) defines
employee, in relevant part, as a civil officer or employee in any branch of the government of the
United States or as an individual rendering personal service to the United States similar to the
service of a civil officer or employee of the United States.11 In determining whether a claimant
is an employee for purposes of compensation, the Board will consider the particular facts and
circumstances surrounding his or her employment.12
ANALYSIS
The Board finds that appellant has not submitted sufficient evidence to establish that he
was an employee of the United States within the meaning of FECA at the time of his injury on
April 29, 2009. The evidence, including his statements, indicates that he was not a federal civil
employee. Appellant noted that he never claimed on his Form CA-1 that he was a federal civil
employee on April 29, 2009. He stated that OWCP invented his “nonfederal” truck driver
position as “it does not exist.” Appellant related that he worked for David Brown Trucking also
known as David Brown Sales and Leasing. Although he had stopped work at the company as of
the date of injury, the company was not connected to the employing establishment or any other
federal employer or federal contractor. The employing establishment advised that appellant was
not a federal employee as he worked as a truck driver for a private company at the time of the
April 29, 2009 incident. The Board finds that there is no evidence of record to establish that he
was a civil employee of the United States within the meaning of FECA on April 29, 2009.
On appeal, appellant contended that the evidence of record was sufficient to establish that
he sustained an employment-related left shoulder injury. As stated, he has not established that he
was a federal civil employee as defined under FECA at the time of his alleged injury on
April 29, 2009. Appellant failed to meet his burden of proof in this case and, thus, OWCP
properly denied his traumatic injury 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.
CONCLUSION
The Board finds that appellant has failed to establish that he was a federal employee
within the meaning of FECA for purposes of receiving compensation for his alleged April 29,
2009 left shoulder injury.

10

5 U.S.C. § 8102(a).

11

Id. at § 8101(1).

12

Wendy S. Warner, 38 ECAB 103 (1986).

4

ORDER
IT IS HEREBY ORDERED THAT the November 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 14, 2012
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.E., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS, Indianapolis, IN, Employer
__________________________________________

)
)
)
)
)
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)

Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0515
Issued: February 18, 2020

Case Submitted on the Record

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

JURISDICTION
On January 16, 2018 appellant, through counsel, filed a timely appeal from an August 10,
2017 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 over the merits of this case.

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on August 26, 2015, as alleged.
FACTUAL HISTORY
On August 27, 2015 appellant, then a 53-year-old information technology specialist, filed
a traumatic injury claim (Form CA-1) alleging that he sustained a fractured right pelvis and
fractured left shoulder joint on August 26, 2015 when struck by a car while in the performance of
duty. He stated that he was injured at 6:30 a.m. as a result of a hit and run, which occurred in the
crosswalk of Pennsylvania and Market Streets while walking from a parking garage to work.
Appellant’s work schedule was Monday through Friday from 6:30 a.m. to 4:30 p.m.
In a September 15, 2015 development letter, OWCP advised appellant of the deficiencies
in his claim and instructed him as to the evidence necessary to support his claim. It afforded him
30 days to respond.
In response appellant submitted a September 21, 2015 work capacity evaluation (Form
OWCP-5c) from Dr. Greg Gaski, a Board-certified orthopedic surgeon, who diagnosed a left-sided
four-part proximal humerus fracture and advised that appellant was disabled from work until
November 2, 2015 with restrictions on sitting, walking with an assistive device for the bilateral
lower extremities, and no weight-bearing or reaching above the shoulder with the left upper
extremity.3
Appellant also submitted an August 26, 2015 emergency medical services report indicating
that he had been struck by a vehicle at an unknown rate of speed and transported to the hospital
for left shoulder and right hip pain.
In a September 22, 2015 narrative statement, appellant indicated that the parking facility
he was walking from was not owned, controlled, or managed by the employing establishment, but
it issued him a parking pass, assigned him a parking spot, and paid for his parking.
By decision dated October 19, 2015, OWCP accepted that the August 26, 2015
employment incident occurred as alleged, resulted in a diagnosed condition, and occurred in the
performance of duty, but denied the claim finding that the medical evidence of record failed to
establish a causal relationship between appellant’s diagnosed conditions and the August 26, 2015
employment incident.
On April 4, 2016 appellant, through counsel, requested reconsideration.
In August 26 and September 14, 2015 reports, Dr. Jared L. Gayken, a Board-certified
radiologist, noted his review of x-ray and computerized tomography (CT) scans and noted findings
provided to Dr. Gaski. In a March 15, 2016 report, Dr. Gaski diagnosed multiple pelvic fractures
3
On September 16, 2015 Dr. Gaski had released appellant to limited-duty work on September 21, 2015 starting
with half-a-day at home at a desk job for one month.

2

and a four-part left proximal humerus fracture of appellant’s shoulder. He opined that appellant’s
fractures were a direct result of the vehicle hitting him and he recommended nonoperative
management of his pelvis and operative treatment of his left arm. Counsel also submitted an
operative report from Dr. Gaski who performed an open reduction and internal fixation of
appellant’s left proximate humerus fracture on August 27, 2015.
Appellant submitted Dr. Gaski’s progress reports dated September 14, October 30, and
December 4, 2015 regarding appellant’s postoperative visits and his recommendation for physical
therapy. He also submitted physical therapy reports dated November 2 and 30, 2015 and
diagnostic testing reports dated August 26, September 14, and October 30, 2015 in support of his
claim.
In an August 5, 2016 letter, the employing establishment controverted appellant’s claim
asserting that the injury occurred on the “crosswalk of Pennsylvania and Market Street’ which was
an intersection located in downtown Indianapolis and was not controlled or owned by the
employing establishment. It noted that the injury had not occurred in the parking area, but did
acknowledge that it leases the parking area and assigns spaces to its employees. The employing
establishment further submitted an accident report, which included a map of the location where
the injury occurred, and bolded two crosswalk options at the same intersection.
By decision dated October 21, 2016, OWCP modified its prior decision finding that the
injury had not occurred in the performance of duty as his injury occurred off-premises in an area
with hazards common to all travelers.
On March 31, 2017 appellant, through counsel, requested reconsideration. Counsel
contended that appellant’s injury was sustained in the performance of duty and submitted a map
of the location, arguing that it established an exception to the premises rule as appellant was taking
the necessary route from his parking garage to his assigned work building when he was injured.
In an accompanying narrative statement, appellant indicated that he was injured walking from the
parking garage provided to him by the employing establishment to his place of work, which was
approximately 1.5 blocks away from his duty station. He stated that he and another person were
struck by a hit and run driver in the crosswalk on the west side of the interaction of East Market
Street and North Pennsylvania Street.
By decision dated August 10, 2017, OWCP denied modification of its prior decision. It
found that the employee parking area fell within the employing establishment’s premises, but the
injury had not occurred on the premises because appellant failed to establish that employees had
to walk across the street at that particular intersection.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable

3

time limitation period of FECA,4 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 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.7 The phrase sustained while in the performance
of duty is regarded as the equivalent of the coverage formula commonly found in workers’
compensation laws, namely, arising out of and in the course of employment.8 In the course of
employment relates to the elements of time, place, and work activity. To arise in the course of
employment, an injury must occur at a time when the employee may reasonably be stated to be
engaged in the employing establishment business, at a place where he or she may reasonably be
expected to be in connection with his or her employment, and while he or she was reasonably
fulfilling the duties of his or her employment or engaged in doing something incidental thereto.9
As to an employee having fixed hours and a fixed place of work, an injury occurring on
the premises while the employee is going to and from work before or after working hours or at
lunch time is compensable, but if the injury occurs off the premises, it is not compensable, subject
to certain exceptions.10 One of these is the proximity exception to the premises rule, which allows
constructive extension of the premises to those hazardous conditions which are proximate to the
premises and may, therefore, be considered as hazards of the employment.11 Underlying the
proximity exception is the principle that course of employment should extend to an injury that
occurred at a point where the employee was within the range of dangers associated with the
employment.12 The most common ground of extension is that the off-premises point at which the
injury occurred lies on the only route, or at least on the normal route, which employees must
traverse to reach the premises, and that, therefore, the special hazards of that route become the

4

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
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).
7

5 U.S.C. § 8102(a); J.K., Docket No. 17-0756 (issued July 11, 2018).

8

This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers’ compensation law. J.K., id.; Bernard D. Blum, 1 ECAB 1 (1947).
9
See J.K., supra note 7; Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B.
Barenkamp (Joseph L. Barenkamp), 5 ECAB 228 (1952).
10

S.V., Docket No. 18-1299 (issued November 5, 2019).

11

K.D., Docket No. 18-0617 (issued February 13, 2019); D.K., Docket No. 11-1029 (issued February 1, 2012).

12

See J.K., supra note 7; Jimmie Brooks, 54 ECAB 248 (2002); Syed M. Jawaid, 49 ECAB 627 (1998).

4

hazards of the employment.13 This exception contains two components. The first is the presence
of a special hazard at the particular off-premises point. The second is the close association of the
access route with the premises, so far as going and coming are concerned.14
ANALYSIS
The Board finds that appellant has met his burden of proof to establish fractures of his
pelvis and left arm while in the performance of duty on August 26, 2015.
In determining whether the crosswalk between the employing establishment parking area
and the workplace should be considered part of the employing establishment’s premises, the Board
first considers the factors necessary to determine whether the parking area was under sufficient
control of the employing establishment. However, OWCP has already found, and it is uncontested,
that the parking area was a part of the employing establishment’s premises, finding that it was
leased by the employing establishment and provided an assigned space without cost to the
employee. Therefore, the Board must determine whether the crosswalk in which appellant was
injured was on the only route, or at least on the normal route, which employees must traverse to
reach the contiguous part of the premises. The Board finds that the evidence of record establishes
that the crosswalk was the normal route which appellant and others using the parking area traversed
to reach their workplace. The maps in evidence show that there were four crosswalks, from which
an employee would use two in order to cross the intersection. Although there are two options to
cross the intersection, the routes obviously cross the same intersection. Thus, whether an employee
crosses Market Street and then Pennsylvania Street, or Pennsylvania Street and then Market Street
is not determinative. Rather, appellant was required to cross the intersection of these two streets
to traverse between the two areas of the employing establishment premises. Thus, the Board finds
that appellant has proven an exception to the premises rule and has therefore established that his
August 26, 2015 injury occurred in the performance of duty.
OWCP has not previously reviewed the merits of the medical evidence of record to
determine whether appellant’s diagnosed medical conditions were causally related to the
August 26, 2015 incident. However, the Board finds that the evidence of record is sufficient to
determine that appellant’s pelvis and left arm fractures are causally related to the hit and run
accident in which he was injured. OWCP procedures provide that in cases where there is a serious
injury from motor vehicle accident, amongst other types of incidents, and the employing
establishment does not dispute the facts of the incident alleged, that the claim may be accepted for
conditions even without a medical report with other more serious conditions being developed
through obtaining medical evidence.15 The accepted incident was a serious motor vehicle-related
incident which left appellant injured and in need of emergency medical services. Upon obtaining
emergency medical treatment, and after diagnostic testing, it was confirmed that appellant
sustained fractures of his pelvis and left arm on that date. The contemporaneous medical reports
13

Arthur & Lex Larson, The Law of Workers’ Compensation § 13.01(3) (2006). See also J.K., supra note 7; R.O.,
Docket No. 08-2088 (issued May 18, 2009).
14

Id. at § 13.01(3)(b).

15
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6
(June 2011).

5

provide a consistent history of injury and Dr. Gaski, in his March 15, 2016 report, diagnosed
fractures of the pelvis and left arm directly related to the hit and run incident in which he had been
involved. The Board finds that this evidence is sufficient to establish that appellant sustained
fractures to his pelvis and left arm and those conditions are causally related to the accepted
August 26, 2015 employment incident.
As appellant has established pelvis and left arm fractures as accepted employment-related
conditions in his claim, the Board will reverse the August 10, 2017 decision and remand the case
for payment of medical costs and wage-loss compensation, if any.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish fractures of his
pelvis and left arm while in the performance of duty on August 26, 2015.
ORDER
IT IS HEREBY ORDERED THAT the August 10, 2017 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 18, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN DIEGO VA MEDICAL CENTER,
San Diego, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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)
)
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)

Docket No. 21-1065
Issued: March 30, 2022

Case Submitted on the Record

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

On July 9, 2021 appellant filed a timely appeal from a May 3, 2021 merit decision and a
July 1, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as Docket No. 21-1065.
On August 6, 2008 appellant, then a 31-year-old vocational nurse, filed an occupational
disease claim (Form CA-2) alleging that she sustained right upper extremity injuries as a result of
factors of her federal employment including repetitive use of a computer, keyboarding, and
extensive dressing changes for patients. She indicated that she first became aware of her condition
and its relationship to her federal employment on March 3, 2008. OWCP accepted the claim for
right-sided thoracic outlet syndrome, also known as brachial plexus lesions.
On November 18, 2009 appellant underwent a right first rib resection with right anterior
scalenectomy to treat her diagnosed right thoracic outlet syndrome.
In a report dated May 8, 2010, Dr. Christopher Chisholm, a pain medicine specialist,
diagnosed reflex sympathetic dystrophy (RSD), also known as complex regional pain syndrome
(CRPS), of the upper right limb, and myofascial myalgia and myositis.

In a report dated October 11, 2010, Dr. Marilyn Carlin, an internist, diagnosed RSD
secondary to thoracic outlet syndrome despite surgical intervention.
Dr. Carlin, in a report dated April 4, 2011, diagnosed thoracic outlet syndrome with failed
response to surgery, right upper extremity chronic pain syndrome, possibly RSD, and right
hemidiaphragm paralysis as a complication of thoracic outlet syndrome, causing dyspnea on
exertion.
In a report dated October 10, 2011, Dr. Carlin diagnosed thoracic outlet syndrome,
myofascial pain syndrome versus RSD secondary to thoracic outlet syndrome and right
diaphragmatic paralysis secondary to thoracic outlet surgery.
In a report dated June 10, 2013, Dr. Carlin diagnosed thoracic outlet syndrome with
increasing pain following surgical intervention, RSD, myofascial pain syndrome, diaphragmatic
paralysis causing dyspnea on exertion, and recurrent major depression exacerbated by chronic
pain. She opined that factors of appellant’s federal employment caused appellant’s increased pain.
Dr. Carlin recommended work restrictions.
In a report dated June 25, 2014, Dr. Carlin diagnosed cervicalgia, diaphragmatic paralysis,
myofascial pain syndrome, recurrent major depression in full remission, RSD of the right upper
extremity, and thoracic outlet syndrome. In a report dated September 22, 2014, she diagnosed
thoracic outlet syndrome with poor results after surgical intervention , flare-up of chronic
cervicalgia and myofascial pain syndrome, RSD of the right upper extremity, also in flare-up, and
recurrent major depression in remission. Dr. Carlin again diagnosed these conditions in progress
notes dated August 22, 2014.
In a letter dated February 2, 2015, Dr. Carlin requested that the acceptance of appellant’s
claim be expanded to include fibromyalgia. She explained that it had developed as a result of
appellant’s chronic neck, chest wall, and right arm pain, secondary to failed surgery for thoracic
outlet syndrome and secondary RSD.
In a report dated June 25, 2015, Dr. Carlin explained that appellant continued to suffer from
thoracic outlet syndrome with increased pain following failed surgical intervention, along with
RSD and a postsurgical right partially paralyzed diaphragm. She noted that appellant had been
diagnosed with fibromyalgia as a result of her chronic myofascial pain. Dr. Carlin stated that
appellant’s conditions continued to be medically present and disabling and that appellant was
permanently disabled from all work. She reiterated appellant’s diagnoses and disability status in
narrative medical reports dated June 27, 2016 and July 17, 2017.
In progress notes dated August 24, 2016, Dr. Carlin noted, as part of appellant’s history of
present illness, that appellant had been diagnosed with fibromyalgia, failed surgery for thoracic
outlet syndrome, and development of RSD of the right upper extremity.
In a report dated July 13, 2018, Dr. Carlin again diagnosed thoracic outlet syndrome with
increased pain following surgical intervention, RSD of the right upper extremity, which began
after the failed surgery, fibromyalgia, secondary to chronic pain, diaphragmatic paralysis causing
some dyspnea on exertion, also a result of the failed surgery , and recurrent major depression
exacerbated by her chronic pain syndromes. She stated that appellant’s conditions continued to be
2

medically present and disabling, noting that appellant’s physical restrictions were extensive and
unlikely to allow her to work effectively in any job. Dr. Carlin reiterated these diagnoses and
opinions in a letter dated August 20, 2019.
In progress notes dated February 10, 2021, Dr. Peter Weis, a Board-certified
rheumatologist, examined appellant to evaluate her for fibromyalgia. He diagnosed left hip
trochanteric bursitis, pain syndrome related to complications of thoracic outlet s urgery with
chronic neck pain, and CRPS of the right upper extremity, refractory to surgery.
In a development letter dated March 24, 2021, OWCP advised appellant that it had received
notification of a possible consequential condition of CRPS of the right upper extremity. It noted
receipt of Dr. Weis’ February 10, 2021 report, but indicated that it required a detailed description
of the newly diagnosed condition. OWCP afforded appellant 30 days to submit additional medical
evidence. No additional evidence was received by OWCP.
By decision dated May 3, 2021, OWCP denied appellant’s request to expand the
acceptance of her claim to include CRPS of the right upper extremity. It again referenced
Dr. Weis’ February 10, 2021 report. By appeal request form dated June 2, 2021, postmarked on
June 3, 2021 and received by OWCP on June 9, 2021, appellant requested an oral hearing before
a representative of OWCP’s Branch of Hearings and Review. By decision dated July 1, 2021,
OWCP denied her request for an oral hearing, as the request was untimely filed. It noted that
appellant’s case had been considered in relation to the issues involved and that the issues could be
equally well addressed by requesting reconsideration and submitting evidence not previously
considered establishing that she sustained a consequential injury due to her accepted injury of
March 3, 2008.
The Board has duly considered the matter and finds that th is case is not in posture for
decision.
In the case of William A. Couch,1 the Board held that when adjudicating a claim OWCP is
obligated to consider all evidence properly submitted by a claimant and received by OWCP before
the final decision is issued. As detailed above, OWCP received a report from Dr. Chisholm dated
May 8, 2010, containing a diagnosis of RSD, also known as CRPS. It also received numerous
reports, letters, and progress notes from Dr. Carlin beginning October 11, 2010 containing
diagnoses of RSD. OWCP, however, did not review this evidence in its May 3, 2021 merit
decision. It, thus, failed to follow its procedures by not considering all of the relevant evidence of
record.2

1

41 ECAB 548 (1990); see also K.B., Docket No. 20-1320 (issued February 8, 2021); R.D., Docket No. 17-1818
(issued April 3, 2018).
2

OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision.
Evidence received following development that lacks probative value also should be acknowledged. Whenever
possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Denials, Chapter 2.1401.5(b)(2) (November 2012).

3

As Board decisions are final with regard to the subject matter appealed, it is crucial that
OWCP address all relevant evidence received prior to the issuance of its final decision. 3 On
remand shall review and consider all evidence properly submitted by appellant prior to the issuance
of the May 3, 2021 OWCP decision. Following other such further development as deemed
necessary, OWCP shall issue an appropriate decision.
IT IS HEREBY ORDERED THAT the May 3, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board. 4
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

E.D., Docket No. 20-0620 (issued November 18, 2020); see also L.B., Docket No. 21-0140 (issued August 25,
2021); C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); William A.
Couch, supra note 1.
4

As this case is remanded for further proceedings, the July 1, 2021 denial of appellant’s request for an oral hearing
before an OWCP hearing representative is rendered moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, SEATTLE
PROCESSING & DISTRIBUTION CENTER,
Seattle, WA, Employer
__________________________________________

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

Docket No. 20-0888
Issued: May 14, 2021

Case Submitted on the Record

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

JURISDICTION
On March 16, 2020 appellant filed a timely appeal from a February 14, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 14, 2020 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 disability from work
during the period December 11 through 20, 2019 causally related to his accepted April 4, 2019
employment injury.
FACTUAL HISTORY
On April 4, 2019 appellant, then a 59-year-old area maintenance technician, alleged that
he felt a “pop” in his right shoulder while reaching to change a lightbulb while in the performance
of duty. OWCP initially accepted the claim for sprain of right shoulder joint. It subsequently
expanded its acceptance of the claim to include superior glenoid labrum lesion of right shoulder
and complete tear or rupture of the right rotator cuff. On October 4, 2019 appellant underwent an
OWCP-authorized right shoulder arthroscopic debridement of the rotator cuff, distal clavical
resection, and tendonesis of the biceps tendon, performed by Dr. Craig T. Arntz, a Board-certified
orthopedic surgeon.3 Appellant received appropriate wage-loss compensation on OWCP’s
supplemental rolls for the period October 4 through December 10, 2019. He retired on
December 10, 2019.
On December 9, 2019 Dr. Arntz indicated that appellant’s right shoulder surgical incision
was healing beautifully, and that his shoulder motion and comfort was improving. In a
December 9, 2019 activity prescription form, he released appellant to modified duty with
restrictions of no pushing, pulling, reaching, or lifting with the right arm.
In a December 10, 2019 letter, the employing establishment offered appellant a temporary
limited-duty job beginning that day.4 It advised that the job duties entailed helping customers with
packaging and forms and directing customers to the self-service kiosks. Appellant rejected the
temporary assignment, contending that its required duties were outside of his medical restrictions.
A December 10, 2019 document effectuating the offer bore the heading “Offer of Modified
Assignment (Limited-Duty).” It reflected that a modified assignment of “customer service” was
available to appellant for eight hours a day. The position had an annual salary of $65,447.00 for
level 09 step P. The duties of the modified assignment involved helping customers with packaging
and forms with the left hand/arm for four hours a day and directing customers to the self-service
kiosk for four hours a day with use of left hand/arm. The physical requirements of the modified
position indicated that no pushing, pulling, reaching or lifting would be performed with the right
arm.
On December 17, 2019 appellant refused the modified assignment, contending that it was
not a regular job position.

3

The surgical report discusses appellant’s right shoulder conditions, but references his left shoulder regarding the
surgical procedure.
4

It noted that the date of injury was September 24, 2019.

2

On December 24, 2019 appellant filed a claim for wage-loss compensation (Form CA-7)
for disability during the period December 7 through 20, 2019. In an accompanying time analysis
form (Form CA-7a) appellant indicated that no suitable work was available during each of the days
claimed. The employing establishment controverted the claim for wage-loss compensation beyond
December 10, 2019 as appellant was no longer an employee of the employing establishment.
In a January 3, 2020 letter, OWCP acknowledged receipt of appellant’s Form CA-7 and
advised appellant that it had processed a wage-loss compensation payment for the period
December 7 through 10, 2019. It noted that on December 10, 2019 he had elected to receive
disability retirement. OWCP also noted that the employing establishment had offered appellant a
modified temporary light-duty assignment in customer service on December 10, 2019, which he
declined. It informed him that the duties and physical requirements of the employing
establishment’s temporary light-duty assignment in customer service were within Dr. Arntz’
December 9, 2019 work restrictions as the job offered only required use of his left arm. OWCP
also informed appellant of the provisions of 20 C.F.R. § 10.500(a) and further advised that his
entitlement to wage-loss compensation may be denied under this provision if he did not accept the
offered assignment or provide a written explanation with justification for his refusal within 30
days. It specifically requested appellant to submit evidence to support that the assignment was no
longer available or no longer accommodated his medical restrictions.
In a January 13, 2020 report, Dr. Arntz provided an impression of excellent progress post
right rotator cuff tear repair and steadily improving shoulder motion, strength, and comfort. He
recommended restrictions of no lifting over 10 pounds and limited use of right arm overhead
pending reevaluation in approximately six weeks.
By decision dated February 14, 2020, OWCP denied appellant’s claim for disability for the
period December 11 through 20, 2019 pursuant to 20 C.F.R. § 10.500(a) based on his refusal to
accept the employing establishment’s December 10, 2019 offer for a temporary light-duty
assignment. It explained that the evidence established that he had medical restrictions in place, a
light-duty work assignment within those restrictions was available to him, and he was previously
notified in writing that such light-duty work was available.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability or specific condition for which compensation is claimed is causally related
to the employment injury.5 In general the term, “disability” under FECA means incapacity because

5

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

3

of injury in employment to earn the wages, which the employee was receiving at the time of such
injury.6
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.7 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship.8
Section 10.500(a) of OWCP’s regulations provides that benefits are available only while
the effects of a work-related condition continue. Compensation for wage loss due to disability is
available only for periods during which an employee’s work-related medical condition prevents
him or her from earning the wages earned before the work-related injury. For example, an
employee is not entitled to compensation for wage-loss claimed on a Form CA-7 to the extent that
evidence contemporaneous with the period claimed on a Form CA-7 establishes that an employee
had medical work restrictions in place, that light duty within those work restrictions was available,
and that the employee was previously notified in writing that such duty was available.
OWCP’s procedures provide that, when a claimant is not on the periodic rolls, a claim for
wage-loss compensation may be received on a Form CA-7 when a temporary light-duty
assignment has been provided by the employing establishment. These procedures further provide
that, when a formal loss of wage-earning capacity has not been issued, OWCP’s claims examiner
should follow certain specified procedures. If the evidence establishes that injury-related residuals
continue and result in work restrictions, that light duty within those work restrictions was available,
and that the employee was notified in writing that such light duty was available, then wage-loss
benefits (effective the date of the written notification of light-duty availability) are not payable for
the period covered by the available light-duty assignment. Such benefits are payable only for
periods during which an employee’s work-related medical condition prevent him or her from
earning the wages earned before the work-related injury.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability from
work during the period December 11 through 20, 2019 causally related to his accepted April 4,
2019 employment injury.
OWCP’s denial of wage-loss compensation for the period December 11 through 20, 2019
is supported by the provisions of 20 C.F.R. § 10.500 (a). On December 10, 2019 the employing
6
See 20 C.F.R. § 10.5(f); see also S.W., id.; A.M., Docket No. 09-1895 (issued April 23, 2010); Roberta L.
Kaaumoana, 54 ECAB 150 (2002).
7

J.M., Docket No. 19-0478 (issued August 9, 2019).

8

Id.

9
20 C.F.R. § 10.500(a); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to
Work, Chapter 2.814.9a (June 2013).

4

establishment provided appellant a full-time modified light-duty assignment in customer service.
The December 10, 2019 cover letter specifically advised that the offered assignment was
temporary.10 The document effectuating the offer indicated that modified position was available
to appellant commencing December 10, 2019. The duties of the position required appellant to help
customers with packaging and forms for four hours a day and direct customers to the self-serve
kiosk for four hours a day, all with the use of left hand/arm. The physical requirements of the
modified position indicated that no pushing, pulling, reaching, or lifting with the right arm was
involved. This is consistent with Dr. Arntz’ December 9, 2019 work restrictions as the modified
job offered only required use of his left arm. Thus, the evidence establishes that appellant had
medical work restrictions in place, that light duty within those work restrictions was available, and
that he was previously notified in writing that such light duty was available.11
The record is devoid of any evidence, which shows that the temporary modified light-duty
assignment was not within appellant’s work restrictions or was no longer available. Dr. Arntz’
subsequent January 13, 2020 work restrictions of no lifting over 10 pounds and limited use of right
arm overhead continues to support that the offered positon was within his physical restrictions.
Therefore, the evidence shows that, for the period December 11 through 20, 2019,
appellant could perform the temporary modified light-duty position available to him and OWCP
properly denied entitlement to wage-loss compensation for that period.12
On appeal appellant submitted pleadings asserting issues concerning his denial of
compensation and medical treatment, denial of third-party compensation, denial of
accommodation, and denial of return to work. He also alleged that he involuntary retired and
raised issues pertaining to the Office of Personnel Management, the Family and Medical Leave
Act, and other statutes. The Board’s jurisdiction is limited to the issue of appellant’s entitlement
to disability for the claimed period of December 11 through 20, 2019. For the reasons set forth
above, appellant has not met his burden of proof to establish disability from work for the period
December 11 through 20, 2019 due to his accepted conditions. Additionally, appellant submitted
a petition for reconsideration requesting that the Board “reopen” the present appeal. However,
this petition is premature as the Board had not issued a final decision in this appeal. Appellant has
30 days from the issuance of this decision to file a petition for reconsideration.13 Appellant has
also filed a motion for a preliminary injunction. However, the Board’s Rules of Procedure does
not provide for injunctive relief.14 Finally, appellant also filed a motion to consolidate the present
appeal with his appeal in Docket No. 21-0375. However, the Board, in its discretion, denies the
request as it involves a subsequent decision of OWCP. Therefore, the appeal in Docket No. 210375 will be adjudicated separately.

10

See B.T., Docket No. 19-1331 (issued April 30, 2020).

11

See S.W., supra note 5.

12

See A.M., Docket No. 19-0138 (issued October 2, 2019).

13

20 C.F.R. § 501.7(a).

14

See id. at § 501 et seq.

5

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability from
work during the period December 11 through 20, 2019 causally related to his accepted April 4,
2019 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 14, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6