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

)
)
)
)
)
)
)
)

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

Docket No. 09-364
Issued: October 20, 2009

Case Submitted on the Record

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

JURISDICTION
On November 19, 2008 appellant filed a timely appeal from the January 25, 2008
decision of the Office of Workers’ Compensation Programs finding that he failed to comply with
vocational rehabilitation efforts. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether the Office properly refused to reinstate appellant’s compensation
benefits due to his refusal to cooperate with vocational rehabilitation efforts, pursuant to 5 U.S.C.
§ 8113(b).
On appeal, appellant contends that he is entitled to compensation benefits from May 13,
2006 through March 10, 2008. He alleged that he had good cause for not participating in

vocational rehabilitation programs because the Department of Veterans Affairs (VA) found him
to be 100 percent unemployable.1
FACTUAL HISTORY
This is the second appeal before this Board. The facts and the law as set forth in the
Board’s prior decision are hereby incorporated by reference.2 The relevant facts are set forth
briefly below.
On August 1, 1983 appellant twisted his right foot when he stepped in a ditch while
crossing the lawn. The Office accepted his claim for right foot sprain and congenital pes planus.
By decision dated April 27, 2006, it reduced appellant’s compensation benefits to zero effective
May 14, 2006 due to his refusal to cooperate with vocational rehabilitation efforts.
Following the Board’s August 21, 2007 decision, in a July 21, 1999 letter, the VA
indicated that appellant had a service-connected disability rating of 60 percent and received an
honorable discharge. Appellant’s disabilities were listed as 40 percent spinal disc condition and
30 percent flat foot condition. In a July 12, 2005 letter from the VA to him, it certified that he
was a wartime veteran who was 80 percent disabled with individual unemployability due to
service-connected causes. In a June 14, 2007 decision, the VA found that appellant’s serviceconnected disability rating continued.
By letter dated August 25, 2007, appellant requested vocational rehabilitation at the
Office’s earliest convenience. In a letter received by the Office on September 5, 2007, he
indicated that vocational rehabilitation should look for work in the area of his residence,
Columbia, South Carolina, and not Bridgeport, Connecticut, as he no longer lived there.
Appellant requested back pay. On November 14, 2007 the Office referred appellant to
vocational rehabilitation.
In a November 28, 2007 internal note, the claims examiner noted that appellant made a
status inquiry as to his claim and left a cell phone number. She indicated that she dialed the
number and got no ring or answer. The claims examiner stated that she wrote to appellant to get
a proper number. On that day, appellant was referred to a rehabilitation counselor closer to the
Columbia, South Carolina area where he resided. In a November 29, 2007 note, the claims
examiner spoke with appellant and told him that she needed an accurate telephone number and
that he had been assigned a new rehabilitation counselor, Sandra Atkinson. Appellant gave the
claims examiner a new number which she would provide to the vocational counselor. On
November 30, 2007 he informed the claims examiner that the VA had found him 100 percent
disabled and that he was no longer suitable for rehabilitation. On December 19, 2007 the claims
examiner indicated that appellant left a message inquiring about his compensation being
1

Although appellant alleged that he is appealing a July 11, 2008 decision, no final decision was issued on that
date. On that date a letter was sent to appellant’s congressman noting that appellant’s compensation payments were
reinstated commencing March 10, 2008, when he began cooperating with the rehabilitation efforts. This letter was
purely informational in nature and not a final Office decision from which appellant may properly file an appeal. See
e.g., Ernesto L. Montoya, 35 ECAB 205 (1983); 20 C.F.R. § 10.126.
2

Docket No. 07-300 (issued August 21, 2007).

2

reinstated, and gave a different call back number. The claims examiner returned the call, but
each time it rang once and she was disconnected. She called appellant’s former number and did
not reach anyone. When the claims examiner called the new number again, she got a voice mail
and left a message in response to his question.
In a December 20, 2007 note, the claims examiner explained that she had tried returning
appellant’s calls at numerous numbers that had been provided. Two numbers were not in
service, one was not his number, and one was not receiving telephone calls. In a December 20,
2007 letter to appellant, the claims examiner advised that his compensation would be reinstated
when vocational rehabilitation advised her that he was fully cooperating and showing good
efforts in returning to work. She noted that this would only be after he had made efforts to
cooperate fully, including being able to be reached by telephone. A December 27, 2007 Office
note indicated that appellant moved residences and did not receive the December 20, 2007 letter.
In a December 17, 2007 letter to a congressman, appellant contended that he had been compelled
to temporarily relocate to Bridgeport, Connecticut for his children’s support because the Office
had erroneously terminated his benefits. In a December 31, 2007 letter, sent to appellant’s
address in South Carolina, the claims examiner noted that she had been unsuccessful in reaching
him at the numbers provided.
In a January 8, 2008 initial report of vocational rehabilitation, the rehabilitation counselor
noted that on December 28, 2007 she sent a letter to appellant at his South Carolina residence
advising that she had attempted to reach him regarding an appointment to meet and discuss
vocational rehabilitation. She would be in Columbia, SC on January 7, 2008 and would like to
meet at 9:00 am. The vocational rehabilitation counselor asked him to contact her. A telephone
log at the bottom of the report revealed that on December 28, 2007 the rehabilitation counselor
tried to contact appellant by telephone but he did not answer. She again tried to call on
January 4, 2008, but there was no answer and no way to leave a message. Appellant did not
appear for the January 7, 2008 appointment. On January 8, 2008 the vocational rehabilitation
counselor noted that her letter was returned with marking that appellant had moved. When she
called the Office, she was told to close the file. By letter dated January 11, 2008, appellant
informed the Office that he had moved to Bridgeport, Connecticut and provided his address.
On January 18, 2008 the vocational rehabilitation counselor tried to call appellant’s cell
phone and reached a Ms. Monterro. She left a message with her. On January 12, 2008 the
vocational rehabilitation counselor called and reached Ms. Monterro again.
By decision dated January 25, 2008, the Office found that appellant had not shown good
faith efforts in cooperating with vocational rehabilitation and had moved to another district.
Reinstatement of compensation benefits was denied.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened before it may terminate or modify compensation benefits.3 Section 8113(b)
of the Federal Employees’ Compensation Act provides that, if an individual, without good cause,
3

Betty F. Wade, 37 ECAB 556, 565 (1986).

3

fails to apply for and undergo vocational rehabilitation when so directed under section 8104 of
the Act, the Office, after finding that in the absence of failure the wage-earning capacity of the
individual would probably have substantially increased, may reduce prospectively the monetary
compensation of the individual in accordance with what would probably have been his wageearning capacity in the absence of the failure, until the individual in good faith complies with the
direction of the Office.4
Section 10.519 of Title 20 of the Code of Federal Regulations details the actions the
Office will take when an employee without good cause fails or refuses to apply for, undergo,
participate in or continue to participate in a vocational rehabilitation effort when so directed.
Section 10.519(a) provides, in pertinent part:
“Where a suitable job has been identified, [the Office] will reduce the employee’s
future monetary compensation based on the amount which would likely have been
his or her wage-earning capacity had he or she undergone vocational
rehabilitation. [It] will determine this amount in accordance with the job
identified through the vocational rehabilitation planning process, which includes
meetings with the [Office] nurse and the employer. The reduction will remain in
effect until such time as the employee acts in good faith to comply with the
direction of [the Office].”5
ANALYSIS
On August 27, 2007 this Board affirmed the Office’s decision reducing appellant’s
benefits to zero due to his failure to cooperate with vocational rehabilitation. Appellant alleges
that he is entitled to compensation beginning May 13, 2006. However, the Board finds that he
failed to show good cause that he cooperated with vocational rehabilitation efforts. As stated by
the Office’s regulations, a reduction in benefits will remain in effect until such time as the
employee acts in good faith to comply with the direction of the Office.6 Although appellant
indicated in an August 25, 2007 letter that he wanted to start vocational rehabilitation, his
subsequent conduct is contrary to a good faith effort to work with the Office. The record
establishes that he failed to cooperate with vocational rehabilitation counseling efforts. The
telephone numbers appellant provided the Office, including cell phone numbers, did not allow it
to leave a message, were disconnected or were inaccurate. On November 29, 2007 the Office
advised that he was assigned a new counselor closer to his Columbia, South Carolina address.
This counselor was also unable to reach appellant by telephone. A letter she sent to his South
Carolina address with regard to an appointment was returned as undeliverable. Thereafter, in a
letter dated December 17, 2007 to a Connecticut congressman, a copy of which was received by
the Office on December 28, 2007, appellant indicated that he had relocated to Bridgeport,
Connecticut, the city in which he initially resided when the Office first attempted vocational

4

5 U.S.C. § 8113(b).

5

20 C.F.R. § 10.519(a).

6

Id.

4

rehabilitation efforts. The Office did not have notice of this move and continued to try to reach
appellant in South Carolina.
Appellant contends that he had good cause to not cooperate with vocational rehabilitation
efforts as the VA found him to be 100 percent unemployable. However, it is well established
that decisions of other agencies or governmental bodies are not dispositive to issues raised under
the Act.7 Decisions made by such tribunals are pursuant to different statutes which have varying
standards for establishing disability and eligibility for benefits.
The Board finds that the Office properly determined that appellant was uncooperative in
vocational rehabilitation efforts without good cause.
CONCLUSION
The Board finds that the Office properly refused to reinstate appellant’s compensation
benefits due to his refusal to cooperate with vocational rehabilitation efforts pursuant to 5 U.S.C.
§ 8113(d).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 25, 2008 is affirmed.
Issued: October 20, 2009
Washington, DC

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

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

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

7

See Andrew Fullman, 57 ECAB 574 (2006); Wayne E. Boyd, 49 ECAB 2002 (1997).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
U.S. POSTAL SERVICE, HODGE PARK
CARRIER ANNEX, Kansas City, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0715
Issued: March 19, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On February 19, 2018 appellant, through counsel, filed a timely appeal from a November 2,
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.
ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral carpal
tunnel syndrome causally related to the accepted factors of her federal employment.

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.

FACTUAL HISTORY
On June 17, 2016 appellant, then a 55-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed carpal tunnel syndrome due to factors of her federal
employment. She identified June 15, 2016 as the date she first became aware of her condition and
first realized that her condition was employment related. Appellant did not stop work.
In a development letter dated July 12, 2016, OWCP informed appellant of the factual and
medical deficiencies of her claim. It advised her of the type of factual and medical evidence
necessary to establish her claim and provided a questionnaire for her completion. OWCP afforded
appellant 30 days to respond. No response was received.
By decision dated September 1, 2016, OWCP denied appellant’s claim, finding that she
had not met her burden of proof to establish the factual component of her claim, noting that she
had not responded to its questionnaire. It further noted that appellant had not submitted medical
evidence in support of her claim. OWCP concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA.
On September 28, 2016 appellant requested reconsideration of OWCP’s September 1,
2016 decision. She submitted an undated statement in which she noted that she had been seen by
a physician subsequent to OWCP’s decision and contended that she had carpal tunnel syndrome
in both hands.
In an electrodiagnostic report dated September 1, 2016, it was noted that Dr. Salvatore
Miceli, Board-certified in physical medicine and rehabilitation, performed a nerve conduction
velocity study and an electromyogram on appellant’s right and left arms. Testing revealed
moderate-to-severe right-sided carpal tunnel syndrome and moderate left-sided carpal tunnel
syndrome.
In a work status report dated September 23, 2016, Dr. Christopher Bagby, a Board-certified
orthopedic surgeon, diagnosed bilateral carpal tunnel syndrome, severe on the right, and moderate
on the left. He noted that the duties of appellant’s employment were “contributing to this issue.”
In an undated note, Dr. Bagby advised that appellant was scheduled for a left-sided carpal
tunnel release on October 13, 2016.
By decision dated October 31, 2016, OWCP modified its September 1, 2016 decision to
accept that the medical evidence submitted had provided a diagnosed medical condition. It found,
however, that the medical evidence of record was insufficient to establish causal relationship
between the diagnosed carpal tunnel and the accepted factors of appellant’s federal employment.
On March 17, 2017 appellant requested reconsideration of OWCP’s October 31, 2016
decision. With her request, she attached an undated narrative statement outlining the duties of her
federal employment position, including casing mail, pulling mail, starting and loading a mail truck,
opening and closing mailboxes, scanning mail, placing mail into slots, lifting parcels and packages,
and manipulating mail trays.

2

On March 21, 2017 OWCP denied appellant’s request for reconsideration of the merits of
her claim pursuant to 5 U.S.C. § 8128(a).
On October 19, 2017 appellant, through counsel, requested reconsideration of OWCP’s
October 31, 2016 decision. With the request, counsel submitted an October 15, 2017 report from
Dr. Neil Allen, a Board-certified internist and neurologist. Dr. Allen reviewed appellant’s medical
file and noted that she had no history of a hand injury prior to June 15, 2016. He also noted that
appellant was employed as a rural carrier when she sustained an injury to her hands, which she
attributed to repetitive and overhead tasks. Dr. Allen reviewed the results of the September 1,
2016 electrodiagnostic studies showing evidence of moderate-to-severe right-sided carpal tunnel
syndrome and moderate left-sided carpal tunnel syndrome. He opined that appellant’s bilateral
wrist condition was work related and that her case should be accepted for bilateral carpal tunnel
syndrome, noting that medical literature supported that compression of the carpal tunnel produced
paresthesia in the radial-palmar aspect of the hand plus pain in the wrist, palm, or proximal to the
compression site of the forearm. Dr. Allen advised that possible etiologies for carpal tunnel
syndrome generally included repeated forceful wrist flexion, violent muscular activity or forcible
overextension, and mechanical stress. He indicated that: appellant started her vehicle up to 200
times per day, which required forceful wrist flexion; performed 440 pinch grip motions during
sorting, which constituted repetitive mechanical stress or violent muscular activity; and opened
and closed her delivery window numerous times per day, which constituted forceful flexion.
Dr. Allen noted that these tasks “resulted in excess mechanical stress on the joints of both the wrist
and the hands, beyond that needed to perform normal daily activity.” He opined that appellant’s
work duties, as set forth in his report, were sufficient to cause the development of bilateral carpal
tunnel syndrome due to repetitive activity.
By decision dated November 2, 2017, OWCP denied modification of the October 31, 2016
decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 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 filed within the applicable time limitation period
of FECA,4 that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

3

Supra note 2.

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

3

employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.7
Causal relationship is a medical question, which requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.9 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 factors.10 The absence of a physical examination by a physician may affect
the weight to be given a medical report, but does not render it incompetent as medical evidence.11
In cases where the sole issue is one of causal relationship, a physical examination is unnecessary
as it would be of no consequence and would only result in additional delay and cost.12
ANALYSIS
The Board finds that the case is not in posture for decision.
In a report dated October 15, 2017, Dr. Allen reviewed appellant’s medical file and noted
that she was employed as a rural carrier when she sustained injury to her hands, which she
attributed to repetitive and overhead tasks. He indicated that the electrodiagnostic studies of
September 1, 2016 had revealed evidence of moderate-to-severe right-sided carpal tunnel
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

L.C., Docket No. 19-1301 (issued January 29, 2020); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

See A.L., Docket No. 19-1122 (issued January 7, 2020); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, supra note 7.

10

Id.

11
See W.C., Docket No. 18-1386 (issued January 22, 2019); M.M., Docket No. 17-0438 (issued March 13, 2018);
C.B., Docket No. 17-0726 (issued July 3, 2017); Melvina Jackson, 38 ECAB 443, 447-52 (1987).
12

See Sherry Shreiber, Docket No. 04-1966 (issued January 24, 2005) (the Board held that the fact that an OWCPselected second opinion physician had not physically examined the claimant was of no consequence as the diagnosis
had already been established and, thus, the only question was causal relationship); see also W.C., id.

4

syndrome and moderate left-sided carpal tunnel syndrome. Dr. Allen opined that appellant’s
bilateral wrist condition was work related and that her case should be accepted for bilateral carpal
tunnel syndrome. He advised that medical literature provided that compression of the carpal tunnel
produced paresthesia in the radial-palmar aspect of the hand plus pain in the wrist, palm, or
proximal to the compression site of the forearm, and that possible etiologies for carpal tunnel
syndrome generally included repeated forceful wrist flexion, violent muscular activity or forcible
overextension, and mechanical stress. Dr. Allen considered appellant’s employment duties noting
that she was required to start her vehicle up to 200 times per day, which constituted forceful wrist
flexion, to perform 440 pinch grip motions during sorting, which constituted repetitive mechanical
stress or violent muscular activity, and open/close her delivery window numerous times per day,
which constituted forceful flexion. He opined that these tasks resulted in excess mechanical stress
on the joints of both the wrist and the hands, beyond what was required for normal daily activity.
Dr. Allen concluded that appellant’s work duties led to the development of bilateral carpal tunnel
syndrome due to repetitive activity. He noted that her past medical history was unremarkable for
a prior injury to her hands.
The Board finds that the October 15, 2017 report of Dr. Allen is sufficient to require further
development of the medical evidence to see that justice is done.13 Dr. Allen is a Board-certified
physician who is qualified in his field of medicine to render rationalized opinions on the issue of
causal relationship. He indicated that he had reviewed appellant’s medical records and noted her
medical history. Dr. Allen provided a pathophysiological explanation as to how the accepted
factors of appellant’s federal employment were sufficient to have caused bilateral carpal tunnel
syndrome, the established diagnosed condition in this claim. The Board has long held that it is
unnecessary that the evidence of record in a case be so conclusive as to suggest causal connection
beyond all reasonable doubt. Rather, the evidence required is only that necessary to convince the
adjudicator that the conclusion drawn is rationale, sound, and logical.14 Dr. Allen’s opinion is not
contested by other medical evidence of record.
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.15 It has an obligation to see that justice is done.16
On remand OWCP should refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts, for a well-rationalized opinion regarding whether she
sustained bilateral carpal tunnel syndrome causally related to the accepted factors of her federal
employment. If the physician opines that the bilateral carpal tunnel syndrome is not causally
related to the accepted employment factors, he or she must explain with rationale how or why their
opinion differs from that of Dr. Allen. After this and such other further development as OWCP
deems necessary, it shall issue a de novo decision.

13

J.H., Docket No. 18-1637 (issued January 29, 2020); X.V., Docket No. 18-1360 (issued April 12, 2019).

14

C.C., Docket No. 18-1453 (issued January 28, 2020).

15

K.P., Docket 18-0056 (issued January 27, 2020); see also A.P., Docket No. 17-0813 (issued January 3, 2018).

16

C.C., supra note 14.

5

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 2, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 19, 2020
Washington, DC

Christopher J. Godfrey, Deputy 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
DEPARTMENT OF THE ARMY, BROOKE
ARMY MEDICAL CENTER, Houston, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1068
Issued: March 1, 2022

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 June 28, 2021 appellant filed a timely appeal from a May 28, 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted October 9, 2020 employment incident.
FACTUAL HISTORY
On April 12, 2021 appellant, then a 57-year-old practical nurse, filed a traumatic injury
claim (Form CA-1) alleging that on October 9, 2020 a maintenance worker ran over her right foot
1

5 U.S.C. § 8101 et seq.

with a cart, which caused pain and swelling in her right foot as well as knee pain. On the reverse
side of the claim form, appellant’s supervisor indicated that she was injured in the performance of
duty. Appellant did not stop work.
In support of her claim, appellant submitted a medical report dated November 3, 2020 from
Dr. Melany A. Shearrer, a family medicine specialist. Dr. Shearrer related that appellant was seen
for right foot pain and a small lump on the top of her foot, which began one month prior when a
maintenance cart hit the top of her foot.
In reports dated March 10 and 12, 2021, Dr. Tamara Moseley, a podiatrist, related that a
cart ran over appellant’s foot in November 2020 and she noted that appellant had complaints of
right foot pain, swelling, and paresthesia. In the March 12, 2021 note, she related that x-rays of
appellant’s foot were negative for fracture and diagnosed right foot pain.
In a March 11, 2021 report, Dr. Bhavna Lalvani, a family medicine specialist, related that
appellant was seen for right knee pain, which appellant believed resulted from overcompensating
from a right foot injury in November 2020.
On March 30, 2021 a physical therapist requested a consultation for a provisional diagnosis
of right knee unilateral primary osteoarthritis.
OWCP received a letter dated April 8, 2021 from appellant’s co-worker, M.R., and a
separate letter from her co-worker, T.V. Both co-workers stated that they witnessed a maintenance
cart run over appellant’s right foot in October 2020. M.R. also related that appellant stated that
she was in pain and held her right leg and foot following the incident.
In a development letter dated April 26, 2021, OWCP informed appellant of the deficiencies
in her claim. It noted the type of factual and medical evidence needed and provided a questionnaire
for her completion. OWCP afforded appellant 30 days to submit the necessary evidence.
In a report dated April 27, 2021, Matthew Randel, a physical therapist, related that
appellant presented with signs and symptoms commonly associated with right foot pain , likely due
to nerve and soft tissue injury.
Appellant submitted a response to OWCP’s development questionnaire dated May 5, 2021.
She attested that she told her supervisor of her injury three or four weeks after it occurred as she
was still in pain. Appellant stated that her supervisor initially indicated that it was too late to file
a claim.
By decision dated May 28, 2021, OWCP accepted that the October 9, 2020 employment
incident occurred, as alleged; however the claim was denied as she had not submitted medical
evidence containing a medical diagnosis in connection with her accepted employment incident. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA 2 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 3 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. 4 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
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 and 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.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 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. 8

2

Id.

3

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).
4

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).
5

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).
6

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).
7

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).
8

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

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted October 9, 2020 employment incident.
In support of her claim, appellant submitted a medical report dated November 3, 2020 from
Dr. Shearrer, which related that appellant was seen for right foot pain. Similarly, OWCP received
a medical report dated March 11, 2021 from Dr. Lalvani, which stated that appellant was seen for
right knee pain. The Board has held that pain is a symptom and not a compensable medical
diagnosis.9 As these reports did not provide a firm diagnosis causally related to the acc epted
employment incident, they are insufficient to establish appellant’s claim.
OWCP also received reports dated March 10 and 12, 2021 from Dr. Moseley, which related
that appellant had right foot pain, swelling, and paresthesia. As with pain, 10 swelling,11 and
numbness12 are also symptoms of a medical condition, not diagnoses. For this reason,
Dr. Moseley’s reports are insufficient to meet appellant’s burden of proof.
Appellant also submitted were reports from physical therapists. Certain healthcare
providers such as physician assistants, nurse practitioners, and physical therapists are not
considered physicians as defined under FECA. 13 Their opinions are therefore not considered
competent medical evidence. 14 Consequently, this evidence will not suffice for purposes of
establishing entitlement to FECA benefits. 15
As there is no medical evidence of record establishing a diagnosed medical condition
causally related to the accepted October 9, 2020 employment incident, the Board finds that
appellant has not met her burden of proof.

9

See S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

10

Supra note 9.

11

M.C., Docket No. 17-0024 (issued March 22, 2018).

12

See Leonardo G. Cobero, Docket No. 99-2489 (issued June 1, 2001).

5 U.S.C. § 8101(2) 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,”
20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); see also M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket No. 19-0221
(issued July 15, 2019); 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).
13

14

M.T., Docket No. 21-0783 (issued December 27, 2021).

15

See M.C., Docket No. 19-1074 (issued June 12, 2020).

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 met her burden of proof to establish a diagnosed
medical condition causally related to the accepted October 9, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 1, 2022
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF THE NAVY,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 07-466
Issued: October 15, 2007

Oral Argument September 13, 2007

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 an August 23, 2006 decision of
the Office of Workers’ Compensation Programs finding that her request for reconsideration was
untimely and failed to show clear evidence of error. Pursuant to 20 C.F.R. § 501.3, the Board’s
jurisdiction is limited to decisions issued within one year of the filing of the appeal. Since the
last merit decision was issued on August 3, 2004, the Board does not have jurisdiction over the
merits of this case.
ISSUE
The issue is whether the Office properly determined that appellant’s August 5, 2006
application for reconsideration was untimely and failed to show clear evidence of error.
FACTUAL HISTORY
Appellant filed a claim on April 24, 2003 alleging that she sustained injuries on
December 4, 2000 when she was pushed against a wall and door frame. By decision dated
August 3, 2004, the Office denied the claim on the grounds that appellant was not a federal
employee under 5 U.S.C. § 8101(1), at the time of the alleged incident. It indicated that a notice

of personnel action (Form SF-50), dated October 23, 2000 established that appellant was
removed from federal employment effective October 24, 2000.
On October 6, 2004 appellant requested reconsideration of her claim. By decision dated
January 20, 2005, the Office determined that the application for reconsideration was insufficient
to warrant merit review of the claim.1
In a letter dated August 5, 2006, appellant requested reconsideration of her claim. She
argued that the SF-50 was issued by the Naval Center for Acquisition Training (NCAT) in
Mechanicsburg, Pennsylvania and that NCAT was not her employer and had no authority to
terminate her employment. Appellant stated that her duty station was in Philadelphia,
Pennsylvania with Naval Inventory Control Point. She submitted an Equal Employment
Opportunity (EEO) Commission letter dated September 6, 2005 stating that the reference docket
number was being closed because the employing establishment had no record of a formal
complaint being filed by appellant.
By decision dated August 23, 2006, the Office determined that appellant’s application for
reconsideration was untimely filed. It further determined that she did not show clear evidence of
error and therefore the application was denied.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.2 The employee shall exercise this right through a request to
the district office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”3
Section 8128(a) of the Act4 does not entitle a claimant to a review of an Office decision
as a matter of right.5 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.6 The Office, through regulations,

1

Appellant filed an appeal with the Board which was docketed as No. 05-1054. By order dated May 16, 2006,
the Board granted appellant’s motion to dismiss the appeal.
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.605 (1999).

4

5 U.S.C. § 8128(a).

5

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

Under section 8128 of the Act, “[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.”

2

has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).7
As one such limitation, the Office has stated that it will not review a decision denying or
terminating a benefit unless the application for reconsideration is filed within one year of the
date of that decision.8 The Board has found that the imposition of this one-year limitation does
not constitute an abuse of the discretionary authority granted the Office under 5 U.S.C.
§ 8128(a).9
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.10 In accordance with this holding, the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.11
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.12 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.13 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.14 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.15 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.16 To show clear
evidence of error, 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.17 The Board makes an
7

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a specific point of law; or (2) advancing a relevant
legal argument not previously considered by the Office of Workers' Compensation Programs; or (3) submitting
relevant and pertinent evidence not previously considered by the Office; see 20 C.F.R. § 10.606(b).
8

20 C.F.R. § 10.607(a).

9

See Leon D. Faidley, Jr., supra note 5.

10

Leonard E. Redway, 28 ECAB 242 (1977).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

12

See Dean D. Beets, 43 ECAB 1153 (1992).

13

See Leona N. Travis, 43 ECAB 227 (1991).

14

See Jesus D. Sanchez, 41 ECAB 964 (1990).

15

See Leona N. Travis, supra note 13.

16

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

17

Leon D. Faidley, Jr., supra note 5.

3

independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.18
ANALYSIS
The application for reconsideration was dated August 5, 2006. The last decision on the
merits of the claim for compensation was dated August 3, 2004. Since the application was filed
more than one year after the merit decision, it is properly found to be untimely filed.
The underlying claim in this case was denied on the grounds that appellant was not a
federal employee pursuant to 5 U.S.C. § 8101(1) at the time of the alleged employment injury on
December 4, 2000. In her August 5, 2006 application for reconsideration, appellant argued that
she was a federal employee on December 4, 2000 because the SF-50 that purported to remove
her from employment effective October 24, 2000 was invalid. According to appellant, the SF-50
was issued by NCAT, who was not her employer and had no authority to remove her from
federal employment.
Appellant does not, however, provide any evidence to support her argument. The record
contains an SF-50 from the Department of the Navy dated October 23, 2000 that identifies
appellant and her position as logistics management specialist. The personnel action taken was
removal from employment effective October 24, 2000 for failure to follow procedures,
falsification of time and attendance records, unprofessional behavior and providing misleading
employment information. Appellant provided no evidence to establish that the personnel action
was invalid. The EEO letter submitted does not address the issue and provides no relevant
information to the issue presented. There is no evidence to establish that the Office clearly erred
in relying on the October 23, 2000 SF-50 to determine that appellant was not a federal employee
on December 4, 2000.
The Board accordingly finds that the August 5, 2006 application for reconsideration was
untimely and failed to show clear evidence of error by the Office. The Office therefore properly
denied the application for reconsideration without merit review of the claim.
CONCLUSION
The August 5, 2006 application for reconsideration was untimely filed and failed to show
clear evidence of error.

18

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 23, 2006 is affirmed.
Issued: October 15, 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
__________________________________________
C.B., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, SOUTHEAST
REGION, Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-0671
Issued: August 24, 2015

Case Submitted on the Record

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

JURISDICTION
On January 28, 2014 appellant, through counsel, filed a timely appeal from a
December 16, 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 her burden of proof to establish an injury in the
performance of duty on September 19, 2012.
On appeal, appellant’s counsel contends that OWCP’s decision is contrary to law and
fact.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 31, 2012 appellant, then a 54-year-old administrative assistant, filed a
traumatic injury claim alleging that on September 19, 2012 she suffered an injury to her right
upper wrist and thumb as a result of over usage caused by typing and writing. She noted that on
that date, she heard her hand pop and had severe pain.
By letter dated November 6, 2012, OWCP asked appellant to submit further information.
It asked her to respond to questions regarding how her injury occurred, whether there were
witnesses and indicate if she had any other similar symptoms before the injury. OWCP also
asked appellant to submit medical information in support of her claim. On December 3, 2012
appellant responded to the questions by indicating that she had immediate pain while writing up
transfer of funds documents and that the pain in her hand was due to repetitive typing/writing
which aggravated her condition.
Appellant submitted a December 3, 2012 statement prepared by a physician assistant that
was countersigned by Dr. Jack H. Powell, a Board-certified surgeon, who diagnosed
carpometacarpal (CMC) osteoarthritis of the right thumb, indicated that it had been treated by
surgery and that appellant’s prognosis was good. The report indicated that recovery was
expected in six to eight weeks, after which time appellant should not experience any further
limitations. The report noted that appellant did not indicate that she had an injury to her thumb,
but stated that she was typing and writing at work on September 19, 2012 when she felt
immediate pain. It noted that, after the initial visit, appellant was found to have pain in palpation
of the CMC joint of the right hand, a positive CMC grind test and swelling and that an x-ray
revealed severe osteoarthritis in the CMC joint of the right hand. The report further noted that
repetitive tasks, such as typing and writing, could have aggravated appellant’s condition.
By decision dated December 14, 2012, OWCP determined that appellant had established
that she timely filed a claim that the incident or employment factor occurred, that a medical
condition had been diagnosed and that she was in the performance of duty. However, it denied
her claim because she had not submitted a detailed description of the employment factors that
she believed caused the condition.
In an October 12, 2012 note, Dr. Powell assessed appellant with unspecified right
osteoarthrosis, generalized or localized in her hand. He noted that appellant wished to have
surgery and that she was restricted to no typing or writing.
By letter dated December 18, 2012, the employing establishment controverted appellant’s
claim. It, through the assistant regional director, indicated that appellant alleged that the injury
occurred on September 19, 2012 while she was typing, but that she did not report the injury to
him until 21 days later on October 10, 2012. The employing establishment also noted that, if her
injury was caused by over usage, an occupational disease claim would need to be filed.
In a February 20, 2013 letter, Dr. Kevin D. Webster, a Board-certified internist, found
that it was medically necessary to make significant changes to appellant’s work situation. He
noted that she was being treated for diabetes and had significant arthritis of her hands, especially
the thumbs. Appellant had required surgery of the thumb and left upper extremity. Dr. Webster

2

noted that appellant reported considerable pain with prolonged typing along with recurrent
emotional distress related to her work environment.
In a form report dated August 28, 2013, Dr. Powell indicated that appellant did not have
an injury, rather she stated that she experienced immediate pain in the right thumb on
September 9, 2012 while she was typing and writing at work. He noted that she stated that on
October 9, 2012 her right thumb was aching and throbbing with sharp quality, and that the pain
was moderate to severe in intensity. Dr. Powell listed the diagnosis of CMC osteoarthritis, and
stated that he believed that this was an exacerbation of a preexisting condition.
In a decision date December 16, 2013, OWCP reviewed the merits of appellant’s case but
denied modification of the prior decision. It alleged that she had not established employment
factors that she alleged caused her condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained 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. 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.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.3
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.4 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.5
2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

4

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

5

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

3

To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient
doubt on a claimant’s statements. The employee has not met this burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.6
ANALYSIS
Appellant filed her claim for compensation on October 31, 2012. At that time, she
indicated that, while working on September 19, 2012, she had sudden severe pain in her right
wrist and thumb. There were no witnesses to this alleged incident. Appellant’s statement that
she sustained a traumatic injury on September 19, 2012, although entitled to great weight, is
contradicted by her subsequent behavior. She did not inform any person at the employing
establishment of this injury until October 10, 2012. There is no indication that appellant sought
medical treatment until October 9, 2012. There is no explanation in the record for appellant’s
delay in reporting the injury or in seeking medical treatment. Furthermore, she informed her
physician that she did not sustain a traumatic injury, yet she filed a claim for a traumatic injury
which she alleged occurred on September 19, 2012. However, the record currently offers no
support for her allegation that she sustained an injury in the performance of duty as a result of a
traumatic injury on September 19, 2012.7
The circumstances surrounding appellant’s account of an employment incident, include
her delay in reporting the incident and her delay in seeking medical attention. In addition, she
informed her treating physician that she did not suffer a traumatic injury. These discrepancies
cast serious doubt on her claim.
For these reasons, the Board finds that appellant has not established that the incident
occurred as alleged. Because appellant has not established that the September 19, 2012 incident
occurred, it is not necessary for the Board to consider the medical evidence.8
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 failed to meet her burden of proof to establish an injury in
the performance of duty on September 19, 2012.
6

T.B., Docket No. 13-1823 (issued March 20, 2014).

7

20 C.F.R. § 10.5(15), (16) defines a traumatic injury as a wound or other injury caused by a specific event or
incident within a single workday or shift, whereas an occupational injury is defined as a condition produced in the
work environment over a period longer than a single workday or shift.
8

B.W., Docket No. 13-244 (issued May 13, 2013).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 16, 2013 is affirmed.
Issued: August 24, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 13-2159
Issued: March 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On September 23, 2013 appellant filed a timely appeal from a March 29, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
April 29, 2010.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted evidence after March 29, 2013, the date of the decision on appeal.
The Board is limited to review of the evidence that was before OWCP at the time of the final decision on appeal.
20 C.F.R. § 501.2(c)(a).

FACTUAL HISTORY
On February 15, 2013 appellant filed with OWCP a traumatic injury claim (Form CA-1)
alleging that on April 29, 2010 he sustained injuries to his low back, right shoulder, neck and
elbows. The claim form was dated August 22, 2011 and the reverse of the form indicated that
his employment as a city carrier was terminated on May 14, 2011. Appellant alleged that on
April 29, 2010 he was injured while stepping down from his vehicle to report an accident, when
“the seat belt strap pulled me back against the door.” By letter dated February 25, 2013, OWCP
requested that he submit additional factual and medical evidence to establish his claim.
On March 25, 2013 appellant submitted additional evidence. A July 28, 2010 magnetic
resonance imaging (MRI) scan report stated that he had advanced interstitial partial tear of the
infraspinatus tendon with a small amount of bursal involvement, as well as infraspinatus,
subscapularis and supraspinatus tendinopathy. Appellant also submitted an April 29, 2010 note
diagnosing low back pain and right shoulder contusion. The note contains the name of a referral
physician but is not signed by a physician. A brief note dated April 29, 2010 from Dr. Michael
Noonan, an emergency medicine specialist, indicated that appellant was unable to work April 30
and May 1, 2010. In a note dated September 29, 2010, a physician’s assistant indicated that
appellant should limit repetitive motion with his right arm for eight weeks. Appellant also
submitted a motor vehicle accident report (SF-91) dated April 29, 2010. On the form a box is
checked that the vehicle was “privately owned” and a box checked “injured” without further
explanation.
By decision dated March 29, 2013, OWCP denied the claim for compensation. It found
that the factual and medical evidence was not sufficient to establish the claim.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”3 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”4 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.5 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident

3

5 U.S.C. § 8102(a).

4

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

5

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

2

which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury and generally this can be established only by medical evidence.6
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantial evidence.7 An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his subsequent course of action.8 An employee has not met his
burden of proof to establish the occurrence of an injury when there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of the claim.9 Such circumstances as late
notification of injury, lack of confirmation of injury, continuing to work without apparent
difficulty following the alleged injury and failure to obtain medical treatment may, if otherwise
unexplained, cast sufficient doubt on an employee’s statements in determining whether a prima
facie case has been established.10 However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.11
As to the second component, unless the condition is a minor one which can be identified
on visual inspection,12 or a clear-cut claim such as a fall resulting in a broken arm, a rationalized
medical opinion supporting causal relationship is required.13 Rationalized medical opinion
evidence is medical evidence that is based on a complete factual and medical background, of
reasonable medical certainty and supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant. The weight of medical evidence is determined by its reliability, its probative value,
its convincing quality, the care of the analysis manifested and the medical rationale expressed in
support of the physician’s opinion.14

6

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

7

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

8

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

9

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

10

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

11

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

13

Id.

14

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

3

ANALYSIS
In the present case, appellant filed a claim for a traumatic injury on April 29, 2010.
The evidence that was submitted to OWCP as of March 29, 2013 is not sufficient to
establish either the factual or medical component of “fact of injury” as noted above. Appellant
gave only a brief description of an alleged incident on April 29, 2010. The circumstances of the
injury are unclear, as appellant submitted a motor vehicle accident report involving a private
vehicle and an injury from the accident. On the CA-1 claim form appellant referred only to
getting caught in a seat belt strap as he was attempting to report an accident. In addition, there
was a delay in completing the CA-1 form (signed August 22, 2011) and apparently the form was
not submitted to OWCP until February 15, 2013. A proper factual statement should clearly
describe the incident as well as discuss the delay in completing and filing the claim form.
As to the medical component, the Board notes that any medical evidence must be from a
physician under FECA.15 In addition, as noted above, there must be a rationalized medical
opinion as to a diagnosed condition causally related to an April 29, 2010 employment incident.
Appellant submitted some evidence from a physician’s assistant which is of no probative value
as a physician’s assistant is not a physician under FECA.16 It is also well established that
medical evidence lacking proper identification is of no probative medical value.17 Any note or
report that is not properly signed by a physician is of no probative value. The brief note from
Dr. Noonan dated April 29, 2010, does not provide a rationalized medical opinion on the issues
presented.
The Board accordingly finds that appellant did not meet his burden of proof to establish
the claim for compensation.
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 did not meet his burden of proof to establish an injury in
the performance of duty on April 29, 2010.

15

See 5 U.S.C. § 8101(2).

16

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

17

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004); Merton J. Sills, 39 ECAB
572 (1988).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 29, 2013 is affirmed.
Issued: March 18, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Belen Rodriguez, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1491
Issued: February 10, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 30, 2015 appellant, through his representative, filed a timely appeal from an
April 8, 2015 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 August 29, 2012.
FACTUAL HISTORY
On May 17, 2013 appellant, then a 64-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on August 29, 2012, he sustained a collapsed lung, broken ribs, and a

1

5 U.S.C. § 8101 et seq.

fractured left foot which resulted in amputation of all left toes.2 He explained that on his
assigned day off, he was called in at 6:20 a.m. to report to work for a shift which was to begin at
7:00 a.m. While on his way to work, at approximately 6:51 a.m., a sport utility vehicle ran a stop
sign, coming into his lane, which forced appellant to swerve and take his motorcycle out of his
lane. The sport utility vehicle bumped his rear and forced him to lay down the motorcycle.
Appellant asserted that his claimed injuries were the result of being called in on his day off with
30 to 40 minutes’ notice, and that he would not have been traveling that route but for the request
of the employing establishment. He stated that once he received the call to report to work, the
employing establishment benefited from not having to call in another carrier for that assignment.
Appellant noted that he called his supervisor to report the incident, but was told that it was not
work related.
The employing establishment controverted appellant’s claim by letter dated
May 17, 2013. It stated that he was involved in an “off the clock” vehicular incident on the
morning of August 29, 2012. The employing establishment noted that appellant suffered
extreme injuries from the incident and had not been able to return to work. Appellant had
requested 240 hours (30 days) of advanced sick leave, which was granted, and requested
reasonable accommodations. The employing establishment asserted that he was not in the
performance of his duties on the date of injury, noting that his tour of duty began at 7:00 a.m.,
but that appellant never clocked in on August 29, 2012. It also controverted continuation of pay,
noting that appellant did not file his claim until May 14, 2013, almost nine months after the
incident. Lastly, the employing establishment noted that he had not provided medical
documentation to support his claim.
In an undated statement, appellant’s representative noted that appellant was still unable to
return to work because the employing establishment refused to allow him to return to a four-hour
workday as directed by his physician.
On March 29, 2013 the employing establishment responded to senatorial correspondence
regarding appellant’s claimed injury. It noted that appellant was involved in a nonjob-related
vehicular incident on August 29, 2012, and was granted 240 hours of advanced sick leave. The
employing establishment stated that he submitted a physician’s note dated January 7, 2013,
which included the phrase “nonweight-bearing.” On February 27, 2013 it received a report
stating that appellant could return to work the next day with restrictions of working no more than
four hours per day and wearing an ankle brace.
By letter dated May 28, 2013, OWCP advised appellant of the factual and medical
evidence needed to establish his claim. It requested that he provide this evidence, within 30
days. On the same date, OWCP also requested that the employing establishment provide details
regarding appellant’s duties and its knowledge of the incident.
On May 31, 2013 the employing establishment responded. It stated that appellant’s
injury occurred at 6:51 a.m. and that it was unknown to where he was traveling when it occurred.
The employing establishment noted that appellant was called into work to report to his shift on
2

Appellant had previously completed a Form CA-1 on this claim dated March 22, 2013. However, the form was
not signed by a supervisor.

2

the date of injury, and that he last performed his official duties on August 28, 2012. The distance
between appellant’s place of work and the location of the vehicular incident was approximately
two miles. Appellant’s regular reporting time was 7:00 a.m. The employing establishment
asserted that appellant was not in a government-owned vehicle at the time of the incident and
noted that he was not covered under a “portal to portal.”
In an undated statement, appellant responded to OWCP’s questionnaire. He stated that at
the time of injury, he was at an intersection driving his motorcycle to work after his supervisor
called him to come in on his day off. At approximately 6:51 a.m. another vehicle pulled out
from a stop sign in front of appellant. He swerved to avoid hitting the vehicle head-on and the
vehicle hit the rear of his motorcycle. The motorcycle hit the pavement falling on appellant’s
left foot, while he slid across the pavement for several feet. He noted that he had waited to file
his claim because originally he was told his claim was not work related. Appellant received
medical attention immediately after the injury of August 29, 2012. He reported that he had a
severely fractured left foot, a collapsed lung, broken ribs, and severe road rash. Appellant’s toes
were severely fractured and unable to heal, and eventually developed gangrene, resulting in
amputation of his left toes. He was nonweight-bearing until approximately February 10, 2013
and was confined to a wheelchair until he received prosthetics.
In an emergency department report dated August 29, 2012, Dr. Christopher Thompson,
Board-certified in emergency medicine, diagnosed a traumatic closed pneumothorax, a closed
foot fracture, and three rib fractures, as a result of a motor vehicle incident.
In a report dated September 10, 2012, Dr. Zak Weis3 noted that appellant had a
comminuted open fracture of multiple metatarsals in his left foot, which developed gangrene and
required digit amputation. Appellant also submitted diagnostic and medical records detailing his
course of treatment in 2013.
In a Family Medical Leave Act certification of health care provider for employee’s
serious health condition form dated September 6, 2012, Dr. Weis stated that appellant was
nonweight-bearing at that time and unable to perform any duties of his employment. Appellant
also provided further medical notes from Dr. Weis and nurses excusing him from work through
May 2013.
By decision dated October 18, 2013, OWCP denied appellant’s claim, finding that,
though the incident occurred as alleged, the evidence of record failed to establish that it had
occurred in the performance of duty. It found that employees do not generally have the
protection of FECA while traveling to and from work unless one of these five exceptions are
met. As appellant did not fall into one of the exceptions, he was found to be outside the
performance of duty.
On October 9, 2014 appellant, through his representative, submitted a request for
reconsideration. With his request, appellant’s representative supplied a lengthy legal analysis
with citations to Board precedent involving cases in which federal employees had been found to
3

Dr. Weis’ certification in a medical specialty could not be confirmed with the American Board of Medical
Specialties or the American Osteopathic Association.

3

be in the performance of duty while coming to or going from work. He contended that OWCP
had misinterpreted Board precedent in denying appellant’s claim.
By decision dated April 8, 2015, OWCP reviewed the merits of appellant’s claim and
affirmed its prior decision of October 18, 2013.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA; that the claim was 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.5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.7
First, the employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place, and in the manner alleged.8 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
FECA provides for the payment of compensation benefits for disability or death of an
employee resulting from personal injury sustained while in the performance of duty. The phrase
“while in the performance of duty” in FECA has been interpreted by the Board to be the
equivalent of the commonly found prerequisite in workers’ compensation law of “arising out of
and in the course of employment.”10
In addressing this issue, the Board has generally held that, in the compensation field, to
occur in the course of employment, an injury must occur at a time when the employee may
reasonably be said to be engaged in his or her master’s business, at a place where he or she may
reasonably be expected to be in connection with the employment, and while he or she was

4

5 U.S.C. § 8101 et seq.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

6

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

9

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 5.
10

Bernard D. Blum, 1 ECAB 1 (1947).

4

reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.11
The Board has stated, as a general rule, that off-premises injuries sustained by employees
having fixed hours and place of work, while going to or coming from work, are not compensable
as they do not arise out of and in the course of employment but are merely the ordinary,
nonemployment hazards of the journey itself, which are shared by all travelers.12 Due primarily
to the myriad factual situations presented by individual cases over the years, certain exceptions
to the general rule have developed where the hazards of the travel may fairly be considered a
hazard of the employment. These recognized exceptions are dependent upon the particular facts
and related to situations: (1) where the employment requires the employee to travel on the
highways; (2) where the employer contracts to and does furnish transportation to and from work;
(3) where the employee is subject to emergency calls as in the case of firemen; and (4) where the
employee uses the highway to do something incidental to her employment with the knowledge
and approval of the employer.13
The Board has also recognized the special errand exception to the going to and coming
from work rule. When the employee is to perform a special errand, the employer is deemed to
have agreed, expressly or impliedly, that the employment service should begin when the
employee leaves home to perform the errand. Ordinarily, cases falling within this exception
involve travel which differs in time or route or because of an intermediate stop, from the trip
which is normally taken between home and work. In such a case, the hazard encountered in the
trip may differ somewhat from that involved in normally going to and returning from work.
However, the essence of the exception is not found in the fact that a greater or different hazard is
encountered but in the agreement to undertake a special task. For this reason, coverage is
afforded from the time the employee leaves home, even though in time and route the journey
may be, in part, identical to that normally followed in going to work.14
ANALYSIS
OWCP determined that appellant did not sustain an injury in the performance of duty on
August 29, 2012. The Board finds that this case is not in posture for decision.
The evidence of record establishes that appellant’s injury occurred outside of his normal
work hours and outside of the employing establishment’s premises. As noted, the general
coming and going rule would preclude coverage under FECA for this off-premises injury, unless
appellant can establish an applicable exception.15

11

James E. Chadden, Sr., 40 ECAB 312 (1988).

12

Gabe Brooks, 51 ECAB 184 (1999); Robert F. Hart, 36 ECAB 186, 191 (1984).

13

Joan K. Phillips, 54 ECAB 172 (2002); see also Janet Rorrer, 47 ECAB 764, 768 (1996).

14

Elmer L. Cooke, 16 ECAB 163 (1964); J.H., Docket No. 10-185 (issued July 19, 2010).

15

Id.

5

Appellant’s representative argues that this claim falls within the special errand exception,
contending that appellant’s supervisor sanctioned his coming into work on a day that he was not
scheduled to work. As noted, when the employee is to perform a special errand, the employer is
deemed to have agreed, expressly or impliedly, that an employee is engaged in an employment
service while performing the errand. The Board finds that the evidence in this case is
insufficient to determine the circumstances of appellant’s supervisor asking him to come into
work on his day off. While appellant has submitted statements regarding the route he took to
work and the reason that he was called into work on the date of incident, the employing
establishment has merely indicated that appellant was asked to report to work on that date,
without further elaboration. The Board is unable to make a determination of whether appellant’s
alleged work-related injury falls under an exception to the general coming and going rule, as a
special errand, without further elaboration of the circumstances surrounding the employing
establishment’s calling appellant into work.16
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.17 The Board
notes that the claims examiners did not develop the factual evidence or attempt to ascertain from
the employing establishment the circumstances surrounding the employing establishment’s
request for appellant to come to work that day.
Following this and such further development as is deemed necessary, OWCP shall issue a
de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

16

See D.T., Docket No. 11-751 (issued March 12, 2012) (appellant alleged an exception to the general coming
and going rule by contending he was on a special errand, to take a snow plow to the repair shop, when injured. The
Board found insufficient evidence to establish whether the employing establishment agreed, expressly or impliedly,
to permit appellant to take the postal vehicle off premises for the purpose of having the vehicle repaired. The Board
remanded for further development and a de novo decision on the issue).
17

See L.L., Docket No. 10-16 (issued October 1, 2010); Phillip L. Barnes, 55 ECAB 426 (2004); Horace L.
Fuller, 53 ECAB 775, 777 (2002); James P. Bailey, 53 ECAB 484, 496 (2002); William J. Cantrell, 34 ECAB
1223 (1983).

6

ORDER
IT IS HEREBY ORDERED THAT the April 8, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: February 10, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy 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
__________________________________________
S.A., Appellant
and
U.S. POST OFFICE, PROCESSING &
DISTRIBUTION CENTER, San Antonio, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-1498
Issued: March 11, 2021

Case Submitted on the Record

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

JURISDICTION
On August 12, 2020 appellant filed a timely appeal from a June 1, 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
ISSUE
The issue is whether appellant has met her burden of proof to establish a left little finger
condition causally related to the accepted April 22, 2020 employment incident.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the June 1, 2020 decision, OWCP received additional evidence. 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 April 27, 2020, appellant, then a 67-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 22, 2020 she sustained a left pinky finger injury as a result of
hitting her finger on the door frame of her long life vehicle (LLV) while in the performance of
duty. She did not stop work, but accepted a limited-duty position on April 24, 2020.
In an April 30, 2020 development letter, OWCP informed appellant that it had not received
any evidence in support of her traumatic injury claim. It advised her of the evidence necessary to
establish her claim and requested a narrative medical report from her treating physician containing
a detailed description of findings and a diagnosis, explaining how her work activities caused,
contributed to, or aggravated her medical condition. OWCP afforded appellant 30 days to submit
the necessary evidence. In the same letter, it also informed the employing establishment that, if
she was treated at an employing establishment medical facility for the alleged injury, it must
provide treatment notes. OWCP additionally stated that, although the evidence of record was
insufficient to make a decision regarding appellant’s alleged injury, the employing establishment
should provide her with continuation of pay for up to 45 days.
In a visit summary dated April 22, 2020, Dr. Luke Galindo, a family medicine specialist,
noted that appellant presented with pain in the proximal interphalangeal joint of her small finger
after striking it on a car door. He noted a date of injury of April 22, 2020 and diagnosed displaced
fracture of proximal phalanx of the left little finger; caught, crush, jammed, or pinched between
moving objects; and car as the place of occurrence of the external cause. Dr. Galindo ordered xrays of appellant’s finger and applied a splint.
In a report dated April 23, 2020, Dr. Jeffrey Munoz, a family medicine specialist, noted
that appellant related a history of injuring her left little finger when she inadvertently hit it on an
LLV door frame. Appellant indicated that she was not in her regular vehicle, but rather an older
vehicle that had a height difference when stepping down. She reported that she almost fell due to
the height difference, which caused her to hit her finger on the door frame. On physical
examination, Dr. Munoz noted swelling, redness, and tenderness of the left little finger. He
reviewed x-rays, which revealed a slightly displaced spiral fracture. Dr. Munoz diagnosed a
displaced fracture of the proximal phalanx of the left little finger. He replaced appellant’s splint
and referred her to an orthopedic hand surgeon.
In a duty status report (Form CA-17) of even date, Dr. Munoz diagnosed fracture of the
left little finger and noted a date of injury of April 22, 2020. He provided work restrictions and
cleared appellant for at the station, but not on her route, and that most duties should be performed
with her right hand.
By decision dated June 1, 2020, OWCP accepted that the April 22, 2020 employment
incident occurred as alleged. However, it denied appellant’s traumatic injury claim, finding that
she had not submitted sufficient medical evidence in support of a medical diagnosis causally
related to the accepted April 22, 2020 employment incident. Consequently, OWCP found that she
had not met the requirements to establish an injury as defined by FECA.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 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,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
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. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 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.9
ANALYSIS
The Board finds that this case is not in posture for decision.
Dr. Galindo, in his April 22, 2020 note, indicated that appellant injured her small finger
when she struck it on a car door on that same day. He diagnosed a displaced fracture of the
proximal phalanx of the left little finger. Likewise, in Dr. Galindo’s report dated April 23, 2020,
Dr. Munoz noted that appellant injured her left little finger when she inadvertently hit it on an LLV
3

Supra note 1.

4

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).
5

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).
6
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).
7

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).
8

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).
9

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

door frame while in the performance of duty. Dr. Galindo examined her, reviewed x-rays, and
diagnosed a displaced fracture of the proximal phalanx of the left little finger. Additionally, in his
Form CA-17 of even date, Dr. Munoz again diagnosed a fracture of the left little finger and noted
a date of injury of April 22, 2020. Therefore, the Board finds that the evidence of record
establishes a diagnosed medical condition.
However, OWCP has not reviewed the medical evidence of record. As the medical
evidence of record establishes a diagnosed medical condition, the case must be remanded for
consideration of the medical evidence with regard to the issue of causal relationship. Following
this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish a diagnosed medical
condition. The Board further finds, however, that the case is not in posture for decision as to
whether her diagnosed condition is causally related to the accepted April 22, 2020 employment
incident.

4

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 11, 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

5