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

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-459
Issued: May 8, 2007

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 April 16, 2007 appellant filed a timely appeal of the November 24, 2006 merit
decision of the Office of Workers’ Compensation Programs which modified a prior schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of appellant’s claim for a schedule award.
ISSUE
The issue is whether appellant has greater than 50 percent impairment of the lungs.
FACTUAL HISTORY
Appellant, a 68-year-old retired plasterer, has an accepted occupational disease claim for
lung cancer and severe restrictive and obstructive lung disease which arose on or about
January 16, 1998. He filed a claim for a schedule award on March 31, 2005. Dr. Samuel V.
Spagnolo, a district medical adviser, reviewed the case record. In a report dated September 17,
2005, he found that appellant had a Class 4 respiratory impairment, for which he assigned 50

percent impairment of the whole person.1 Dr. Spagnolo also indicated that appellant reached
maximum medical improvement in February 2005.
On April 14, 2006 the Office granted appellant a schedule award for “100 [percent]
bilateral lung.” The April 14, 2006 decision further indicated that the schedule award was for
312 weeks’ compensation and the period of the award covered February 1, 2005 to
January 28, 2008.
On June 16, 2006 appellant, with the assistance of counsel, requested reconsideration.
Counsel noted that, while the award purported to be for a period of 312 weeks (6 years), the
payout period of February 1, 2005 to June 28, 2008 covered only three years.
On November 24, 2006 the Office issued another schedule award decision which
superceded the April 14, 2006 award.2 The November 24, 2006 decision identified a “Class 4,
50 [percent] whole person” impairment of the lungs. The decision also indicated that appellant
was entitled to only 156 weeks of compensation (50 [percent] x 312 weeks).
LEGAL PRECEDENT
The Federal Employees’ Compensation Act and the implementing regulation set forth the
number of weeks of compensation to be paid for the permanent loss of use of specified members,
functions and organs of the body.3 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.4 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).5
ANALYSIS
Appellant’s counsel correctly argues that a Class 4 respiratory disorder, which
Dr. Spagnolo found, represents impairment in excess of 50 percent. According to Table 5-12 of
1

Dr. Spagnolo is Board-certified in internal medicine, with a subspecialty in pulmonary disease.

2

In the interim period, the Office erroneously issued a November 7, 2006 decision, which it appropriately set
aside in the November 24, 2006 schedule award decision.
3

5 U.S.C. § 8107(c) (2000); 20 C.F.R. § 10.404 (2006). For total, or 100 percent loss of use of a lung, an
employee shall receive 156 weeks of compensation. 20 C.F.R. § 10.404(a). However, schedule awards for
respiratory impairment are based on the loss of use of both lungs and the percentage for the particular class of whole
person respiratory impairment will be multiplied by 312 weeks (twice the award for loss of function of one lung) to
obtain the number of weeks payable. Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.4(c)(1) (March 2005).
4

20 C.F.R. § 10.404.

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

2

the A.M.A., Guides 107, a Class 4 respiratory disorder represents a “51 [percent [to] 100
[percent]” impairment of the whole person. A Class 4 rating is appropriate where pulmonary
function testing reveals a forced vital capacity (FVC) that is less than or equal to (≤) 50 percent
of the predicted value. Alternatively, a measured forced expiratory volum (FEV1) that is less
than or equal to (≤) 40 percent of predicted also qualifies as a Class 4 respiratory disorder.6
Dr. Spagnolo found a Class 4 respiratory impairment based on a qualifying pulmonary
function study administered on October 15, 2004. Both the FVC and FEV1 values fall within the
applicable range for a Class 4 respiratory disorder under Table 5-12.7 While Dr. Spagnolo
correctly found a “Class 4” respiratory disorder, he mistakenly assigned only “50 [percent]
impairment of the whole person.” Because the Office medical adviser’s impairment rating is not
entirely consistent with the A.M.A., Guides (5th ed. 2001), it cannot form the basis of a schedule
award. Accordingly, the case is remanded to the Office to obtain clarification from the district
medical adviser regarding where appellant’s particular Class 4 respiratory disorder falls within
the “51 [percent to] 00 [percent]” whole person impairment range identified under Table 5-12.8
After such further development of the record the Office shall issue a de novo decision concerning
appellant’s entitlement to a schedule award.
CONCLUSION
The Board finds the case is not in posture for decision.

6

A.M.A., Guides 107, Table 5-12.

7

The measured FVC of 2.32 was 42 percent of the predicted value under Table 5-2a, A.M.A., Guides 95. The
FEV1 value of 1.23 was 30 percent of the predicted value under Table 5-4a, A.M.A., Guides 97.
8

Table 5-12, A.M.A., Guides 107. The district medical adviser’s supplemental report should include appropriate
rationale justifying the percentage impairment assigned.

3

ORDER
IT IS HEREBY ORDERED THAT the November 24, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: May 8, 2007
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New York, NY, Employer
__________________________________________

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Appearances:
Anthony A. Lenza, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-0619
Issued: September 28, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 24, 2014 appellant, through counsel, filed a timely appeal from a
December 19, 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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
medical and wage-loss compensation benefits effective December 6, 2012, finding that she no
longer had any residuals or disability causally related to her accepted April 15, 2012
employment-related injuries; and (2) whether appellant established continuing employmentrelated residuals or disability after December 6, 2012 as a result of her accepted April 15, 2012
employment injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 15, 2012 appellant, then a 31-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on April 15, 2012 she sustained a right shoulder and back injury when
attempting to move a bed by pulling the handrail. By decision dated June 14, 2012, OWCP
accepted the claim for sprain of neck, sprain of back thoracic region, right shoulder sprain and
right upper arm sprain. Appellant sought medical treatment and stopped work. She received
wage-loss compensation and was placed on periodic rolls beginning June 17, 2012.
In a May 10, 2012 diagnostic report, Dr. Robert Schepp, a Board-certified diagnostic
radiologist, reported that a magnetic resonance imaging (MRI) scan of the right shoulder
revealed a partial tear of the distal supraspinatus tendon. Appellant also underwent an x-ray of
the cervical and thoracic spine on May 10, 2012 and an MRI scan of the cervical spine on
July 5, 2012.
By report dated June 24, 2012, Dr. John C. L’Insalata, a treating physician, diagnosed
cervical strain with possible plexopathy verses radiculopathy and shoulder sprain with
impingement and multidirectional instability.
In a July 31, 2012 report, Dr. Dorothy Norwood, a treating physician, reviewed an MRI
scan of the cervical spine and right shoulder, and an electromyography (EMG) study of both
upper extremities. She noted that the MRI scan of the right shoulder revealed some rotator cuff
tendinosis without a discrete tear. Dr. Norwood stated that appellant’s right shoulder sprain
symptoms were not compatible with the clinical studies and findings. She recommended an MRI
scan of the brachial plexus and found that appellant could return to light-duty work.
A study dated August 9, 2012 from Dr. Robert Diamond, a Board-certified diagnostic
radiologist, reported that an MRI scan of the brachial plexus revealed no abnormalities.
In an August 15, 2012 report, Dr. Igor Stiler, a Board-certified neurologist, reported that
appellant had decreased range of motion in her spine and shoulder compared to her July 12, 2012
examination. He noted that she could return to work at limited duty, restricting use of her right
upper extremity.
By report dated August 15, 2012, Dr. Joseph Giovinazzo, a Board-certified orthopedic
surgeon, reported that he reviewed the MRI scan of appellant’s right shoulder. He could not see
a tear even though the report noted a partial rotator cuff tear. He opined that she was temporarily
disabled and unable to work.
On August 30, 2012 OWCP referred appellant, a statement of accepted facts (SOAF) and
the case file to Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, for a second opinion
medical examination to establish the nature and extent of disability. In a September 19, 2012
report, Dr. Lakin provided findings on physical examination, a summary of appellant’s past
medical reports, and a history of the April 15, 2012 employment injury. He reviewed her
diagnostic studies and agreed with the findings of the radiologist with respect to the May 10,
2012 MRI scan of the right shoulder which found a partial tear of the distal supraspinatus tendon.
Dr. Lakin noted that appellant’s physical examination revealed minimal tenderness of the
cervical spine and upper right arm. He opined that she was not suffering from any disabling
2

injuries due to sprains of the upper right arm, right shoulder, neck and thoracic spine. Dr. Lakin
stated that appellant’s accepted conditions had resolved and the claim should not be expanded to
include other conditions. He found that she was able to return to full-duty work without
restrictions and was not suffering from other conditions which would prevent her from working
full time.
On October 15, 2012 OWCP notified appellant of its proposal to terminate her
compensation benefits based on Dr. Lakin’s opinion. It provided her 30 days to submit
additional information if she disagreed.
In support of her claim, appellant submitted medical reports including notes from a
physician assistant, treatment and disability notes from Dr. Walter F. Pizzi, a Board-certified
surgeon, providing appellant with limited-duty restrictions, and the September 24, October 25
and November 5, 2012 notes from Dr. Kenneth Chapman, a Board-certified anesthesiologist with
a subspecialty in pain medicine, administering cervical epidural steroid injections for treatment
of her cervical disc disorder and cervical radiculopathy.
Appellant also submitted a July 17, 2012 nerve conduction and EMG study from
Dr. Stiler. He noted no evidence of cervical radiculopathy or peripheral neuropathy in the upper
extremities. In medical reports dated October 3 and November 21, 2012, Dr. Stiler reported that
she could return to light-duty work with restrictions.
In September 26 and November 8, 2012 medical reports, Dr. Giovinazzo reported that an
MRI scan /magnetic resonance arthrogram (MRA) scan revealed strain of the deltoid with no
tears. He stated that appellant could return to light-duty work.
By decision dated December 6, 2012, OWCP terminated appellant’s medical and
wage-loss compensation benefits effective that day. It found that the weight of the medical
evidence rested with Dr. Lakin, who determined that she did not continue to have any residuals
or disability due to her accepted work-related conditions.
On February 13, 2013 appellant requested an oral hearing before the Branch of Hearings
and Review.
By decision dated March 20, 2013, the Branch of Hearings and Review denied
appellant’s request for a hearing finding that it was not made within 30 days of the December 6,
2012 OWCP decision. The Branch of Hearings and Review further determined that the issue in
the case could equally well be addressed by requesting reconsideration from OWCP and
submitting evidence not previously considered which established that she continued to suffer
from residuals of her April 15, 2012 injury.
By letter dated March 27, 2013, counsel argued that the hearing request was timely filed
because the decision with appeal rights was not mailed to his office or appellant until
January 31, 2013.
By letter dated April 1, 2013, appellant requested reconsideration of the
December 6, 2012 decision. She argued that she had been misdiagnosed and that surgery on

3

March 11, 2013 revealed a labral tear which did not appear on the previously obtained MRI scan
or arthrogram.
Appellant also submitted disability notes from Dr. Pizzi restricting her to limited duty and
notes from Dr. Chapman documenting treatment of epidural steroid injections. A February 20,
2013 vocational assessment evaluation reported that she was unemployable for the next several
years.
In a January 24, 2013 report, Dr. Irving Friedman, a Board-certified neurologist,
examined appellant and noted that she injured her shoulder on April 15, 2012 when a bedside rail
came off at work. He provided findings on physical examination, reviewed past medical reports
and summarized the diagnostic studies. Dr. Friedman noted that a September 18, 2012 MRI scan
of the right shoulder revealed anterior deltoid muscle belly grade 1 strain, no rotator cuff tear,
minimal stretching of the intracapsular portion and mild flattening of the posterior/superior
labrum without discrete tear. He diagnosed chronic post-traumatic right shoulder syndrome with
partial tear supraspinatus and effusion, chronic post-traumatic right shoulder arthropathy with
marked restricted range of motion, post-traumatic cervical myofascitis/spasm with right-sided
radiculopathy and right deltoid grade 1 strain. Dr. Friedman opined that appellant’s conditions
were directly related to the injuries sustained on April 15, 2012 when she became, and continued
to be, acutely symptomatic. He further opined that she was partially disabled as a result of her
right upper extremity, right shoulder and cervical spine conditions and could not return to work
as a nurse due to extreme limited usefulness of the right upper extremity.
In a March 5, 2013 report, Dr. Armin M. Tehrany, a Board-certified orthopedic surgeon,
reported that appellant injured her right shoulder about 11 months prior and had been treated
with epidural shots, cortisone injections and physical therapy with no improvement. His review
of diagnostic testing revealed disc bulges in the cervical spine. An MRI scan of the right
shoulder revealed small partial cuff tear and an MRI scan revealed potential changes in the
labrum. Dr. Tehrany diagnosed missed right shoulder labral tear and subtle capsular redundancy.
He recommended diagnostic arthroscopy of the right shoulder.
In a March 11, 2013 report, Dr. Tehrany provided a preoperative diagnosis of instability
with labral tears of the right shoulder. He provided a postoperative diagnosis of instability with
labral tears right shoulder plus superior labral tear from anterior to posterior (SLAP) lesion and
bursitis. Appellant underwent right SLAP repair, capsular plication and bursectomy. The
surgery was not approved by OWCP.
OWCP found a conflict of medical opinion between Dr. Tehrany, Dr. Friedman, and
Dr. Stiler, appellant’s treating physicians, and Dr. Lakin as the second opinion physician. It
referred appellant, a statement of accepted facts, the case file, a medical conflict statement and a
series of questions to Dr. Alan M. Crystal, a Board-certified orthopedic surgeon, for an impartial
referee medical examination to resolve the conflict.
In a July 15, 2013 report, Dr. Crystal noted that appellant’s right shoulder sprain, sprain
of the neck, and thoracic spine were accepted as a result of the April 15, 2012 employment
incident of pulling a bed and breaking off a bedrail. He noted that clinical examination of the
right shoulder revealed slightly decreased active range of motion, but was sufficient to be
deemed functional for activities of daily living and work as appellant’s complaints were
4

subjective. Dr. Crystal noted that due to the alleged SLAP Type 2 legion and surgery performed
for alleged shoulder instability, a slight decrease in range of motion may persist. He stated that
there were no objective findings related to the sprain of the neck and no objective findings or
subjective complaints related to the thoracic sprain. Dr. Crystal found that the neck sprain and
thoracic sprain had resolved. He stated that the right shoulder sprain waned due to corrective
surgery. Dr. Crystal noted that the accepted condition of right shoulder sprain was a vague
diagnosis and became a right shoulder SLAP Type 2 lesion with anterior and posterior shoulder
instability after surgery. He noted that surgery corrected the SLAP Type 2 lesion and the alleged
shoulder instability. Dr. Crystal noted that appellant had borderline diabetes which was
secondary to her polycystic ovaries and could cause shoulder stiffness. He advised that she was
capable of working full duty based on Dr. Lakin’s evaluation presurgery and was also currently
capable of working full-duty after her right shoulder surgery. Dr. Crystal recommended no
further medical treatment.
By decision dated August 16, 2013, OWCP affirmed the December 6, 2012 decision. It
found that the medical evidence failed to establish that appellant remained disabled as a result of
the accepted April 15, 2012 work injury.
On September 9, 2013 appellant requested reconsideration of the decision. She argued
that her SLAP tear and brachial plexus injury were work related and that she required light-duty
work. Appellant noted that she recently obtained a consult from Dr. Vincent G. Fietti, a Boardcertified orthopedic surgeon, who had provided this opinion. By letter of the same date, counsel
argued that appellant was entitled to an oral hearing as the request was timely filed.
In a July 10, 2013 report, Dr. Fietti reviewed appellant’s prior medical reports and
diagnostic studies and provided findings on physical examination. He provided a summary of
the diagnostic studies and treatment obtained as a result of her April 15, 2012 work injury.
Dr. Fietti noted that, despite treatment over the course of the prior year, appellant’s symptoms
persisted warranting a surgical consultation with Dr. Tehrany on March 5, 2013. Appellant
favored an arthroscopic evaluation of her right shoulder which was performed on
March 11, 2013. The operative note indicated findings of micro tears of both anteroinferior and
posteroinferior glenoid labrums, a SLAP Type 2 lesion, and bursitis. Capsular placations and
labral repairs were performed and appellant continued with physical therapy postoperation.
Dr. Fietti reported that appellant sustained an injury to her right upper extremity and neck
in April 2012 which caused a right brachial plexopathy and right shoulder injury. Orthopedic
evaluation showed a deformity to the glenoid labrum which, on arthroscopic examination,
proved to be tears in the anterior and posterior aspects of the labrum, both of which were
repaired. In addition, the shoulder capsule was felt to be enlarged resulting in instability and a
capsular placation was performed. Dr. Fietti opined that appellant’s tears of the right shoulder
labrum, instability of the right shoulder and traction neuropathy to her brachial plexus were a
direct consequence of her April 15, 2012 employment accident. He concluded that she was
totally disabled from her previous employment but could perform light-duty work.
In a September 25, 2013 report, Dr. Norwood stated that appellant suffered from
persistent right upper extremity weakness after surgical repair of the labral tears. She opined that
appellant was capable of returning to work on a light-duty status. Appellant also submitted

5

treatment notes from Dr. Tehrany previously of record, as well as physician assistant notes
documenting her treatment postsurgery.
By decision dated December 19, 2013, OWCP affirmed the August 16, 2013 decision
finding that the medical evidence failed to establish continuing disability as a result of the
April 15, 2012 employment incident.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.3
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.4 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.5 OWCP’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.6
For conditions not accepted by OWCP as being employment related, it is the employee’s
burden to provide rationalized medical evidence sufficient to establish causal relation, not
OWCP’s burden to disprove such relationship.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a sprain of neck, sprain of back thoracic region,
right shoulder sprain, and right upper arm sprain as a result of the April 15, 2012 employment
incident. The issue is whether OWCP properly terminated her medical and wage-loss
compensation benefits effective December 6, 2012 as she was not experiencing any residuals or
disability of the April 15, 2012 injuries. The Board finds that OWCP properly terminated
appellant’s medical and wage-loss benefits.
In its termination decision, OWCP determined that the weight of the medical evidence
rested with Dr. Lakin, a Board-certified orthopedic surgeon serving as the second opinion
2

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

3

Id.

4

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

5

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

6

T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 351 (1975).

7

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).

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physician. The Board finds that Dr. Lakin’s well-rationalized report, which was based upon a
proper factual and medical background, represents the weight of the medical evidence and
establishes that appellant’s right shoulder sprain, sprain of neck, and thoracic sprain ceased and
she was no longer experiencing residuals or disability related to the April 15, 2012 employment
incident.8
In his September 19, 2012 medical report, Dr. Lakin reviewed past medical reports,
summarized diagnostic findings, and provided findings on physical examination. He stated that
the sprains to the right shoulder and upper arm, neck, and thoracic back had resolved and
appellant was no longer suffering from the disabling April 15, 2012 work-related injuries.
The Board has carefully reviewed the opinion of Dr. Lakin and finds that it has
reliability, probative value, and convincing quality with respect to its conclusions regarding the
relevant issue in the present case.9 Dr. Lakin’s opinion is based on a proper factual and medical
history and he thoroughly reviewed the SOAF and medical records.10 He provided medical
rationale for his opinion by explaining that appellant’s sprains had resolved as evidenced by her
clinical examination and radiograph studies. Dr. Lakin further explained that appellant was
neurologically intact with no evidence of peripheral nerve entrapment. He provided a thorough
explanation that appellant’s disability had ceased explaining that she did not sustain any
additional injuries as a result of the April 15, 2012 employment incident which would warrant
expanding the claim and thus, could resume full-duty work without restrictions. Dr. Lakin’s
opinion is entitled to special weight and establishes that appellant was no longer experiencing
residuals or disability related to the April 15, 2012 employment incident.11
The Board notes that the most recent reports contemporaneous with the termination of
appellant’s benefits were provided by Dr. Giovinazzo, dated September 26 and
November 8, 2012. Dr. Giovinazzo reported that an MRI/MRA scan revealed strain of the
deltoid with no tears and released appellant to light-duty work. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.12 While these reports provided a
diagnosis of deltoid strain, the physician failed to provide any opinion that appellant was
experiencing residuals or disability as a result of her accepted April 15, 2012 injuries.13
The remaining medical evidence of record is also insufficient to establish employmentrelated disability. Dr. Pizzi’s disability notes provided appellant with limited-duty restrictions
yet failed to discuss a diagnoses and cause of ongoing disability. Dr. Chapman’s reports dated
September 24 through November 5, 2012 only noted treatment for cervical disc disorder and
8

Y.M., Docket No. 14-1050, 14-1193 (issued December 24, 2014).

9

See R.W., Docket No. 12-375 (issued October 28, 2013).

10

See Melvina Jackson, 38 ECAB 443 (1987).

11

A.H., Docket No. 13-266 (issued October 24, 2013).

12

S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 (issued May 12, 2010).

13

J.H., Docket No. 12-1848 (issued May 15, 2013).

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cervical radiculopathy with no discussion of the cause of these conditions. The diagnostic
reports interpreted imaging studies with no further explanation establishing a firm medical
diagnosis and causal relationship. The opinion of a physician supporting causal relationship
must rest on a complete factual and medical background supported by affirmative evidence,
address the specific factual and medical evidence of record, and provide medical rationale
explaining the relationship between the diagnosed condition and the established incident or
factor of employment.14 The physicians failed to provide sufficient medical rationale explaining
how appellant remained disabled as a result of the April 15, 2012 employment injuries.15
The Board further notes that the initial medical reports of record do not discuss
appellant’s disability as of December 6, 2012. The May 12, 2012 report from Dr. Schepp, the
June 24, 2012 report from Dr. Insalata, the July 31, 2012 report from Dr. Norwood, the August 9,
2012 report from Dr. Diamond, and the August 15, 2012 report from Dr. Stiler, provide
diagnostic impressions but did not address appellant’s disability status as of December 6, 2012.
For this reason, the Board finds that these reports are of limited probative value regarding the
current issue.
The Board finds that Dr. Lakin’s opinion constitutes the weight of the medical evidence
and is sufficient to justify OWCP’s termination of benefits for the accepted conditions. The
Board also notes that there are no reports from appellant’s treating physicians establishing
employment-related disability or supporting any continuing residuals of the accepted conditions.
Because appellant no longer has residuals or disability related to her accepted employment
conditions, OWCP properly terminated entitlement to compensation and medical benefits
effective December 6, 2012.16 Accordingly, OWCP met its burden of proof and its decision to
terminate her compensation and medical benefits shall be affirmed.17
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden of reinstating compensation shifts to the claimant. To prevail,
the claimant must establish by the weight of the reliable, probative, and substantial evidence that
she had an employment-related disability, which continued after the termination of benefits.18
Under FECA,19 the term disability is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.20 Whether a
particular injury causes an employee to be disabled and the duration of that disability are medical
14

See Lee R. Haywood, 48 ECAB 145 (1996).

15

W.F., Docket No. 12-479 (issued November 27, 2012); Dean E. Pierce, 40 ECAB 1249 (1989).

16

G.I., Docket No. 13-19 (issued April 2, 2013).

17

L.C., Docket No. 12-1177 (issued August 19, 2013).

18

See E.J., 59 ECAB 695 (2008).

19

5 U.S.C. §§ 8101-8193.

20

See Prince E. Wallace, 52 ECAB 357 (2001).

8

issues which must be proved by a preponderance of the reliable, probative, and substantial
medical evidence.21
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination. When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.22
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established continuing residuals or disability after
December 6, 2012 as a result of her accepted April 15, 2012 employment injuries.
Subsequent to OWCP’s December 6, 2012 termination of benefits decision, appellant
submitted additional medical evidence in support of her claim for continued disability
compensation as a result of residuals or disability causally related to the accepted April 15, 2012
injury. While OWCP accepted appellant’s claim for right shoulder sprain, sprain of neck and
thoracic sprain, her additional right shoulder conditions, including right shoulder labral tears,
were discovered only upon a March 11, 2013 arthroscopic evaluation, performed by
Dr. Tehrany, despite having previously undergone numerous medical evaluations and various
diagnostic testing since the onset of her initial April 15, 2012 injury.
Based on the evidence submitted, OWCP found a conflict of medical opinion between
Drs. Tehrany, Friedman, and Stiler, appellant’s treating physicians, and Dr. Lakin, the second
opinion physician. It referred appellant to Dr. Alan M. Crystal, a Board-certified orthopedic
surgeon, for an impartial referee medical examination to resolve the conflict.
In a July 15, 2013 report, Dr. Crystal noted that appellant’s right shoulder sprain, sprain
of the neck, and thoracic spine were accepted as a result of the April 15, 2012 employment
incident of pulling a bed and breaking off a bedrail. He noted that clinical examination of the
right shoulder revealed slightly decreased active range of motion, but was sufficient to be
deemed functional for activities of daily living and work as appellant’s complaints were
subjective. Dr. Crystal noted that, due to the alleged SLAP Type 2 legion and surgery performed
for alleged shoulder instability, a slight decrease in range of motion may persist. He stated that
there were no objective findings related to the sprain of the neck and no objective findings or
subjective complaints related to the thoracic sprain. Dr. Crystal found that the neck sprain and
thoracic sprain had resolved. He stated that the right shoulder sprain waned due to corrective
surgery. Dr. Crystal noted that the accepted condition of right shoulder sprain was a vague
diagnosis and became a right shoulder SLAP Type 2 lesion with anterior and posterior shoulder
instability after surgery. He noted that surgery corrected the SLAP Type 2 lesion and the alleged
shoulder instability. Dr. Crystal noted that appellant had borderline diabetes which was
secondary to her polycystic ovaries and could cause shoulder stiffness. He advised that she was
21

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

22

See Manuel Gill, 52 ECAB 282 (2001).

9

capable of working full duty based on Dr. Lakin’s evaluation presurgery and was also currently
capable of working full duty after her right shoulder surgery. Dr. Crystal recommended no
further medical treatment.
The Board finds that, under the circumstances of this case, the opinion of Dr. Crystal is
well rationalized and based upon a proper factual background such that it is entitled to special
weight and establishes that appellant’s work-related condition has ceased.23
On reconsideration, appellant submitted a report of Dr. Fietti dated July 10, 2013, in
which he opined that appellant was disabled from her previous employment, but could perform
light-duty work. Appellant also submitted a September 25, 2013 report of Dr. Norwood in which
she opined that appellant was capable of returning to work on a light-duty status. However,
these reports of Drs. Fietti and Norwood are repetitive relative to their prior reports and are
insufficient to overcome the opinion of Dr. Crystal or to create a new medical conflict.24
Appellant, therefore, has not met her burden of proof to establish continuing residuals or
disability after December 6, 2012. Appellant may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective December 6, 2012. The Board further finds that appellant has
not established that she continues to suffer from employment-related residuals or disability as a
result of her accepted April 15, 2012 employment injuries.

23

Aubrey Belnavis, 37 ECAB 206 (1985).

24

See Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy Sidwell, 41 ECAB 857 (1990).

10

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.25
Issued: September 28, 2015
Washington, DC

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

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

25

Michael E. Groom, Alternate Judge, participated in the preparation of the decision but was no longer a member
of the Board effective December 27, 2014.

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Fayetteville, GA, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Jim C. Gordon, Jr., Esq., for the Director

Docket No. 14-453
Issued: November 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 23, 2013 appellant, through her attorney, filed a timely appeal from a
November 21, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).1

1

On July 29, 2014 OWCP failed a motion to dismiss the appeal and cancel an oral argument. In an order dated
August 29, 2014, the Board granted that portion of the Director’s motion to cancel oral argument. Order Granting
Cancellation of Oral Argument, Docket No. 14-453 (issued August 29, 2014).

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.3
ISSUE
The issue is whether appellant sustained an emotional condition as a consequence of her
accepted December 10, 2001 employment-related injuries.
FACTUAL HISTORY
This case has previously been before the Board. In a December 13, 2010 decision,4 the
Board affirmed OWCP’s December 15, 2009 decision denying appellant’s November 16, 2009
request for reconsideration because it was not timely filed and did not establish clear evidence of
error. The Board found that the newly submitted medical reports of Dr. Brian Teliho, a Boardcertified psychiatrist and OWCP referral physician and Dr. Harold H. Alexander, a Boardcertified orthopedic surgeon and an OWCP referral physician, did not raise a substantial question
as to the correctness of OWCP’s determination that appellant’s total disability during the claimed
period was not causally related to her accepted December 10, 2001 employment injuries. In a
May 20, 2014 decision,5 the Board affirmed OWCP’s December 6, 2012 decision finding that
appellant had not established total disability from August 23, 2006 to January 24, 2012 due to
her December 10, 2001 work injuries. The Board also affirmed its March 7, 2013 decision
finding that appellant had not established a recurrence of disability on November 18, 2004
causally related to the same accepted injuries. The facts and circumstances as set forth in the
prior decisions are hereby incorporated by reference. The relevant facts are set forth.
OWCP accepted that on December 10, 2001 appellant, then a 43-year-old rural carrier
associate, sustained employment-related right wrist sprain and strain and temporary aggravation
of a right carpal tunnel fracture. Following these injuries, appellant returned to work in a
2

5 U.S.C. § 8101 et seq.

3

In its July 29, 2014 Motion to Dismiss and Cancel Oral Argument, OWCP asserted that the November 21, 2013
Branch of Hearings and Review’s decision (affirming OWCP’s December 18, 2012 decision) had been issued
erroneously while the same matter was pending before the Board, citing 20 C.F.R. § 501.2(c)(3). It argued that the
issue in the November 21, 2013 OWCP decision was the same issue appealed to the Board on April 17, 2013 in
Docket No. 13-1172 (issued May 20, 2014); i.e., whether appellant had established that her preexisting emotional
condition was related to her accepted employment-related injuries. The Board disagrees and finds that it has
jurisdiction over the November 21, 2013 decision as it is a direct appeal from OWCP’s only decision denying
appellant’s request for expansion of her claim to include an emotional condition. Although the emotional condition
issue was addressed tangentially in OWCP’s December 6, 2012 and March 7, 2013 decisions, the Board specifically
noted in its May 20, 2014 affirmance of those decisions: “In a December 18, 2012 decision, OWCP found that the
medical evidence was insufficient to establish that appellant’s emotional condition was caused or contributed to by
her December 10, 2001 work injuries. The Board notes that this consequential injury claim will be addressed
separately under Docket No. 14-453.” Accordingly, the Motion to Dismiss is denied. See B.G., Docket No. 14-439
(issued August 7, 2014); B.G.; Docket No. 14-6 (issued March 21, 2014); Leon Hayes, Docket No. 94-2292 (issued
January 15, 1997). Cf., Douglas E. Billings, 41 ECAB 880 (1990).
4

Docket No. 10-896 (issued December 13, 2010).

5

Docket No. 13-1172 (issued May 20, 2014).

2

modified clerk position on July 8, 2004. On September 14, 2004 she stopped work. On
September 3, 2008 OWCP granted appellant a schedule award for 19 percent impairment of the
right arm.
By letter dated February 22, 2012, counsel requested that OWCP expand appellant’s
claim to include an exacerbation of her preexisting psychiatric condition by the accepted
employment injuries.
In a March 5, 2012 one-page report, Dr. Olufemi A. Taiwo, an attending Board-certified
psychiatrist, advised that appellant had a severe depressive episode of bipolar disorder with
psychosis and a generalized anxiety disorder on Axis I. Appellant had a long history of
psychiatric illness, but her current chronic and severe emotional problems were triggered by her
December 2001 work-related physical injuries and affected her family, occupational and social
functioning. She required intensive psychiatric, psychological, family and social services to
function appropriately. Dr. Taiwo concluded that appellant could not perform any work-related
activity as this would cause her conditions to decompensate. He concluded that she was
emotionally fragile, had significant cognitive difficulties and lacked appropriate job-related
coping skills to perform any work-related activity.
In a December 18, 2012 decision, OWCP found that the medical evidence was
insufficient to establish that appellant’s emotional condition was caused or contributed to by her
December 10, 2001 work injuries.
By letter dated December 31, 2012, appellant, through her attorney, requested a telephone
hearing before an OWCP hearing representative.
In encounter notes dated October 13, 2004 to April 24, 2008, Dr. Taiwo noted appellant’s
current symptoms of sadness, withdrawal, anhedonia, hallucinations, nervousness, excessive
worry and concern about going back to work and wrist pain. He listed findings on mental
examination and addressed her therapy. Dr. Taiwo diagnosed Bipolar I Disorder, severe
depression with psychosis, anxiety disorder not otherwise specified and schizoaffective disorder
on Axis I, an occupational problem on Axis IV and current global assessment of functioning
scores from 10 to 82 on Axis V. He deferred a diagnosis on Axis II and found no diagnosis on
Axis III.
In reports dated November 4, 2004 to January 9, 2006, Dr. Randall C. Berinhout, a
Board-certified anesthesiologist, obtained a history that appellant’s right wrist and hand pain
began on December 10, 2001. He set forth a history of her medical treatment, family and social
background. Dr. Berinhout listed findings on physical examination and diagnosed neuropathic
pain in the wrist secondary to a failed surgical procedure, failed wrist surgery, depression and
anxiety, history of bipolar disorder, insomnia with some depression secondary to personal
emotional problems, deconditioning of the right wrist and hand and cervical radiculopathy.
In duty status reports (Form CA-17) dated June 13, 2006 to February 15, 2007, Steven
Marrison, Ph.D., a clinical psychologist, provided a history that appellant sustained a sprained
wrist on December 10, 2001. He diagnosed major depression and stated that she had a disabling

3

right wrist injury. Dr. Marrison listed appellant’s restrictions and stated that she was advised not
to resume work. He stated that she could not perform the described regular work duties.
In an October 31, 2007 narrative report, Dr. Marrison noted that appellant had recently
been disoriented with agitation, loss of energy and confusion. It appeared that appellant
accidentally stopped taking some of her medication which had been corrected through a visit
with Dr. Taiwo. Dr. Marrison stated that she appeared quite shaky at the beginning of their
meeting. Much of the time was spent assisting appellant with getting herself under better
control. She was instructed to continue to practice the behavioral strategies utilized on that day
with follow-up in one week.
In a March 28, 2008 letter, Dr. Marrison stated that he reviewed Dr. Teliho’s report and
agreed that appellant had a psychiatric disorder predating her December 10, 2001 employment
injuries.6 He began treating appellant on September 20, 2004. Dr. Marrison stated that the
damaged nerve in her wrist and subsequent medical treatment has had disastrous consequences
for her psychiatrically due to chronic pain. He obtained a history that appellant had suffered
from bipolar disorder and depressive, hypomanic and manic episodes most of her adult life.
Dr. Marrison stated that, prior to her work-related injury, she was quite capable of functioning
adequately as an adult at work and in other aspects of psychosocial functioning with only brief
episodes of depression or hypomania usually lasting less than one week that interfered with work
related and other mental functioning. He identified severe wrist pain and loss of functioning as
two stressors that aggravated appellant’s bipolar disorder. Dr. Marrison noted that severe life
stressors, including divorce and rape caused only temporary losses of functional status, but the
work injury was unrelenting and, thus, made it more difficult for her to psychologically recover.
At the time of appellant’s evaluation with Dr. Teliho, she was in temporary partial remission
from her bipolar disorder. Apparently, Dr. Teliho focused exclusively on her mental functioning
during her one-time visit when she was between episodes and thus relatively free of symptoms.
He did not investigate her level of mental functioning over time.
Dr. Marrison noted appellant’s symptoms which included incidents of loss of
concentration and diagnosed severe recurrent major depressive episodes with psychotic features.
He advised that given the severity of symptoms and duration and frequency of these episodes of
deterioration in her mental functional status, she was clearly not capable of sustaining any
regularly scheduled work. Dr. Marrison stated that Dr. Teliho failed to take into account that
appellant’s wrist surgery, which failed to relieve her pain from the damaged nerve, her chronic
pain and limited use of her dominant right hand had severely aggravated her bipolar disorder,
such that the frequency and duration of her severe depressive and manic episodes totally
precluded her from sustaining regular employment. He concluded that there was no evidence of
symptom magnification or malingering.

6

In an August 17, 2006 report, Dr. Teliho found that appellant most likely had underlying personality disorder
symptoms which included depression and anxiety. He opined that her preexisting emotional condition was likely
exacerbated by her December 10, 2001 employment injuries, but that the degree of her anxiety, which included
auditory hallucinations, was not directly caused by her accepted injuries. Dr. Teliho advised that appellant could
return to part-time work as a mail carrier with restrictions related to her employment injuries.

4

In an April 24, 2008 report, Dr. Jerry W. Bush, a Board-certified internist, obtained a
history of the December 10, 2001 employment injuries and appellant’s medical, family and
social background. He reviewed her medical records and noted that she complained about
depression and anxiety. Dr. Bush reported findings on physical, neurologic and mental
examination. He diagnosed avascular necrosis of the right wrist, depression and anxiety. Based
on the available information and his examination, Dr. Bush advised that appellant had mild-tomoderate impairment with work restrictions.
In a November 21, 2013 decision, OWCP found that the medical evidence was
insufficient to establish that appellant sustained an emotional condition as a consequence of her
accepted work injuries.
LEGAL PRECEDENT
With respect to consequential injuries, it is an accepted principle of workers’
compensation law that, when the primary injury is shown to have arisen out of and in the course
of employment, every natural consequence that flows from the injury is deemed to arise out of
the employment, unless it is the result of an independent intervening cause which is attributable
to the employee’s own intentional conduct.7 The basic rule is that a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury.8
A claimant bears the burden of proof to establish a claim for a consequential injury.9 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is an opinion of reasonable medical certainty and be supported by sound medical
rationale explaining the nature of the relationship of the diagnosed condition and the specific
employment factors or employment injury.10
ANALYSIS
OWCP accepted appellant’s claim for employment-related right wrist sprain and strain,
and temporary aggravation of a right carpal tunnel fracture. The Board finds that she has not
submitted sufficient medical evidence to establish an emotional as a consequence of her accepted
employment injuries.
The reports and notes of Drs. Marrison and Taiwo found that appellant had a severe
depressive reaction and an episode of bipolar disorder with psychosis, and generalized anxiety
and schizoaffective disorders due to her accepted December 10, 2001 employment injuries
resulting in her total disability for work.
7

Albert F. Ranieri, 55 ECAB 598 (2004).

8

See A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

9

J.A., Docket No. 12-603 (issued October 10, 2012).

10

Id.

5

OWCP has not accepted appellant’s claim for a consequential emotional injury. Where a
claimant claims that a condition not accepted or approved by OWCP was due to his or her
employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the injury through the submission of rationalized medical evidence.11
The Board notes that Dr. Marrison and appellant described a history of an emotional
condition predating her December 10, 2001 employment injuries. While Dr. Marrison concluded
that appellant diagnosed emotional conditions were due to her accepted employment injuries and
resulted in disability, he did not provide adequate medical reasoning to support his stated
conclusions. Dr. Marrison identified severe wrist pain and loss of functioning as two stressors
that aggravated appellant’s bipolar disorder. He did not explain how these two stressors
aggravated her underlying condition. The Board has found that a physician must provide a
narrative description of the identified employment incident and a reasoned opinion on whether
the employment incident caused or contributed to appellant’s diagnosed medical condition.12
Dr. Marrison’s observation that appellant was in temporary partial remission from her bipolar
disorder at the time of Dr. Teliho’s examination is insufficient, by itself, to establish the element
of causal relationship.13
Dr. Taiwo advised that appellant was emotionally fragile, had significant cognitive
difficulties and lacked appropriate job-related coping skills to perform any work-related activity.
He did not adequately explain how these work-related residuals prevented her from performing
any work.14 As for Dr. Taiwo’s explanation that appellant could not work to prevent further
injury, it is well established that fear of future injury does not constitute a basis for the payment
of compensation.15 The Board finds that the reports and notes of Drs. Marrison and Taiwo are
insufficient to establish appellant’s claim.
The reports from Drs. Berinhout and Bush found that appellant had depression, anxiety, a
history of bipolar disorder and insomnia with some depression secondary to personal emotional
problems, but failed to provide an opinion stating that the diagnosed conditions were caused or
aggravated by the December 10, 2001 employment injuries. Medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of diminished probative
value on the issue of causal relationship.16 The Board finds that the reports of Drs. Berinhout
and Bush are insufficient to establish appellant’s claim. As appellant has failed to provide
rationalized medical opinion evidence establishing a consequential emotional condition as a
result of her December 10, 2001 employment injuries, she has failed to meet her burden of proof.
11

M.D., Docket No. 11-1737 (issued April 3, 2012); F.H., Docket No. 10-1267 (issued March 7, 2011); JaJa K.
Asaramo, 55 ECAB 200, 214 (2004).
12

B.T., Docket No. 13-138 (issued March 20, 2013); John W. Montoya, 54 ECAB 306 (2003).

13

Thomas D. Petrylak, 39 ECAB 276 (1987) (a temporal sequence of events is not sufficient to establish causal
relationship).
14

See cases cited, supra note 12.

15

E.g., D.S., Docket No. 12-1042 (issued December 7, 2012).

16

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

6

Appellant may submit new evidence or argument as part of 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 sustain an emotional condition as a consequence of
her accepted December 10, 2001 employment-related injuries.
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 19-1184
Issued: November 1, 2019

Case Submitted on the Record

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

JURISDICTION
On May 3, 2019 appellant filed a timely appeal from a November 13, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision, dated October 6, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 17, 2016 appellant, then a 62-year-old mail handler (group leader), filed a
traumatic injury claim (Form CA-1) alleging that on June 3, 2016 he tripped over a pallet jack and
fell while in the performance of duty injuring his head, back, shoulders, buttocks, and neck.
In a June 29, 2016 development letter, OWCP noted that when appellant’s claim was first
received, it appeared to be a minor injury that resulted in minimal lost time from work. It
authorized payment of a limited amount of medical expenses without formally considering the
merits of the claim. As appellant had not returned to full-duty work, OWCP reopened his claim
for consideration of the merits. It advised him of the deficiencies of his claim and requested
additional factual and medical evidence from him. OWCP provided appellant with a questionnaire
for his completion and afforded him 30 days for a response.
On June 17, 2016 the employing establishment provided appellant with an authorization
for examination and/or treatment (Form CA-16). Dr. Peter Perdik, a Board-certified internist and
pulmonologist, completed this form on June 22, 2016 and diagnosed head injury and back injury.
He indicated by checking a box marked “yes” that he believed that appellant’s condition was
caused or aggravated by his employment activity. In a separate note dated June 22, 2016,
Dr. Perdik examined appellant related to the June 3, 2016 employment incident and again
diagnosed head and lower back injuries.
By decision dated August 3, 2016, OWCP accepted that the June 3, 2016 employment
incident occurred as alleged. However, it denied appellant’s traumatic injury claim finding that
the medical evidence of record did not establish a valid medical diagnosis in connection with the
accepted June 3, 2016 employment incident. OWCP concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
On August 9, 2016 appellant provided a factual statement in response to OWCP’s
development letter. He noted that he sustained a lump on his head due to the fall and experienced
mild shaking in his arm. Appellant sought medical attention on June 4, 2016 and was diagnosed
with a concussion.
On July 11, 2017 appellant requested reconsideration of the August 3, 2016 decision and
submitted additional medical evidence. In a note dated June 8, 2017, Dr. Nanda D. Ramsaroop, a
Board-certified internist, reported that she examined appellant on June 4, 2016 due to his June 3,
2016 employment incident. She noted that appellant fell backwards over a pallet jack and hit his
head. Dr. Ramsaroop diagnosed concussion and back pain. On June 10, 2016 appellant underwent
a brain magnetic resonance imaging (MRI) scan which demonstrated thickening of his sinuses.
By decision dated October 6, 2017, OWCP modified the August 3, 2016 decision finding
that appellant had established a medical diagnosis in connection with the accepted employment
incident, but it continued to deny the claim as the record did not contain a rationalized medical
opinion establishing causal relationship between the diagnosis of concussion and the accepted
June 3, 2016 employment incident.

2

On October 16, 2018 appellant requested reconsideration of the October 6, 2017 decision.
In support of this request, he provided an October 2, 2018 note from Dr. Abdus Khan, a Boardcertified internist, who described appellant’s June 3, 2016 fall and diagnosed dizziness, tremor of
the hands, and pain in the neck, right shoulder, and lower back.
By decision dated November 13, 2018, OWCP denied appellant’s request for
reconsideration finding that his request was untimely filed and failed to demonstrate clear evidence
of error on the part of OWCP.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.2 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.3 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS).4 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.5
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.6 If a request for
reconsideration demonstrates clear evidence of error, OWCP will reopen the case for merit
review.7
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP 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 OWCP. To demonstrate clear evidence
2

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
3

20 C.F.R. § 10.607(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

5

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
6

20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499,
501-02 (1990).
7
L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 4 at Chapter 2.1602.5 (February 2016).

3

of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.8
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. Evidence such as a detailed, well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error.9 The Board makes an independent
determination of whether a claimant has demonstrated clear evidence of error on the part of
OWCP.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s October 16, 2018 request for
reconsideration finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations and procedures establish a one-year time limit for requesting
reconsideration, which begins on the date of the original OWCP decision.11 For OWCP decisions
issued on or after August 29, 2011, the date of the request for reconsideration is the “received date”
as recorded in iFECS.12 The most recent merit decision was OWCP’s October 6, 2017 decision
denying appellant’s claim for a traumatic injury. Appellant had one year from the date of this
decision to make a timely request for reconsideration. Since his request was not received by
OWCP until October 16, 2018, more than one year after the October 6, 2017 merit decision, it was
untimely filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in
the denial of his claim.13
The Board finds that the evidence submitted by appellant does not demonstrate clear
evidence of error because it does not show that OWCP committed an error in denying his traumatic
injury claim, nor raise a substantial question as to the correctness of OWCP’s October 6, 2017
decision.

8

C.M., Docket No. 19-0585 (issued August 15, 2019); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
9

C.M., id.; J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 4 at Chapter 2.1602.5(a)
(February 2016).
10

C.M., supra note 8; D.S., Docket No. 17-0407 (issued May 24, 2017).

11

Supra note 3; see Alberta Dukes, 56 ECAB 247 (2005).

12

Supra note 4 at Chapter 2.1602.4 (February 2016); see Veletta C. Coleman, 48 ECAB 367, 370 (1997).

13

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

4

In support of his untimely request for reconsideration, appellant submitted an October 2,
2018 note from Dr. Khan describing appellant’s June 3, 2016 fall and diagnosing dizziness, tremor
of the hands, and pain in the neck, right shoulder, and lower back.
Dr. Khan’s report fails to provide a valid medical diagnosis and also fails to address the
central issue in OWCP’s denial of appellant’s claim, the lack of rationalized medical opinion
evidence establishing causal relationship between appellant’s valid medical diagnoses and his
accepted employment incident. Thus, the Board finds that the report of Dr. Khan is insufficient to
shift the weight of the evidence in favor of appellant or raise a fundamental question as to the
correctness of OWCP’s decision denying his request for reconsideration.14
To demonstrate clear evidence of error, it is insufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard.15 The evidence submitted does not manifest on its face
that OWCP committed an error in its October 6, 2017 decision denying appellant’s claim for a
traumatic injury. Appellant has not otherwise submitted evidence of sufficient probative value to
raise a substantial question as to the correctness of OWCP’s last merit decision. Thus, the Board
finds that the evidence is insufficient to demonstrate clear evidence of error.16
CONCLUSION
The Board finds that OWCP properly denied appellant’s October 16, 2018 request for
reconsideration finding that it was untimely filed and failed to demonstrate clear evidence of error.

14

Supra note 8.

15

Supra note 4 at Chapter 2.1602.5.a (February 2016); see Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

16

A properly completed CA-16 form authorization may constitute a contract for payment of medical expenses to a
medical facility or physician, when properly executed. The form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the
claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance,
unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018);
N.M., Docket No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the November 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER EAST, Cherry Point, NC,
Employer
__________________________________________

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

Docket No. 19-1509
Issued: January 9, 2020

Case Submitted on the Record

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

JURISDICTION
On July 5, 2019 appellant filed a timely appeal from a February 20, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated November 13, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 1, 2016 appellant, then a 60-year-old aircraft electrician, filed an
occupational disease claim (Form CA-2) alleging that he has sustained a neck injury due to
performing the repetitive duties of his federal employment. OWCP accepted his claim for
aggravation and acceleration of multi-level cervical disc degeneration at C3-4, C4-5, C5-6, and
C6-7. On December 21, 2016 appellant underwent OWCP-authorized anterior cervical
discectomy surgery at C3-4 and C4-5.
On June 23, 2017 appellant filed a claim for a schedule award (Form CA-7) due to his
accepted employment condition.
In August 2017, OWCP referred appellant for a second opinion examination to
Dr. Robert M. Moore, a Board-certified orthopedic surgeon. It requested that Dr. Moore evaluate
appellant’s permanent impairment under the standards of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3
In an October 30, 2017 report, Dr. Moore detailed his physical examination findings and
referenced October 17, 2017 electromyogram and nerve conduction velocity (EMG/NCV) testing
of the upper extremities which showed normal results. He determined that appellant did not have
a permanent impairment of the upper extremities under the standards of the sixth of the A.M.A.,
Guides.
OWCP then referred appellant’s case to Dr. Michael M. Katz, a Board-certified orthopedic
surgeon, who served as a district medical adviser (DMA). On November 8, 2017 the DMA advised
that he agreed with Dr. Moore’s assessment that appellant did not have permanent impairment of
the upper extremities under the standards of the sixth edition of the A.M.A., Guides.
By decision dated November 13, 2017, OWCP denied appellant’s schedule award claim,
finding that he had not met his burden of proof to establish employment-related permanent
impairment of a scheduled member or function of the body. It noted that Dr. Moore and the DMA
found that appellant had no such permanent impairment and concluded that “the claim is denied
because the requirements have not been met for entitlement to a schedule award.”
On November 13, 2018 appellant requested reconsideration of the November 13, 2017
decision. In an accompanying November 9, 2018 letter, he discussed his neck and shoulder
conditions and the limitations he experienced due to these conditions.
Appellant submitted reports, dated between November 2015 and December 2017, from
Dr. Richard A. Bloomfield, a Board-certified family practitioner. Dr. Bloomfield opined that
3

A.M.A., Guides (6th ed. 2009).

2

appellant had employment-related neck and bilateral shoulder pain. In reports, dated between
January and November 2018, Drs. Mark Rouff, John Norbury, and Hannah Florida, all of whom
were Board-certified in physical medicine and rehabilitation, addressed appellant’s neck and
shoulder complaints. The reports collectively contained such diagnoses as cervical spondylosis
without myelopathy, cervical dystonia, cervicalgia, bilateral carpal tunnel syndrome, and
degenerative joint disease of both shoulders.
Appellant also submitted treatment reports, dated between December 2016 and
October 2018, from several attending physician assistants, including Breanna Acero, Laura
Buennemeyer, and Susan Evers, as well as periodic session reports, dated between December 2017
and December 2018, from James Tracy and Katie Knight, his attending physical therapists. In
addition, he submitted diagnostic testing reports, dated between March 2017 and April 2018,
including reports of magnetic resonance imaging (MRI) scans of the cervical spine and of x-raytesting of the shoulders.
By decision dated February 20, 2019, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.4
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence that: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.5 If it determines that at
least one of these requirements is met, it reopens and reviews the case on its merits.6 If the request
is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will deny
the request for reconsideration without reopening the case for review on the merits.7
To be timely, a request for reconsideration must be received by OWCP within one year of
the date of OWCP decision for which review is sought.8 Timeliness is determined by the document
“received date” as recorded in the integrated Federal Employees’ Compensation System (iFECS).9
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 081569 (issued December 9, 2008).
6

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

7

Id. at § 10.608(b); L.S., Docket No. 18-0858 (issued November 19, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).
8

Id. at § 10.607(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).

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If the last day of the one-year time period is a Saturday, Sunday, or a legal holiday, OWCP will
still consider a request to be timely filed if it is received on the next business day.10
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record11 and the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant did not establish that OWCP erroneously applied or interpreted a specific point
of law, or advance a relevant legal argument not previously considered by OWCP. Accordingly,
the Board finds that he is not entitled to a review of the merits based on either the first or second
requirement under 20 C.F.R. § 10.606(b)(3).13
In support of his request for reconsideration, appellant submitted medical reports, dated
between November 2015 and November 2018, from Drs. Bloomfield, Rouff, Norbury, and
Florida, and diagnostic testing reports, dated between March 2017 and April 2018. These reports
do not contain an evaluation of permanent impairment under the standards of the sixth edition of
the A.M.A., Guides. While appellant submitted new medical evidence in support of his
reconsideration request, it was not relevant because it did not address the underlying issue of the
present case, i.e., whether he submitted sufficient medical evidence to establish employmentrelated permanent impairment of a scheduled member or function of the body. The Board has
held that the submission of evidence or argument which does not address the particular issue
involved does not constitute a basis for reopening a case.14 Therefore, appellant’s submission of
this new medical evidence does not require reopening his case for review on the merits.
The Board notes that several of the medical reports appellant submitted in connection with
his reconsideration request had previously been submitted and considered by OWCP. However,
the resubmission of this evidence also does not require reopening of his case for review on the
merits as the Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record does not constitute a basis for reopening a case.15
Appellant also submitted reports, dated between December 2016 and December 2018, of
attending physician assistants Acero, Buennemeyer, and Evers, and physical therapists, Tracy
10

Id. See also M.A., Docket No. 13-1783 (issued January 2, 2014).

11

N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

12

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

13

See supra note 5.

14

See supra note 12.

15

See supra note 11.

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and Knight. However, physician assistants and physical therapists are not considered physicians
as defined under FECA and the reports of such nonphysicians do not constitute probative medical
evidence.16 The Board thus finds that these reports are also insufficient to constitute a basis for
reopening the case for a merit review. Therefore, appellant also failed to satisfy the third
requirement under 20 C.F.R. § 10.606(b)(3).17
The Board therefore finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.18
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 20, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
16

R.S., Docket No. 16-1303 (issued December 2, 2016); L.L., Docket No. 13-0829 (issued August 20, 2013). See
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).
17

See supra note 5.

18

See supra notes 5 through 7.

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

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

Docket No. 21-1185
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On July 29, 2021 appellant filed a timely appeal from an April 15, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on February 18, 2021, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 15, 2021 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 March 9, 2021 appellant, then a 29-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that she suffered a “traumatic injury” on February 18, 2021 when she was
robbed at gun point by two male suspects while in the performance of duty. On the reverse side
of the claim form the employing establishment acknowledged that she was injured in the
performance of duty and that its knowledge of the facts of her injury was consistent with her
statements. Appellant stopped work on February 19, 2021.
A February 18, 2021 police report noted that appellant was robbed at gun point by two
male suspects who fled the scene.
In a development letter dated March 12, 2021, OWCP informed appellant that it had
received no medical evidence in support of her traumatic injury claim. It advised her of the type
of factual and medical evidence needed to establish her claim and provided a questionnaire for her
completion. OWCP also requested a narrative medical report from appellant’s treating physician,
which contains a detailed description of findings and a diagnosis, explaining how the claimed
employment incident caused, contributed to, or aggravated her medical conditions. It afforded her
30 days to submit the necessary evidence. Appellant did not submit a response.
By decision dated April 15, 2021, OWCP denied appellant’s traumatic injury claim,
finding that she had not established the factual component of her claim, as she had not provided
evidence or a statement explaining how she was injured as a result of the alleged employment
incident. It noted that she had not responded to the March 12, 2021 development letter. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 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

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).

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To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 7
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time and place, and in the manner alleged. 8 Second,
the employee must submit sufficient evidence to establish that the employment inc ident caused a
personal injury. 9
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 his or her subsequent course of action. The employee has not met his or her
burden when there are such inconsistencies in the evidence as to cast serious doubt on the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on the employee’s
statements in determining whether a prima facie case has been established. 10 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
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on February 18, 2021, as alleged.
In her Form CA-1, appellant indicated that she was robbed at gunpoint on February 18,
2021 by two male suspects, which was confirmed by a police report of even date. However, she
did not provide an explanation as to how she was injured or what body part was injured as a result
of the alleged employment incident. In a development letter dated March 12, 2021, OWCP
requested that appellant submit clarifying information describing how and when her claimed injury
occurred and provided a questionnaire for her completion. However, appellant did not complete
and return the March 12, 2021 development questionnaire. Therefore, she has failed to present a
clear factual statement in the record describing the specific alleged employment-related incident
alleged to have caused or contributed to her claimed medical condition.12 As she has not responded
to the request for factual information to describe the employment incident and circumstances

7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

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

10

C.M., Docket No. 20-1519 (issued March 22, 2021); Betty J. Smith, 54 ECAB 174 (2002).

11

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

12

See D.C., Docket No. 18-0082 (issued July 12, 2018).

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surrounding her alleged injury, the Board finds that appellant has not established that a traumatic
injury occurred in the performance of duty on February 18, 2021, as alleged.13
The Board further finds that, because appellant failed to establish the first component of
fact of injury, it is unnecessary to discuss whether she submitted medical evidence sufficient to
establish that a medical condition existed and whether the condition was causally related to the
employment factors as alleged. 14 Thus, the Board finds that appellant has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty, as alleged.

13

See H.B., Docket No. 18-0278 (issued June 20, 2018); John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40
ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
14

See R.L., Docket No. 17-1670 (issued December 14, 2018); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997)
(as appellant failed to establish that the claimed event occurred as alleged, it is unnecessary to discuss the probative
value of medical evidence).

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ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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