United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Forest Park, IL, Employer
__________________________________________

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

Docket No. 18-1174
Issued: December 6, 2018

Case Submitted on the Record

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

JURISDICTION
On May 22, 2018 appellant filed a timely appeal from a May 7, 2018 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 cervical
radiculopathy, bilateral carpal tunnel syndrome, and left cubital tunnel syndrome causally related
to the accepted factors of her federal employment.
FACTUAL HISTORY
On February 16, 2018 appellant, then a 51-year-old parcel post machine operator, filed an
occupational disease claim (Form CA-2) alleging that she sustained cervical radiculopathy at C7,
1

5 U.S.C. § 8101 et seq.

bilateral carpal tunnel syndrome, and left cubital tunnel syndrome due to repetitively keying mail.
She noted that she first became aware of her claimed condition on December 1, 2017 and first
attributed it to her federal employment on January 17, 2018. Appellant stopped work on
December 1, 2017.
A January 17, 2018 electromyogram (EMG) and nerve conduction velocity (NCV) study
revealed C7 radiculopathy with denervation of the triceps, mild bilateral carpal tunnel syndrome,
and mild left cubital tunnel syndrome. The study indicated that appellant had a history of a C5-6
disc replacement in January 2017.
On January 26, 2018 Dr. Judy Law, a Board-certified internist, related that an EMG/NCV
study performed on January 17, 2018 showed cervical radiculopathy at C7, left cubital tunnel
syndrome, and bilateral carpal tunnel syndrome. She noted that appellant had undergone the
electrodiagnostic testing due to complaints of hand numbness and neck pain “since her recent
accident.”
By development letter dated March 14, 2018, OWCP requested that appellant submit
additional factual and medical evidence in support of her claim, including a detailed report from
her attending physician addressing causal relationship between a diagnosed condition and the
identified work factors.
In a March 22, 2018 report, Dr. Law advised that appellant had complained of bilateral
hand numbness over an extended period of time. She referred appellant for diagnostic studies
which revealed bilateral carpal tunnel syndrome. Dr. Law opined that appellant’s repetitive work
duties of handling mail contributed significantly to her bilateral carpal tunnel syndrome.
In a March 24, 2018 statement, appellant indicated that she had multiple claims for upper
extremity conditions, including a 2002 claim accepted for left elbow tendinitis under OWCP File
No. xxxxxx762, a 2013 claim accepted for right elbow epicondylitis under File No. xxxxxx822, a
2015 claim accepted for a left rotator cuff sprain and cervical sprain under File No xxxxxx966,
and a 2017 claim accepted for right shoulder tendinosis of the supraspinatus and infraspinatus
tendons under File No. xxxxxx064. She related that she had stopped work on November 8, 2017
due to her 2017 claim. Appellant described her employment and attributed her claimed conditions
to repetitive work duties.
OWCP, on March 29, 2018, requested that Dr. Law provide a reasoned opinion addressing
whether appellant’s repetitive work duties caused or aggravated a diagnosed condition. It
described the physical activity required to face and key mail, including pulling mail from and
placing mail on a conveyor belt, keyboarding, and throwing parcels down stairs.
In a March 29, 2018 report of telephone call (Form CA-110), appellant related that the
accident mentioned by Dr. Law in her January 26, 2018 report was appellant’s November 8, 2016
employment injury under OWCP File No. xxxxxx064.
On April 3, 2018, Dr. Law indicated that appellant had experienced bilateral hand
numbness beginning in 2005 with an increase in symptoms over the past year. She advised that
NCV testing demonstrated bilateral carpal tunnel syndrome and left cubital tunnel syndrome.
Dr. Law related, “[Appellant’s] work duties as described from your letter quite certainly
2

contributed to the above diagnosis. The disease is slowly progressive and symptoms are initially
intermittent and then more persistent and become worse with more repetitive wrist and hand
movements.”
By decision dated May 7, 2018, OWCP denied appellant’s occupational disease claim. It
found that the medical evidence of record was insufficient to establish that she sustained a
diagnosed medical condition causally related to the accepted factors of her federal employment.
OWCP determined that Dr. Law had not included a complete medical history or sufficiently
explained how the diagnosed conditions arose from the identified work factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In an occupational disease claim, appellant’s burden of proof requires submission of the
following: (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 employment factors identified by the employee.5
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.6

2

Id.

3

See J.I., Docket No .18-0286 (issued September 17, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See R.B., Docket No. 18-0416 (issued September 14, 2018); Ellen L. Noble, 55 ECAB 530 (2004).

5

See P.D., Docket No. 17-1885 (issued September 17, 2018).

6

See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish cervical
radiculopathy, bilateral carpal tunnel syndrome, and left cubital tunnel syndrome causally related
to the accepted factors of her federal employment.
Appellant attributed her bilateral carpal tunnel syndrome, cervical radiculopathy at C7, and
left cubital tunnel syndrome to repetitive work duties, including keying mail. OWCP accepted
that the claimed work factors occurred as described, but denied the claim finding that she had not
submitted a rationalized medical report sufficient to establish causal relationship between the
diagnosed conditions and her accepted federal employment duties.
Electrodiagnostic testing performed on January 17, 2017 revealed cervical radiculopathy
at C7, mild bilateral carpal tunnel syndrome, and mild left cubital tunnel syndrome. The Board
has held, however, that the results of diagnostic tests lack probative value as they fail to provide
an opinion on causal relationship.7
Dr. Law reviewed the results of the EMG/NCV studies on January 26, 2018 and found that
it demonstrated cervical radiculopathy, left cubital tunnel syndrome, and bilateral carpal tunnel
syndrome. She indicated that appellant underwent the objective testing as she had experienced
neck pain, numbness of the bilateral hands, and hypersensitivity of the forearms after a recent
accident. As Dr. Law did not relate the diagnosed conditions to the accepted factors of appellant’s
federal employment, her opinion is insufficient to meet appellant’s burden of proof.8
On March 2, 2018 Dr. Law noted that appellant had experienced numbness of both hands
over an extensive period of time. She related that testing showed bilateral carpal tunnel syndrome.
Dr. Law opined that appellant’s repetitive work duties of handling mail contributed to her bilateral
carpal tunnel syndrome. She did not, however, provide rationale for her causation finding or
provide a description of the repetitive activities involved. Consequently, Dr. Law’s opinion is of
limited probative value.9
In an April 3, 2018 response to OWCP’s request for additional information, Dr. Law
discussed appellant’s bilateral hand numbness since 2005 that had increased over the preceding
year. She diagnosed bilateral carpal tunnel syndrome and left cubital tunnel syndrome as
confirmed by diagnostic testing. Dr. Law opined that appellant’s work duties clearly contributed
to the diagnosed conditions, noting that the condition worsened over time and increased with
repetitive actions with the hands and wrists. She did not, however, provide a sufficient explanation
regarding how specific work duties caused or aggravated the bilateral carpal tunnel syndrome and
left cubital tunnel syndrome.10 As Dr. Law did not explain how, physiologically, the movements

7

See A.B., Docket No. 17-1301 (issued May 19, 2017).

8

See J.B., Docket No. 17-1674 (issued December 1, 2017).

9

See generally R.B., supra note 4.

10

See J.I., supra note 3.

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involved in any specific employment duties caused or contributed to appellant’s diagnosed
condition, her opinion is insufficient to establish the claim.11
The Board thus finds that appellant has not met her burden of proof.
On appeal, appellant asserts that the medical evidence from Dr. Law is sufficient to
establish her occupational disease claim. As discussed, however, Dr. Law’s reports are
insufficiently rationalized to establish a diagnosed condition caused or aggravated by the identified
work factors. As appellant has not provided reasoned medical evidence establishing that her
accepted employment factors caused or aggravated her C7 radiculopathy, bilateral carpal tunnel
syndrome, and left cubital tunnel syndrome, she has not met her burden of proof to establish her
claim.12
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 cervical
radiculopathy, bilateral carpal tunnel syndrome, and left cubital tunnel syndrome causally related
to the accepted factors of her federal employment.

11

See J.B., Docket No. 18-0006 (issued March 8, 2018).

12

See K.R., Docket No. 18-0711 (issued September 6, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the May 7, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 6, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HEALTH RESOURCE CENTER, Topeka, KS,
Employer
__________________________________________

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

Docket No. 15-1737
Issued: November 25, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 27, 2015 appellant filed a timely appeal from a June 11, 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a right thumb
condition causally related to the accepted factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new medical evidence with her appeal. The Board, however, has no jurisdiction to review
new evidence on appeal; see 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 23, 2014 appellant, then a 57-year-old contact representative, filed an
occupational disease claim (Form CA-2) alleging that she developed radial tenosynovitis of her
right thumb as a result of repetitive motion at work. She first became aware of her condition on
September 1, 2014 and realized that it resulted from her employment on September 19, 2014.
Appellant explained that on approximately September 1, 2014 she began to experience pain in
the bottom joint of her right thumb close to her wrist. The pain began to spread and her thumb
became swollen and sore to the touch second days later. Appellant stated that on September 19,
2014 she saw her primary care provider who checked her arm and neck to verify that the
problem with her thumb was not connected with other ongoing conditions. She noted that her
physician diagnosed tenosynovitis. Appellant reported that she had no hobbies or activities
outside of her employment other than general house work and watching sports activities with
children.
Appellant described her job duties as entering prescriptions for renewals and refills into
the computer, responding and resolving customer complaints, submitting prescription renewal
requests to doctors, tracking status of veterans’ prescriptions, verifying upcoming appointments
for veterans, mentoring new employees, and acting as a liaison between patients, pharmacy, and
primary care team. She listed the dates that she used leave without pay. Appellant noted that she
had carpal tunnel surgery on both her hands in approximately 1998. She submitted a position
description for a contact representative.
In September 19 and October 9, 2014 reports, Dr. Timothy Martindale, a Board-certified
family practitioner, related that he examined appellant for complaints of right thumb pain. He
noted that she worked for the employing establishment as a contact representative.
Dr. Martindale diagnosed right hand and thumb radial tenosynovitis caused by repetitive overuse
of the right hand with work activities of typing and computer and mouse use. He advised
appellant that six weeks off of work was needed for complete rest in order to restore function as
an employee.
By letter dated October 15, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish her occupational disease claim. It requested additional evidence to
establish that she experienced the factors of employment as alleged and that she sustained a
diagnosed condition causally related to her employment.
Dr. Martindale continued to treat appellant and reported in a December 11, 2014 note that
appellant had decreased range of motion of the right wrist and tenderness with range of motion.
He observed no edema or varicosities in the extremities. Dr. Martindale diagnosed radial styloid
tenosynovitis. He reported that the pain was related to work overuse with “constant computer
work, with mouse and typing.” Dr. Martindale explained that appellant was not able to work at
that time due to the immediate return of pain with any computer work.
In a decision dated January 23, 2015, OWCP denied appellant’s claim because the
evidence was insufficient to establish fact of injury. It found that she submitted insufficient
evidence to support that she experienced the employment factors as described or that she
sustained a diagnosed condition causally related to her employment.

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On March 6, 2015 OWCP received appellant’s request for a review of the written record
by an OWCP hearing representative. Appellant described her employment duties as typing and
documenting calls from veterans and representatives. She explained that she used two monitors,
one for documenting the call and the other for reviewing the veterans’ profile, in order to
document the entire conversation to the fullest. Appellant noted that during each call she would
type and move the mouse from one monitor to the other and from one document to the other.
She stated that the activity was performed for seven hours a day, five days a week. Appellant
answered over 9,000 calls last year and spent approximately three to six minutes documenting
each call. She reported that she did not engage in any sports, play any musical instruments, or
engage in any computer activities outside of her job.
Regarding her medical condition, appellant explained that she first noticed her condition
on September 1, 2014 when her right thumb “popped” any time she moved it and she
experienced considerable pain. She stated that within a few days she could not bend her thumb
at all and the knuckle was “frozen” in the open position. Appellant related that she had no
strength in her thumb and had to use a hand brace. She reported that she was not diagnosed with
any other condition concerning her thumb, hand, or wrist.
Appellant also submitted a January 22, 2015 attending physician’s report from
Dr. Martindale. Dr. Martindale noted a history of injury of increasing pain and decreased
mobility in appellant’s right thumb, hand, and wrist. He reported examination findings of right
thumb inflammation, decreased range of motion, and increased pain. Dr. Martindale diagnosed
radial styloid tenosynovitis. He checked a box marked “No” that there was no history or
evidence of preexisting injury or disease. Dr. Martindale also indicated “Yes” that appellant’s
condition was caused or aggravated by an employment activity. He explained that she did
constant computer work with the mouse and noted that typing caused overuse. Dr. Martindale
reported that appellant was unable to work beginning September 1, 2014 and that he was unsure
about when she could return to work.
By decision dated June 11, 2015, an OWCP hearing representative affirmed the
October 15, 2014 decision, with modification. She accepted that appellant had established
repetitive employment duties as a contact representative, but denied her claim on the basis of
insufficient medical evidence to establish that her right thumb condition was casually related to
her employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4 In an occupational disease claim, appellant’s burden requires
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).

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submission of the following: (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 employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
Appellant alleged that she developed radial tenosynovitis of her right thumb as a result of
her repetitive duties as a contact representative. OWCP accepted that she experienced the
repetitive duties of her job that she alleged. The Board finds, however, that appellant did not
meet her burden of proof to establish that her right thumb condition was causally related to the
accepted factors of her employment.
Appellant received medical treatment from Dr. Martindale. In his reports from
September 19 to December 11, 2014, Dr. Martindale noted that she worked for the employing
establishment as a contact representative. He reported findings of decreased range of motion of
the right wrist and tenderness with range of motion. Dr. Martindale diagnosed right hand and
thumb radial tenosynovitis caused by repetitive overuse of the right hand with work activities of
typing and computer and mouse use. In a January 22, 2015 attending physician’s report, he
provided a history of injury of increasing pain and decreased mobility in appellant’s right thumb,
hand, and wrist. Dr. Martindale provided examination findings and checked a box indicating
that her condition was caused or aggravated by an employment activity. He explained that
appellant was subject to constant computer work with the mouse and noted that typing caused
overuse. Dr. Martindale advised that appellant was unable to work beginning September 1, 2014
and that he was unsure about when she could return to work.
The Board notes that Dr. Martindale accurately described appellant’s employment
activities and provided findings on examination. Dr. Martindale diagnosed right hand and thumb
tenosynovitis and opined that it was caused by overuse of the right hand. Although he provides
an opinion on causal relationship he does not offer any medical rationale explaining how
activities such as typing and working with the mouse resulted in appellant’s right thumb
condition. The Board has found that medical evidence that states a conclusion but does not offer
any rationalized medical explanation regarding the cause of an employee’s condition is
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

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of limited probative value on the issue of causal relationship.8 Dr. Martindale did not
pathophysiologically explain how appellant’s employment duties as a contact representative
caused or contributed to her right thumb injury.9 He merely attributes appellant’s condition to
“repetitive overuse of the right hand” with typing and mouse work without any medical
rationale.
Causal relationship is a medical question that must be established by probative medical
opinion from a physician.10 The mere fact that work activities may produce symptoms
revelatory of an underlying condition does not raise an inference of an employment relation.
Such a relationship must be shown by rationalized medical evidence of a causal relation based
upon a specific and accurate history of employment conditions which are alleged to have caused
or exacerbated a disabling condition.11 Because appellant failed to provide rationalized
probative medical opinion, the Board finds that OWCP properly denied her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that her right thumb condition was
causally related to the accepted factors of her federal employment.

8

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

9

See B.T., Docket No. 13-138 (issued March 20, 2013).

10

W.W. Docket No. 09-1619 (June 2010); David Apgar, 57 ECAB 137 (2005).

11

Patricia J. Bolleter, 40 ECAB 373 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the June 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 25, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Terminal Island, CA, Employer
__________________________________________

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

Docket No. 14-611
Issued: October 15, 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 January 24, 2014 appellant filed a timely appeal from a January 7, 2014 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 filed a timely claim for compensation under 5 U.S.C.
§ 8122(a).
FACTUAL HISTORY
This case was previously before the Board. By decision dated October 15, 2012, the
Board found that appellant’s August 23, 2000 letter constituted a timely request for

1

5 U.S.C. § 8101 et seq.

reconsideration of a July 3, 2000 OWCP decision. The case was remanded for further review of
the merits.2 The Board’s October 15, 2012 decision is incorporated herein by reference.
The record reflects that on June 9, 1997 appellant, then a 48-year-old former federal
correctional officer, filed a traumatic injury claim for an emotional condition as a result of a
hostage incident at work on February 18, 1978.3 He stated that he stopped work and returned to
duty on February 22, 1978. In an attached statement, appellant alleged that the hostage situation
resulted in post-traumatic stress and he was never psychologically examined or found fit to
return to duty. He was given three days off before returning to work. Appellant stated that he
was never asked to complete any forms, safety reports, or workers’ compensation forms or
medical forms pertaining to the incident. He stated that he was traumatized and incapable
emotionally of remembering to complete claim forms. Appellant explained that, after the
hostage incident, he continued to work at the same facility for five more years. After he resigned
from federal service, he worked for a private security company until terminated for posttraumatic stress disorder. Appellant stated that he had no similar condition due to the hostage
trauma except for his combat experience in the military.4
The employing establishment’s portion of appellant’s claim form was completed by
Sandra Sullivan, a safety manager. Ms. Sullivan listed the date of injury as “February 8, 1978,”
noting appellant stopped work on February 9 and returned to work on February 12, 1978. She
also listed that appellant had received medical care on “February 8, 1978.” In a September 10,
1997 memorandum, Ms. Sullivan noted that she had received appellant’s claim, plus supporting
documentation such as medical reports and those by the employing establishment pertaining to
the February 18, 1978 incident. Because of the time factor, she did not know how to approach
the matter as appellant’s supervisors were not available to complete the form. Ms. Sullivan
contacted OWCP and was told to complete and sign the supervisory side of the CA-1 form.5
Appellant submitted documents pertaining to claims with the Department of Veterans
Affairs, an application for disability retirement with the Social Security Administration and
medical records from the Veterans’ Health Administration.

2

Docket No. 12-1019 (issued October 15, 2012).

3

The record reveals that on June 9, 1997 appellant also filed an occupational disease claim alleging that he
sustained mental trauma, diagnosed phobia, and post-traumatic stress as a result of a prison riot and from his service
in Vietnam. He first became aware of his alleged conditions on February 21, 1978, and that it was related to his
employment on October 18, 1994. Since appellant alleged that his emotional condition resulted from a single,
February 18, 1978 employment incident and not over a period longer than a single workday or shift, it was properly
adjudicated as a claim for traumatic injury. See 20 C.F.R. § 10.5(q) & (ee).
4

The record reflects that appellant entered duty with the Bureau of Prisons on November 15, 1974. Prior to his
employment, he served in the military and saw duty in Vietnam. Appellant filed claims with the Veterans
Administration for post-traumatic stress and exposure to Agent Orange which appear to have been denied.
5

The record reflects that Ms. Sullivan was a correctional officer and coworker of appellant as of
February 18, 1978. She completed a statement pertaining to her inspection of cell block D following the hostage
incident.

2

The record contains numerous memoranda completed by personnel of the employing
establishment contemporaneous to the hostage situation. At approximately 8:00 p.m. on
Saturday, February 18, 1978 several inmates took hold of appellant and another correctional
officer in the D cellblock. The officers were bound and gagged. The warden and other
supervisory personnel were soon notified of the situation and off-duty personnel were contacted
and placed on standby. Negotiations between the prison staff and inmates commenced
approximately 9:00 p.m. and various demands were made. At 2:12 a.m., on the morning of
February 19, 1978 appellant and his fellow officer were released. Appellant was subsequently
interviewed in the captain’s office.
On February 21, 1978 appellant submitted a statement to E.E. Bradford, the chief
correctional supervisor. He outlined how he was taken hostage in the cell block by two inmates
at 8:00 p.m. with a homemade knife. Appellant was tied up, arms behind his back and his legs,
with a ball of cloth put into his mouth. He was taken to a supply closet. During the period
appellant was tied up, an inmate touched a homemade knife to his neck on several occasions in
an assaultive manner. At about 8:40 p.m. his fellow officer was restrained by other inmates. At
9:00 p.m. appellant was untied and then taken to the first tier and told to sit in a chair and his
mouthpiece was removed. The inmates negotiated for the next several hours and, by 12:25 a.m.,
sought to achieve amnesty from the prison administration. Appellant and his fellow officer tried
to convince the inmates to give up before the situation became worse. He noted that several
inmates stated that they wanted to cut off his ears or legs and throw them outside. By 2:00 a.m.,
the inmates knew they were not leaving the prison as demanded. Appellant and his fellow
officer were released: “I departed at 2:10 a.m. and waited for Mr. Murrell around the door of
Dorm #10. Mr. Murrell was released and was walking with inmate Kott, D Block resident.
From there we met Captain Bradford and Associate Warden Johnson. Kott was returned to the
cell house.”6
By letter dated June 30, 1997, appellant was requested to provide further information
regarding his claim, including an explanation as to why he waited so many years to file the
claim.
On June 30, 1997 OWCP also requested that the employing establishment provide further
information regarding the date appellant stopped work at the employing establishment, and
copies of any records pertaining to the February 18, 1978 incident, including medical records.
Personnel records were received which reflect that appellant continued to work at the
employing establishment. On January 22, 1980 the warden congratulated appellant on five years
of service as of November 1979. On January 20, 1981 appellant was promoted to senior officer
specialist by the acting warden. In August 1981, the Federal Bureau of Investigation approached
the warden about preparing a hostage survival training program for correctional officers,
requesting the assistance of appellant and his fellow officer. The warden noted that both men
agreed to assist in the training program, which was videotaped on August 24, 1981 at the UCLA
hospital. Both men were subsequently commended by the FBI for their “articulate and
professional appearance” in the program. On April 14, 1982 appellant requested a new
6

By memorandum dated June 8, 1978, appellant was commended by the warden for the professional manner in
which he behaved during the hostage crisis.

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assignment to the morning watch shift as he was attending junior college summer session and
sought to complete his major. Later that month, he requested additional leave in order to visit
relatives in Hawaii. On October 13, 1981 appellant made a claim for benefits to the VA, noting
that an additional request for a shift change at work was denied as the facility was undermanned.
He stated that he was trying to develop and upgrade his education, which was difficult due to the
manpower needs of his employer. On December 19, 1983 appellant submitted a letter of
resignation to the employing establishment, effective January 4, 1984. He stated that his
resignation was in order to complete his education and other business interests. On or about
December 30, 1983 appellant sustained a contusion to his left knee. He filed a claim which was
accepted by OWCP.7
Appellant responded to OWCP’s request for further information on July 18, 1997. He
co-signed a statement prepared by his brother. Appellant stated that he almost lost his life after
fighting with the inmates with knives and was emotionally incapable after the hostage incident of
completing any claim forms. He characterized the trauma as long-term and numbing, alleging
harassment by both inmates and staff after his return to duty. Appellant stated that his supervisor
had the responsibility for timely completing all necessary forms, which he failed to do. He spoke
with a physician identified as Dr. Johnson, after the hostage incident, who only asked if he was
okay. Appellant stated that the physician did not conduct an examination but told him to take
several days off. He noted that he filed a workers’ compensation claim for a leg injury on
December 30, 1983, which was denied. Appellant stated that he resigned from the employing
establishment in 1983 due to stress, following which he began to receive medical attention for
nervousness and depression at the VA due to trauma in Vietnam; but not treated for the hostage
trauma, for which the VA would not take responsibility. He obtained employment in the private
sector in a security position but had recently been terminated for symptoms of post-traumatic
stress disorder. Appellant stated that it took 19 years for him to crack up.
In a decision dated August 4, 1997, OWCP denied appellant’s emotional condition claim.
It determined that the June 9, 1997 claim was untimely filed and that he did not meet any
requirements for waiver of the time limitation.
Appellant requested a hearing before an OWCP hearing representative which was held on
August 2, 1998. At the hearing, he stated that he had worked with Ms. Sullivan at Terminal
Island and she subsequently assisted him with his compensation claim “only by submitting the
information to the Department of Labor.”
By decision dated December 22, 1998, the hearing representative found that appellant’s
claim for compensation was not timely filed and affirmed the August 4, 1997 decision.
Following the August 2, 1998 hearing, he inquired with the employing establishment as to
Ms. Sullivan’s notation on the claim form that appellant received medical care on
February 8, 1978. The hearing representative was informed that the employing establishment
had no medical records for claimant and was subsequently advised by OPM that appellant did
not have an archived medical folder. He found that appellant’s claim was traumatic in origin and
he did not timely file a claim for compensation within three years of the alleged traumatic
7

In a May 10, 1984 decision, OWCP noted it had accepted the claim but denied continuation of pay from
December 31 to January 5, 1984 as his claim for compensation was not filed within 30 days of injury.

4

incident of February 18, 1978. None of the memoranda surrounding the incident at work
mentioned any injury sustained by appellant on or after February 18, 1978 and there were no
medical records of the employer pertaining to any treatment within 30 days of the incident.
Further, there was no evidence that his immediate supervisor had actual knowledge of an injury
within 30 days. As to appellant’s contention that he was mentally incompetent from the date of
injury to file a claim, the hearing representative found that the medical evidence of record did not
support his contention. He noted that appellant continued to work at the employing
establishment for five years before he resigned to pursue his education and other business
opportunities. The record did not support that appellant was incapable of filling out a claim form
to satisfy the time limitation requirement within three years after February 18, 1978.
Appellant subsequently submitted additional requests for reconsideration. In decisions
dated April 22, 1999 and July 3, 2000, OWCP denied modification of the August 4, 1997
decision.
In a letter dated August 15, 2000, appellant informed OWCP that he waived his right to
the 90-day review in order to submit new evidence for review within the one-year time limitation
according to 20 C.F.R. § 10.607(a). He submitted an August 10, 2000 report by Dr. Thomas
Grieder, a psychiatrist with the Department of Veterans Affairs. By letter dated August 27,
2002, appellant submitted additional reports from the Veterans Administration concerning his
treatment for post-traumatic stress disorder and other mental conditions.
The record was dormant until August 12, 2011 when appellant submitted a request for
reconsideration and various medical reports. By decision dated November 18, 2011, OWCP
denied his request for reconsideration finding that it was not timely filed and failed to present
clear evidence of error. Appellant filed an appeal before the Board which, as noted, remanded
the case for a review of the merits of the claim.
Following the Board’s October 15, 2012 decision, OWCP issued a February 14, 2013
decision. It found that the evidence failed to establish that appellant’s June 9, 1997 traumatic
injury claim was timely filed or that he met any of the requirements for waiver of the three-year
time limitation. By decision dated January 7, 2014, OWCP reissued the February 14, 2013
decision as it was returned as undeliverable.
LEGAL PRECEDENT
Section 8122(a) of FECA provides that in cases of injury on or after September 7, 1974 a
claimant has three years to file a claim for compensation.8 Compensation for disability or death,
including medical care in disability cases, may not be allowed if a claim is not filed within that
time unless:
(1) The immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate supervisor reasonably
on notice of an on-the-job injury or death; or

8

5 U.S.C. § 8122(a).

5

(2) Written notice of injury or death as specified in section 8119 was given
within 30 days.9
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.10 Actual knowledge and written notice of injury
under section 8119 serve to satisfy the statutory period for filing an original claim for
compensation. For actual knowledge of a supervisor to be regarded as timely filed, an employee
must show not only that the immediate supervisor knew that he or she was injured, but also knew
or reasonably should have known that it was an on-the-job injury.11
When a traumatic injury definite in time, place, and circumstances is involved, the time
for giving notice of injury and filing for compensation begins to run at the time of the incident,
even though the employee may not have been aware of the seriousness or ultimate consequences
of his injury.12 The Board has held that the applicable statute of limitations commences to run
although the employee does not know the precise nature of the impairment.13
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that his claim
of traumatic injury on February 18, 1978 was timely filed.
The record establishes that appellant, then a correctional officer, was taken hostage while
at work on February 18, 1978 with a fellow officer. They were released in the early morning of
February 19, 1978. Some 19 years later, on June 9, 1997, appellant filed a traumatic injury claim
alleging that on February 18, 1978 he sustained mental trauma with post-traumatic stress as a
result of the hostage incident at work. Section 8122(a) provides that an original claim for
compensation for disability must be filed within three years after the injury or death.
Appellant’s alleged injury involved a traumatic incident of which he was immediately
aware, even though all the sequelae of the injury may not have been known to him until later. As
noted in Paul S. Devlin,14 the time for giving notice of injury and for filing a claim of
compensation began to run at the time of the traumatic incident, despite the claim that the
9

Id.

10

Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001).

11

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

12

Emma L. Brooks, 37 ECAB 407 (1986).

13

Delmont L. Thompson, 51 ECAB 155 (1999).

14

39 ECAB 715 (1988)

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employee was not aware of the seriousness or the ultimate consequences of the injury, or that the
nature of the injury was not diagnosed until sometime later. The Board finds that appellant’s
claim for a traumatic injury on February 18, 1978 was not filed within the requisite three-year
time limitation period. Therefore, his claim is barred by the applicable time limitation provisions
of FECA.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) if his
immediate superior had actual knowledge of the injury within 30 days or under section
8122(a)(2) if written notice of injury was given within 30 days. The Board finds that the
evidence of record does not support that appellant’s immediate supervisor had actual knowledge
of the injury within 30 days.
Before OWCP and on appeal, appellant contends that the memoranda written by various
officials at the prison addressing the February 18, 1978 hostage incident manifest actual
knowledge by his immediate supervisor of injury within 30 days. The Board has carefully
reviewed the memoranda completed within 30 days of the hostage episode, including that of
appellant, and note that they provide chronological descriptions of the incident. While they
reflect that his supervisors were well aware of the February 18, 1978 incident, they do not
establish that appellant’s supervisors had actual knowledge of any employment-related injury
claimed by appellant resulting from this incident within 30 days.
Ms. Sullivan, who submitted the June 9, 1997 traumatic injury claim form on the advice
of OWCP, noted that appellant’s immediate supervisors were unavailable to complete the form
as 19 years had passed. The evidence contemporaneous to the hostage incident in 1978 reflects
that Ms. Sullivan was appellant’s coworker, also serving as a correctional officer at Terminal
Island. The memoranda completed by the various prison officials involved in the hostage
incident do not reflect that appellant claimed an injury, either upon his release on February 19,
1978 or within 30 days of the incident. The evidence of record does not establish that appellant
informed any immediate supervisor of an injury sustained in the hostage situation. Appellant
provided a February 21, 1978 hostage report to Mr. Bradford, the chief correctional supervisor,
as to what happened during the evening of February 18, 1978 and early morning of the
February 19, 1978. He noted that following his release, he met with Mr. Bradford and the
associate warden. Appellant’s statement did not allege or specify any injury, physical or
emotional, related to the incident. Moreover, he did not provide written notice of injury within
30 days. As Mr. Bradford, appellant’s immediate supervisor, did not have actual knowledge of
an injury within 30 days, the three-year time limitation provision can be excused only if
appellant was mentally incompetent or there were exceptional circumstances which prevented
him from filing a claim.
In 1997 when appellant filed his claim, he contended that following the February 18,
1978 hostage incident he was traumatized and emotionally incapable of completing the necessary
traumatic forms or paperwork. The Board finds, however, that the evidence contemporaneous to
the hostage incident and thereafter does not support that appellant was mentally incompetent
from filing a timely claim within three years.
The evidence reflects that appellant last worked for the employing establishment on
January 4, 1984, when his resignation became effective. Prior to that time, he continued work at

7

the employing establishment. Appellant provided inconsistent statements regarding the
immediate aftermath of the hostage situation. He stated in 1997 with the submission of his claim
form that he was emotionally incapacitated but was never examined after the incident; but also
stated that a physician identified as a Dr. Johnson had asked if he was okay. The Board notes
that there is no medical evidence of record from the employer pertaining to any treatment of
appellant following the February 18, 1978 incident or of any treatment report by a Dr. Johnson.
The record reflects that Ms. Sullivan listed on the claim form in 1997 that appellant received
medical care on “February 8, 1978.” The Board notes that the February 8, 1978 date as listed by
Ms. Sullivan was prior to the hostage incident claimed in this case. As discussed, Ms. Sullivan
was not appellant’s immediate supervisor or had knowledge of the circumstances surrounding
the hostage incident. Moreover, the hearing representative made further inquiry on this aspect of
the claim in 1998 by contact with the employing establishment and OPM. He was informed that
the employing establishment had no medical records for appellant nor did the OPM have any
medical folder. There is no medical evidence that appellant obtained treatment at the employing
establishment following the hostage incident or was ever found disabled for work.
The record contemporaneous to appellant’s continued employment with the Bureau of
Prisons does not reflect an individual incapacitated by emotional stress. No claim was filed by
appellant within three years of the hostage incident. He continued to work in his career as a
correctional officer, receiving a promotion in January 1981 to the position of senior officer
specialist. In August 1981, appellant was approached by the FBI to participate in a hostage
survival training program for correctional officers. He and his fellow officer agreed to assist in
the training program, which was videotaped on August 24, 1981 at the UCLA hospital. Both
men were commended by the FBI for their articulate and professional appearance in the
program. On October 13, 1981 appellant made a claim for benefits to the VA, noting that his
additional request for a shift change was denied as the facility was undermanned. He stated that
he was trying to develop and upgrade his education, which was difficult due to the manpower
needs of his employer. On April 14, 1982 appellant requested a new assignment to the morning
watch shift as he was attending junior college summer session and sought to complete his major.
Later that month, he requested leave in order to visit relatives in Hawaii. On December 19, 1983
appellant submitted a letter of resignation to the employing establishment, effective
January 4, 1984. He stated that his resignation was in order to complete his education and other
business interests. On December 30, 1983 appellant sustained a contusion to his left knee. He
completed a claim form related to this injury, which was accepted by OWCP. Based on this
evidence, the Board finds that appellant has failed to meet his burden of proof to establish that he
was mentally incompetent to file a timely claim related to the February 18, 1978 hostage incident
at work.
Further, appellant has not established any tolling of the time limitation provision of the
statute due to exceptional circumstances. The Board has held that unawareness of possible
entitlement, lack of access to information and ignorance of the law or one’s rights and
obligations under the law do no constitute exceptional circumstances that would excuse a failure
to timely file a claim.15 Based on the evidence of record, the Board finds that appellant failed to
file a timely claim for compensation. His immediate supervisor, Mr. Bradford, did not have
15

See C.W., Docket No. 14-925 (issued July 18, 2014); Roger W. Robinson, 54 ECAB 846 (2002).

8

actual or imputed knowledge of the claimed injury within 30 days of the February 18, 1978
incident, nor has appellant established that he was mentally incompetent or that exceptional
circumstances tolled the three-year statute of limitations.
CONCLUSION
The Board finds that appellant’s 1997 claim for an emotional condition was not timely
filed within three years of the February 18, 1978 hostage incident at work.
ORDER
IT IS HEREBY ORDERED THAT the January 7, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 15, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Montgomery, NY, Employer
__________________________________________

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

Docket No. 17-1309
Issued: September 7, 2018

Case Submitted on the Record

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

JURISDICTION
On May 30, 2017 appellant filed a timely appeal from an April 18, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
the last merit decision, dated November 23, 2016, 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 the claim.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request for
a hearing.
FACTUAL HISTORY
On October 6, 2016 appellant, then a 56-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on October 5, 2016, she injured her lower back while in the
1

5 U.S.C. § 8101 et seq.

performance of duty. She explained that her back pain worsened throughout the day and that she
only did her “job of lifting, stretching.” Appellant stopped work on October 5, 2016. The
employing establishment controverted the claim, noting that she initially stated that she suffered a
recurrence of a prior back injury, but the next day she changed her statement to a “new injury.”
OWCP received two handwritten statements from appellant, which were both dated
October 5, 2016. In one statement, appellant indicated that she reinjured her back on October 5,
2016 and explained that the heavy workload over the course of the past two days aggravated an
old work-related back injury. Appellant further explained that her activities on October 5, 2016,
which included lifting trays/parcels and reaching for mailboxes, irritated her back, and throughout
the day it progressively worsened to the point where it became unbearable.
In appellant’s second statement of October 5, 2016 she noted that she injured her back at
work that day due to a combination of daily work activities, which included lifting mail
trays/parcels, reaching for mailboxes/parcels, and switching around trays. She further indicated
that her injury/condition progressively worsened throughout the day and by the end of her workday
the pain was unbearable.
OWCP received an October 7, 2016 duty status report (Form CA-17) signed by
Dr. Vladimir Andries, an attending Board-certified internist, who diagnosed acute left-sided
sciatica. Dr. Andries also provided an October 7, 2016 attending physician’s report from the
authorization for examination and/or treatment (Form CA-16) issued by the employing
establishment on October 6, 2016. He diagnosed acute back strain. Both reports noted an
October 6, 2016 date of injury. On the Form CA-16 Dr. Andries indicated that appellant’s
condition was due to “lifting/carrying heavy loads.” He further advised that she was totally
disabled from October 7 through 14, 2016.
In an October 21, 2016 development letter, OWCP informed appellant that the information
received to date was insufficient to establish her claim for compensation benefits. It requested that
she submit additional factual information and medical evidence, and afforded her 30 days to submit
the necessary evidence.
Appellant submitted a November 14, 2016 statement explaining that she had sustained a
back injury four years prior and initially thought that her current condition might be related. She
further noted that her previous injury was on the right side, and that currently her left side was
hurting.
OWCP also received additional medical evidence from Dr. Andries dated October 7
and 14, and November 9, 2016, as well as an undated progress report. Appellant’s diagnoses
included sciatica and lumbar intervertebral disc disorder without myelopathy. In his October 7
and 14, 2016 narrative reports, Dr. Andries noted an October 7, 2016 date of injury. He indicated
that appellant had an “acute back syndrome caused by repetitive lifting.” On November 9, 2016
Dr. Andries advised that appellant could return to work without limitations.
By decision dated November 23, 2016, OWCP denied appellant’s traumatic injury claim,
finding that she failed to establish causal relationship between her diagnosed condition and the
accepted October 5, 2016 employment incident.

2

On December 19, 2016 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. On her appeal request form, she provided an address
(P.O. Box) different than her previous address of record.
In a February 15, 2017 letter, OWCP advised appellant that a hearing was scheduled for
April 5, 2017 at 9:00 a.m., Eastern Standard Time, at a listed address in New York City. It mailed
the February 15, 2017 letter to the address that was of record prior to the time she provided a new
address on her December 19, 2016 appeal request form.
Appellant did not appear for the scheduled hearing.
By decision dated April 18, 2017, OWCP found that appellant had abandoned her request
for a hearing. It determined that she received a written notice of the hearing 30 days before the
scheduled hearing, but did not appear and did not explain her absence either before or after the
scheduled hearing.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final adverse
decision by OWCP is entitled to receive a hearing upon writing to the address specified in the
decision within 30 days of the date of the decision for which a hearing is sought.2 Unless otherwise
directed in writing by the claimant, the representative of OWCP’s Branch of Hearings and Review
will mail a notice of the time, place, and method of the hearing to the claimant and any
representative at least 30 days before the scheduled date.3 OWCP has the burden of proving that
it mailed notice of a scheduled hearing to the claimant and any representative.4
A claimant who fails to appear at a scheduled hearing may request in writing within 10 days
after the date set for the hearing that another hearing be scheduled. Where good cause for failure
to appear is shown, another hearing will be scheduled and conducted by teleconference. The
failure of the claimant to request another hearing within 10 days, or the failure of the claimant to
appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing.5
Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary
course of business is presumed to have been received. This is known as the mailbox rule.6

2

Id. at § 8124(b)(1); 20 C.F.R. § 10.616(a).

3

Id. at § 10.617(b).

4

T.P., Docket No. 15-0806 (issued September 11, 2015).

5

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written
Record, Chapter 2.1601.6g (October 2011).
6

See James A. Gray, 54 ECAB 277, 280 (2002).

3

ANALYSIS
The Board finds that OWCP improperly determined that appellant abandoned her request
for a hearing.
The Board finds that the record does not establish that the notice of hearing was properly
addressed and mailed to appellant. On December 19, 2016 appellant informed OWCP that she
was no longer living at her address of record by providing a new address (P.O. Box). However,
on February 15, 2017, OWCP did not mail the notice of hearing to that address. Instead, it mailed
the hearing notice to the address that was of record prior to the time appellant provided her new
address on December 19, 2016. As the record demonstrates that OWCP did not mail the notice of
oral hearing to her at her last known address, the presumption inherent in the mailbox rule, i.e.,
that a notice properly addressed and mailed to an individual in the ordinary course of business was
received by that individual, is rebutted.7 Thus, the Board finds that the record contains no evidence
that appellant was properly notified of the oral hearing scheduled for April 5, 2017.8
For these reasons, OWCP has not met its burden of proof that it mailed appellant the notice
of the scheduled hearing. The case shall be remanded to OWCP to provide her the opportunity for
a hearing.9
CONCLUSION
The Board finds that OWCP improperly determined that appellant abandoned her request
for a hearing.

7
Id. See also R.W., Docket No. 15-1886 (issued February 4, 2016); Joseph R. Giallanza, 55 ECAB 186,
191 (2003).
8

See R.C., 59 ECAB 521, 524 (2008).

9

The case record includes an October 6, 2016 CA-16 form. When the employing establishment properly executes
a Form CA-16 which authorizes medical treatment as a result of an employee’s claim for an employment-related
injury, the Form CA-16 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. See
20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the April 18, 2017 decision of the Office of Workers’
Compensation Programs is reversed and the case is remanded to OWCP for action consistent with
this decision.
Issued: September 7, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, NORTHWESTERN
STATION POST OFFICE, Detroit, MI,
Employer
__________________________________________

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

Docket No. 20-0107
Issued: May 13, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 14, 2019 appellant filed a timely appeal from October 1, 2019 merit decisions
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 entitlement to wageloss compensation during the period July 20 to August 26, 2019, causally related to her accepted
January 22, 2019 employment injury.
1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the October 1, 2019 decisions, 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.

FACTUAL HISTORY
On January 22, 2019 appellant, then a 26-year-old full-time regular carrier, filed a
traumatic injury claim (Form CA-1) alleging that on that date, she slipped and fell on her right leg
while in the performance of duty. She stopped work on January 22, 2019. OWCP accepted the
claim for contusion of the lower back and pelvis and lumbar spine sprain. Appellant was paid
wage-loss compensation on the supplemental rolls as of March 9, 2019.
In a report dated April 29, 2019, appellant’s treating physician, Dr. Anna Trostinskaia, a
Board-certified internist, noted that appellant would be able to return to work on May 6, 2019 with
restrictions of working four hours per day, with two hours of walking, no lifting over 20 pounds,
and no bending. She indicated that these restrictions would continue until June 7, 2019.
Appellant accepted a modified limited-duty assignment on May 2, 2019 for four hours of
work per day. The offer listed the duties of the position as set up routes for one to two hours per
day, and deliver mail for two hours per day. The physical requirements of the position provided
no lifting over 20 pounds and no bending. The record reflects that appellant began the modified
limited-duty assignment on May 6, 2019. She continued to receive intermittent wage-loss
compensation on the supplemental rolls.
In a report dated June 7, 2019, Dr. Trostinskaia noted that appellant was able to return to
work for five hours per day with restrictions of two hours of walking, no lifting over 20 pounds,
and no bending. She indicated that these restrictions would continue until August 9, 2019.
On June 12, 2019 the employing establishment forwarded appellant a written modified
limited-duty job offer for two hours of work per day carrying mail. The physical requirements of
the position listed no bending, no lifting over 20 pounds, and walking limited to two hours per day.
Appellant accepted the offer on June 13, 2019.
In a report dated June 20, 2019, Dr. Trostinskaia that appellant was able to work for five
hours per day with two hours of walking, intermittent bending, and no lifting over 20 pounds. She
indicated that these restrictions would continue until August 9, 2019.
A July 6, 2019 field nurse report indicated that appellant was medically released to work
five hours per day, but that she was working two hours per day as the employing establishment
did not have work available for five hours per day.
In a July 17, 2019 report, Dr. Owais Khadem Alsrouji, a neurologist, noted that he
evaluated appellant for low back pain she had been having since her January 22, 2019 fall at work.
He diagnosed numbness and tingling of right leg and chronic midline low back pain with rightsided sciatica. Dr. Alsrouji ordered a magnetic resonance imaging (MRI) scan of the lumbar spine
with and without contrast and an electromyogram.
In a July 22, 2019 duty status report (Form CA-17), Dr. Trostinskaia, diagnosed acute
midline thoracic back pain and opined that appellant was unable to work.
On August 1, 2019 OWCP requested that Dr. Trostinskaia provide a narrative report which
addressed whether appellant’s work restrictions were supported by objective medical examination

2

findings. It also requested that she provide updated work restrictions due to the accepted medical
conditions.
On August 2, 2019 appellant filed a claim for compensation (Form CA-7) for disability for
the period July 20 to August 2, 2019. In an accompanying time analysis form (Form CA-7a),
appellant claimed eight hours of wage-loss compensation for LWOP each workday during this
period, pursuant to Dr. Trostinskaia’s July 22, 2019 report, except that she noted 2.35 hours of
work on July 30, 2019 and “off day.”
In an August 6, 2019 development letter, OWCP informed appellant that it had received
her wage-loss compensation claim for the period July 20 to August 2, 2019. It determined that her
claim was not payable in its entirety, but it authorized payment for 5.44 hours for July 20, 2019,
and three hours per day for July 23, 24, 25, 26, 27, 29, and 31, and August 1 and 2, 2019. OWCP
noted that appellant had worked in a limited-duty position within her restrictions until July 23,
2019, when she stopped work. It further noted that the evidence indicated that the light-/limitedduty position was available to her within her medical restrictions, and she was required to provide
evidence to explain why she was unable to work the light-/limited-duty assignment. OWCP
advised appellant of the type of evidence needed to establish her disability claim and afforded her
30 days to submit the necessary evidence.
An August 17, 2019 MRI scan of appellant’s lumbar spine noted an impression of minimal
annular fissure on the left L3-4 with minimal facet arthropathy at L5-S1.
In an August 22, 2019 report, Dr. Trostinskaia advised that appellant should be excused
from work for the period July 23 to August 22, 2019. She diagnosed a back contusion.3
On August 23, 2019 appellant filed a claim for wage-loss compensation (Form CA-7) for
80 hours of LWOP for the period August 3 to 16, 2019. She indicated that she had not worked
during this time period.
On August 26, 2019 appellant accepted a written modified limited-duty position for five
hours of work per day. The duties of the position required one hour of casing mail and three and
a half hours of carrying mail per day. The physical requirements of the position provided for:
repetitive reaching, twisting, grasping, and holding up to five hours per day; lifting and carrying
small bundles up to 20 pounds for three and a half hours per day; and standing and walking up to
five hours per day.
The record reflects that appellant did not receive any intermittent wage-loss compensation
between August 3 and 26, 2019. OWCP commenced payment of intermittent wage-loss
compensation as of August 26, 2019.
In a development letter dated August 27, 2019, OWCP advised appellant that it had
received her Form CA-7 claiming wage-loss compensation commencing August 3, 2019. It noted
that the evidence of record indicated that she stopped work on August 3, 2019 and had not returned.
OWCP also noted that appellant had been working her limited-duty job within her restrictions until
3

Appellant also submitted Dr. Trotinskaia submitted an OWCP-5c dated August 22, 2019 indicating appellant’s
restrictions.

3

August 3, 2019. It indicated that the evidence on file indicated that a light-/limited-duty
assignment was available within the medical restrictions provided by her physician. OWCP
indicated that appellant’s treating physician did not provide a well-rationalized opinion as to why
she was no longer able to work a limited-duty position. Appellant was advised that she should
provide a well-rationalized opinion, based upon objective examination findings, explaining why
she could not work in any capacity, including in the light-/limited-duty assignment which was
available within her restrictions.
Appellant submitted a September 3, 2019 claim for wage-loss compensation (Form CA-7)
in which she claimed intermittent disability from August 17 to 30, 2019. In an accompanying time
analysis form (Form CA-7a), appellant listed the hours she had worked as of August 26, 2019.
OWCP received a September 9, 2019 work excuse from Renesha Perdue, a medical
assistant, for the period July 22 to August 22, 2019, based on a diagnosis of back contusion and
back spasms.
In a September 24, 2019 report, Dr. Trostinskaia advised that appellant should have been
excused from work for the period July 22 to August 22, 2019. She noted that appellant continued
to have swelling in her lower back, sciatic pain, and back spasms, and that further diagnostic testing
was required.
By decision dated October 1, 2019, OWCP denied appellant’s wage-loss compensation
claim for the period July 20 through August 2, 2019. It determined that payment of 5.44 hours
wage-loss compensation was authorized for July 20, 2019 and that payment of wage-loss
compensation for 3 hours per day was authorized for July 23, 24, 25, 26, 27, 29, and 31, and
August 1 and 2, 2019. OWCP noted that appellant had been provided a limited-duty job offer for
five hours of work per day, within her medical restrictions as provided by Dr. Trostinskaia, her
treating physician. It further explained he had provided a work excuse with a diagnosis of back
contusion, but had not explained why appellant was unable to work limited duty.
By separate decision of even date, OWCP denied appellant’s wage-loss compensation
claim for the period commencing August 3, 2019. It noted that she stopped work on August 3,
2019 and returned to work on August 26, 2019. OWCP found that the September 24, 2019 note
from Dr. Trostinskaia indicated that appellant was unable to work from July 22 to
August 22, 2019; however, she diagnosed back contusion, but failed to explain why appellant was
unable to work within her restrictions. It again noted that appellant had been offered limited duty
within her restrictions.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim by the preponderance of the evidence.5 For each period of
disability claimed the employee has the burden of proof to establish that he or she was disabled

4

Supra note 1.

5

See B.F., Docket No. 19-0123 (issued May 13, 2019); M.D., Docket No. 18-0474 (issued October 3, 2018);
Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).

4

from work as a result of the accepted employment injury. 6 Whether a particular injury caused an
employee to become disabled from work and the duration of that disability, are medical issues that
must be proven by a preponderance of probative and reliable medical opinion evidence. 7
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the limited-duty job requirements.8
OWCP’s procedures require that offers of employment be made in writing, or if made
orally be provided in writing within two business days. 9 Neither the Board nor OWCP can evaluate
a light-duty position offer unless the position is in writing. 10
ANALYSIS
The Board finds that this case is not in posture for a decision.
OWCP’s regulations at 20 C.F.R. § 10.500(a) specifically provides that an employee is not
entitled to compensation for any wage loss claimed on a Form CA-7 to the extent that evidence
contemporaneous with the period claimed on a Form CA-7 establishes that an employee had
medical work restrictions in place, that light duty within those work restrictions was available, and
that the employee was previously notified in writing that such light duty was available. 11
The evidence of record establishes that as of June 7, 2019 Dr. Trostinskaia reported that
appellant was able to return to work for five hours per day with restrictions on walking, lifting,
and bending.
OWCP paid appellant intermittent wage-loss compensation until August 2, 2019 for three
hours of wage loss per day, ostensibly under a finding that appellant had been offered a modified
job offer within Dr. Trostinskaia’s restrictions for five hours of work each day. However, the
record fails to establish that appellant was presented with a written offer of employment, providing
6

Id.

7

M.D., supra note 4; see Edward H. Horton, 41 ECAB 301 (1989).

8 See D.W., 19-1584 (issued July 9, 2020); K.P., Docket No. 19-1811 (issued May 12, 2020); S.D., Docket No.
19-0955 (issued February 3, 2020); Terry R. Hedman, 38 ECAB 222 (1986).
9 20

C.F.R. § 10.505(a) (where the employer has specific alternative positions available the employer should advise
the employee in writing); 20 C.F.R. § 10.507(c) (The employer must make any job offer in writing. However, the
employer may make a job offer verbally as long as it provides the job offer to the employee in writing within two
business days of the verbal job offer.); Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to
Work, Chapter 2.814.4(a)(1) (June 2013).
10

Id.

11

See also R.S., Docket No. 19-1605 (issued May 28, 2020).

5

her with a position that would allow her to work within her restrictions for five hours a day during
the period July 20 to August 26, 2019.
On June 12, 2019 the employing establishment offered, and appellant accepted, a modified
limited-duty offer for two hours of work per day. The record indicates that it was not until
August 26, 2019 that the employing establishment offered and appellant accepted a written
modified job offer for five hours of work per day.
OWCP did not pay appellant any wage-loss compensation from August 3 through 26, 2019.
It continued to find that the employing establishment had made light work available for five hours
a day, within appellant’s restrictions. However, as previously noted, the record does not establish
that work was offered to appellant for more than two hours a day until August 26, 2019.
The Board finds that these discrepancies in the evidence of record preclude it from making
an informed decision on appellant’s compensation claim. 12 While OWCP continued to find that
work was available within appellant’s medical restrictions during the claimed time periods for five
hours a day, the current record does not contain a written job offer establishing that work was
available for more than two hours a day during this period. Upon return of the case record, it shall
make additional findings as to the number of hours per day that work was made available, by a
written job offer, during the time period in question. Thereafter, OWCP shall determine whether
appellant has established that she was unable to perform the duties of the offered position. Based
upon these findings, it shall determine appellant’s entitlement to additional wage-loss
compensation from July 20 to August 26, 2019. Following this and such further development as
OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

See S.B., Docket No. 18-0147 (issued August 19, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the October 1, 2019 decisions of the Office of
Workers’ Compensation Programs are set aside and remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: May 13, 2021
Washington, D.C.

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Surfside Beach, SC, Employer
__________________________________________

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Appearances:
John C. Bacot, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1926
Issued: March 26, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 15, 2006 appellant, through his attorney, filed a timely appeal from a July 21,
2006 nonmerit decision denying his request for reconsideration.1 As the last merit decision in
this case was issued on August 3, 2005, the Board lacks jurisdiction to review the merits of this
case.2 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the July 21,
2006 nonmerit decision.
ISSUE
The issue is whether the Office properly denied his request for reconsideration of the
merits of his claim under 5 U.S.C. § 8128.

1

The appeal was postmarked August 10, 2006.

2

20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
On June 13, 2005 appellant, then a 50-year-old letter carrier, filed an occupational disease
claim alleging that he sustained “mental status changes, confusion, back pain, shortness of
breath, numbness [and a] repetitive motion injury to [the] right shoulder” due to factors of his
federal employment. He related that he injured his leg and left shoulder when he “fell at the top
of a stairway” on May 18, 2005. Appellant stopped work on May 23, 2005 and did not return.
Appellant submitted hospital discharge summaries signed by a nurse dated May 25 and
June 2, 2005. On June 24, 2005 the Office requested that he submit additional supporting factual
evidence, including a detailed description of the employment factors to which he attributed each
claimed condition. Appellant submitted a form report dated June 15, 2005 from Dr. Karen
McCutcheon, who specializes in family practice. Dr. McCutcheon diagnosed a shoulder strain.
She responded “yes” that the history of injury corresponded to that provided on the form of
appellant falling while delivering packages on the second floor. Dr. McCutcheon also noted that
he had auditory hallucinations. She opined that appellant was unable to work.
On July 12, 2005 appellant informed the Office that both he and his physician believed
that his May 18, 2005 fall caused changes in his mental status and shortness of breath. He
further indicated that he and Dr. McCutcheon believed that he sustained a repetitive motion
injury to his right shoulder at work which began in August 2004.
In a form report dated July 19, 2005, Dr. McCutcheon diagnosed rotator cuff tendinitis
and found that appellant was totally disabled from June 15, 2005 to the present. She noted a
history of injury as appellant falling down stairs and injuring his right shoulder.
Dr. McCutcheon checked “yes” that the condition was caused or aggravated by employment.
On July 20, 2005 the employing establishment noted that appellant was claiming an
additional traumatic injury resulting from his May 18, 2005 fall at work. The employing
establishment indicated that appellant had an accepted left shoulder condition under file number
062142971.3
By decision dated August 3, 2005, the Office found that appellant had not established that
he sustained an injury in the performance of duty. It found that he had not established that the
implicated employment factors occurred as alleged and had not submitted sufficient medical
evidence to establish a diagnosed condition resulting from employment. The Office further
determined that appellant had not established a consequential injury resulting from his fall at
work on May 18, 2005.
On July 12, 2006 appellant requested reconsideration of his claim. He noted that he was
submitting a psychological evaluation and the letter from Mr. Swain. By decision dated July 21,
3

In a statement received by the Office on July 25, 2005, Edworth Swaim Jr., a union president, related that
appellant telephoned him on May 18, 2005 after he fell down stairs while delivering mail. He injured his back,
shoulder and possibly knees and head. Subsequent to the fall, Mr. Swaim observed changes in appellant’s mood,
physical condition and memory. On May 23, 2005 appellant telephoned Mr. Swaim sounding confused and ill. He
was admitted to the hospital that date and again on May 31, 2005. Mr. Swaim reported that since his fall appellant
was confused, unable to concentrate and forgetful.

2

2006, the Office denied appellant’s request for reconsideration on the grounds that the evidence
was insufficient to warrant reopening his claim for merit review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) submit relevant and
pertinent new evidence not previously considered by the Office.5 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.7
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.8 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.9 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.10
ANALYSIS
Appellant requested reconsideration and asserted that he was submitting a psychological
evaluation. The case record, however, does not contain a copy of the evaluation. He also
resubmitted the letter from Dr. Swain already of record. However, evidence that repeats or
duplicates evidence already in the case record has no evidentiary value and does not constitute a
basis for reopening a case.11
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit new

4

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
5

20 C.F.R. § 10.606(b)(2).

6

20 C.F.R. § 10.607(a).

7

20 C.F.R. § 10.608(b).

8

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

9

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

10

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

11

Freddie Mosley, 54 ECAB 255 (2002).

3

and relevant evidence not previously considered. As he did not meet any of the necessary
regulatory requirements, he is not entitled to further merit review.
On appeal appellant, through his attorney, contends that he submitted a
neuropsychological evaluation to the Office with his request for reconsideration. As noted,
however, the case record does not contain a copy of the evaluation.12
CONCLUSION
The Board finds that the Office properly denied his request for reconsideration of the
merits of his claim under 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 21, 2006 is affirmed.
Issued: March 26, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

12

Appellant submitted evidence subsequent to the Office’s July 21, 2006 decision. The Board has no jurisdiction
to review this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c). Appellant can submit this evidence to
the Office with a request for reconsideration under 5 U.S.C. § 8128.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Raleigh, NC, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-2021
Issued: July 7, 2014

Case Submitted on the Record

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

JURISDICTION
On September 3, 2013 appellant, through her representative, filed a timely appeal from
the August 23, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied her disability claim.1 Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 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 appellant’s May 3, 2010 employment-related lumbar strain caused
disability for work.

1

Oral argument, initially scheduled before the Board for June 3, 2014, was cancelled.

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 3, 2010 appellant, a 46-year-old enumerator, sustained a traumatic injury in the
performance of duty when she was involved in a motor vehicle accident. She was taken to the
emergency room for evaluation. Appellant was prescribed medication and discharged in no
acute distress to her home with instructions not to drive while taking the narcotic. She was
released to return to work in three days. Appellant returned to the emergency room 10 days later
with complaints of back pain. She was out of medication. Appellant received continuation of
pay.
Dr. Richard L. Wheeler, a Board-certified family practitioner, saw appellant on
June 22, 2010. Appellant’s back was still hurting, and she was again out of medication.
Dr. Wheeler observed that she did not appear to be in any distress. Appellant was diffusely
tender on the left and right side of her entire lumbar spine. There was no focal tenderness.
Straight leg raises were negative bilaterally. Motor and sensory responses were intact and
appellant’s reflexes were symmetric.
Dr. Wheeler diagnosed a lumbar strain secondary to a motor vehicle accident. He
prescribed heat and muscle stretching twice a day. Dr. Wheeler reviewed proper sitting, standing
and lifting. He instructed her to keep an appointment on July 8, 2010 with a specialist.
Dr. Wheeler found appellant to be in stable condition.
Appellant received disability/restrictions information from the urgent care clinic:
“Patient may return to work on June 23, 2010 with the following limitations: No lifting, pushing
or pulling. No twisting or bending over. Alternate sitting and walking as needed for comfort.”
OWCP initially denied appellant’s injury claim on July 1, 2010. On January 4, 2011 it
accepted the claim for lumbar strain on the basis of Dr. Wheeler’s June 22, 2010 report. OWCP
advised that, if her injury resulted in lost time from work, she might be eligible to receive
continuation of pay for up to 45 days, following which she could claim compensation using a
Form CA-7: “Medical documentation substantiating that the lost time is due to the accepted
work-related condition(s) is required prior to payment.”
Appellant filed a Form CA-7 claiming compensation for total disability from May 3,
2010 to May 19, 2011. She indicated that she had worked outside her federal job in the field of
home health care around the month of September 2010. Appellant subsequently claimed
compensation for total disability from May 3, 2010 to January 18, 2012.
In a decision dated March 6, 2012, OWCP denied appellant’s claim for wage loss. It
found that the medical evidence failed to provide a diagnosis of the accepted lumbar strain or any
work restrictions related to the accepted condition.3

3

An OWCP hearing representative had just determined that the medical evidence was insufficient to establish
that the May 3, 2010 work incident caused or aggravated multilevel degenerative disc disease in the thoracolumbar
spine or L4-5 spondylolisthesis or lumbar fusion surgery.

2

Appellant requested reconsideration and pointed to Dr. Wheeler’s June 22, 2010 report,
which provided physical restrictions. She noted that her job as census taker required walking
long distances. “As Dr. Wheeler’s report was sufficient to have the claim accepted, it is also
sufficient to provide appropriate restrictions.”
In a decision dated October 10, 2012, OWCP reviewed the merits of appellant’s claim. It
noted that none of the medical evidence specifically addressed total disability for work due to the
accepted lumbar strain. OWCP further noted that appellant’s Form CA-7 indicated that she did
work for a period of time in the home health care industry following her work injury, and that
she underwent lumbar surgery on June 13, 2011. “It appears that your disability was related to
the nonjob-related lumbar surgery.” As appellant failed to provide clarifying evidence in support
of her wage-loss claim, OWCP denied modification of the March 6, 2012 decision.
On July 24, 2013 appellant, through counsel, requested reconsideration contending that
Dr. Wheeler’s June 22, 2010 report provided work restrictions and was sufficient for OWCP to
have accepted the claim.
In an August 23, 2013 decision, OWCP denied modification of the October 10, 2012
decision.
Appellant argues, as she did on reconsideration, that Dr. Wheeler’s June 22, 2010 report,
which was sufficiently probative for OWCP to accept her claim, should also be sufficiently
probative to establish disability for work.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.4 A claimant seeking benefits under FECA has
the burden of proof to establish the essential elements of her claim by the weight of the
evidence,5 including that she sustained an injury in the performance of duty and that any specific
condition or disability for work for which she claims compensation is causally related to that
employment injury.6
When the medical evidence establishes that the residuals of an employment injury are such
that, from a medical standpoint, they prevent the claimant from continuing in her employment, she
is entitled to compensation for any loss of wage-earning capacity resulting from such incapacity.7

4

5 U.S.C. § 8102(a).

5

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

6

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

3

ANALYSIS
OWCP accepted that the May 3, 2010 work incident caused a lumbar strain. Appellant
claims that this lumbar strain caused total disability for work from May 3, 2010 to
January 18, 2012. She has the burden of proof to establish the claimed disability.
The Board can find no probative medical evidence of record to establish appellant’s
disability claim. Dr. Wheeler did not directly address the issue. His reports neither demonstrate
an understanding of the physical demands of appellant’s date-of-injury job nor explain how the
accepted lumbar strain prevented her from performing her duties for the better part of two years.
Appellant indicated on her claim form that she was physically able to work during this
period in the field of home health care. The record also indicates that she suffered from medical
conditions other than the accepted lumbar strain and underwent a lumbar fusion surgery during
this period. OWCP has not accepted that the May 3, 2010 work incident caused or aggravated
appellant’s degenerative disc disease in the thoracolumbar spine or L4-5 spondylolisthesis or
necessitated the lumbar fusion surgery. There is insufficient evidence that her accepted medical
condition caused disability for work. Appellant may not receive compensation for wage loss
through her accepted injury claim.
Appellant argues that Dr. Wheeler’s June 22, 2010 report should be sufficiently probative
to establish her disability for work. That OWCP found this report sufficient to establish a
diagnosis causally related to the May 3, 2010 work injury does not mean, however, that the
report is sufficient to establish her claimed disability for work. These are separate issues.
Dr. Wheeler, the family physician, did not directly address appellant’s disability claim.
He saw appellant on June 22, 2010, about a month and a half after the motor vehicle accident,
and he diagnosed a lumbar strain secondary to the accident. Dr. Wheeler did not find that the
muscle strain disabled her for work, and he did not note any specific dates of disability. The
Board will not require OWCP to pay compensation for disability in the absence of medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.8
Appellant points to an informational document she received from the urgent care clinic
following her June 22, 2010 examination. This literature, unsigned by a physician, provided
physical limitations, but it indicated that she could return to work the next day.
Rather than submit medical opinion evidence addressing her disability for work causally
related to the accepted lumbar strain, appellant’s claim rests on the interpretation that she gives
this informational document. She argues that the limitations establish disability for work
because her job as census taker required walking long distances and, presumably, this was
inconsistent with the limitation of alternating her walking and sitting as needed for comfort. The
record provides no foundation to support such a conclusion. Dr. Wheeler did not review the
physical demands of the date-of-injury position or explain how the lumbar strain prevented her
8

Fereidoon Kharabi, 52 ECAB 291 (2001).

4

from performing her job. As noted, the discharge instructions released appellant to return to
work. Appellant’s interpretation of the physical limitations appears to be at odds with her
medical provider. The limitations given on June 22, 2010, accompanied by a release to return to
work the next day, does not establish total disability for work from May 3, 2010 to
January 18, 2012.
Accordingly, the Board finds that appellant has not met her burden of proof. The Board
will affirm OWCP’s August 23, 2013 decision denying her disability claim. Appellant may
submit new evidence or argument with a written request for reconsideration to OWCP within one
year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through
10.607.
CONCLUSION
The Board finds that appellant has not met her burden to establish that her May 3, 2010
lumbar strain injury caused disability for work.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 7, 2014
Washington, DC

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

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

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

5