United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 14-1704
Issued: December 8, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 1, 2014 appellant, through counsel, filed a timely appeal from the
May 14, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for merit review. Pursuant the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. Because more than 180 days has elapsed between
the last merit decision of OWCP, dated August 2, 2013, and the filing of this appeal, the Board
lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
OWCP accepted that on January 7, 2011 appellant, then a 52-year-old rural carrier,
sustained a tear of the rotator cuff of her right shoulder. She did not stop work at the time of her
1

5 U.S.C. § 8101 et seq.

injury. Instead, appellant began working in a limited-duty position for the employing
establishment. She stopped work in March 2011 and on May 5, 2011 she underwent right rotator
cuff repair surgery which was authorized by OWCP. Appellant received disability compensation
on the periodic rolls.
In October 2011, Dr. John T. Ogden, an attending Board-certified orthopedic surgeon,
recommended that appellant have permanent work restrictions and she began participating in an
OWCP-authorized vocational rehabilitation program designed to help return her to work. In
May 2012, appellant participated in informal computer instruction sessions at a local library as a
means of improving her work skills. In June and October 2012, she underwent surgeries for
nonwork-related conditions which arose after her January 7, 2011 work injury.
Robert Miller, appellant’s vocational rehabilitation counselor, determined that appellant
was able to earn wages in the constructed position of receptionist. The receptionist position was
chosen from the Department of Labor, Dictionary of Occupational Titles (DOT) and bore the
DOT No. 237.367.038. The position involved receiving visitors to establishments, handling
incoming telephone calls, and engaging in some clerical work on a computer.2 It was a sedentary
job which required exerting up to 10 pounds of force on an occasional basis. A state labor
market survey conducted by Mr. Miller showed that the receptionist position was reasonably
available in appellant’s commuting area at an entry-level wage of $360.00 a week.3
In a January 25, 2013 letter, OWCP advised appellant that it proposed to reduce her
wage-loss compensation based on her capacity to earn wages in the constructed position of
receptionist. It indicated that the position, chosen from the DOT, was medically and
vocationally suitable for appellant and was reasonably available in her commuting area.
In a March 13, 2013 decision, OWCP reduced appellant’s wage-loss compensation
effective March 13, 2013 based on her capacity to earn wages in the constructed position of
receptionist. It found that she was medically and vocationally capable of performing the position
and that it was reasonably available in her commuting area. OWCP calculated appellant’s loss of
wage-earning capacity through application of the principles set forth in the Board decision,
Albert C. Shadrick.4
In a March 15, 2013 letter, appellant, through counsel at the time, argued that she did not
have adequate computer skills to work as a receptionist.
By decision dated August 2, 2013, OWCP affirmed its March 13, 2013 loss of
wage-earning capacity determination noting that the reduction of appellant’s compensation was
proper given her capacity to earn wages in the constructed position of receptionist. It was noted
that Mr. Miller had provided an opinion that appellant was vocationally capable of working as a
receptionist.
2

Mr. Miller indicated that appellant had the requisite computer skills for the receptionist position based on her
work for the employing establishment and other prior work experience.
3

Mr. Miller also indicated that appellant could work in the constructed position of customer service, bearing the
DOT No. 249.362.026.
4

5 ECAB 376 (1953).

2

In a March 17, 2014 letter, counsel, on behalf of appellant, requested reconsideration of
OWCP’s August 2, 2013 decision. He argued that OWCP’s loss of wage-earning capacity
determination was improper because it was based on a position selected from the DOT, i.e., the
constructed position of receptionist. Counsel claimed that the Department of Labor had replaced
the DOT with the Occupational Information Network, an internet database, and stated:
“The basis of this motion is that the job position identified as the basis for the
[loss of wage-earning capacity] was based on an antiquated and defunct
publication. The job identified in the decision [cannot] be shown to actually exist
in the present economy. The use of the [DOT] is out of date. The publication is
no longer used and it has not been updated for many years. Therefore, the
conclusion reached in this case is based upon an outdated reference and is no
better than fiction. This injured worker and all injured workers who have [loss of
wage-earning capacity] decisions based on the DOT have been denied their basic
rights under the law.”5
In a May 14, 2014 decision, OWCP denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a) noting that counsel’s argument regarding
OWCP’s use of the DOT to select the position of receptionist did not have a reasonable color of
validity.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.7 To be entitled to a merit review
of an OWCP 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.8 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.9 The Board has held that the submission of evidence
or argument which repeats or duplicates evidence or argument already in the case record10 and the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.11 While a reopening of a case may be predicated solely on
5

Appellant submitted a November 18, 2013 statement in which she argued that she did not have sufficient
computer skills to work as a receptionist.
6

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.606(b)(2).

8

Id. at § 10.607(a).

9

Id. at § 10.608(b).

10

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

11

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

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a legal premise not previously considered such reopening is not required where the legal
contention does not have a reasonable color of validity.12
OWCP procedures provide that in cases where the claimant has undergone vocational
rehabilitation, the vocational rehabilitation counselor will submit a final report to the vocational
rehabilitation specialist summarizing why vocational rehabilitation was unsuccessful and listing
two or more jobs which are medically and vocationally suitable for the claimant. The report will
include the corresponding job numbers from the Department of Labor’s DOT or (OWCPspecified equivalent) and pay ranges in the relevant geographical area. The vocational
rehabilitation counselor will also include the DOT’s description (or OWCP specified equivalent)
of the duties and physical requirements of each job.13 Vocational rehabilitation counselors are
experts in the field of vocational rehabilitation and OWCP may rely on their opinions as to
whether a job is reasonably available and vocationally suitable.14
ANALYSIS
OWCP issued a decision on August 2, 2013 in which it affirmed its reduction of
appellant’s compensation based on her capacity to earn wages in the constructed position of
receptionist. Appellant requested reconsideration of this decision in March 2014.
As noted above, the Board does not have jurisdiction over the August 2, 2013 merit
decision. The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In her application for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. She did not identify a specific point of law or show that it
was erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument. Her main argument, made through counsel, was that OWCP’s loss of wage-earning
capacity determination was improper because it was based on a position selected from the DOT,
i.e., the constructed position of receptionist. The Board notes that OWCP properly found that
this argument does not have a reasonable color of validity. OWCP procedures provide that in
cases where the claimant has undergone vocational rehabilitation, the vocational rehabilitation
counselor will submit a final report summarizing why vocational rehabilitation was unsuccessful
and listing two or more jobs which are medically and vocationally suitable for the claimant.
Such jobs are selected from the Department of Labor’s DOT or an OWCP-specified equivalent.15
Because appellant’s argument that OWCP improperly used the DOT does not have a reasonable
color of validity, the presentation of this argument does not require reopening of her claim for
review on the merits.16 She also argued that she did not have sufficient computer skills to work
as a receptionist, but OWCP has previously considered and rejected this argument. The Board

12

John F. Critz, 44 ECAB 788, 794 (1993).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.4 (June 2013); see also T.G., Docket No. 14-921 (issued September 17, 2014).
14

D.J., Docket No. 14-863 (issued August 25, 2014).

15

See supra note 12.

16

See supra note 11.

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has held that the submission of argument which repeats or duplicates argument already in the case
record does not constitute a basis for reopening a case.17
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

17

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980). The Board noted that
OWCP had relied on the opinion of appellant’s vocational rehabilitation counselor who provided a clear opinion that
she had sufficient computer skills to work as a receptionist. See supra note 13.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Colorado Springs, CO, Employer
__________________________________________

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

Docket No. 13-57
Issued: August 26, 2013

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 October 10, 2012 appellant filed a timely appeal from a May 23, 2012 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 OWCP properly denied authorization for appellant’s right knee
surgeries of August 9, 2010 and May 21, 2012.
FACTUAL HISTORY
On July 26, 2010 appellant, then a 51-year-old city carrier, was in a motor vehicle
accident struck in the rear by another vehicle while he was making a left turn. He alleged injury
to his neck, shoulders, lower back and knees. On August 9, 2010 OWCP accepted appellant’s
claim for sprain of neck and lumbar spine and contusions to face, scalp, neck and right knee. On
1

5 U.S.C. §§ 8101-8193.

November 29, 2011 it accepted the claim for tear of medial meniscus of left knee. Appellant had
the following preexisting conditions, a right knee meniscus tear, arthritis and degenerative joint
disease at C4-7 and lumbar spine (VA service-connected disability); high blood pressure and
high cholesterol; and preexisting shoulder and hip conditions.
On August 9, 2010 Dr. Joel B. Gonzales, a Board-certified orthopedic surgeon,
performed surgery on the right knee for an arthroscopic partial lateral meniscectomy and
chondroplasty of the medial femoral condyle and trochlea. On September 20, 2010 he completed
a work capacity form limitating appellant’s walking, standing, bending, stooping, lifting,
squatting, kneeling and climbing. Dr. Gonzales indicated that appellant had a temporary
permanent aggravation of the right knee lateral meniscus tear and degenerative joint disease.
Appellant was treated by Dr. Jack L. Rook, a Board-certified physiatrist, for the injuries
sustained in the employment-related motor vehicle accident. In an August 20, 2010 report,
Dr. Rook diagnosed cervical and thoracic strain, right-sided sacroiliac joint and gluteal strain and
right knee contusion/status post lateral meniscectomy. He noted that appellant appeared to have
sustained soft tissue injuries to his neck, trapezius and low back region in the accident.
Appellant sustained an aggravation of right knee pain but had already been scheduled to receive
treatment for a lateral meniscus tear when he was involved in the accident. In a March 1, 2011
note, he indicated that appellant would see Dr. Wallace Larson, a Board-certified orthopedic
surgeon, with regard to his left knee. Dr. Rook noted that he treated appellant with Celebrex and
Soma.
OWCP referred appellant to Dr. William Watson, a Board-certified orthopedic surgeon
for a second opinion. In a November 2, 2010 report, Dr. Watson listed his impressions as sprain
of neck, lumbar spine and contusions of the face, scalp and neck and right knee contusion. Prior
to answering OWCP’s questions, he requested a magnetic resonance imaging (MRI) scan of both
the lumbar and cervical spine, so that he could compare these tests with the tests taken before the
accident. In a December 27, 2010 follow-up report, Dr. Watson stated that the right knee
contusion had resolved. In an April 25, 2011 report, he answered further questions from OWCP.
In response to a question about the causal relationship of the injury to appellant’s right knee,
Dr. Watson stated that Dr. Gonzales, on September 20, 2010, opined that appellant’s July 26,
2010 injury resulted in permanent aggravation of appellant’s preexisting right lateral meniscus
degenerative changes. He stated that, since the surgeon had first-hand knowledge of this, he
concurred with Dr. Gonzales’ opinion. Dr. Watson noted that he had no other evidence that
appellant’s employment injury aggravated or caused permanent changes except for the surgeon’s
opinion and appellant’s medical history.
In a November 9, 2011 letter, OWCP asked Dr. Gonzales to address whether appellant’s
right knee surgery was related to his work injury of July 26, 2010 or due to a preexisting
condition. It asked Dr. Gonzales to explain how appellant’s work injury caused or aggravated
his injuries. In a November 29, 2011 note received by OWCP, “Sharon” indicated that
Dr. Gonzales would not complete the form. The record contains evidence that on January 24,
2012, Dr. Gonzales’ office stated that it was not their responsibility.
In a February 22, 2012 report, Dr. Larson assessed appellant with bilateral medial
meniscus tears with history of hypertension and diabetes. He opined that appellant should have

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knee arthroscopies and noted that appellant wished to proceed first on the left side. On
March 22, 2012 Dr. Larson performed a left knee arthroscopy, resection of the medial synovial
plica and chondroplasty of the medial femoral condyle and trochlea.
On March 12, 2012 OWCP referred appellant to Dr. John D. Douthit, a Board-certified
orthopedic surgeon, for a second opinion. In a report dated April 16, 2012, Dr. Douthit stated
that the injury of July 26, 2010 caused a right knee contusion with temporary aggravation,
resolved. He noted that appellant was having significant problems with both knees prior to his
injury, as documented by notes from the Veterans Hospital. Appellant had MRI scans prior to
the accident that showed meniscal damage and the operative report after the accident did not
relate the surgery to any aggravation. Dr. Douthit concluded that the medical records did not
support that the pathology for which surgery was performed on August 9, 2010 was caused by
the automobile accident. He further opined that the procedure performed on August 9, 2010 was
medically necessary but to treat a preexisting problem as demonstrated on the MRI scan obtained
prior to the accident.
On May 11, 2012 OWCP authorized a right knee arthroscopic surgery to be performed
between May 21 and June 21, 2012 by Dr. Larson. On the same date, OWCP approved the left
knee surgery performed by Dr. Larson on March 22, 2012.
On May 21, 2012 Dr. Larson performed a right knee arthroscopy, lateral meniscectomy
and chondroplasty of medial femoral condyle and trochlea.
Dr. Rook continued to monitor appellant’s progress and treat appellant for his
musculoskeletal ailments including bilateral knee pain, neck pain and low back pain. In a
February 23, 2012 report, he indicated that he would see how appellant was after his knee
surgeries.
On May 23, 2012 OWCP issued a decision denying authorization for appellant’s
August 9, 2010 right knee surgery by Dr. Gonzales and the May 21, 2012 right knee surgery by
Dr. Larson.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician who OWCP, under authority delegated by
the Secretary of Labor, considers likely to cure, give relief, reduce the degree or the period of
disability or aid in lessening the amount of monthly compensation.2 While OWCP is obligated
to pay for treatment of employment-related conditions, the employee has the burden of
establishing that the expenditure is incurred for treatment of the effects of an employment-related
injury or condition.3

2

Id. at § 8103; see L.D., 59 ECAB 648 (2008).

3

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

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In interpreting section 8103(a), the Board has recognized that OWCP has broad
discretion in approving services provided under section 8103(a), with the only limitation on
OWCP’s authority being that of reasonableness.4 Abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or actions taken
which are contrary to both logic and probable deductions from established facts. It is not enough
to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.5 To be entitled to reimbursement of medical expenses, a claimant has the burden of
establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.6 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the surgery is for a condition causally related to an
employment injury and that it is medically warranted. Both of these criteria must be met in order
for OWCP to authorize payment.7
Authorization by OWCP for medical examination and/or treatment constitutes a
contractual agreement to pay for the services if the services are rendered, regardless of whether a
compensable injury or condition exists. Moreover, any medical condition resulting from
authorized examination or treatment (such as residuals from surgery) may form the basis for a
compensation claim for impairment or disability, regardless of the compensability of the original
injury.8
ANALYSIS
OWCP accepted appellant’s claim for contusion to the right knee as a result of
appellant’s employment-related motor vehicle accident of July 26, 2010. The Board notes that
appellant had an extensive history prior to his employment injury of pathology to his right knee.
On August 9, 2010 appellant underwent an arthroscopic partial lateral meniscectomy and
chondroplasty of medial femoral condyle and trochlea, right knee by Dr. Gonzales. On May 21,
2012 appellant underwent a right knee arthroscopy, lateral meniscetomy and chondroplasty of
medial femoral condyle and trochlea by Dr. Larson.
The Board finds that OWCP improperly denied medical expenses with regard to
appellant’s May 21, 2012 surgery by Dr. Larson. The Board notes that on May 11, 2012, OWCP
specifically authorized the upcoming right knee arthroscopic surgery scheduled to be performed
by Dr. Larson. OWCP had a contractual obligation to pay for surgery.9 Accordingly, its denial
of the surgery on May 21, 2012 for a right knee arthroscopy is reversed.
4

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

5

Minnie B. Lewis, 53 ECAB 606 (2002).

6

M.B., 58 ECAB 588 (2007).

7

R.C., 58 ECAB 238 (2006); see also J.H., Docket No. 12-1950 (issued February 13, 2013).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment; Request for
Authorization; Contractual Obligation, Chapter 3.300(2)(b).
9

Id.

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The Board will affirm OWCP’s denial of the August 9, 2010 arthroscopic surgery by
Dr. Gonzales. Appellant had a preexisting history of right knee pathology. Dr. Gonzales,
appellant’s treating surgeon, listed on a September 20, 2010 work capacity evaluation form that
appellant sustained a permanent aggravation of the right knee lateral meniscus tear and
degenerative joint disease. Dr. Gonzales did not provide a rationalized medical opinion
addressing how this aggravation of appellant’s knee condition was causally related to the
accepted motor vehicle accident. The Board notes that the physician specifically declined to
provide further explanation despite OWCP’s request on November 9, 2011. The January 24,
2012 response of his office was that it was not their responsibility.
Dr. Watson opined that appellant’s July 26, 2010 employment injury resulted in
permanent aggravation of appellant’s preexisting right lateral meniscus degenerative changes.
He based his conclusion entirely on Dr. Gonzales’ comment on the work capacity evaluation; he
acknowledged that he had no other evidence that the work injury had aggravated or caused these
changes.
On April 16, 2012 Dr. Douthit concluded that the medical records did not support that the
August 9, 2010 surgery was due to the July 26, 2010 employment injury. He explained that
appellant was having significant problems with both knees prior to the August 9, 2010 surgery,
as documented in notes from the Veterans’ Hospital. Dr. Douthit noted that appellant had MRI
scans prior to the accident that showed meniscal damage and that the August 9, 2010 operative
report did not relate the surgery to the accident. The only rationalized medical opinion
addressing the issue of whether the August 9, 2010 right knee arthroscopy was related to
appellant’s employment injury is the report of Dr. Douthit. OWCP did not abuse its discretion in
denying the medical expenses associated with this surgery.
In an August 20, 2010 report, Dr. Rook noted that appellant was already scheduled to
have surgery on his right knee at the time of his accident. Accordingly, the Board finds that the
medical evidence as to the August 9, 2010 surgery is of reduced probative value on the issue of
whether the right knee surgery of August 9, 2010 was related to his employment-related
accident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied authorization for appellant’s right knee
surgery of August 9, 2010. The Board finds that OWCP improperly denied medical expenses
associated with the May 21, 2012 right knee surgery.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 23, 2012 is affirmed in part and reversed in part, consistent
with this decision.
Issued: August 26, 2013
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
DEPARTMENT OF DEFENSE, NATIONAL
IMAGERY & MAPPING AGENCY,
Bethesda, MD, Employer
__________________________________________

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

Docket No. 07-1138
Issued: September 12, 2007

Case Submitted on the Record

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

JURISDICTION
On March 21, 2007 appellant filed a timely appeal of a January 30, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration. Because more than one year has elapsed between the most recent merit decision
dated November 19, 2004 and the filing of this appeal, the Board lacks jurisdiction to review the
merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for a merit review of
her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 1, 2003 appellant then a 61-year-old office coordinator, filed an occupational
disease claim alleging that she sustained a back and hip injury due to riding a scooter at work
that was not properly adjusted for her use. She first became aware of these injuries and realized

that they were caused or aggravated by her employment on April 4, 2003. Appellant submitted
several medical reports of Dr. Peter I. Kenmore, a Board-certified orthopedic surgeon, dated
May 19 and November 28, 1994, February 8 and October 9, 1995 and September 23, 1996.
Dr. Kenmore provided a history of injuries involving appellant’s legs, knees, back and left hip
which she sustained while working at the employing establishment on September 12 and
December 12, 1988 and November 2, 1994. He diagnosed a ruptured intervertebral disc with
right sciatica, traumatic synovitis of the right knee, a torn meniscus, severe flexion contracture of
the right knee, mild flexion contracture of the left knee and traumatic arthritis of both knees and
left hip. A February 19, 1994 report of Dr. Brian G. Evans, a Board-certified orthopedic
surgeon, found that appellant sustained significant osteoarthritis in her hip. Dr. Evans opined
that this condition may have been exacerbated by a 1994 work-related injury. He recommended
total hip replacement surgery. In disability certificates dated April 28 and May 12, 2003,
Dr. Pritam S. Saini, a Board-certified internist, opined that appellant was totally disabled from
April 7 to May 27, 2003 due to back pain.
By letter dated June 19, 2003, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It further advised her about the additional factual and
medical evidence she needed to submit. On June 19, 2003 the Office also requested that the
employing establishment provide comments regarding appellant’s allegation, her position
description including physical requirements and whether it had provided her with a light-duty job
offer.
Appellant submitted Dr. Saini’s May 27, 2003 disability certificate which found that she
was totally disabled from May 27 to June 10, 2003 due to back pain. Dr. Saini’s June 12, 2003
disability certificate found that appellant was totally disabled due to a work-related hip injury. In
reports dated December 27, 2002 and July 15, 2003, Dr. Saini stated that appellant suffered from
severe arthritis, high blood pressure, diabetes mellitus II and stress. He further stated that she
sustained a work-related ankle injury on December 8, 2000 which caused chronic pain and
difficulty with walking and a work-related hip injury in 1988 and 1994. Dr. Saini stated that
appellant’s stress condition was also work related. An undated report from John C. Waxham, a
physical therapist, stated that appellant was evaluated for back pain with lumbar disc disease.
Mr. Waxham indicated that appellant’s left hip pain had not been evaluated as employment
related. In a January 23, 1995 report, Dr. Joseph Del Rosso, a chiropractor, found that appellant
sustained degeneration of the lumbar intervertebral disc at L4-5 and L5 sacrum as a primary
condition. Secondary diagnoses included pain of the sciatic nerve, degeneration of the lumbar
intervertebral disc, subluxation/misalignment of the thoracic and cervical spines, other allied
disorders of the spine and neuromuscular pain.
By decision dated August 25, 2003, the Office found that appellant did not sustain an
injury while in the performance of duty. The evidence of record was insufficient to establish that
the incident occurred as alleged and that appellant sustained a medical condition caused by the
alleged incident.
In an October 23, 2003 report, Dr. Evans stated that appellant had a long-standing history
of arthritis initiated by a prior work-related injury. He further noted that in April 2003 she
sustained another injury at work while using a maladjusted scooter that caused pain radiating

2

down along her leg and in her back. Dr. Evans opined that this injury exacerbated appellant’s
preexisting work-related injury due to osteoarthritis in her hips and knees.
By letter dated August 19, 2004, appellant requested reconsideration of the Office’s
August 25, 2003 decision. She submitted an unsigned report dated April 18, 2003 from the
office of a physical therapist which found that she had back spasms and lumbar disc disease.1
By decision dated November 19, 2004, the Office denied modification of the August 25,
2003 decision. The evidence of record failed to establish that appellant sustained an injury
causally related to factors of her federal employment.
Appellant submitted duplicate copies of Dr. Kenmore’s October 9, 1995 and
September 23, 1996 reports, Dr. Evans’ February 19, 2002 report and Dr. Saini’s December 27,
2002 and July 15, 2003 reports. A February 16, 2000 report of Dr. Michael Tritto, a Boardcertified podiatrist, revealed that appellant was evaluated on June 12, 1999 regarding complaints
of pain and swelling in her right foot and ankle. Appellant related no history of injuring this area
other than a prior hip problem on the left side. Dr. Tritto diagnosed a neglected posterior tibial
tendon rupture and chronic posterior tibial tendinitis. He opined that appellant’s history of
having a previous problem with her left hip and subsequent increase in pressure on her right limb
from changing her gait, most likely caused damage to the posterior tibial tendon. In an
October 5, 2004 treatment note, Dr. Paul S. Cooper, a Board-certified orthopedic surgeon,
provided a preoperative consultation for appellant’s progressive right foot deformity. Dr. Cooper
opined that she had a marked asymmetric flat foot which was currently causing her increased
ankle and medial knee pain.
In a letter dated November 17, 2005, appellant further described her current alleged
employment-related back and hip injuries. She stated that she sustained a prior hip injury which
resulted in difficulty sitting on low surfaces. Appellant indicated that her November 17, 2005
letter was accompanied by additional medical evidence in support of her claim.2
On July 25, 2006 appellant and her attorney telephoned the Office about her
November 17, 2005 request for reconsideration. The Office advised them that this letter was not
tracked as a reconsideration request. Appellant stated that her letter did not specifically state that
it was a request for reconsideration. The Office advised her to submit another letter specifically
requesting reconsideration. By letter dated August 22, 2006, appellant requested reconsideration
of the Office’s November 19, 2004 decision.
In a decision dated January 30, 2007, the Office denied appellant’s request for
reconsideration on the grounds that it neither raised substantive legal questions nor included new
and relevant evidence and, thus, it was insufficient to warrant a merit review of the claim.

1

Appellant stated that Dr. Evans’ June 4, 2003 letter accompanied her August 19, 2004 request for
reconsideration. However, the Board notes that this letter is not contained in the case record.
2

The Board notes that it does not appear that any medical evidence accompanied appellant’s November 17, 2005
letter.

3

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,3 the Office’s regulation 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) constitute relevant and pertinent
new evidence not previously considered by the Office.4 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.5 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 of the merits.
ANALYSIS
By letter dated August 26, 2006, appellant disagreed with the finding that she did not
sustain hip and back injuries while in the performance of duty because the medical evidence of
record did not establish that the claimed injuries were causally related to her federal
employment. The relevant issue in this case is whether appellant’s hip and back injuries were
sustained in the performance of duty.
Appellant resubmitted Dr. Kenmore’s October 9, 1995 and September 23, 1996 reports,
Dr. Evans’ February 19, 2002 report and Dr. Saini’s December 27, 2002 and July 15, 2003
reports. These reports, however, were already of record at the time appellant requested
reconsideration and had been considered by the Office previously. The Board finds, therefore,
that as the evidence submitted is repetitious or duplicative of that previously submitted and
considered, it is insufficient to reopen appellant’s claim for a merit review as it is duplicative and
cumulative of evidence already of record.6
Dr. Tritto’s February 16, 2000 report found that appellant had a neglected posterior tibial
tendon rupture and chronic posterior tibial tendinitis. He opined that her prior history of a left
hip problem and subsequent increase in pressure on the right limb from changing her gait most
likely caused damage to her posterior tibial tendon. Although Dr. Tritto’s report constitutes new
evidence, it is insufficient to reopen appellant’s claim for a merit review. He failed to address
the relevant issue of whether appellant’s current hip problem was sustained in the performance of
duty.
Similarly, Dr. Cooper’s October 5, 2004 treatment note constitutes new evidence but is
not relevant to the issue in this case. He found that appellant had a marked asymmetric flat foot
3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(1)-(2).

5

Id. at § 10.607(a).

6

See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35
ECAB 1090, 1093-94 (1984).

4

which was currently causing her increased ankle and medial knee pain is not relevant to the issue
in this case. Dr. Cooper did not state whether appellant’s foot condition was caused or
aggravated by her work duties.
Appellant did not submit any relevant and pertinent new evidence not previously
considered by the Office in support of her request for reconsideration. Further, she did not show
that the Office erroneously applied or interpreted a specific point of law or advance a relevant
legal argument not previously considered by the Office. As appellant did not meet any of the
necessary regulatory requirements, the Board finds that the Office properly denied merit review.7
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a merit review of
her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 12, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7

See James E. Norris, 52 ECAB 93 (2000).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Pine Bluff, AR, Employer
__________________________________________

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

Docket No. 07-2348
Issued: March 13, 2008

Case Submitted on the Record

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

JURISDICTION
On September 17, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated May 16 and August 9, 2007, finding that she did
not sustain an injury while in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant has established that she sustained an injury while in the
performance of duty.
FACTUAL HISTORY
On April 5, 2007 appellant, then a 43-year-old modified clerk, filed a claim for an
occupational disease. On April 25, 2006 she first became aware of a sharp pain in her left hand
and wrist, which radiated up to her elbow and down to her left knee. Appellant realized that the
pain was caused by her work activities which caused her to seek medical attention. In an April 5,
2007 statement, she described her work duties which included reaching above the shoulders,

pulling, pushing, retrieving and placing mail from and onto a cart, repetitive motion in operating
a delivery point sequence machine and constant stooping, standing and walking.
An April 25, 2006 medical report of Dr. James A. Pollard, an attending Board-certified
orthopedic surgeon, noted appellant’s complaint of left knee pain. He stated that she did not
sustain any specific precipitating trauma. Dr. Pollard noted appellant’s work duties as a mail
clerk which, included prolonged standing and walking. He reported essentially normal findings
on physical examination. Dr. Pollard also reported essentially normal findings on x-ray, with the
exception of the possible development of very early osteophyte forming from the mediofemoral
condyle and medial-tibial plateau but there were no dramatic degenerative changes. He opined
that appellant had left knee pain and that the etiology of her condition was unclear. Dr. Pollard
stated that the possibilities included early osteoarthritis of the left knee versus internal
derangement. In a February 6, 2007 report, he noted appellant’s left hand and knee pain.
Dr. Pollard reported essentially normal findings on physical examination and reiterated his prior
x-ray findings. He diagnosed left hand pain and stiffness which he believed may have been
secondary to overuse tendinitis. Dr. Pollard stated that appellant may have sustained some
element of de Quervain’s tenosynovitis. In addition, appellant possibly sustained left carpal
tunnel syndrome. Dr. Pollack stated that appellant developed left knee pain from early
osteoarthritis of the medial compartment and patellofemoral joint. He ruled out a degenerative
meniscus tear.
In reports dated January 29, 2007, Dr. Gerald C. Morris, an internist, reviewed a history
that appellant repetitively used her hands with frequent standing and walking at work.
Dr. Morris noted that she primarily experienced left knee pain. On physical examination, he
reported pain in the left hand and knee. Dr. Morris stated that appellant’s knee locked, popped
and gave away on her. He diagnosed left knee strain and left wrist tendinitis with repetitive use
syndrome. Dr. Morris opined that appellant could perform light-duty work with restrictions.
By letter dated April 13, 2007, the Office requested that the employing establishment
respond to appellant’s claim, provide the precautions it took to minimize the effects of her
activities and submit a copy of her position description, including the physical requirements. By
letter of the same date, the Office advised appellant that the evidence submitted was insufficient
to establish her claim. It addressed the additional factual and medical evidence she needed to
submit. Regarding the medical evidence, the Office requested a rationalized medical report from
appellant’s attending physician which described her symptoms, results of examination and tests,
diagnosis, treatment provided, the effect of treatment and opinion with medical reasons on
whether exposure or incidents in appellant’s federal employment contributed to her condition.
In a March 29, 2007 report, Dr. Pollard noted normal findings on physical examination
with regard to appellant’s left hand, knee and foot. On neurological examination, he reported
essentially normal findings with the exception of a positive Phalen’s test in the left hand. A
February 12, 2007 magnetic resonance imaging (MRI) scan showed severe carpal tunnel
syndrome of the left upper extremity. Dr. Pollard reviewed a February 12, 2007 MRI scan of
appellant’s left knee which demonstrated a cyst in the lateral femoral condyle and a small cyst in
the proximal central tibia in the metaphyseal region which both appeared to be benign.
Appellant also had a small osteophyte from the medial femoral condyle on the coronal images.
Dr. Pollard stated that these were indicators of early osteoarthritis of the medial compartment of

2

the left knee. He stated that appellant had minimal effusion of the left knee. Dr. Pollard noted
some increase signal in the medial tibial plateau. The medial meniscus showed some signal
within the body of the posterior horn of the meniscus, but Dr. Pollard did not see an obvious tear
extending to the articular surface. He suspected that this represented intrameniscal degeneration.
Dr. Pollard stated that the lateral meniscus and abdominal/perineal cruciate ligaments were
intact. Based on the MRI scan findings, he reiterated his prior finding that appellant had early
osteoarthritis in the medial compartment of the left knee. Dr. Pollard did not think that she
sustained a definite medial meniscus tear but that she more likely sustained intrameniscal
degeneration. Appellant appeared to have a benign cyst in the lateral femoral condyle and
proximal tibia that were likely degenerative in origin. Dr. Pollard diagnosed left carpal tunnel
syndrome and recommended surgical release.
In a May 4, 2007 letter, appellant stated that in approximately March 2006, she first
noticed pain and popping in her left knee. She sought medical treatment on April 25, 2006.
Appellant had not sustained any prior injury or treatment for a lower extremity condition. In
August 2006, she noticed that her left hand was sore and numb. Appellant stated that her hand
and wrist were aggravated by prolonged use and her repetitive work duties. Other than surgical
removal of a cyst from her left hand, she did not sustain any other injuries to her left hand and
wrist.
By decision dated May 16, 2007, the Office found that appellant did not sustain an injury
while in the performance of duty. The medical evidence failed to establish a causal relationship
between the alleged left hand and knee conditions and her employment duties.1
Appellant submitted an illegible medical report form. In a June 13, 2007 report,
Dr. Pollard provided his essentially normal findings on physical examination with the exception
of localized tenderness to palpation over the radial styloid over the first dorsal compartment and
a positive Finkelstein’s maneuver. He further reported normal findings on neurological
examination and noted that prior x-ray findings were also normal. Dr. Pollard diagnosed carpal
tunnel syndrome and de Quervain’s tenosynovitis of the left wrist. He believed that the
repetitive nature of the work appellant performed for many years at the employing establishment
was the etiology of her carpal tunnel syndrome.
On July 10, 2007 appellant requested reconsideration of the Office’s May 16, 2007
decision. By decision dated August 9, 2007, the Office denied modification of the May 16, 2007
decision, finding that the medical evidence was insufficient to establish a causal relationship
between the alleged left hand and knee conditions and her work duties.

1

The Board notes that on appeal appellant has submitted new evidence. The Board, however, may not consider
evidence for the first time on appeal which was not before the Office at the time it issued the final decision in the
case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and request reconsideration. 5 U.S.C.
§ 8128; 20 C.F.R. § 10.606.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 Neither the fact that appellant’s condition became apparent during a
period of employment nor her belief that the condition was caused by her employment is
sufficient to establish a causal relationship.6
ANALYSIS
The Board finds that appellant has failed to establish a causal relationship between her
left hand and knee conditions and the accepted factors of her federal employment. Appellant
submitted several reports of Dr. Pollard. In an April 25, 2006 report, Dr. Pollard listed
essentially normal findings on physical and x-ray examination. He diagnosed left knee pain and
stated that the etiology of this condition was not clear. Dr. Pollard’s diagnosis of pain, without

2

5 U.S.C. §§ 8101-8193.

3

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

4

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

5

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

6

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

4

more by way of an explanation, does not constitute a basis for payment of compensation.7
Further, his report did not provide any medical rationale explaining how or why appellant’s
condition was caused or aggravated by her employment duties.8 Dr. Pollard’s February 6, 2007
report also noted his essentially normal findings on physical and x-ray examination. He stated
that appellant suffered from left hand pain and stiffness which he believed “may” have been
secondary to overuse tendinitis. Dr. Pollard also stated that appellant “may” have sustained
some element of de Quervain’s tenosynovitis and “possibly” left carpal tunnel syndrome. He
opined that appellant’s left knee pain was due to early osteoarthritis of the medial compartment
and patellofemoral joint. Dr. Pollard provided an opinion that is speculative as to the issue of
causal relationship.
Dr. Pollard’s March 29, 2007 report failed to adequately address whether the diagnosed
condition was caused or aggravated by factors of appellant’s employment. He reiterated his
prior diagnosis of early osteoarthritis in the medial compartment of the left knee. Dr. Pollard did
not think appellant had a definite medial meniscus tear but more “likely” she sustained
intrameniscal degeneration. He stated that she “appeared” to have a benign cyst in the lateral
femoral condyle and proximal tibia that were likely degenerative in origin. Dr. Pollard also
stated that appellant sustained left carpal tunnel syndrome. Again his report is not clear as to the
nature of appellant’s conditions or how they relate to her duties as a mail clerk.
Dr. Pollard’s June 13, 2007 report provided essentially normal findings on physical,
neurological and x-ray examination. He stated that appellant sustained carpal tunnel syndrome
and de Quervain’s tenosynovitis of the left wrist. Dr. Pollard opined that the repetitive nature of
her work was the etiology of her carpal tunnel syndrome. The Board finds that his report is
insufficient to establish appellant’s burden of proof as he failed to provide sufficient medical
rationale explaining how or why her left wrist conditions were caused or aggravated by her
employment factors.9
Dr. Morris’ January 29, 2007 reports stated that appellant sustained left knee strain and
left wrist tendinitis with repetitive use syndrome. He, however, did not address whether her left
knee and wrist conditions were caused or aggravated by factors of her employment. The Board
finds that Dr. Morris’ reports are insufficient to establish appellant’s burden of proof.
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained left hand and knee conditions causally related to the accepted
factors of her federal employment as a modified clerk. She did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an injury while in
the performance of duty.
7

Robert Broome, 55 ECAB 493 (2004).

8

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

9

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the August 9 and May 16, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 13, 2008
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 17-1228
Issued: October 13, 2017

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 15, 2017 appellant filed a timely appeal from November 28, 2016 and April 18,
2017 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.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury
causally related to June 16, 2016 employment incident.
FACTUAL HISTORY
On September 6, 2016 appellant, then a 51-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on June 16, 2016 he twisted his left ankle and foot at
work. In an attached statement dated June 16, 2016, he indicated that while delivering mail
1

5 U.S.C. § 8101 et seq.

around l:00 p.m. that day, he stepped in a hole on a sidewalk and twisted his left ankle.
Appellant noted that he initially did not want to see a doctor as he thought it was a simple ankle
sprain and that the pain would disappear, but it had not. J.A., an employing establishment
manager, controverted the claim. He indicated that appellant began scheduled leave on June 17,
2016 and did not return to work until June 28, 2016, noting that, at that time, appellant had no
limp and did not complain about his foot or leg. J.A. attached a second undated, unsigned
statement from appellant, which related that, as soon as he stepped in the hole, he felt his left
foot twisting and ankle cracking, noting that he did not wish to see a doctor because he thought it
was a mild sprain and the pain would go away in time.
In support of his claim, appellant submitted an after visit summary dated June 17, 2016.
This indicated that appellant was seen by Dr. James A. Zamora, Board-certified in family
medicine. Vital signs were listed, and health problems included left plantar fasciitis. Two
additional after visit summaries dated July 29 and August 24, 2016 also indicated that appellant
was seen by Dr. Zamora for left plantar fasciitis.
By letter dated September 21, 2016, OWCP noted that appellant claimed that he injured
his left ankle/foot as a result of stepping in a hole while delivering mail. It informed him of the
evidence needed to support his claim, including a comprehensive report from his physician that
provided a medical explanation as to how work activities caused, contributed to, or aggravated
the claimed condition.
In a response dated September 23, 2016, appellant again related that he stepped in a hole
on a sidewalk and twisted his left ankle, while delivering mail on June 16, 2016. He indicated
that he immediately felt strong pain and rested for a while, but continued delivering his route and
reported the injury to a supervisor when he returned to the station. Appellant reported that his
ankle continued to bother him so he went to the doctor the next day. He was prescribed
Ibuprofen, and the following week he was on vacation and rested his foot. Appellant noted that
when he returned to regular duty, he used pain medication and ointment, but the pain worsened.
He returned to his doctor on July 29, 2016, when he was given a controlled ankle motion (CAM)
boot to wear when not working. Appellant indicated that he next saw his doctor on August 24,
2016 because his toes were going numb. He related that he saw a podiatrist on September 15,
2016, who took him off work for a month to rest his ankle.
A work status report, signed by Dr. Mike Ching-Kai Jou, a podiatrist, noted that appellant
was seen on September 15, 2016 for diagnoses of left plantar fasciitis, left ankle joint pain, left
sinus tarsi syndrome, and neuritis. Dr. Jou advised that appellant was placed off work from
September 16 through October 16, 2016 due to incapacitating injury or pain.
Dr. Shabab Moradi, a Board-certified physiatrist, provided an attending physician’s
report (Form CA-20) on September 27, 2016. A treatment note dated September 26, 2016 was
attached in which Dr. Moradi described appellant’s treatment to date. Examination demonstrated
tenderness to the left lateral ankle and left forefoot. Range of motion was limited due to pain and
sensation was decreased over the left lateral foot and sole. There was no erythema, swelling, or
ecchymosis present. Dr. Moradi diagnosed left ankle sprain and paresthesia and advised that
appellant could return to full unrestricted duty. He commented that, based on appellant’s history
of injury and physical examination, this would be considered a work-related ankle injury

2

secondary to stepping in a hole but, upon his review of appellant’s primary care notes, there
appeared to be discrepancies in the history provided by appellant. Dr. Moradi continued that
appellant’s left ankle pain was initially addressed as plantar fasciitis/heel pain, and it was unclear
whether the discrepancy was due to lapses in notation or whether appellant did not have an ankle
injury on June 16, 2016 as noted, but rather an exacerbation of his prior heel pain which led to
his current left ankle pain. He commented that it would be unusual for a provider to miss the
primary site of injury/pain in multiple notes if the left ankle pain was truly the original site of
injury. Dr. Moradi recommended obtaining further information from appellant’s primary care
physician or an expert consultation and, perhaps, a left ankle magnetic resonance imaging (MRI)
scan and electrodiagnostic study. He concluded that he did not believe the condition found was
caused or aggravated by employment activity.
Dr. Lidia Tiplea, a Board-certified neurologist, provided a work status report on
October 31, 2016. She indicated that appellant was placed off work from October 31 to
November 14, 2016 due to uncontrolled symptoms for diagnoses of left foot neuritis and left
sinus tarsi syndrome.
By decision dated November 28, 2016, OWCP denied appellant’s claim, finding that the
June 16, 2016 incident occurred as alleged, but that the evidence submitted was insufficient to
establish that a medical condition resulted from the June 16, 2016 incident.
On March 22, 2017 appellant requested reconsideration. A November 16, 2016 left ankle
MRI scan demonstrated a split tear of the peroneus brevis tendon, a partial tear and retraction of
the central bundle of the plantar fascia, and a partial tear of the anterior interosseous ligament.
Dr. Naren Gurbani, a Board-certified orthopedic surgeon, provided a December 20, 2016
treatment note. He reported a chief complaint of left ankle pain and swelling for six months,
aggravated by ambulation. Dr. Gurbani discussed appellant’s treatment to date. Left ankle
demonstrated swelling and tenderness with diminished range of motion. Appellant could not
perform single support heel raise. Left ankle x-ray that day demonstrated no acute fracture,
significant joint disease, or soft tissue abnormality. A spur was noted involving the plantar
aspect of the calcaneus. Dr. Gurbani reviewed the November 16, 2016 MRI scan and diagnosed
left peroneal tendon tear, hind foot valgus. He recommended heel wedges for both shoes,
exercise therapy, and medication, noting that, if appellant did not improve with therapy, he could
need surgery.
In a merit decision dated April 18, 2017, OWCP denied modification of its November 28,
2016 decision. It noted that, although appellant had filed an occupational disease claim, since he
was claiming a medical condition caused by a June 16, 2016 employment incident, it was being
adjudicated as a traumatic injury claim. OWCP found that the medical evidence of record was
insufficient to establish the claim because it did not sufficiently explain how stepping in a hole
on June 16, 2016 caused, aggravated, accelerated, or precipitated the diagnosed conditions.2

2

OWCP suggested that appellant file a Form CA-2, an occupational disease claim, since it appeared that the
repetitive duties of standing and walking performed during his career as a letter carrier could have caused,
aggravated, accelerated, or precipitated the conditions which were diagnosed in the instant claim.

3

LEGAL PRECEDENT
An employee seeking compensation under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,4 including that he or she is an “employee” within the meaning of FECA and that the
claim was filed within the applicable time limitation.5 The employee must also establish that he
sustained an injury in the performance of duty as alleged and that his disability for work, if any,
was causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue, and the medical evidence required to establish
causal relationship is rationalized medical evidence.8 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.9 Neither the mere fact that a disease or condition manifests itself during a period
of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.10
ANALYSIS
It is undisputed that the June 16, 2016 employment incident occurred as alleged. The
Board finds that the medical evidence submitted by appellant, however, is insufficient to
establish that this incident resulted in an employment injury.

3

Id.

4

J.P., 59 ECAB 178 (2007).

5

R.C., 59 ECAB 427 (2008).
6

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989). OWCP regulations define a traumatic injury as a
condition of the body caused by a specific event or incident or series of events or incidents within a single workday
or shift. 20 C.F.R. § 10.5(ee). OWCP regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R. § 10.5(q).
7

T.H., 59 ECAB 388 (2008).

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically-sound explanation of how the claimed work
event caused or aggravated the claimed condition.11 The Board finds that no physician did so in
this case.
The after visit summaries do not constitute competent medical evidence as they merely
note that appellant was seen on a particular date. They are unsigned, and there is no indication of
who prepared those reports. Incomplete medical reports not containing a signature do not
constitute probative medical evidence,12 as the author cannot be identified as a physician.13
The November 16, 2016 left ankle MRI scan did not provide a cause of any diagnosed
conditions. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.14
Likewise, the reports of Dr. Jou, Dr. Tiplea, and Dr. Gurbani did not include an opinion as to the
cause of any diagnosed condition and, therefore, have no probative value on the issue of
causation.15
Dr. Moradi’s September 2016 opinion is also insufficient to establish a traumatic injury
on June 16, 2016. He noted tenderness on examination of appellant’s left ankle and forefoot,
limited range of motion, and some decreased foot sensation and commented that, based on
appellant’s history of injury and physical examination, this could be considered a work-related
ankle injury secondary to stepping in a hole. Dr. Moradi, however, further indicated that, upon
review of the medical records, there appeared to be discrepancies in the history provided by
appellant, noting that his left ankle pain was initially addressed as plantar fasciitis/heel pain. He
further indicated that it was unclear whether the discrepancy was due to notation errors or
whether appellant did not have an ankle injury on June 16, 2016 as alleged. Dr. Moradi
commented that it would be unusual for a provider to miss the primary site of injury/pain in
multiple notes if the left ankle pain was truly the original site of injury. He concluded that he did
not believe the condition found was caused or aggravated by employment activity.

11

D.D., Docket No. 13-1517 (issued April 14, 2014).

12

P.H., Docket No. 16-1023 (issued October 11, 2016).

13

See Merton J. Sills, 39 ECAB 572, 575 (1988); see also, E.V., Docket No. 17-0417 (issued
September 13, 2017).
14

Willie M. Miller, 53 ECAB 697 (2002).

15

Id.

5

It is appellant’s burden of proof to establish a diagnosed condition causally related to the
June 16, 2016 employment incident. Appellant submitted insufficient evidence to establish an
injury caused by this incident.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish a traumatic injury causally related to the
June 16, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 18, 2017 and November 28, 2016
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 13, 2017
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
16

As suggested by OWCP in its April 18, 2017 decision, he could file a new Form CA-2, occupational disease
claim, to the extent that he asserts that the repetitive duties of standing and walking performed during his career as a
letter carrier could have caused, aggravated, accelerated, or precipitated the conditions which were diagnosed in the
instant claim. An occupational disease is defined as a condition produced by the work environment over a period
longer than a single workday or shift. 20 C.F.R. § 10.5(q). A traumatic injury is defined as a condition of the body
caused by a specific event or incident, or series of events or incidents, within a single workday or shift. 20 C.F.R.
§ 10.5(ee). An occupational disease is defined as a condition produced by the work environment over a period
longer than a single workday or shift. 20 C.F.R. § 10.5(q).

6


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0335
Issued: June 18, 2018

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 December 5, 2017 appellant filed a timely appeal from a November 7, 2017 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 an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
On September 22, 2017 appellant, then a 56-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she developed a torn left shoulder rotator cuff as a result of the
daily work duties she had to perform. She reported that she aggravated her left shoulder which
1

5 U.S.C. § 8101 et seq.

limited her ability to continue to perform her tasks. Appellant first became aware of her condition
and realized it resulted from factors of her federal employment on April 5, 2014. She did not stop
working. No additional information and/or medical evidence accompanied the claim form.
By development letter dated October 6, 2017, OWCP advised appellant of the need for
both factual and medical evidence in support of her claimed left shoulder condition. It requested
that she respond to an attached questionnaire in order to substantiate the factual element of her
claim and submit medical evidence to establish a diagnosed condition causally related to her
employment. OWCP afforded appellant 30 days to submit the necessary evidence.
In an October 26, 2017 letter, appellant reiterated that the daily work duties she performed
aggravated her left shoulder, which weakened and limited her ability to perform her work duties.
She related that she was diagnosed by a magnetic resonance imaging (MRI) scan with a rotator
cuff tear.
OWCP also received treatment records from Dr. Steve G. Salyers, a Board-certified
orthopedic surgeon. In an April 15, 2014 note, Dr. Salyers related appellant’s complaints of left
shoulder pain and reported an April 5, 2014 date of injury. He indicated that four months prior
appellant had undergone right shoulder rotator cuff repair. Appellant reported that her left shoulder
was injured “lifting trays of mail” in a similar way to her right shoulder. Upon physical
examination of appellant’s left shoulder, Dr. Salyers reported weakness to supraspinatus strength
testing and some impinging signs. His impression was left shoulder pain similar to the right.
Dr. Salyers commented that there was no reason not to assume that this also represented a rotator
cuff tear. He recommended a left shoulder MRI scan.
In notes dated May 13 to October 14, 2014, Dr. Salyers reported no change in appellant’s
right or left shoulders. In the August 19, 2014 note, he related that the left shoulder MRI scan
showed a small focal full-thickness supraspinatus tear. Dr. Salyers diagnosed left rotator cuff tear.
By decision dated November 7, 2017, OWCP denied appellant’s occupational disease
claim finding that the evidence of record was insufficient to establish fact of injury. It determined
that appellant did not provide sufficient details regarding the employment factors which she
believed caused her left shoulder condition. OWCP also found that the record failed to include a
medical diagnosis in connection with the injury or event(s).
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence,3 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
2

Supra note 1.

3

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

4

G.T., 59 ECAB 447 (2008); M.M., Docket No. 08-1510 (issued November 25, 2010).

2

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
Circumstances such as late notification of injury, lack of confirmation of injury, continuing
to work without apparent difficulty following the alleged injury, and failure to obtain medical
treatment may, if otherwise unexplained, cast doubt on an employee’s statement in determining
whether a prima facie case has been established.6
ANALYSIS
Appellant alleged that she sustained a left shoulder rotator cuff tear as a result of her daily
work duties. OWCP denied appellant’s claim finding that she failed to establish fact of injury.
The Board finds that appellant has not met her burden of proof to establish that she sustained an
injury in the performance of duty, as alleged.
In the Form CA-2, appellant reported that her left shoulder rotator cuff tear resulted from
the daily work duties she had to perform. She did not provide any further details describing her
specific work activities, how often she performed these activities, or for how long she performed
them.
The record does not contain any evidence to substantiate appellant’s described employment
factors as a clerk, which allegedly caused or contributed to her claimed left rotator cuff tear. To
establish a claim for compensation, an employee must submit a statement which identifies the
factors of employment believed to have caused his or her condition.7 Appellant has not provided
sufficient detail to establish that an occupational exposure occurred as alleged. She did not
adequately describe the circumstances of her injury, how she injured her left shoulder, and the
duties she was performing which caused her injury.8 The Board, therefore, finds that appellant has
failed to substantiate the employment factors alleged.9
The Board also finds that the medical evidence of record failed to establish fact of injury.
OWCP received various reports by Dr. Salyers dated April 15 to October 14, 2014. In his initial
report, Dr. Salyers identified April 5, 2014 as the date of injury and indicated that appellant
reported that her left shoulder injury resulted from lifting trays of mail. The Board notes, however,
that there is no other factual evidence, such as witness statements, position descriptions, or a
5

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

6

L.D., Docket No. 16-0199 (issued March 8, 2016); Betty J. Smith, 54 ECAB 174 (2002).

7

Donald W. Wenzel, 56 ECAB 390 (2005); Richard H. Weiss, 47 ECAB 182 (1995).

8

See T.C., Docket No. 17-1449 (issued November 17, 2017).

9
See P.S., Docket No. 17-0194 (issued July 24, 2017); see also B.J., Docket No. 14-1028 (issued
September 17, 2014).

3

response to OWCP’s questionnaire, which described in detail the work activities appellant believed
caused or contributed to her left shoulder condition. The Board, therefore, concludes that
appellant’s description of her employment factors that allegedly caused an injury was vague.10 As
appellant has not submitted probative evidence that her position as a clerk required lifting trays of
mail, the Board finds that she has not met her burden of proof to establish fact of injury.
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.
§§ 10.606 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the November 7, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 18, 2018
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

10

See C.M., Docket No. 17-0627 (issued June 25, 2017).

4