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

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

Docket No. 10-1094
Issued: November 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 18, 2010 appellant filed a timely appeal from the February 18, 2010 decision
of the Office of Workers’ Compensation Programs denying her traumatic injury claim. Pursuant
to 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 sustained a traumatic injury on February 2, 2009 while in
the performance of duty.
FACTUAL HISTORY
On June 25, 2009 appellant, then a 52-year-old clerk, filed a traumatic injury claim
alleging that on February 2, 2009 she sustained a herniated disc and bulging and annular tear due
to repetitive lifting of trays of mail. Her supervisor observed appellant lifting mail trays on that
day.
On February 4, 2009, Dr. L. Alan Smith, a Board-certified general surgeon, noted that
appellant had a history of low and mid back pain. On February 2, 2009 appellant experienced a

marked increase in low back pain. She knew of no precipitating cause. Dr. Smith placed her off
work from February 3 to 6, 2009. On February 9, 2009 he noted that a magnetic resonance
imaging (MRI) scan revealed an extruded disc at L4-5. Dr. Smith diagnosed sciatica.
On February 11, 2009 Dr. Ellen C. Sackett, a Board-certified family practitioner, advised
that appellant had a work-related back injury in 2008 that improved but appellant’s symptoms
worsened on February 2, 2009 when she worked on a machine all day. On April 28, 2009 she
diagnosed a herniated lumbar disc.
By letter dated July 13, 2009, the Office asked appellant for additional information,
including a detailed description of the February 2, 2009 work activities and medical evidence
containing a history, diagnosis and rationalized explanation as to how the diagnosed condition
was causally related to the February 2, 2009 work incident.
On June 22, 2009 Dr. Sackett stated that she first saw appellant on April 22, 2008 for an
injury the day before when appellant lifted a heavy tray of mail. A June 9, 2008 MRI scan
revealed a herniated disc at L4-5. Appellant’s symptoms worsened and a repeat MRI scan on
April 10, 2009 revealed a disc bulge at L2-3, annular tear at L3-4 with a disc bulge and a
herniated disc at L4-5. Dr. Sackett opined that these injuries were a direct result of the work
incidents on April 21, 2008 and February 2, 2009. On July 29, 2009 she noted that appellant had
a history of back pain following a motor vehicle accident in 1996. The June 9, 2008 MRI scans
revealed an L4-5 herniated disc and a disc bulge at L3-4. Appellant was treated with physical
therapy and trigger point injections. On February 9, 2009 she had increased pain. On
February 11, 2009 appellant reported left lower extremity pain after working on machines all day
on February 2, 2009.
On July 24, 2009 Dr. Smith stated that on July 7, 2008 he saw appellant for low and mid
back pain and right leg radicular pain that she believed were caused by her job. He noted that on
an unspecified date she was lifting trays of mail weighing at least 30 pounds. Appellant’s
preexisting back problems were in remission at the time of her injury. Dr. Smith provided
findings on physical examination. He noted that MRI scan studies taken on June 9, 2008
revealed an L3-4 disc bulge with facet arthrosis and an L4-5 paracentral disc extrusion with facet
arthrosis. Dr. Smith treated appellant with physical therapy and trigger point injections for a
diagnosis of lumbar disc syndrome with sciatic neuralgia.
By decision dated August 25, 2009, the Office denied appellant’s claim on the grounds
that the evidence did not establish that she sustained an injury on February 2, 2009 while in the
performance of duty.
On September 15, 2009 appellant requested a hearing that was held on
December 9, 2009. In a September 13, 2009 report, Dr. Sackett advised that she saw appellant
on February 11, 2009 for a history of working all day on a machine. Appellant had severe pain
and numbness in her left leg. Her symptoms and physical examination were consistent with her
history of an injury at work. An MRI scan revealed a herniated disc at L4-5 on the left with an
extruded fragment and encroachment on the left L4 nerve root. Dr. Sackett opined that
appellant’s symptoms were caused by her injury at work on February 2, 2009.

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By decision dated January 28, 2010, the Office denied modification of the September 18,
2009 decision.
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.1 Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.2 An
employee may establish that the employment incident occurred as alleged but fail to show that
his or her disability or condition relates to the employment incident.
To establish a causal relationship between an employee’s condition and any disability
claimed and the employment event or incident, he or she must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the employee’s
diagnosed condition and the compensable employment factors. 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 claimant.3
ANALYSIS
The Office accepted that on February 2, 2009 appellant worked all day processing mail
on a machine. The issue is whether appellant sustained a medical condition as a result of the
February 2, 2009 incident.
On February 4, 2009 Dr. Smith noted that appellant had a history of low and mid back
pain. On February 2, 2009 appellant experienced a marked increase in low back pain. She knew
of no precipitating cause. Appellant stated that she did not know what might have caused her
pain on February 2, 2009 conflicts with her subsequent claim of a back injury caused by lifting
heavy trays of mail all day. Dr. Smith did not provide a history of the injury or explain how her
back condition was caused by activities at work on February 2, 2009. Therefore, this report is
not sufficient to establish a work-related injury on February 2, 2009. On February 9, 2009
Dr. Smith noted that an MRI scan revealed an extruded disc at L4-5. He diagnosed sciatica.
Dr. Smith did not explain how appellant’s sciatica was causally related to the February 2, 2009
work activities. Consequently, this report does not support appellant’s traumatic injury claim.
1

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

2

T.H., 59 ECAB 408 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

3

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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On July 24, 2009 Dr. Smith stated that on July 7, 2008 he saw her for back and right leg pain that
she attributed to her job. He noted that on an unspecified date appellant was lifting trays of mail
weighing at least 30 pounds. Dr. Smith diagnosed lumbar disc syndrome with sciatic neuralgia.
He did not provide a complete history or a rationalized explanation as to how her back condition
was causally related to the February 2, 2009 work activities. Therefore, this report does not
establish a work-related injury on February 2, 2009.
On February 11, 2009 Dr. Sackett noted that appellant had a work-related back injury in
2008 that improved. Appellant’s symptoms worsened on February 2, 2009 when she worked on
a machine all day. On April 28, 2009 Dr. Sackett diagnosed a herniated lumbar disc but did not
explain how the herniated disc was related to appellant’s work activities on February 2, 2009.
This report is not sufficient to establish a work-related back injury on February 2, 2009. On
June 22, 2009 Dr. Sackett stated that she first saw appellant on April 22, 2008 for an injury the
day before when appellant lifted a heavy tray of mail. An MRI scan revealed a herniated disc at
L4-5. Appellant’s symptoms worsened and an April 10, 2009 MRI scan revealed a disc bulge at
L2-3, annular tear and disc bulge at L3-4 and a herniated disc at L4-5. Dr. Sackett opined that
these injuries were caused by the work incidents on April 21, 2008 and February 2, 2009. She
did not, however, describe the nature of the February 2, 2009 work activities or give a
rationalized explanation of the cause of the spinal conditions. This report is not sufficient to
establish an employment injury on February 2, 2009. On July 29, 2009 Dr. Sackett noted that
appellant had increased pain on February 9, 2009. On February 11, 2009 she reported left lower
extremity pain after working on machines all day on February 2, 2009. Dr. Sackett did not
provide details of appellant’s work on February 2, 2009 or explain how her work factors caused
her back condition. On September 13, 2009 she advised that she saw appellant on February 11,
2009 for a history of working all day on a machine. An MRI scan revealed a herniated disc at
L4-5 on the left with an extruded fragment and encroachment on the left L4 nerve root.
Dr. Sackett opined that appellant’s symptoms were caused by her injury at work on
February 2, 2009. She did not, however, provide a rationalized opinion as to how appellant’s
work activities on February 2, 2009 could have caused her back condition. Therefore, this report
is insufficient to establish that appellant sustained a back injury on February 2, 2009 causally
related to factors of her employment.
The Office advised appellant of the medical evidence needed to establish her claim,
including a report with a medical history diagnosis and a rationalized explanation as to how the
diagnosed condition was causally related to the February 2, 2009 incident. No such evidence
was submitted.
Appellant failed to meet her burden of proof to establish that she sustained an injury on
February 2, 2009 while in the performance of duty.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a traumatic injury on
February 2, 2009 while in the performance of duty.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 18, 2010 and August 25, 2009 are affirmed.
Issued: November 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-10
Issued: February 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 October 4, 2006 appellant filed a timely appeal from an April 13, 2006 merit decision
of the Office of Workers’ Compensation Programs’ denying her claim for bilateral carpal tunnel
syndrome. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether appellant’s bilateral carpal tunnel syndrome is causally related to
factors of her federal employment.
FACTUAL HISTORY
On June 2, 2004 appellant, then a 51-year-old window clerk, filed an occupational
disease claim alleging that she developed bilateral carpal tunnel syndrome due to the repetitive
motion tasks required in her federal job, including using a keyboard and counting stamp stock.

On June 21, 2004 the Office asked appellant to provide additional evidence, including a
comprehensive medical report explaining how her bilateral carpal tunnel syndrome was causally
related to factors of her employment. In a July 29, 2004 response, appellant noted that a medical
report would soon be submitted.
By decision dated August 30, 2004, the Office denied appellant’s claim on the grounds
that the evidence did not establish that her bilateral carpal tunnel syndrome was causally related
to her employment. It accepted the work activities claimed but noted that no medical evidence
had been submitted.
Appellant requested a hearing that was held on May 23, 2005.
On May 18 and November 1, 2004 Dr. Thomas J. O’Dowd, an attending orthopedic
surgeon, provided findings on physical examination, which included positive Phalen’s and
Tinel’s signs and decreased sensation in the medial nerve distribution of both hands. He
indicated that her symptoms were consistent with bilateral carpal tunnel syndrome. Dr. O’Dowd
indicated that appellant had postural-related pain with activities such as holding a newspaper or
driving. He did not opine as to the cause of her condition.
On March 24 and April 21, 2003, Dr. Murray Klein, an attending physiatrist, provided
findings on physical examination and diagnosed bilateral carpal tunnel syndrome as
demonstrated in an electromyogram and nerve conduction study. Appellant had a “pins and
needles” sensation when driving or working on needlepoint crafts. Dr. Klein indicated that
appellant’s job included selling postage stamps to patrons. He noted that she had less
discomfort, pain and numbness after wearing splints on her hands.
By decision dated August 12, 2005, the Office hearing representative affirmed the
August 30, 2004 denial of appellant’s claim. He noted that this medical evidence did not address
the issue of causal relation.
Appellant requested reconsideration and submitted additional evidence. In an August 25,
2005 report to appellant’s attorney, Dr. Klein stated that he examined appellant on only two
occasions in 2003. Her carpal tunnel syndrome improved after she wore wrist splints. Dr. Klein
stated:
“I have not seen [appellant] in the past two years. Therefore, I do not know what
her present condition is nor do I know if it has increased or deteriorated.
However, her work as a postal service worker as a clerk includes typing and
lifting from the job description that you supposedly forwarded with your letter;
apparently was not in the letter, therefore, I do not know exactly what her job
entailed. This could actually worsen if this job requires lifting or typing.”
By decision dated April 13, 2006, the Office denied modification of the August 12, 2005
decision.

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LEGAL PRECEDENT
To establish a causal relationship between a claimant’s medical conditions and her
employment, she must submit rationalized medical opinion evidence based on a complete factual
and medical background supporting such a causal relationship.1 Rationalized medical opinion
evidence is medical evidence which includes a physician’s opinion on the issue of whether there
is a causal relationship between the claimant’s 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.2 Neither the 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.3
ANALYSIS
In May and December 2004, Dr. O’Dowd indicated that appellant’s symptoms were
consistent with bilateral carpal tunnel syndrome. He noted that she had postural-related pain
with activities such as holding a newspaper or driving. However, Dr. O’Dowd did not address
the cause of appellant’s condition. Therefore, his reports are not sufficient to establish that
appellant’s bilateral carpal tunnel syndrome was causally related to factors of her federal
employment.
In two 2005 reports, Dr. Klein diagnosed bilateral carpal tunnel syndrome. He indicated
that he examined appellant only twice in 2003 and had not seen her in two years. Dr. Klein
noted that appellant’s attorney indicated in a letter that he was enclosing a job description for
review which indicated that appellant’s duties included lifting and typing.4 However, a copy of
appellant’s job description did not accompany the letter Dr. Klein received. Because he did not
have a copy of appellant’s job description, Dr. Klein stated that he did not know exactly what her
job entailed. Because Dr. Klein did not have a complete and accurate factual background upon
which to base an opinion on causal relationship, his reports are insufficient to establish that
appellant’s bilateral carpal tunnel syndrome was causally related to factors of her employment.
Further, medical reports not containing adequate rationale on causal relationship are of
diminished probative value and are generally insufficient to meet an employee’s burden of
proof.5 Lacking a complete and accurate factual background and sufficient medical rationale
addressing the issue of causal relationship, Dr. Klein’s reports are not sufficient to establish that
appellant’s bilateral carpal tunnel syndrome was caused or aggravated by her employment.
1

Michael S. Mina, 57 ECAB ___ (Docket No. 05-1763, issued February 7, 2006).

2

Gary J. Watling, 52 ECAB 278 (2001); Gloria J. McPherson, 51 ECAB 441 (2000).

3

Michael S. Mina, supra note 1.

4

The Board notes that appellant did not mention any lifting duties in her claim form.

5

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

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CONCLUSION
The Board finds that appellant failed to establish that her bilateral carpal tunnel syndrome
was causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 13, 2006 is affirmed.
Issued: February 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1235
Issued: April 2, 2019

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 June 1, 2018 appellant, through counsel, filed a timely appeal from a December 27,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an employment
injury on April 26, 2016 in the performance of duty.
FACTUAL HISTORY
On August 9, 2016 appellant, then a 62-year-old window clerk, filed a traumatic injury
claim (Form CA-1) alleging that on April 26, 2016 she sustained injuries to her lower back, legs,
and left ankle from bending and standing while in the performance of duty. She attributed her
conditions to her daily employment duties, which included pushing and pulling mail equipment,
continuous lifting, and carrying packages for window services. Appellant stopped work on
May 10, 2016. The employing establishment controverted the claim.
In a letter dated August 16, 2016, appellant’s supervisor, V.J., indicated that on April 26,
2016 the date of the alleged injury appellant was on scheduled annual leave and was not at work.
She related that medical documentation had not been received regarding appellant’s absence from
work as of May 10, 2016. V.J. also noted that appellant had not reported an accident or injury.
On August 22, 2016 A.C., an employing establishment official, controverted the claim.
She explained that appellant submitted her traumatic injury claim on August 9, 2016, some three
months and 18 days after the alleged injury. A.C. also noted that appellant had been on annual
leave on April 26, 2016. She provided a “PS 3972” absence analysis form.
By development letter dated August 26, 2016, OWCP informed appellant that additional
factual and medical evidence was necessary to establish her claim. In an accompanying
questionnaire, it asked her to describe in detail how the claimed injury occurred. In particular,
OWCP requested that she respond to the employing establishment’s challenge that she was on
leave on April 26, 2016. It also requested that appellant clarify whether she was claiming a
traumatic injury or an occupational disease. OWCP afforded appellant 30 days to submit the
necessary evidence.
OWCP received medical reports which included a May 9, 2016 magnetic resonance
imaging (MRI) scan of appellant’s lumbar spine, and a June 29, 2016 report from a physician
assistant.
By decision dated October 6, 2016, OWCP denied appellant’s claim. It found that the
factual component of the third basic element, fact of injury, had not been established. OWCP
explained that appellant had not responded to the factual questionnaire and therefore it could not
be determined if the employment events occurred as alleged. It also noted that her failure to report
the injury and seek immediate medical attention, along with her failure to explain the delay, cast
significant doubt upon the circumstances of her injury.
On October 2, 2017 counsel requested reconsideration and submitted additional evidence,
which included appellant’s responses to OWCP’s questionnaire. He argued that appellant was
claiming an occupational disease because it was clear that her exposure occurred over a period

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longer than a single workday or shift. Counsel argued that the use of an incorrect form was a
technical error and that appellant had established her claim.
Along with the reconsideration request, counsel also submitted appellant’s responses to
OWCP’s questionnaire. Regarding the employing establishment’s allegation that she was on leave
on April 26, 2016, she explained that she had attended a medical appointment on that date.
Regarding the delay in reporting her alleged injury, she described a separate April 13, 2016
incident. Appellant related that she immediately spoke with her supervisor and informed her
regarding the April 13, 2016 incident, but her supervisor wrote the date of appellant’s doctor’s
appointment as the date of injury because she could not remember the exact date. In further
explanation, she claimed that she was clearing a path on the workroom floor area when some
medical booklets and plastic buckets tumbled and scattered everywhere. Appellant indicated that
she had to help clear a walking path by continuously bending down and picking up medical
booklets and filling up the empty mail buckets. She explained that she had to drag the buckets
(weighing 10 to 15 pounds) to the mail receptacles. Appellant related that she felt a shock of pain
and sudden pull in her lower spine area while performing these activities.
Appellant also indicated that her immediate supervisor had immediate knowledge of her
injury. She explained that she immediately felt throbbing and sensitivity in her lower spine and
back pain. Appellant explained that she walked to the finance office and sat down for 10 to 15
minutes to rest. However, the pain did not subside and she took pain medication. Appellant
indicated that she stopped working for the rest of the day on April 13, 2016. She also denied any
other injury. Appellant described her condition from the date of the injury and the date she first
received medical attention. She also clarified that she was claiming an occupational disease.
Appellant indicated that she had performed window services for the past 15 years and that her
employment duties required bending, stooping, pushing, lifting, and carrying of packages from 5
to 30 pounds, pushing and pulling mail equipment, lifting trays, and standing on her feet for up to
six hours per day.
OWCP received reports dated April 26 and July 7, 2016 from Dr. Sireen Gopal, a Boardcertified internist. Dr. Gopal noted that appellant had complaints of pain, numbness, and tingling
in her lower back radiating into her right buttock, thigh, and leg, which began more than five years
before. He explained that appellant did not recall the exact date, but she was at work lifting a bag
weighing 30 pounds or more and hurt her back, which worsened in the prior two weeks. Dr. Gopal
also indicated that appellant “denies w/c case states it has been closed for year now.” He diagnosed
radiculopathy, lumbosacral region, other spondylosis with radiculopathy, lumbosacral region,
chondrocostal junction syndrome, other spondylosis with radiculopathy, cervical region, and
myalgia.
By decision dated December 27, 2017, OWCP denied modification of appellant’s claim.
It found that the evidence was vague, general, and inconsistent, and cast serious doubt on the
validity of the claim for either a traumatic injury or an occupational disease.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
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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 are causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components, which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.4 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
When an employee claims an injury in the performance of duty, the employee must submit
sufficient evidence to establish that he or she experienced a specific event, incident, or exposure
occurring at the time, place, and in the manner alleged. He or she must also establish that such
event, incident, or exposure caused an injury.5 Once an employee establishes an injury in the
performance of duty, he or she has the burden of proof to establish that any subsequent medical
condition or disability for work, for which he or she claims compensation, is causally related to
the accepted injury.6
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a case has been
established, such circumstances as late notification of injury, lack of confirmation of injury, and
failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on the
employee’s statements. The employee has not met her burden when there are such inconsistencies
in the evidence as to cast serious doubt on the validity of the claim.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an employment
injury on April 26, 2016 in the performance of duty.

3

R.C., Docket No. 18-1639 (issued February 26, 2019); Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

See L.E., Docket No. 18-1612 (issued February 25, 2019); see generally, John J. Carlone, 41 ECAB 354 (1989);
see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. § 10.5(q) and (ee) (1999) (occupational disease or illness and
traumatic injury defined).
6

See supra note 3.

7

Betty J. Smith, 54 ECAB 174 (2002).

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Appellant has alleged that on April 26, 2016 she sustained a traumatic injury to her lower
back, both legs, and left ankle from bending and standing while in the performance of her
employment duties. However, the employing establishment controverted the claim and indicated
that appellant was on annual leave on April 26, 2016. The evidence appellant submitted in support
of her claim did not establish that she was at work on April 26, 2016, such that she could have
sustained injury in the performance of duty on that day. Rather, appellant eventually explained
that her supervisor had claimed that the injury occurred on April 26, 2016 because that was a date
on which she sought medical treatment. The evidence of record establishes that appellant was
treated by Dr. Gopal on April 26, 2016. However, Dr. Gopal specifically noted that she indicated
that her pain began more than five years prior. He also indicated that appellant did not recall the
exact date, but she was at work lifting a bag weighing 30 pounds or more, and hurt her back.
Dr. Gopal also noted that she denied a “w/c case.” As previously noted, it is appellant’s burden to
establish that she experienced a specific event, incident, or exposure at the time, place, and in the
manner alleged.8 The Board finds that appellant has not met her burden of proof to establish that
she was at work on April 26, 2016 and she has not established that she performed bending and
standing duties which caused back, leg, and left ankle injury.
On appeal counsel asserts that she had established her claim for an occupational disease.
However, as noted, appellant’s current claim is for an alleged April 26, 2016 traumatic injury, not
an occupational disease.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an employment
injury on April 26, 2016 in the performance of duty.

8

Supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the December 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 2, 2019
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
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

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

Docket No. 15-1425
Issued: December 18, 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 June 17, 2015 appellant filed a timely appeal from an April 14, 2015 merit decision of
the Office of Workers’ Compensation Programs.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of a
medical condition commencing February 20, 2010 causally related to his accepted November 26,
1998 employment injuries.

1

On June 17, 2015 appellant submitted a timely request for oral argument in connection with OWCP’s April 14,
2015 decision. By letter dated October 27, 2015, he withdrew the request for an oral argument and requested that
the matter proceed to a decision based on the evidence of record.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on November 26, 1998 appellant, then a 62-year-old mail handler,
sustained a bilateral leg contusion and an ankle contusion when his left leg and both feet became
jammed between two pallets at work. He stopped work on November 27, 1998 and returned on
December 2, 1998.3
The claim was dormant from early 1999 until late 2012 when appellant requested a copy
of his claim file. Thereafter, OWCP provided appellant a copy of his file.
On December 18, 2013 appellant filed a claim for a recurrence (Form CA-2a) of medical
condition commencing February 20, 2010 causally related to his accepted November 26, 1998
employment injuries. He had retired from the employing establishment on December 5, 2007.
Since that time, appellant related that he had been dealing with constant pain running up and
down his legs and feet, swelling of his foot and ankle, and stiffness in his joints and bones. He
sought medical treatment from time to time. The employing establishment controverted the
claim noting that appellant was removed for unsatisfactory attendance.4
In reports dated September 24 and October 4, 2013, Dr. Larry W. Blackburn, a Boardcertified family practitioner, noted appellant’s complaints of a productive cough. The reason for
his visit was for an evaluation of his flank, right leg, and right hip pain and gastroesophageal
reflux disease. Dr. Blackburn noted that appellant experienced right leg pain following an injury
at work a few months ago. He also noted that appellant had recently received care in an
emergency room. Dr. Blackburn provided a history of his family, social, and medical
background. He reported findings on physical and neurological examination. Dr. Blackburn
provided an impression of bronchitis, flank pain that was musculoskeletal in origin, esophageal
reflux, and leg pain that was unremarkable on examination. Dr. Blackburn also assessed lumbar
radiculopathy. On October 14, 2014 he ordered physical therapy to treat, among other things,
appellant’s lumbar radiculopathy.
In an October 9, 2013 lumbar magnetic resonance imaging (MRI) scan report,
Dr. Christopher J. Chicoskie, a Board-certified radiologist, found minimal degenerative disc
disease. There was no neural foramina stenosis. There was diffuse loss of normal fatty bone
marrow signal intensity which could have been due to red bone marrow reconversion caused by
chronic anemia. An October 14, 2013 report from appellant’s physical therapist addressed
appellant’s treatment.
By letter dated February 12, 2014, OWCP advised appellant of the deficiencies of his
claim and requested additional factual and medical evidence.

3

No wage-loss compensation was paid.

4

An attached April 7, 2008 notification of personnel action (PS Form 50) advised that, effective December 5,
2007, appellant was removed for unsatisfactory attendance/failure to be regular in attendance. Appellant’s last day
in pay status was May 3, 2007.

2

On February 26, 2014 appellant stated that he developed symptoms from time to time
five years after he stopped working, but that his symptoms had increased causing him constant
pain and discomfort in the same areas as his accepted injuries. He claimed that he had not
sustained any other injuries and that his right flank pain should be associated with his accepted
injuries and exercise. Appellant received medical treatment on December 1, 1998, December 13,
2012, and October 14, 2013.
Appellant submitted a September 13, 2012 right ankle x-ray report from Dr. Allen M.
Donnelly, a Board-certified diagnostic radiologist, who found no evidence of fracture or other
osseous abnormality. Physical therapy reports dated December 3 to 30, 2013 addressed
appellant’s treatment.
In a June 18, 2014 decision, OWCP denied appellant’s recurrence of a medical condition
claim as he failed to submit sufficient medical evidence to establish a causal relationship
between his current conditions and his accepted November 26, 1998 work injuries.
By letter dated July 9, 2014, appellant requested a telephone hearing with an OWCP
hearing representative. He resubmitted Dr. Donnelly’s September 13, 2012 right ankle x-ray
report. A telephone hearing was held on February 18, 2015. Appellant testified that he filed his
recurrence of a medical condition claim because he began having pains which he thought were
due to the work injury. He asked that OWCP pay for his physical therapy and other treatment.
The hearing representative informed appellant of the type of medical evidence needed to
establish his claim.
In an April 14, 2015 decision, an OWCP hearing representative affirmed the June 18,
2014 decision, finding the medical evidence submitted was insufficient to establish a causal
relationship between appellant’s current conditions and his accepted employment-related
injuries.
LEGAL PRECEDENT
A recurrence of a medical condition is defined as a documented need for further medical
treatment after release from treatment for the accepted condition or injury.5 Continuous
treatment for the original condition or injury is not considered a “need for further medical
treatment after release from treatment,” nor is an examination without treatment.6
An employee who claims a recurrence of medical condition has the burden of proof to
establish causal relationship by the weight of substantial, reliable, and probative evidence. This
burden requires that an employee furnish medical evidence from a physician who, on the basis of
a complete and accurate factual and medical history, concludes that the employee’s need for

5

20 C.F.R. § 10.5(y).

6

Id.

3

additional medical care is causally related to the accepted injury and supports that conclusion
with sound medical reasoning.7
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of a medical condition commencing February 20, 2010. OWCP accepted
that on November 26, 1998 appellant sustained a bilateral leg contusion and an ankle contusion
while working as mail handler. He was separated from the employing establishment on
December 5, 2007. On December 18, 2013 appellant filed a recurrence claim, alleging that his
current medical conditions were causally related to the accepted conditions.
Dr. Blackburn’s September 24 and October 4, 2013 reports provided an impression of
bronchitis, flank pain that was musculoskeletal in origin, esophageal reflux, and leg pain that was
unremarkable on examination, and assessed lumbar radiculopathy. While Dr. Blackburn
referenced the history of injury and physical examination findings as the basis for his conclusion,
he did not provide an opinion stating that the diagnosed conditions were causally related to the
accepted November 26, 1998 employment injuries. The Board has held that medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.8 Dr. Blackburn’s October 14, 2014
prescription ordered physical therapy to treat appellant’s conditions, including lumbar
radiculopathy, but offered no opinion on causal relationship of the diagnosed conditions.9
Similarly, the diagnostic test reports of Dr. Chicoskie are insufficient to establish causal
relationship. Neither physician provided an opinion on the causal relationship between
appellant’s diagnosed gastrointestinal and lumbar conditions, and the accepted work injuries.10
Dr. Donnelly, in his September 13, 2012 x-ray report, did not address whether appellant
had a right ankle condition causally related to the November 26, 1998 employment injuries.
Rather, he found no evidence of fracture or other osseous abnormality.
The reports from appellant’s physical therapist have no probative medical value, as a
physical therapist is not considered a physician as defined under FECA.11
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a recurrence of a medical condition commencing February 20,
7

E.O., Docket No. 11-1099 (issued February 24, 2012); J.B., Docket No. 11-1410 (issued January 5, 2012).

8

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

9

Id.

10

Id.

11

A.C., Docket No. 08-1453 (issued November 18, 2008). Under FECA, a physician includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law. 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208,
211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).

4

2010 causally related to the accepted November 26, 1998 employment injuries. Appellant did
not meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish a
recurrence of a medical condition commencing February 20, 2010 causally related to his
accepted November 26, 1998 employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the April 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
G.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JOHN D. DINGLE VETERANS
ADMINISTRATION MEDICAL CENTER,
Detroit, MI, Employer
_________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 13-975
Issued: August 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 18, 2013 appellant, through her representative, filed a timely appeal from the
February 7, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied her claim for wage-loss compensation. Pursuant to the Federal Employees’
Compensation Act1 (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 the disability for which appellant claims compensation beginning
April 21, 2011 is causally related to the December 19, 2010 work injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 19, 2010 appellant, a 46-year-old nurse, sustained a traumatic injury in the
performance of duty while turning a patient. She described the nature of her injury as constant
pain and intermittent burning sensations in her mid to lower back. OWCP accepted appellant’s
claim for lumbar sprain.
Appellant received continuation of pay from January 28 to March 13, 2011. OWCP paid
compensation for wage loss through April 20, 2011. An April 21, 2011 medical certificate
indicated that appellant was able to return to work. Nonetheless she claimed compensation for
continuing wage loss.
Dr. Emmanuel N. Obianwu, a Board-certified orthopedic surgeon and second opinion
physician, evaluated appellant on April 15, 2011. He reviewed a history of the December 19,
2010 work injury, her treatment and her medical records. Dr. Obianwu related appellant’s
complaints and described his findings on physical examination. He reviewed x-rays of the
lumbar spine, a January 17, 2011 magnetic resonance imaging (MRI) scan of the lumbar spine,
and a March 28, 2011 computerized tomography (CT) scan of the abdomen and pelvis: “There
was not a single blemish in any of these studies.”
Dr. Obianwu diagnosed resolved lumbar strain, overt symptom magnification and
abnormal illness behavior. He explained that appellant no longer had residuals from the
accepted work-related condition of lumbar strain/sprain, as there were no objective residuals of
the December 19, 2010 work injury. All objective conditions had resolved:
“Ongoing lumbar sprain will invariably be marked by tightness of the muscles of
the lumbar spine, possibly swelling of the lumbar spine, possibly asymmetry of
the pelvis, possibly functional scoliosis and tenderness in the middle of the
lumbar spine. None of these was present in my clinical assessment of this
woman. I do not know when they resolved, but I am sure of the fact that as of
today’s examination, lumbar strain no longer exists.”
Dr. Obianwu further explained that, during the physical examination, he observed her
grimacing, moaning, limping and severe impairment in spinal mobility, which were clear
excessive pain behaviors. The findings did not make anatomic sense, an example of which he
described. Appellant exhibited overreaction, and it was this abnormal behavior that was
preventing her from work. With respect to the element of lumbar sprain, however, she was
definitely in a position to return to her regular duties as a nurse because lumbar sprain no longer
existed.
Because of appellant’s complaint of involvement of both lower extremities, Dr. Obianwu
suggested electrodiagnostic studies, which were obtained on April 28, 2011. The studies were
normal in both lower extremities. He advised: “This woman should definitely return to her
regular duties at this time. No restrictions are called for. No further treatment is indicated.”
OWCP provided a copy of Dr. Obianwu’s evaluation and a statement of accepted facts to
Dr. Gerald Uzansky, appellant’s osteopathic family physician, and to Dr. Michael Townsend, an
internist, to whom appellant wished to change physicians on June 15, 2011 and June 21, 2011.

2

OWCP asked Dr. Uzansky and Dr. Townsend to review Dr. Obianwu’s examination of appellant
and to provide a response that discussed whether the physicians were in agreement or
disagreement with the findings. The physicians were given 30 days to respond. No response
was received within the allotted time.
In a decision dated July 22, 2011, OWCP denied appellant’s claim for compensation
beginning April 21, 2011. It found that the weight of the medical evidence rested with
Dr. Obianwu and established that she was not disabled for work after April 20, 2012 due to the
established work-related medical condition. OWCP noted that in addition to the medical note
releasing appellant to return to work on April 21, 2011, she had not provided evidence to support
continuing temporary total disability due to the accepted medical condition.
In a December 1, 2011 decision, an OWCP hearing representative affirmed the July 22,
2011 denial of compensation. The contemporaneous objective testing, including a completely
normal MRI scan and an electromyogram (EMG), showed absolutely no neuropathic condition.
A functional capacity evaluation and second opinion showed severe symptom magnification.
Although Dr. Haranath Policherla, a Board-certified neurologist, diagnosed lumbar
radiculopathy, he did not discuss how this was so given the testing read by other providers to be
normal, nor did he discuss appellant’s well-documented symptom magnification.2 The hearing
representative found that Dr. Obianwu, by contrast, had made a compelling argument for finding
no consistent objective evidence of any disabling back condition.
Appellant requested reconsideration and submitted over 100 pages of medical and
psychological paperwork, much of which related to an August 2, 2011 fall. A June 6, 2011
nerve conduction study showed bilateral L5-S1 radiculopathy, mild sensory neuropathy, and
bilateral moderate peroneal neuropathy at the knee. A November 7, 2011 MRI scan showed
degenerative changes within the mid to lower lumbar spine with no exiting nerve root
compression and with left-sided foraminal narrowing at L4-5 greater than L3-4.
On August 9, 2012 OWCP reviewed the merits of appellant’s case and denied
modification of its prior decisions. The evidence submitted did not address how the current
diagnoses were related to the December 19, 2010 work injury. “This is necessary given the fact
that the contemporaneous evidence fails to establish any other conditions than a lumbar sprain.”
Appellant, through her representative, again requested reconsideration. In support
thereof, she submitted the December 7, 2012 report of Dr. Policherla, who stated that appellant
had been under his care since June 6, 2011. Dr. Policherla related that appellant’s diagnoses
were bilateral L4-5 radiculopathy, bilateral moderate peroneal neuropathy at the knee, balance
dysfunction, and bilateral foot-drop, acquired by work-related injuries that occurred on
December 19, 2010 while fulfilling her job duties as a registered nurse. He described the
physical demands of appellant’s job, which she had performed for over four years.
Dr. Policherla explained that, as a result of performing this strenuous physical activity, appellant
sustained these traumatic injuries. “Therefore, [appellant] will remain off work until her
conditions improve.”

2

The Board notes that appellant submitted a June 6, 2011 report by Dr. Policherla prior to the hearing.

3

After detailing appellant’s complaints, Dr. Policherla related the results of EMGs
performed in his office in June 2011. He found them consistent with a November 7, 2011 MRI
scan. “In my medical opinion, the facts of the injury are the direct and proximate cause of the
diagnosis that I have cited above. This is based on reasonable medical probability. There may
be other causes for these medical problems, but one of the causes is clearly the activities of work
I described above.”
By decision dated February 7, 2013, OWCP denied modification of its prior decisions. It
found that Dr. Policherla did not discuss what happened on December 19, 2010, and thus did not
offer an opinion based on a complete and accurate history of injury. Further, many of the
diagnoses Dr. Policherla reported were previously determined to be nonexistent on medical
examinations performed contemporaneous to the time of injury and subsequent disability.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the evidence,3 including that he or she sustained an
injury in the performance of duty and that any specific medical condition or disability for work
for which he or she claims compensation is causally related to that employment injury.4
As used in FECA, the term “disability” means incapacity, because of employment injury,
to earn the wages that the employee was receiving at the time of injury.5 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wage-earning capacity resulting from such incapacity.6
Causal relationship is a medical issue,7 and the medical evidence generally 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, 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 established incident or factor of
employment.8
ANALYSIS
The issue is whether the December 19, 2010 incident at work caused appellant to remain
totally disabled for work beyond April 20, 2011. OWCP accepted that the work events of
3

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

4

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

5

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB 38
(1948); 20 C.F.R. § 10.5(17).
6

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

7

Mary J. Briggs, 37 ECAB 578 (1986).

8

B.G., Docket No. 13-54 (issued May 24, 2013).

4

December 19, 2010 caused a disabling lumbar sprain. The second opinion of Dr. Obianwu, the
orthopedic surgeon, establishes that this sprain had resolved and was no longer present at the
time of his April 15, 2011 examination of appellant. Although OWCP invited appellant’s
attending physicians, Dr. Uzansky and Dr. Townsend, to address whether they agreed or
disagreed with Dr. Obianwu’s findings, they did not respond. No physician has attempted to
explain that appellant remained disabled for work beyond April 20, 2011 as a result of the
accepted lumbar sprain.
The record reflects that the disability for which appellant seeks compensation is causally
related to other medical conditions, including a bilateral L4-5 radiculopathy. But as OWCP has
not accepted conditions other than a lumbar sprain she has the burden to establish that it is
causally related to the December 19, 2010 work injury. Appellant’s burden requires the
submission of a well-rationalized medical opinion based on a proper factual and medical
background.
Appellant has not submitted such evidence.
Early radiological, imaging and
electrodiagnostic studies of the lumbar spine were found to be unremarkable and normal in
appearance. A CT scan on March 28, 2011 noted mild S1 joint degenerative changes, which did
not impress Dr. Obianwu as significant. The electrodiagnostic studies he obtained on April 28,
2011 were reported as normal in both lower extremities.
On June 6, 2011 nerve conduction studies obtained for Dr. Policherla, the neurologist,
supported bilateral L5-S1 radiculopathy, a mild sensory neuropathy and bilateral moderate
peroneal neuropathy at the knee. Dr. Policherla did not explain how the December 19, 2010
incident at work caused or contributed to this condition. He did not describe what happened on
December 19, 2010. Dr. Policherla did not address the earlier clinical testing that showed no
abnormality apart from a mild S1 joint degenerative change. He attempted to associate the
diagnoses with an occupational injury occurring over the span of four years, rather than implicate
the specific work incident that occurred on December 19, 2010. Further, Dr. Policherla did not
directly address the issue of disability after April 20, 2011.
Medical conclusions unsupported by rationale are of diminished probative value.9
Medical conclusions based on inaccurate or incomplete histories are also of little probative
value.10 The Board therefore finds that Dr. Policherla’s opinion fails to establish that appellant’s
disability beginning April 21, 2011 is causally related to the December 19, 2010 work injury.
The Board has reviewed the medical evidence of record, including the 100-plus
documents appellant provided to support her first reconsideration request. The Board can find
no soundly reasoned medical opinion, based on a proper factual and medical history, explaining
how appellant’s disability for work beginning April 21, 2011 was causally related to what
happed on December 19, 2010. It is not enough that a medical condition be diagnosed or that a
disability certificate be completed. No physician has provided a narrative discussion rationally
9

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

10

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).

5

explaining how the specific work injury on December 19, 2010 caused the diagnosed medical
condition and how the medical condition disabled appellant for work on or after April 21, 2011.
The Board finds that appellant has not met her burden of proof. Accordingly, the Board
will affirm OWCP’s February 7, 2013 decision.
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 the disability for
which she claims compensation beginning April 21, 2011 is causally related to the December 19,
2010 work injury.
ORDER
IT IS HEREBY ORDERED THAT the February 7, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 12, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
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and
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DEPARTMENT OF DEFENSE, DEFENSE
)
MAPPING AGENCY, Louisville, KY, Employer
)
___________________________________________ )
N.S., Appellant

Docket No. 07-1611
Issued: November 23, 2007

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

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 May 30, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated February 26, 2007, denying her request for
further merit review of her claim. Because more than one year has elapsed between the most
recent merit decision dated February 14, 2006 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.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 11, 2002 appellant, then a 70-year-old retired cartographer, filed an
occupational disease claim alleging that her breast cancer was due to factors of her federal

employment. She first realized that the disease was caused or aggravated by her employment on
May 13, 2001.1
In support of her claim, appellant submitted medical evidence which included an
October 23, 2002 report, from Dr. Charles Dannaher, a Board-certified oncologist, who noted
that appellant was diagnosed with breast cancer in June 1997. Dr. Dannaher opined that
appellant was exposed to a significant number of chemicals in a poorly ventilated work space
during her employment with the employing establishment. He opined that her condition may be
directly related to her work environment.
In a January 19, 2003 statement, appellant alleged that she became aware of her condition
on May 18, 1997. She later realized that she was exposed to toxic chemicals on a regular basis
while working at the employing establishment. Appellant alleged that, on May 13, 2001, she
conducted an investigation to ascertain her situation.
By decision dated March 5, 2003, the Office denied appellant’s claim for compensation,
as the medical evidence did not demonstrate that the claimed medical condition was related to
established work-related events.
On March 28, 2003 appellant requested a hearing, which was held on February 25, 2004.
By decision dated May 14, 2004, the Office hearing representative affirmed the March 5,
2003 decision. The Office hearing representative noted that appellant did not submit any
detailed rationalized medical evidence to support that her breast cancer was caused by factors of
her federal employment.
Appellant’s representative filed an appeal with the Board. On November 1, 2005 the
Board issued an order remanding case due to the Office’s delay in failing to produce the case
record.2
By decision dated February 14, 2006, the Office denied appellant’s claim for
compensation, as the medical evidence did not demonstrate that the claimed medical condition
was related to the accepted injury.
On March 17, 2006 appellant requested a hearing. On April 3, 2006 her representative
alleged that her cancer was related to her employment and cited as an example that 40 employees
from the employing establishment either were disabled or died from cancer.
By decision dated May 3, 2006, the Office denied appellant’s request for a hearing. The
Office advised appellant that a previous hearing was completed by the Branch of Hearings and
Review and a decision was issued on May 14, 2004. The Office advised appellant that, since she
had already had a hearing, she was not entitled to a hearing as a matter of right.

1

Appellant retired on June 15, 1984.

2

Docket No. 04-2083 (issued November 1, 2005).

2

On February 3, 2007 appellant requested reconsideration. The Office received a copy of
her July 10, 2006 letter to her congressional representative. Appellant alleged that the Office
ignored her physician’s suggestion to investigate the number of incidents of cancer affecting the
employees at the employing establishment. She enclosed a copy of a letter that she had written
on May 11, 2002 which was addressed to the Secretary of Labor. Appellant alleged that she was
concerned that her workplace was not adequately ventilated and that 33 employees had
contracted cancer out of approximately 175 to 200 persons. The Office also received a July 2,
2003 letter from Tom FitzGerald, the Director of the Kentucky Resources Council, who
requested assistance with regard to obtaining a health assessment of the conditions at the
employing establishment. An August 24, 2001 letter addressed to appellant’s congressional
representative alleged that she was exposed to various toxins which she believed caused her
cancer. She requested that an investigation be conducted into the matter.
In a letter dated February 5, 2007, appellant alleged that Dr. Dannaher did not know that
it was important to state the date of her retirement. She argued that he indicated that her breast
cancer was related to her work environment. Appellant also alleged that he was aware of the
toxins that she was exposed to even though he did not list any in his report. She noted exposure
to shavings from the engraver that she used, and that thinner was used on a daily basis.
Appellant stated that it was also established that asbestos was found at the employing
establishment. She reiterated her belief that her condition was due to being exposed to these
various toxins.
By decision dated February 26, 2007, the Office denied appellant’s request for
reconsideration without a review of the merits on the grounds that her request neither raised
substantial legal questions nor included new and relevant evidence and, thus, it was insufficient
to warrant review of its prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,3 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
10.606(b)(2) of the implementing federal regulations, which provides that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, sets forth arguments and contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the Office;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”4
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

3

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.5
ANALYSIS
Appellant disagreed with the Office’s February 14, 2006 decision, which denied her
claim for an injury in the performance of duty. The underlying issue on reconsideration was
whether appellant submitted sufficient medical evidence to show that she sustained breast cancer
in the performance of duty. The Board notes that appellant did not provide any relevant or
pertinent new medical evidence addressing whether she sustained breast cancer in the
performance of duty.
On reconsideration, appellant made several arguments and submitted copies of letters she
sent to her Congressional representatives. However, the Board notes that this evidence is not
relevant to the underlying medical issue in her claim. Appellant did not submit on
reconsideration any new medical evidence addressing the cause of her condition. The
submission of evidence that does not address the particular issue involved does not constitute a
basis for reopening a case.6
Furthermore, appellant also has not otherwise shown that the Office erroneously applied
or interpreted a specific point of law, or advanced a relevant new argument not previously
submitted. Therefore, the Office properly denied her request for reconsideration.7
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.608(b).

6

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Robert P.
Mitchell, 52 ECAB 116 (2000).
7

The Board notes that, subsequent to the Office’s February 26, 2007 decision, appellant submitted additional
evidence. The Board has no jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c);
James C. Campbell, 5 ECAB 35 (1952).

4

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Anacoco, LA, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0108
Issued: May 2, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 18, 2016 appellant, through counsel, filed a timely appeal from April 22 and
July 20, 2016 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of duty.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 21, 2014 appellant, then a 51-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on September 11, 2014, while in the performance
of duty, she sustained a mental and physical condition after finding the body of a customer, B.B.,
who had been deceased for three or four days. She stopped work on October 6, 2014.
In a statement dated January 12, 2015, appellant described her current symptoms of
shakiness, a racing heart, and nightmares. She related that she knew that she needed assistance
with her symptoms on September 18, 2014 because she could not stop thinking about what she
had seen and smelled. Appellant submitted medical evidence.
By decision dated January 30, 2015, OWCP denied appellant’s claim after finding that the
medical evidence was insufficient to show that she sustained a medical condition due to the
accepted employment incident.
On March 17, 2015 appellant requested reconsideration and submitted additional medical
evidence. By decision dated May 27, 2015, OWCP denied modification of its January 30, 2015
decision. It determined that appellant had not submitted reasoned medical evidence supporting
that she sustained a condition due to the accepted work incident.
Appellant, through counsel, requested reconsideration on October 23, 2015 based on new
medical evidence. In a decision dated January 21, 2016, OWCP modified its May 27, 2015
decision to reflect that appellant had not established that she was in the performance of duty at the
time of the September 11, 2014 employment incident. It determined that appellant had not
established a compensable work factor. OWCP further found that determining the welfare of a
customer was outside the course of her employment.
In a statement dated March 3, 2016, appellant related that she was delivering mail to B.B.,
a customer on her route, when she noticed that he had not removed his mail from his mailbox for
the last three days. She had a package for him that would not fit in the mailbox. Appellant then
left the home of B.B and telephoned a friend who in turn called B.B.’s sister and related that B.B.’s
sister last talked to him a few days earlier. She drove back to B.B.’s house to leave the package
on his porch, still talking to her friend on the telephone. The front door was open and appellant’s
friend told her that B.B. often left his door open for his dog, and that she should yell because he
had difficulty hearing. Appellant went onto the porch and a dog ran out of the house. She knocked
on the wall and yelled for B.B. to tell him that he had a package. Appellant related:
“The television was up loud and the light on, so I was standing on the porch and I
looked to my right still hollering and the dog bumped into me going back into the
house. The dog stopped just inside the door and the smell just hit me. It was so
bad I realized the dog was standing right beside Billy on the floor. I was shocked
and scared, and screaming to Stacey on the phone.”
She telephoned her supervisor. The sheriff’s office came and she told them that she had not entered
the house and that the door was open when she got there. Appellant related, “What I saw and the
smell was so horrible and scary, that when I’m near his mailbox I fall apart.”
On March 7, 2016 appellant, through counsel, requested reconsideration. Counsel asserted
that appellant was performing her work duties when she delivered a package to B.B.’s door and
2

saw and smelled his body. Appellant noted that she did not go into B.B.’s home and only
approached his door because she had a package to deliver. Counsel advised that the situation was
factually similar to Larry J. Thomas,3 where the Board found that a claimant had established as a
compensable work factor finding the body of a suicide victim by his mailbox while he was
delivering mail. Counsel related, “Although [appellant] did notice that [B.B.] had not picked up
this mail for several days, the fact that she called a relative of his to make sure he was alright does
not take her delivery of the package to [his] door outside of the performance of her regularly
assigned duties.”
In a decision dated July 20, 2016, OWCP denied modification of its January 21, 2016
decision.4 It found that appellant had not established a compensable work factor.
On appeal counsel maintains that appellant was in the performance of duty at the time she
found the body of B.B., noting that she did not enter B.B.’s house and was at his front door to
deliver a large package. She cites Larry J. Thomas5 in support of her contention that she was in
the performance of duty. Counsel notes that appellant’s only relationship with B.B. was as a longstanding customer on her route.
LEGAL PRECEDENT
In providing for compensation programs for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness or mishap that might befall
an employee contemporaneous or coincidental with her employment; liability does not attach
merely upon the existence of an employee/employer relationship.6 Instead, Congress provided for
the payment of compensation for disability or death of an employee resulting from personal injury
sustained while in the performance of duty. The Board has interpreted the phrase “while in the
performance of duty” to be the equivalent of the commonly found requisite in workers’
compensation law of “arising out of and in the course of employment.” “In the course of
employment” deals with the work setting, the locale, and the time of injury whereas “arising out
of employment” encompasses not only the work setting, but also a causal concept, the requirement
being that an employment factor caused the injury.7 In addressing the issue, the Board has stated
that in the compensation field, to occur in the course of employment, in general, an injury must
occur: (1) at the time when the employee may reasonably be said to be engaged in her master’s
business; (2) at a place where she may reasonable be expected to be in connection with the
employment; and (3) while she was reasonably fulfilling the duties of her employment or engaged
in something incidental thereto.8

3

44 ECAB 291 (1992).

4

OWCP initially issued its decision on April 22, 2016; however, after counsel advised that she had not received a
copy of the decision, it reissued the decision on July 20, 2016.
5

See supra note 3.

6

George A. Fenske, 11 ECAB 471 (1960).

7

Denis F. Rafferty, 16 ECAB 413 (1965).

8

Carmen B. Gutierrez, 7 ECAB 58 (1954).

3

Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.9 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
her frustration from not being permitted to work in a particular environment, or to hold a particular
position.10
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may
not be considered.11 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.12
ANALYSIS
Appellant alleged that she experienced stress and anxiety as a result of finding the body of
a customer on September 11, 2014 who had been deceased for three or four days. OWCP denied
her claim after finding that she had not established a compensable factor of employment. The
Board must, therefore, initially review whether the alleged incident constitutes a covered
employment factor under FECA.
Appellant related that on September 11, 2014 she was delivering mail to B.B., a long-time
customer on her route. She noticed that he had not picked up his mail from his mailbox in a few
days. Appellant telephoned a friend who called B.B.’s sister. The friend advised that the sister
had spoken to B.B. a few days earlier. While still on the telephone, appellant drove to B.B.’s house
to leave a package on his front porch. The door was open and her friend told her that he often left
the door open for the dog. The dog ran out of the house. Appellant knocked and spoke loudly to
let B.B. know that she had left him a package. The dog ran back to just inside the door and
appellant saw that he was next to B.B.’s body. She also smelled the body. Appellant telephoned
her supervisor.
In Lillian Cutler,13 the Board explained that, where an employee experiences emotional
stress in carrying out her employment duties, or has fear and anxiety regarding her ability to carry
9

5 U.S.C. § 8101 et seq.; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

10

Gregorio E. Conde, 52 ECAB 410 (2001).

11

Dennis J. Balogh, 52 ECAB 232 (2001).

12

Id.

13

See supra note 9.

4

out such duties, and the medical evidence establishes that the disability resulted from her reaction
to such situation, the disability is generally regarded as within the coverage of FECA. An
emotional reaction resulting from the performance of her day-to-day to specifically assigned duties
or to a requirement imposed by the employment is compensable.14
OWCP’s procedures include postal letter carriers in the first of its four “broad classes of
off-premises workers” recognizing that the nature of the duties of these employees allows them to
be on the employer’s premises for only a portion of the day.15 In determining whether this type of
worker sustained an injury in the performance of duty, it must be determined whether the employee
was performing assigned duties, was engaged in an activity which was a reasonable incident of the
assignment, or had deviated from the assignment and was engaged in a personal activity which
was unrelated to work.16
Appellant discovered B.B.’s body at a time when she may reasonable be said to be engaged
in employment and at a place that she was expected to be as a result of her work duties. The Board
finds, however, that she had deviated from her work duties at the time the injury occurred. Neither
appellant’s day-to-day duties nor any specially assigned duties required her to telephone a friend
to inquire whether she had spoken with a customer recently. She further had no duty to look into
his house when he failed to answer the door. Instead, appellant voluntarily engaged in actions
unrelated to work in looking inside the customer’s house, and telephoning the police when she saw
his body.
In Larry J. Thomas,17 the claimant alleged an emotional condition as a result of finding the
body of a suicide victim next to a mailbox on his route. The Board determined that the incident
occurred at a time when he was engaged in his employer’s business, at a place where he could
reasonably be expected to be, and while he was fulfilling his employment duties. This case,
however, is distinguishable from Thomas, where the body was at the mailbox, impeding the
claimant from performing his regular work duties. It is more similar to Carla E. Phillips18 where
the claimant learned that her husband, also an employee of the employing establishment, had been
shot and killed while working. The Board found that appellant’s emotional condition did not result
from her assigned duties or other requirement imposed by employment, and that any assistance
she rendered at that time was optional and not a requirement or factor of her employment. In the
case at hand, appellant’s act of telephoning a friend to see if she had spoken to the customer
recently and then knocking on the customer’s door to advise him about a package and ascertain
his condition was an optional action rather than a work requirement. It thus constituted a deviation
from her assigned work duties and is not compensable under FECA.19 In a factually similar case,
the claimant found a deceased customer in the customer’s home.20 The Board determined that she
14

See S.R., Docket No. 10-2159 (issued July 20, 2011).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(a) (August 1992).

16

Id. at Chapter 2.804.5(b).

17

Supra note 3.

18

39 ECAB 1040 (1988).

19

Id.

20

See D.S., Docket No. 16-0756 (issued September 12, 2016).

5

had not sufficiently explained why she entered the customer’s residence and affirmed the denial
of her claim.
On appeal counsel contends that she was in the performance of duty at the time of her
injury as she was delivering a package to B.B.’s front door. As discussed, however, appellant has
not shown that she was performing her work duties at the time she discovered the customer’s body.
She removed herself from employment by telephoning a friend, knocking on the customer’s door,
and looking inside the residence. Instead, appellant optionally chose to render assistance, which
removes her from protection of FECA.21
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional condition
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.22
Issued: May 2, 2018
Washington, DC

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

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

21

See generally supra note 18.

22

Colleen Duffy Kiko, Judge, participated in this decision, but was no longer a member of the Board effective
December 11, 2017.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., claiming as administratrix of the estate of
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1924
Issued: March 28, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 19, 2012 appellant, through his attorney, filed a timely appeal from a
June 20, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying a posthumous schedule award. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUE
The issue is whether a valid claim for schedule award was filed within the employee’s
lifetime for appellant to be entitled to a posthumous schedule award.

1

5 U.S.C. §8101 et seq.

FACTUAL HISTORY
On December 28, 1985 the employee, then a 31-year-old letter carrier, filed a traumatic
injury claim alleging that he twisted his left knee when he slipped on ice while coming down a
step. OWCP accepted the claim for internal derangement of the left knee.
On August 10, 2001 the employee filed a claim for a schedule award and submitted a
December 24, 1998 impairment report from Dr. David Weiss, an osteopath. OWCP began
development of the impairment issue and, in 2005, requested that the employee file a Form CA-7
claim for compensation indicating that he was seeking entitlement to a schedule award. On
September 22, 2005 the employee again filed a claim for a schedule award.
On January 4, 2006 the employee filed a notice of recurrence alleging that his work
stoppage as of December 12, 2005 was due to no work being available within his restrictions.2
In a March 2, 2006 letter, counsel advised that the employee’s schedule award claim must be
withdrawn in light of the fact that he had filed a recurrence. He asked OWCP to confirm in
writing that the schedule award has been withdrawn and that the recurrence claim would
proceed. In a March 16, 2006 letter, OWCP acknowledged that the schedule award had been
withdrawn per the employee’s request. It advised that he could submit his request for a schedule
award again when his physician opined that maximum medical improvement has been reached.
In a June 30, 2006 letter from counsel, OWCP was advised that the employee had passed away
on June 25, 2006.
On April 12, 2010 appellant, the employee’s widow and administratrix of his estate, filed
a claim for a schedule award. By decision dated May 4, 2010, OWCP denied entitlement to a
schedule award as the medical evidence was insufficient to establish permanent impairment
under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment. On May 11, 2010 appellant requested a hearing before an OWCP
hearing representative, which was held September 15, 2010. In a January 21, 2011 decision,
OWCP’s hearing representative vacated the May 4, 2010 decision and remanded the case for
further medical development.
By decision dated May 17, 2011, OWCP denied the claim for a schedule award as the
evidence was not sufficient to establish that a valid claim for benefits was submitted within the
employee’s lifetime. It specifically found that the employee, through counsel, withdrew the
active August 1, 2001 schedule award claim on March 2, 2006, prior to adjudication. Although
the claim was resubmitted and a new claim filed after the employee’s death on June 25, 2006,
those claims cannot be considered to have been submitted during the employee’s lifetime.
In a May 23, 2011 letter, counsel requested an oral hearing, which was held via
videoconference on April 23, 2012. He argued that the schedule award request made in
August 2001 was a valid claim during the employee’s lifetime. Appellant indicated that, due to a
recurrence, a request was made not to proceed with the schedule award on March 2, 2006.
2

By decision dated April 15, 2008, the Board set aside OWCP’s April 3, 2007 decision denying the employee’s
recurrence claim and remanded the case to OWCP for further development. Docket No. 07-2367 (issued
April 15, 2008). OWCP ultimately accepted the recurrence.

2

However, the recurrence was approved and the request for a schedule award was renewed after
the employee’s death.
By decision dated June 20, 2012, OWCP’s hearing representative affirmed the May 17,
2011 decision finding that there was no valid or pending claim for a schedule award on record at
the time of employee’s death on June 25, 2006.
LEGAL PRECEDENT
Section 8109 of FECA provides for the payment of compensation under schedule awards
unpaid at death to beneficiaries and lists an order of precedence for identifying eligible
beneficiaries. The statue provides that, if an individual has sustained disability compensable
under section 8107(a), has filed a valid claim in his lifetime, and dies from a cause other than the
injury before the end of the period specified by the schedule; the compensation specified by the
schedule that is unpaid at his death, whether or not accrued or due at his death, shall be paid to
designated surviving beneficiaries.3
The Board has held the intent of this statutory language is clear, for a beneficiary to be
entitled to payment of a schedule award upon death of an injured employee, such claim must
have been filed within the employee’s lifetime.4 If a claim has been filed during the employee’s
lifetime and the claim was under development, the employee’s estate may be entitled to schedule
award benefits if entitlement is established by the medical evidence.5
ANALYSIS
The record indicates that the employee requested a schedule award on August 10, 2001
and September 22, 2005. In a March 2, 2006 letter, counsel requested a formal withdrawal of the
schedule award claim. OWCP acknowledged the formal withdrawal of the schedule award claim
and sent the employee and counsel a letter indicating such on March 16, 2006. The employee
passed away on June 25, 2006. Appellant requested a schedule award on his behalf on
April 19, 2010.
There is no entitlement to a posthumous schedule award if the schedule award claim is
not filed during the lifetime of the injured employee.6 The Board has held that a schedule award
claim must be filed by an injured employee or someone acting on his behalf during his lifetime
to establish a valid claim for compensation under section 8107.7 Additionally, OWCP’s
implementing regulations provide that the right to claim compensation ceases and does not
3

5 U.S.C. § 8109(a). Carol T. Collins (Harold Turner), 54 ECAB 417 (2003); P.G. (T.G.), Docket No. 08-2183
(issued June 23, 2009).
4

Id.

5

See Cheryl R. Holloway (Wryland R. Holloway), 54 ECAB 443 (2003).

6

Carol T. Collins (Harold Turner), supra note 3; Mary Marie Young (David E. Young), 30 ECAB 94 (1978);
P.G. (T.G.) supra note 3.
7

Id.

3

survive the death of the employee.8 In the instant case, counsel requested a formal withdrawal of
the employee’s schedule award claim on March 2, 2006, which OWCP accepted and
acknowledged on March 16, 2006. While appellant’s attorney on appeal argued that the
employee’s schedule award claim had to be interrupted during the period of recurrence, his
March 2, 2006 letter used clear and definitive language that he wished to withdraw the
employee’s schedule award. OWCP confirmed the withdrawal on March 16, 2006 and counsel
did not communicate any desire to renew the claim prior to the employee’s death. Thus, there is
no valid or pending schedule award claim on record at the time of the employee’s death on
June 25, 2006. As no valid schedule award claim was filed within the employee’s lifetime, the
Board finds that a posthumous claim for schedule award compensation may not be filed by
appellant.9
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.

8

See 20 C.F.R. § 10.105(d); see also P.G. (T.G.), supra note 3.

9

P.G. (T.G.), supra note 3. Neither the Board nor OWCP has the authority to enlarge the terms of FECA as
specified in the statute. See, e.g., Mary C. Anderson-Paine (Robert O. Anderson), 47 ECAB 148, 152 (1995). C.f.,
F.D. (D.D.), Docket No. 10-229 (issued August 2, 2010) (appellant asserted that the employee filed a valid claim for
a schedule award during his lifetime, the Board noted that, while he filed previous schedule award claims which had
been paid, there remained no unpaid claim for a schedule award under the previous schedule award claim and no
claim that was under development at the time of death). Here, as noted, the previous claim had been withdrawn by
counsel and no such claim was under development at the time of the employee’s death.

4

CONCLUSION
The Board finds that appellant is not entitled to a posthumous schedule award on behalf
of the employee.
ORDER
IT IS HEREBY ORDERED THAT the June 20, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2013
Washington, DC

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

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

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

5