United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
U.S. POSTAL SERVICE, BEAVERCREEK
POST OFFICE, Dayton, OH, Employer
__________________________________________

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

Docket No. 19-1536
Issued: June 26, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 11, 2019 appellant, through counsel, filed a timely appeal from a May 14, 2019
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 a left knee condition
causally related to the accepted October 19, 2018 employment incident.
FACTUAL HISTORY
On October 20, 2018 appellant, then a 49-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on October 19, 2018 she injured her knee while in the
performance of duty. She asserted that she had experienced knee pain walking on her route that
had increased significantly the following day. On the reverse side of the claim form, the employing
establishment indicated that appellant was in the performance of duty at the time of the incident,
but controverted the claim as she appeared “fine after [the] traumatic event supposedly happened.”
Appellant stopped work on October 20, 2018.
In an emergency room discharge report dated October 20, 2018, Dr. William R. Marriott,
Board-certified in emergency medicine, and Dr. Jordan Jacobsen, who specializes in emergency
medicine, obtained a history of appellant experiencing pain in her left leg radiating to the groin
that had begun the day before without a specific injury and had worsened with time.3 Dr. Jacobsen
indicated that her symptoms were “consistent with tendinopathy such as tendinitis.” Drs. Marriott
and Jacobsen diagnosed acute left knee pain.
An x-ray of appellant’s left knee obtained on October 20, 2018 by Dr. Kurt Stedje, a Boardcertified radiologist, displayed a small joint effusion with no acute fracture.
In an emergency room report dated October 20, 2018, Dr. Jacobsen diagnosed knee pain
and noted that appellant’s symptoms were consistent with tendinopathy/tendinitis. He indicated
that an x-ray had demonstrated soft tissue swelling. Dr. Jacobsen found that appellant should not
work for five days.
In an October 20, 2018 state workers’ compensation form, appellant advised that she had
felt throbbing in her left knee on October 19, 2018 that had worsened on October 20, 2018 when
she returned to work. She sought treatment at the hospital.
In a report dated October 22, 2018, Dr. Steve McKee, Board-certified in family practice,
obtained a history of appellant experiencing left knee pain walking on October 19, 2018 without a
specific injury. Appellant’s pain had worsened overnight and she had sought treatment at the
hospital. Dr. McKee noted that she had no history of a previous injury to her knee. On
examination he found diffuse tenderness over the anteromedial aspect of the knee, limited range
of motion, and no effusion. Dr. McKee diagnosed a strained left knee and referred appellant for
physical therapy. He found that she could return to work on modified duty and provided
restrictions. On the same date Dr. McKee completed a duty status report (Form CA-17), a state
workers’ compensation form, an attending physician’s report (Form CA-20), and a physician’s
work activity status report. In the Form CA-20 report, Dr. McKee diagnosed a left knee sprain
3
The report indicated that appellant complained of right rather than left knee pain; however, this appears to be a
typographical error.

2

and checked a box marked “Yes” that appellant’s condition was caused or aggravated by an
employment activity.
A nurse practitioner, Annie Longenecker, provided progress reports and Form CA-17
reports dated October 24 and 31, 2018.
In a November 7, 2018 development letter, OWCP informed appellant that when it had
received her claim it had appeared to be a minor injury that had resulted in minimal or no lost time
from work, and thus it had administratively approved payment of a limited amount of medical
expenses. As appellant had not resumed her regular employment, it advised that it was now
formally considering the merits of her claim. OWCP notified her that the documentation received
to date was insufficient to support her claim for FECA benefits. It informed appellant of the type
of factual and medical evidence necessary to establish her claim and attached a questionnaire for
her completion. OWCP afforded her 30 days to submit the requested factual and medical evidence.
Subsequently, OWCP received an October 20, 2018 statement from appellant in response
to its development letter. Appellant advised that she had experienced left knee pain on October 19,
2018, but had finished her route. She explained that the next morning she continued to have pain.
Appellant began her route, but was unable to walk due to significant pain.
Appellant submitted a November 7, 2017 report and Form CA-17 report and a
November 14, 2018 note from Ms. Longenecker.
On November 21, 2018 Dr. McKee listed the dates that he had treated appellant and noted
that she had developed mild pain in her left knee on October 19, 2018 while delivering mail and
that her symptoms had increased the next day on her route. He diagnosed left knee strain and
noted that he had referred appellant for a magnetic resonance imaging (MRI) scan. Regarding
whether the employment incident caused or aggravated a medical condition, Dr. McKee advised
that she walked 12 to 15 miles each day and had “developed left knee pain while walking for work
and did not have prior knee pain.” In a report of the same date, he provided findings on
examination and noted that appellant was not working as there was no limited duty available. In
a Form CA-17 report also dated November 21, 2018, Dr. McKee listed work restrictions.
In a December 5, 2018 Form CA-17 report and accompanying work status report form,
Dr. Janet Cobb, a Board-certified internist, diagnosed a sprain of the muscle/tendon of the lower
left leg and provided work restrictions. A physician assistant, Abby Rapking, provided a report of
the same date.
By decision dated December 19, 2018, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record failed to establish a causal relationship between a diagnosed
medical condition and the accepted October 19, 2018 employment incident.
On December 31, 2018 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.
In a report dated January 8, 2019, Dr. Cobb discussed the history of the October 19, 2018
employment incident and appellant’s continued complaints of left medial and anterior knee pain.
She diagnosed a left knee strain and provided work restrictions.
3

A January 25, 2019 MRI scan, interpreted by Dr. James Tsatalis, a Board-certified
radiologist, displayed a tear of the medial meniscus, a subtle tear of the junction of the
body/anterior horn of the lateral meniscus, and small to moderate knee joint effusion and spurring.
The record contains a January 29, 2019 report signed by Ms. Rapking and another health
care provider whose signature is illegible. The report noted that appellant had medial and lateral
meniscal tears and referred her to an orthopedic specialist. The record also contains an unsigned
Form CA-17 report of the same date.
A telephonic hearing was held on April 9, 2019. Appellant stated that she began to have
knee pain on October 19, 2018 and that she had sought medical treatment the following day.
By decision dated May 14, 2019, OWCP’s hearing representative affirmed the
December 19, 2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.8 Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.9 The second component is whether the employment incident caused a personal injury.10
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
4

Supra note 2.

5

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10

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

4

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 incident.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted October 19, 2018 employment incident.
In a Form CA-20 report dated October 22, 2018, Dr. McKee diagnosed a left knee sprain
and checked a box marked “Yes” that the condition was caused or aggravated by the employment
incident. The Board has held, however, that a report that addresses causal relationship with a
checkmark, without medical rationale explaining how the employment incident caused or
aggravated the diagnosed condition, is of diminished probative value and insufficient to establish
causal relationship.12
On November 21, 2018 Dr. McKee noted that appellant had experienced left knee pain on
October 19, 2018. He diagnosed left knee strain and noted that she walked 12 to 15 miles during
a workday. Responding to a question regarding causation, Dr. McKee opined that appellant had
experienced left knee pain walking at work and had no prior history of knee pain. The Board has
held that neither the mere fact that a disease or condition manifests itself during a period of
employment nor the belief that the disease or condition was caused or aggravated by employment
factors or incidents is sufficient to establish a causal relationship.13 This report is therefore
insufficient to establish appellant’s claim.
The remaining medical evidence of record fails to address causation. In reports dated
October 20, 2018 from the emergency room, Drs. Marriott and Jacobsen obtained a history of
appellant experiencing knee pain the day before without an injury and diagnosed acute left knee
pain. As these reports do not address causation, they are insufficient to meet her burden of proof.14
Moreover, the Board has held that pain is a symptom and not a compensable medical diagnosis.15
On October 22, 2018 Dr. McKee provided the history of the October 19, 2018 employment
incident and diagnosed a left knee strain. In form reports dated October 22 and November 21,
2018, he listed work restrictions. Again, however, as Dr. McKee failed to address causation, these
reports are of no probative value and insufficient to meet appellant’s burden of proof.16
On January 8, 2019 Dr. Cobb evaluated appellant for left knee pain and noted the history
of the October 19, 2018 employment incident. She diagnosed left knee strain and provided work
11

S.S., Docket No. 18-1488 (issued March 11, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

12

See K.R., Docket No. 19-0375 (issued July 3, 2019); Deborah L. Beatty, 54 ECAB 340 (2003).

13

J.B., Docket No. 19-1101 (issued November 20, 2019).

14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

15

T.G., Docket No. 19-0904 (issued November 25, 2019).

16

Supra note 14.

5

restrictions. Dr. Cobb also completed a Form CA-17 report and an accompanying work status
form on December 5, 2018. As she failed to specifically address whether the October 19, 2018
employment incident either caused or contributed to appellant’s diagnosed conditions, her opinion
is insufficient to meet appellant’s burden of proof.17
Appellant submitted reports from Ms. Rapking, a physician assistant, and from
Ms. Longenecker, a nurse practitioner. However, certain healthcare providers such as physician
assistants, nurse practitioners, physical therapists, and social workers’ are not considered
“physician[s]” as defined under FECA.18 Consequently, these reports do not constitute competent
medical evidence.19
The record contains a January 29, 2019 report with an illegible signature and an unsigned
Form CA-17 report of the same date. The Board has held that a report that is unsigned or bears an
illegible signature lacks proper identification and cannot be considered probative medical evidence
as the author cannot be identified as a physician.20 This report is therefore insufficient to establish
appellant’s claim.
Appellant also submitted an x-ray and an MRI scan of her left knee. The Board has held
that diagnostic test reports, standing alone, lack probative value on the issue of causal relationship
as they do not provide an opinion as to whether the accepted employment incident caused a
diagnosed condition.21 These diagnostic reports are therefore also insufficient to establish
appellant’s claim.
On appeal counsel contends that OWCP failed to give deference to appellant’s attending
physician or apply the proper causation standard. As discussed, however, appellant has not
submitted rationalized medical evidence establishing that she sustained a left knee condition
causally related to the accepted October 19, 2018 employment incident, and thus has not met her
burden of proof to establish her claim.22

17

Id.

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); R.K., Docket No. 20-0049 (issued April 10, 2020) (a physician assistant is not considered a “physician” as
defined under FECA); R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical therapists are
not considered physicians under FECA).
18

19

N.B., Docket No. 19-0221 (issued July 15, 2019).

20

I.M., Docket No. 19-1038 (issued January 23, 2020); T.O., Docket No 19-1291 (issued December 11, 2019).

21

A.P., Docket No 18-1690 (issued December 12, 2019).

22

See K.K., Docket No. 19-1193 (issued October 21, 2019).

6

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted October 19, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 26, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, LAUDERRIDGE
CARRIER ANNEX POST OFFICE,
Oakland Park, FL, Employer
__________________________________________

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Appearances:
Joanne Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1504
Issued: July 30, 2021

Case Submitted on the Record

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

JURISDICTION
On August 12, 2020 appellant filed a timely appeal from a July 16, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the Federal Employees’

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

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

Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty on November 24, 2018, as alleged.
FACTUAL HISTORY
On November 27, 2018 appellant, then a 40-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that she developed an emotional condition after she was
approached by a customer on November 24, 2018 who threatened her life while she was in the
performance of duty. In a narrative statement, she alleged that she was approached by a customer
who accused her of taking his package and promised her that if he did not receive it he would kill
her. Appellant noted that she was afraid and called the police. She asserted that thereafter, she
began to experience nightmares, loss of concentration, and fear of going on the street. Appellant
did not stop work.
In a December 11, 2018 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to respond.
Appellant, in a December 18, 2018 response to OWCP’s development questionnaire, noted
that her injury occurred on her postal route while she was sitting in her vehicle. She asserted that
a male customer approached her and asked about a package that he believed he should have
received. The male customer showed appellant the employing establishment website regarding
the status of the package, which was showing as “out for delivery.” Appellant informed him that
she did not have the package. The man stated that, if he did not receive the package, he would
shoot her. He then walked off. The man continued by threatening that he was going to kill
appellant, or have her killed, if he did not receive his package. Appellant asked if that was a threat
and he replied that it was a promise. She informed him that she was contacting the police and he
cursed in response. Appellant called 911 and took a picture of the license plate of the car he was
driving.
In a December 20, 2018 statement, C.E., reported that she was engaged in a telephone
conversation with appellant on November 24, 2018 at around 6:00 p.m. She overhead a male
customer threaten appellant. C.E. noted that the male customer asked appellant about a missing
package, which, according to the employing establishment website, was “out for delivery.”
Appellant explained that she did not have the missing package. C.E. reported that the customer
became vicious and threatening. The male customer informed appellant that if he did not receive
the package he would shoot her, which C.E. understood as a street saying for shooting appellant.
Appellant then notified the customer that she was calling the police. The male customer replied
that he did not care. C.E. noted that the customer was cursing and that his voice was fading, such
3

5 U.S.C. § 8101 et seq.

2

that she assumed that he had walked away. Appellant then ended the call to contact the police.
C.E. telephoned appellant again and calmed her until the police arrived.
OWCP subsequently received medical evidence in support of the claim. On November 30,
2018 Dr. Benjamin F. Isom, a licensed clinical psychologist, completed a form report and related
that appellant was threatened by a customer on her route and that she believed that her life was in
danger. He diagnosed acute stress disorder and indicated by checking a box marked “Yes” that
appellant’s condition was caused or aggravated by her employment activity. In a December 20,
2018 narrative report, Dr. Isom described the November 24, 2018 incident, indicating that a
customer threatened to kill appellant. He noted that she presented with intense anxiety, seemed
traumatized by the event, experienced recurrent involuntary distressing memories of the trauma,
flashbacks of the incident, and marked physiological reaction. Dr. Isom diagnosed acute distress
disorder.
In a January 7, 2019 report, Dr. Migdalia I. Figueredo, a licensed clinical psychologist,
described the alleged employment incident and noted that appellant felt her life was threatened.
She diagnosed post-traumatic stress disorder (PTSD) and anxiety disorder.
By decision dated January 17, 2019, OWCP denied appellant’s emotional condition claim,
finding that she had not established that the incident occurred as alleged. It concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
On January 31, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
OWCP subsequently received additional evidence, including February 19 and March 11,
2019 reports from Dr. Figueredo.
A November 24, 2018 sheriff’s report documented a disturbance on that date wherein
appellant alleged that a male customer threatened her. The male customer approached her truck
and stated that, if he did not get his package, “she would see what he would do.” He also threatened
that, “if the package is not here next time, he will send someone for her.”
An oral hearing was held on June 11, 2019. Appellant described the events of
November 24, 2018, noting that as she sat in her work vehicle, a male customer approached her
about a package. She denied that she had the package and he showed her the employing
establishment website, indicating that the package was “out for delivery.” Appellant again denied
that she had the package. The man threatened appellant and asserted that it was a promise. He
stated that he would kill appellant. Appellant then called the police. She noted that the man
threatened to shoot her. Appellant assumed that the package contained an illegal substance.
By decision dated August 19, 2019, OWCP’s hearing representative affirmed the
January 17, 2019 decision finding, that the evidence of record was insufficient to establish that the
claimed incident occurred at the time, place, and in the manner alleged.
On September 21, 2019 appellant, through her representative, requested reconsideration.
She provided additional evidence and argument in support of appellant’s claim, including
appellant’s telephone records and clock rings. The representative correlated appellant’s telephone
3

record with the police report, and the location of the incident with appellant’s route. She asserted
that the incident occurred at the time, place, and in the manner alleged.
By decision dated December 18, 2019, OWCP modified its prior decisions, finding that
appellant had established that the November 24, 2018 incident occurred as alleged. However, it
continued to deny appellant’s emotional condition claim, finding that the November 24, 2018
verbal threat was not a compensable factor of employment.
On April 29, 2020 appellant, through her representative, requested reconsideration. She
submitted additional new medical evidence and argued that appellant was performing her assigned
duties, that she was engaged in an activity that was reasonably incidental to her employment, and
that she had not deviated from her work assignment. The representative contended that appellant
had established a compensable verbal threat.
By decision dated July 16, 2020, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,8 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
4

Id.

5

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

6

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
7

S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
8

28 ECAB 125 (1976).

4

emotional condition arising under FECA.9 There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers’ compensation.10 When an employee experiences emotional stress in carrying out his
or her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury arising
out of and in the course of employment. This is true when the employee’s disability results from
his or her emotional reaction to a special assignment or other requirement imposed by the
employing establishment or by the nature of the work.11
Perceptions and feelings, alone, are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting his or her allegations with
probative and reliable evidence.12 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.
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP denied appellant’s emotional condition claim, finding that she had not established
a compensable employment factor. The Board must, therefore, initially review whether the alleged
incidents and conditions of employment are covered employment factors under the terms of FECA.
Regarding appellant’s allegation that she was threatened by a customer on November 24,
2018, the Board has recognized that verbal threats when sufficiently detailed by the claimant and
supported by evidence, may constitute compensable employment factors.13 In the instant case,
appellant provided a witness statement corroborating that the customer threatened to shoot
appellant, and a police report documenting the incident.
The Board finds that the statements by the customer on November 24, 2018 rise to the level
of a credible bodily threat directed at appellant.14 Appellant has established with corroborating
evidence that specific verbal threats were made against her. The Board has recognized the
compensability of threats, when the factual aspects of such claimed threats are established.15

9

Supra note 3.

10

G.R., Docket No. 18-0893 (issued November 21, 2018). Robert W. Johns, 51 ECAB 136 (1999).

11

G.G., Docket No. 18-0432 (issued February 12, 2019).

12

J.Z., Docket No 19-1156 (issued July 28, 2020); D.W., Docket No. 19-0449 (issued September 24, 2019).

13

J.Z., id.; J.W., Docket No. 17-0999 (issued September 4, 2018).

14

See M.R., Docket No. 17-1803 (issued February 8, 2019) (finding that a statement made directly to the claimant
that he would be “among the nonliving” was a credible bodily threat directed at the claimant).
15

See Z.S., Docket No. 16-1783 (issued August 16, 2018).

5

For the foregoing reasons, the Board finds that appellant has established a compensable
factor of employment under FECA. OWCP did not analyze or develop the medical evidence given
its finding that there were no compensable employment factors. The case will therefore be
remanded to OWCP for this purpose.16 After any further development as deemed necessary, it
shall issue a de novo decision on the issue of whether appellant has an emotional condition due to
the compensable factor of her federal employment.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 16, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: July 30, 2021
Washington, DC

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

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

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

16

K.A., Docket No. 14-0017 (issued August 4, 2014); Robert Bartlett, 51 ECAB 664 (2000).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Indianapolis, IN, Employer
__________________________________________

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

Docket No. 15-108
Issued: April 7, 2015

Case Submitted on the Record

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

JURISDICTION
On October 20, 2014 appellant filed a timely appeal of the May 29, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merit decision of the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 23, 2012 appellant, then a 38-year-old facts motor vehicle operator, filed a
Form CA-1 traumatic injury claim alleging that on February 22, 2013 he injured his low back
when lifting a wheelchair with a patient in it up steps. He did not stop work.
Appellant submitted a February 22, 2012 report from Dr. Eromonelel O. Idahosa, a
Board-certified internist, who treated appellant for low back pain. He reported assisting a
wheelchair bound patient up steps and he felt a pull in his low back. Dr. Idahosa diagnosed low
back pain and muscle strain. On October 4, 2012 he treated appellant for low back pain after
appellant sustained a new back strain. Lumbar spine x-rays revealed L5-S1 pars defects with
minimal anterolisthesis of L5-S1 and age-indeterminate fracture of the coccyx. Dr. Idahosa
diagnosed low back pain and old fracture of the coccyx.
On February 23, 2012 appellant was treated by Dr. Vivian S. Howard, a Board-certified
internist, for low back pain. He reported pulling a wheelchair up stairs and felt a pull in his back.
Dr. Howard diagnosed lumbar strain and released appellant to limited duty. In a March 2, 2012
emergency treatment report, a registered nurse indicated that appellant could return to work with
restrictions. On October 5, 2012 Dr. Warren J. Hoyt, a Board-certified internist, treated
appellant for ongoing neck and lower back pain. Appellant reported his low back pain began
after lifting a 380-pound patient and he felt a pull in his back. An October 11, 2012 magnetic
resonance imaging (MRI) scan of the lumbar spine revealed central disc protrusion at L2-3 with
disc contact with the traversing L3 nerve roots, and mild grade 2 spondylolisthesis at L5-S1 due
to bilateral L5 pars interarticularis defects.
Appellant was also treated by Dr. Amy Leland, a Board-certified physiatrist, for a new
injury to his back. In notes dated November 1 and 27, 2012, Dr. Leland noted that he was totally
disabled until November 27, 2012. In an attending physician’s report dated November 2, 2012,
she noted a history of injury on February 22, 2012 and diagnosed right sciatica joint dysfunction
and low back pain. Dr. Leland noted with a checkmark “yes” that appellant’s condition was
caused or aggravated by an employment activity. She found him totally disabled. On
November 27, 2012 Dr. Leland saw appellant for low back pain. Appellant reported having a
work injury on February 22, 2012 and exacerbated his symptoms on October 4, 2012 causing S1
joint region pain radiating into the low back, episodic bilateral leg, and foot numbness.
Dr. Leland noted positive findings on examination and diagnosed sacroiliac joint dysfunction of
the right side and low back pain. A December 6, 2012 electromyogram revealed no
abnormalities of the lower extremities with no evidence of radiculopathy or peripheral
neuropathy.
By letter dated December 26 2012, OWCP advised appellant that his claim was originally
received as a simple, uncontroverted case and was administratively handled to allow medical
payments up to $1,500.00, but the merits of the claim had not been formally adjudicated. It
advised that, because a claim for wage loss was received, his claim would be formally
adjudicated. OWCP requested that appellant submit a comprehensive medical report from his
treating physician which included a reasoned explanation as to how the specific work factors or
incidents contributed to his claimed low back injury.

2

Appellant submitted reports from Dr. Leland dated November 1 and 2, 2012 who treated
him for chronic neck pain since a 2001 motor vehicle accident and for a recent related work low
back injury occurring on February 22, 2012 while pulling a wheelchair bound patient up stairs.
He reported that on October 4, 2012 his back symptoms flared up without a specific inciting
event and he sought emergency room treatment. Dr. Leland noted findings and diagnosed right
side sacroiliac joint dysfunction and low back pain. She found appellant disabled for six weeks.
In a January 2, 2013 report, Dr. Leland noted appellant’s treatment for right S1 joint dysfunction
beginning on November 1, 2012 which he attributed to his injury on February 22, 2012 and an
exacerbation of his symptoms from straining his back on October 4, 2012. She opined that the
flare-up on October 4, 2012 was due to ongoing repetitive lifting, bending, and twisting.
Dr. Leland diagnosed sacroiliac joint dysfunction and low back pain and returned appellant to
light duty on January 2, 2013. She indicated that he was not given a diagnosis of right sacroiliac
joint dysfunction following his injury on February 22, 2012 and noted the lack of mention of any
findings on examination consistent with sacroiliac joint dysfunction until her examination on
November 1, 2012. Dr. Leland opined that there was no objective data to indicate that
appellant’s current diagnosis of sacroiliac joint dysfunction was linked to his February 22, 2012
injury. She concluded that his right sacroiliac dysfunction was the result of repetitive lifting,
bending, squatting, and twisting required as part of his job. On January 9, 2013 Dr. Leland
increased appellant’s stretch breaks from 5 minutes an hour to 10 minutes an hour. On
January 16, 2013 she requested an ergonomic chair. In a February 16, 2013, return to work slip,
Dr. Leland returned appellant to light-duty work with restrictions on February 6, 2013. A
January 23, 2013 excuse slip from Dr. Hoyt noted that appellant was disabled on January 22 and
23, 2013, and could return to work on January 24, 2013.
In a February 8, 2013 decision, OWCP denied the claim on the grounds that the medical
evidence did not demonstrate that the claimed medical condition was related to work events.
On March 5, 2013 appellant requested reconsideration. He submitted a November 1,
2012 prescription for physical therapy. A February 6, 2013 report from Dr. Leland noted that
appellant had severe deep pain in the right side of his low back with radiation to the hip.
Dr. Leland diagnosed lumbago and lumbosacral spondylosis without myelopathy. She
recommended lumbar injections. On February 6, 2013 Dr. Leland released appellant to work
with restrictions. Appellant submitted a February 15, 2013 report from Dr. Hoyt, who opined
that appellant’s lumbar disc injury with recurring low back pain and sciatica of the legs was due
to a work injury. Dr. Hoyt reported that on February 22, 2012 appellant was injured while lifting
a 380-pound patient. He noted that within a reasonable degree of certainty “such an axial
overload could have and did injure appellant’s lumbar spine, and specifically his discs. Dr. Hoyt
advised that the October 11, 2012 MRI scan showed bulging discs contacting three nerve roots.
He noted appellant’s walking was impaired due to sciatica and he had sacroilitis joint
dysfunction “likely” related to the original lifting injury. Dr. Hoyt noted that appellant could
return to work with restrictions. In a medical examination report for commercial driver fitness,
he noted that appellant was qualified.
In a decision dated May 23, 2014, OWCP denied modification of the decision dated
February 8, 2013.

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On May 14, 2014 appellant requested reconsideration and submitted evidence from
Dr. Hoyt. On June 12, 2013 Dr. Hoyt indicated that appellant could work with restrictions. In a
February 7, 2014 report, he noted appellant’s complaints of low back and leg pain since
February 22, 2012. Dr. Hoyt noted first treating appellant on April 2, 2012 and appellant
reported that he felt a pull and pain in his back upon lifting a 380-pound patient in a wheelchair.
An MRI scan revealed a central disc protrusion that was consistent with the injury described.
Dr. Hoyt indicated that the overly heavy axial spinal loading would have injured appellant’s
lumbar discs. He asserted that appellant had an injury, his symptoms and MRI scan were
consistent with this, and it had an ongoing impact on his ability to work. Dr. Hoyt did not
suspect malingering. He opined with a reasonable degree of medical certainty that appellant was
injured on the job and continued to have residuals of this injury. Appellant also submitted
physical therapy reports.
In a decision dated May 29, 2014, OWCP denied modification of the decision dated
May 23, 2014.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.3
Rationalized medical opinion evidence is generally required to establish causal
relationship. 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
specific employment factors identified by the claimant.4

2

Gary J. Watling, 52 ECAB 357 (2001).

3

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

4

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

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ANALYSIS
It is not disputed that, on February 22, 2012, appellant was lifting a wheelchair bound
patient up steps. However, he has not submitted sufficient medical evidence to establish that his
diagnosed conditions were caused or aggravated by this incident.
Appellant submitted reports from Dr. Hoyt dated February 15, 2013 and February 7, 2014
who opined appellant’s lumbar disc injury with recurring low back pain and sciatica of the legs
was work related. Dr. Hoyt reported appellant being injured on February 22, 2012 while lifting a
380-pound patient. He opined that, within a reasonable degree of certainty, such an axial
overload could have and did injure appellant’s lumbar spine and discs as seen on the October 11,
2012 MRI scan. Dr. Hoyt asserted that appellant was injured on the job and continued to have
residuals of this injury. He noted appellant’s walking and his ability to work were impaired due
to sciatica and he had sacroilitis joint dysfunction “likely” related to the original lifting injury.
Although he supported causal relationship, Dr. Hoyt did not provide sufficient medical rationale
explaining the basis of his conclusion opinion regarding the causal relationship between
appellant’s diagnosed conditions and workplace lifting incident. He did not explain how lifting a
wheelchair bound patient up steps would cause or aggravate the diagnosed conditions and why
the lumbar condition was not caused by nonwork-related factors such as degenerative changes.
Additionally, Dr. Hoyt noted the sacroilitis joint dysfunction was “likely” related to the original
lifting injury. While this report provides some speculative support for causal relationship,5 it is
insufficient to establish that the diagnosed sacroilitis joint dysfunction was causally related to
appellant’s employment duties. Dr. Hoyt provided no medical reasoning to support his opinion
on causal relationship. Therefore, this evidence is insufficient to meet appellant’s burden of
proof. On October 5, 2012 Dr. Hoyt noted that appellant reported his low back pain began after
lifting a 380-pound patient and he felt a pull in his back and has had recurring back pain.
However, he appears merely to be repeating the history of injury as reported by appellant without
providing his own opinion regarding whether appellant’s condition was work related. To the
extent that Dr. Hoyt is providing his own opinion, he failed to provide a rationalized opinion
explaining the causal relationship between appellant’s low back pain and the factors of
employment.6 Therefore, this report is insufficient to meet appellant’s burden of proof. Other
reports from Dr. Hoyt are of limited probative value as they too did not specifically support that
the work incident caused or contributed to a diagnosed medical condition.7
On January 2, 2013 Dr. Leland noted appellant’s treatment for right S1 joint dysfunction
beginning on November 1, 2012 which appellant attributed to his injury on February 22, 2012
and an exacerbation of his symptoms from straining his back on October 4, 2012. She diagnosed
sacroiliac joint dysfunction, lumbago, lumbosacral spondylosis, and low back pain. Dr. Leland
5

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006).
6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
7

A.D., 58 ECAB 149 Docket No. 06-1183 (issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).

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indicated that appellant was not diagnosed with right sacroiliac joint dysfunction following his
injury on February 22, 2012 and there were no findings consistent with sacroiliac joint
dysfunction until her examination on November 1, 2012, and therefore she could not conclude
that his current diagnoses were linked to his February 22, 2012 injury. Consequently, this report
is of diminished probative value. In a November 2, 2012 attending physician’s report,
Dr. Leland checked a box “yes” that appellant’s condition was caused or aggravated by work
activity. However, the Board has held that an opinion on causal relationship which consists only
of a physician checking a box “yes” regarding causal relationship is of little probative value.
Without any explanation or rationale for the conclusion reached, such report is insufficient to
establish causal relationship.8 Other reports from Dr. Leland are of limited probative value as
they did not specifically support that the work incident caused or contributed to a diagnosed
medical condition.
Appellant submitted treatment notes from Dr. Idahosa dated February 22, 23, and
October 4, 2012 where appellant reported assisting with a wheelchair patient up steps and he felt
a pull in his low back. Dr. Idahosa diagnosed low back pain and old fracture of the coccyx.
However, he appears merely to be repeating the history of injury as reported by appellant without
providing his own opinion regarding whether appellant’s condition was work related. In any
event, Dr. Idahosa did not provide a rationalized opinion explaining the causal relationship
between appellant’s lumbar condition and the factors of employment. Therefore, this report is
insufficient to meet appellant’s burden of proof.
The remainder of the medical evidence, including diagnostic test reports, fails to provide
an opinion on the causal relationship between appellant’s job and his diagnosed shoulder and
back injury. For this reason, this evidence is not sufficient to meet his burden of proof.
Appellant also submitted reports from a nurse and physical therapist. However, the Board has
held that documents from a nurse or physical therapist are not considered medical evidence as a
nurse and physical therapist are not physicians under FECA.9 Thus, the treatment records from a
nurse and physical therapist are of no probative medical value in establishing appellant’s claim.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated, or aggravated by his employment is
sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.10 Appellant failed to submit such evidence, and OWCP
therefore properly denied appellant’s claim for compensation.

8

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

9

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).
10

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

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that his claimed conditions are causally
related to his employment.
ORDER
IT IS HEREBY ORDERED THAT the May 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 7, 2015
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

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

Docket No. 21-1194
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On August 2, 2021 appellant filed a timely appeal from a March 17, 2021 merit decision
and a July 7, 2021 nonmerit of the Office of Workers’ Compensation Programs (OWCP). Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 17, 2021 merit decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish disability
from work for the period December 27, 2020 3 through January 29, 2021 causally related to the
accepted November 10, 2020 employment injury; and (2) whether OWCP properly determined
that appellant abandoned her request for an oral hearing.
FACTUAL HISTORY
On November 18, 2020 appellant, then a 29-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 10, 2020 she sustained an injury when she
accidently closed her right hand in the door jam of the driver door while in the performance of
duty. She stopped work on November 11, 2020. By decision dated December 14, 2020, OWCP
accepted appellant’s claim for crushing injury of the right hand.
OWCP received a December 9, 2020 report by Dr. George S.M. Dyer, a Board-certified
orthopedic hand surgeon, who opined that appellant should be off due to a work-related injury.
Dr. Dyer described that on November 10, 2020 she closed her right hand in a mail truck and she
experienced pain and swelling. He recounted that appellant tried to return to work on
November 28, 2020, but she experienced significant pain. On physical examination of her right
upper extremity, Dr. Dyer observed some tenderness to palpation along the long finger and ring
finger dorsal metacarpals, thumb base and radial wrist and some pain with Tinel’s and Durkin’s
tests. Dr. Dyer diagnosed right hand arthralgia and right-hand crush injury.
On January 1, 2021 appellant filed a claim for compensation (Form CA-7) for disability
from work for the period December 26, 2020 through January 1, 2021. On the reverse side of the
claim form the employing establishment indicated that she received continuation of pay (COP)
from November 11 through December 26, 2020 and noted that her disability should begin on
December 27, 2020. Appellant thereafter filed additional CA-7 forms requesting wage-loss
compensation for continued disability through January 29, 2021.
In an attending physician’s report (Form CA-20) and a letter, both dated January 6, 2021,
Dr. Dyer noted that on November 10, 2020 appellant crushed her hand in a mail truck door at
work. He reported that she was totally disabled from work from November 10, 2020 through
January 10, 2021. Dr. Dyer indicated that appellant could return to part-time, modified-duty work.
On January 19, 2021 appellant accepted a part-time, limited-duty position as a modified
city carrier.
In a January 25, 2021 letter, Dr. Dyer recommended that appellant remain off work until
February 3, 2021. He explained that she attempted to return to work on January 21, 2021, but had
a severe exacerbation of pain.

3

The Board notes that the March 17, 2021 OWCP decision notes the beginning date of the claimed period as
December 27, 2021. However, this appears to be a typographical error as appellant’s claim form notes the beginning
date as December 27, 2020.

2

In a February 4, 2021 letter by Mallory K. Pingeton, a physician assistant, who explained
that appellant was seen by Dr. Dyer on February 3, 2021 and was found to have right intersection
syndrome. She opined that this was likely a complication from appellant’s November 2020 hand
crush injury. Ms. Pingeton recommended that appellant remain off work until March 17, 2021.
In a February 11, 2021 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of additional evidence required and afforded her 30 days
to submit the requested evidence.
Appellant subsequently resubmitted the February 4, 2021 letter by Ms. Pingeton.
By decision dated March 17, 2021, OWCP denied appellant’s wage-loss compensation
claims, finding that she had not established disability from work causally related to the accepted
November 10, 2020 employment injury.
On April 6, 2021 appellant timely requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review and submitted additional medical evidence.
In a letter dated May 21, 2021, OWCP’s hearing representative advised appellant that a
telephonic hearing would be held on June 24, 2021 at 2:30 p.m. Eastern Standard Time (EST). 4
The hearing representative also provided appellant with the toll-free telephone number and
passcode to access the hearing. Appellant did not appear for the hearing by telephone at the
appointed time.
By decision dated July 7, 2021, OWCP found that appellant failed to appear at the oral
hearing and abandoned her request. It noted that an oral hearing was scheduled to be conducted
by telephone on June 24, 2021 and that appellant received written notification of the hearing 30
days in advance of the hearing. Next, OWCP indicated that appellant failed to appear for the
hearing and there was no indication in the file that she contacted it either prior to or subsequent to
the scheduled hearing to request a postponement or explain her failure to appear.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury. 6 The term disability is
defined as the incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of the injury. 7 For each period of disability claimed, the employee has the
4

The hearing notice was addressed to appellant at her last known address,

5

Supra note 1.

6

D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
7

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).

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burden of proof to establish that he or she was disabled from work as a result of the accepted
employment injury.8
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence. 9 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
claimed disability and the accepted employment injury.10
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self -certify his or her disability and
entitlement to compensation. 11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish disability for
the period December 27, 2020 through January 29, 2021 causally related to the accepted
November 10, 2020 employment injury.
In support of her claim for compensation, appellant submitted medical reports from
Dr. Dyer. In a December 9, 2020 report, Dr. Dyer described the November 10, 2020 employment
injury and conducted an examination. He noted that appellant tried to return to work on
November 28, 2020, but experienced significant pain. Dr. Dyer opined that she should remain off
work. In a January 6, 2021 CA-20 form, he further indicated that appellant was totally disabled
from work from November 10, 2020 through January 10, 2021. Furthermore, in a January 25,
2021 letter, Dr. Dyer recommended that she remain off work until February 3, 2021. He explained
that appellant attempted to return to work on January 21, 2021, but had a severe exacerbation of
pain. Although he opined that she was unable to work during the claimed period of disability, Dr.
Dyer did not provide any medical reasoning to support his opinion on disability. 12 He merely
referenced that appellant experienced a severe exacerbation of pain when she attempted to return
to work. The Board has found that, when a physician’s statements regarding an employee’s ability
to work consist only of repetition of the employee’s complaints that he or she hurt too much to
work, without objective findings of disability being shown, the physician has not provided a

8

B.O., Docket No. 19-0392 (issued July 12, 2019); D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S.
Jefferson, 57 ECAB 183 (2005).
9

L.O., Docket No. 20-0170 (issued August 13, 2021); S.J., Docket No. 17-0828 (issued December 20, 2017);
Kathryn E. DeMarsh, 56 ECAB 677 (2005).
10

V.A., Docket No. 19-1123 (issued October 29, 2019); C.B., Docket No. 18-0633 (issued November 16, 2018).

11

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, 52 ECAB 291 (2001).
12

R.C., Docket No. 17-0748 (issued July 10, 2018); Dean E. Pierce, 40 ECAB 1249 (1989).

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rationalized medical opinion on the issue of disability. 13 For these reasons, the Board finds that
Dr. Dyer’s reports lack sufficient medical reasoning to establish that appellant was unable to work
during the claimed period.
The report from the physician assistant is also of no probative value to establish appellant’s
wage-loss compensation claim because physician assistants are not considered physicians as
defined under FECA. 14
As the medical evidence of record lacks rationalized medical evidence establishing that
appellant was disabled from work for the period December 27, 2020 through January 29, 2021 due
to the accepted November 10, 2020 employment injury, the Board finds that she has not met her
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Under FECA and its implementing regulations, a claimant who has received a final adverse
decision by OWCP is entitled to receive a hearing by writing to the address specified in the
decision within 30 days of the date of the decision for which a hearing is sought. 15 Unless
otherwise directed in writing by the claimant, OWCP’s hearing representative will mail a notice
of the time and place of the hearing to the claimant and any representative at least 30 days before
the scheduled date.16 OWCP has the burden of proving that it properly mailed to a claimant and
any representative of record. 17
A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference. 18
13

B.F., Docket No. 19-0123 (issued May 13, 2019); P.D., Docket No. 14-744 (issued August 6, 2014); G.T., 59
ECAB 447 (2008).
14

Section 8102(2) of FECA provides as follows: (2) 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); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical o pinion
under FECA). See also S.A., Docket No. 21-0813 (issued December 27, 2021); George H. Clark, 56 ECAB 162
(2004) (physician assistants are not considered physicians under FECA).
15

20 C.F.R. § 10.616(a).

16

Id. at § 10.617(b).

17

V.C., Docket No. 20-0798 (issued November 16, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019); T.P.,
Docket No. 15-0806 (issued September 11, 2015); Michelle R. Littlejohn, 42 ECAB 463 (1991).
18

20 C.F.R. § 10.622(f).

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The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant abandoned her request for
an oral hearing.
Following OWCP’s March 17, 2021 decision denying appellant’s wage-loss compensation
claim, she filed a timely request for an oral hearing before a representative of OWCP’s Branch of
Hearings and Review. In a May 21, 2021 letter, OWCP’s Branch of Hearings and Review notified
her that it had scheduled a telephonic hearing for June 24, 2021 at 2:30 p.m. EST. OWCP mailed
the notice to appellant’s last known address of record. The Board has held that absent evidence to
the contrary, a letter properly addressed and mailed in the ordinary course of business is presumed
to have been received. This is called the mailbox rule. 20 Appellant failed to call in for the
scheduled hearing using the provided telephone number. She did not request a postponement or
provide an explanation to OWCP for failure to appear for the hearing within 10 days of the
scheduled hearing. As appellant failed to call in to the scheduled hearing or provide notification
to OWCP’s Branch of Hearings and Review within 10 days of the scheduled hearing explaining
failure to appear, the Board finds that OWCP properly determined that she abandoned her request
for an oral hearing. 21
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period December 27, 2020 through January 29, 2021 causally related to the accepted
November 10, 2020 employment injury. The Board further finds that OWCP properly determined
that appellant abandoned her request for an oral hearing.

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (September 2020); see also K.H., Docket No. 20-1198 (issued February 8, 2021); A.J., Docket No. 180830 (issued January 10, 2019).
20

See V.C., supra note 17; C.Y., Docket No. 18-0263 (issued September 14, 2018).

21

See L.T., Docket No. 20-1539 (issued August 2, 2021).

6

ORDER
IT IS HEREBY ORDERED THAT the March 17 and July 7, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 18, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL INSTITUTES OF
HEALTH, Bethesda, MD, Employer
__________________________________________

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

Docket No. 10-502
Issued: February 11, 2011

Oral Argument December 2, 2010

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

JURISDICTION
On December 16, 2009 appellant filed a timely appeal from the June 30, 2009 merit
decision of the Office of Workers’ Compensation Programs denying compensation after
June 16, 1978. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.1
ISSUE
The issue is whether appellant met his burden of proof to establish that he had disability
after June 16, 1978 due to his accepted work injury, temporary aggravation of preexisting
Crohn’s disease.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20 C.F.R.
§§ 501.2(c) and 501.3.

FACTUAL HISTORY
This case has previously been before the Board. In a November 20, 2001 decision,2 the
Board affirmed the Office’s termination of appellant’s compensation June 16, 1978 based on the
well rationalized February 20, 1991 opinion of Dr. Bernard Aserkoff, a Board-certified internist
specializing in gastroenterology who served as an Office referral physician.3 The Board
determined that because the Office properly relied on the opinion of Dr. Aserkoff to terminate
appellant’s compensation effective June 16, 1978, the burden shifted to appellant to establish that
he was entitled to compensation after that date. The Board found that appellant submitted
additional medical evidence from attending physicians which created a new conflict in the medical
opinion evidence regarding whether he had work-related disability after June 16, 1978.4 The
Board directed the Office to refer appellant to an impartial medical specialist for an examination
and opinion regarding whether he sustained work-related disability after June 16, 1978.
On remand, the Office referred appellant to Dr. Joseph J. Genovese, Jr., a Board-certified
internist specializing in gastroenterology, for an impartial medical examination and an opinion
regarding whether he had employment-related disability after June 16, 1978. In a May 2, 2002
report, Dr. Genovese determined that appellant had no work-related disability after he left
employment on June 16, 1978. In a June 12, 2002 decision, the Office denied appellant’s claim
that he sustained work-related disability after June 16, 1978. It determined that the weight of the
medical evidence rested with the opinion of Dr. Genovese.
In a November 12, 2002 decision,5 the Board set aside the Office’s determination that the
weight of the medical evidence regarding appellant’s claim for continuing disability rested with
Dr. Genovese. The Board found that the opinion of Dr. Genovese was in need of clarification and
elaboration. On remand, the Office obtained a supplemental report, dated October 23, 2003, from
Dr. Genovese. In November 14, 2003 decision, it denied appellant’s claim that he sustained work2

Docket No. 98-2175 (issued November 20, 2001).

3

The Office accepted that appellant sustained a temporary aggravation of preexisting Crohn’s disease due to the
stress of his work duties, which included managing the collection of data relating to drug usage and treatment,
extensive travel and having discrimination suits filed against him and his employing establishment . Appellant
stopped working for the employing establishment on June 16, 1978. He underwent a resection of his right colon and
small bowel in August 1981. In a January 17, 1983 report, Dr. Raymond Cohen, an attending Board-certified
internist specializing in gastroenterology, stated that when he examined appellant on August 25, September 6 and
18, 1978, March 15 and 30, 1979 and May 27, 1980, a large mass of matted loops of small intestine were palpable
and occupied the entire right lower quadrant.
4

Appellant submitted several reports, including those dated January 10 and February 9, 1993, in which Dr. Peter
Schlesinger, an attending Board-certified internist, determined that he continued to have residuals of his
employment injury. He also submitted several reports, including a report dated November 4, 1993, in which
Dr. Robert Lerman, an attending Board-certified internist specializing in nutrition, determined that he continued to
have disability after June 16, 1978 due to his accepted work injury. These physicians posited that appellant suffered
a permanent work-related aggravation of his Crohn’s disease. In contrast to the opinion of his attending physicians,
Dr. Aserkoff determined that appellant ceased to have disability due to his accepted work injury after June 16, 1978.
Dr. Lerman continued to produce reports, including reports dated April 14, 1994 and January 8, 1998, in which he
maintained that appellant had employment-related disability after June 16, 1978.
5

Docket No.02-1905 (issued November 12, 2002).

2

related disability after June 16, 1978 finding that the opinion of Dr. Genovese constituted the
weight of the medical evidence regarding this matter.
In an April 5, 2007 decision,6 the Board found that the reports of Dr. Genovese were not
sufficiently well rationalized to constitute the weight of the medical opinion regarding whether
appellant had disability after June 16, 1978 due to his accepted work injury, temporary
aggravation of preexisting Crohn’s disease. The Board noted that due to the proper termination
of appellant’s compensation based on the opinion of Dr. Aserkoff, the burden continued to rest
with appellant to establish that he was entitled to compensation after June 16, 1978. It found that
there was a continuing conflict in the medical opinion regarding whether appellant had disability
after June 16, 1978 due to his accepted work injury. The Board directed the Office to refer him
to a new impartial medical specialist for an examination and opinion on this matter.
On remand, the Office referred appellant to Dr. Richard A. Baum, a Board-certified
internist specializing in gastroenterology. In a July 23, 2007 report, Dr. Baum provided a brief
description of appellant’s history of treatment for Crohn’s disease and detailed his current
gastrointestinal complaints and medical treatment. He indicated that his finding on physical
examination of appellant was essentially normal. There was a Grade 1/6 systolic ejection
murmur which did not seem to be significant and appellant’s abdomen was normal except for
surgical scars. Dr. Baum indicated that he believed that the exacerbation of appellant’s Crohn’s
disease was temporary. He posited that the symptoms of Crohn’s disease can be clearly
aggravated by stress factors, but asserted that there was no real evidence to suggest that
psychological factors produce pathological advancement of Crohn’s disease. Therefore,
appellant’s “subsequent problems” were not related to the initial stress and he did not have workrelated disability after June 16, 1978.
Dr. Baum further stated that appellant’s work-related stress might have continued for a
brief period of time after June 16, 1978, which would be measured in days or weeks, but there
was no reason to feel that appellant’s disability after June 16, 1978 was related to his
“government employment and stress.” He stated that appellant’s work-related disability “had
been primarily symptomatic.” Dr. Baum indicated that this disability should have resolved fairly
quickly after cessation of employment on June 16, 1978. The long-term problems that appellant
experienced were related to his underlying Crohn’s disease, the course of which is unpredictable
and characterized by exacerbations and remissions.
In an August 22, 2007 decision, the Office determined that appellant had not established
entitlement to compensation after June 16, 1978. It found that the weight of the medical
evidence regarding this matter rested with the July 23, 2007 report of Dr. Baum.
Appellant submitted a March 24, 2006 report in which Dr. Lerman asserted that he
sustained a permanent work-related aggravation of his Crohn’s disease. Dr. Lerman discussed
the medical reports of record, including those of Dr. Genovese and Dr. Cohen, and noted that
these reports showed that appellant continued objective evidence of Crohn’s disease (including
an intestinal mass) after June 16, 1978.
6

Docket No.06-1756 (issued April 5, 2007).

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In an August 19, 2008 decision, an Office hearing representative determined that the
July 23, 2007 report of Dr. Baum was not sufficiently well rationalized to constitute the weight
of the medical opinion regarding appellant’s entitlement to compensation after June 16, 1978.
She remanded the case to the Office in order to obtain a supplemental report from Dr. Baum
regarding this matter. The referral was to include a request that Dr. Baum comment on the
March 24, 2006 report of Dr. Lerman.
The Office provided Dr. Baum with a copy of the March 24, 2006 report of Dr. Lerman
and asked him to produce a supplemental report regarding the question of whether appellant
continued to have work-related disability after June 16, 1978. In a September 11, 2008 report,
Dr. Baum stated that he had reviewed the March 24, 2006 report of Dr. Lerman and noted:
“I do not see any new facts in the additional information sent to me that would
cause me to change or modify my assessment of the patient on July 23, 2007.
Dr. Lerman’s letter reviews Dr. Genovese’s and Dr. Cohen’s reports. These
reports were available to me when I met with [appellant] in July 2007.”
In an October 23, 2008 decision, the Office determined that appellant had not established
entitlement to compensation after June 16, 1978. It found that the weight of the medical
evidence regarding this matter rested with the July 23, 2007 and September 11, 2008 reports of
Dr. Baum. In a June 30, 2009 decision, an Office hearing representative affirmed the Office’s
October 23, 2008 decision.
LEGAL PRECEDENT
Once the Office of Workers’ Compensation Programs has accepted a claim, it has the
burden of justifying termination or modification of compensation benefits.7 The Office may not
terminate compensation without establishing that the disability ceased or that it was no longer
related to the employment.8 After termination or modification of compensation benefits, clearly
warranted on the basis of the evidence, the burden for reinstating compensation benefits shifts to
appellant. In order to prevail, appellant must establish by the weight of the reliable, probative
and substantial evidence that he or she had an employment-related disability which continued
after termination of compensation benefits.9
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
“If there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination.”10 In situations where there exist opposing medical reports of virtually equal
weight and rationale and the case is referred to an impartial medical specialist for the purpose of

7

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

8

Id.

9

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

10

5 U.S.C. § 8123(a).

4

resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.11
ANALYSIS
The Office accepted that appellant sustained a temporary aggravation of preexisting
Crohn’s disease due to the stress of his work duties. The Board has previously determined that
the Office properly terminated his compensation effective June 16, 1978 based on the
February 20, 1991 opinion of Dr. Bernard Aserkoff, a Board-certified internist specializing in
gastroenterology, who served as an Office referral physician.12 Therefore, the burden rests with
appellant to show entitlement to compensation after June 16, 1978 due to his accepted work
injury.13
The Board had also previously found that there was a continuing conflict in the medical
opinion regarding appellant’s entitlement to compensation after June 16, 1978.14 In order to
resolve the conflict, the Office referred appellant to Dr. Baum, a Board-certified internist
specializing in gastroenterology, for an impartial medical examination and opinion on this
matter.15
At the oral hearing before the Board and in documents submitted on appeal, appellant
argued that the Office failed to support its determination that he had not established disability on
or after June 16, 1978 due to his work-related Crohn’s disease. He asserted that the opinion of
Dr. Baum was not sufficiently well rationalized to represent the weight of the medical opinion
concerning his work-related disability after June 16, 1978.16
The Board finds that the July 23, 2007 and September 11, 2008 reports of Dr. Baum are
not sufficiently well rationalized to represent the weight of the medical opinion concerning
appellant’s work-related disability after June 16, 1998. Therefore, there is a continuing conflict
11

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

12

Appellant last worked for the employing establishment on June 16, 1978.

13

See supra note 9.

14

In several reports, Dr. Schlesinger, an attending Board-certified internist and Dr. Lerman, an attending Boardcertified internist specializing in nutrition, determined that appellant continued to have disability after June 16, 1978
due to his accepted work injury. In contrast, Dr. Aserkoff determined that appellant ceased to have disability due to
his accepted work injury after June 16, 1978. At the oral hearing before the Board, appellant asserted that later
reports of Dr. Schlesinger and Dr. Lerner established his claim of disability after June 16, 1978 due to his accepted
work injury. However, as Dr. Schlesinger and Dr. Lerner were on one side of the conflict, their additional reports
were essentially duplicative of their previously stated opinions and were insufficient to establish appellant’s claim.
See Richard O’Brien, 53 ECAB 234 (2001).
15

See supra note 10.

16

Appellant felt that the Office improperly determined that the work-related aggravation of his Crohn’s disease
was temporary rather than permanent. He claimed that it was illogical for the Office to conclude that he had workrelated disability up through June 16, 1978, his last day of work, but that he did not have work-related disability
after that date.

5

in the medical opinion regarding whether appellant had disability after June 16, 1978 due to his
accepted work injury.
In his July 23, 2007 report, Dr. Baum provided an equivocal opinion regarding the
question of whether appellant had work-related disability for any period after June 16, 1978.
The Board has held that reports containing equivocal medical opinions are of limited probative
value regarding such matters.17 In parts of his July 23, 2007 report, Dr. Baum asserted that
appellant’s disability related to the accepted aggravation of his Crohn’s disease did not continue
after June 16, 1978. However, in other parts of his report he suggested that the work-related
disability continued for some period after June 16, 1978. For example, Dr. Baum also stated that
appellant’s work-related disability should have resolved “fairly quickly” after cessation of
employment on June 16, 1978.18 The Office asked him to provide clarification of his July 23,
2007 report. In a September 11, 2008 report, Dr. Baum indicated that he had not changed the
opinion contained in his July 23, 2007 report, but he did not provide any notable discussion of
why he was not changing his prior opinion or otherwise rectify the equivocal nature of that
opinion.19
Because there is a continuing conflict in the medical opinion regarding whether appellant
had disability after June 16, 1978 due to his accepted work injury, temporary aggravation of
preexisting Crohn’s disease, the case shall be remanded to the Office for referral of his new
impartial medical specialist for an examination and an opinion regarding whether he had workrelated disability after June 16, 1978. After such development it deems necessary, the Office
shall issue an appropriate decision on this matter.20
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
had disability after June 16, 1978 due to his accepted work injury, temporary aggravation of
preexisting Crohn’s disease. The case is remanded to the Office for further development of the
medical evidence.

17

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956)

18

Dr. Baum also seemed to question whether stress could cause long-term aggravation of Crohn’s disease, but he
provided a limited discussion of this matter. He posited that the symptoms of Crohn’s disease can be clearly
aggravated by stress factors, but asserted that there was no real evidence to suggest that psychological factors
produce pathological advancement of Crohn’s disease.
19

Dr. Baum indicated that the March 24, 2006 report of Dr. Lerner commented on medical reports of attending
physicians that he had already reviewed, but he did not provide any discussion of the medical opinions contained in
these reports.
20

On appeal, appellant asserted that repeated delays in his case and unnecessary referrals to second opinion and
impartial medical specialists violated his due process rights. However, he did not adequately explain the basis for
this argument.

6

ORDER
IT IS HEREBY ORDERED THAT the June 30, 2009 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: February 11, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Bayonne, NJ, Employer
__________________________________________

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

Docket No. 18-0322
Issued: July 17, 2018

Case Submitted on the Record

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

JURISDICTION
On December 4, 2017 appellant filed a timely appeal from an October 13, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s most recent merit decision dated December 1, 2016, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts of the case as presented in the
prior Board decisions are incorporated herein by reference. The relevant facts are as follows.
Appellant, then a 33-year-old ordinary seaman, filed a traumatic injury claim (Form CA1) on January 4, 1996, alleging that he was injured, while in the performance of duty, when a light
fixture struck him on the head on January 3, 1996. He stopped work that day and received
continuation of pay from January 4 to February 17, 1996. OWCP accepted the claim for
concussion and compression injury to the neck. Appellant received FECA wage-loss
compensation from February 18, 1996 to August 16, 1997.
By December 15, 1999 decision, the Board affirmed a November 2, 1998 OWCP decision,
which found that appellant had no disability after September 10, 1997 causally related to his
accepted January 3, 1996 employment injury.
By decision dated September 7, 2000, OWCP expanded acceptance of the claim to include
the additional conditions of chronic cervical strain, postconcussion syndrome, and left eye visual
loss. Appellant again received wage-loss compensation on the periodic rolls, retroactive to
September 10, 1997. By decision dated January 11, 2001, OWCP granted appellant a schedule
award for 34 percent loss of use of the left eye.3 Upon expiration of the schedule award, it returned
him to the periodic compensation rolls.
OWCP continued to develop the claim and, in October 2011, referred appellant to
Dr. Henry J. Comiter, a Board-certified neurologist, for a second opinion evaluation. Based on
Dr. Comiter’s November 10, 2011 and January 10, 2013 reports, by decision dated June 5, 2013,
OWCP terminated appellant’s wage-loss compensation and medical benefits. The termination was
affirmed by an OWCP hearing representative on February 10, 2014. In merit decisions dated
April 9, 2015 and February 1, 2016, OWCP denied modification of the prior decisions.
Appellant, through counsel, requested reconsideration on October 13, 2016. He submitted
a two-page letter/pleading and an additional medical report. In a merit decision dated December 1,
2016, OWCP denied modification of its prior decisions.4
On October 6, 2017 appellant requested reconsideration and submitted a statement that was
largely identical to his October 13, 2016 reconsideration request, but with references to his former
counsel removed.
2

Docket No. 99-0784 (issued December 15, 1999); Docket No. 05-0307 (issued June 9, 2005).

3

In an August 25, 2004 decision, OWCP found that appellant had received an overpayment of compensation in the
amount of $8,914.11 for the period July 25, 1999 to April 15, 2004 because he had received compensation at the
augmented compensation rate when he furnished no financial support for his minor child. Appellant was found at
fault in the creation of the overpayment and his compensation was reduced to the basic compensation rate. By decision
dated June 9, 2005, the Board affirmed the overpayment finding. Docket No. 05-0307 (issued June 9, 2005).
4
At that time appellant was represented by the Webster Law Group.
December 9, 2016.

2

It withdrew representation on

By nonmerit decision dated October 13, 2017, OWCP denied appellant’s October 6, 2017
request for reconsideration. It found that appellant’s statement submitted on reconsideration was
insufficient to warrant merit review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,5 OWCP has the discretion to reopen a case for review on
the merits. It must exercise this discretion in accordance with the guidelines set forth in section
10.606(b)(3) of the implementing federal regulations, which provides that a claimant may obtain
review of the merits of his or her written application for reconsideration, including all supporting
documents, sets forth arguments and contain evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”6
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 OWCP
without review of the merits of the claim.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for further reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
With his October 6, 2017 reconsideration request, appellant submitted a statement which
is a word-for-word copy of his October 13, 2016 request for reconsideration, but with all references
to his former counsel removed. The October 13, 2016 reconsideration request was previously
reviewed by OWCP in its December 1, 2016 merit decision.
Evidence or argument that repeats or duplicates evidence previously of record has no
evidentiary value and does not constitute a basis for reopening a case.8 As the document submitted
on reconsideration had previously been reviewed by OWCP, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a relevant legal argument not

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(b).

8

J.M., Docket No. 17-1950 (issued April 2, 2018); S.J., Docket No. 08-2048 (issued July 9, 2009).

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previously considered by OWCP. Consequently, he was not entitled to a review of the merits of
the claim based on the first and second above-noted requirements under section 10.606(b)(3).9
With respect to the third above-noted requirement under section 10.606(b)(3), appellant
submitted no additional medical evidence with his October 6, 2017 reconsideration request.
As appellant’s October 6, 2017 reconsideration request did not set forth argument or
contain evidence which shows that OWCP erred in applying a point of law, advances a relevant
legal argument not previously considered, or constitutes relevant and pertinent new evidence not
previously considered by OWCP, the Board finds that OWCP properly denied further merit
review.10
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 13, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2018
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
9

20 C.F.R. § 10.606(b)(3); see R.M., 59 ECAB 690 (2008).

10

M.A., Docket No. 16-1846 (issued October 20, 2017).

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