United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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

Docket No. 17-0013
Issued: June 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 5, 2016 appellant filed a timely appeal from a July 25, 2016 merit decision of
the Office of Workers’ Compensation Programs1 (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
July 6, 2015.

1

Appellant timely requested oral argument before the Board. By order dated March 3, 2017, the Board exercised
its discretion and denied the request, finding that the issue could be adequately adjudicated based on a review of the
case record. Order Denying Oral Argument, Docket No. 17-0013 (issued March 3, 2017).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 9, 2015 appellant, then a 52-year-old retail window clerk, filed a traumatic injury
claim (Form CA-1) alleging that at 7:15 p.m. on July 6, 2015 in the performance of duty she fell
backwards and fractured her left wrist. She stopped work on July 6, 2015. The employing
establishment indicated that appellant’s duty shift was from 10:30 a.m. until 7:15 p.m.
In a July 6, 2015 statement, a supervisor, G.B., related that appellant informed her that
she had “clocked off and walked out to the customer parking lot where she had moved her car
from the employee parking garage during her break.” She put her bags in the car and got out her
shoes to change and fell backward on the pavement, fracturing her wrist. The supervisor
questioned how appellant fell backwards without hitting the car. G.B. advised that appellant had
clocked out, changed out of her work clothes, and walked into the customer parking area.
Appellant, in a July 8, 2015 statement, related that on July 6, 2015 she took out her shoes
from the car, but lost her balance and fell. Two men helped her up and she called her cousin to
take her to the emergency room.
In a July 9, 2015 e-mail, L.M., a physical security specialist with the employing
establishment, related that video footage revealed that at 6:03 p.m. appellant moved her vehicle
to the customer lot in front of the employing establishment and then returned to work. At
7:13 p.m. she walked out through the lobby in street clothes and put items in her vehicle. The
remainder of the incident occurred outside the range of the camera.
The employing establishment controverted the claim. In a July 15, 2015 statement, it
advised that appellant’s work schedule was 10:50 a.m. to 7:15 p.m. The employing
establishment indicated that she moved her vehicle to the customer parking lot at 6:02 p.m. from
the employee parking lot without authorization. It asserted that appellant was not in the
performance of duty at the time of her fall as her duty tour had ended for the day and her
presence in the customer parking lot, while on the premises of the employing establishment, was
not authorized or incidental to her work.
By letter dated July 20, 2015, OWCP requested additional factual and medical
information from appellant, including a statement addressing the employing establishment’s
contention that her presence in the parking lot was not authorized.
In an August 10, 2015 response, appellant advised that on her last break of the day she
usually got her bag from her vehicle so she could change her clothes prior to leaving work. She
took a late break on July 6, 2015 because she was helping a new employee. Appellant related:
“I took my break close to 6 p.m., so instead of carrying my bag back I drove my
car to park it on the street so I could get some cool air because I had a bad
headache all afternoon and didn’t want to walk back to the garage. When I got
around to the street I noticed the customer parking lot was empty so I parked there
since it was so close to closing. We do not have a supervisor in the afternoon and
did not know I needed authorization. I know I cannot park there all day and did
not think it was a problem for that short amount of time.”

2

Appellant indicated that she got her shoes from the car, dropped them onto the ground,
and began to pick them up to put on. The next thing she remembered was that she was on the
ground and her elbow hurt.
The employing establishment, on August 19, 2015, submitted a copy of an April 2, 2015
parking safety talk. It provided that an employee could not park without authorization, in
reserved or unauthorized locations, or continually “in excess of 18 hours without permission or
contrary to the direction of posted signs….” The employing establishment included a
photograph of a sign in front of the customer lot indicating that it was “customer parking only”
and that unauthorized vehicles would be impounded.
In an August 19, 2015 e-mail, C.G., with the employing establishment, related that the
customer parking lot was an unauthorized location for employees to park and “completely
separate from the employee lot which is specifically for employee use and requires an employee
badge to enter into.”
By decision dated August 21, 2015, OWCP denied appellant’s traumatic injury claim. It
found that she had not established that she was in the performance of duty at the time of the
incident as she was in an unauthorized location and not performing duties incidental to her
employment or from which her employing establishment derived a substantial benefit. OWCP
further advised that the medical evidence was insufficient to show that appellant sustained a
diagnosed condition as a result of the identified incident.
Appellant, on September 3, 2015, requested an oral hearing before an OWCP hearing
representative. At the telephone hearing, held on May 12, 2016, she related that she moved her
car on her last break, but got lightheaded due to the heat and lack of water so she drove around to
the front of the building. When appellant left work after her tour ended she remembered hitting
the ground after taking her shoes out of the car. She related that after the building closed at
6:00 p.m. numerous employees parked in the customer parking lot. Appellant further advised
that even if she had left her car in the employee parking lot she would have walked past the place
where she fell or fainted on her way to the employee parking lot. She noted that she was on the
employing establishment’s premises at the time of her injury.
In a decision dated July 25, 2016, OWCP’s hearing representative affirmed the
August 21, 2015 decision. He found that appellant had taken herself out of the performance of
duty by moving her vehicle to an unauthorized parking location.
On appeal appellant questions why she was not covered when other employees parked in
the customer parking lot. She notes that the area was under the control of the employing
establishment and asserts that she was performing her work duties by going to her vehicle at the
time of her injury. Appellant questions the accuracy of some statements submitted. She relates
that she drove to the customer parking lot because she was dizzy due to the hot weather and lack
of water at her workstation.

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LEGAL PRECEDENT
FECA provides for the payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.3 The phrase sustained
while in the performance of duty is regarded as the equivalent of the coverage formula
commonly found in workers’ compensation laws, namely, arising out of and in the course of
employment.4 In the course of employment relates to the elements of time, place, and work
activity.5 To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be said to be engaged in his or her master’s business, at a place when
she may reasonably be expected to be in connection with his or her employment and while she
was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.
As to the phrase in the course of employment, the Board has accepted the general rule of
workers’ compensation law that, as to employees having fixed hours and places of work, injuries
occurring on the premises of the employing establishment, while the employees are going to and
from work, before or after work hours or at lunch time, are compensable.6
OWCP procedures provide, regarding prohibited activities:
“There may be no right to compensation where the injury occurs while the
employee is knowingly engaged in an act which has been prohibited by the
[employing establishment]. The test in such a case is whether the injury was
caused by the willful misconduct of the employee…. In these cases it is essential
to determine whether the employee was fully aware of the prohibition, whether
the prohibition was enforced, the extent to which the employee had diverted from
assigned duties, and whether the particular act was within the general scope of
assigned duties.”7
OWCP procedures further provide that OWCP should obtain a statement from a
supervisor that provides when the employees were informed of the prohibition and the manner of
enforcement and a statement from coworkers or witnesses indicating whether they were aware of
the prohibition and the manner in which they were informed.8

3

Id. at § 8102(a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
5

D.L., 58 ECAB 667 (2007).

6

See Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004).

7

Federal (FECA) Procedure Manual -- Part 2, Claims, Performance of Duty, Chapter 2.804.13 (March 1994).

8

Id.

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ANALYSIS
Appellant alleged that she fractured her left wrist when she fell in the parking lot of the
employing establishment after she left work around 7:15 p.m. at the conclusion of her work shift.
The parking lot was on the premises of the employing establishment and the incident occurred
within a reasonable interval after official working hours while she was engaged in preparatory or
incidental acts associated with leaving work.9 The issue, consequently, is whether appellant
removed herself from employment by engaging in a prohibited act.10
In a July 15, 2015 e-mail, the employing establishment contended that appellant was not
in the performance of duty at the time of the July 6, 2015 incident as she had moved her vehicle
to the customer parking lot at 6:02 p.m. without authorization. It provided a copy of an April 2,
2015 parking safety talk which indicated that employees could not park without authorization or
contrary to the instructions on posted signs. The employing establishment further submitted a
photograph of a sign designating customer parking and indicating that unauthorized vehicles
would be impounded. In an August 19, 2015 e-mail, C.G. related that it was not authorized for
employees to park in the customer parking lot.
Appellant, in a statement dated August 10, 2015, related that she was not aware that she
needed authorization to move her car, noting that her location did not have an afternoon
supervisor. She advised that she knew that she could not park in the lot all day, but thought that
it was appropriate for a short time. Appellant moved her car to the customer parking lot around
6:00 p.m. She asserted that the building closed at 6:00 p.m. at which time other employees
parked in the customer parking lot. Appellant also noted that she would have passed the location
where she fell had she left her car in the employee parking lot.
The Board finds that the case is not in posture for decision. OWCP procedures provide
that if the employee knowingly engages in an act prohibited by her employing establishment,
there may be no right to compensation if the injury is the result of willful misconduct.11 The
procedures further provide that OWCP should ascertain whether the employee was aware of the
prohibition and whether and how the prohibition was enforced. It should also obtain statements
from coworkers or witnesses advising whether they were aware of the prohibition and how the
prohibition was communicated.12
The record does not contain evidence addressing whether all employees, including
appellant, were present at the parking safety talk, whether employees were informed of the
prohibition other than through the safety talk, and whether the prohibition was enforced for other
employees, especially after the building closed to the public at 6:00 p.m. On remand, OWCP
9

See A.B., Docket No. 15-0288 (issued May 21, 2015) (finding that a claimant had established that the incident
occurred a reasonable interval after clocking out of work when he was assaulted a few minutes after clocking out at
4:50 p.m.).
10

See generally Karen Cepec, 52 ECAB 156 (2000).

11

See supra note 7.

12

Id.

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should, in keeping with its established procedures, obtain supplemental statements from the
employing establishment advising how the prohibition was communicated and whether and how
it was enforced, and statements from coworkers indicating whether they were aware of the
prohibition and the manner of enforcement in accordance with its procedures. After such further
development as deemed necessary, OWCP will issue an appropriate de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 25, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: June 6, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Salt Lake City, UT, Employer
__________________________________________

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

Docket No. 16-0184
Issued: March 2, 2016

Case Submitted on the Record

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

JURISDICTION
On November 10, 2015 appellant filed a timely appeal from a September 23, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish right hand conditions
causally related to a July 27, 2015 employment incident.
FACTUAL HISTORY
On July 29, 2015 appellant, a 55-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that he sustained an injury to his right little finger on July 27, 2015 as a result of
transferring trays of mail from one cage to another in the performance of duty. In a July 29,
1

5 U.S.C. § 8101 et seq.

2015 narrative statement, he explained that, while lifting letter trays from one cage to another, he
took off his right glove to wipe his brow and while putting the glove back on he noticed that his
right little finger felt numb. Appellant stated that he was not worried about it until he woke up
on July 29, 2015 and noticed that he was unable to use that finger, which appeared numb and
crooked. He did not stop work.
An OWCP Form CA-16, authorization for examination, was issued by the employing
establishment on July 29, 2015. Appellant was authorized to visit First Med in Murray, Utah.
He submitted reports dated July 29, 2015 from Joshua Bailey, a physician assistant at First Med,
who diagnosed finger paresthesia and released appellant to modified duty with the following
restrictions: pushing or pulling up to five pounds, with a right arm limitation of two pounds.
In a July 30, 2015 letter, the employing establishment controverted appellant’s claim on
the basis that the evidence failed to establish causal relationship or fact of injury.
In an August 6, 2015 letter, OWCP notified appellant of the deficiencies in his claim and
afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a narrative statement dated August 22, 2015 reiterating the factual
history of his claim and reports dated July 29 and August 5, 2015 from Mr. Bailey.
On August 6, 2015 Dr. Terry Brown, a Board-certified occupational medicine specialist,
ordered an electromyography (EMG) study.
In reports dated August 11 through September 2, 2015, Dr. Stephanie Plunkett, a Boardcertified family practitioner, diagnosed neuritis of upper extremity, paresthesias in right hand,
and weakness and numbness of right hand fifth finger. She asserted that appellant was working
in the mail room on July 27, 2015, took off his work gloves, and then lifted and placed several
trays of mail. When appellant was done he put his gloves back on and noticed that his right fifth
finger was numb and that it would not move correctly. Dr. Plunkett opined that appellant’s
condition was causally related to the July 27, 2015 employment incident, noting that “the
temporal relationship [was] too strong.” She indicated that appellant was awaiting an EMG
study and released him to modified duty with the following restrictions: lifting no more than 5 to
10 pounds with the right arm.
In reports dated August 28, 2015, Susanne F. Jones, a certified nurse practitioner,
diagnosed hand paresthesia and weakness of hand due to reaching to grab overhead letters at
work on July 29, 2015. Ms. Jones released appellant to modified duty with a 10-pound right arm
lifting restriction.
By decision dated September 23, 2015, OWCP denied appellant’s claim, finding that the
medical evidence was not sufficient to establish a causal relationship between his right hand
conditions and the July 27, 2015 employment incident.
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
2

States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury2 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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. 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 sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.5
ANALYSIS
OWCP accepted that the employment incident of July 27, 2015 occurred at the time,
place, and in the manner alleged. The issue is whether appellant’s right hand conditions resulted
from the employment incident. The Board finds that appellant has not met his burden of proof to
establish right hand conditions causally related to the July 27, 2015 employment incident.
In her reports, Dr. Plunkett diagnosed neuritis of upper extremity, right hand paresthesias,
and weakness and numbness of right hand fifth finger. She opined that appellant’s condition was
causally related to the July 27, 2015 employment incident, noting that “the temporal relationship
[was] too strong.” Dr. Plunkett noted that appellant was awaiting an EMG study and released
him to modified duty with a 5- to 10-pound right arm lifting restriction. The Board finds that
Dr. Plunkett failed to provide a rationalized opinion explaining how transferring trays of mail on
July 27, 2015 caused or aggravated appellant’s right hand conditions. Dr. Plunkett noted that
appellant’s conditions occurred while he was at work, but such generalized statements do not
2

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
3

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
4

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

5

Id. See Gary J. Watling, 52 ECAB 278 (2001).

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establish causal relationship because they merely repeat appellant’s allegations and are
unsupported by adequate medical rationale explaining how his physical activity at work actually
caused or aggravated the diagnosed conditions.6 She did not provide sufficient medical rationale
explaining the mechanism of how appellant’s right hand conditions were caused or aggravated
by lifting and placing trays of mail on July 27, 2015. Dr. Plunkett noted that her opinion was
based, in part, on temporal correlation. However, 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.7 Dr. Plunkett did not otherwise sufficiently explain the reasons
why diagnostic testing and examination findings led her to conclude that the July 27, 2015
incident at work caused or contributed to the diagnosed conditions. Thus, the Board finds that
the reports from Dr. Plunkett are insufficient to establish that appellant sustained an
employment-related injury.
Dr. Brown ordered an EMG study on August 6, 2015 but did not specifically address
whether the July 27, 2015 work incident caused or contributed to a diagnosed condition.
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of diminished probative value on the issue of causal relationship.8 Thus, the Board finds that
appellant did not meet his burden of proof with this submission.
Appellant also submitted evidence from a physician assistant and a nurse practitioner.
These documents do not constitute competent medical evidence because neither nurse
practitioners nor physician assistants are considered “physicians” as defined under FECA.9 As
such, this evidence is also insufficient to meet appellant’s burden of proof.
The Board also notes that the employing establishment issued appellant a Form CA-16 on
July 29, 2015 authorizing medical treatment. The Board has held that where an employing
establishment properly executes a Form CA-16, which authorizes medical treatment as a result of
an employee’s claim for an employment-related injury, it creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim.10 Although OWCP denied appellant’s claim for an injury, it did
not address whether he is entitled to reimbursement of medical expenses pursuant to the Form
CA-16.

6

See K.W., Docket No. 10-98 (issued September 10, 2010).

7

E.J., Docket No. 09-1481 (issued February 19, 2010).

8

Jaja K. Asaramo, 55 ECAB 200 (2004).

9

5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (reports by nurse practitioners and physician
assistants are not considered medical evidence as these persons are not considered physicians under FECA). See
also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue
such as causal relationship can only be resolved through the submission of probative medical evidence from a
physician).
10

See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. §§ 10.300, 10.304.

4

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 his burden of proof to establish right hand
conditions causally related to a July 27, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 2, 2016
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU MCA REGIONAL OFFICE
NEW YORK, New York, NY, Employer
__________________________________________

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

Docket No. 21-1220
Issued: March 17, 2022

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 9, 2021 appellant filed a timely appeal from a July 15, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1

5 U.S.C. § 8101 et seq.

2

The Board notes that, following the July 15, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

1

ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted February 27, 2021 employment incident.
FACTUAL HISTORY
On March 2, 2021 appellant, then a 59-year-old miscellaneous clerk, filed a traumatic
injury claim (Form CA-1) alleging that on February 27, 2021 she bruised her right knee and
overextended her right arm when she slipped and fell on ice when she leaned over to place a notice
on the door, while in the performance of duty. On the reverse side of the claim form, appellant’s
supervisor acknowledged that she was injured in the performance of duty. Appellant stopped work
on February 27, 2021 and returned to work on February 28, 2021.
In a development letter dated March 5, 2021, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of additional evidence was necessary to establish her claim
and provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
On March 25, 2021 appellant submitted a March 22, 2021 response to OWCP’s
development questionnaire. She attested that she was placing a notice on the garage door when
she slipped and fell on ice. Appellant felt a sharp pain in her right kneecap and right upper arm
and subsequently notified her supervisor and sought medical care. She also attested that she did
not have similar disability or symptoms prior to her fall.
Appellant submitted a medical report dated February 27, 2021 from Dr. Julie Stein, a
Board-certified family medicine specialist. Dr. Stein related that appellant was seen for knee pain
after a fall.
OWCP received two x-ray reports dated February 27, 2021 from Dr. Reed Thomas, an
internist and pulmonary disease specialist, which found no fracture in appellant’s knees or right
humerus.
Appellant submitted the first page of a four-page after-visit summary dated March 8, 2021,
which reflected that she was seen that day by Dr. Cyril Kozak, a Board-certified family practice
specialist. The document indicated that “issues were addressed: contusion of right knee,
subsequent encounter; and muscle strain of right upper arm, subsequent.”
By decision dated April 6, 2021, OWCP accepted that the February 27, 2021 employment
incident occurred, as alleged, but denied appellant’s claim, finding that she had not submitted
medical evidence containing a medical diagnosis in connection with her accepted employment
incident. It concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
On April 12, 2021 appellant requested reconsideration of OWCP’s April 6, 2021 decision.
In support of her claim, she submitted a report dated February 27, 2021 from Dr. Joyce Burton, an
osteopath specializing in internal medicine. Dr. Burton related that appellant slipped on ice and
fell on her right knee with her arm out in front of her. She diagnosed knee pain.
2

By decision dated July 15, 2021, OWCP denied modification of its April 6, 2021 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
There are two components involved in establishing fact of injury. The first co mponent to be
established is that the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time and place, and in the manner alleged. The second
component is whether the employment incident caused a personal injury and can be established
only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 9

3

Id.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted February 27, 2021 employment incident.
In support of her claim, appellant submitted February 27, 2021 reports from Dr. Stein and
Dr. Burton, who diagnosed right knee pain. The Board has held that pain is a symptom and not a
compensable medical diagnosis. 10 These reports are, therefore, insufficient to establish a diagnosis
causally related to the accepted employment incident.
The first page of four-page after-visit summary dated March 8, 2021 indicated that
Dr. Kozak addressed appellant’s issues of right knee contusion and muscle strain of the right upper
arm. It, however, did not offer a diagnosis. The Board has held that medical evidence lacking a
firm diagnosis is of no probative value.11 Therefore, this document has no probative value and is
insufficient to establish a diagnosis causally related to the accepted employment incident.
OWCP also received diagnostic test reports. The Board has held, however, that diagnostic
test reports, standing alone, lack probative value as they do not provide an opinion on causal
relationship between the employment incident and a diagnosed condition.12 These reports are,
therefore, insufficient to establish appellant’s claim.
As there is no medical evidence of record establishing a diagnosed medical condition
causally related to the accepted February 27, 2021 employment incident, the Board finds that
appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted February 27, 2021 employment incident.

10

A.G., Docket No. 20-1319 (issued May 19, 2021); T.S., Docket No. 20-0343 (issued July 15, 2020).

11

L.T., Docket No. 20-0582 (issued November 15, 2021); W.G., Docket No. 20-0439 (issued July 13, 2020); R.L.,
Docket No. 20-0284 (issued June 30, 2020); P.C., Docket No. 18-0167 (issued May 7, 2019).
12

See W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

4

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 17, 2022
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

5


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

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

Docket No. 14-1098
Issued: July 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 4, 2014 appellant filed a timely appeal of a March 28, 2014 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 days
elapsed from the most recent OWCP merit decision dated July 2, 2008, to the filing of this
appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to present clear evidence of error.

1
2

5 U.S.C. §§ 8101-8193.

Appellant timely requested oral argument pursuant to 20 C.F.R. § 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). The Board denied the request in a June 16, 2015 order as his arguments could adequately be
addressed based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 14-1098
(issued June 16, 2015).

FACTUAL HISTORY
This case has previously been before the Board. In the most recent appeal, the Board, in
a June 4, 2009 decision, affirmed a July 2, 2008 OWCP decision, which found that appellant had
not met his burden of proof to establish disability commencing February 5, 1991 due to his
accepted January 17, 1988 employment injury.3 The relevant facts are incorporated herein by
reference.4
Appellant requested reconsideration on November 19, 2013 and submitted new medical
evidence. In a September 24, 2013 report, Dr. Francis Allen Johnston, an orthopedic surgeon,
diagnosed chronic low back pain and documented L5-S1 disc herniation with positive discogram
with concordant production of pain. He opined that “[g]iven the information provided and
giving the finding of production of concordant pain on two separate occasions that directly
related to pain generated as a result of his work-related injury in January 1988, it is reasonable to
assume that the low back pain for which the patient was initially placed on disability benefits is
tied directly to his work-related injury in 1988. As time has gone on, the patient’s symptoms
have progressed.” Dr. Johnston noted that appellant “sustained an L5-S1, [herniated nucleus
pulposus] in 1988 that remained symptomatic and he now has developed spondylosis at the same
level.”
A lumbar discography report dated February 22, 2006, from Dr. Yaakov Applbaum, a
Board-certified diagnostic radiologist, revealed a left paracentral grade five radial tear at L5-S1.
A September 25, 2012 magnetic resonance imaging (MRI) scan of the cervical and lumbar spine,
read by Dr. Quoac L. Hoang, a Board-certified diagnostic radiologist, diagnosed mild C4-5 and
C5-6 degenerative disc disease, and mild C2-3 facet arthrosis, without significant interval
change; chronic maxiliary and sphencid sinus disease; and mild multilevel degenerative change
without compromise of the thecal sac or the neural exit foramen seen with mild streaky densities
in the perinephric fat, likely scarring.
In a November 14, 2013 report, Dr. Alfred E. Palmieri, a Board-certified orthopedic
surgeon, noted appellant’s history of injury and treatment and examined him. He opined:
“[I]n my opinion, based on a reasonable degree of medical probability, this
patient’s current cervical and lumbosacral symptoms are causally related to the
work[-]related motor vehicle accident of January 17, 1988. Long term prognosis
is guarded, as his condition [is] of long duration and appears to be chronic in
3

Docket No. 08-1986 (issued June 4, 2009), order denying petition for recon. (issued September 25, 2009).

4

On January 19, 1988 appellant, then a 38-year-old city letter carrier, while he was driving his mail vehicle, was
struck from behind by another vehicle. OWCP accepted cervical and lumbar strains and appellant received
intermittent periods of compensation. In a November 19, 1992 decision, the Board affirmed its termination of
appellant’s compensation benefits effective February 5, 1991. Docket No. 92-1353. Prior to the Board’s June 4,
2009 decision, id., the Board previously affirmed OWCP decisions finding that appellant had not met his burden of
proof to establish disability due to his January 17, 1988 work injury. Docket No. 94-2110 (issued June 2, 1997);
Docket No. 03-698 (issued August 3, 2004), order denying petition for recon. (issued April 5, 2005); Docket No.
06-515 (issued January 12, 2007).

2

nature. It is therefore unlikely that his symptoms will improve and may worsen
with the passage of time.”
In a March 28, 2014 decision, OWCP denied appellant’s request for reconsideration,
finding that it was not timely filed within one year of the last merit decision, dated June 4, 2009,
and failed to present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA5 vests OWCP with discretionary authority to determine
whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”6
OWCP’s imposition of a one-year time limitation within which to file an application for
review as part of the requirements for obtaining a merit review does not constitute an abuse of
discretionary authority granted OWCP under section 8128(a).7 This section does not mandate
that OWCP review a final decision simply upon request by a claimant.
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a). Thus, section 10.607(a) of the implementing regulations
provide that an application for reconsideration must be received within one year of the date of
OWCP decision for which review is sought.8
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8128(a).

7

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

8

20 C.F.R. § 10.607(a).

9

Id. at § 10.607(b).

3

evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP.10 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision. The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of OWCP
such that OWCP abused its discretion in denying merit review in the face of such evidence.11
ANALYSIS
In its March 28, 2014 decision, OWCP properly determined that appellant failed to file a
timely application for review. The Board issued a merit decision on June 4, 2009, in which it
affirmed OWCP’s July 2, 2008 decision, finding that appellant had not met his burden of proof
to establish disability after February 5, 1991 due to his January 17, 1988 employment injury.
Appellant’s November 19, 2013 letter requesting reconsideration was submitted more than one
year after the last merit decision and was, therefore, untimely.
In accordance with internal guidelines and with Board precedent, OWCP properly
proceeded to perform a limited review to determine whether appellant’s application for review
showed clear evidence of error, which would warrant reopening appellant’s case for merit review
under section 8128(a) of FECA, notwithstanding the untimeliness of his application. It reviewed
the evidence submitted by him in support of his application for review, but found that it did not
clearly show that OWCP’s most recent merit decision was in error.
The Board finds that the evidence submitted by appellant in support of his application for
review does not raise a substantial question as to the correctness of OWCP’s most recent merit
decision and is insufficient to demonstrate clear evidence of error. The critical issue in this case
is whether appellant has shown clear evidence of error in the underlying merit decision.
With his November 19, 2013 request for reconsideration, appellant submitted lumbar
discography reports dated February 22, 2006 and a September 25, 2012 MRI scan of the cervical
and lumbar spine. The Board finds that this evidence is insufficient to show that OWCP’s denial
of the claim was erroneous or to raise a substantial question as to the correctness of OWCP’s
determination that appellant did not meet his burden of proof to establish disability after
February 5, 1991 due to his January 17, 1988 employment injury.
Appellant submitted a September 24, 2013 report from Dr. Johnston, who opined that it
was “reasonable to assume that the low back pain for which the patient was initially placed on
disability benefits is tied directly to his work-related injury in 1988. As time has gone on, the
patient’s symptoms have progressed.” Appellant also submitted a November 14, 2013 report
10

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

11

Id.

4

from Dr. Palmieri, who noted appellant’s history of injury and opined that appellant’s current
cervical and lumbosacral symptoms were causally related to the January 17, 1988 work-related
motor vehicle accident and that it was unlikely that his symptoms would improve. While these
reports offer some support for causal relationship, the Board has held that the term “clear
evidence of error” is intended to represent a difficult standard. The claimant must present
evidence which on its face shows that OWCP made an error (for example, proof of a
miscalculation in a schedule award). Evidence such as a detailed, well-rationalized report, which
if submitted prior to OWCP’s denial, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error and would not require a review of a case.12
The Board finds that this medical evidence is insufficient to shift the weight of the evidence in
favor of appellant’s claim or raise a substantial question that OWCP erred denying his claim for
disability due to his January 17, 1988 employment injury.
Therefore, the Board finds that appellant has not presented clear evidence of error.
On appeal, appellant argues that Dr. Palmieri’s report was not adequately addressed by
OWCP. The Board notes, however, that OWCP reviewed appellant’s request for reconsideration
dated November 19, 2013, which discussed at length the arguments as to why Dr. Palmieri’s
report met appellant’s burden of proof. Dr. Palmieri’s report is not sufficient to establish clear
evidence of error. Appellant also raises arguments on appeal pertaining to the merits of the
claim. However, as noted, the Board does not have jurisdiction over the merits of the claim.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to present clear evidence of error.

12

D.G., 59 ECAB 455 (2008).

5

ORDER
IT IS HEREBY ORDERED THAT the March 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 2, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF ENERGY,
ALBUQUERQUE OPERATIONS OFFICE,
Albuquerque, NM, Employer
__________________________________________

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

Docket No. 15-335
Issued: May 15, 2015

Case Submitted on the Record

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

JURISDICTION
On November 24, 2014 appellant filed a timely appeal from a November 5, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
and compensation benefits effective November 5, 2014 as he no longer had any residuals or
disability causally related to his accepted employment injuries.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the November 5, 2014 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
This case was previously before the Board. In a decision dated July 12, 2000, the Board
found that OWCP had not met its burden of proof to reduce appellant’s compensation based on
his capacity to earn wages as a duplicating machine operator.3 The Board reversed OWCP’s
June 18 and August 11, 1998 decisions. Following the Board’s decision, OWCP reinstated
appellant on the periodic rolls for temporary total disability with a date-of-injury pay rate of
$435.60 per week. The facts and circumstances of the Board’s July 12, 2000 decision are
incorporated herein by reference. The relevant facts for this case are set forth below.
OWCP accepted that on September 24, 1984 appellant, then a 44-year-old printer,
sustained injuries to his back when a bolt on his chair broke and he fell down in the performance
of duty. Appellant stopped work.4 OWCP accepted his claim for sprain of the back, lumbar
region and aggravation of degenerative disc disease of the lumbar region. It paid medical and
wage-loss compensation benefits.
By decision dated April 2, 2001, OWCP reduced appellant’s compensation benefits based
upon his actual earnings of $320.00 per week effective January 25, 1999 in his new position of
bindery technician.
Pursuant to his requirement, under Form EN1032, to obtain annual medical reports,
appellant sought medical treatment with Dr. Richard T. Radecki, Board-certified in physical
medicine and rehabilitation. In his report dated January 24, 2002, Dr. Radecki related that
appellant continued to have pain from his original injury, but he now had a secondary injury and
additional pain.5 He stated that as appellant related that he had pain prior to the second injury,
his federal work-related injury had not ceased and was now a chronic pain problem. Regarding
appellant’s disability status, Dr. Radecki related that appellant had significant movement
limitations due to chronic pain. Therefore, it was unlikely that appellant could return to the job
he held when injured. Dr. Radecki opined that appellant could perform sedentary, modified
work and did not recommend a functional capacity evaluation, physical therapy, or surgery. In a
report dated January 30, 2003, Dr. Radecki related that an x-ray evaluation showed significant
degenerative disc disease at L5-S1 with forminal stenosis.
Appellant continued on partial disability. He was treated by Dr. Barry Hochstadt, Boardcertified in internal medicine. By report dated January 25, 2005, Dr. Hochstadt related that
appellant had moderate pain, and limited range of motion on flexion. He diagnosed chronic pain
syndrome, which would not improve over time. Dr. Hochstadt opined that appellant could only
perform light duty.

3

Docket No. 98-2582 (issued July 12, 2000).

4

On November 11, 1984 appellant was removed from his position due to a reduction in workforce.

5

In a letter dated August 2, 2002, OWCP informed appellant that his new injury which had been sustained on
September 26, 2001, in private employment, was not compensable as it did not occur as a result of federal
employment. Appellant continued to submit periodic medical reports to the record to support his continuing
disability benefits.

2

By letter dated February 17, 2009, OWCP advised appellant to submit an updated,
current medical report from his treating physician. In a report dated February 11, 2009,
Dr. David R. Sears, Board-certified in internal medicine, related that appellant’s current
objective findings on examination were work related and included decreased range of motion on
flexion and extension of both his lumbar and cervical spine. He opined that appellant had
chronic pain syndrome and could not perform any work.
Dr. Patricia Carabajal, Board-certified in family practice, related on February 22, 2011
that on physical examination of appellant for the Department of Labor, he presented walking
with a cane, and had decreased range of motion on flexion and extension of the back and neck.
She opined that appellant had chronic neck and lower back pain, and was unable to work given
his pain, as well as his limited range of motion and ability to walk. Dr. Carabajal recommended
that appellant continue with analgesics as well as physical therapy. In a report dated
February 14, 2014, she related that he had stable low back pain, hypertension, and insomnia.
On June 12, 2014 OWCP referred appellant, along with a statement of accepted facts and
the medical record, to Dr. Keith W. Harvie, a Board-certified orthopedic surgeon, for a second
opinion examination to determine the extent of appellant’s continuing disability related to his
accepted employment-related injuries.
In his July 23, 2014 report, Dr. Harvie provided a history of appellant’s accepted back
injuries and noted his review of the medical records and the medical treatment he received. He
noted that a March 18, 1998 magnetic resonance imaging (MRI) scan of the lumbar spine
revealed moderate stenosis at C5-6 with spondylolisthesis in his cervical spine, primarily C5-6
and C4-5. Appellant had a history of diabetes and had previous gallbladder surgery. Dr. Harvie
related appellant’s current complaints of low back pain at the lumbosacral junction and problems
sleeping because of the pain in his lower back, neck, and right upper arm. He noted that
appellant had problems with activities of daily living. Upon examination, Dr. Harvie observed
that appellant was nontender in the cervical spine except at the lumbosacral junction, in the lower
back. Range of motion of the lumbar region demonstrated 10 degrees extension, right lateral,
and left lateral and 45 degrees right and left rotation. Cervical range of motion revealed 20
degrees extension, 15 degrees right and left lateral, 40 degrees right rotation, and 45 degrees left
rotation. Dr. Harvie stated that appellant was very stiff and did not try to move beyond the limits
that he imposed. Straight leg raise testing was to 70 degrees bilaterally and negative in both the
supine and sitting position for any pain within the legs. Dr. Harvie also reported negative
femoral nerve stretch sign and positive Ely’s sign with pain at the lumbosacral junction.
Dr. Harvie opined that appellant’s accepted lumbar conditions had resolved and that he
no longer suffered any residuals of his employment-related lumbar strain and aggravation of
degenerative disc disease. He noted that appellant had disc degeneration of the cervical and
lumbar spine and no current MRI scan or x-ray findings. Dr. Harvie explained that there was no
tenderness in the sacroiliac (SI) joint, sciatica notch, posterior thigh, or posterior calf. He stated
that appellant demonstrated exaggerated behavior in his accepted work conditions and pointed
out that appellant scored a 115 on the pain disability questionnaire (PDQ). Dr. Harvie reported
that appellant had no limitations resulting from aggravation of degenerative disc disease and that
any limitations were due to deconditioning and obesity. He stated that appellant was capable of
sedentary work only because he was in poor physical function due to nonactivity.

3

On September 17, 2014 OWCP proposed to terminate appellant’s compensation and
medical benefits based on Dr. Harvie’s July 23, 2014 report which determined that appellant’s
employment-related injuries had resolved and that he was capable of returning to modified duty.
In a September 25, 2014 report, Dr. Ben Muneta, a family practitioner, stated that
appellant had many severe medical conditions which could be exacerbated by performing even
the most minimal physical exertions. He reported that appellant had severe low back pain with
disc disease which limited his ability to do physical activities. Dr. Muneta noted that appellant
also had diabetes, hypertension, and was prone to symptoms of hypoglycemia. He explained that
because of appellant’s age and medical conditions he could not be considered to do tasks beyond
the most minimal of physical exertions.
By decision dated November 5, 2014, OWCP finalized the termination of appellant’s
compensation and medical benefits effective November 5, 2014. It determined that the weight of
the medical evidence rested with Dr. Harvie’s July 23, 2014 report which determined that
appellant’s employment-related injuries had resolved and that he was capable of returning to
sedentary duty.
LEGAL PRECEDENT
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.6 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to the employment.7 Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.8 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.9 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.10
ANALYSIS
OWCP accepted appellant’s claim for sprain of the back, lumbar region and aggravation
of degenerative disc disease of the lumbar region. Appellant stopped work. OWCP paid
disability and medical benefits for partial disability under a wage-earning capacity decision. By
decision dated November 5, 2014, it terminated appellant’s compensation and medical benefits
based on the July 23, 2014 second opinion report of Dr. Harvie which concluded that appellant’s
6

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

7

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
8

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
10

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., id.

4

accepted conditions had resolved and that he was no longer disabled due to the accepted
September 24, 1984 employment injury. The Board finds that OWCP met its burden of proof to
terminate appellant’s compensation and medical benefits.
OWCP referred appellant’s claim to Dr. Harvie for a second opinion examination to
determine whether appellant continued to suffer residuals of his accepted injuries and the
necessity of his medical treatment. In a July 23, 2014 report, Dr. Harvie reviewed appellant’s
history of injury, medical treatment, and the statement of accepted facts concerning his back
injuries. He reported essentially normal findings on physical examination and opined that
appellant no longer had any residuals or disability due to his accepted September 24, 1984
employment injury. Dr. Harvie noted that there was no tenderness in the SI joint, sciatica notch,
posterior thigh, or posterior calf. He stated that appellant demonstrated exaggerated behavior in
his accepted work conditions. Dr. Harvie reported that appellant had no limitations resulting
from aggravation of degenerative disc disease and that any limitations were due to
deconditioning and obesity. He stated that appellant was capable of sedentary work only
because he was in poor physical function due to nonactivity.
The Board has held that the weight of the medical opinion is determined by the
opportunity for and thoroughness of examination, the accuracy and completeness of the
physician’s knowledge of the facts of the case, the medical history provided, the care of analysis
manifested and the medical rationale expressed in support of stated conclusions.11 In this case,
Dr. Harvie discussed the history of injury and explained that there were no objective findings to
establish that appellant had any continuing employment-related residuals or disability. The
Board finds that his opinion is detailed, well rationalized, and based upon a complete and
accurate history. Therefore, the Board finds that Dr. Harvie’s opinion represents the weight of
the medical evidence and establishes that appellant no longer had any residuals or disability from
his accepted back injuries.
The Board further finds that the medical evidence appellant submitted is of limited
probative value in disputing Dr. Harvie’s report. Prior to the termination of benefits appellant
was seen by Drs. Radecki, Hochstadt, Sears and Carabajal who continued to diagnose chronic
pain syndrome and opine that appellant was at least partially disabled. However, the Board notes
that none of these physicians provided objective findings that appellant’s accepted conditions
caused continuing residuals or disability.
Following OWCP’s September 17, 2014 notice of proposed termination of benefits,
appellant submitted a September 25, 2014 report by Dr. Muneta, who reported that appellant had
severe low back pain with disc disease which limited his ability to do physical abilities.
Dr. Muneta also noted that appellant also had diabetes, hypertension, and was prone to
symptoms of hypoglycemia. He explained that because of appellant’s age and medical
conditions appellant could not be considered to do tasks beyond the most minimal of physical
exertions. Although Dr. Muneta attributed appellant’s inability to work to his low back pain and
disc disease and noted that he suffers from diabetes, hypertension, and hypoglycemia. He failed
to explain, based on medical rationale, how appellant was unable to work as a result of his
11

See K.W., 59 ECAB 271 (2007); Ann C. Leanza, 48 ECAB 115 (1996).

5

accepted lower back sprain and aggravation of disc disease. The Board has found that medical
evidence which provides only a conclusion but does not offer any rationalized medical
explanation is of limited probative value.12
On appeal, appellant alleges that Dr. Harvie was very unprofessional and that he
experienced a lot of pain during the second opinion examination. Despite his allegations,
appellant has not provided any objective evidence to support that his pain is a result of his
accepted conditions.
Accordingly, OWCP has met its burden of proof to establish that appellant no longer
continues to suffer residuals of his accepted September 24, 1984 back injury. There is no
medical evidence contemporaneous with the termination of his benefits which supports that he
has any continuing residuals related to his accepted lumbar conditions. Accordingly, the Board
finds that OWCP properly terminated appellant’s rights to compensation and medical benefits.
Appellant had received a loss of wage-earning capacity determination on April 2, 2001.
The Board has held that once a loss of wage-earning capacity is determined, it remains in place
unless modified.13 A modification of such a determination is not warranted unless there is a
material change in the nature and extent of the employment-related condition, the employee has
been retrained or otherwise vocationally rehabilitated or the original determination was in fact
erroneous.14 In certain situations, however, if the medical evidence is sufficient to meet
OWCP’s burden of proof to terminate benefits, the same evidence may also negate a loss of
wage-earning capacity such that a separate evaluation of the existing wage-earning capacity
determination is unnecessary.15 OWCP’s burden to demonstrate no further disability is
effectively the same, irrespective of whether there is an existing determination in place finding
loss of earning capacity. Case law may suggest that a threshold evaluation of the wage-earning
capacity needs to be performed before there is a termination of benefits. The Board finds,
however, that the burden is often substantially the same, the evidence is the same and the process
of terminating benefits need only be done once. While a claimant may still have unrelated
medical conditions or impairments, the medical evidence must establish that the employmentrelated disability and medical conditions no longer exist.
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.

12

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006). See T.C., Docket No. 12444 (issued August 1, 2012); see also B.P., Docket No. 08-1457 (issued February 2, 2009); Gloria J. Godfrey, 52
ECAB 486 (2001).
13

A wage-earning capacity determination remains in effect until it is properly modified. See Katherine T.
Kreger, 55 ECAB 633 (2004); see P.Y., Docket No. 09-2293 (issued September 1, 2010) and A.P., Docket No. 081822 (issued August 5, 2009).
14

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

15

A.P., supra note 13.

6

CONCLUSION
The Board finds that OWCP met its burden of proof to justify termination of appellant’s
medical benefits effective November 5, 2014.
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 16-0320
Issued: March 29, 2016

Case Submitted on the Record

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

JURISDICTION
On December 8, 2015 appellant filed a timely appeal from a September 11, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days has elapsed from December 4, 2014, the date of the most recent OWCP merit decision,
to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant contends that the evidence she submitted was sufficient to warrant
reconsideration of the merits of her case.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the September 11, 2015 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 22, 2014 appellant, a 40-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that she sustained injuries to her right arm on July 18, 2014 as a result of
opening a door in the performance of duty. She stopped work on July 19, 2014.
Appellant submitted reports dated July 23 and August 20, 2014 from Dr. David Delman,
a Board-certified internist, who diagnosed right shoulder sprain, right wrist sprain, and possible
nerve injury to the right upper extremity and opined that appellant’s conditions were causally
related to a work-related accident on July 18, 2014. She further submitted two reports dated
September 23, 2014 from Dr. Salil Gupta, a Board-certified orthopedic surgeon, who diagnosed
subluxation of the right shoulder due to opening a heavy door at work on July 18, 2014 and
opined that she was totally disabled for work due to her pain.
In an October 27, 2014 letter, OWCP advised appellant of the deficiencies of her claim
and afforded her 30 days to submit additional evidence and respond to its inquiries.
Subsequently, appellant submitted physical therapy notes dated July 24 through
September 23, 2014.
By decision dated December 4, 2014, OWCP denied appellant’s claim as the medical
evidence was insufficient to establish a causal relationship between her diagnosed conditions and
the July 18, 2014 employment incident.
On June 2, 2015 appellant requested reconsideration and resubmitted the reports dated
July 23 and August 20, 2014 from Dr. Delman and the two September 23, 2014 reports from
Dr. Gupta. She also submitted a July 23, 2014 report from a physical therapist and resubmitted
physical therapy notes dated July 24 through September 23, 2014.
By decision dated September 11, 2015, OWCP denied appellant’s request for
reconsideration of the merits finding that she did not submit pertinent new and relevant evidence
and did not show that OWCP erroneously applied or interpreted a point of law not previously
considered by OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right. It vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.3 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).4
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
3

Supra note 1. Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

See Annette Louise, 54 ECAB 783, 789-90 (2003).

2

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received within one year of the date of that decision.6 When a claimant fails to meet one of
the above standards, OWCP will deny the application for reconsideration without reopening the
case for review on the merits.7
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record8 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.9
ANALYSIS
The Board finds that OWCP properly refused to reopen appellant’s case for further
consideration of the merits pursuant to 5 U.S.C. § 8128(a). Appellant did not attempt to
demonstrate that OWCP erroneously applied or interpreted a point of law. Moreover, she did not
advance a legal argument not previously considered by OWCP.
In support of her June 2, 2015 reconsideration request, appellant submitted a July 23,
2014 report from a physical therapist. The Board finds that submission of this report does not
require reopening appellant’s case for merit review. OWCP denied appellant’s claim based on
the lack of supportive medical evidence. This new report does not constitute competent medical
evidence, however, because a physical therapist is not considered a “physician” as defined under
FECA.10 Therefore, it is insufficient to require OWCP to reopen the claim for consideration of
the merits.
Appellant further resubmitted two September 23, 2014 reports from Dr. Gupta, and
reports dated July 23 and August 20, 2014 from Dr. Delman. She also resubmitted physical
therapy notes dated July 24 through September 23, 2014. The Board finds that the resubmission
of this evidence did not require reopening appellant’s case for merit review because she had
previously submitted the same evidence, which was previously reviewed by OWCP in its
December 4, 2014 merit decision. As the reports repeat evidence already in the case record, they

5

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

6

20 C.F.R. § 10.607(a).

7

Id. at § 10.608(b).

8

See A.L., supra note 5. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

9

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

10

5 U.S.C. § 8101(2); Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists). See also Gloria J.
McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a physician).

3

are duplicative and do not constitute new and relevant evidence.11 Thus, appellant has failed to
establish a basis for reopening her case for merit review.12
On appeal appellant contends that the evidence she submitted was sufficient to warrant a
reconsideration of the merits of her case. However, the Board finds that appellant did not submit
any relevant evidence to show that OWCP erroneously applied or interpreted a specific point of
law or advanced a relevant legal argument not previously considered by the OWCP. Because
appellant only submitted repetitive evidence with her request for reconsideration, the Board finds
that she did not meet any of the necessary requirements and is not entitled to further merit
review.13
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 29, 2016
Washington, DC

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

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

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

11

See supra note 8.

12

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

13

See L.H., 59 ECAB 253 (2007).

4


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

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)

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

Docket No. 19-1312
Issued: February 14, 2020

Case Submitted on the Record

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

JURISDICTION
On May 28, 2019 appellant, through counsel, filed a timely appeal from an April 19, 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 left carpal tunnel
and left cubital tunnel syndrome causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On June 5, 2018 appellant, then a 58-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained injuries to her hands, wrists, and elbows while in
the performance of duty. She attributed her bilateral upper extremity condition(s) to repetitive
work factors, which included gripping, grasping, pushing, pulling, reaching, and lifting. Appellant
identified February 28, 2018 as the date she first became aware of her condition. She did not stop
work.
Under OWCP File No. xxxxxx571, appellant has an accepted occupational disease claim
for left forearm/elbow sprain, left ulnar nerve lesion, and left lateral epicondylitis, which arose on
or about June 2, 2008.3
In an April 23, 2018 work status note, Jeremy D. Palmer, a certified physician assistant,
diagnosed left elbow lateral epicondylitis and requested authorization for left upper extremity
electrodiagnostic testing for evaluation of cubital tunnel syndrome. He also provided work
restrictions, which included no lifting in excess of three to five pounds and no repetitive
pushing/pulling activities.
In a July 13, 2018 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of factual information and
medical evidence necessary to support her claim and provided a questionnaire for her completion.
OWCP afforded appellant 30 days to submit the requested information.
On August 10, 2018 appellant responded to OWCP’s development letter. In a narrative
statement, she described in detail her employment duties, which included casing and sorting mail,
pulling mail down and bundling and delivering it. Appellant indicated that her employment duties
required repetitive gripping, reaching approximately 400 times a day, grasping and tying mail,
driving, and pushing and pulling open mail boxes. She reported that she performed these motions
six days a week for approximately six to eight hours per day.
In an April 23, 2018 report, Dr. John T. Davis, a Board-certified orthopedic surgeon,
indicated that appellant worked as a rural mail carrier and that she sought treatment for complaints
of left lateral elbow pain. He recounted that the pain began at work with repetitive activities over
time and had progressively worsened in the past several months. Dr. Davis reported that
appellant’s pain was aggravated with daily activities, including repetitive reaching and lifting at
work. Examination of appellant’s bilateral upper extremities revealed tenderness focally over the
lateral epicondyle, with pain reported on resisted wrist extension, long finger extension, resisted
supination, and grip form elevation. Dr. Davis indicated that a left elbow x-ray revealed an ulnar
3
Appellant’s previously accepted left upper extremity employment injury under OWCP File No. xxxxxx571 is not
currently before the Board.

2

nerve lesion. He assessed left elbow pain, left elbow lateral epicondylitis, and left cubital tunnel
syndrome. Dr. Davis opined that appellant’s current complaints were causally related to her
repetitive work activity.
In an April 26, 2018 report, Dr. Steven D. Young, a Board-certified orthopedic surgeon,
related appellant’s complaints of left hand catching and pain, swelling, and numbness on the left
side. He reported that appellant’s symptoms began four months prior and were nontraumatic.
Dr. Young reviewed appellant’s history and noted that she was diabetic. Upon examination of
appellant’s left hand, he observed a Dupuyten’s node on the long finger volar proximal
interphalangeal (PIP) joint and triggering over the ring finger. Dr. Young diagnosed left hand pain
and left ring finger triggering.
In a May 30, 2018 report, Dr. Davis related that appellant was treated for complaints of
numbness and tingling in the ulnar digits of her left hand. He reviewed appellant’s history and
conducted an examination. Dr. Davis noted positive Tinel’s sign and pain with hyperflexion of
the elbow into the ulnar digits. He assessed left elbow ulnar neuritis and improving left elbow
lateral epicondylitis.
A June 7, 2018 electromyography and nerve conduction velocity (EMG/NCV) study
revealed moderate left median neuropathy at the wrist and mild left ulnar neuropathy at the elbow.
In a June 7, 2018 report, Dr. Young reported appellant’s complaints of left hand numbness
and tingling and left ring finger triggering. Upon examination of appellant’s left hand, he observed
positive Phalen’s and median nerve compression tests. Dr. Young diagnosed left ring trigger
finger, left carpal tunnel syndrome, left cubital tunnel syndrome, and Dupuytren’s fibromatosis.
In a July 5, 2018 report, Dr. Young indicated that appellant had persistent symptoms of
triggering of the left ring finger and left whole hand numbness and tingling that did not improve
with conservative care. He reviewed appellant’s history and noted that she was diabetic. Upon
examination of appellant’s left hand, Dr. Young observed triggering and tenderness in the area of
the A1 pulley, numbness and tingling of the whole left hand, and tenderness at the medial elbow.
Dr. Young discussed the results of the EMG/NCV study and assessed left carpal tunnel syndrome,
left cubital tunnel syndrome, and left ring trigger finger.
By decision dated August 16, 2018, OWCP accepted appellant’s employment duties as a
rural carrier and diagnoses for left elbow lateral epicondylitis, left carpal tunnel syndrome, left
cubital tunnel syndrome, and left ring trigger finger. However, it denied her claim finding
insufficient medical evidence to establish causal relationship.
On August 29, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. The hearing was held on January 15, 2019. Appellant clarified
that she was not requesting acceptance of her claim for her left ring trigger finger or left hand
nodules as her doctor had informed her that those conditions were due to her diabetes. She also
related that, although she received medical treatment for her previously accepted left arm
conditions in 2008, the pain and symptoms never went away.
By decision dated February 25, 2019, an OWCP hearing representative affirmed the
August 16, 2018 decision.
3

On March 22, 2019 appellant, through counsel, requested reconsideration.
Appellant submitted a February 24, 2019 letter by Dr. Young. Dr. Young indicated that he
had been treating appellant for diagnosed left ring trigger finger, left carpal tunnel syndrome, and
left cubital tunnel syndrome. He also reported that appellant worked as a mail carrier for the past
21 years and that her employment duties required driving, working in a rural setting, and lifting
up to 70 pounds. Dr. Young opined that driving, lifting heavy loads, and the repetitive nature of
these activities over a prolonged period of time, such as 21 years, was “most certainly a
contributing factor” to her symptoms. He explained that these activities contributed to the
“thickening of the transverse carpal ligament, which diminishes room for the median nerve at the
carpal tunnel.” Dr. Young indicated that these activities also contributed to the development of
cubital tunnel syndrome. He further noted that appellant’s diabetic condition did not negate the
impact that her work situation had on the development of her left carpal tunnel, left cubital, and
left ring trigger finger conditions.
By decision dated April 19, 2019, OWCP denied modification of the February 25, 2019
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 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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.8

4

Supra note 2.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); 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

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

4

Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 The opinion of the physician must be based
on a complete factual and medical background of the employee, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment factors identified by the employee.10
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant submitted reports and letters by Dr. Young dated April 26, 2018 to
February 24, 2019. In his initial report, Dr. Young related appellant’s complaints of left hand
catching, pain, swelling, and numbness. In reports dated June 7 and July 5, 2018, he noted
examination findings of positive Phalen’s and median nerve compression tests and tenderness in
appellant’s left ring finger. Dr. Young diagnosed left ring trigger finger, left carpal tunnel
syndrome, and left cubital tunnel syndrome. In a February 24, 2019 letter, he noted that appellant
worked as a mail carrier and that her employment duties required driving and lifting up to 70
pounds. Dr. Young opined that the repetitive nature of these activities over a prolonged period of
time contributed to the development of appellant’s symptoms. He explained that these activities
contributed to the “thickening of the transverse carpal ligament, which diminishes room for the
median nerve at the carpal tunnel.” Dr. Young reported that these activities also contributed to the
development of cubital tunnel syndrome.
The Board finds that Dr. Young provided an affirmative opinion on causal relationship,
which describes appellant’s repetitive employment duties, findings upon examination, and
explained the mechanism of injury of how the accepted factors of employment contributed to the
development of her left cubital and carpal tunnel syndromes.11 Dr. Young also noted that although
appellant had a preexisting diabetic condition, her work activities still contributed to the worsening
of her left upper extremity conditions. His opinion is also supported by Dr. Davis, who opined in
an April 23, 2019 report that appellant’s conditions were causally related to her repetitive reaching
and lifting at work. The Board finds that, although Dr. Young’s and Dr. Davis’ opinions were not
sufficiently rationalized to meet appellant’s burden of proof to establish her claim, they are
sufficient to require further development of the case by OWCP.12

9

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
10

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345, 352 (1989).
11

See C.M., Docket No. 18-1516 (issued May 8, 2019).

12
C.M., Docket No. 17-1977 (issued January 29, 2019); see also John J. Carlone, 41 ECAB 354 (1989); Horace
Langhorne, 29 ECAB 820 (1978).

5

It is well established that proceedings under FECA are not adversarial in nature, and while
appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in
the development of the evidence.13 OWCP has an obligation to see that justice is done.14
Therefore, the Board finds that the case shall be remanded to OWCP. On remand, OWCP
shall prepare a statement of accepted facts concerning appellant’s working conditions and refer the
matter to an appropriate medical specialist, consistent with OWCP’s procedures, to determine
whether appellant’s employment duties caused or aggravated her left upper extremity conditions.
Following this, and any other further development as deemed necessary, OWCP shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13
See e.g., M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985);
Michael Gallo, 29 ECAB 159, 161 (1978); William N. Saathoff, 8 ECAB 769, 770-71; Dorothy L. Sidwell, 36 ECAB
699, 707 (1985).
14
See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983);
Gertrude E. Evans, 26 ECAB 195 (1974).

6

ORDER
IT IS HEREBY ORDERED THAT the April 19, 2019 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision of the Board.
Issued: February 14, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7