United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Troy, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1054
Issued: March 30, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 6, 2021 appellant filed a timely appeal from a January 7, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1054.
This case has previously been before the Board. 1 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 15, 2015 appellant, then a 57-year-old customer care agent, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to
factors of her federal employment, including an increase of work activities. She asserted that she
first became aware of her claimed condition on February 7, 2000 and first realized its relation to

1

Docket No. 19-0925 (issued September 25, 2019).

her federal employment on March 28, 2015. Appellant stopped work on March 17, 2015. OWCP
assigned OWCP File No. xxxxxx503. 2
Appellant submitted a series of medical reports in support of the present claim, including
a June 4, 2015 report from Dr. Sophia Grias-Radwanski, a Board-certified physiatrist. Dr. GriasRadwanski diagnosed bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, and neck
pain with radiculopathy symptoms.
After extensive development of the medical evidence, OWCP found a conflict in the
medical opinion evidence between Dr. Grias-Radwanski and Dr. Allen L. Babcock, a Boardcertified orthopedic surgeon serving as an OWCP referral physician, regarding whether appellant
sustained a new occupational injury due to employment factors. After additional development of
the medical evidence,3 it referred appellant for an impartial medical examination with
Dr. Clifford M. Buchman, an osteopath and Board-certified orthopedic surgeon, who produced a
July 25, 2018 report.
By decision dated August 23, 2018, OWCP denied appellant’s claim for a new
employment-related occupational condition, finding that the special weight of the medical opinion
evidence rested with the well-rationalized opinion of Dr. Buchman, the impartial medical
specialist.
By decision dated March 8, 2019, OWCP’s hearing representative affirmed OWCP’s
August 23, 2018 decision.
Appellant appealed to the Board and, by decision dated September 25, 2019,4 the Board
affirmed OWCP’s March 8, 2019 decision.
In a letter dated September 21, 2020 and entered into the Integrated Federal Employees’
Compensation System (iFECS) on September 28, 2020, appellant requested reconsideration of her

2
Appellant has a prior claim OWCP File No. xxxxxx427, for which she filed an occupational disease claim (Form
CA-2) in January 2003. In March 2003 OWCP accepted the claim for bilateral carpal tunnel syndrome. Appellant
filed a notice of recurrence (Form CA-2a) in October 2008 alleging a recurrence of disability due to the accepted
bilateral carpal tunnel syndrome condition. OWCP converted appellant’s recurrence claim to a claim for a new
occupational injury, and assigned OWCP File No. xxxxxx340. In May 2009, it accepted that claim for aggravation
of bilateral carpal tunnel syndrome. OWCP administratively combined OWCP File Nos. xxxxxx427, xxxxxx340, and
xxxxxx503, with OWCP File No. xxxxxx427 designated as the master file.
3

Prior to the referral to Dr. Buchman, OWCP referred appellant to three other impartial medical specialists, but it
found deficiencies in their evaluations, which required the referral to Dr. Buchman.
4

Supra note 1.

2

claim. On September 28, 2020 OWCP received a February 17, 2020 report from Dr. GriasRadwanski who provided an extensive discussion of appellant’s work duties and opined that she
had sustained several new occupational conditions due to these duties. 5
By decision dated October 19, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. In reaching
this decision, it did not discuss any evidence submitted by appellant in connection with her
reconsideration request.
In an October 28, 2020 letter, appellant argued that she filed a timely reconsideration
request in that a postal record demonstrated that, on September 25, 2020, OWCP had received her
reconsideration request letter, dated September 21, 2020. She submitted a U.S. Postal Service
tracking document that indicated a package was delivered on September 25, 2020 to an address in
London, Kentucky.
In a September 21, 2020 letter received by OWCP on November 4, 2020, appellant argued
that she had submitted sufficient medical evidence to establish several new employment-related
occupational conditions. She indicated that she had submitted additional medical evidence,
including a new report of Dr. Grias-Radwanski.
In an October 28, 2020 letter received by OWCP on the same date, appellant again argued
that she filed a timely reconsideration request on September 25, 2020.
By decision dated January 7, 2021, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that she had, in fact, filed a timely
reconsideration request, but determined that she had not submitted evidence or argument entitling
her to merit review. OWCP asserted that appellant had not submitted any new medical evidence
in connection with her reconsideration request.
The Board finds that this case is not in posture for decision with respect to whether
appellant sustained a new employment-related occupational condition.
FECA provides that OWCP shall determine and make ﬁndings of fact in making an award
for or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as OWCP considers necessary with respect to the claim.6 Since
the Board’s jurisdiction of a case is limited to reviewing the evidence which is before OWCP at the
time of its final decision, 7 it is necessary that OWCP review all evidence submitted by a claimant
and received by OWCP prior to issuance of its final decision. As the Board’s decisions are final as

5

Appellant also submitted a May 15, 2018 report from Dr. Peter E. Metropoulos, an attending osteopath and Boardcertified occupational medicine specialist, and a March 3, 2020 report from Dr. Mitchell Pollak, a Board-certified
orthopedic surgeon. The reports had previously been submitted and considered by OWCP.
6

5 U.S.C. § 8124(a)(2).

7

20 C.F.R. § 501.2(c).

3

to the subject matter appealed, 8 it is crucial that all evidence relevant to that subject matter which
was properly submitted to OWCP prior to the time of issuance of its final decision be addressed by
OWCP.9
In the present case, OWCP did not review evidence received p rior to the issuance of its
January 7, 2021 decision, i.e., a February 17, 2020 report of Dr. Grias-Radwanksi. The Board,
therefore, must set aside this decision of OWCP and remand the case so that OWCP may fully
consider the evidence that was properly submitted by appellant prior to the issuance of the January 7,
2021 decision. Following this and such other further development it deems necessary, OWCP shall
issue an appropriate decision regarding appellant’s occupational disease claim.
IT IS HEREBY ORDERED THAT the January 7, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8

Id. at § 501.6(d).

9

T.B., Docket No. 19-1841 (issued July 7, 2020); E.P., Docket No. 14-0278 (issued February 26, 2014). See also
William A. Couch, 41 ECAB 548, 553 (1990).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO & FIREARMS,
Albuquerque, NM, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-322
Issued: September 17, 2010

Case Submitted on the Record

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

JURISDICTION
On November 23, 2009 appellant filed a timely appeal of May 28, 2008 and June 30,
2009 decisions of the Office of Workers’ Compensation Programs denying his claim for a back
injury on May 10, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant sustained a back injury on May 10, 2007 while in the
performance of duty.
FACTUAL HISTORY
On March 25, 2008 appellant, then a 48-year-old special agent, filed a traumatic injury
claim alleging that 10 months earlier, on May 10, 2007, he sustained a back injury when he was
shot with a taser during a training exercise. Donald G. Veal, Jr., the taser instructor, advised that
actual exposure to a taser device was an optional part of the training. Appellant agreed to

participate and received a five-second taser exposure. Mr. Neal noted that he did not report any
pain or injury after the exposure.
On April 1, 2008 the Office requested additional information, including a medical report
containing a diagnosis and a rationalized explanation as to how the diagnosed condition was
causally related to the May 10, 2007 taser incident. No such report was forthcoming.
By decision dated May 28, 2008, the Office denied appellant’s claim on the grounds that
there was no medical evidence establishing that he sustained a back injury on May 10, 2007 as
alleged.
On May 1, 2009 appellant requested reconsideration.
Appellant sought chiropractic treatment beginning August 8, 2007. In an August 28,
2007 patient questionnaire, he stated that he developed neck, shoulder and back pain earlier that
year. Appellant noted that his symptoms began during long drives.
On December 21, 2007 Dr. David A. Dengler, a chiropractor, noted that appellant was
under his care for injuries sustained in a November 28, 2007 motor vehicle accident while on
duty.1
On June 22, 2008 Dr. Barry R. Maron, an attending Board-certified orthopedic surgeon,
provided a report in support of appellant’s application for disability retirement. Following the
May 2007 taser incident, he experienced low back pain. The November 28, 2007 motor vehicle
accident aggravated appellant’s condition. Dr. Maron also diagnosed major depression and posttraumatic stress disorder.
On August 10, 2008 Dr. Maron reviewed the medical history and provided findings on
physical examination. He noted that on May 10, 2007 appellant participated in an optional
training exercise in which he was shot with a taser in the back. Several weeks later appellant
developed chronic lumbar spine pain. He initially received chiropractic treatment. A
February 8, 2008 magnetic resonance imaging (MRI) scan of appellant’s cervical, thoracic and
lumbar spine was normal. Appellant’s symptoms included aching in the low and mid back and
he experienced urinary problems. On physical examination he had difficulty maintaining a
comfortable body posture. Appellant had a normal forward progression gait but leaned very
slightly to the right side. He could heel and toe walk and could touch his toes with slight
discomfort. Neck and lumbar range of motion was normal. The seated supine, decubitus and
prone examinations elicted slight pain at the bilateral paralumbar areas and sacroiliac areas.
There were no sciatic tension signs elicited and straight leg raising was normal. Dr. Maron
diagnosed dorsolumbar chronic strain pattern and dorsal and lumbar complex pain syndrome.
He theorized that the taser incident on May 10, 2007 caused a musculoskeletal reaction in the
soft tissues creating unusual vulnerability to musculoskeletal stresses. Dr. Maron stated that
taser injuries cause dysfunction, not objective changes on blood studies or contrast radiography.
Small muscle bundles contract upon stimulation by a taser voltage charge and necrose. This
1

Under OWCP file number xxxxxx994, the November 28, 2007 accident was accepted for neck and lumbar
sprains.

2

causes multiple small areas of myonecrosis which eventually become scars. Muscles which
cannot contract in an efficient and smooth fashion are painful.
By decision dated June 30, 2009, the Office denied modification of the May 28, 2008
decision.
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.2 Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.3 An
employee may establish that the employment incident occurred as alleged but fail to show that
his or her disability or condition relates to the employment incident.
To establish a causal relationship between an employee’s condition and any disability
claimed and the employment event or incident, he or she must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the employee’s
diagnosed condition and the compensable employment factors. The opinion of the physician
must be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.4
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.5
ANALYSIS
The Office accepted the first component of fact of injury, that appellant was shot in the
back with a taser during an optional training exercise on May 10, 2007. The second component
is whether he sustained a medical condition as a result of the incident.
2

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

3

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
5

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

3

The record shows that appellant did not advise his instructor at the time of the May 10,
2007 taser incident that he was injured. Appellant did not file a claim regarding the incident
until 10 months later. He sought chiropractic treatment in August 2007 and indicated that he
developed neck, shoulder and back pain earlier that year due to long drives. Appellant did not
mention the May 10, 2007 taser incident.
Dr. Dengler noted that he treated appellant for a November 2007 motor vehicle accident.
No mention was made of the May 10, 2007 taser incident.
Dr. Maron did not examine appellant until June 2008, more than one year after the
May 10, 2007 taser incident. He advised that several weeks after the May 2007 taser incident, he
developed chronic lumbar spine pain. However, there is no contemporaneous medical evidence
describing a back condition on May 10, 2007 or several weeks later. A February 8, 2008 MRI
scan of appellant’s cervical, thoracic and lumbar spine was normal. His symptoms on
examination by Dr. Maron included aching in the low and mid back and urinary problems. On
physical examination appellant had difficulty maintaining a comfortable body posture but neck
and lumbar range of motion was normal. Different postures elicted slight pain at the bilateral
paralumbar areas and sacroiliac areas but there were no sciatic tension signs elicited and straight
leg raising was normal. Dr. Maron diagnosed dorsolumbar chronic strain pattern and dorsal and
lumbar complex pain syndrome. He theorized that the taser incident caused a musculoskeletal
reaction in the soft tissues that caused dysfunction, not objective changes on blood studies or
contrast radiography. However, Dr. Maron’s opinion is speculative. He did not provide a
definite diagnosis and a rationalized explanation as to how the May 10, 2007 taser incident
caused appellant’s back condition. Such a reasoned medical explanation is particularly
important in light of the fact that appellant did not file a claim for the May 10, 2007 incident
until March 2008 and did not see Dr. Maron until June 2008. Additionally, there was an
intervening incident, the November 28, 2007 motor vehicle accident. Considering the
circumstances, Dr. Maron’s reports are not sufficient to establish that appellant sustained a workrelated back injury on May 10, 2007.
The Board finds that the evidence is insufficient to establish that appellant sustained a
back injury on May 10, 2007 while in the performance of duty.
CONCLUSION
The Board finds that appellant failed to establish that he sustained an injury on May 10,
2007 while in the performance of duty.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 30, 2009 and May 28, 2008 are affirmed.
Issued: September 17, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Staten Island, NY, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0542
Issued: November 1, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 19, 2018 appellant, through counsel, filed a timely appeal from a
September 21, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.3

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
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its September 21, 2017 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. 20 C.F.R.
§ 501.2(c)(1). Therefore, the Board is precluded from considering this additional evidence for the first time on appeal.
Id.

ISSUE
The issue is whether appellant met her burden of proof to establish a lumbar condition
causally related to the accepted July 16, 2015 employment incident.
FACTUAL HISTORY
On August 4, 2015 appellant, then a 29-year-old city carrier assistant filed a recurrence
claim (Form CA-2a) under OWCP File No. xxxxxx208, alleging due to a change/worsening of her
accepted work-related lumbar condition.4 She stated that on July 16, 2015 she felt excruciating
pain in her lower back when she attempted to lift a package to place it in a bucket while in the
performance of her federal employment duties. Appellant did not stop work.
By letter dated August 17, 2015, OWCP informed appellant that it had administratively
converted the claim for recurrence to a claim for a new traumatic injury. It noted that the
circumstances described on her claim form indicated that she had experienced a new injury, rather
than a spontaneous worsening of her work-related condition without new injury or exposure to
work factors. The new claim was assigned OWCP File No. xxxxxx965.5
Evidence provided with the claim included a July 20, 2015 physical therapy note and a
July 20, 2015 report from Lindsay Martino, certified physician assistant. In her July 20, 2015
progress note, she noted the history of appellant’s January 18, 2015 employment injury and that
appellant had returned to work in a lighter-duty position. Appellant indicated that her back pain
had intensified with no new injuries reported. Ms. Martino noted that appellant should reduce her
lifting in order to alleviate her current pain and promote continued healing. In a July 20, 2015
attending physician’s report (Form CA-20), she noted the date of injury as January 18, 2015 and
diagnosed lumbar facet arthrosis and radiculitis. Ms. Martino indicated that appellant could return
to light-duty work with restrictions on lifting and carrying. She also completed a July 20, 2015
duty status report (Form CA-17), which indicated the date of injury as January 18, 2015.
By development letter dated August 31, 2015, OWCP informed appellant of the type of
factual and medical evidence needed to establish her claim. It also provided her a questionnaire
to complete regarding the factual description of her claim. OWCP afforded appellant 30 days to
submit the necessary evidence. No additional evidence was received.
By decision dated October 2, 2015, OWCP denied the claim, finding that the evidence of
record was insufficient to establish that the claimed event(s) occurred as alleged.
On July 27, 2016 appellant, through counsel, requested reconsideration. Evidence received
in support of the reconsideration request included appellant’s completed questionnaire and a
November 7, 2016 statement from the employing establishment, which indicated that on July 16,
4

Under OWCP File No. xxxxxx208, the master file, OWCP accepted a January 18, 2015 traumatic injury for
lumbar radiculitis and cervical radiculitis.
5
OWCP File Nos. xxxxxx208 and xxxxxx965 have been administratively combined, with File No. xxxxxx208
serving as the master file.

2

2015 she was working within the restrictions provided by her treating physician when she lifted a
package that weighed between 20 to 25 pounds. A copy of her June 23, 2015 modified assignment
was also provided.
In medical reports dated March 4 and 9, 2016, Dr. Nakul Gupta, a Board-certified
anesthesiologist, reported that on July 15, 2015 appellant injured her back when she picked up a
heavy package. He indicated that she had a “mild partial disability” and was working part time.
Dr. Gupta provided examination findings and diagnosed lumbar degenerative disc disease. He
noted that a new magnetic resonance imaging (MRI) scan showed degenerative disc disease at
L5-S1.
In a March 24, 2016 report, Dr. Anthony J. Alastra, a Board-certified neurologist, reported
that appellant was involved in a work-related accident on July 16, 2015 when she picked up a
heavy package and felt a twinge in her back. He indicated that she had no significant past medical
or surgical history and that she continued to work on a part time basis with a mild partial disability.
Dr. Alastra reviewed the February 20, 2016 MRI scan, reported examination findings and
diagnosed lumbar spondylosis, lumbar traumatic disc disease, lower back pain, and left L5-S1
radiculopathy. He opined that appellant appeared to have a work-related injury with findings of
L5-S1 traumatic spondylosis, which caused lumbar sacral pain and concordant L5-S1 radicular
symptomatology into the buttocks and left lower extremity. Dr. Alastra also opined that she was
a surgical candidate.
In an April 1, 2016 report, Dr. Nilay Shah, a neurologist, noted appellant’s date of injury
as January 18, 2016. He diagnosed spondylosis without myelopathy or radiculopathy, lumbar
region.
In medical reports dated April 8 and May 6, 2016, Dr. Nakul Mahajan, a Board-certified
anesthesiologist, reported that on July 15, 2015 appellant injured her back when she picked up a
heavy package. He indicated that she had a mild partial disability and was working part time.
Dr. Mahajan provided examination findings and diagnosed lumbar degenerative disc disease.
In a July 19, 2016 report, Dr. Alastra noted that appellant’s MRI scan and flexion-extension
studies indicated a traumatic injury at L5-S1 in the form of severe arthrosis, which caused disc
injury, facet injury, and foraminal narrowing, and resulted in the S1 radiculopathy seen on
examination. He opined that her traumatic-induced spondylosis was related to her July 16, 2015
employment incident.6 Dr. Alastra noted that appellant was an excellent candidate for a lumbar
fusion and that she continued to have a temporary total disability and was unable to return to work.
By decision dated November 29, 2016, OWCP modified the October 2, 2015 decision to
reflect that appellant has established that the claimed incident occurred. However, it continued to
deny the claim as appellant failed to establish causal relationship between her diagnosed lumbar
conditions and the accepted employment incident of July 16, 2015.

6

In the undated letter, Dr. Alastra provided an injury date of July 26, 2015.

3

On December 13, 2016 appellant, through counsel, requested reconsideration. He
indicated that OWCP did not evaluate Dr. Alastra’s August 25, 2016 letter, which was previously
submitted. Counsel resubmitted a copy of the letter.
In his August 25, 2016 letter, Dr. Alastra indicated that appellant was injured on the job on
July 26, 2015 when she picked up a heavy package and felt an immense pain in her back with
radiation into the left side and left lower extremity consistent with a S1 radiculopathy. He noted
that workup, which included a lumbar spine MRI scan and flexion-extension x-rays, showed that
she has traumatic spondylosis of L5-S1 with findings consistent with a traumatic injury to that
spinal segment. The findings were documented as loss of disc height, disc bulging, left greater
than right formaminal narrowing, interfacet fluid, and the movement at the L5-S1 space.
Dr. Alastra discussed appropriate surgical treatment and indicated that surgical intervention was
secondary to the segmental injury of the spine caused from the on-the-job accident. He opined
that appellant continued to have a temporary total disability and was unable to return to work.
By decision dated September 21, 2017, OWCP denied modification of its previous
decision. It found that the medical evidence of record was insufficient to establish that the accepted
employment incident caused or aggravated her diagnosed back conditions as it failed to
differentiate between the effects of the work-related injury and any preexisting conditions.
LEGAL PRECEDENT
An employee seeking compensation under FECA7 has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,8 including that he or she is an employee within the meaning of FECA, and that the claim
was filed within the applicable time limitation.9 The employee must also establish that he or she
sustained an injury in the performance of duty as alleged, and that disability from work, if any,
was causally related to the employment injury.10
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that the employment incident occurred at the time, place, and in
the manner alleged. Second, the employee must submit medical evidence to establish that the
employment incident caused a personal injury.11

7

Supra note 2.

8

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

9

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

10
Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989). OWCP regulations define a traumatic injury as a condition
of the body caused by a specific event or incident or series of events or incidents within a single workday or shift.
20 C.F.R. § 10.5(ee). OWCP regulations define the term occupational disease or illness as a condition produced by
the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
11

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

4

Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.12 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.13
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.14
In any case where a preexisting condition involving the same part of the body is present,
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation and
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish causal
relationship between her diagnosed lumbar conditions and the accepted employment incident of
July 16, 2015.
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically sound explanation of how the accepted
employment incident caused or aggravated the claimed condition.16 The Board finds that no
physician did so in this case.
Dr. Shah’s April 1, 2016 report incorrectly identified January 18, 2016 as the date of injury,
and did not include an opinion regarding the cause of the diagnosed spondylosis without
myelopathy or radiculopathy, lumbar region. Medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.17
Similarly, the reports from Dr. Gupta, Dr. Mahajan, and Dr. Alastra also failed to offer a
rationalized explanation of the causal relationship, if any, between appellant’s diagnosed

12

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

13

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

14

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

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

16

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

17

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

5

conditions and the accepted July 16, 2015 employment incident. As such, these reports are
insufficient to establish causal relationship.18
Dr. Gupta, in medical reports dated March 4 and 9, 2016, and Dr. Mahajan, in medical
reports dated April 8 and May 6, 2016, diagnosed lumbar degenerative disc disease. He indicated
that a new MRI scan showed degenerative disc disease at L5-S1. Both physicians reported an
incorrect date of injury of July 15, 2015, but included a specific history of injury of appellant
injuring her back when she picked up a heavy package. However, neither physician provided a
medical explanation of how the diagnosed conditions physiologically resulted from the accepted
July 16, 2015 work incident. Absent an explanation, the reports from Dr. Gupta and Dr. Mahajan
are insufficient to establish causal relationship.19 The need for rationalized medical opinion
evidence is particularly important in this case since appellant had a preexisting back injury
approximately seven months prior.20
Dr. Alastra’s reports are similarly insufficient to establish causal relationship. In his
March 24, 2016 report, he diagnosed lumbar spondylosis, lumbar traumatic disc disease, lower
back pain, and left L5-S1 radiculopathy. Dr. Alastra reported a correct date of injury of July 16,
2015 and included a specific history of the injury. He indicated, however, that appellant had no
significant past medical or surgical history. The Board has held that medical reports must be based
on a complete and accurate factual and medical background. Medical opinions based on an
incomplete or inaccurate history are of limited probative value.21 Furthermore, while Dr. Alastra
opined that appellant “appeared to have a work-related injury” with consistent findings of L5-S1
traumatic spondylosis, this opinion is equivocal22 and lacks a well-reasoned explanation of how
the event of picking up a heavy package caused a change in her disability status or caused or
aggravated the diagnosed conditions.23 Thus, his reports are insufficient to establish appellant’s
claim.
In a July 19, 2016 report and an August 25, 2016 letter, Dr. Alastra discussed findings and
opined, without explanation, that appellant’s traumatic-induced spondylosis was related to her
July 16, 2015 accident.24 However, such generalized statements do not establish causal

18

Supra note 16.

19

See J.M., Docket No. 17-1002 (issued August 22, 2017).

20

See supra note 15.

21

C.L., Docket No. 14-1585 (issued December 16, 2014); J.R., Docket No. 12-1099 (issued November 7, 2012);
Douglas M. McQuaid, 52 ECAB 382 (2001).
22

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
23

J.I., Docket No. 15-0516 (issued September 21, 2015).

24

In the undated letter of medical necessity, Dr. Alastra provided an incorrect date of injury of July 26, 2015.

6

relationship because it is unsupported by adequate medical rationale.25 Medical opinions which
contain no supporting rationale are of little probative value.
The record also includes a physical therapy note and July 20, 2015 reports from
Ms. Martino, a certified physician assistant. The Board has held that reports from a physical
therapist and a physician assistant lack probative value as those health care providers are not
considered physicians under FECA.26
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor the
belief that her condition was caused, precipitated, or aggravated by her employment is sufficient
to establish causal relationship. Causal relationship must be established by rationalized medical
opinion evidence.27 The case record does not contain such evidence, and therefore has not met her
burden of proof.
On appeal, counsel contended that Dr. Alastra’s August 25, 2016 report is sufficient to
establish prima facie evidence of the traumatic injury as he explained findings consistent with
traumatic arthrosis and injury to the lumbar segment and opined that surgical intervention was
“secondary to a segmental injury of the spine caused from an on-the-job accident.” However, as
previously noted, Dr. Alastra failed to provide medical rationale explaining how the employment
incident would have physiologically caused or aggravated the diagnosed conditions. It is
appellant’s burden of proof to provide rationalized medical opinion evidence explaining how or
why the accepted July 16, 2015 employment incident either caused or contributed to her diagnosed
lumbar conditions.
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 lumbar
condition causally related to the accepted July 16, 2015 employment incident.

25

See G.O., Docket No. 16-0311 (issued June 14, 2016); K.W., Docket No. 10-0098 (issued September 10, 2010).

26
See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).
27

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

7

ORDER
IT IS HEREBY ORDERED THAT the September 21, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Zephyrhills, FL, Employer
__________________________________________

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

Docket No. 15-1319
Issued: December 8, 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 May 26, 2015 appellant filed a timely appeal from a December 8, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
total disability from June 4 to 17, 2014 causally related to her October 26, 2010 employment
injuries.
On appeal, appellant contends that she was disabled for work during the claimed period
as a result of the treatment she received for her continuing employment-related residuals. She
asserts that she sustains a recurrence of disability every year as a result of this treatment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on October 26, 2010 appellant, then a 44-year-old rural mail carrier,
sustained a lumbar strain and sprain, and inflamed lumbar facet joints while in the performance
of duty.
On May 1, 2013 OWCP accepted a recurrence of disability on March 25, 2013. It paid
compensation benefits for total disability through June 15, 2013 when she returned to full-time
full-duty work.
On June 9, 2014 appellant filed a claim for compensation (Form CA-7) for leave without
pay (LWOP) from June 4 to 17, 2014.
In a June 6, 2014 medical report, Dr. Ashraf F. Hanna, an attending Board-certified
anesthesiologist, noted that appellant presented for a follow-up evaluation of her low back pain
and chronic pain. He provided a history of her social background and medical treatment.
Dr. Hanna provided findings on physical examination and diagnosed chronic pain, lumbar
myofascial pain, sacroilitis, spinal enthesopathy, facet syndrome, and thoracic and lumbosacral
neuritis or radiculitis. He addressed appellant’s pain management plan and advised that he could
not predict with any medical degree of certainty whether her symptoms would progress or
worsen over time. In a June 6, 2014 return to work slip, Dr. Hanna advised that appellant could
not work from June 4 to 17, 2014.
By letter dated June 20, 2014, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that she submit rationalized medical evidence
explaining why she was totally disabled from work due to her accepted conditions.
In a June 12, 2014 surgical report, Dr. Hanna described appellant’s radiofrequency
lesioning of the right L2, L3, L4, and L5 median branch nerves and radiofrequency of the right
sacral alar notch with fluoroscopic guidance to treat her lumbar facet joint disease and lumbar
spondylosis. In a July 11, 2014 report, he noted that she presented for a follow-up evaluation of
her low back pain and chronic pain. Dr. Hanna provided findings on physical examination, and
diagnosed discogenic syndrome and displacement of lumbar intervertebral disc without
myelopathy. In another report dated July 11, 2014, he indicated that appellant received a right
sacral tuberous ligament injection to treat her SI joint pain. On July 24, 2014 Dr. Hanna noted
that she was first seen in his office on December 3, 2010 for the October 26, 2010 employment
injury.
In an August 5, 2014 decision, OWCP denied appellant’s claim for compensation from
June 4 to 17 2014, finding that the medical evidence did not establish total disability during the
claimed period due to her accepted October 26, 2010 employment injuries.
On November 2, 2014 appellant requested reconsideration.
In a September 2, 2014 report, Dr. Hanna addressed the need for appellant to continue to
receive sacroiliac injections to properly address her approved work-related lumbar spine sprain,
lumbosacral spondylosis, and lumbar disc displacement. In an October 13, 2014 report, he
reiterated that she had accepted diagnoses of sprain of the lumbar region, lumbosacral
2

spondylosis, and lumbar disc displacement. Dr. Hanna requested that appellant be excused from
work from June 4 to 17, 2014 due to severe pain that was and continued to be directly related to
her work injury. He indicated that she was scheduled to undergo a radiofrequency ablation at the
right L2-5 levels on June 12, 2014. Dr. Hanna advised that it was medically necessary for
appellant to have time off work due to increased pain that directly stemmed from her October 26,
2010 work injury. Appellant had to be off work because she was not able to sit, stand, or walk
for a prolonged time due to her disabling pain. She also needed time off work to recover from
the procedure. Dr. Hanna reviewed imaging test results and noted that a physical examination
showed significant tenderness of the lumbar spine, muscle spasms, and decreased range of
motion.
In an October 2, 2014 report, Dr. James B. Billys, a Board-certified orthopedic surgeon,
noted that appellant was doing quite well following a facet rhizotomy and injections as she had
minimal complaints of pain. He provided findings on examination and advised that she could
continue with her usual and customary duties at work.
In a December 8, 2014 decision, OWCP denied modification of the August 5, 2014
decision finding the medical evidence submitted was insufficient to establish a material
worsening of appellant’s accepted October 26, 2010 employment injuries.
LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations provide that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.2
OWCP procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from a previous injury or occupational illness rather than an intervening
injury or new exposure to factors causing the original illness. It does not include a condition that
results from a new injury, even if it involves the same part of the body previously injured.3
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.4 Where no such rationale is present, the medical evidence is of diminished probative
value.5
2

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(c)(5) (June 2013).

4

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.104.

5

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

3

ANALYSIS
OWCP accepted that appellant sustained a traumatic lumbar strain and sprain, and
inflamed lumbar facet joints while in the performance of duty on October 26, 2010. It
subsequently accepted that she sustained a recurrence of disability on March 25, 2013.
Appellant returned to full-time regular duty on June 15, 2013.
Appellant filed a Form CA-7 for compensation for LWOP on June 9, 2014, alleging that
from June 4 to 17, 2014 she became disabled due to her accepted October 26, 2010 work
injuries. The Board finds that she has failed to submit sufficient reasoned medical evidence to
establish that her disability in June 2014 was causally related to her October 26, 2014
employment injuries.
Appellant submitted reports from her attending physician, Dr. Hanna. In a June 6, 2014
return to work slip, Dr. Hanna advised that she could not work from June 4 to 17, 2014. In an
October 13, 2014 report, he requested that appellant be excused from work from June 4 to 17,
2014 due to severe pain that was and continued to be directly related to her accepted work injury.
Dr. Hanna noted that it was medically necessary for her to have time off work as she was not
able to sit, stand, or walk for a prolonged time due to her disabling pain and she needed time to
recover from a radiofrequency ablation at the right L2-5 levels performed on June 12, 2014.
Although he supported that appellant was disabled during the claimed period, his reports did not
specifically explain how any continuing disability was directly related to the accepted
October 26, 2014 employment injuries or related to the medical procedures. The Board has
found that a medical opinion not fortified with medical rationale is of diminished probative
value.6 Further, the Board notes that contrary to Dr. Hanna’s finding in his October 13, 2014
report, appellant’s claim has not been accepted for lumbosacral spondylosis and lumbar disc
displacement.
Dr. Hanna’s June 6 and 12, 2014 reports addressed appellant’s lumbar conditions and
treatment, but failed to provide a rationalized opinion regarding the causal relationship between
the accepted October 26, 2010 work injuries and her claimed disability. Thus, his reports do not
support her claim of total disability from June 4 to 17, 2014 due to the accepted employment
injuries.7 Similarly, the remaining reports from Dr. Hanna do not contain an opinion relating
appellant’s diagnosed lumbar conditions and claimed disability to the accepted employment
injuries. As such, these reports are of diminished probative value on the issue of whether
appellant was disabled from June 4 to 17, 2014.8
Likewise, Dr. Billys’ October 2, 2014 report which addressed appellant’s treatment and
ability to perform her usual and customary work duties is insufficient to establish her claim for a

6

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

7

Id.

8

Id.

4

recurrence of disability. He did not provide an opinion stating that she was totally disabled for
work from June 4, to 17, 2014 due to her accepted work injuries.9
Accordingly, the Board finds that appellant has not met her burden of proof to establish
that the period of total disability from June 4 to 17, 2014 was caused by or related to the
October 26, 2014 employment injuries.
On appeal, appellant contends that she was disabled for work during the claimed period
as a result of the treatment she received for her continuing employment-related residuals. She
asserts that she sustains a recurrence of disability every year as a result of this treatment.
However, as discussed above, the medical evidence is insufficient to establish that the treatment
requiring appellant to be off work is related to the accepted conditions.
Appellant may submit new evidence to OWCP with a written request for reconsideration
within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of total disability from June 4 to 17, 2014 causally related to her October 26, 2010 employment
injuries.

9

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the December 8, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 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
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0099
Issued: June 20, 2019

Case Submitted on the Record

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

JURISDICTION
On October 17, 2018 appellant, through counsel, filed a timely appeal from an April 20,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from the last merit decision dated June 6, 2017, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks 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 OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 21, 2015 appellant, then a 58-year-old customer service representative (call
center),3 filed a traumatic injury claim (Form CA-1), alleging that he injured his neck, left hip, and
left wrist while in the performance of duty on December 14, 2015 when the hydraulic lift on the
chair he was sitting in failed to suspend his weight, causing him to injure himself.
By decisions dated February 9 and April 14, 2016, OWCP denied the claim, finding that
the factual evidence of record was insufficient to establish that the December 14, 2015
employment incident occurred as alleged.
Appellant subsequently requested reconsideration. By decision dated August 29, 2016,
OWCP modified its prior decisions to find that he had established fact of injury. However, the
claim remained denied as the medical evidence of record was insufficient to establish causal
relationship between appellant’s diagnosed condition(s) and the accepted December 14, 2015
employment incident.
Appellant again requested reconsideration. By decisions dated December 8, 2016 and
April 7 and June 6, 2017, OWCP denied modification of its prior decisions.
Appellant subsequently submitted reports dated May 18 and August 5, 2015, March 30,
2016, and January 11, 2017 from Dr. Jeff Traub, a Board-certified orthopedic surgeon, who
diagnosed left shoulder impingement, cervical radiculopathy, and degenerative changes of the
cervical spine. An October 12, 2015 magnetic resonance imaging (MRI) scan of the left shoulder
which showed stress-induced osteoedema at the clavicular and acromial ends.
Appellant also submitted a narrative statement dated October 6, 2016 from him reiterating
the factual and medical histories of his claim.
On April 2, 2018 appellant requested reconsideration and submitted multiple narrative
statements reiterating the factual and medical histories of his claim. This submission included a
narrative statement dated March 27, 2018 and a resubmission of his narrative statement dated
October 6, 2016, accompanied by photographs of his old and new (hydraulic) office chairs.
Appellant also submitted a September 19, 2007 report from Dr. William Vanderyt, a
Board-certified orthopedic surgeon, who diagnosed lateral epicondylitis of left elbow and
indicated that appellant was reaching mail with his left arm constantly. Additionally, Dr. Vanderyt
submitted a September 29, 2016 report from Countiss Williams, a nurse practitioner, who
diagnosed neck pain and upper extremity radiculopathy secondary to C5-6 disc herniation and
impingement syndrome, bilateral shoulders, and asserted that appellant had related that the
3

Appellant previously worked for the employing establishment as a city carrier.

2

hydraulics of his work chair constantly malfunctioned, causing it to lower suddenly and result in
neck pain.
Appellant further resubmitted reports dated May 18 and August 5, 2015, March 30, 2016,
and January 11, 2017 from Dr. Traub and an October 12, 2015 MRI scan of the left shoulder.
By decision dated April 20, 2018, OWCP denied appellant’s request for reconsideration of
the merits of his claim finding that he failed to advance a relevant legal argument or submit relevant
and pertinent new evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In his April 2, 2018 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. Moreover, he also did not advance a
relevant legal argument.

4
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

3

On reconsideration, appellant reiterated the factual and medical history of his claim in a
number of narrative statements, including a narrative statement dated March 27, 2018 and a
resubmission of his narrative statement dated October 6, 2016 to which he attached photographs.
These contentions are not legal arguments addressing the underlying issue of whether he submitted
sufficient medical evidence to establish a causal relationship between his diagnosed condition(s)
and the accepted December 14, 2015 sitting incident at work. The Board has held that the
submission of an argument which does not address the particular issue involved does not constitute
a basis for reopening a case. As such, appellant’s statements are irrelevant to the claim and do not
comprise a basis for reopening the case on its merits.9
Accordingly, appellant is not entitled to a review of the merits of her claim based on the
first and second above-noted requirements under section 10.606(b)(3).
The Board also finds that appellant failed to submit relevant and pertinent new evidence
not previously considered by OWCP. The underlying issue on reconsideration was causal
relationship, which requires submission of relevant medical evidence.10 Appellant submitted a
September 19, 2007 report from Dr. Vanderyt, which predates the date of the alleged injury in the
present claim. As this evidence did not address the relevant issue on reconsideration, it is
insufficient to warrant further merit review.11 Appellant also submitted a September 29, 2016
report from a nurse practitioner. This report does not constitute competent medical evidence
because a nurse practitioner is not considered a “physician” as defined under FECA.12 Certain
healthcare providers such as physician assistants, nurse practitioners, physical therapists, and
social workers are not considered “physician[s]” as defined under FECA.13 Consequently, their
medical findings and/or opinions will not suffice for purposes of establishing entitlement to
compensation benefits.
Appellant resubmitted reports from Dr. Traub dated May 18 and August 5, 2015,
March 30, 2016, and January 11, 2017 and an October 12, 2015 MRI scan, which were already of
the record. Submitting evidence that repeats or duplicates evidence already in the case record,
does not constitute a basis for reopening a case.14 Therefore, Dr. Traub’s May 18 and August 5,
2015, March 30, 2016, and January 11, 2017 reports are insufficient to require OWCP to reopen
the case for merit review.

9

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

10

See Bobbie F. Cowart, 55 ECAB 746 (2004).

11

D.K., 59 ECAB 141, 147 (2007).

12

5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants); 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).
13

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

14
See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35
ECAB 1090, 1093-94 (1984).

4

The Board accordingly finds that appellant has not met any of the requirements of
10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 20, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 20, 2019
Washington, DC

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

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

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

15
A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Needham, MA, Employer
__________________________________________
Appearances:
John L. Whitehouse, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 14-300
Issued: May 12, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
On November 25, 2013 appellant, through his attorney, filed a timely appeal from the
October 3, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his request for reconsideration of a July 13, 2012 merit decision on the grounds that it
was untimely filed and failed to establish clear evidence of error. On appeal, appellant’s attorney
contends that appellant’s request for reconsideration was timely filed and that, therefore, OWCP
improperly reviewed the reconsideration request under the standard for untimely requests. The
Board docketed the appeal as No. 14-300.
The Board has reviewed the case record on appeal and finds that the case must be
remanded to OWCP for application of the appropriate standard of review because appellant’s
request for reconsideration was timely submitted.
OWCP accepted appellant’s claim for small plantar calcaneal spur of the left heel and left
tibialis tendinitis. By decision dated May 16, 2011, it terminated his benefits effective
June 4, 2011. In a decision dated December 15, 2011, OWCP’s hearing representative affirmed
the termination of benefits, but remanded for OWCP to undertake further development of the
evidence and to issue a de novo decision on the issue of whether the claim should be expanded
for a consequential back injury and, if so, whether appellant was entitled to wage-loss
compensation due to the disability caused by the consequential injury. In a decision dated
July 13, 2012, OWCP denied his request for expansion of his claim to include a consequential

injury. In an appeal request form dated July 5, 2013 and received by OWCP on July 15, 2013,
appellant requested reconsideration. In a decision dated October 3, 2013, it denied his request
for reconsideration on the grounds that it was untimely filed.
The Board has considered the matter and finds that the request for reconsideration
received on July 15, 2013 constituted a timely request for reconsideration. 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’s decision for which review is sought.1 The Board has
held that, in computing a time period, the date of the event from which the designated period of
time begins to run shall not be included while the last day of the period so computed shall be
included, unless it is a Saturday, a Sunday or a legal holiday.2 The last merit decision in this case
is dated July 13, 2012 and appellant’s request for reconsideration was received by OWCP on
July 15, 2013.
Appellant had one year from the July 13, 2012 decision to request
reconsideration. The Board notes, however, that July 13, 2013 fell on a Saturday. It is well
established that when a time limitation expires on a nonbusiness day, the limitation is extended
to include the next business day.3 Therefore, because the time limitation for filing a request for
reconsideration fell on Saturday, the time period for filing a request for reconsideration did not
expire until the next business day, which was Monday, July 15, 2013.
The Board concludes that appellant’s request for reconsideration was received by the
close of business on July 15 2013, rendering it timely filed. The case will be remanded to
OWCP for consideration of appellant’s request under the standard for reviewing a timely request
for reconsideration.4

1

20 C.F.R. § 10.607(a).

2

John B. Montoya, 43 ECAB 1148, 1151 (1992); see Donna A. Christley, 41 ECAB 90, 91 (1989).

3

See M.H., Docket No. 13-1901 (issued January 8, 2014); Debra McDavid, 57 ECAB 149, 150 (2005); Angel M.
Lebron, Jr., 51 ECAB 488, 490 (2000); Gary J. Martinez, 41 ECAB 427, 427-28 (1990); FECA Program No. 250
(issued January 29, 1979).
4

The standard is found at 20 C.F.R. § 10.606(b)(3).

2

IT IS HEREBY ORDERED THAT the October 3, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded to OWCP for application
of the proper standard for reviewing a timely request for reconsideration.
Issued: May 12, 2014
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Broomfield, CO, Employer
__________________________________________

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

Docket No. 19-0498
Issued: October 3, 2019

Case Submitted on the Record

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

JURISDICTION
On January 8, 2019 appellant filed a timely appeal from a November 20, 2018 merit
decision and a December 10, 2018 nonmerit 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
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty on September 30, 2018, as alleged; and (2) whether OWCP

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 10, 2018 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.

properly denied appellant’s request for reconsideration of the merits of her claim pursuant to 5
U.S.C. § 8128(a).
FACTUAL HISTORY
On October 9, 2018 appellant, then a 56-year-old PSE mail processing clerk, filed a
traumatic injury claim (Form CA-1) alleging that, while in the performance duty on September 30,
2018, she sustained a mental breakdown, severe headache, and anxiety as a result of her coworker
deriding her ability to perform her employment duties. On the reverse side of the claim form the
employing establishment indicated that appellant stopped work on October 1, 2018.
In a development letter dated October 11, 2018, OWCP informed appellant of the
deficiencies of her claim. It advised her of the factual and medical evidence needed to establish
her claim and provided a questionnaire for her completion which contained specific questions
about the alleged employment incident, whether she filed an administrative complaint, and her
mental health history. OWCP afforded appellant 30 days to submit the necessary evidence.
In a separate development letter of the same date, OWCP notified the employing
establishment of appellant’s claim and requested comments from a knowledgeable supervisor
regarding the accuracy of her statement. It requested submission of the requested evidence within
30 days.
In a letter dated October 17, 2018, the employing establishment controverted appellant’s
claim. It noted that the alleged incident did not meet FECA guidelines to be classified as a
traumatic injury in the performance of her duties. The employing establishment indicated that
appellant’s supervisor instructed her to not scan parcels and undeliverable bulk business mail until
her area was cleared and set up. It related that appellant put down a parcel and left her station,
returned a few minutes later, and stated that she was leaving because she had a headache. The
employing establishment noted that appellant claimed that her supervisor was discriminat ing
against her. It indicated that she made several vague allegations, but had not provided probative
factual evidence to demonstrate the occurrence of her alleged events.
In a letter dated October 5, 2018, received by OWCP on November 8, 2018, the employing
establishment related that it had performed an investigative interview with appellant.
In a letter dated October 22, 2018, Dr. Jae Lee, an osteopath, indicated that appellant had
a fainting episode at work on August 6, 2018 because the air conditioning was not working at her
workplace. She noted that appellant complained of a headache and dizziness, and diagnosed postconcussive syndrome related to her fainting at work.
By decision dated November 20, 2018, OWCP denied appellant’s claim, finding that she
had not submitted evidence sufficient to establish that the events alleged occurred in the
performance of duty as she described. It also found that she had not submitted medical evidence
containing a diagnosis in connection with the alleged incident. OWCP concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA.
On November 30, 2018 appellant requested reconsideration of OWCP’s November 20,
2018 decision.
2

In support of her request appellant submitted an x-ray report dated October 11, 2018 by
Dr. Brendan F. Essary, a diagnostic radiologist, who indicated that she complained of chest pain
and shortness of breath. He noted an impression of no radiographic evidence for acute
cardiopulmonary disease.
By decision dated December 10, 2018, OWCP denied appellant’s
reconsideration of the merits of her claim.

request for

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 5
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.6
Appellant’s burden of proof includes the submission of a detailed description of the
employment factors which he or she believes caused or adversely affected a condition for which
compensation is claimed. 7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.8 There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. 9 On the other hand, the disability
3

5 U.S.C. § 8101 et seq.

4

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

5

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
6

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
7

P.T., Docket No. 14-0598 (issued August 5, 2014).

8

See L.H., supra note 7; L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

9

See S.K., supra note 6; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3

is not covered when it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty on September 30, 2018, as alleged.
The only explanation that appellant provided pertaining to her alleged traumatic incident
was the limited statement noted in her Form CA-1 where she alleged that a coworker derided her
ability to perform her employment duties. By failing to sufficiently describe the employment
incident and circumstances surrounding her alleged injury, appellant has not established that a
traumatic injury occurred at the time, place, and in the manner alleged. 11 In an October 11, 2018
development letter, OWCP advised her of the type of factual information needed to establish her
claim. An attached questionnaire included questions regarding the alleged traumatic event itself
and inquired into her mental health history. Appellant did not respond to OWCP ’s request for
additional factual information. 12 Accordingly, the Board finds that she has not met her burden of
proof.13
As appellant has not established the factual element of her claim, the Board need not
address whether the medical evidence of record is sufficient to establish a diagnosed medical
condition causally related to the employment incident, as alleged. 14
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To be entitled to a merit review under FECA section 8128(a) of an OWCP decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
the date of that decision. 15 OWCP’s regulations provide that the evidence or argument submitted
by a claimant must: (1) show that OWCP erroneously applied or interpreted a specific point of
law; (2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute

10

See S.K., id.; Gregorio E. Conde, 52 ECAB 410 (2001).

11

Id.

12

K.S., Docket No. 17-2001 (issued March 9, 2018); see also K.W., Docket No. 16-1656 (issued
December 15, 2016).
13

See D.C., Docket No. 18-0082 (issued July 12, 2018); D.D., 57 ECAB 734 (2006).

14

See R.L., Docket No. 17-1670 (issued December 14, 2018); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

15

See H.H., Docket No. 18-1660 (issued March 14, 2019).

4

relevant and pertinent new evidence not previously considered by OWCP. 16 Section 10.608(b) of
OWCP’s regulations provide that when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant has not advanced a relevant legal argument
not previously considered. As such, she is not entitled to a review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(3).
On reconsideration appellant provided a diagnostic report, which related normal
cardiopulmonary findings. The underlying issue in the case was whether appellant had established
that the September 30, 2018 employment incident occurred at the time, place, and in the manner
alleged. As noted, the submission of evidence or argument, which does not address the particular
issue involved, does not constitute a basis for reopening a claim. 18 The Board finds that the
October 11, 2018 x-ray report, which is the only evidence submitted in support of her request for
reconsideration, is irrelevant to the underlying issue as it does not address whether the
September 30, 2018 employment incident occurred at the time, place, and in the manner alleged.
Thus, appellant is not entitled to a review of the merits of her claim based on the third above-noted
requirement under section 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty on September 30, 2018, as alleged. The Board further finds
that OWCP properly denied appellant’s request for reconsideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).

16

M.K., supra note 5; D.K., 59 ECAB 141 (2007).

17

M.K., id.; P.H., Docket No. 18-1020 (issued November 1, 2018); K.H., 59 ECAB 495 (2008).

18

M.E., Docket No. 18-0553 (issued November 5, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the December 10 and November 20, 2018 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 3, 2019
Washington, DC

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

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

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

6


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

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

Docket No. 13-1311
Issued: October 22, 2013

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 May 8, 2013 appellant filed a timely appeal from the April 22, 2013 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 her burden of proof to establish that she sustained an
injury in the performance of duty on February 12, 2013.
FACTUAL HISTORY
In a traumatic injury Form CA-1 signed on February 13, 2013, appellant, a 35 year-old
nursing assistant, alleged that she sustained an injury at work on February 12, 2013. She

1

5 U.S.C. §§ 8101-8193.

indicated that she sustained a seizure during work hours on February 12, 2013.2 Regarding the
cause of the injury, appellant stated, “Seizure -- unknown causes, just wasn’t feeling well.” On
February 14, 2013 her supervisor stated on the supervisor portion of the form, “Injury was not
work related. Employee had a seizure as she was not feeling well. No factors of employment for
injury.” Appellant did not stop work.
In a March 18, 2013 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim for a work-related February 12, 2013 injury. It
requested that appellant complete and return a questionnaire form which contained the following
questions to be answered:
“State where you were and what you were doing at the time your injury occurred.
Provide a detailed description as to how your injury occurred. (For example, if
you fell, state how far you fell, how you landed, etc.)
“Provide statements from any persons who witnessed your injury or had
immediate knowledge of it, or other documentation that supports your claim.
State the immediate effects of the injury and what you did immediately thereafter.
“Since the cause of your seizure is unclear, please respond to the following so that
it can be determined if you were in the performance of duty when injured: What
was determined to have caused your seizure? Did you fall as a result of this
seizure? Do you suffer from a heart condition; a history of epileptic seizures; or
any other similar conditions? If so, please provide a brief description of your
condition(s).
“Was there a hazard or a special condition at work that caused or contributed to
your injury (normal office furnishings, a slippery floor, etc.)? If you fell, did you
strike anything (e.g., a chair, a wall, a desk, etc.) when you fell? If so, please
explain.”3
Appellant submitted a February 13, 2013 report in which an attending physician stated
that appellant reported that she passed out at work on February 12, 2013 while she was getting
ready to start work. She indicated that she felt dizzy and then everything turned dark. Appellant
passed out for less than a minute and her legs, arms and hands were shaking after she woke up.
The physician diagnosed dizziness, and fainting (unconscious for 15 seconds or less) most likely
anxiety related, rule out seizure. He noted that appellant had numerous other active medical
problems but did not identify their causes.
On April 1, 2013 OWCP received a photocopy of the questionnaire which was signed by
appellant on March 28, 2013. However, appellant did not answer any of the questions on the
questionnaire.

2

The incident occurred at 4:00 p.m. during appellant’s regular work hours.

3

OWCP provided appellant 30 days from the date of its development letter to provide additional evidence or
argument and to return the completed questionnaire.

2

In an April 22, 2013 decision, OWCP denied appellant’s claim that she sustained an
injury in the performance of duty on February 12, 2013. Regarding the basis for the denial,
OWCP stated:
“Specifically your case is denied because the evidence is not sufficient to
establish that the event(s) occurred as you described. The reason for this finding
is that you have not attributed your injury to any specific work factor. You have
stated on your [Form] CA-1 that your seizure was due to unknown causes. You
were offered an opportunity to expand on this and to identify specific work
factors that caused your condition; however, you merely signed the questionnaire
without providing any response to the questions asked. The mere fact that your
condition manifested during your normal work shift, does not imply that any work
factor was directly responsible for your injuries.”
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.4 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
It is a well-settled principle of workers’ compensation law, and the Board has so held,
that an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology
causes an employee to collapse and to suffer injury upon striking the immediate supporting
surface and there is no intervention or contribution by any hazard or special condition of
employment -- is not within the coverage of FECA. Such an injury does not arise out of a risk
4

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

5

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990). A traumatic
injury refers to injury caused by a specific event or incident or series of incidents occurring within a single workday or
work shift whereas an occupational disease refers to an injury produced by employment factors which occur or are
present over a period longer than a single workday or work shift. 20 C.F.R. § 10.5 (q), (ee); Brady L. Fowler, 44
ECAB 343, 351 (1992).
6

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
7

John J. Carlone, 41 ECAB 354, 356-57 (1989); see Federal (FECA) Procedure Manual, id.

3

connected with the employment and, therefore, it is not compensable.8 The question of causal
relationship in such cases is a medical one, and must be resolved by medical evidence.9
However, as the Board has made equally clear, the fact that the case of a particular fall cannot be
ascertained, or that the reason it occurred cannot be explained does not establish that it was due
to an idiopathic condition.10 If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall, one which is
distinguishable from a fall in which it is definitely established that a physical condition
preexisted the fall and caused the fall.11
ANALYSIS
In a Form CA-1 signed on February 13, 2013, appellant alleged that she sustained an
injury at work on February 12, 2013 in the form of a seizure. Regarding the cause of the injury,
she stated, “Seizure -- unknown causes, just wasn’t feeling well.” OWCP denied appellant’s
claim indicating that she had not established the factual basis of her claim that she sustained an
injury in the performance of duty on February 12, 2013.
The Board finds that appellant did not establish that she sustained an injury in the
performance of duty on February 12, 2013 due to deficiencies in the factual aspect of her claim.
Despite being provided an opportunity to do so, appellant did not implicate any specific
employment factors in causing her claimed injury on February 12, 2013.12 She merely indicated
that she suffered a seizure while at work without stating the cause of this condition. Appellant
indicated that the seizure was due to “unknown cause” and did not implicate a work-related
reason for the seizure. OWCP requested that appellant complete and return a questionnaire
asking her various questions about her claimed February 12, 2013 injury, but she failed to
complete the questionnaire or otherwise present evidence or argument detailing how
employment factors caused or contributed to her claimed condition.13 Appellant submitted a
February 13, 2013 medical report, but this document does not establish that she implicated any
specific work factors in causing her claimed seizure on February 12, 2013.14

8

Robert J. Choate, 39 ECAB 103, 106 (1987).

9

Amrit P. Kaur, 40 ECAB 848, 853 (1989). The term “injury” as defined by FECA, refers to some physical or
mental condition caused by either trauma or by continued or repeated exposure to, or contact with, certain factors,
elements or conditions. John D. Williams, 37 ECAB 238, 240 (1985).
10

Emelda C. Arpin, 40 ECAB 787, 789 (1989).

11

See Martha G. List (Joseph G. List), 26 ECAB 200, 204-05 (1974). OWCP’s procedure manual indicates that
if a fall is not shown to be caused by an idiopathic condition, it is simply unexplained and is therefore compensable
if it occurred in the performance of duty. An idiopathic fall is one where a personal, nonoccupational pathology
causes an employee to collapse, and an unexplained fall is one where the cause is unknown even to the employee.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.9c (August 1992).
12

See supra notes 4 through 6.

13

Appellant signed and dated the questionnaire but did not answer its questions.

14

The physician diagnosed “fainting” that was most likely anxiety related, but no work factors were implicated.

4

Moreover, there is no indication that appellant sustained an idiopathic injury on
February 12, 2013. She did not provide any indication that she fell to the floor on February 12,
2012, let alone that she fell due to a hazardous condition or that she struck some part of her body
on an intervening object while falling to the floor.15 In the questionnaire sent by OWCP,
appellant was asked to indicate whether she fell on February 12, 2013, but she failed to answer
the questions on the form when provided an opportunity to do so.
For these reasons, appellant has not established that she sustained an injury in the
performance of duty on February 12, 2013. She may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to
5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on February 12, 2013.
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 22, 2013
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

15

See supra notes 8 through 11.

5