United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, EXPRESS MAIL
UNIT, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 11-3
Issued: September 6, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 27, 2010 appellant filed a timely appeal from a May 21, 2010 decision of
the Office of Workers Compensation Programs (OWCP) addressing her request for an additional
schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 more than 59 percent permanent impairment of her
right upper extremity, for which she has received a schedule award.
On appeal appellant contends that she is entitled to an additional schedule award for her
right arm.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a September 16, 2009 decision, the
Board set aside an April 30, 2008 OWCP hearing representative’s decision affirming the denial
of an additional schedule award.2 The Board found the impairment rating by Dr. Ellen Pichey,
an OWCP medical adviser, failed to comport with the American Medical Association, Guides to
the Evaluation of Permanent Impairment (5th ed. 2001). The Board found the medical evidence
was insufficient to allow it to fully visualize the extent of appellant’s impairment due to her
accepted conditions. OWCP was instructed to further develop the medical evidence as to the
extent and nature of the permanent impairment to her right arm. The facts and the circumstances
surrounding the prior appeal are hereby incorporated by reference.3
On remand, OWCP referred appellant to Dr. Aubrey A. Swartz, a second opinion Boardcertified orthopedic surgeon, for an impairment evaluation under the sixth edition of the A.M.A.,
Guides (6th ed. 2009). On January 29, 2010 Dr. Swartz measured range of motion for the right
shoulder of 50 degrees flexion, 110 degrees abduction, 35 degrees adduction, 70 degrees internal
rotation, 90 degrees external rotation and 50 degrees extension. Applying Table 15-34, page
475, he determined that 50 degrees extension yielded no impairment, 50 degrees flexion yielded
a nine percent impairment, 110 degrees abduction yielded a three percent impairment, 35 degrees
adduction yielded a one percent impairment, 90 degrees external rotation yielded no impairment
and 70 degrees internal rotation yielded a two percent impairment. Dr. Swartz added the
impairments due to loss of range of motion to find 15 percent right arm impairment. Using
Table 15-35, page 477, he determined that a 15 percent right shoulder impairment was equivalent
to a grade 2 modifier. Using Table 15-7, page 406, the functional history adjustment was also
equivalent to a grade 2 modifier. Dr. Swartz noted that there was no change of grade modifier
according to Table 15-36, page 477 regarding range of motion and appellant’s QuickDash score
of 58 also suggested grade 2 modifier. Using Table 15-32, page 473, he determined that
appellant had a 21 percent right upper extremity impairment for her -10 to +10 degrees of flexion
and a 9 percent right upper extremity impairment for her 0 to 10 degrees radial deviation.
Dr. Swartz determined that appellant had a two percent impairment using Table 15-23,
page 449 for her carpal tunnel syndrome. He found a grade modifier of one for her test findings,
a grade modifier of one for her history due to mild intermittent symptoms, a grade modifier of
two for her physical examination findings due to decreased sensation and a QuickDash score of
58. Combining the grade modifier results in a total of 4, which is divided by 3 resulting in 1.33
or 1 for a grade modifier. A grade one modifier would result in a default of two percent
impairment. Referring to Table 15-32, page 473, Dr. Schwartz reported that appellant was
ankylosed between 0 and 10 degrees resulting in nine percent impairment. Adding 21 percent to
2

Docket No. 08-1939 (issued September 16, 2009).

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On April 3, 2001 appellant, then a 49-year-old distribution clerk, filed a traumatic injury claim alleging that on
that date she injured her right wrist while throwing flat mail onto a conveyer belt. OWCP accepted the claim for
peripheral enthespathies, right wrist carpal tunnel syndrome, soft tissue disorder and arthrodesis and authorized right
carpal tunnel release surgery, which was performed on April 19, 2002. Appellant returned to work with restrictions
on March 21, 2003. On August 16, 2005 OWCP placed appellant on the periodic rolls for temporary total disability
effective August 7, 2005. Appellant returned to modified full-time duty on August 14, 2006.

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9 percent resulted in 30 percent upper extremity impairment for the right wrist, the equivalent of
a grade 3 modifier, pursuant to Table 15-35, p. 477. Using the Combined Values Chart on page
604, combining the 15 percent impairment of the right shoulder with the 2 percent impairment
for the carpal tunnel syndrome results in a 17 percent impairment which is combined with the 30
percent impairment for the fusion of the right wrist resulting in a total 42 percent right upper
extremity impairment.
On April 16, 2010 Dr. Ellen Pichey, OWCP’s medical adviser, reviewed Dr. Swartz’s
impairment rating and found a 41 percent right upper extremity impairment. She concurred with
Dr. Swartz’s impairment determinations for appellant’s right shoulder and right wrist, but
disagreed with his carpal tunnel assessment. Dr. Pichey explained that she used the diagnosisbased estimate for right wrist fusion, which had the same values as the range of motion methods.
By decision dated May 21, 2010, OWCP denied appellant’s request for an additional
schedule award for her right upper extremity, finding that the medical evidence did not establish
greater impairment.
LEGAL PRECEDENT
Under section 8107 of FECA4 and section 10.404 of the implementing federal
regulations,5 schedule awards are payable for permanent impairment of specified body members,
functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.6
ANALYSIS
The Board notes that before appellant’s most recent claim for an increased schedule
award, she had received compensation for a 59 percent impairment of her right upper extremity.
The question is whether the latest impairment rating from Dr. Swartz, a second opinion Boardcertified orthopedic surgeon, shows that she has a greater right upper extremity impairment. The
Board finds that the medical evidence does not establish greater impairment.
Dr. Swartz applying Table 15-34, page 475, properly determined that 50 degrees
extension yielded no impairment, 50 degrees flexion yielded a nine percent impairment, 110
degrees abduction yielded a three percent impairment, 35 degrees adduction yielded a one
percent impairment, 90 degrees external rotation yielded no impairment and 70 degrees internal
rotation yielded a two percent impairment. He properly added the impairments due to loss of
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404

6

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

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range of motion to find 15 percent right shoulder impairment. Using Table 15-35, page 477,
Dr. Swartz determined consistent with the A.M.A., Guides that a 15 percent right shoulder
impairment was equivalent to a grade 2 modifier. He noted there was no change of grade
modifier according to Table 15-36, page 477 and her QuickDash of 58. Using Table 15-32, page
473, Dr. Swartz properly determined appellant had a 21 percent right upper extremity
impairment for her -10 to +10 degrees of flexion and a 9 percent right upper extremity
impairment for her 0 to 10 degrees radial deviation, resulting in a total 30 percent right upper
extremity impairment for her right wrist. He determined that appellant had a two percent
impairment using Table 15-23, page 449 for her carpal tunnel syndrome. Dr. Swartz found a
grade modifier of one for her test findings, a grade modifier of one for her history due to mild
intermittent symptoms, a grade modifier of two for her physical examination findings due to
decreased sensation and a QuickDash of 58. Combining the grade modifier results in a total of 4,
which, when divided by 3 resulted in 1.33 or 1 for a grade modifier. A grade one modifier would
result in a two percent impairment. Using the Combined Values Chart on page 604, combining
the 15 percent impairment for the shoulder with the 2 percent impairment for the carpal tunnel
syndrome properly resulted in a 17 percent impairment which is combined with the 30 percent
impairment for the right wrist resulting in a total 42 percent right upper extremity impairment,
which is far less than would be necessary to show that appellant should receive more
compensation.
Dr. Pichey properly reviewed Dr. Swartz’s report and concurred with his findings
regarding the right wrist and shoulder, but disagreed with the inclusion of a carpal tunnel
impairment. She found appellant was entitled to a 41 percent right upper extremity impairment.
The medical evidence does not establish more than 59 percent impairment for which appellant
has received a schedule award.
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 is not entitled to an increased schedule award for her right
upper extremity.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 21, 2010 is affirmed.
Issued: September 6, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.E., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Renton, WA, Employer
__________________________________________

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

Docket No. 08-2214
Issued: May 6, 2009

Case Submitted on the Record

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

JURISDICTION
On August 8, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ June 6, 2008 decision affirming the denial of his claim for
compensation. 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 met his burden of proof in establishing that he sustained a
traumatic injury on March 24, 2007 in the performance of duty.
FACTUAL HISTORY
On April 19, 2007 appellant, then a 43-year-old aerospace engineer, filed a traumatic
injury claim alleging that on March 24, 2007 he sustained deep vein thrombosis (DVT) in his
right calf during a flight from Seattle, Washington, to Seoul, South Korea, on his way to attend a

conference in Malaysia.
April 10, 2007.

He stopped work on April 4, 2007 and returned to work on

On April 25, 2007 the Office advised appellant of the factual and medical evidence
necessary to establish his claim and allowed him 30 days to submit additional evidence.
Appellant submitted an April 4, 2007 report of Heather Lien, a nurse practitioner, who
noted that appellant sustained right calf pain the day after a long flight. Ms. Lien diagnosed right
leg pain and right leg DVT. That same day, Dennis Loudenback, a physician’s assistant,
performed a lower extremity venous evaluation. Appellant also submitted an April 4, 2007
report of Dr. Esteban Ambrad-Chalela, a Board-certified surgeon, who noted appellant’s
complaint of right calf pain after waking up on a flight after having slept for five hours.
Dr. Ambrad-Chalela reviewed preliminary reports diagnosing right lower extremity DVT. He
advised anticoagulation treatment. On April 6, 2007 Dr. Michael Rosenfield, an osteopath
specializing in family medicine, noted that appellant had developed a clot. He treated appellant
for side effects from a prescription. On April 9, 2007 Ms. Lien noted that appellant’s right leg
pain and DVT had improved. On April 16, 2007 she opined that appellant’s condition was
caused or aggravated by his air travel.
Appellant also submitted an April 19, 2007 statement explaining that he experienced pain
on March 24, 2007 during a flight between Seattle, Washington, and Seoul, Korea, on his way to
Malaysia. He also noted that he did not seek treatment until he returned from his trip. Also
submitted was a copy of appellant’s travel authorization from the employing establishment.
In a June 5, 2007 decision, the Office denied appellant’s claim. It found that appellant
was in the performance of duty during his flight but that his physician did not explain how his
flight caused his DVT.
In an undated witness statement received on June 12, 2007, Carol Giles, assistant deputy
director of Flight Standards Service, indicated that she had traveled with appellant to Malaysia.
She noted that appellant remarked about leg pain and the possibility that it could be DVT.
On February 26, 2008 Arlene Martin, a physician’s assistant, noted that appellant had
been treated for DVT by Dr. Ambrad-Chalela and that there was an established link between
DVT and air travel.
In an April 14, 2008 report, Dr. Kaj Johansen, a Board-certified vascular surgeon, noted
appellant’s treatment by Dr. Ambrad-Chalela for right calf DVT. He advised that appellant
asked him to address his DVT sustained during a long-haul airplane flight to Korea from Seattle,
Washington. Dr. Johansen advised that a clear link has been established between long-haul air
travel and DVT with an airplane passenger having four times the risk of venous
thromboembolism the first two weeks after a long flight, a flight greater than four hours. He
noted that this estimation was based on studies of frequent travelers, regardless of previous
health risk or familial propensity toward DVT. Dr. Johansen advised that the risk was increased
by 12 percent for an annual traveler of long distances and increased subsequently with more
frequent travel over long distances. He noted that appellant did not previously have a history of
thrombosis, and did not have a family history of DVT or similar conditions. Dr. Johansen

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advised that appellant did not smoke and was physically active, both of which would decrease
his risk of DVT. He opined that appellant’s DVT was a “direct result of his long-haul air travel,
and perhaps further compounded by his regular air travel prior to that event.” Dr. Johansen
attached references to medical articles to support his opinion.
On May 13, 2008 appellant requested reconsideration.
In a decision dated June 6, 2008, the Office denied modification of its June 5, 2007
decision finding that the evidence did not support entitlement to compensation.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; 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 and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
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. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
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 employee.4

1

5 U.S.C. §§ 8101-8193.

2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

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Id.

4

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

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ANALYSIS
The record supports that appellant was on a flight on his way to a conference in Malaysia
on March 24, 2007. However, appellant has not submitted sufficient medical evidence to
establish the flight caused or aggravated a diagnosed medical condition.
The only medical report that supports causal relationship between appellant’s DVT and
his flight to Korea is Dr. Johansen’s April 14, 2008 report. Dr. Johansen commented that a clear
link had been established between long-haul air travel and DVT and provided references to
medical literature. He noted that appellant had no prior history of DVT and did not have a
lifestyle conducive to DVT. Based on this, Dr. Johansen opined that appellant’s DVT was a
“direct result” of his long-haul air travel and “perhaps further compounded” by his previous
regular air travel. The Board finds that Dr. Johansen provided insufficient medical rationale in
support of his opinion.5 While Dr. Johansen indicated that there was a clear link between air
travel and DVT in medical literature, he did not explain the process by which appellant’s travel
on March 24, 2007 would have caused or aggravated DVT, nor did he explain how any of the
referenced medical literature applied to appellant’s situation.6 He also premised his support for
causal relationship by noting that appellant had no prior history of DVT. However, the Board
notes that the mere fact that a condition manifests itself during a period of employment does not
raise an inference that there is a causal relationship between the two.7 Dr. Johansen’s opinion in
support of causal relationship is also couched in speculative terms given that he stated that
appellant’s regular air travel prior to the flight to Korea “perhaps” further compounded
appellant’s condition. The speculative nature of his opinion diminishes its probative value.8
On April 4, 2007 Dr. Ambrad-Chalela noted appellant’s complaint of right calf pain after
waking up on a flight. He further noted that prior medical reports had diagnosed right lower
extremity DVT. However, Dr. Ambrad-Chalela did not specifically address whether appellant’s
DVT was caused or aggravated by his employment-related flight. Medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.9 Additionally, Dr. Rosenfield’s April 6, 2007 report
only noted that appellant had developed a clot. He did not address whether the March 24, 2007
flight caused or aggravated appellant’s condition. As noted, medical evidence without a
physician’s opinion on causal relationship is of limited probative value.

5

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005) (scientific studies, like medical literature,
have probative value only to the extent they are interpreted by a physician rendering an opinion on causal
relationship).
7

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

8

See Kathy Kelley, 55 ECAB 206 (2004) (the Board has held that opinions such as, the implant “may have
ruptured” and that the condition is “probably” related, “most likely” related or “could be” related are speculative and
diminish the probative value of the medical opinion).
9

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

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Furthermore, the reports of physician’s assistants, Mr. Loudenback and Ms. Martin, have
no probative value as medical evidence. The Board has noted that a physician’s assistant is not a
physician as defined under the statute10 and therefore any report from such individual does not
constitute competent medical evidence which, in general, can only be given by a qualified
physician.11 Similarly, reports from Ms. Lien do not constitute medical evidence as nurses are
not “physicians” as defined under the Act and, therefore, their opinions are of no probative
value.12
Consequently, the medical evidence does not establish that appellant’s DVT was caused
or aggravated by his March 24, 2007 flight.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 6, 2008 is affirmed.
Issued: May 6, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
10

5 U.S.C. § 8101(2) (defining the term “physician”).

11

See George H. Clark, 56 ECAB 162 (2004).

12

See Roy L. Humphrey, 57 ECAB 238 (2005); see also Charley V.B. Harley, 2 ECAB 208 (1949) (the Board
held that medical opinion, in general, can only be given by a qualified physician).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Pine Knot, KY, Employer
__________________________________________

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

Docket No. 14-1114
Issued: August 25, 2014

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 April 14, 2014 appellant filed a timely appeal from a February 18, 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 sustained an injury to his lower back in the performance of
duty on January 2, 2014.
FACTUAL HISTORY
Appellant, a 24-year-old correctional officer, filed a claim for benefits on January 9,
2013, alleging that he injured his lower back while responding to a call for assistance on
January 2, 2014.
1

5 U.S.C. § 8101 et seq.

By letter dated January 15, 2014, OWCP informed appellant that it required additional
factual and medical evidence to determine whether he was eligible for compensation benefits. It
asked him to submit a comprehensive medical report from his treating physician describing his
symptoms and the medical reasons for his condition, and an opinion as to whether his claimed
condition was causally related to his federal employment. OWCP requested that appellant
submit the additional evidence within 30 days.
In a January 2, 2014 report, Dr. Sonali P. Deo, a specialist in family medicine, stated that
appellant had experienced an onset of lower back pain while at work one day prior which was
persistent and worsening. She advised that the pain was sharp and throbbing and had radiated to
the left foot. Dr. Deo asserted that appellant’s lumbar symptoms were aggravated by daily
activities.
The employing establishment issued a Form CA-16 to the Oliver Springs Family Practice
on January 2, 2014.2
Appellant submitted a January 2, 2014 Form CA-20 duty status report from Dr. Deo
which indicated that she had examined appellant for a lower back injury on January 2, 2014.
Dr. Deo stated on the report that appellant had injured his back that morning while responding to
an alarm at work; the pain radiated down his left leg. She checked a box indicating that the
condition found was caused or aggravated by the employment activity appellant described.
In a January 8, 2014 report, Dr. Deo stated that appellant had been experiencing
throbbing, musculoskeletal pain for four days with a severity level of 7. She advised that the
pain radiated down his left leg to the left foot and was aggravated by movement. Dr. Deo opined
that he had associated symptoms including decreased mobility, difficulty initiating sleep, joint
instability and tenderness and limping.
In a report dated January 21, 2014, Dr. Deo advised that appellant continued to
experience shooting, throbbing pain in his lower back which was persistent and worsening. She
reiterated that his symptoms were aggravated by daily activities.
In a January 31, 2014 report, Dr. Deo noted initially treating appellant for lower back
pain radiating to his left foot on January 2, 2014 after responding to a call. She advised that
x-ray testing was normal and a magnetic resonance imaging (MRI) scan showed a left
paracentral disc protrusion at L5-S1, which produced posterior displacement and mass effect on
the left S1 nerve root. Dr. Deo asserted that appellant had symptoms associated with these
findings, including the pain shooting down his left leg and weakness associated with his left leg;
he also had complaints of right leg numbness during his last visit on January 21, 2014.
Dr. Deo advised that, given the MRI scan findings, appellant needed to see a specialist.
She recommended that he consult a neurosurgeon for further testing and evaluation due to his
symptomatic lumbosacral disc irritation, which had persisted for more than four weeks.
2

A properly completed Form CA-16 can create a contractual agreement for payment of medical treatment even if
the claim is not ultimately accepted. OWCP has not made a finding as to whether this form properly authorized
treatment. See Tracy P. Spillane, 54 ECAB 608 (2003); 20 C.F.R. § 10.300.

2

By decision dated February 18, 2014, OWCP denied appellant’s claim, finding that he
failed to submit sufficient medical evidence in support of his claim that he injured his lower back
in the performance of duty on January 2, 2014.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing that 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 and every
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 must first be determined whether a “fact of injury” has been established.
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 sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.

3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

John J. Carlone, 41 ECAB 354 (1989).

7

Id.

8

Id.

9

Id.

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ANALYSIS
OWCP accepted that appellant experienced lower back pain while responding to a call for
assistance on January 2, 2014. The question of whether an employment incident caused a personal
injury can only be established by probative medical evidence.10 Appellant has not submitted
sufficient rationalized, probative medical evidence to establish that the January 2, 2014
employment incident would have been competent to cause the claimed injury.
Dr. Deo submitted several reports in which she noted appellant’s complaints of lower
back pain on examination and indicated that he had left paracentral disc protrusion at L5-S1
based on MRI scan results. These reports, however, did not sufficiently relate the diagnoses to
the January 2, 2014 incident at work. The weight of medical opinion is determined by the
opportunity for and thoroughness of examination, the accuracy and completeness of physician’s
knowledge of the facts of the case, the medical history provided, the care of analysis manifested
and the medical rationale expressed in support of stated conclusions.11
Dr. Deo advised in her January 2, 2013 report that appellant had an onset of lower back
pain while at work which had become persistent and was worsening; the pain was sharp and
throbbing and radiated to the left foot. She advised that his symptoms were aggravated by daily
activities. In her January 8, 2014 report, Dr. Deo stated that appellant had continued to
experience throbbing, musculoskeletal pain, radiating to his left foot, with a severity level of 7.
She asserted that the pain was aggravated by movement and that he had associated symptoms
such as decreased mobility, difficulty initiating sleep, joint instability and tenderness and
limping. Dr. Deo essentially reiterated these findings and conclusions in her January 21, 2014
report. She stated in her January 31, 2014 report that appellant’s lower back pain started when
he responded to a call at work on January 2, 2014 and started to run.
Dr. Deo advised that appellant had normal x-ray results but that an MRI scan showed a
left paracentral disc protrusion at L5-S1 and posterior displacement and mass effect on the left
S1 nerve root. She opined that he had symptoms stemming from these findings which included
pain and weakness radiating down his left leg and right leg numbness during his most recent visit
on January 21, 2014. Dr. Deo recommended that appellant see a neurosurgeon for further testing
and evaluation.
Although Dr. Deo presented a diagnosis of appellant’s condition and stated that results of
an MRI scan demonstrated that he had a left paracentral disc protrusion at L5-S1, she did not
adequately address how this condition and these findings were causally related to the January 2,
2014 work incident. The medical reports of record did not explain how medically appellant
would have sustained a lower back injury while running in response to a call for assistance on
January 2, 2014. The Board notes that in her initial report of January 2, 2014, Dr. Deo related
that his onset of pain occurred a day ago, not on January 2, 2014. She has not explained why
appellant experienced onset of pain on January 1, 2014, if the diagnosed herniated disc occurred
while running on January 2, 2014. The Board has held that the mere fact that a condition
10

Carlone, supra note 5.

11

See Anna C. Leanza, 48 ECAB 115 (1996).

4

manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.12
There is insufficient rationalized evidence in the record that appellant’s lower back
condition was work related. Furthermore, the January 2, 2014 form report from Dr. Deo which
supports causal relationship with a check mark is insufficient to establish the claim, as the Board
has held that, without further explanation or rationale, a checked box is not sufficient to establish
causation.13 Therefore, appellant failed to provide a medical report from a physician that
explains how the work incident of January 2, 2014 caused or contributed to the claimed lower
back injury.
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Appellant did not provide a medical opinion which describes or
explains the medical process through which the January 2, 2014 work accident would have
caused the claimed injury. Accordingly, he did not establish that he sustained a lower back
injury in the performance of duty. OWCP properly denied appellant’s claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a lower back injury
in the performance of duty on January 2, 2014.

12

See Joe T. Williams, 44 ECAB 518, 521 (1993).

13

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

5

ORDER
IT IS HEREBY ORDERED THAT the February 18, 2014 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: August 25, 2014
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellingham, MA, Employer
__________________________________________

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

Docket No. 10-2340
Issued: August 5, 2011

Case Submitted on the Record

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

JURISDICTION
On September 20, 2010 appellant filed a timely appeal from a June 22, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) which denied merit review. Because
more than 180 days elapsed since the most recent merit decision dated March 5, 2010 to the
filing of this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under section 8128(a).
FACTUAL HISTORY
On July 29, 2004 appellant, then a 53-year-old city carrier, filed a Form CA-2,
occupational disease claim, alleging that she developed degenerative disease of the left knee as a
1

5 U.S.C. §§ 8101-8193.

result of performing her work duties. OWCP accepted her claim for left knee osteoarthritis. It
subsequently accepted the claim to include right knee osteoarthritis. OWCP authorized surgery
which was performed on September 9, 2005. Appellant stopped work intermittently and did not
return to work following her surgery.
Appellant came under the treatment of Dr. Daniel C. Snyder, a Board-certified orthopedic
surgeon. On September 9, 2005 Dr. Snyder performed a right knee arthroscopy with
chondroplasty of the medial femoral condyle and patellofemoral joint and a synovectomy. In a
report dated October 26, 2005, he noted that appellant was totally disabled from work secondary
to arthrosis. In reports dated February 21, 2006 to March 1, 2007, Dr. Snyder noted that she
continued to have severe pain from post-traumatic arthrosis of both knees and recommended a
bilateral total knee replacement. A July 10, 2005 magnetic resonance imaging (MRI) scan of the
right knee revealed no evidence of meniscal or ligament tear, early degenerative changes medial
femoral-tibial compartment with mild chondromalacia noted and joint effusion.
OWCP referred appellant to Dr. Stanley Hom, a Board-certified orthopedic surgeon,
regarding her ability to work. On September 11, 2008 Dr. Hom opined that her current
symptoms were due to the progression of her preexisting degenerative arthritis. He opined that
appellant could work in a modified capacity with limitations. Dr. Hom advised that she could
work part time, four to six hours a day and progress as tolerated. On December 16, 2008
Dr. Snyder concurred with Dr. Hom’s opinion.
On June 4, 2009 OWCP referred appellant to vocational rehabilitation. In reports dated
June 4 to August 6, 2009, the rehabilitation specialist noted contacting her to develop a
rehabilitation plan; however, she did not believe she was physically capable of working in any
capacity. The rehabilitation specialist suspended rehabilitation pending OWCP action.
In a letter dated August 18, 2009, OWCP advised appellant that, based on information
from the rehabilitation specialist, she had discontinued good faith participation in OWCP
vocational rehabilitation program because she believed that she was incapable of work. It
instructed her to contact the specialist and make a good faith effort by participating in the
rehabilitation program or show good cause for discontinuing her effort. The vocational
rehabilitation could be terminated and appellant’s compensation reduced.
Appellant submitted a July 14, 2009 report from Dr. Melissa Mahr, a Board-certified
orthopedic surgeon, who noted appellant’s history of severe osteoarthritis of both knees.
Dr. Mahr found that appellant was unable to work or fulfill the job requirements of her job.
In a letter dated November 10, 2009, OWCP requested that Dr. Mahr review the report of
Dr. Hom and address whether she concurred or disagreed with his findings
In a December 9, 2009 report, the rehabilitation specialist noted that appellant continued
to obstruct rehabilitation and believed she was not capable of working.
By letter dated February 3, 2010, OWCP notified appellant that it proposed to reduce her
compensation pursuant to section 8113(b) of FECA based on her probable wage-earning capacity
had she not failed to apply for and undergo vocational rehabilitation. It provided her 30 days to
make a good effort to participate in the rehabilitation effort or show good cause for not
2

participating. Appellant’s compensation would be reduced to reflect her probable wage-earning
capacity had she completed the training program.
On February 17, 2010 appellant contacted OWCP and asserted that she did not refuse to
participate in rehabilitation. She submitted a February 23, 2010 report from Dr. Mahr, who
noted that appellant stopped work in 2006 secondary to pain and a severe anxiety disorder.
Dr. Mahr noted that appellant had been unable to undergo further knee replacement. Appellant’s
knee osteoarthritis continued to worsen and she was on pain medicine for severe chronic pain
and undergoing therapy for her anxiety. Dr. Mahr reiterated that appellant remained unable to
work.
By decision dated March 5, 2010, OWCP reduced appellant’s compensation to zero
pursuant to section 8113(b). It found that she failed to undergo the essential preparatory effort of
vocational testing to determine what would have been her wage-earning capacity had she
undergone the testing and rehabilitation effort. OWCP noted that appellant impeded the
rehabilitation effort without good cause. Based on section 10.519 of the implementing
regulations, it was assumed in the absence of evidence to the contrary that the vocational
rehabilitation effort would have resulted in her return to work at the same or higher wages she
earned when injured.
Appellant submitted a February 18, 2010 statement contending that she did not receive
notification that she was found noncompliant with vocational rehabilitation and had always
participated in the rehabilitation program. She underwent a second opinion examination which
was brief and stated that Dr. Hom did not specialize in conditions of the knees. Appellant
informed the vocational rehabilitation counselor of her constant pain, medication and panic
attacks. Her condition had deteriorated and she needed bilateral knee replacements. On
March 24, 2010 appellant informed OWCP that there was a misunderstanding regarding her
participation in rehabilitation. She expressed an interest in a good faith effort to participate in
vocational rehabilitation. Appellant reiterated that she required knee replacement surgery.
In a March 25, 2010 form, appellant requested reconsideration. She submitted a
March 22, 2010 report from Dr. Mahr who diagnosed severe knee osteoarthritis and anxiety
disorder. Dr. Mahr noted that appellant was to have a total knee replacement on December 6,
2010; but, surgery was cancelled as appellant had a severe panic attack. She stated that
appellant’s complaints of severe pain required chronic narcotic use. Dr. Mahr noted that
appellant was unable to drive while taking narcotic medicine, could not perform her job
functions and was unable to walk or sit for prolonged periods.
In a June 22, 2010 decision, OWCP denied appellant’s reconsideration request finding
that it was insufficient to warrant further review of the merits of her claim.
LEGAL PRECEDENT
Under section 8128(a) of FECA,2 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
2

Id. at § 8128(a).

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section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.4
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.5
ANALYSIS
OWCP reduced appellant’s compensation benefits to zero on March 5, 2010 pursuant to 5
U.S.C. § 8113(b) based on her probable wage-earning capacity had she not failed to apply for or
participate in vocational rehabilitation. It found that she impeded the rehabilitation effort
without good cause. OWCP denied appellant’s March 25, 2010 reconsideration request, without
a merit review. The issue is whether she met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for further review of the merits of her claim.
Appellant asserted that she was not notified of being found noncompliant with vocational
rehabilitation and had participated in OWCP’s rehabilitation program. She noted meeting with
the vocational rehabilitation counselor and informing her of constant pain, medication and panic
attacks. Appellant further contended that Dr. Hom’s examination was brief and he was not a
knee specialist. Her assertions do not establish that OWCP erroneously applied or interpreted a
specific point of law or advance a relevant legal argument not previously considered by OWCP.
Although appellant asserted that she was not notified of noncompliance, the record shows
OWCP issued letters on August 18, 2009 and February 3, 2010 advising her about her failure to
participate in vocational rehabilitation. The letters were sent to her address of record. The Board
has found that, in the absence of evidence to the contrary, a letter properly addressed and mailed
in the due course of business is presumed to have been received at the mailing address in due
course. This is known as the “mailbox rule.”6 Regarding appellant’s assertions that she did not
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b).

5

See Daniel Deparini, 44 ECAB 657 (1993).

6

W.P., 59 ECAB 514 (2008).

4

refuse to participate in vocational rehabilitation, she previously made these assertions before
OWCP7 and she did not submit any further evidence corroborating her assertions.
Appellant argued on reconsideration that she had disabling pain; but the underlying issue
is not her residual symptoms or degree of disability. The issue is whether she refused to
participate in vocational rehabilitation without good cause. Appellant’s assertions regarding her
symptoms and ability to work are insufficient to reopen her claim as the submission of evidence
and argument which does not address the particular issue involved does not constitute a basis for
reopening a case.8
In support of her reconsideration request, appellant also submitted Dr. Mahr’s March 22,
2010 report that reiterated the diagnoses of severe knee osteoarthritis and anxiety disorder.
Dr. Mahr found that appellant was unable to perform her job and unable to drive while taking
narcotic medicine. Although this report is new, it is essentially duplicative of the physician’s
prior reports. It is well established that evidence which repeats or is duplicative of that already
of record is of no evidentiary value.9
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
On appeal, appellant asserts that her work-related condition is worsening and that she
never refused to participate in vocational rehabilitation. The Board notes that it has jurisdiction
of whether OWCP properly denied a merit review of the claim. As explained, appellant did not
submit any evidence or argument in support of her reconsideration request that warrants
reopening of her claim for a merit review under 20 C.F.R. § 10.606(b)(2).10
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.

7

See supra note 5.

8

See L.T., Docket No. 09-1798 (issued August 5, 2010).

9

See Johnnie B. Causey, 57 ECAB 359 (226).

10

Should appellant wish to begin participation in vocational rehabilitation efforts, she should contact, in writing,
the district Office of OWCP which services her claim. See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Vocational Rehabilitation Services, Chapter 2.813.17(f) (February 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the June 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 5, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 11-639
Issued: September 28, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 10, 2011 appellant filed a timely appeal from a December 13, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury as a result of a July 22, 2009 employment incident.
FACTUAL HISTORY
On July 30, 2009 appellant, then a 50-year-old respiratory therapist, filed a traumatic
injury claim alleging that on July 22, 2009 he sustained abrasions to his hands, left wrist, right
1

5 U.S.C. § 8101 et seq.

leg and right knee after he fell near the entrance of the employing establishment. He stopped
work on July 22, 2009 and returned on July 29, 2009.2
In a July 22, 2009 work status report, a physician’s assistant stated that appellant was
seen for multiple abrasions to his left wrist and right knee and could return to work on
July 27, 2009. In a July 22, 2009 handwritten radiology report, Dr. Laurance Kupperberg, a
Board-certified diagnostic radiologist, stated that appellant fell on his right knee and experienced
pain. He noted degenerative joint disease and arthritic changes and indicated that the findings
for appellant’s right knee and left wrist were negative.
In a July 30, 2009 handwritten employee health progress note, an unknown provider
stated that appellant tripped inside the entrance at south gate and fell on his right knee.
Appellant tried to break his fall with his left hand and sustained multiple contusions to his right
wrist, elbow and forehead.
In an August 2, 2009 work status report, Dr. Kisha Davis, a Board-certified family
practitioner, diagnosed right leg edema and deep vein thrombosis versus cellulitis. She referred
appellant to the emergency room for further evaluation. In an August 2, 2009 handwritten
treatment record, Dr. Davis noted that he complained of right shin redness and rash since
July 23, 2009. She stated that appellant was seen on July 22, 2009 after a fall and sustained
abrasions to his wrist, head, shin and knee. A rash also developed 24 to 48 hours after the fall.
In an August 2, 2009 emergency discharge report, Dr. James McQuiston, Board-certified
in emergency medicine, stated that an examination revealed that appellant suffered from
cellulitis. He explained that this skin infection usually developed after an injury, cut, bite or
sting.
In a September 24, 2009 disability slip, Dr. Rebecca H. Shaffer, a Board-certified
internist, stated that appellant was under her care from September 22 to 25, 2009. She requested
that he gradually return to a full schedule on September 28, 2009 dependant on continued
improvement. In an October 27, 2009 disability slip, Dr. Shaffer noted that appellant could
return to work on November 2, 2009. In a November 3, 2009 disability note, she reported that it
would be in appellant’s best interest to avoid working four days straight and requested that he be
able to work Thursdays and Saturdays.
On September 29, 2009 OWCP advised appellant that the evidence submitted was
insufficient to establish his claim and requested that he resubmit his Form CA-1 because it was
illegible. It also requested he provide a narrative medical report from a physician, which
included dates of examination and treatment, results of examinations and tests, history of injury,
description of findings, diagnosis and a physician’s opinion, with medical rationale, explaining
how the alleged employment incident caused or aggravated the claimed medical condition.
2

On July 10, 2010 appellant filed a (Form CA-7) for leave buy back compensation for the period September 8 to
November 21, 2009. He submitted various unsigned disability certificates from an unknown provider, who noted
that he was unable to return to work due to total or partial incapacitation from August 5 to September 22, 2009. On
November 12, 2010 OWCP advised appellant that it would not take any action regarding his Form CA-7
compensation claim until his traumatic injury claim was resolved.

2

Appellant resubmitted his Form CA-1 and provided additional medical evidence. In a
July 22, 2009 handwritten treatment record, a physician’s assistant stated that appellant was
treated after he fell down at work and scraped his forehead. Appellant also sustained abrasions
to his head, injuries to his left wrist and swelling and pain in his right knee.
In a November 24, 2010 statement, appellant reported that on July 22, 2009 he was on his
way to attend a required course at the employing establishment. He had just passed through the
security gate carrying his course-related materials and security badge when he fell on his right
knee and leg. Appellant put his hand out to break his fall. When he hit the ground, he rolled and
scraped his forehead. Two security officers ran from the security booth to offer assistance.
In a decision dated December 13, 2010, OWCP denied appellant’s claim on the grounds
of insufficient medical evidence establishing that he sustained any condition causally related to
the July 22, 2009 employment incident. It accepted that the work event occurred as alleged but
denied his claim finding that the medical evidence did not provide physician’s opinion
explaining how the accepted incident caused or contributed to the alleged conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative and substantial evidence4
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.5 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.6
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.7 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.8 An employee may establish that the employment incident
occurred as alleged but fail to show that his disability or condition relates to the employment
incident.9

3
4

5 U.S.C. §§ 8101-8193.
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

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

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

3

Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.10 Rationalized medical opinion evidence is medical evidence which includes
a physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the specified employment factors or incident.11 The
opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the employee.12
ANALYSIS
On July 30, 2009 appellant filed a traumatic injury claim alleging that on July 22, 2009
he sustained an injury when he tripped and fell at work. OWCP accepted that the July 22, 2009
employment incident occurred as alleged but denied the claim due to insufficient medical
evidence to establish an injury. The Board finds that appellant established that he sustained
abrasions of his left wrist, right leg and right knee on July 22, 2009 as a result of his accepted
fall.
OWCP procedures recognize that a claim may be accepted without a medical report when
the condition is a minor one which can be identified on visual inspection.13 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims a rationalized medical opinion supporting causal relationship is
required.14
Appellant claimed that on July 22, 2009 he sustained abrasions to his hands, left wrist,
right leg and right knee after he fell near the entrance of the security gate at work. On August 2,
2009 Dr. Davis noted that he was seen on July 22, 2009 after a fall and sustained abrasions to his
wrist, head, shin and knee. Appellant was also seen in the employing establishment health unit
and his multiple contusions to his right wrist, elbow and forehead were documented in the
record. The Board finds that his abrasions resulting from the fall at work were documented by
medical personnel and are the type of clear-cut injuries which do not require rationalized medical
opinion evidence regarding causal relationship. The Board finds that these abrasions arise from
the incident that day at work.

10

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

11

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

12

B.B., 59 ECAB 234 (2007); Victor J. Woodhams, supra note 11; D.S., Docket No. 09-860 (issued
November 2, 2009).
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

14

A.S., 59 ECAB 246 (2007); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

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On appeal, appellant alleged that he sustained cellulitis as a result of the July 22, 2009
employment incident. The only medical evidence providing a diagnosis of cellulitis is the
August 2, 2009 work status report of Dr. Davis and Dr. McQuiston’s August 2, 2009 discharge
report. Neither of the reports, however, provided any opinion on the cause of appellant’s
cellulitis or related his condition to the July 22, 2009 employment fall at work. The Board has
held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value.15 Dr. Davis mentioned that on July 22, 2009 appellant
fell down at work and developed a rash 24 to 48 hours after the fall. She did not explain how the
July 22, 2009 slip and fall incident was competent to cause or contribute to his cellulitis.
Without a well-rationalized medical opinion explaining how appellant’s condition resulted from
the July 22, 2009 employment incident, these reports are insufficient to meet his burden of
proof.16
The additional medical evidence of record is likewise insufficient to establish any other
diagnoses or periods of disability. Appellant provided disability slips by Dr. Shaffer dated
September 24, October 27 and November 3, 2009. These notes merely indicated that he was
unable to work but do not contain any medical diagnosis or opinion regarding causal
relationship. Similarly, Dr. Kupperberg’s July 22, 2009 radiology report did not provide any
medical diagnosis or medical opinion on causal relationship.
Appellant also submitted various reports from a physician’s assistant. Section 8102(2) of
FECA, however, provides that the term “physician” includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law. As physician’s assistants are not “physicians” under
FECA, their medical opinions regarding diagnosis and causal relationship are of no probative
medical value.17 The handwritten treatment note from an unknown provider at the employee
health office is similarly deficient. The Board has held, however, that a medical report with no
indication that the person completing the report qualifies as a physician as defined in 5 U.S.C.
§ 8102(2) or without proper identification of who provided the signature does not constitute
probative medical evidence.18 This treatment note does not contain any information
demonstrating that a physician completed and signed it.
On appeal, appellant noted the fact that his cellulitis condition arose immediately after his
injury and that he never experienced symptoms of cellulitis until his injury. As noted, however,
he did not provide sufficient medical evidence to support causal relation. The Board has held
that the mere fact that a condition arises after an injury that was not present before an injury is
not sufficient, of itself, to support causal relationship.19 Causal relationship is a medical issue
15

K.W., 59 ECAB 271 (2007); R.E., Docket No. 10-679 (issued November 16, 2010).

16

See J.F., Docket No. 10-1978 (issued May 16, 2011).

17

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005); S.E. Docket No. 08-2214 (issued May 6, 2009);
E.H., Docket No. 08-1862 (issued July 8, 2009).
18

D.D., 57 ECAB 734 (2006); Richard J. Charot, 43 ECAB 357 (1991); E.K., Docket No. 09-1827 (issued
April 21, 2010).
19

Michael S. Mina, 57 ECAB 379 (2006).

5

that can only be established by the submission of rationalized medical opinion evidence.20
Appellant did not provide adequate rationalized medical opinion to establish that his cellulitis
was causally related to the July 22, 2009 fall at work.
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 established that he sustained abrasions as a result of
his fall on July 22, 2009 but has not established that any other medical conditions or disability
were sustained as a result of this incident.
ORDER
IT IS HEREBY ORDERED THAT the December 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: September 28, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

20

A.D., 58 ECAB 149 (2006); T.R., Docket No. 10-2041 (issued July 8, 2011).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 10-2099
Issued: July 19, 2011

Case Submitted on the Record

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

JURISDICTION
On August 17, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated August 2, 2010 denying modification of
a loss of wage-earning capacity decision. Pursuant to the Federal Employees’ Compensation
Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied modification of its determination that the
position of cashier II represents appellant’s wage-earning capacity.
On appeal appellant contends that the loss of wage-earning capacity determination was
erroneous and cited to Board findings on prior appeals, also contending the Board’s decisions
were erroneous.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has been before the Board previously. In the first appeal, the Board issued a
decision and order on May 15, 2003 affirming OWCP’s decisions dated October 29, 2001 and
January 28, 2002.2 The Board found OWCP properly reduced appellant’s compensation benefits
effective August 15, 19993 based on its determination that the selected position of cashier II
represented his wage-earning capacity and that the duties were not of a repetitive nature. The
Board also found appellant failed to meet his burden of proof in establishing a recurrence of
disability on or after August 28, 2000 causally related to his accepted March 15, 1982
employment injury.4 On December 12, 2004 the Board, in the second appeal, affirmed the
April 12, 2004 decision with respect to OWCP’s determination that modification of the wageearning capacity was not warranted.5 However, the Board found further clarification was
required by OWCP on its calculation of appellant’s wage rate by using a mean rate. In a
decision dated October 24, 2006, the Board in its third decision affirmed an April 5, 2005 OWCP
decision regarding appellant’s pay rate.6 The Board also found OWCP properly denied
appellant’s request for merit review and affirmed OWCP’s June 2 and September 15, 2005
nonmerit decisions. On July 30, 2007 the Board issued an order granting the Director’s petition
for reconsideration for correction and denying appellant’s petition for reconsideration.7 In
granting the Director’s petition, the Board modified footnote 7 to delete inaccurate language.
The Board, in a May 4, 2010 decision, found OWCP applied an erroneous legal standard to
appellant’s request for modification of his July 16, 1999 loss of wage-earning capacity decision.8
Thus, the Board set aside OWCP’s nonmerit decisions dated March 11, 2009 and August 6,
April 17 and March 8, 2008 and remanded the case to OWCP to adjudicate the case under the
correct legal standard. The facts and the circumstances of the case up to that point are set forth
in the Board’s prior decisions and are incorporated herein by reference.9
Medical evidence submitted by appellant includes clinic notes and a report from
Dr. Joseph J. Throder, an attending Board-certified orthopedic surgeon. In a January 5, 2005
2

Docket No. 02-2265 (issued May 15, 2003).

3

OWCP issued its initial decision reducing the rate of appellant’s compensation benefits based on his wageearning capacity as a cashier II, effective August 15, 1999 on July 16, 1999.
4

On March 15, 1982 appellant, then a molder, injured his right hand in the performance of duty. OWCP accepted
the claim for fracture of the fifth right metacarpal and authorized nerve entrapment surgery.
5

Docket No. 04-1438 (issued December 14, 2004).

6

Docket No. 06-40 (issued October 24, 2006).

7

Docket No. 06-40 (issued October 24, 2006), order granting Director’s petition for recon. for correction and
denying appellant’s petition for recon. Docket No. 06-40 (issued July 30, 2007).
8

Docket Nos. 09-1046 & 09-1294 (issued May 4, 2010).

9

The Board notes that appellant filed an appeal of a May 15, 2003 decision on July 29, 2003 and the Board
docketed the appeal as No. 03-1923 and No. 03-2022. On October 6, 2003 the Board granted appellant’s request to
dismiss his appeal in Docket No. 03-1923. The Board also issued an order dismissing Docket No. 03-2022 as a
duplicate appeal of Docket No. 03-1923.

2

report, Dr. Throder opined that appellant had evidence of median neuropathy related to his right
hand based on clinical examination and there was no significant change in his condition. In a
July 27, 2005 clinic note, he reported no new clinical findings and that appellant was seen for a
flare-up of wrist and hand pain. Dr. Throder, in an April 26, 2006 clinic note, noted that he had a
hand injury and that there was no evidence of any worsening of his peripheral nerve complaints.
In a March 14, 2007 clinic note, he noted that appellant was seen for complaints of right upper
extremity painful dysfunction. Dr. Throder related that appellant had “episodic pain along the
ulnar corridor of his hand” on and off for many years. He stated that appellant required no
specific treatment for this complaint as appellant may use a sling or place “his hand in a carpal
tunnel splint” for support.
In a letter dated May 7, 2010, appellant requested OWCP modify the July 16, 1999 loss
of wage-earning capacity decision. He contended that OWCP based its decision on inaccurate
information. Specifically, appellant contended that the job description for the selected position
was erroneous as the position was not sedentary and OWCP erred in finding a conflict in the
medical opinion evidence.
In a June 24, 2010 letter, OWCP requested appellant submit evidence supporting his
request for modification of the July 16, 1999 loss of wage-earning capacity decision. Appellant
was given 30 days to provide the requested evidence.
In response to OWCP’s request appellant stated that he had previously sent evidence
establishing that the cashier II job position was erroneous and that the July 16, 1999 loss of
wage-earning capacity decision was erroneous.
By decision dated August 2, 2010, OWCP denied modification of the July 16, 1999 loss
of wage-earning capacity decision.
LEGAL PRECEDENT – ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.10 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.11 OWCP’s procedure manual provides that if a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss.12 In this instance
the claims examiner will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.13
10

D.M., 59 ECAB 164 (2007); Harley Sims, Jr., 56 ECAB 320 (2005).

11

Katherine T. Kreger, 55 ECAB 633 (2004); see Robert H. Merritt, 11 ECAB 64 (1959).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Mary E. Marshall, 56 ECAB 420 (2005).
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Harley Sims, Jr., supra note 10.

3

Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.14 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.15
ANALYSIS
Appellant contends on appeal that the original loss of wage-earning capacity
determination was erroneous.16 The Board finds that appellant did not submit sufficient evidence
to show that OWCP’s original determination with regard to his wage-earning capacity should be
modified. In a July 16, 1999 decision, OWCP determined that appellant had the wage-earning
capacity to perform the position of cashier II and reduced his wage-loss benefits accordingly.
This determination was reviewed by the Board in a prior appeal and affirmed. The Board also
affirmed the determination that there had been a conflict in the medical evidence in a prior
appeal.
Appellant has the burden of proof to show that a modification of his wage-earning
capacity is warranted but has not submitted sufficient medical evidence to establish a material
change in the nature and extent of his injury-related conditions. OWCP therefore properly
denied modification of the July 16, 1999 wage-earning capacity determination.17
In his requests for reconsideration, appellant reiterated the same arguments previously
raised before the claims examiner and in prior Board appeals. As noted above, the Board on
May 15, 2003 affirmed OWCP’s determination that the position of cashier II was medically
suitable and the duties of the position were not repetitive. The Board also affirmed there was a
conflict in the medical opinion evidence and that OWCP properly referred appellant for an
impartial medical examination to resolve the conflict. Appellant did not claim that he had been
retrained or otherwise vocationally rehabilitated nor did he allege that there had been a material
change in the nature and extent of his injury-related condition. As such, the only remaining basis
for modification is for appellant to demonstrate that the original determination was erroneous.
In support of his claim that the original determination was erroneous, appellant submitted
clinic notes and a report from Dr. Throder. Although the clinic notes and report from
Dr. Throder provide diagnosis and examination findings, none provided an opinion regarding
appellant’s disability status or ability to perform the duties of the constructed position of cashier
14

See D.M., supra note 10; Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000);
Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).
15

Id.; Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

16

With regard to appellant’s allegations the that the findings of the Board in its prior decisions were erroneous
with regard to his loss of wage-earning capacity determination, the Board notes that these decisions became final
upon the expiration of 30 days of their issuance and are final as to the subject matter appealed. See 20 C.F.R.
§ 501.6(d).
17

T.M., Docket No. 08-975 (issued February 6, 2009); Elbert Hicks, 55 ECAB 151 (2003).

4

II due to the accepted fracture of the fifth right metacarpal. Without that medical evidence,
appellant cannot establish that his injury-related condition had materially changed and he
submitted no evidence to establish that he had been retrained or otherwise was vocationally
rehabilitated. Further he offered no new evidence to establish the July 16, 1999 wage-earning
capacity decision was erroneous. Appellant therefore did not establish that the July 16, 1999
wage-earning capacity decision should be modified.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not established that a modification of the wageearning capacity is warranted.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 2, 2010 is affirmed.
Issued: July 19, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 09-1126
Issued: November 19, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 24, 2009 appellant filed a timely appeal of a February 25, 2009 decision of the
Office of Workers’ Compensation Programs denying her claim for compensation. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(e), 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
occupational disease in the performance of duty.
FACTUAL HISTORY
On December 15, 2008 appellant, then a 54-year-old clerk, filed an occupational disease
claim alleging that she developed carpal tunnel syndrome from repetitive work with mail. She
first realized that her condition was caused or aggravated by her employment activities on
June 1, 2007. Appellant did not stop work.
The record contains an accident report dated December 31, 2008 completed by Raymond
Berg, a postmaster at the employing establishment. Mr. Berg noted that appellant felt tingling

and pain in both wrists in June 2007. He indicated that she used braces to relieve the pain.
Mr. Berg also advised that appellant underwent carpal tunnel surgery for both wrists in
November 2007. A December 31, 2008 incident report also completed by Mr. Berg reiterated
that appellant felt tingling and pain in her wrists in June 2007 and that she used braces to relieve
the pain. He noted that appellant had carpal tunnel syndrome. The record also contains a job
description for a “sales, services and distribution associate.”
On January 9, 2009 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit additional evidence. In
particular, the Office requested a detailed description of the employment-related activities that
appellant believed contributed to her condition. It also requested a medical report with a
physician’s opinion on whether appellant’s work activities contributed to her diagnosed
condition.
In a February 25, 2009 decision, the Office denied appellant’s claim finding the evidence
was insufficient to establish that the events occurred as alleged. It also found there was no
medical evidence with a diagnosis that was connected to the claimed events.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act 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 the Act; 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 and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.2
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that a claimed medical condition was caused or adversely affected by
employment factors. This burden includes the submission of a detailed description of the
employment factors or conditions, which the claimant believes caused or adversely affected the
condition or conditions for which compensation is claimed. If a claimant does establish an
employment factor, she must submit medical evidence showing that a medical condition was

1

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

2

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

2

caused by such a factor.3 It is the claimant’s responsibility to prove that work was performed
under these specific conditions at the time, in the manner and to the extent alleged.4
ANALYSIS
As noted, three criteria must be established in an occupational disease claim. However,
appellant has not established any of the required criteria to establish her claim.
Regarding the first criteria, appellant’s CA-2 form alleges carpal tunnel syndrome in both
wrists. However, the record does not contain any medical evidence diagnosing this condition.
The accident and incident reports dated December 31, 2008 from Mr. Berg noted that appellant
had carpal tunnel syndrome in June 2007 and that she underwent surgery for that condition in
November 2007. However, neither report constitutes medical evidence, as they are not from a
physician.5
Appellant also has not identified employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition. Appellant’s CA-2 form
states that repetitive work with mail caused her claimed carpal tunnel syndrome. She does not
identify any particular work assignments or describe the type of job duties that she believed
caused or aggravated her condition. In addition, appellant does not indicate which of the duties
listed in the employing establishment’s job description caused or aggravated her carpal tunnel
condition. Despite the fact that the Office’s January 9, 2009 letter advised appellant of the
factual and medical evidence necessary to establish her claim, appellant failed to provide such
evidence establishing a diagnosed medical condition and identifying specific work activities that
caused her claimed condition. Appellant also did not submit any medical evidence supporting
that particular employment factors from her job caused or contributed to the claimed carpal
tunnel syndrome.6
For these reasons, the evidence of record is insufficient to meet appellant’s burden of
proof to establish that she sustained a carpal tunnel condition as alleged in the performance of
duty.
On appeal, appellant asserts that the repetitive nature of sorting mail caused her carpal
tunnel syndrome and that the medical evidence was filed incorrectly because of confusion among
3

Effie Morris, 44 ECAB 470 (1993).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.3(a) (April 1993)
(in occupational disease cases, the claimant must submit evidence to identify fully the particular work conditions
alleged to have caused the disease); see also L.B., 59 ECAB ___ (Docket No. 07-1748, issued December 18, 2007)
(stating that the claimant has the burden of proof to identify employment factors believed to have caused or
aggravated a claimed employment-related condition).
5

See 5 U.S.C. § 8101(2) (defining the term “physician”); see also Charley V.B. Harley, 2 ECAB 208 (1949) (the
Board held that medical opinion, in general, can only be given by a qualified physician).
6

In any event, until appellant identifies work factors alleged to have caused her claimed injury, it is not necessary
for the Office to consider the medical evidence regarding causal relationship. See S.P., 59 ECAB __ (Docket No.
07-1584, issued November 15, 2007); Bonnie Contreras, 57 ECAB 364 (2006).

3

her treating physicians. As noted, it is appellant’s burden of proof to provide to the Office a
detailed description of the employment activities alleged to have caused her condition as well as
medical evidence establishing the claimed condition and providing an opinion on causal
relationship.7 None of the necessary evidence was in the record prior to the Office’s
February 25, 2009 final decision.8 Appellant also asserts that she did not receive the Office’s
January 9, 2009 letter requesting additional information. The Board has found that, in the
absence of evidence to the contrary, a letter properly addressed and mailed in the due course of
business, such as in the course of the Office’s daily activities, is presumed to have arrived at the
mailing address in due course. This is known as the mailbox rule.9 As the Office’s January 9,
2009 letter was mailed to appellant’s address of record and was not returned as undeliverable, it
is presumed the letter arrived at her mailing address.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained an occupational disease in the performance of duty.

7

See supra notes 3 and 4.

8

Appellant submitted new evidence on appeal. However, the Board may only review evidence that was in the
record at the time the Office issued its final decision. 20 C.F.R. § 501.2(c).
9

C.T., 60 ECAB ___ (Docket No. 08-2160, issued May 7, 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 25, 2009 is affirmed.
Issued: November 19, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5