United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF THE ARMY, YUMA
PROVING GROUND, Yuma, AZ, Employer
__________________________________________

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

Docket No. 09-2342
Issued: June 11, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 25, 2009 appellant filed a timely appeal of a May 13, 2009 Office of
Workers’ Compensation Programs’ merit decision, denying his claim for compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
appellant’s case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
developed bilateral shoulder and elbow conditions due to his employment duties.
FACTUAL HISTORY
On May 16, 2008 appellant, then a 54-year-old explosives operator, filed an occupational
disease claim alleging that he developed bilateral epicondylitis and bilateral superior labrum
anterior tears due to lifting and handling heavy items at work. He indicated that he first realized
his condition on January 25, 2008. The Office requested additional factual and medical evidence
by letter dated May 19, 2008. Appellant submitted documentation of several employment-

related injuries to his elbow and shoulder. In a statement received June 9, 2008, he alleged that
he had sustained several work-related injuries to his shoulders and elbow beginning in 1990.
Dr. Todd K. Runyan, a Board-certified orthopedic surgeon, scheduled appellant for left
shoulder surgery on May 20, 2008. In a note dated April 30, 2008, he diagnosed bilateral lateral
epicondylitis and bilateral superior labrum anterior tear.
By decision dated July 18, 2008, the Office denied appellant’s claim finding that,
although he submitted evidence supporting his alleged employment activities, he failed to submit
the necessary medical opinion evidence.
Appellant requested reconsideration on March 2, 2009.
He submitted magnetic
resonance imaging (MRI) scans dated January 31, 2008, which demonstrated impingement, a
small ganglion cyst and a superior labrum anterior or posterior (SLAP) lesion in the left shoulder
and SLAP lesion and impingement syndrome in the right shoulder. An MRI scan of the left
elbow on February 2, 2008 found mild common extensor tendinosis while the right elbow
demonstrated lateral epicondylitis and common extensor tendinitis on an MRI scan of the same
date. Appellant also submitted notes from Dr. Runyan dated January 25, 2008 noting appellant’s
complaints of severe pain and weakness in his shoulders and findings of impingement and
positive infraspinatus and supraspinatus signs bilaterally. Dr. Runyan diagnosed bilateral
shoulder rotator cuff tear and bilateral elbow instability. On February 13, 2008 he diagnosed
bilateral epicondylitis and bilateral superior labrum anterior or posterior tear. Dr. Runyan
recommended physical therapy. In a note dated April 28, 2008, he found that appellant’s
physical examination was unchanged and recommended surgery. Dr. Runyan performed a left
shoulder arthroscopy labral and capsular repair and subacromial decompression on
May 20, 2008. He examined appellant on May 28, June 25, August 6 and October 24, 2008 and
found that he was healing well. On August 6, 2008 Dr. Runyan diagnosed, “Left shoulder
rotator cuff tear, work-related injury.” In a separate note dated August 6, 2008, he diagnosed
“labral tear from work injury.”
By decision dated May 13, 2009, the Office reviewed appellant’s claim on the merits and
found that he had submitted sufficient medical evidence to establish a diagnosed condition, but
failed to submit the necessary medical opinion evidence to establish his claim.
LEGAL PRECEDENT
The Office’s regulations define an occupational disease as “a condition produced by the
work environment over a period longer than a single workday or shift.”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 employment factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
1

20 C.F.R. § 10.5(q).

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causally related to the employment factors identified by the claimant. The evidence required to
establish causal relationship is rationalized medical opinion evidence, based upon a complete
factual and medical background, showing a causal relationship between the claimed condition
and identified factors. The belief of a claimant that a condition was caused or aggravated by the
employment is not sufficient to establish causal relation.2
ANALYSIS
Appellant has attributed his bilateral shoulder and elbow conditions to lifting and
carrying heavy objects in the performance of his federal job duties. The Office accepted that
appellant was required to perform lifting during his workday, but found that appellant had not
submitted the necessary medical opinion evidence to establish a causal relationship between his
diagnosed conditions of bilateral epicondylitis and bilateral superior labrum anterior tears and his
accepted employment duties.
In support of his claim, appellant submitted a series of reports from Dr. Runyan, a Boardcertified orthopedic surgeon, beginning on January 25, 2008 diagnosing bilateral shoulder rotator
cuff tear and bilateral elbow instability. Appellant underwent MRI scans on January 31, 2008
which demonstrated impingement and SLAP lesions in both shoulders as well as a ganglion cyst
in the left shoulder. On February 2, 2008 appellant underwent elbow MRI scans, which found
mild common extensor tendinosis on the left while the right elbow demonstrated lateral
epicondylitis and common extensor tendinitis. Dr. Runyan diagnosed bilateral epicondylitis and
bilateral SLAP tear on February 13, 2008. He recommended left shoulder surgery on
April 28, 2008. In a note dated April 30, 2008, Dr. Runyan diagnosed bilateral lateral
epicondylitis and bilateral superior labrum anterior tear. He performed a left shoulder
arthroscopy labral and capsular repair and subacromial decompression on May 20, 2008. On
August 6, 2008 Dr. Runyan diagnosed, “Left shoulder rotator cuff tear, work-related injury” and
“labral tear from work injury.”
The Board finds that, while Dr. Runyan has provided a diagnosis of appellant’s shoulder
condition and offered some opinion that these conditions are due to his employment, Dr. Runyan
has not provided the necessary medical opinion evidence to establish a causal relationship
between appellant’s diagnosed conditions and his employment duties. He did not identify any
specific employment activity as the cause of appellant’s rotator cuff tear. Dr. Runyan did not
explain how and why appellant’s work caused his diagnosed condition. Without a detailed
medical report including identification of the employment duties which lead to the development
of appellant’s left rotator cuff tear, the medical evidence is not sufficient to meet appellant’s
burden of proof. As Dr. Runyan did not state that appellant developed a rotator cuff tear due to
lifting in the performance of his job duties and did not explain how lifting could have caused or
contributed to the development of the rotator cuff tear, his reports are not sufficient to meet
appellant’s burden of proof.
On appeal, appellant alleged that the employing establishment personnel did not
appropriately aid him in the development of his claim and provided him with incorrect advice.
2

Lourdes Harris, 45 ECAB 545, 547 (1994).

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The Board’s jurisdiction is limited to the specific issue decided by the Office, whether appellant
has met his burden of proof in establishing his current occupational disease claim, and cannot
consider or rule on the actions of the employing establishment.3
CONCLUSION
The Board finds that appellant failed to submit the necessary detailed medical opinion
evidence to meet his burden of proof in establishing that he sustained bilateral shoulder or elbow
conditions due to his federal employment duties.
ORDER
IT IS HEREBY ORDERED THAT the May 13, 2009 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: June 11, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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20 C.F.R. § 501.2(c).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Jersey City, NJ,
Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0734
Issued: August 22, 2019

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 February 12, 2019 appellant, through counsel, filed a timely appeal from a
November 20, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a bilateral foot
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On June 23, 2017 appellant, then a 51-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed a bilateral foot condition due to prolonged
standing on concrete surfaces while in the performance of duty. She noted that she first became
aware of her condition on March 30, 2017 and first realized its relation to her federal employment
on May 24, 2017. Appellant did not initially stop work.
In a letter dated June 7, 2017, Dr. John Del Monte, a Board-certified podiatrist, diagnosed
plantar calcaneal heel spur and left foot posterior tibial nerve entrapment. He indicated that
appellant had failed conservative measures and had decided to undergo corrective foot surgery.
Dr. Del Monte opined that her conditions had been exacerbated by her employment, noting that
she was a postal worker who spent a majority of her workday standing and walking. He opined
that this type of work had caused the spur and nerve entrapment to worsen.
In a June 20, 2017 note, Dr. Del Monte indicated that appellant initially presented on
March 30, 2017 complaining of numbness and burning of her bilateral feet, left greater than the
right. He noted that she worked as a postal employee and that her employment had contributed to
her pain, as she walked and stood on concrete floors that did not offer any shock absorption or
cushioning. Dr. Del Monte diagnosed bilateral tarsal tunnel syndrome, which he treated with a
nerve blocks on March 30 and May 24, 2017. He indicated that appellant was scheduled for left
foot nerve decompression surgery on June 30, 2017 and advised that a similar surgical procedure
may be required for the right foot. Dr. Del Monte surmised that, following surgery and a period
of recuperation, she would be allowed to return to work without restrictions.
In a development letter dated June 30, 2017, OWCP informed appellant that the evidence
of record was insufficient to establish her claim and advised her of the type of medical and factual
evidence needed. It afforded her 30 days to submit the requested information.
In a July 16, 2017 supplemental statement, appellant noted that she had not engaged in
sports, hobbies, musical instruments, volunteer work, other employment, or recreational activities
outside of her federal employment. She stated her belief that her diagnosis of tarsal tunnel
syndrome was specific to her work environment.
OWCP also received a May 24, 2017 follow-up report from Dr. Del Monte. Dr. Del Monte
examined appellant for complaints of left foot pain, tarsal tunnel syndrome, and plantar heel pain.
He noted that these conditions were related to and contributed to by her employment. On
examination of appellant’s feet Dr. Del Monte observed heel pain, left-sided limping, decreased
vibratory sense on the left, and pain on palpation of the posterior tibial nerve and plantar heel. He
diagnosed a lesion of the plantar nerve of the left lower limb, a calcaneal spur of the left foot, and
an acquired short Achilles tendon of the left ankle. Dr. Del Monte discussed surgical procedures
of tarsal tunnel release, plantar fascia release, and gastrocnemius soleus release with appellant.

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A June 30, 2017 operative report revealed that Dr. Del Monte performed a left foot
gastrocnemius recession, left foot tarsal tunnel release, and left foot plantar fasciotomy.
In a July 5, 2017 postoperative report, Dr. Del Monte opined that appellant’s left foot
condition was work related and that her pain had been aggravated by the nature of her employment.
On examination he noted no signs of infection and intact sutures of her left foot. Dr. Del Monte
diagnosed a lesion of the plantar nerve of the left lower limb, a calcaneal spur of the left foot, and
an acquired short Achilles tendon of the left ankle.
By decision dated August 10, 2017, OWCP denied appellant’s occupational disease claim
finding that she had not submitted sufficient medical evidence to establish causal relationship
between the accepted factors of her federal employment and her diagnosed feet conditions.
On September 7, 2017 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. With her request she submitted a letter from Dr. Del Monte of
even date. Dr. Del Monte noted that appellant was currently under his care for bilateral nerve
entrapments, as well as plantar heel spurs. He noted that she had undergone a surgical correction
of the left foot on June 30, 2017. Appellant still had right foot pain and was undergoing a course
of physical therapy for the left foot following surgery. Dr. Del Monte opined that her podiatric
conditions had a direct relationship to her employment. He noted that appellant had worked for
many years on a concrete floor and that this type of work surface had a direct correlation to the
plantar heel spurs. Dr. Del Monte further noted that her employment contributed to her tarsal
tunnel syndrome, opining that, while she had an entrapped nerve, hours of standing had increased
the level of pain she suffered. He observed that appellant’s podiatric conditions could occur to
anyone, but he explained her employment had a direct correlation to her conditions as the work
environment with concrete floors, standing in place without leaning, and walking long distances
had each contributed to the conditions.
On January 8, 2018 a telephonic hearing was held before an OWCP hearing representative.
By decision dated February 14, 2018, an OWCP hearing representative affirmed the
August 10, 2017 decision finding that the evidence of record was insufficient to establish causal
relationship between appellant’s diagnosed conditions and the accepted factors of her federal
employment.
On August 23, 2018 appellant, through counsel, requested reconsideration of the decision
dated February 14, 2018. With the request, counsel submitted a July 23, 2018 report from
Dr. Del Monte. Dr. Del Monte noted that appellant presented to his office on March 30, 2017 with
complaints of pain in her heel and pain in the third interspace of the left foot. Appellant told him
that the pain had been present for some time and had been aggravated by her employment as a
postal worker, as she stood for her entire workday on a concrete floor with no anti-fatigue mat.
She stated that, when she stood for up to eight hours at a time on a concrete surface, she noticed
increased pain in the foot and posterior leg. On physical examination, Dr. Del Monte noted pain
in the medial plantar tubercle of the left foot, pain on palpation of the third interspace with positive
Tinsel’s and Valleix signs upon palpation, and moderate pain upon palpation of the tarsal tunnel
region. Appellant was released to work in summer 2018 with modifications including different
shoe gear, rest periods, and a padded mat for standing. Dr. Del Monte opined that her job was

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directly related to her conditions and if modifications did not take place, she may suffer further
complications to the bilateral feet.
By decision dated November 20, 2018, OWCP denied modification of the February 14,
2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (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 identified employment factors.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale that explains the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).10

3

Id.

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

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

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

S.C., id.; T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, supra note 7.

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a bilateral foot
condition causally related to the accepted factors of her federal employment.
In support of her claim appellant submitted a series of reports from Dr. Del Monte. In these
reports, Dr. Del Monte consistently diagnosed a left plantar calcaneal heel spur, entrapment of the
posterior tibial nerve of the left foot, bilateral tarsal tunnel syndrome, a lesion of the plantar nerve
of the left lower limb, and an acquired short Achilles tendon of the left ankle.
On May 24, 2017 Dr. Del Monte opined that appellant’s left foot pain, tarsal tunnel
syndrome, and plantar heel pain were related to and contributed to by appellant’s employment. In
a June 7, 2017 letter, he opined that her conditions had been exacerbated by her employment,
noting that she spent a majority of her workday standing and walking. Dr. Del Monte noted that
this type of work had caused the spur and nerve entrapment to worsen. On June 20, 2017 he noted
that appellant worked as a postal employee and that her employment had contributed to her pain
as she walked and stood on concrete floors that did not offer shock absorption or cushioning. In a
postoperative report dated July 5, 2017, Dr. Del Monte opined that her left foot condition was work
related and that her pain had been aggravated by the nature of her employment. On September 7,
2017 he opined that appellant’s podiatric conditions had a direct relationship to her employment.
Dr. Del Monte noted that she had worked for many years on a concrete floor, and that this type of
work surface had a direct correlation to the plantar heel spurs. He further noted that appellant’s
employment contributed to her tarsal tunnel syndrome, stating that, while she had an entrapped
nerve, hours of standing had increased the level of pain she suffered. Dr. Del Monte observed that
her podiatric conditions could occur to anyone, but he felt that her employment had a direct
correlation to her conditions, as the work environment with concrete floors, standing in place
without leaning, and walking long distances all contributed to the conditions. On July 23, 2018 he
opined that appellant’s job was directly related to her conditions and if modifications did not take
place, she may suffer further complications to the bilateral feet.
Although Dr. Del Monte consistently opined that appellant’s feet conditions were
employment related, he did not provide a rationalized opinion explaining how the accepted factors
of her federal employment, such as standing and walking continuously on concrete floors, could
have caused or aggravated her bilateral foot condition. Generalized statements do not establish
causal relationship as they are unsupported by adequate medical rationale explaining the
pathophysiologic mechanism by which the accepted employment duties caused, aggravated, or
accelerated appellant’s bilateral foot conditions.11 The Board has held that the mere fact that her
symptoms arise during a period of employment or produce symptoms revelatory of an underlying
condition does not establish a causal relationship between her condition and her employment
factors.12 Thus, the Board finds that Dr. Del Monte’s reports are insufficiently rationalized to

11

See A.P., Docket No. 19-0224 (issued July 11, 2019); K.W., Docket No. 10-98 (issued September 10, 2010).

12
See C.L., Docket No. 16-1078 (issued October 21, 2016); Richard B. Cissel, 32 ECAB 1910, 1917 (1981);
William Nimitz, Jr., 30 ECAB 567, 570 (1979).

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establish that appellant’s conditions were either caused or aggravated by the accepted factors of
her federal employment.
The June 30, 2017 operative report detailing appellant’s left foot gastrocnemius recession,
tarsal tunnel release, and a plantar fasciotomy did not contain an opinion on causation. The Board
has held that 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.13 Consequently, the June 30,
2017 operative report is insufficient to establish appellant’s claim.
On appeal, counsel asserts that Dr. Del Monte’s opinion was sufficient to establish causal
relationship. As noted above, the Board finds that Dr. Del Monte’s various reports are insufficient
to establish causal relationship.
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 bilateral foot
condition causally related to the accepted factors of her federal employment.

13

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

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ORDER
IT IS HEREBY ORDERED THAT the November 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2019
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, MOUNT
WASHINGTON POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 21-1416
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On September 26, 2021 appellant filed a timely appeal from an August 18, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 17, 2021 appellant, then a 47-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed tarsal tunnel syndrome due to factors of her federal
employment. She indicated that her ankle would hurt while she worked, but did not hurt if she
1

5 U.S.C. § 8101 et seq.

avoided walking, standing, or ascending and descending stairs. Appellant noted that she first
became aware of her condition on February 1, 2021 and realized its relationship to her federal
employment on March 16, 2021. She stopped work on March 12, 2021.
In a progress note dated March 18, 2021, Dr. Pardeep Paul Singh Dhanoa, a Board-certified
family medicine specialist, noted that appellant complained of right plantar foot pain for the past
three months, followed by left foot pain which she attributed to overcompensation. He noted that
she asserted that the pain was the worst at the end of the day and for the past few weeks it had
spread to her heels. Dr. Dhanoa diagnosed bilateral foot pain and bilateral bunion and
recommended rest, ice, stretching, a referral to podiatry, and that appellant remain off work until
March 20, 2021.
In a medical note dated April 16, 2021, Dr David A. Wood, a podiatrist, recounted
appellant’s complaints of chronic foot pain, right worse than left, which was constant and
worsened with weight bearing. He noted that his physical examination was remarkable for a
positive Tinel’s sign with tibial nerve percussion, and that her x-rays revealed inferior heel spur,
bunion deformity, and hammertoes. Dr. Wood suspected tarsal tunnel syndrome and
recommended that appellant undergo a magnetic resonance imaging (MRI) scan and a nerve
conduction velocity (NCV) study.
In an after visit summary dated May 6, 2021, Dr. Syed A. Salahuddin, a Board-certified
neurologist, examined appellant and diagnosed tarsal tunnel syndrome.
In a note of even date, Dr. Wood advised appellant that the NCV study had confirmed tarsal
tunnel syndrome. He again recommended an MRI scan to determine the specific cause of the
condition.
In a May 14, 2021 note, Dr. Wood noted that he had reviewed an MRI scan and observed
varicosities distal to the port pedis, which he opined that were likely contributing to tarsal tunnel
syndrome. He recommended surgical release of the tarsal tunnel and porta pedis and ligation of
varicose veins. Dr. Wood explained that tarsal tunnel syndrome was a loose diagnosis without a
definitive mass and that chronic swelling was a potential complication. In a separate note of even
date, he indicated that appellant was unable to work, and that she would be undergoing surgery for
her diagnosed conditions.
In an attending physician’s report (Form CA-20) dated May 25, 2021, Dr. Wood diagnosed
right tarsal tunnel syndrome and varicose veins. He checked a box marked “Yes” indicating that
the conditions were caused or aggravated by an employment activity, which he described as
“overuse of extremities.” Dr. Wood noted that appellant continued to be disabled from working.
In a June 28, 2021 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
provided a questionnaire for her completion. By separate development letter of even date, OWCP
requested additional information from the employing establishment, including comments from a
knowledgeable supervisor on the accuracy of appellant’s statements. It afforded both parties 30
days to submit the necessary evidence.

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OWCP thereafter received a form report by Dr. Wood dated April 12, 2021, which noted
chronic foot pain with an onset of March 18, 2021.
Appellant submitted a completed response to OWCP’s development questionnaire dated
July 2, 2021. She attributed her claimed conditions to repetitive walking, bending, stooping,
lifting, and climbing stairs while carrying mail between 8 to 12 hours per day for the past 18 years.
In a letter dated July 21, 2021, Dr. Wood noted that appellant was unable to work due to
her inability to stand or walk for any length of time secondary to tarsal tunnel syndrome.
In a narrative report dated July 27, 2021, Dr. Wood outlined his visits with appellant and
the results of the NCV study and MRI scan. He diagnosed right tarsal tunnel syndrome and
varicosities and indicated that conservative treatments and time off from work had failed to resolve
her conditions. Dr. Wood noted that appellant would be undergoing surgery to include release of
the tarsal tunnel and ligation of varicosities. When asked to describe her specific employment
duties/activities, he indicated that she was unable to stand or walk for any substantial time. When
asked to provide a medical explanation for how appellant’s federal employment duties caused,
contributed to or aggravated her medical condition, Dr. Wood responded that she was unable to
work at that time.
By decision dated August 18, 2021, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish causal relationship between her
diagnosed medical conditions and the accepted employment factors. Consequently, it found that
she had not met the requirements to establish an injury or medical condition causally related to the
accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an emplo yee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

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

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alleged to have caused or contributed to the presence or occurrence of the disease o r condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 The opinion of the physician must be based upon a complete factual
and medical background, must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors. 8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
In his July 27, 2021 narrative report, Dr. Wood diagnosed right tarsal tunnel syndrome and
varicosities and discussed appellant’s upcoming surgery. He did not, however, provide an opinion
on causal relationship between her diagnosed conditions and the accepted factors of federal
employment. The Board has held that a medical report lacking an opinion on causal relationship
is of no probative value. 9 Therefore, the Board finds that Dr. Wood’s January 27, 2021 report is
insufficient to establish appellant’s burden of proof.
In his additional reports and notes dated April, May, and July 2021, Dr. Wood diagnosed
right tarsal tunnel syndrome and varicosities, but did not provide an opinion on causal relationship.
Similarly, in his March 18, 2021 note, Dr. Dhanoa diagnosed bilateral foot pain and bunions, but
did not provide an opinion on causal relationship. As noted, the Board has held that a medical
report lacking an opinion on causal relationship is of no probative value. 10 Therefore, these reports
are also insufficient to establish appellant’s burden of proof.
As appellant has not submitted rationalized medical evidence sufficient to establish a
medical condition causally related to the accepted employment factors, the Board finds that she
has not met her burden of proof.

6

P.L., Docket No. 19-1750 (issued March 26, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Dolores C. Ellyett, id.
7

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018).

9

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

10

Id.

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 18, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 08-2243
Issued: July 20, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 12, 2008 appellant filed a timely appeal from a May 7, 2008 merit decision of
the Office of Workers’ Compensation Programs, denying his claim for an employment-related
hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this claim.
ISSUE
The issue is whether appellant established that he sustained an employment-related
hearing loss causally related to factors of his federal employment.
FACTUAL HISTORY
On August 11, 2006 appellant, then a 59-year-old airway transportation system specialist,
filed an occupational disease claim (Form CA-2) alleging that he sustained hearing loss due to
his employment.

By letter dated August 17, 2006, the Office notified appellant of the deficiencies in his
claim and requested that he provide additional information. In a letter of the same date, it also
requested that the employing establishment provide information relating to appellant’s
employment-related noise exposure, including the location, sources and frequency and decibel
levels of noise exposure.
In response, appellant submitted a statement alleging that sometime in the mid-1980s,
while working at the Kansas City International Airport, he experienced a loud tone in his left ear
from a Pax phone system and that his hearing had decreased during his employment over the past
29 years. He noted that, while he sustained a loss in both ears, his left ear sustained a greater
loss.
Appellant summarized his federal employment history. He stated that from July 1977 to
December 1992 he worked on environmental systems in facilities associated with several Kansas
airports. During this time, appellant’s noise exposure varied from day-to-day but some days
were very noisy for several hours due to running engine generators, servicing centrifugal chillers,
water pumps, air handlers and air compressors and working on navigational aids near the
runways. Appellant estimated that he was exposed to two or more hours of moderate-to-high
noise every day, although sometimes when repairing equipment associated with pneumatic
controls, centrifugal chillers or engine generators the exposure could be six to eight hours per
day for several days. From December 1992 to March 1999 he worked as an environment support
unit supervisor at Kansas City International Airport, where he was exposed to the same noise
levels in his prior position but less frequently. From March 1999 to December 2002 appellant
worked in the Great Plains System Management Safety Office, where he was exposed to very
loud noise in engine generator facilities and at facilities adjacent to runway facilities that could
last more than an hour at a time. Beginning in December 2002, he served as a member of a
technical support staff and, while much of his work was over the telephone, he visited to various
airports when necessary. Appellant also served as a resident engineer from October 2005 until
February 2006, where he was exposed to noise eight hours a day, five days a week, for nearly
three months from three temporary air conditioning units. He alleged that these units added to
the ambient noise from the RADAR equipment and was very irritating.
In a July 21, 2006 medical report, Dr. Gregory J. Mulcahy, a Board-certified
otolaryngologist, noted appellant’s complaints of hearing loss, especially in the left ear, dating
back 10 years or more. He advised that appellant was exposed to significant occupational noise
exposure during his 8-year employment in the Air Force and 20 years with the employing
establishment. Appellant stated that back in the late 1980s he sustained acute left ear hearing
loss due to a blast of noise in his ear and that his hearing has gradually and persistently
worsened. He also reported faint tinnitus bilaterally, no family history of hearing loss and that he
felt his working on a noisy project last year precipitated a worsening of his hearing. A tuning
fork evaluation revealed that appellant lateralized to the right side and showed a positive Rinne
evaluation bilaterally. Dr. Mulcahy summarized the results of an attached audiogram, finding
that appellant had normal hearing up to 3,000 hertz (Hz), but then a sharp drop to about 50
decibels at 4,000 Hz and above. On the left side appellant had mixed hearing loss that was
sensorineural in the low and mid frequencies around 40 decibels with a conductive component
taking him down to 65 decibels in the lowest frequencies, with a little improvement and then a
fairly severe high frequency drop afterward. The audiogram also revealed type A tymps, speech

2

recognition thresholds of 20 decibels on the right and 60 decibels on the left and 100 percent
speech discrimination on the right and 76 percent on the left. Dr. Mulcahy diagnosed
noise-induced sensorineural hearing loss bilaterally. He opined that appellant had a large,
unusual conductive pattern on the left ear but there was no clear reason for conductive hearing
loss.
On December 18, 2006 the Office referred appellant to Dr. Mark J. Maslan, a Boardcertified otolaryngologist, for a second opinion evaluation. It prepared a statement of accepted
facts addressing his federal work history and noise exposure commencing 1977. The Office
stated that from 1977 to 1992 and from 1992 to 1999 appellant’s noise exposure varied and that
no hearing protection was worn other than earmuffs in the engine generator rooms. From 1999
to 2002 appellant was exposed to noise intermittently and that he wore earmuff or plugs and
from 2002 to present he was sometimes exposed to noise, but was provided hearing protection.
On January 16, 2007 appellant was examined by Dr. Maslan. In a January 19, 2007
medical report, Dr. Maslan reviewed appellant’s records and the June 2006 audiogram. He
summarized appellant’s 30-year employment with the employing establishment, stating that from
1977 to 1992 he worked around generators, centrifugal chillers, boilers and water pumps, as well
as jet aircraft operations, however, none of his exposure was prolonged. Dr. Maslan reported
that appellant would check the chillers for about a half an hour every morning and intermittently
during the day for anywhere as long as an hour, but rarely for extended periods of time and that
during these times he would not wear ear protection. An audiogram revealed essentially normal
hearing in the right ear up to higher pitches where there was a definite decrease in hearing.
Appellant’s hearing went down to 50 decibels at 6,000 Hz. The audiogram further revealed poor
function in the left ear with marked sensorineural hearing loss and marked speech discrimination.
Dr. Maslan opined that neither appellant’s history nor his hearing loss patterns were compatible
with a noise-induced loss.
In a supplemental report dated January 29, 2007, Dr. Maslan diagnosed mild-to-moderate
high frequency sensorineural hearing loss and tinnitus based on the January 16, 2007
examination. Where asked whether appellant showed a sensorineural loss in excess of what
would be normally predicated on the basis of presbycusis, Dr. Maslan answered no. Dr. Maslan
answered “not applicable: when asked to provide all other relevant historical facts relating to the
hearing loss, including emotional disorders, systemic disease, local infections, ototoxic drug
usage or surgery. He opined that appellant’s sensorineural hearing loss was not, in part or all,
due to noise exposure encountered in his federal civilian employment. Dr. Maslan reiterated that
neither appellant’s history nor his hearing loss were compatible with noise-induced hearing loss.
The Office submitted appellant’s case to an Office medical adviser. On February 1, 2007
the Office medical adviser reviewed the report of Dr. Maslan. He recommended that the Office
not accept that appellant’s audiometric abnormalities, as shown in the January 16, 2007 testing,
were due to noise exposure in his civilian federal employment.
By decision dated February 7, 2007, the Office denied the claim, finding that appellant
did not establish that his hearing loss resulted from the accepted employment factors. It found
that neither appellant’s history nor hearing loss patterns were compatible with noise-induced
hearing loss. The Office reissued this decision on March 20, 2007 to protect appellant’s appeal

3

rights, as the initial mailing containing the decision had been returned to the Office as
undeliverable.
On March 14, 2008 appellant filed a request for reconsideration. He noted that he was
providing prior audiograms and noise studies he obtained from a RADAR factory, where he
worked for over three months from late 2005 until early 2006. Appellant contended that
Dr. Maslan was incorrect in stating that he had not been exposed to much noise and that he spent
many hours every day working in noisy environments. He mentioned that he spent six to eight
hours a day, one to two days a week, servicing engine generators from 1977 to 1990, as well as
several hours each week working alongside active taxiways and runways with large commercial
jets constantly arriving and departing. Appellant also stated that he spent time every day from
March through November maintaining the centrifugal chiller.
Appellant submitted 1979, 1982 and 1984 audiogram testing results, as well as a
March 12, 1985 medical report from Dr. Pat A. Barelli, a Board-certified otolaryngologist, who
noted his claims that he was exposed in September 1984 to noise due to a telephone system at his
work and that he had progressive hearing loss and dizziness. Dr. Barelli stated that a recent
March 4, 1985 audiogram showed consistent hearing loss, as compared with a February 1985
audiogram taken by the employing establishment. He diagnosed moderate neurosensory hearing
loss with an undetermined cause and left, moderately severe tinnitus. Dr. Barelli further stated
that a diagnostic scan was performed, ruling out acoustic neuroma or pathology of the brain or
ear and opined that this finding supported the concept that appellant’s hearing loss was viral or
noise related in origin.
On March 31, 2008 the Office referred the record to the same Office medical adviser. In
an April 5, 2008 medical report, the Office medical adviser stated that Dr. Maslan’s medical
reports explained why the Office could not accept that appellant sustained hearing loss due to
noise exposure in his civilian employment. He found that none of the evidence submitted by
appellant changed Dr. Maslan’s finding that his pattern of hearing loss was not the pattern seen
in noxious, noise-induced hearing loss. The Office medical adviser noted that appellant was not
entitled to a schedule award due to hearing loss.
By decision dated May 7, 2008, the Office found that appellant did not submit sufficient
factual and medical evidence to establish that he was exposed to hazardous noise levels for the
length of time necessary to establish noise-induced hearing loss. It also found that the medical
evidence did not support that he sustained noise-induced hearing loss due to exposure to
hazardous noise levels during his civilian federal employment. The Office relied upon the Office
medical adviser’s April 5, 2008 report.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of his claim by the weight of the reliable,

1

5 U.S.C. §§ 8101-8193.

4

probative and substantial evidence,2 including that he is an “employee” within the meaning of
the Act3 and that he filed his claim within the applicable time limitation.4 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
ANALYSIS
The issue is whether appellant established that he sustained an employment-related
hearing loss due to noise exposure during his federal employment. The Board finds this case is
not in posture for decision.
In order to establish a compensable injury, appellant is required to establish that his
hearing loss resulted from noise exposure during his employment.7 He submitted a July 21, 2006
medical report from Dr. Mulcahy, who opined that appellant sustained noise-induced
sensorineural hearing loss bilaterally and that he also had a large, unusual conductive hearing
loss pattern on the left hear, with no reason for conductive hearing loss. Appellant also
submitted a March 12, 1985 report from Dr. Barelli, who opined that his hearing loss was viral or
noise related in origin.
The Office referred appellant to Dr. Maslan for a second opinion evaluation. On
January 19, 2007 Dr. Maslan opined that neither appellant’s history nor his hearing loss patterns
were compatible with noise-induced hearing loss. He repeated this finding in a January 29, 2007
medical report and further stated that appellant’s diagnosed mild-to-moderate high frequency
sensorineural hearing loss and tinnitus were not caused by his noise exposure during his federal
civilian employment. In medical reports dated February 1, 2007 and April 5, 2008, an Office
medical adviser noted that causal relationship was not established based on Dr. Maslan’s
findings.
2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See Leon Thomas, 52 ECAB 202 (2001).

5

The Board finds that Dr. Maslan’s medical opinion is of diminished probative value and
an insufficient basis to support the Office’s denial of appellant’s claim.
Dr. Maslan opined that appellant’s hearing loss patterns were incompatible with noiseinduced hearing loss. However, he failed to provide a fully rationalized medical opinion
explaining his conclusion. Dr. Maslan stated that appellant did not show a sensorineural loss in
excess of what would be normally predicated on the basis of presbycusis. Further, where asked
to comment on historical facts relevant to appellant’s hearing loss, including emotional disorders,
systemic disease, local infections, ototoxic drug usage, and surgery, Dr. Maslan answered “not
applicable.” It appears that he was, thereby, indicating that appellant’s hearing loss was solely
due to presbycusis. However, Dr. Maslan failed to provide a sufficient explanation of how he
concluded that presbycusis was the cause of appellant’s hearing loss. Presbycusis is defined as a
progressive bilaterally symmetrical perceptive hearing loss occurring with advancing age.8
Therefore, Dr. Maslan’s opinion on causal relationship is of diminished probative value.9
Moreover, the Board finds that Dr. Maslan’s opinion is of diminished probative value
because it was based on an inaccurate factual background.10
In summarizing appellant’s exposure to noise during his employment, Dr. Maslan only
referred to the employment period from 1977 to 1992, where appellant worked without ear
protection around generators, centrifugal chillers, boilers, water pumps and jet aircrafts. He
noted that appellant checked the chillers for about half an hour every morning and intermittently
during the day for anywhere as long as an hour, but that he was rarely exposed to noise for
extended periods of time. The basis for Dr. Maslan’s information regarding appellant’s limited
exposure is unclear, as the statement of accepted facts only stated that during this period of
appellant’s employment his noise exposure varied from day-to-day. Moreover, this description
is inconsistent with appellant’s statements regarding his exposure to noise from 1977 to 1992, as
he alleged that he was exposed to two or more hours of moderate to high noise daily, although
occasionally while repairing certain equipment the exposure could be from six to eight hours per
day for several days.
Dr. Maslan failed to address appellant’s exposure to varying levels of noise while
working for the Federal Government from 1992 through present. The statement of accepted
facts provided descriptions of appellant’s positions and noise exposure during this time;
however, it appears that the physician did not consider any exposure after 1992 when finding that
appellant’s history was incompatible with noise-induced hearing loss.

8

DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 27th Edition (1988).

9

See Linda I. Sprague, 48 ECAB 386 (1997); Jennifer L. Sharp, 48 ECAB 209 (1996).

10

The Board notes that the Office procedure manual provides that it is generally accepted that hearing loss may
result from prolonged exposure to noise levels above 85 decibels. Acoustic trauma may, however, result from levels
below 85 decibels if exposure is sufficiently prolonged. The Office, therefore, does not request the claimant show
exposure to injurious noise in excess of 85 decibels as a condition to approval of the claim. Federal (FECA)
Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.8(a) (October 1990).

6

To assure that the report of a medical specialist is based upon a proper factual
background, the Office provides information through the preparation of a statement of accepted
facts. When a second opinion physician does not use the statement of accepted facts as the
framework in forming his opinion, the probative value of the opinion is diminished or negated
altogether.11 As Dr. Maslan did not follow the statement of accepted facts, as he misstated
appellant’s employment-related exposure from 1977 to 1992 and failed to address appellant’s
employment after 1992.
It is well established that proceedings under the Act are not adversarial in nature, nor is
the Office a disinterested arbiter. While the claimant has the burden to establish entitlement to
compensation, the Office shares the responsibility in the development of the evidence to see that
justice is done.12 As the Office undertook development of the evidence by referring appellant to
a second opinion physician, it has the duty to secure an appropriate report addressing the relevant
issues.13 Because Dr. Maslan did not base his report on an accurate factual history and failed to
provide a rationalized medical opinion to support his findings, the case will be remanded to the
Office for further development of the medical evidence.
The Board further notes that the employing establishment did not provide any actual
studies or evidence regarding appellant’s duration and levels of exposure to hazardous noise
during his federal employment. The Office initially requested this information from the
employing establishment in an August 17, 2006 letter. However, it failed to follow through in its
request despite the employing establishment’s failure to respond. Because the levels and
duration of exposure to hazardous noise is the type of evidence normally obtained from the
employing establishment, the Office has a particular responsibility to develop this evidence.14
On remand, the Office should make additional requests to the employing establishment and, if
possible, make findings of fact concerning the noise level in the employing establishment and the
length and period of such exposures.15

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
12

Richard Kendall, 43 ECAB 790 (1992); Isidore J. Gennino, 35 ECAB 442 (1983).

13

When the Office refers a clamant for a second opinion evaluation and the report does not adequately address
the relevant issues, the Office should secure an appropriate report on the relevant issues. Ayanle A. Hashi, 56 ECAB
234 (2004). See also Mirna Cruz, Docket No. 06-183 (issued April 5, 2006) (where the Board found that the second
opinion physician’s medical report was of little probative value and could not constitute a basis for denying the
claim because it was not based on the statement of accepted facts. The Board remanded the case to the Office).
14

See Richard Kendall, 43 ECAB 790 (1992); Isidore J. Gennino, 35 ECAB 442 (1983). See also R.B., supra
note 12 (where the Board remanded the case because the Office failed to obtain evidence from the employing
establishment regarding the duration and levels of the claimant’s noise exposure prior to denying his claim for
hearing loss. The Office only sent one development letter to the employing establishment requesting noise survey
reports and periods and sources of appellant’s noise exposure. The employing establishment did not address these
requests in its controversion of the claim).
15

See David Rossman, 9 ECAB 454 (1957) (where the Board remanded the case finding that the record was
devoid of evidence from the employing establishment and the claimant regarding the levels and length of noise
exposure and, thus, was not in posture for decision regarding the claimant’s claim for hearing loss).

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CONCLUSION
The Board finds that this case is not in posture for a decision regarding whether appellant
established that he sustained an employment-related hearing loss in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 7, 2008 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded for further proceedings consistent
with this opinion.
Issued: July 20, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Bothell, WA, Employer
__________________________________________

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

Docket No. 10-1553
Issued: March 21, 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 May 25, 2010 appellant filed a timely appeal from the April 22, 2010 decision of the
Office of Workers’ Compensation Programs denying her compensation claim. 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 claim.
ISSUE
The issue is whether appellant sustained an injury on November 29, 2008 while in the
performance of duty.
FACTUAL HISTORY
On March 30, 2009 appellant, then a 53-year-old disaster assistance employee, filed a
traumatic injury claim alleging that on November 29, 2008 while on temporary travel status she
1

5 U.S.C. § 8101 et seq.

was attacked at the Embassy Suites Hotel in Houston, Texas, sustaining injuries to her neck and
back. She met an Englishman at a hotel who claimed to work for Exxon Mobil and entered his
room at 10:30 p.m. to watch football highlights on his big screen television and was assaulted.
After entering the assailant’s room, appellant realized she should not be there and got up to
leave. He sexually assaulted her and threw her around the room causing her to sustain a sprained
neck and back, post-traumatic stress disorder and depression. While deployed to Houston due to
Hurricane Ike, the incident occurred “after work.” Appellant was treated at a local emergency
room on December 8, 2008 when she realized that she could no longer handle the matter and
reported the incident to the police that day. She reported the incident to Alan Dobson, her
supervisor, on December 2, 2008. Appellant stopped work on December 20, 2008.
In a May 15, 2009 statement, the employing establishment controverted the claim
asserting that appellant’s description of injury suggested that it did not occur while in the
performance of duty. Appellant was deployed to Houston and had gone to dinner across the
street from her hotel and stayed after dinner to watch a football game. She reported that she had
a casual conversation with someone at the restaurant and alleged that later that night the man
sexually assaulted her. The employer noted at the time of the alleged incident, she was not on
the premises of a duty station or in the performance of duty.
In a June 22, 2009 decision, the Office denied appellant’s claim, finding that she was not
injured while in the performance of duty.
Appellant requested reconsideration. She submitted reports dated February 26 to
June 17, 2009 from Rita Van Dyck, a therapist, who diagnosed post-traumatic stress disorder,
adjustment disorder with mixed anxiety and depressed mood, sexual assault in November 2008,
inability to work and severe financial stress. In a February 26, 2009 report, Ms. Van Dyck noted
that appellant reported being sexually assaulted in November 2008 when she was deployed by
her employer to assist with Hurricane Ike. Appellant stated that on Thanksgiving evening she
was watching the Oregon State/University of Oregon football game on a big screen at a tavern
near her hotel when a guy sat next to her and appeared to be nondescript. She indicated that she
was always careful about her safety and kept watching the game and not really engaging in
conversation with him.
Appellant was treated by Dr. Gordon P. Anderson, a Board-certified family practitioner,
on December 23, 2008 for a hamstring pull, abdominal muscle strain and sexual assault. She
related to the physician that on November 29, 2008 she was watching a football game with a
group of people and was assaulted by a man without sexual penetration. Appellant sought
treatment on May 14 and June 15, 2009 from Dr. James M. Kassube, a Board-certified
orthopedic surgeon, for neck and low back pain. Dr. Kassube noted that appellant continued to
be plagued with a post-traumatic stress disorder since her attack. He diagnosed myofascial pain,
low back pain and radiculitis recommended trigger point injections. A March 29, 2009 report
from Dr. Phillip Taggart, a Board-certified family practitioner, noted treating appellant for
asthmatic bronchitis. Dr. Taggart diagnosed work-related stress, chronic otitis and cervical disc
disease.

2

In a July 31, 2009 decision, the Office denied appellant’s reconsideration request on the
grounds that it was insufficient to warrant further review of the merits.
On March 15, 2010 appellant requested reconsideration. In a February 5, 2010 statement,
her attorney contended that employees on travel status were covered 24 hours a day for all
reasonable incidents in their temporary duty including injuries off premises during meal time. At
the time of the incident, appellant was deployed to Houston, Texas, and was having dinner in a
restaurant and watching an Oregon football game. She reported that appellant was introduced to
the assailant who claimed he was staying at a nice hotel at which some of appellant’s coworkers
were also staying. Counsel indicated that appellant proceeded to see the hotel facility for herself
and on behalf of other employees of the employing establishment as the employer often had a
need to locate available housing. Appellant was doing this when she was assaulted by the man.
Counsel argued that appellant was acting in a representative capacity for the employer when she
went across the street to see the hotel facility with the assailant.
Appellant submitted a January 19, 2010 declaration noting that in November 2008 she
was deployed to Houston as a community relations officer and was on active duty 24 hours a day
seven days a week. During Hurricane Ike, her agency was expecting over 200 new employees to
assist in its efforts and she was known as the go-to person to find housing. On November 29,
2008 she was having dinner and watching a football game at a restaurant near the hotel where
she was staying and engaged in a conversation with a gentleman about the facilities at the hotel
across the street for a possible stay for herself or other employees. Appellant went across the
street to look at the hotel and took photos. While she was checking the facility, she was attacked
and sexually assaulted by the man who was showing her the hotel. She asserted that she was
acting as a representative of the employer.
In a January 21, 2010 declaration, Mr. Dobson, appellant’s supervisor, noted that during
appellant’s deployment she was on duty 24 hours a day seven days a week and often worked a
12-hour day. He stated that agency employees were required to find their own housing and
accommodations could be very difficult to find. Mr. Dobson stated that “it was my
understanding that at the time of the incident, [appellant] had gone across the street with a man to
look at a hotel facility to gather information to give to [employing establishment] employees on
how to register in the area and navigate the disaster recovery process.” He advised that appellant
was acting in a representative capacity as community relations officer and this activity was
reasonably associated with her employment. Appellant submitted a January 27, 2010 declaration
statement from Benard Dew, a cadre manager, who noted that at the time of the incident in
November 2008 he worked with appellant and found hotel rooms to be in short supply as new
staff arrived. He and appellant were trying to identify additional rooms in the area. Mr. Dew
noted appellant was a person of the highest integrity.
Appellant submitted reports from Dr. Kassube dated May 29, 2009 to January 18, 2010.
Dr. Kassube treated appellant for myofascial pain syndrome, cervical neck and thoracic pain and
peripheral neuropathy versus radiculopathy. Appellant submitted physical therapy notes dated
June 29 to August 3, 2009. In a September 22, 2009 report, entitled “corrected version of
previous document,” Dr. Anderson noted that appellant reported being deployed to Houston. On
November 29, 2008 appellant ate at a restaurant after a football game. She went to a hotel where

3

she met an Exxon executive who invited her to look at a hotel across the street. Appellant
reported that other employing establishment employees were there and it was approximately
10:30 at night. She stated that there was no flirtation involved when she went over to check out
the hotel and went to the sixth floor by elevator and leaned over the rail to take pictures. The
assailant invited appellant into his room to check out the big screen TV. Appellant reported that
the man handed her the remote and she entered his room where he grabbed her and assaulted her.
In an April 22, 2010 decision, the Office denied modification of the prior decisions
finding that appellant was not engaged in activities on November 29, 2008 that were reasonably
incidental to her duties while on travel status.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of her duty.2 The phrase sustained while in the performance of her duty is regarded
as the equivalent of the coverage formula commonly found in workers compensation laws,
namely, arising out of and in the course of employment.3 Arising in the course of employment
relates to the elements of time, place and work activity. An injury is said to arise in the course of
employment when it takes place within the period of the employment, at a place where the
employee reasonably may be, and while they are fulfilling their duties or are engaged in doing
something incidental thereto. Arising out of employment relates to the causal connection
between the employment and the injury claimed.4
Under the Act, an employee on travel status or a temporary-duty assignment or special
mission for her employer is in the performance of duty and, therefore, under the protection of the
Act 24 hours a day with respect to any injury that results from activities essential or incidental to
her special duties.5 Examples of such activities are eating,6 returning to a hotel after eating
dinner and engaging in reasonable activities within a short distance of the hotel where the
employee is staying.7 However, when a claimant voluntarily deviates from such activities and
engages in matters, personal or otherwise, which are not incidental to the duties of his or her
temporary assignment, they cease to be under the protection of the Act. Any injury occurring

2

5 U.S.C. § 8102(a).

3

Bernard D. Blum, 1 ECAB 1 (1947).

4

See Charles Crawford, 40 ECAB 474 (1989) (the phrase arising out of and in the course of employment
encompasses not only the concept that the injury occurred in the work setting, but also the causal concept that the
employment caused the injury); see also Robert J. Eglinton, 40 ECAB 195 (1988); Clayton Varner, 37 ECAB 248
(1985); Thelma B. Barenkamp (Joseph L. Barenkamp), 5 ECAB 228 (1952).
5

Ann P. Drennan, 47 ECAB 750 (1996); Janet Kidd (James Kidd), 47 ECAB 670 (1996); William K. O Connor,
4 ECAB 21 (1950).
6

Michael J. Koll, Jr., 37 ECAB 340 (1986); Carmen Sharp, 5 ECAB 13 (1952).

7

Ann P. Drennan; Janet Kidd (James Kidd), supra note 5; Theresa B.L. Grissom, 18 ECAB 193 (1966).

4

during these deviations is not compensable.8 Examples of such deviations are visits to relatives
or friends while in official travel status,9 visiting nightclubs and bars,10 skiing at a location 60
miles from where an employee is undergoing training11 and taking a boat trip during nonworking
hours to view a private construction site.12
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment.13
ANALYSIS
Appellant alleged that on November 29, 2008 she was in temporary travel status when
she was sexually assaulted after entering a man’s hotel room at 10:30 p.m. to watch football
highlights on his big screen television. She asserted that she sustained neck and low back
injuries and post-traumatic stress syndrome. Appellant contends that the injury arose in the
performance of duty because she was on a temporary-duty assignment away from her regular
place of employment and was covered by the Act 24 hours a day.
The fact that an employee is on a special mission or in travel status during the time that a
disabling condition manifests itself does not raise an inference that the condition is causally
related to the incidents of the employment. The evidence does not support that appellant’s
claimed conditions resulted from activities reasonably incidental to her employment.
Appellant’s participation in viewing football highlights in the hotel room of a man she met at a
nearby tavern at 10:30 p.m., after work, is not incidental to her employment as a disaster
assistance employee on temporary duty for hurricane assistance. The Board finds that
accompanying a relative stranger to his hotel room was a personal deviation from the normal
incidents of her duty status.
When a claimant voluntarily deviates from work activities, or activities reasonably
incidental to her work, and engages in matters, personal or otherwise, which are not incidental to
the duties of his or her temporary assignment, they cease to be under the protection of the Act.
Any injury occurring during these deviations is not compensable.14
8

Id.

9

Ethyl L. Evans, 17 ECAB 346 (1966); Miss Leo Ingram, 9 ECAB 796 (1958); George W. Stark, 7 ECAB
275 (1954).
10

Conchita A. Elefano, 15 ECAB 373 (1964).

11

Karl Kuykendall, 31 ECAB 163 (1979).

12

Mattie A. Watson, 31 ECAB 183 (1979).

13

Phyllis A. Sjoberg, 57 ECAB 409 (2006).

14

Karl Kuykendall, supra note 11.

5

Appellant was deployed to Houston, Texas, to assist with the Hurricane Ike recovery
effort. However, her injury did not occur while providing disaster assistance, community
relations, while eating or while at her hotel. Appellant’s injury occurred after dinner, at 10:30
p.m., while located at a different hotel facility while with an individual she described as an
Englishman. The record does support that her injury arose from the duties of her temporary
assignment or an activity reasonably incidental to her employment.
The statements of the incident most contemporaneous with the date of the alleged injury,
specifically the CA-1 filed on March 30, 2009, noted that on November 29, 2008 appellant was
attacked at the Embassy Suites Hotel by an unidentified man who allegedly claimed to work for
Exxon Mobil. Appellant entered his hotel room at 10:30 p.m., apparently to check out football
highlights on a big screen television. She specifically stated on her claim form that the assault
occurred “after work.” Similarly, in a December 23, 2008 report, Dr. Anderson noted appellant
reported that on November 29, 2008 she was watching football game with a group of people in
Houston and was assaulted by a man. Likewise, on February 26, 2009, appellant’s therapist,
Ms. Van Dyck noted appellant reported a similar account of the event that she had been sexually
assaulted in November, 2008 when she was deployed to assist with Hurricane Ike. Appellant
stated that on Thanksgiving evening she was watching the football game at a tavern near her
hotel when a guy sat next to her who appeared to be nondescript.
The Board notes that various accounts of the November 29, 2008 incident are
inconsistent with appellant’s initial depiction of the incident. In a January 19, 2010 declaration,
appellant stated that on November 29, 2008 she was having dinner and watching a football game
at a restaurant near the hotel where she was staying and had a conversation with a gentleman
about the facilities in the hotel across the street for a possible stay for herself or other employees
arriving in town. Appellant asserted that she accompanied the man to the hotel facility across the
street for the purpose of taking pictures to show other employees arriving in Houston and during
this effort she was attacked and sexually assaulted by the Englishman. However, appellant’s
initial account of the incident made no reference to any business purpose for her visit to the
man’s hotel room. The Board has held that contemporaneous evidence is entitled to greater
probative value than later evidence.15 Appellant’s later statement does not clearly explain the
reason why she did not mention any business purpose for her visit to the man’s room. The
earliest evidence from Dr. Anderson16 and Ms Van Dyck also did not mention a work-related
reason for appellant entering the assailant’s hotel room. While appellant noted that she was the
go-to person for finding accommodations for new employees, she did not explain why she chose
to examine the hotel facilities at 10:30 p.m. and why she did not request the hotel staff
accompany her on a tour of the facility.

15

See Katherine A. Williamson, 33 ECAB 1696 (1982); Arthur N. Meyers, 23 ECAB 111 (1971).

16

Dr. Anderson later provided a September 22, 2009 “corrected” version of the report in which he stated that
appellant related that she went to the hotel to check it out and to take pictures. He did not address why he did to
relate this in his more contemporaneous December 23, 2008 report. Dr. Anderson also did not specifically indicate
that appellant related that any of her activities in the assailant’s room were work related other than noting that
appellant felt that her condition was work related due to being “covered 24 hours a day” on her job.

6

Appellant also provided statements from a manager and a supervisor. A January 27,
2010 declaration from Mr. Dew, a manager, who noted at the time of the incident in
November 2008 he was working with appellant and found rooms to be in short supply as new
staff was arriving and he and appellant were trying to identify additional rooms in the area.
Similarly, a January 21, 2010 declaration from Mr. Dobson, appellant’s immediate supervisor
noted that during appellant’s deployment she was on duty 24 hours a day seven days a week and
on many occasions worked 12-hour days. He indicated that agency employees were required to
find their own accommodations which can be very difficult in the recovery. Mr. Dobson noted
being informed that, at the time of the incident, appellant went across the street to gather
information about the hotel facility. The Board notes that the accounts from Mr. Dew and
Mr. Dobson are of limited probative value as neither noted that appellant contemporaneously
related an account of the incident in which the reason for her entry into the assailant’s room
could be considered work related. The fact that appellant often worked extra hours and helped
locate accommodations is insufficient to show that, at the time of the assault, she was performing
work duties, especially in light of appellant’s more contemporaneous statement that the assault
occurred “after work.” These statements also conflict with the employing establishment May 15,
2009 statement which disputed that appellant was in the performance of duty when the assault
occurred.
Appellant has not established that her visit to the Embassy Suites Hotel and the
assailant’s room at 10:30 p.m. on November 29, 2008 was reasonably incidental to her
employment. Rather the evidence supports that she was engaged in a voluntary deviation from
activities incidental to her duties when the assault occurred. There is no evidence that the
deviation ended before the assault occurred. Appellant has not met her burden of proving she
sustained an injury in the performance of duty.
CONCLUSION
The Board finds that appellant failed to establish that she sustained an injury in the
performance of duty on November 29, 2008, as alleged.

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ORDER
IT IS HEREBY ORDERED THAT the April 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 21, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Michael David, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1819
Issued: February 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 4, 2012 appellant, through his representative, filed a timely appeal of a
June 4, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Since more than 180 days has elapsed between the last merit decision on January 28, 2011 and
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 determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim pursuant to 5 U.S.C.
8128(a).
FACTUAL HISTORY
On February 6, 1989 appellant, then a 32-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his back on that date when he turned while carrying
1

5 U.S.C. § 8101 et seq.

his mail pouch. OWCP accepted the claim for a lumbar sprain. The record indicates that
appellant had a separate claim for injuries in a motor vehicle accident on July 10, 2006 which
was accepted for cervical and lumbar sprains, mild cerebral concussion and multiple contusions.2
Appellant returned to a light-duty position. On November 18, 2010 he filed a claim for
compensation (Form CA-7) commencing April 24, 2010. The time analysis CA-7a forms
submitted indicated that, as of April 26, 2010, appellant began working variable part-time hours
and claimed compensation for hours not worked. The forms stated, “No work provided.”
By letter dated November 30, 2010, OWCP stated that the available evidence indicated
that appellant had worked intermittently due to the National Reassessment Process (NRP). It
requested additional factual and medical evidence.
In a decision dated January 28, 2011, OWCP denied the claim for compensation
commencing April 24, 2010. It stated that appellant’s work hours were reduced pursuant to NRP
and there was no medical evidence to establish the claim for compensation.
On December 12, 2011 appellant requested reconsideration of the claim. In a letter dated
December 8, 2011, appellant’s representative stated that OWCP’s denial of the claim was based
on its belief that appellant’s lack of work was pursuant to a reduction-in-force (RIF). The
representative argued that there had been no RIF at the employing establishment, citing the
definition of a RIF as provided by the employing establishment labor agreement. The letter
stated the evidence regarding appellant’s “duties before NRP,” as well as a 2006 work restriction
medical report (OWCP5c) and a duty status report CA-17 form dated October 16, 2009 were
being submitted.3 The evidence submitted included light-duty job offers from 1995, 2005, 2007
and 2009.
Appellant submitted a statement dated December 9, 2009 discussing his light-duty job
assignments. In a July 15, 2010 note, he stated that his job duties were not the same on a daily
basis. Appellant also submitted portions of the employing establishment labor agreement with
respect to RIFs.
By decision dated June 4, 2012, OWCP determined that the request for reconsideration
was insufficient to warrant a merit review of the claim. It found that appellant had not met the
requirements for a merit review of the claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
2

The claims have been administratively combined, with the 1986 claim designated as the master file.

3

There is no indication that medical evidence was submitted with the reconsideration request. The record
contains an October 16, 2009 CA-17 form from a family practitioner in the master file that was received on
January 4, 2011 and an OWCP 5c form dated February 22, 2006 that was received on December 20, 2010.
4

5 U.S.C. § 8128(a) (providing that “[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”).

2

submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(1) shows that OWCP erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent evidence not previously considered by OWCP.”5 20 C.F.R.
§ 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(2) will be denied by OWCP without review of the
merits of the claim.6
ANALYSIS
The merit decision in the case was dated January 28, 2011 and denied appellant’s claim
for intermittent hours of wage loss commencing on or about April 26, 2010. The issue presented
before the Board is whether his application for reconsideration met one of the standards of 20
C.F.R. § 10.606(b)(2) to require OWCP to review the merits of the claim for compensation.
As noted above, an application for reconsideration that shows that OWCP erroneously
applied or interpreted a specific point of law, or advances a relevant legal argument not
previously considered by OWCP, will require a merit review. In this regard, appellant asserts
that OWCP had denied the claim because it believed that he had been subject to a RIF.
Appellant argued that he had not been subject to a RIF and, therefore, OWCP had erred in
denying the claim.
The January 28, 2011 OWCP decision does not make a finding that appellant was subject
to a RIF or deny the claim on that basis.7 It stated that the evidence indicated that his hours had
been reduced pursuant to NRP and the claim was denied because the medical evidence was
insufficient to establish the claim. Appellant did not discuss NRP procedures or show that a
specific point of law was erroneously applied or interpreted. The argument as to a RIF is not
relevant to the issue as there is no indication that OWCP based its decision on a determination
with respect to a RIF. Where the legal argument presented has no reasonable color of validity,
OWCP is not required to reopen the case for merit review.8
The denial of the claim for compensation commencing April 26, 2010 was based on a
review of the medical evidence. In this regard appellant did not submit any new and relevant
evidence. The December 8, 2011 letter referred to the submission of medical evidence, but there
is no indication that additional medical evidence was submitted. The evidence noted was
previously of record. The Board finds that appellant did not submit relevant and pertinent
evidence not previously considered by OWCP.

5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). In the present case, the “merits” of the
claim would be the termination of compensation effective October 13, 2011.
7

As noted in OWCP’s procedures, a true RIF applies to both employees performing full duty as well as
employees working light duty. Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3(b)(2) (October 2009).
8

See Norman W. Hanson, 40 ECAB 1160 (1989).

3

The application for reconsideration 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 provide relevant and pertinent evidence not previously considered by OWCP. The
Board accordingly finds that OWCP properly denied merit review of the case.
On appeal, appellant again states that there was no RIF at the employing establishment.
He noted that the employing establishment had started NRP and it took light-duty work away
from employees. As noted above, the only issue before the Board was whether appellant’s
application for reconsideration has met any of the requirements of 20 C.F.R. § 10.606(b)(2). The
argument as to a RIF was raised by appellant in the application for reconsideration and for the
reasons noted above, is not sufficient to warrant a merit review of the claim for compensation.
CONCLUSION
The Board finds that appellant’s application for reconsideration was not sufficient to
warrant a merit review of the claim for compensation.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 4, 2012 is affirmed.
Issued: February 22, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4