United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF THE ARMY, BROOKE
ARMY MEDICAL CENTER, FORT SAM
HOUSTON, Houston, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1398
Issued: February 3, 2022

Case Submitted on the Record

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

On July 21, 2020 appellant filed a timely appeal from an April 22, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards
assigned Docket No. 20-1398.
On May 17, 2004 appellant, then a 53-year-old general facilities officer, filed an
occupational disease claim (Form CA-2) alleging that she sustained carpal tunnel syndrome
causally related to factors of her federal employment including use of a computer. OWCP initially

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). The
Board, in exercising its discretion, denies appellant’s request for oral argument because the arguments on appeal can
adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal would further
delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and
this decision is based on the case record as submitted to the Board.

accepted right carpal tunnel syndrome and later expanded the acceptance of appellant’s claim to
include bilateral carpal tunnel syndrome and bilateral lesions of the ulnar nerves. 2
By decision dated October 4, 2007, OWCP granted appellant a schedule award for four
percent permanent impairment of the right upper extremity and eight percent permanent
impairment of the left upper extremity.
On April 6, 2015 appellant filed a claim for compensation (Form CA-7) for an increased
schedule award.
In a report dated March 29, 2016, referring to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)3, Dr. James E.
Butler III, a Board-certified orthopedic surgeon, acting as OWCP’s second opinion physician,
calculated a total left upper extremity permanent impairment rating of eight percent; and a total
right upper extremity permanent impairment rating of eight percent.
On April 22, 2016 OWCP forwarded Dr. Butler’s report to Dr. Morley Slutsky, Boardcertified in occupational medicine and serving as a district medical adviser (DMA). It purportedly
received reports from Dr. Slutsky dated May 2 and June 4, 2016, in which he disagreed with
Dr. Butler’s impairment ratings and recommended that appellant had total impairment ratings of
five percent for the right upper extremity and five percent for the left upper extremity.
Dr. Slutsky’s May 2 and June 4, 2016 reports are not present in the current case record.
By decision dated June 16, 2016, OWCP granted appellant a schedule award for one
percent additional impairment to the right upper extremity, for a total of five percent permanent
impairment of the right upper extremity, four percent of which had previously been paid. In
response to a subsequent request for reconsideration, by decision dated August 31, 2017, it denied
modification of the June 16, 2016 schedule award decision.
In a report dated October 15, 2018, Dr. Daniel Valdez, a Board-certified orthopedic
surgeon, found a final combined right upper extremity impairment rating of six percent and a final
combined left upper extremity impairment rating of six percent.
On December 4, 2018 appellant filed a Form CA-7 for an increased schedule award.
On December 14, 2018 OWCP forwarded Dr. Valdez’s report to a DMA for review. In a
report dated June 17, 2019, the DMA disagreed with Dr. Valdez’s impairment ratings. The DMA
found permanent impairment ratings of five percent for the right upper extremity and five percent
for the left upper extremity. The June 17, 2019 DMA report of record was missing several pages,
including the physician’s identification and signature.

2

OWCP accepted under File No. xxxxxx517 that appellant sustained bilateral hip contusion, aggravation of
incisional hernia, and lumbar sprain due to a traumatic injury on February 18, 2003. File Nos. xxxxxx517 and
xxxxxx667 have been administratively combined with the former serving as the master file.
3

A.M.A., Guides (6 th ed. 2009).

2

By decision dated July 29, 2019, OWCP denied appellant’s claim for an increased schedule
award for permanent impairment of the bilateral upper extremities impairment.
In a report dated August 18, 2019, Dr. Yury Sless, a Board-certified orthopedic surgeon,
noted that appellant had six percent permanent impairment of the right upper extremity and five
percent permanent impairment of the left upper extremity.
On November 27, 2019 OWCP forwarded Dr. Sless’ report to Dr. Slutsky, serving as
DMA, for review. In a report dated December 17, 2019, Dr. Slutsky misidentified Dr. Sless’
report as from Dr. Valdez, and he disagreed with the impairment ratings provided. He found a
right upper extremity permanent impairment rating of four percent. On pages 3 and 19 of
Dr. Slutsky’s DMA report, he found a left upper extremity permanent impairment of four percent.
On page 6, Dr. Slutsky found that appellant had four percent left upper extremity impairment for
carpal tunnel syndrome and one percent left upper extremity impairment for cubital tunnel
syndrome. Dr. Slutsky then combined the eight percent left upper extremity impairment already
paid with one percent for cubital tunnel syndrome, for a total of nine percent permanent
impairment, an increase of one percent over the previous award for impairment of the left upper
extremity.
By decision dated April 22, 2020, OWCP granted appellant a schedule award for one
percent additional impairment to the left upper extremity, for a total of nine percent permanent
impairment of the LUE, eight percent of which had previously been paid. The award ran from
August 15 through September 5, 2019. OWCP denied an additional schedule award for the right
upper extremity, finding that appellant’s degree of impairment for the right upper extremity was
four percent, and that appellant had previously been paid a schedule award for five percent
impairment of the right upper extremity.
The Board had duly considered the matter and finds that this case is not in posture for
decision.
The record submitted to the Board is incomplete. The May 2 and June 4, 2016 DMA
reports from Dr. Slutsky, which were used as the basis of OWCP’s decision of June 16, 2016
granting appellant a schedule award for one percent additional impairment to the right upper
extremity, for a total of 5 percent permanent impairment of the right upper extremity, are not
present in the current case record before the Board. Similarly, the June 17, 2019 DMA report,
which was used as the basis of OWCP’s decision dated July 29, 2019, is missing several pages,
including signature page and pages that identify the physician who prepared the report. As the
issue currently before the Board is whether appellant has met her burden of proof to establish
greater than five percent impairment of the right upper extremity, for which she previously
received schedule award compensation, or greater than nine percent impairment of the LUE, for
which she previously received schedule award compensation for eight percent permanent
impairment, these missing and incomplete reports that formed the basis for her prior schedule
awards are relevant to interpreting the medical evidence of record.

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Because the record as transmitted to the Board is incomplete and would not permit an
informed adjudication of the case, 4 the Board is unable to properly consider and decide appellant’s
claim. The case, therefore, is remanded to OWCP for reconstruction and proper assemblage of the
record.5 After such further development as deemed necessary, OWCP shall issue a de novo
decision on appellant’s claim for increased schedule awards for the bilateral upper extremities.
Accordingly,
IT IS HEREBY ORDERED THAT the April 22, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consis tent
with this order of the Board.
Issued: February 3, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4

See G.B., Order Remanding Case, Docket No. 20-0236; H.C., Docket No. 19-1976 (issued May 26, 2020); D.H.,
Docket No. 17-0224 (issued August 16, 2018).
5

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., widow of J.C., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT AGENCY, National City, CA,
Employer
__________________________________________
Appearances:
Hilary T. Cuevas-Balanon, for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0293
Issued: April 21, 2020

Case Submitted on the Record

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

On November 23, 2018 appellant, through her representative, filed a timely appeal from a
November 5, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2
The Clerk of the Appellate Boards docketed the appeal as No. 19-0293.

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

On July 23, 1985, in a claim adjudicated under File No. xxxxxx727, OWCP accepted that the employee sustained
adjustment disorder with mixed emotional features . In a claim adjudicated by OWCP under File No. xxxxxx728, it
accepted post-traumatic stress disorder without agoraphobia and panic disorder. Under the latter claim, OWCP paid
appellant paid monetary compensation, commencing May 20, 1991, and placed the employee on the periodic
compensation rolls effective November 17, 1991.

The employee died on June 22, 2018.3 By letter dated July 20, 2018, OWCP informed the
Office of Personnel Management (OPM) that, because the employee had died, his compensation
had been terminated and his Federal Employees Health Benefits (FEHB) enrollment was being
transferred. By letter dated July 24, 2018, addressed to the estate of the employee, care of
appellant, OWCP informed her that she should contact OPM regarding the employee’s life
insurance benefits. On July 24 and August 9, 2018 OPM notified OWCP of the terms of the
employee’s life insurance and attached election forms, signed by him on January 30, 1992 and
January 9, 2002, and information regarding life insurance premiums.
On September 17, 2018 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $106,985.69 had been created for the period April 4, 1992 to
June 22, 2018 due to nondeduction of basic and postretirement basic life insurance, and an
incorrect deduction of optional life insurance from the employee’s compensation benefits. 4 It
found the employee without fault and advised appellant of the steps she could take if she disagreed
with the preliminary determination. OWCP provided her an overpayment action request form and
overpayment recovery questionnaire (Form OWCP-20) and afforded her 30 days to respond.
Appellant’s representative completed an overpayment action request, received by OWCP
on October 12, 2018. The box requesting a telephone conference was checked. 5
By decision dated November 5, 2018, OWCP finalized the overpayment determination. It
found the employee without fault, but denied waiver of recovery, noting that the assets of the
employee’s estate totaled $418,660.00 which exceeded the resource base and, thus, recovery
would not defeat the purpose of the Federal Employees’ Compensation Act6 (FECA) or be against
equity and good conscience. Overpayment recovery instructions indicated that the full amount of
the overpayment was due within 30 days. OWCP noted that, although appellant requested a
telephone conference, it was not conducted because there was no issue regarding fault.
Pursuant to Califano v. Yamasaki, 422 U.S. 682 (1979), OWCP has established procedures
for handling overpayment cases. The Director determined that the United States Supreme Court’s
holding is applicable to the recovery of overpayments under FECA and requires an opportunity
for a prerecoupment hearing. 7 Section 10.431(a) of OWCP regulations provides that, before
seeking recovery of an overpayment, it will advise a claimant in writing that the overpayment
exists, and the amount of the overpayment. The written notification must include a preliminary
finding regarding whether the individual was at fault in the creation of the overpayment.
Additionally, OWCP is obliged to advise the individual of his or her right to inspect and copy the
government records relating to the overpayment. Lastly, the preliminary notice must inform the
3

The death certificate listed the immediate cause of death as acute respiratory failure with acute interstitial
pneumonitis.
4

The preliminary determination was addressed to the employee’s estate and sent to appellant’s address of record.
A copy was sent to her representative at the same address.
5

A Form OWCP-20 and financial information were attached.

6

5 U.S.C. § 8101 et seq.

7

F.W., Docket No. 14-0504 (issued June 12, 2014); A.G., 58 ECAB 625 (2007).

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individual of his or her right to challenge the fact or amount of the overpayment, the right to contest
the preliminary finding of fault in the creation of the overpayment, if applicable, and the right to
request a waiver of recovery of the overpayment. The recipient of the alleged overpayment may
present evidence in response to OWCP’s preliminary notice, either in writing or at a
prerecoupment hearing requested within 30 days. 8
OWCP issued new procedures regarding final overpayment determinations in
September 2018. Section 6.400.3.d of these procedures provides that OWCP’s claims examiner
has the sole discretion to conduct a conference following a preliminary overpayment
determination.9
The preliminary overpayment determination issued on September 17, 2018 informed
appellant of the actions she could take, including that she could request a telephone conference. It
did not inform her that the decision to hold a telephone conference would be at the discretion of
an OWCP claims examiner whereas, if she requested a prerecoupment hearing, it would be held
as a matter of right.
On appeal appellant’s representative notes that a telephone conference had been requested
and not held. The Board finds that, under the facts presented, appellant was not provided sufficient
information to make an informed decision as to which action she could take. She, therefore, was
not afforded the required opportunity to provide testimonial evidence regarding the alleged
overpayment.10
Accordingly, the November 5, 2018 decision will be set aside and the case will be
remanded to OWCP to clearly inform appellant of her rights following a preliminary overpayment
determination.11 Following this and such further development as deemed necessary, OWCP shall
issue a de novo decision.12

8

20 C.F.R. § 10.431(a).

9

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.3.d (September 2018).
10

See J.L., Docket No. 18-1028 (issued June 20, 2019).

11

Id. The Board notes that the overpayment action request provided appellant also does not fully explain the
ramifications of selections provided and also contains an option for a “teleconference” under the request for a
prerecoupment hearing option.
12

Section 6-500.15 describes procedures to be followed for recovery of an existing debt from a deceased debtor’s
estate. Federal (FECA) Procedure Manual, supra note 9 at Chapter 6.500.16.

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IT IS HEREBY ORDERED THAT the November 5, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for proceedings
consistent with this order of the Board.
Issued: April 21, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.G., Appellant
and
U.S. POSTAL SERVICE, ORANGE POST
OFFICE, Orange, NJ, Employer
__________________________________________

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

Docket No. 07-2397
Issued: June 11, 2008

Case Submitted on the Record

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

JURISDICTION
On September 24, 2007 appellant, through her attorney, filed a timely appeal of a
December 15, 2006 merit decision of the Office of Workers’ Compensation Programs,
rescinding acceptance of her claim for a left foot injury and a June 27, 2007 nonmerit decision,
denying her request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly rescinded its prior acceptance of
appellant’s claim for a contusion of the left foot; and (2) whether the Office properly denied her
request for a merit review of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 19, 2005 appellant, then a 27-year-old part-time flexible letter carrier, filed a
traumatic injury claim (Form CA-1). She alleged that at 1:30 p.m. on March 31, 2005 she
sustained a foot contusion when she twisted her left foot in the employing establishment’s

parking lot while pushing a cart. Appellant stated that there was a hole in the concrete. She did
not stop work.
On appellant’s claim form, Stanley F. Smith, a supervisor, stated that he first received
notice of the alleged injury on April 19, 2005. He stated that appellant waived her right to
medical attention on March 31, 2005 and she worked several days following the claimed injury.
In an April 19, 2005 narrative statement, Mr. Smith contended that appellant alleged that she
twisted her right ankle while pushing a loaded hamper to her truck at 12:30 p.m. on
March 31, 2005. On April 19, 2005 appellant arrived at work wearing a fiberglass splint from
her knee to her foot. As a result of his investigation, Mr. Smith determined that appellant
claimed that she stepped from one uneven surface to another. At the time of the alleged injury,
appellant claimed that she hurt her left foot and not her right foot. Based on his review of a
surveillance videotape of the parking lot, Mr. Smith stated that appellant did not slip, trip or fall
while loading or pushing a hamper to her truck. Appellant showed no signs of duress.
In a statement dated April 19, 2005, appellant related that she stepped on an uneven
surface and twisted her foot while pushing a cart. She first received medical treatment on
April 18, 2005 from Dr. Harvey L. Roter, a podiatrist. In an April 18, 2005 medical report,
Dr. Roter stated that appellant complained of pain about the lateral aspect of her left foot. He
placed her in a short leg walking cast for approximately three weeks. Dr. Roter requested that
appellant be excused from work during this time period. In a May 13, 2005 report, he stated that
appellant was being treated for a tear of the Peroneus Brevis tendon of the right foot. A
magnetic resonance imaging (MRI) scan demonstrated increased signal and tendinosis.
Dr. Roter opined that this condition was due to a lateral ankle plantar flexion foot injury. He
noted that appellant could not bear weight on the foot and that she was wearing a removable
short leg cast.
An undated disability certificate of Dr. Marco P. Holgado, a family practitioner, stated
that appellant had been under his care from April 14 to 18, 2005. He diagnosed a foot contusion
and released her to return to work on April 19, 2005.
By letter dated June 22, 2005, the Office addressed the additional factual evidence
needed including an explanation as to why she did not report the alleged March 31, 2005 injury
to her supervisor until April 19, 2005, a detailed description of how the alleged injury occurred,
statements from witnesses to the alleged injury and the reason she delayed seeking medical
treatment. The Office also addressed the additional medical evidence appellant needed to
submit. It requested that the employing establishment provide any treatment notes regarding the
alleged injury if appellant received any treatment from its medical facility.
In reports dated May 26 and June 27, 2005, Dr. Roter reviewed a history that on
March 31, 2005 appellant fell in a pothole at work. He opined that she sustained a partial rupture
of the left foot. Dr. Roter indicated with an affirmative mark that this condition was caused or
aggravated by an employment activity.
On June 16, 2005 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period May 31 through June 26, 2005. By letter dated July 13, 2005, the Office accepted her

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claim for contusion of the foot/ankle and paid her appropriate compensation for the claimed
period.
In statements dated April 19, 2005, appellant reiterated that at 1:30 p.m. on March 31,
2005 she was pushing her cart in the parking lot when she stepped on an uneven surface and
twisted her foot.
In a June 21, 2005 memorandum, a postal inspector investigating appellant’s claim stated
that her April 19, 2005 statement of injury was not consistent with her March 31, 2005 statement
of injury as she did not implicate an uneven surface as the cause of her accepted employment
injury. Dr. Holgado’s disability certificate indicated that appellant had been under his care since
April 14, 2005 while she stated that she first received medical treatment on April 18, 2005. Also
on June 21, 2005 the postal inspector stated that appellant worked 9 out of 13 days following the
accepted employment injury before claiming total disability on or after April 19, 2005.
Appellant also worked overtime on April 1, 2, 9 and 11, 2005. Time and attendance records
indicated that she left work at approximately 1:21 p.m. on March 31, 2005 while she contended
that her injury occurred at or about 1:30 p.m.
In a June 17, 2005 investigative interview, Postmaster Gary Thompson stated that he
reviewed a videotape of the March 31, 2005 employment incident. He saw appellant in the
parking lot at 12:40 p.m. and 12:47 p.m.
On April 21, 2005 the postal inspector interviewed Mr. Smith and Anthony Rodriguez, a
supervisor. Mr. Smith stated that on March 31, 2005 appellant reported her injury to Robert
Gary, a supervisor, who advised him about the injury between 12:15 p.m. and 12:30 p.m.
Appellant informed Mr. Smith that she was not going to file a claim for the March 31, 2005
employment injury and that she did not require medical treatment. Mr. Smith recalled that
appellant initially reported that the accepted employment injury occurred before 12:30 p.m.
which was before she left to deliver mail on her route. He approved appellant’s request for leave
and noted that she did not require assistance as she left work. Appellant returned to work on or
about April 2, 2005 and did not request a CA-1 form. She worked until approximately
April 16, 2005. Mr. Smith stated that appellant did not mention the March 31, 2005 employment
injury during this time period and had no difficulty walking. Appellant was out of work for three
days beginning on or about April 16, 2005. On April 19, 2005 she advised Postmaster
Thompson that she wanted to file a claim for the March 31, 2005 employment injury. Mr. Smith
stated that appellant did not provide any medical documentation in support of her claim. He
recalled that her CA-1 form indicated that the employment injury occurred at approximately 1:30
p.m. Mr. Smith stated that time and attendance records revealed that appellant clocked out from
work at 1:21 p.m.
Mr. Rodriguez stated that on April 19, 2005 he walked to the parking lot with appellant
and asked her to show him where the employment injury occurred. Appellant had difficulty
identifying the location. Mr. Rodriguez stated that she walked around for quite some time before
identifying a depression in the asphalt as the cause of her employment injury. He submitted
photographs that he had taken of the accident site. Mr. Rodriguez stated that the videotape did
not show appellant getting hurt. It also did not show her walking in the area where she claimed

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to have sustained the employment injury. Mr. Rodriguez stated that appellant was seen walking
without difficulty and pulling a hamper behind her.
In a March 31, 2005 routing slip, signed by appellant and Mr. Smith, on March 31, 2005,
appellant stated that she twisted her foot while pushing her cart in the parking lot. She elected to
not file a CA-1 form at that time.
In a July 7, 2005 memorandum, the postal inspector stated that he, Mr. Rodriguez and
Postmaster Thompson inspected the accident site on June 16, 2005. Mr. Rodriguez described the
irregularity in the asphalt and in his photographs. Mr. Smith and Postmaster Thompson
positively identified appellant in the videotape loading her vehicle at approximately 12:40 p.m.
and 12:47 p.m. without difficulty. Appellant was not seen twisting her left foot as alleged.
There was no visual evidence of postinjury behavior by her such as, limping, favoring, walking
slowly or stopping to inspect her injury.
The postal inspector’s July 14, 2005 investigative report concluded that there was no
evidence to support a finding that appellant sustained an injury on March 31, 2005 at the time or
in the manner alleged. There was no videotape evidence that she sustained an injury as alleged.
Appellant’s inconsistent statements and activities following the March 31, 2005 incident did not
support the alleged injury.
In reports dated July 1 and 26, 2005, Dr. Roter reiterated his prior history of the
March 31, 2005 employment-related injury. In the July 26, 2005 report, he stated that April 8,
2005 was the date of injury. Dr. Roter opined that appellant sustained a peroneal tendon injury
that was caused or aggravated by the March 31, 2005 employment injury.
On July 21, 2005 appellant stated that, while loading her truck, her left foot went into a
hole in the employing establishment’s parking lot causing her to twist her foot. She returned to
the building to report the injury to Mr. Smith but he was not available. Appellant then reported
the injury to Mr. Gary who paged Mr. Smith who examined her swollen foot and approved her
request to go home to treat her foot. She stated that there were no witnesses to the incident.
Appellant did not sustain any other injury between March 31 and April 19, 2005. She delayed
seeking medical treatment because she tried home remedies to treat her foot. On March 14, 2005
appellant’s pain and swelling were so great that she sought medical treatment from Dr. David
Rizzo.1 She stated that she did not have any prior injuries to her left foot.
By letter dated August 10, 2005, the Office advised appellant that her July 19, 2005
request to change her treating physician was denied because it appeared that her case had been
accepted in error.
On August 18, 2005 the Office issued a notice of proposed rescission of the acceptance of
appellant’s claim for contusion of the foot/ankle. It stated that the surveillance videotape
established that the March 31, 2005 incident did not occur as alleged. Appellant was given 30
days to submit additional evidence and argument if she disagreed with the proposed action.

1

The Board notes that Dr. Rizzo’s professional qualifications are not contained in the case record.

4

In an August 23, 2005 letter, appellant denied stating that she injured her right foot. She
stated that, on April 19, 2005, she reported to work with an orthopedic boot on her left foot.
Appellant contended that the postal inspector’s investigation was completed without her input. If
she had been given the opportunity, she would have pointed out the location of her employment
injury on the videotape. Appellant stated that the injury occurred about 1:30 p.m. and that she
was not sure about the exact time because two weeks had passed before anyone asked her about
the injury on April 19, 2005. Mr. Rodriguez and Keith Hemmings, a shop steward, advised her
to put 1:30 p.m. on her CA-1 form. Appellant stated that the investigative report did not mention
the time lapse between the time she loaded her truck and the time she actually left the building.
She stated that Mr. Smith did not want to complete the CA-1 form on March 31, 2005.
Mr. Smith never asked her if she needed medical treatment or to complete a detailed statement of
injury. Appellant contended that Mr. Smith never asked her to identify the location in the
parking lot where the employment injury occurred. Mr. Smith did not take pictures or
investigate the scene himself. After appellant, Mr. Rodriguez and Mr. Smith went to the parking
lot so that she could identify the location of her injury Mr. Rodriguez expressed doubt about her
statement of injury. Appellant advised him to review the videotape of the parking lot. After so
doing, Mr. Rodriguez informed her that the location where she was injured was out of camera
range. Appellant could not be seen getting hurt.
In an October 12, 2005 letter, appellant contended that the surveillance videotape was of
poor quality. She had to watch it several times before recognizing herself. Although the
videotape was viewed in play mode, appellant stated that it was in fast forward mode which
made it difficult for anyone without firsthand knowledge to identify when the employment injury
occurred. The videotape indicated that the time of injury was 12:53 p.m. and it appeared to show
that the cart appellant was pulling tipped over because she was using it to catch her balance and
to keep from falling to the ground when she twisted her foot. She took about two more steps
before the pain hit her and she was able to put the cart onto her truck. Appellant sat down at the
back of the truck out of camera view to take the pressure off her foot. She attempted to continue
to perform her work duties at the front of the truck but, within one-half minute the pain was too
great. Between the time, appellant came out of the building and was ready to return, a truck
pulled between her and the building which blocked the camera’s view of her limping back into
the building. She did not know that her injury was extensive. If appellant had known, she would
not have delayed in reporting it. She believed she sustained a simple twist of the foot and that
she could nurse it back to health in a few days. Appellant contended that the videotape did not
show her leaving for home shortly after 1:00 p.m. as it did not show her again after she went to
the front of her truck at 12:54 p.m.
In an October 14, 2005 letter, appellant’s attorney advised the Office that the quality of
the tape was poor as the speed was five times faster than normal speed. The pictures were hazy
and appeared to be mostly in black and white with small amounts of color.
By decision dated November 17, 2005, the Office rescinded acceptance of appellant’s
claim. It found that the postal inspector general’s July 14, 2005 report was sufficient to cast
doubt that appellant sustained an injury on March 31, 2005 at the time, place and in the manner
alleged. In a December 2, 2005 letter, appellant, through her attorney, requested an oral hearing.

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An undated witness statement of Kato James, a coworker, stated that he noticed appellant
limping when returning from her route. Appellant stated that she hurt her foot. Mr. James
suggested that appellant report the injury to management. He advised her that her foot would get
worse if she stayed on it.
In an April 5, 2006 letter, Postmaster Thompson stated that the videotape clearly showed
appellant leaving for the street. It was meant to be used in the postal inspector’s video machines
and not ones for home use. Mr. Thompson stated that the date and time of injury were verified
by appellant’s statements on her claim and made to Mr. Rodriguez. He noted that carts were not
pulled rather they were pushed for safety reasons. The videotape did not show appellant’s cart
tip or her balance. Contrary to her contention that she did not sustain a prior work injury,
Postmaster Thompson stated that she sustained injuries on April 15, 2002. He stated that all
employees were trained to immediately report accidents. The management team checked the
parking lot together with Mr. Hemmings and found no holes as reported by appellant.
In an undated narrative statement, Dominic Walton, a coworker and chief steward,
related that he clearly remembered asking appellant on the day after she reported her injury why
she was limping badly. She replied that she hurt her foot in the parking lot on the previous
evening. Mr. Walton spoke to Mr. Smith on several occasions and Mr. Smith never mentioned
that appellant was faking her injury. Mr. Smith was concerned about her receiving continuation
of pay and work duties within her restrictions.
In an April 14, 2005 report, Dr. Rizzo stated that appellant experienced tenderness in the
left foot.
By decision dated June 22, 2006, an Office hearing representative affirmed the
November 17, 2005 rescission of appellant’s claim.
In a September 6, 2006 letter, appellant, through counsel, requested reconsideration of the
June 22, 2006 decision. In a July 18, 2006 letter, Mr. Hemmings stated that on April 19, 2005
appellant instantly identified the pothole in the parking lot where her injury occurred which was
covered by a truck that she had moved. He noted that Mr. Rodriguez corrected appellant by
stating that this was an uneven surface and not a pothole. Mr. Rodriguez gave appellant a claim
form and told her to describe the accident site as an uneven surface and not a pothole. He also
told her to write an estimated time of injury since she was unsure about the time. Appellant
guessed the injury occurred around 1:30 p.m. Mr. Hemmings stated that Mr. Rodriguez told her
that she should have reported the accident when it first occurred. Appellant responded that she
reported it to Mr. Smith. Mr. Hemmings stated that Mr. Smith denied that Mr. Rodriguez
advised him of her injury. Appellant quickly informed Mr. Smith about the form she completed
which he signed on the same day. Mr. Hemmings related that Mr. Smith instantly retracted his
statement, stating that he thought appellant told him about a right foot injury. Mr. Hemmings
saw Mr. Smith provide appellant with assistance on her route between April 1 and 14, 2005
while her injury healed.
By decision dated December 15, 2006, the Office denied modification of the June 22,
2006 decision. The evidence submitted by appellant was insufficient to establish that the
March 31, 2005 injury occurred as alleged.

6

In an April 9, 2007 letter, appellant, through counsel, requested reconsideration. A
March 10, 2007 letter of Chelsea Randolph, a coworker, stated that she saw appellant coming to
work everyday for about two weeks in April 2005 with very bad pain in her left foot. She and
her coworkers tried to convince appellant to see a physician but she refused because she did not
want to report an accident since it would look bad on her record. Appellant was soaking her foot
everyday and hoped that it would get better. The next time Ms. Randolph saw her, she was
wearing a boot on her foot. Appellant told her and Mr. Smith that her foot was not getting any
better and that she did not want to see a physician but, she would do so if it did not heal quickly.
In a March 10, 2007 letter, Robert Pallino, a coworker, stated that appellant sustained the
alleged injury because he talked to her before the injury and she was fine. Appellant was not
limping or complaining at all. On the next day, following the alleged injury, Mr. Pallino asked
appellant why she was limping. She stated that she hurt her foot in the parking lot the other day
and that she was waiting for it to heal. Soaking of the foot was not working and it was getting
worse. On at least one occasion, Mr. Pallino overheard a conversation between Mr. Smith and
appellant concerning the type of assistance that she would be given to compensate her injury.
In a June 27, 2007 decision, the Office denied appellant’s request for reconsideration on
the grounds that the evidence submitted was of an immaterial nature and, thus, insufficient to
warrant a merit review of its prior decisions.
LEGAL PRECEDENT -- ISSUE 1
Section 8128 of the Federal Employees’ Compensation Act provides that the Secretary of
Labor may review an award for or against payment of compensation at any time on her own
motion or on application.2 The Board has upheld the Office’s authority to reopen a claim at any
time on its own motion under section 8128 of the Act and, where supported by the evidence, set
aside or modify a prior decision and issue a new decision.3 The Board has noted, however, that
the power to annul an award is not an arbitrary one and that an award for compensation can only
be set aside in the manner provided by the compensation statute.4
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud. It is well established
that, once the Office accepts a claim, it has the burden of justifying the termination or
modification of compensation benefits.5 This holds true where, as here, the Office later decides
that it erroneously accepted a claim. In establishing that its prior acceptance was erroneous, the
Office is required to provide a clear explanation of the rationale for rescission.6
2

5 U.S.C. § 8128.

3

John W. Graves, 52 ECAB 160, 161 (2000).

4

See 20 C.F.R. § 10.610.

5

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

6

John W. Graves, supra note 3.

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ANALYSIS -- ISSUE 1
The Office rescinded acceptance of the claim because of inconsistencies in the record that
called into question whether appellant injured her left foot on March 31, 2005. It is the
employee’s burden to establish that his or her injury occurred at the time, place and in the
manner alleged.7 An injury does not have to be confirmed by an eyewitness to establish that it
occurred in the performance of duty.8 An employee’s statement regarding the circumstances
surrounding an injury is of great probative value and will be accepted unless refuted by
persuasive evidence.9 The employee’s statement must be consistent with the surrounding facts
and circumstances as well as the employee’s subsequent course of action.10 An employee has
not met his or her burden of proof where there are inconsistencies in the record that cast serious
doubt on the validity of the claim.11
The timing of appellant’s claimed left foot injury is uncertain. Appellant contended that
she sustained the injury at 1:30 p.m. in the employing establishment’s parking lot on
March 31, 2005. She referenced this time in her April 19, 2005 claim and narrative statements
and an August 23, 2005 statement. Appellant later stated that she did not really know what time
the left foot injury occurred. She was advised by Mr. Rodriguez and Mr. Hemmings to put 1:30
p.m. as the time of injury on her claim. Mr. Hemmings stated that appellant did not remember
the exact time of the alleged injury. He related that Mr. Rodriguez advised her to state that the
injury occurred at 1:30 p.m. Although appellant signed a routing slip on March 31, 2005 stating
that she twisted her foot while pushing her cart in the parking lot, she advised Mr. Smith that she
had elected to not file a CA-1 form at that time. She did not file her claim for the alleged injury
until 19 days later, on April 19, 2005. Appellant also delayed in seeking medical treatment. She
claimed that she first sought medical treatment on April 18, 2005 from Dr. Roter. However,
appellant later stated that she was treated by Dr. Rizzo on March 14, 2005. The Board notes that
this treatment predates the alleged injury. The record indicates that Dr. Rizzo actually evaluated
appellant on April 14, 2005. The statements of Mr. Walton and Mr. James indicated that they
saw appellant limping after the alleged injury. However, neither Mr. Walton nor Mr. James
stated that they actually witnessed appellant hurt her left foot in the parking lot on
March 31, 2005.
The postal inspector’s July 14, 2005 investigative report concluded that there was no
evidence to support a finding that appellant sustained an injury on March 31, 2005 at the time,
place and in the manner alleged based on a surveillance videotape and photographs of the
parking lot, the interviews of Postmaster Thompson, Mr. Smith and Mr. Rodriguez, time and
attendance records and appellant’s inconsistent statements and behavior following the alleged
injury. The videotape showed appellant loading her truck prior to 1:30 p.m. There was no visual
7

Delphyne L. Glover, 51 ECAB 146, 147-48 (1999).

8

Id.

9

Michelle Kunzwiler, 51 ECAB 334, 335 (2000).

10

Id.

11

Id.

8

evidence of postinjury behavior by appellant such as, limping, favoring, walking slowly or
stopping to inspect her injury.
Postmaster Thompson stated that the videotape showed appellant in the parking lot at
12:40 p.m. and 12:47 p.m. He related that carts were pushed and not pulled for safety reasons.
Mr. Smith stated that the videotape did not show appellant slip, trip or fall while loading or
pushing a hamper to her truck. He also stated that she did not show any signs of duress.
Mr. Smith stated that Mr. Gary advised him about the alleged injury between 12:15 p.m. and
12:30 p.m. on March 31, 2005. He stated that appellant initially claimed an injury to her right
foot. Mr. Smith approved her leave on March 31, 2005 and noted that she did not require any
assistance leaving work. He indicated that time and attendance records showed that appellant
left work at 1:21 p.m. Appellant returned to work on April 2, 2005 and worked until
April 16, 2005. The postal inspector determined that she worked 9 out of 13 days following the
alleged injury before claiming total disability on or after April 19, 2005. Appellant also worked
overtime on April 1, 2, 9 and 11, 2005. Mr. Rodriguez stated that the videotape did not show
that appellant sustained an injury in the area she claimed. He stated that she was seen walking
without difficulty and pulling a hamper behind her.
Appellant’s misstatements regarding when and how her injury arose cast serious doubt on
her claim to have injured her left foot in the performance of duty on March 31, 2005. In the
November 17, 2005, June 22 and December 15, 2006 decisions, the Office clearly explained its
reason for rescinding acceptance of appellant’s claim. The Board finds that the Office met its
burden to rescind acceptance of appellant’s claim.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128 of the Act,12
the Office’s regulation provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.13 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.14 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review of the merits.
ANALYSIS -- ISSUE 2
In an April 9, 2007 letter, appellant, through counsel, disagreed with the Office’s
December 15, 2006 decision, denying modification of the November 17, 2005 rescission of
12

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
13

20 C.F.R. § 10.606(b)(1)-(2).

14

Id. at § 10.607(a).

9

acceptance of appellant’s claim because the factual evidence of record did not establish that she
sustained a claimed left foot injury as alleged, in the employing establishment’s parking lot on
March 31, 2005. The relevant issue in the case is the factual question of whether appellant has
established that she sustained an injury in the parking lot on March 31, 2005.
Appellant submitted letters from her coworkers, Ms. Randolph and Mr. Pallino which
stated that they saw appellant experiencing pain in her left foot and limping following the
March 31, 2005 incident. Although this evidence is new, it does not address the issue of whether
appellant’s injury occurred in the employing establishment’s parking lot on March 31, 2005.
The Board has held that the submission of evidence which does not address the particular issue
involved does not constitute a basis for reopening a case.15 Neither Ms. Randolph nor
Mr. Pallino stated that they witnessed appellant hurt her left foot in the parking lot on
March 31, 2005. Thus, the Board finds that the letters of Ms. Randolph and Mr. Pallino are not
relevant and thus, insufficient to warrant reopening appellant’s claim for further merit review.
The evidence submitted by appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or constitute relevant and pertinent new evidence not previously considered by the
Office. As she did not meet any of the necessary regulatory requirements, the Board finds that
she is not entitled to further merit review.16
CONCLUSION
The Board finds that the Office properly rescinded acceptance of appellant’s claim for a
contusion of the left foot. The Board further finds that the Office properly denied appellant’s
request for a merit review of her claim pursuant to 5 U.S.C. § 8128(a).

15

See Patricia G. Aiken, 57 ECAB 441 (2006).

16

See 20 C.F.R. § 10.608(b); Richard Yadron, 57 ECAB 207 (2005).

10

ORDER
IT IS HEREBY ORDERED THAT the June 27, 2007 and December 15, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 11, 2008
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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CHARLES GEORGE VA MEDICAL CENTER,
Asheville, NC, Employer
__________________________________________

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

Docket No. 19-1854
Issued: July 30, 2020

Case Submitted on the Record

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

JURISDICTION
On September 6, 2019 appellant filed a timely appeal from an August 26, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated July 23 2020,
the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be
addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1854 (issued
July 23, 2020). The Board’s Rules of Procedure provide that an appeal in which a request for oral argument is denied
by the Board will proceed to a decision based on the case record and the pleadings submitted. 20 C.F.R. § 501.5(b).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the August 26, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a lumbar condition
causally related to the accepted June 27, 2019 employment incident.
FACTUAL HISTORY
On July 15, 2019 appellant, then a 43-year-old medical instrument technician, filed a
traumatic injury claim (Form CA-1) alleging that on June 27, 2019 he was bent over, adjusting a
patient’s continuous positive airway pressure (CPAP) mask, when he felt a sharp pain in his lower
back while in the performance of duty. Appellant stated that a computerized tomography (CT)
scan displayed a herniated disc at L5. On the reverse side of the claim form, the employing
establishment noted appellant’s date of injury as June 27, 2019, but asserted that he was not injured
in the performance of duty as no cause of an injury was stated and he had a questionable preexisting
condition. The employing establishment further noted that appellant did not report the incident
until July 16, 2019, when he underwent a surgical procedure, and that he recently had issues with
management. Appellant stopped work on July 3, 2019.
In a July 22, 2019 development letter, OWCP informed appellant that additional evidence
was required to establish his claim. It advised him of the type of factual and medical evidence
necessary to establish his claim. OWCP afforded appellant 30 days to submit the necessary
evidence.
An unsigned July 4, 2019 visit summary from a medical provider indicated that appellant
presented with lower back pain radiating into his leg and toes that he described as burning, tingling,
sharp, stabbing, and numbing. It related that the onset of his back pain was acute and had occurred
in a constant pattern for the past 10 days and was now worsening. Appellant stated that he had
difficulty with activities of daily living and that his pain was aggravated by movement. The visit
summary noted that his pain was preceded by an incident at work. It also indicated that appellant’s
pain was located in the medial iliac crest, lumbar paraspinal, and lateral sacrum. The visit
summary related that he was diagnosed with left side sciatica.
A July 6, 2019 unsigned visit summary from the same provider repeated appellant’s history
of injury and indicated that appellant presented with lower back pain, sharp left foot and leg pain
upon movement, and achy burning upon sitting.
A July 8, 2019 unsigned visit summary from a different medical provider indicated that
appellant presented with worsening low back pain. It repeated his history of injury and noted that
the previous day he received a massage and woke up in the morning with tingling in his left foot
and calf. The visit summary stated that on Thursday appellant had tweaked his back and was now
unable to walk well on his left leg. It additionally noted that he had not previously undergone
lumbar surgery.
A July 11, 2019 CT scan of appellant’s lumbar spine interpreted by Dr. Lauren Wingo, an
emergency medicine specialist, displayed an inferior disc protrusion at L4-5 extending inferiorly
to the level of the midportion of the L5 vertebral body, eccentric to the left, effacing the left
subarticular recess and the thecal sac. It also showed anterior endplate spurring at L2-3.

2

In July 11, 2019 unsigned discharge instructions from an emergency department noted back
pain and an intervertebral disc displacement of the lumbar region. The instructions identified
appellant’s attending physician as Dr. Wingo, listed additional medications appellant was
prescribed, and indicated that he should follow up with his primary care physician.
In a July 24, 2019 controversion letter, the employing establishment indicated that
appellant only stated that he bent over to adjust a CPAP mask, and that his medical records did not
mention any work-related event that could cause a disc herniation. It also related that he had
delayed in reporting the alleged injury.
By decision dated August 26, 2019, OWCP denied appellant’s traumatic injury claim. It
found that the evidence of record established that the incident occurred as alleged and that a lumbar
condition had been diagnosed. OWCP also found that the evidence of record was insufficient to
establish causal relationship between appellant’s diagnosed condition and the accepted June 27,
2019 employment incident. It concluded therefore that the requirements had not been met to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury and this component can be established only by medical evidence.8

4

Supra note 2.

5

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).
6

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

7

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).
8

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

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The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.10
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted June 27, 2019 employment incident.
In support of his claim, appellant submitted an unsigned visit summaries of July 4, 6, and 8,
2019, from various health care providers and July 11, 2019 unsigned discharge instructions from
a hospital. The Board has held that reports that are unsigned or bear an illegible signature lack
proper identification and cannot be considered probative medical evidence as the author cannot be
identified as a physician.12 Therefore, these medical records have no probative value and are
insufficient to establish appellant’s claim.
Appellant additionally submitted a July 11, 2019 lumbar spine CT scan from Dr. Wingo
which related a diagnosis of L4-5 inferior disc protrusion. The Board has held, however, that
reports of diagnostic tests standing alone lack probative value as they do not provide an opinion
on causal relationship between an employment incident and a diagnosed condition.13
As appellant has not submitted rationalized medical evidence establishing causal
relationship between his intervertebral disc displacement of the lumbar region and the accepted
June 27, 2019 employment incident, the Board finds that he has not met his burden of proof to
establish his claim.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

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

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
V.W., Docket No. 19-1537 (issued May 13, 2020); N.C., Docket No. 19-1191 (issued December 19, 2019); R.D.,
Docket No. 18-1551 (issued March 1, 2019).
12

M.A., Docket No. 19-1551 (issued April 30, 2020); T.O., Docket No. 19-1291 (issued December 11, 2019).

13

See J.M., Docket No. 17-1688 (issued December 13, 2018).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted June 27, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Canandaigua, NY,
Employer
__________________________________________

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

Docket No. 20-0999
Issued: January 12, 2021

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 March 31, 2020 appellant filed a timely appeal from a November 18, 2019 merit
decision and a December 17, 2019 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3

1

The Board notes that appellant submitted a request for oral argument before the Board. 20 C.F.R. § 501.5(b). In
light of the Board’s disposition of this appeal, the oral argument request is denied.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 17, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a low back
condition causally related to the accepted June 26, 2019 employment incident; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 27, 2019 appellant, then a 50-year-old medical support assistant, filed a traumatic
injury claim (Form CA-1) alleging that on June 26, 2019 she injured her lower back when her foot
became entangled in computer cords and she fell backwards while in the performance of duty. She
stopped work on June 27, 2019.4
In a June 28, 2019 medical report, Scott Mattoon, a physician assistant, noted that appellant
injured her lower back when she became entangled in computer cords and fell backwards. He
indicated that appellant had previously suffered the same injury, but that it had mostly resolved.
Mr. Mattoon diagnosed lumbar radiculopathy and low back pain. In a medical note of even date,
he found that appellant was unable to work until further notice.
In a development letter dated July 24, 2019, OWCP informed appellant of the deficiencies
in 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. OWCP afforded appellant 30 days to
submit the necessary evidence.
In a July 19, 2019 medical report, Dr. Raman Dhawan, an orthopedic surgeon, noted that
appellant sustained a work-related injury after she became entangled in computer cords and landed
on her back. He noted that an x-ray of the lumbar spine revealed slight scalloping of the super
portion of the vertebral body of L2 and marked paraspinal spasms. A February 2018 MRI scan
showed early degenerative changes with some retrolisthesis at L2 and L3. Dr. Dhawan diagnosed
lumbar radiculopathy and other intervertebral disc degeneration. He checked a box marked “Yes”
to indicate that appellant’s injuries were caused by the described employment incident. In a
medical note of even date, Dr. Dhawan held her off work until further notice.
In an August 2, 2019 medical report, Dr. Dhawan noted that appellant was improving. He
reiterated his diagnoses and again checked a box marked “Yes” to indicate that her injuries were
caused by the described employment incident. In a medical note of even date, Dr. Dhawan found
that appellant could return to work with restrictions.
In an undated report of work status (Form CA-3), the employing establishment informed
OWCP that appellant had returned to work part-time regular duty on August 5, 2019.

4
The Board notes that appellant previously filed a November 14, 2018 traumatic injury claim for lower back and
left hip injuries, assigned OWCP File No. xxxxxx072.

2

In an August 12, 2019 medical note, Dr. Dhawan released appellant to work without
restrictions.
By decision dated September 5, 2019, OWCP denied appellant’s claim. It accepted that
the June 26, 2019 employment incident occurred as alleged and that medical conditions had been
diagnosed. However, OWCP found that appellant failed to establish causal relationship between
the diagnosed conditions and the accepted employment incident.
In a September 13, 2019 medical report, Dr. Dhawan noted that appellant was seen for
follow up of her work injury and complained of increasing discomfort. He indicated that she had
a compression of L2 based on x-ray findings. Dr. Dhawan opined that appellant had 25 percent
temporary impairment.
On October 7, 2019 appellant requested reconsideration. In support thereof, she submitted
a September 30, 2019 letter, wherein Dr. Dhawan noted that she was performing normal work
activities at the time of the accepted June 26, 2019 employment incident when she sustained a low
back injury. He opined that appellant’s fall, after being tangled in the computer cords, directly
caused her low back injury as her legs were not able to maintain her balance and she fell to the
ground. Appellant also resubmitted the June 28, 2019 medical report by Mr. Mattoon, which had
now been countersigned by Dr. Dhawan.
By letter dated October 8, 2019, OWCP noted that Dr. Dhawan had been treating appellant
for lumbar radiculopathy, other intervertebral lumbar disc degeneration, and lumbar spondylosis
since November 30, 2018. It requested that he explain how the accepted June 26, 2019
employment incident aggravated her preexisting lumbar conditions.
In an October 25, 2019 letter, Dr. Dhawan acknowledged that appellant had a prior back
injury. He opined that, although she had recovered from her previous injury, the accepted June 26,
2019 employment incident aggravated her preexisting back conditions. Dr. Dhawan explained
that even after a patient recovers from an injury, appellant more prone to re-injury.
By decision dated November 18, 2019, OWCP denied modification of the September 5,
2019 decision.
On December 10, 2019 appellant requested reconsideration and resubmitted the June 28,
2019 medical report of Dr. Dhawan.
By decision dated December 17, 2019, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
5

Supra note 2.

3

limitation of FECA,6 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.7 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.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.9
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.10 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.11
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.

6

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).
7

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).
8
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).
9

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
10

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
11

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
12
R.C., Docket No. 19-0376 (issued July 15, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013).

4

OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between case files.13 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required.14 Appellant previously filed
a traumatic injury claim on November 15, 2018 alleging a lower back injury due to a November 14,
2018 employment incident under OWCP File No. xxxxxx072, which was administratively
approved for medical treatment. She subsequently filed the present claim, OWCP File No.
xxxxxx756, alleging a similar injury also involving the lower back as a result of the accepted
June 26, 2019 employment incident. Additionally, Dr. Dhawan opined, in his October 25, 2019
letter, that the accepted June 26, 2019 employment incident in the present claim aggravated
appellant’s previously diagnosed conditions of lumbar radiculopathy, other intervertebral lumbar
disc degeneration, and lumbar spondylosis, which were related to the November 14, 2018
employment incident. The medical records of the two files, however, have not been combined for
cross-referencing as required by OWCP procedures. As such, the Board is unable to review all of
the factual and medical evidence under OWCP File No. xxxxxx072, which relates to similar
conditions and the same body part that is contested in the present claim.
For a full and fair adjudication, the case must be returned to OWCP to administratively
combine the current case record with OWCP File No. xxxxxx072 so that it can properly determine
whether appellant’s diagnosed conditions were causally related to the accepted June 26, 2019
employment incident. Following this and other such further development as OWCP deems
necessary, it shall issue a de novo decision.15
CONCLUSION
The Board finds that the case is not in posture for decision.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8c
(February 2000); R.R., Docket No. 19-0368 (issued November 26, 2019).
14

Id.

15

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the December 17 and November 18, 2019 decisions
of the Office of Workers’ Compensation Programs are set aside and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: January 12, 2021
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Brett E. Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1359
Issued: April 30, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On June 6, 2019 appellant, through counsel, filed a timely appeal from a May 14, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish diagnosed
conditions causally related to the accepted December 14, 2016 employment incident while
performing high-risk employment duties.
FACTUAL HISTORY
On December 20, 2016 appellant, then a 48-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on December 14, 2016 he injured his left index finger while in the
performance of duty. He explained that a bloody needle stuck through his left index finger. On
the reverse side of the claim form, the employing establishment indicated that appellant was
injured in the performance of duty. It did not indicate whether he had stopped work.
In a February 8, 2018 development letter, OWCP advised appellant that the evidence of
record was insufficient to establish his claim as he had not demonstrated that he experienced the
incident or employment factor alleged to have caused injury. It noted the type of evidence
necessary to establish his claim, including a comprehensive, narrative medical report from a
qualified physician that included a diagnosis and an opinion, supported by medical rationale,
addressing how the claimed employment incident caused or aggravated a medical condition .
OWCP attached a questionnaire for appellant’s completion. It afforded him 30 days to submit the
necessary evidence. In the same letter, OWCP requested that the employing establishment provide
appellant’s treatment notes if he had been treated at an agency medical facility.
By decision dated March 12, 2018, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record failed to establish that he was injured in the performance of
duty, as alleged.
A December 14, 2016 memorandum from appellant’s coworker, L.L., indicated that on
that date she was acting as charge nurse in the emergency room when appellant let her know that
while he was cleaning a bed in emergency room 5 he was stuck by a contaminated needle. She
went to emergency room 5 with him and found that at the left edge of the bed there was an exposed
butterfly needle attached to a vacutainer with its tubing filled with light red, fresh blood that was
consistent with an arterial needle stick. L.L. observed two puncture marks on appellant’s left index
finger, and she told him to go to the handwashing station for decontamination. She then called a
coworker to bring a red top blood tube and saline flush to collect the specimen, as she thought that
if the blood had been in the tubing for hours it was probably clotted, however, the vacuum in the
red top tube was able to collect the entire specimen. L.L. confirmed that the sample and the needle
were bagged and labeled and given to a registered nurse at the employing establishment for
safekeeping and processing. The coworker also collected a blood sample from appellant. Two
attending physicians were informed about the incident and, together with L.L., initiated a needle
stick protocol care plan. L.L. noted that she inquired about the unique identifier needed to
appropriately identify the unknown specimen so that it could be accurately reported to the lab.
After reviewing the daily patient log to identify possible sources of the blood and needle, she
identified three possible patients. L.L. noted that appellant had indicated, however, that the needle
could have been in the bed when it was in use in another room.

2

In a statement dated February 26, 2018, appellant noted that on the date of the incident he
was admitted into the emergency department and provided with the needle stick protocol.
Immediately after the incident, he consulted Dr. Andre Michalak, his primary care physician who
specializes in internal medicine, who referred him to Dr. Jose Bordon, a Board-certified infectious
disease specialist. Appellant attached a December 14, 2016 report of contact he made with the
employing establishment in response to OWCP’s request for details about his injury. He also
noted in his statement that he had treated a patient in emergency room 5 for a wound check and
dressing change, but no blood was drawn from the patient. Then, after the patient was discharged,
he returned to emergency room 5 and began stripping the bed when he felt a sharp pain. When
appellant pulled his hand back he saw a BD vacutainer push button which was not retracted, and
its tubing was full of blood. He removed his glove and saw two puncture wounds through his left
index finger. Appellant then washed his hands and informed the charge nurse L.L.
On October 26, 2018 appellant, through counsel, requested reconsideration. Counsel
asserted that appellant’s December 14, 2016 report of contact and L.L.’s December 14, 2016
memorandum both provided detailed statements of the events surrounding the needle stick
incident. He attached new evidence including an October 2, 2018 medical report by Dr. John W.
Ellis, a Board-certified family medicine specialist, which set forth the history of appellant’s
employment incident involving the needle stick. Counsel asserted that appellant had therefore
established his claim.
In the October 2, 2018 medical report, Dr. Ellis indicated that appellant had previously
been in good health and had never been diagnosed with human immunodeficiency virus (HIV) or
Hepatitis C. He reported that on December 14, 2016 a needle had stuck through appellant’s finger
while he was at work. Appellant noted that in January or February 2017 he had experienced
achiness and felt fatigued and tired. In February 2017, he was diagnosed with HIV and Hepatitis
C. On February 4, 2018 appellant felt a burning sensation in his left thumb and fingers, and was
diagnosed with cryoglobulinemia. An arteriogram revealed that his blood supply was cut off from
his left four fingers and part of his left thumb all the way up to his left forearm. On February 7,
2018 appellant underwent a left forearm fasciotomy, left hand fasciotomy, and left upper extremity
fasciotomy. On February 10, 2018 he had a left upper extremity partial disclosure and tensioning
of the fasciotomy. On February 13, 2018 appellant underwent incision and drainage of his left
arm incision and drainage and closure of the compartment syndrome. On March 9, 2018 he had
his left gangrenous index, middle, ring, and small fingers and the tip of his left thumb amputated.
Dr. Ellis diagnosed HIV, Hepatitis C, cryoglobulinemia, traumatic compartment syndrome of the
left upper extremity, blood clots of the left upper extremity requiring fasciotomy with loss of
fingertips in the dominant left upper extremity, acquired absence of left thumb and left fingers
secondary to fasciotomy, and orthostatic hypotension. He opined that all of these diagnoses were
caused by appellant’s workplace needle stick. Dr. Ellis noted that after appellant’s needle stick he
went to the occupational health unit where he was found to be HIV and Hepatitis C negative, and
then in February 2017 was diagnosed with HIV and Hepatitis C. He opined that the timeline of
appellant’s development of HIV and Hepatitis C was chronologically consistent with his specific
workplace needle stick. Dr. Ellis also indicated that appellant was not a drug or needle user, and
he opined that the infectious disease from the needle stick caused appellant’s blood to clot. The
clotting caused an embolus in the blood vessels of appellant’s left upper arm, thumb, and digits
and necessitated the above-noted surgeries. Dr. Ellis opined that appellant’s viral load caused his
autonomic response, which in turn caused his orthostatic hypotension.
3

By decision dated January 22, 2019, OWCP modified its March 12, 2018 decision finding
that the evidence of record established that appellant was injured in the performance of duty, as
alleged. However, the claim remained denied because the medical evidence submitted was
insufficient to establish that his diagnosed conditions were causally related to the accepted
December 14, 2016 event.
On April 3, 2019 appellant, through counsel, requested reconsideration.
A March 20, 2019 medical report by Dr. Ellis indicated that he reviewed medical records
dated January 20, 2017 from Dr. Bordon, which noted that appellant was a new patient who was
seen after his exposure to HIV. Appellant took a rapid HIV detection test which was nonreactive,
and he was then advised to take a few more tests to confirm the status of his HIV exposure.
Dr. Ellis also reviewed medical records dated January 27, 2017 from Dr. Bordon who indicated
that appellant was diagnosed with exposure to a blood borne pathogen, an unspecified viral
infection, and HIV exposure, and he was treated for HIV exposure. He reviewed a statement made
by appellant on March 18, 2019 in which he stated that he had a partner, no prior drug use, no
blood transfusions, and did not engage in high-risk sexual activity. Dr. Ellis furthered stated that
he took rapid HIV tests on January 20 and 27, 2017, both of which came back negative. Appellant
indicated that he tested positive for Hepatitis C and HIV in February 2017, approximately 60 days
after he was struck by the needle. Dr. Ellis opined that it is medically reasonable to conclude that
this specific chronology of initial negative results after the needle stick incident and then later
positive results indicated that appellant developed HIV and Hepatitis C from occupational
exposures at the employing establishment.
By decision dated May 14, 2019, OWCP denied modification of the January 22, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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

3

Id.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
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
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 7 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. 8 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury. 9
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident. 10
OWCP’s procedures provide at Chapter 2.805.6 of the Federal (FECA) Procedure Manual
as follows:
“High-Risk Employment. Certain kinds of employment routinely present situations
which may lead to infection by contact with animals, human blood, bodily
secretions and other substances. Conditions such as (HIV) infection and [H]epatitis
B more commonly represent a work hazard in health care facilities, correctional
institutions and drug treatment centers, among others, than in [f]ederal workplaces
as a whole....
“The [claims examiner] CE can accept the claim for a physical injury where one
exists while developing the claim for a more serious condition (e.g., a puncture
wound may be accepted while any claimed hepatitis is developed).”11

7

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
8

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9

A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 7.
10

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

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.6 (January 2013).

5

Regarding acceptance of the claim for the alleged disease, these procedures provide:
“(b) … the CE may accept the case if -(1) A known carrier is involved, and the claimant had neither a prior history
of the disease nor exposure outside of employment; or
(2) A prior test was negative and a physical injury (such as a sexual assault)
has been accepted, even if a known carrier is not involved, if the claimant’s
occupation puts him or her at continuous risk for contracting the disease in
question and factors unrelated to work have not been identified as a source
of infection. If such factors are present, the CE must carefully consider the
medical probability of infection both outside and within the sphere of
employment, as well as the incubation period of the disease.”12
The claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.13
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The rules that come
into play are essentially based upon the concepts of direct and natural results and of the claimant’s
own conduct as an independent intervening cause. The basic rule is that a subsequent injury,
whether an aggravation of the original injury or a new and distinct injury, is compensable if it is
the direct and natural result of a compensable primary injury. 14
ANALYSIS
The Board finds that appellant has met his burden of proof to establish his diagnosed
conditions of HIV and Hepatitis C are causally related to the accepted December 14, 2016
employment incident while performing high-risk employment duties.
The Board initially finds that appellant’s work as a nurse at the employing establishment
routinely presented situations which placed him in contact with human blood, bodily secretions,
and other potentially hazardous substances which OWCP and the Board have determined are

12

Id.

13

K.W., Docket No. 18-0991 (issued December 11, 2018).

14
K.S., Docket No. 17-1583 (issued May 10, 2018); Arthur Larson & Lex K. Larson, The Law of Workers’
Compensation § 3.05 (2014).

6

common contaminants in a high-risk employment position. 15 Such contact, including a needle
stick contaminated with human blood as occurred here, was possible at the employ ing
establishment in his position. Thus, appellant’s position as a nurse is found to constitute high-risk
employment.
Having established that appellant was employed in a high-risk position at the time of the
needle stick, it must next be determined whether his claim should be accepted for diagnoses
associated with high-risk employment under either of the two provisions in OWCP’s
aforementioned procedures. In support of his claim, he submitted an October 2, 2018 medical
report by Dr. Ellis who indicated that after appellant’s December 14, 2016 needle stick incident he
went to the employing establishment’s occupational health unit where he was tested and found to
be HIV and Hepatitis C negative. Subsequently, in February 2017, appellant again underwent
testing and was diagnosed as positive for HIV and Hepatitis C. No other factors outside of his
employment have been identified as a potential source of infection. Dr. Ellis opined that the
timeline of appellant’s development of HIV and Hepatitis C is chronologically consistent with the
specific accepted December 14, 2016 workplace needle stick. OWCP accepted that the needle
stick occurred on December 14, 2016 and that upon initial testing he was negative, but in close
proximity he was tested again and, within mere months following the incident, he tested positive.
The Board finds that Dr. Ellis’ opinion regarding the timeline of the development of the positive
diagnostic testing, coupled with his high-risk occupation which put him at continuous risk for
contracting the diseases in question and the lack of other factors likely to have been a source of
infection, is sufficient to establish causal relationship for the conditions of HIV and Hepatitis C.
The Board therefore finds that although the source of the blood from the butterfly needle that stuck
appellant is unknown, appellant has satisfied all elements listed in Chapter 2.805.6(b)(2) of
OWCP’s procedure manual, and has therefore met his burden of proof to establish that the
diagnosed conditions of HIV and Hepatitis C must be accepted as work related.
Regarding appellant’s claim that his left upper extremity conditions were a consequence of
the accepted injury, the Board finds that this case is not in posture for decision.
Dr. Ellis’ October 2, 2018 medical report diagnosed additional conditions that he claimed
were also caused by appellant’s December 14, 2016 employment incident. In addition to HIV and
Hepatitis C, he diagnosed cryoglobulinemia, traumatic compartment syndrome of the left upper
extremity, blood clots of the left upper extremity, and orthostatic hypotension, and he opined that
all of these diagnoses were caused by appellant’s workplace needle stick. Dr. Ellis explained that
the infectious diseases from the needle stick caused appellant’s blood to clot which in turn caused
an embolus in the blood vessels of appellant’s left upper arm, thumb, and digits and necessitated
the previously mentioned surgeries. He also opined that appellant’s viral load caused his
autonomic response, which in turn caused his orthostatic hypotension.
Proceedings under FECA are not adversarial in nature, and OWCP is not a disinterested
The Board finds that while Dr. Ellis’ October 2, 2018 report is insufficient to meet
appellant’s burden of proof regarding causal relationship of the additional the left upper extremity
arbiter.16

15

Supra note 12; see also D.W., widower of T.M., Docket No. 14-0460 (issued February 11, 2016).

16

See B.B., Docket No. 18-1321 (issued April 5, 2019).

7

conditions, it raises an uncontroverted inference between his additional diagnosed conditions of
cryoglobulinemia, traumatic compartment syndrome of the left upper extremity, blood clots of the
left upper extremity, and orthostatic hypotension and his now accepted December 14, 2016
employment injury. Further development of appellant’s claim is therefore required.
On remand OWCP shall prepare a statement of accepted facts and refer appellant to an
appropriate Board-certified specialist for a second opinion examination and an evaluation
regarding whether he sustained additional medical conditions due to or as a consequence of the
accepted December 14, 2016 employment injury. Following such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish HIV and Hepatitis
C as causally related to the accepted December 14, 2016 employment injury. The Board also finds
that this case is not in posture for decision regarding the issue of whether appellant has met his
burden of proof to establish additional conditions due to or as a consequence of his accepted
December 14, 2016 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2019 decision of the Office of Workers’
Compensation Programs is reversed in part and set aside in part and the case is remanded for
further action consistent with this decision of the Board.
Issued: April 30, 2020
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board
Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Janice B. Askin, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, VITILAS “VITO”
)
REID POST OFFICE, Normandy, MO, Employer )
__________________________________________ )
D.J., Appellant

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

Docket No. 21-1027
Issued: March 25, 2022

Case Submitted on the Record

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

On June 21, 2021 appellant, through counsel, sought an appeal from a purported June 3,
2021 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-1027.
The Board, having duly considered the matter, notes that it has jurisdiction to review final
adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2 This
jurisdiction encompasses any final decision issued by OWCP within 180 days of the date appellant
filed this appeal. 3 Although the case record does contain a document from OWCP dated June 3,
1

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

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
3

2021, it is an informational letter and, thus, does not constitute a final adverse OWCP decision. 4
As there is no final adverse decision over which the Board may properly exercise jurisdiction, the
Board concludes that the appeal docketed as No. 21-1027 must be dismissed. 5 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1027 is dismissed.
Issued: March 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4

See Order Dismissing Appeal, G.T., Docket No. 21-0199 (issued December 1, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020) (correspondence that is purely informational in nature does not
constitute a final adverse decision of OWCP from which appellant may properly appeal).
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).
5

2