A.R. and U.S. Postal Service, Post Office, Birmingham (Board decision, December 14, 2023)

ECAB final decision. The Board affirmed OWCP's denial of the occupational disease claim involving the worker's knees. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A rural postal carrier attributed deterioration of both knees to years of moving loaded mail containers on a ramp. OWCP requested a detailed account of the work factors, but she did not respond to its questionnaire. The Board found that the record did not sufficiently establish that the alleged work factors occurred as described. It affirmed the denial without reaching whether the work caused a diagnosed knee condition.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Occupational disease claim denial affirmed.
• Key point: The worker needed a detailed factual account of the claimed work factors to establish the first element of the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.R., Appellant
)
)
and ) Docket No. 23-0111
)
Issued: December 14, 2023
U.S. POSTAL SERVICE, POST OFFICE, )
Birmingham, AL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On October 28, 2022 appellant filed a timely appeal from a July 27, 2022 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.

1
The Board notes that, following the July 27, 2022 decision, OWCP received additional evidence. 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. 2 5 U.S.C. § 8101 et seq.
ISSUE

The issue is whether appellant has met her burden of proof to establish an injury in the performance of duty, as alleged.

FACTUAL HISTORY

On April 4, 2022 appellant, then a 57-year-old rural carrier associate, filed an occupational disease claim (Form CA-2) alleging that she experienced deterioration of both knees resulting in bilateral knee replacements due to factors of her federal employment, including the repetitive use of a float ramp.3 She noted that, after 18 years, it had become difficult for her to push the weight of the float down the ramp while it was loaded with mail and packages and explained that she must also load the mail into her vehicle and then push the float back up the ramp afterward. Appellant related that she sometimes performs this task multiple times per day, that her duties require the full strength of her legs and knees, and that she believed that she is losing strength in both legs and knees. She indicated that she first became aware of her conditions on November 15, 2021 and realized their relation to her federal employment on December 9, 2021. Appellant stopped work on March 28, 2022.

In support of her claim, appellant submitted December 9, 2021 x-ray images of her knees.

In a May 3, 2022 letter, the employing establishment controverted the claim, noting that appellant’s duties included intermittent walking, standing, sitting, lifting, pushing, sorting, delivering, driving, and distribution of mail and packages. It asserted that she had not submitted medical evidence establishing causal relationship between her knee conditions and the duties of her federal employment.

In a May 17, 2022 development letter, OWCP advised appellant of the deficiencies of her claim. It advised her of the type of factual and medical evidence needed to establish her claim and provided a factual questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary evidence. No evidence was received.

By decision dated July 27, 2022, OWCP denied appellant’s claim, finding that she had not submitted sufficient evidence to establish that the claimed events occurred as alleged. It noted that she did not respond to its developmental questionnaire. Consequently, OWCP found that appellant had not met the requirements to establish an injury as defined by FECA.

3
OWCP assigned the present claim OWCP File No. xxxxxx486. Appellant previously filed a traumatic injury claim (Form CA-1) on September 9, 2009 for a left knee injury under OWCP File No. xxxxxx343, which was denied by decision dated November 2, 2009. She also previously filed an April 15, 2008 Form CA-1 alleging that she sustained a left knee injury under OWCP File No. xxxxxx414. The claims have not been administratively combined by OWCP.

2
LEGAL PRECEDENT

An employee seeking benefits under FECA 4 has the burden of proof to establish the essential elements of his or her claim, including that the individual is an employee of the United States within the meaning of FECA, that the claim was timely filed within the applicable time limitation of FECA, 5 that an injury was sustained in the performance of duty as alleged, and that any disability or medical condition for which compensation is claimed is causally related to the employment injury. 6 These are the essential elements of each and every compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 7

To establish that an injury was sustained in the performance of duty in an occupational disease claim, a claimant must submit: (1) a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition; (2) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to the identified employment factors. 8

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish an injury in the performance of duty, as alleged.

In her Form CA-2, appellant indicated that she experienced deterioration of her knees resulting in knee replacement due to factors of her federal employment, including the use of a float ramp. By letter dated May 3, 2022, the employing establishment controverted the claim. OWCP, in its May 17, 2022 development letter, requested that appellant complete an attached questionnaire and provide a detailed factual description of the alleged employment factors. Appellant, however, did not respond to OWCP’s May 17, 2022 development letter or otherwise provide a factual statement identifying employment factors alleged to have caused or contributed to a medical condition. 9

4
Supra note 1.
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 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). 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.W., Docket No. 20-0767 (issued January 13, 2021); L.D., Docket No. 19-1301 (issued January 29, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019). 9 Id.; C.H., Docket No. 21-0932 (issued February 10, 2022).

3
As the evidence of record is insufficient to establish that the alleged employment factors occurred as described, the Board finds that appellant has not met her burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish an injury in the performance of duty, as alleged. 10

ORDER

IT IS HEREBY ORDERED THAT the July 27, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: December 14, 2023
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

10
Upon return of the case record, OWCP should consider administratively combining the present claim with appellant’s additional claim files relating to left knee conditions.

4