United States Department of Labor 

Employees’ Compensation Appeals Board 

___________________________________________

R.Z., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Miami, FL, Employer 

___________________________________________

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 13-1911 

Issued: September 15, 2014 

Appearances: Case Submitted on the Record 

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 13, 2013 appellant filed a timely appeal from a July 28, 2013 nonmerit 

decision and a May 21, 2013 merit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the issues in this case. 

ISSUES 

The issues are: (1) whether appellant has met his burden of proof to establish an injury 

causally related to factors of his federal employment; and (2) whether OWCP properly refused to 

reopen appellant’s case for further review of the merits of his claim under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On November 5, 2012 appellant, then a 53-year-old clerk, filed an occupational disease 

claim alleging that he suffered from hip, back and leg pain in the performance of duty. He 

 1

 5 U.S.C. § 8101 et seq. 
2

alleged that his injury began on July 7, 2010 and that he first became aware of the injury and its 

relation to his work on that date. Appellant referenced filing an accident report in 2005 when he 

had back pain and shooting leg pain, which OWCP had previously accepted for lumbar 

sprain/strain under file number xxxxxx589 on August 3, 2005. On September 23, 2008 OWCP 

expanded that claim to include lumbar herniated nucleus pulposus. 

In a November 27, 2012 telephone memorandum, OWCP contacted appellant to seek 

clarification with regard to his claim as portions of his claim form were blurry and difficult to 

read. Appellant confirmed that he was claiming an injury to his hip. He also confirmed that he 

had been out of work for at least two years. OWCP advised that it would send him a claim 

development letter. 

By letter dated November 27, 2012, OWCP informed appellant of the type of evidence 

needed to support his claim and requested that he submit such evidence within 30 days. In 

particular, it advised appellant that the evidence received was insufficient to establish that he 

experienced any employment factors that were alleged to have caused an injury. 

Thereafter, appellant submitted an October 19, 2012 report from Dr. Lance Lehmann, 

M.D., who noted first treating appellant on December 30, 2005 for back and upper left leg pain 

for which he diagnosed disc herniations at L2-3 and L4-5 along with lumbar radiculopathy. 

Dr. Lehmann later saw appellant again in March 2010 for persistent pain in the left hip and 

buttock area. He advised that appellant had engaged in repetitive lifting, with twisting and 

turning of mail tubs and bins, since 2005. Dr. Lehmann noted that the July 7, 2010 left hip 

magnetic resonance imaging (MRI) scan showed some impingement syndrome in his acetabular 

head and some osteoarthritis in the joint space along with some labral tearing. He opined that he 

felt that these “findings and pain were secondary to his job and repetitive motion-type injury.” 

Dr. Lehmann indicated that he believed the injury was work related and should be covered. In a 

report dated September 27, 2012, Dr. Richard E. Strain, M.D., stated that appellant had bulging 

disc and herniated disc and was subsequently diagnosed with left hip problems. He indicated 

osteoarthritis in the left hip and noted that, as appellant had no prior history of hip fracture, this 

would not be work related. 

OWCP indicated that it had bronzed medical documentation from Dr. Lehmann and 

Dr. Strain (under file number xxxxxxx589) into the current record. 

In a letter dated December 3, 2012, Amelia Brown, a health and resource management 

specialist, with the employing establishment controverted the claim. She noted that appellant 

was on the periodic compensation rolls for a prior claim, file number xxxxxx589, with the exact 

same conditions.2

 Ms. Brown advised that appellant stopped work on September 1, 2005, 

returned on December 17, 2007 and stopped work again on May 10, 2010. She questioned why 

he waited more than two years to file his occupational disease claim and suggested that his time 

away from work and nonwork activities may be the cause of his current condition. 

In a December 12, 2012 report, Dr. Lehmann recounted his history of treating appellant 

and indicated that appellant’s last office visit was November 15, 2012. He explained that the 

 2

 The other claim is not presently before the Board. 
3

MRI scan on July 7, 2010 revealed impingement syndrome with femoral acetabular head 

osteoarthritis in the joint space and some labral tearing. Dr. Lehmann opined that “we believe 

this was due to the job and repetitive motion-type injury.” He advised that appellant’s injury was 

related to his work at the employing establishment. Dr. Lehmann noted “according to the 

patient’s own words, he felt that work had exacerbated his condition over the years regarding 

both his back and his hip and I believe it should be covered.” 

On January 18, 2013 appellant indicated that he had spoken to his physician, who agreed 

that the physician, in his report, had provided the appropriate responses to OWCP’s questions. 

By decision dated January 28, 2013, OWCP denied appellant’s claim. It found that the 

medical evidence did not demonstrate that the claimed medical condition was related to 

established work-related events. 

On February 21, 2013 appellant requested reconsideration. In an undated statement, he 

noted that he was submitting a new report from Dr. Lehmann which supported causal 

relationship. Appellant also indicated that his claims examiner did not address his prior claim, 

file number xxxxxx589. 

In a January 10, 2013 report, Dr. Lehmann diagnosed lumbar herniated nucleus pulposus, 

stenosis and hip pain. He continued to treat appellant and submit reports. In a February 19, 

2013 report, Dr. Lehmann noted that he was further outlining why he believed that appellant 

sustained a hip injury, while working for the employing establishment, as well as a lumbar injury 

for which he had received treatment since 2005. He advised that on December 30, 2005 

appellant completed a questionnaire and related that he was lifting flat tubs from work and 

twisting and turning in the process. Dr. Lehmann explained that an MRI scan of the hip at a later 

date revealed labral tearing. He advised that this was important because specific risk factors or 

causes for a hip labral tear might include specifically repetitive motion-type injuries that 

involved sudden twisting or pivoting. Dr. Lehmann opined that these findings, the examination 

from June 2005 and appellant’s description of injury from May 2005, in addition to the labral 

tear of the hip, was sufficient to establish causal relationship between work and his condition. 

He reiterated his belief that appellant’s condition was work related in March 7 and April 8, 2013 

reports. OWCP also received a copy of an article on hip labral tears. 

By decision dated May 21, 2013, OWCP affirmed, as modified, to show that both 

components of fact of injury had not been met. It found that appellant had not identified specific 

work factors alleged to have caused his claimed hip condition nor did the evidence support that 

appellant had been working in July 2010 as he was on the periodic rolls under file number 

xxxxxx589 beginning May 10, 2010. 

 On July 10, 2013 appellant completed an appeal request form and requested 

reconsideration. No evidence or argument accompanied his request. 

By decision dated July 29, 2013, OWCP denied appellant’s request for reconsideration 

finding that the evidence submitted was insufficient to warrant review of its prior decision. 
4

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim including the fact that the individual is an “employee of the 

United States” within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA, that an injury was sustained in the performance of duty as alleged 

and that any disability and/or specific condition for which compensation is claimed are causally 

related to the employment injury.4 These are the essential elements of each and every 

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an 

occupational disease.5

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed; (2) a factual 

statement identifying employment factors alleged to have caused or contributed to the presence or 

occurrence of the disease or condition; and (3) medical evidence establishing that the employment 

factors identified by the claimant were the proximate cause of the condition for which 

compensation is claimed or, stated differently, medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the claimant. 

ANALYSIS -- ISSUE 1 

Appellant must establish all of the elements of his claim in order to prevail. He must 

prove his employment, the time, place and manner of injury, a resulting personal injury and that 

his injury arose in the performance of duty. Appellant alleged that he sustained a back, leg and 

hip condition as a result of his federal employment duties as a clerk. 

The evidence establishes that appellant has a prior accepted lumbar sprain/strain and 

lumbar herniated nucleus pulposus. However, appellant did not present a clear factual statement 

identifying employment factors alleged to have caused or contributed to the presence or occurrence 

of the disease or condition. In this case, appellant has not explained how work duties caused or 

aggravated his current claimed left hip condition. This is particularly important in light of the fact 

that he stopped work on May 10, 2010 and has been on the periodic rolls under a prior claim for 

a back condition.6

 

On November 27, 2012 OWCP informed appellant that the evidence received to date was 

insufficient to establish that he experienced any employment factors that were alleged to have 

caused an injury. Appellant did not provide any statements clearly identifying the work 

activities (and when those work activities occurred) with regard to his claimed left hip condition. 

 3

 5 U.S.C. §§ 8101-8193. 

4 Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

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

6

 To the extent that appellant may be alleging a recurrence of his prior claim or a consequential hip condition, he 

may submit a claim under that claim number. 
5

Thus, the Board finds that appellant has not sufficiently identified employment factors 

alleged to have caused or contributed to his claimed hip condition to meet his burden of proof.7

As appellant has not established the factual component of his claim, the Board will not 

address the medical evidence with respect to causal relationship.8

 

The Board has held that the mere fact that a condition manifests itself during a period of 

employment does not raise an inference that there is a causal relationship between the two.9

 

Neither the fact that the condition became apparent during a period of employment nor the belief 

that the condition was caused or aggravated by employment factors or incidents is sufficient to 

establish causal relationship.10 

On appeal, appellant submitted new additional evidence. However, the Board has no 

jurisdiction to review this evidence for the first time on appeal.11 Furthermore, with regard to his 

argument that his physician provided all the answers in his letter, the Board notes that appellant 

has not established the factual component in the present claim and it is premature to address the 

medical aspects.12

Appellant may submit evidence or argument with a written request for reconsideration 

within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 

through 10.607. 

LEGAL PRECEDENT -- ISSUE 2 

Under section 8128(a) of FECA,13 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal 

regulations, which provides that a claimant may obtain review of the merits if the written 

application for reconsideration, including all supporting documents, sets forth arguments and 

contains evidence that: 

“(i) Shows that [OWCP] erroneously applied or interpreted a specific point of 

law; or 

“(ii) Advances a relevant legal argument not previously considered by OWCP; or 

 7 See C.J., Docket No. 12-1927 (issued March 29, 2013); C.G., Docket No. 11-1897 (issued April 24, 2012). 

8 See Bonnie A. Contreras, 57 ECAB 364 (2006). 

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

10 Id.

11 20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952). 

12 Supra note 8. 

13 5 U.S.C. § 8128(a). 
6

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by [OWCP].”14

 Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.15

ANALYSIS -- ISSUE 1 

Appellant disagreed with OWCP’s May 21, 2013 decision, which denied his claim for an 

occupational disease. The underlying issue on reconsideration was whether appellant had 

sufficiently identified and established work factors or incidents as the cause of his claimed hip 

condition. On July 10, 2013 appellant completed an appeal request form and requested 

reconsideration. No evidence or argument accompanied his request. 

Appellant did not provide any relevant and pertinent new evidence to establish that he 

sustained an occupational disease in the performance of duty. He also has not shown that OWCP 

erroneously applied or interpreted a specific point of law, or advanced a relevant new argument 

not previously submitted. Therefore, OWCP properly denied his request for reconsideration. 

CONCLUSION 

The Board finds that appellant has not met his burden of proof to establish an injury in 

the performance of duty causally related to factors of his federal employment. The Board also 

finds that OWCP properly refused to reopen appellant’s case for further review of the merits of 

his claim under 5 U.S.C. § 8128(a). 

 14 20 C.F.R. § 10.606(b). 

15 Id. at § 10.608(b). 
7

ORDER 

IT IS HEREBY ORDERED THAT the July 28 and May 21, 2013 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: September 15, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board