United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.M., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Memphis, TN, Employer 

__________________________________________ 

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Docket No. 14-1352 

Issued: October 1, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On May 28, 2014 appellant filed a timely appeal from a February 14, 2014 merit decision 

and a March 19, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

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

 (FECA) and 20 C.F.R. 

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

ISSUES 

The issues are: (1) whether appellant met her burden of proof to establish a traumatic 

injury in the performance of duty on September 25, 2013; and (2) whether OWCP properly 

denied appellant’s request for further merit review of her claim pursuant to 5 U.S.C. § 8128(a). 

On appeal, appellant argues that she was subject to retaliation due to her filing of an EEO 

claim. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 26, 2013 appellant, then a 37-year-old transportation security officer, filed 

a traumatic injury claim (Form CA-1) alleging strain to the neck, left shoulder, left knee and 

sprains to the right foot and lower back on September 25, 2013. She was injured while 

performing pat-downs of a person with a disability and a standard pat-down of an officer. A 

supervisor checked a box noting that appellant was not injured within the performance of duty, 

explaining that fact of injury and causal relationship had not been established. The supervisor 

noted that her knowledge of the facts about the claimed injury conflicted with the statements of 

witnesses. The employing establishment controverted the claim. 

By letter dated October 1, 2013, OWCP advised appellant that the evidence of record was 

insufficient to support her claim. It afforded her 30 days to submit additional evidence and asked 

her to respond to a questionnaire. 

In a memorandum dated September 25, 2013, David M. Harbin, an expert screening 

training instructor, reviewed the events of that date. He stated that appellant had been evaluated 

on her ability to perform a standard pat-down and a pat-down on a person with disability in a 

wheelchair. Mr. Harbin noted that Jana Frierson, master transportation security training 

instructor, worked directly with appellant in demonstrating these procedures, while Debra 

Cooper and Calvin Whetstone, supervisory transportation security officers, Randy J. Carroll, 

instructor, and himself observed the evaluation. Ms. Frierson and Ms. Cooper demonstrated how 

to perform a pat-down on a person with disabilities, with Ms. Cooper acting as the passenger, 

before appellant was asked to do so. Appellant demonstrated this pat-down on Ms. Frierson. 

After she had completed the pat-down of a person with disabilities, she was asked to leave the 

room while the observers conferred as to its correctness. All observers agreed that appellant had 

not correctly performed certain parts of the procedure. Appellant was invited back into the room 

and asked to perform a standard pat-down, which Ms. Frierson and Ms. Cooper demonstrated. 

After performing the procedure, she was again asked to leave. Again, all observers agreed that 

appellant had not correctly performed certain parts of the procedure. A record was made of the 

critical errors of both demonstrations to aid in the remediation/on-the-job training process, which 

was signed by the observers and given to a manager. Mr. Harbin stated that at no point during 

the demonstration did he hear appellant say that she was in pain or that she was unable to 

perform the demonstrations. 

On the same date, Ms. Frierson submitted a statement which corroborated the account of 

Mr. Harbin as to the incident of September 25, 2013. She noted that, while appellant was 

performing the pat-down of a person with disabilities on her, she heard appellant’s grunting, 

heavy breathing, and moaning noises, but no verbal complaints regarding pain or distress. 

During the standard pat-down, appellant did not make any statements or complaints that she was 

in distress or pain. 

In a statement dated September 26, 2013, Mr. Carroll corroborated the account by 

Mr. Harbin as to the incident of September 25, 2013. He stated that at no time during any of the 

procedures did he hear appellant state that she was in any pain or unable to perform the tasks. 

On the same date, Ms. Cooper also stated that she witnessed appellant perform a standard patdown and a pat-down on a person with disabilities on Ms. Frierson. She noted that appellant did 
3

not inform Ms. Frierson that she was in pain before she began the procedures. Ms. Cooper stated 

that she “did not witness anything that contributed to the claim that was filed” by appellant. 

In a memorandum dated September 26, 2013, Mr. Harbin stated that he met appellant on 

that date, when she was to begin her remedial training. Appellant asked Mr. Harbin if Training 

Specialist Ray Secession was there, because she wanted to speak to him. Mr. Harbin told her 

that he was not there and would let Mr. Secession know. He told Mr. Secession that appellant 

wanted to speak with him when he arrived. After Mr. Secession spoke to appellant, he asked 

Mr. Harbin to write a statement concerning his conversation with appellant. 

On September 26, 2013 Mr. Secession stated that he had spoken to appellant that 

morning. Appellant told him that she needed to fill out workers’ compensation paperwork, 

because her left shoulder, ankle, leg, and lower back hurt and that she had been up all night. She 

thought the bending and other activities from the previous day may have caused it. 

Mr. Secession obtained the paperwork for her and told appellant that she would have to return to 

the airport to see a manager. He took the paperwork to the airport and gave it to the manager. 

In a memorandum dated September 26, 2013, Barbara Smith, safety officer, stated that, 

after reviewing the statements given by appellant and witnesses to the events of September 25, 

2013, she concluded that there were no contributory factors causing the alleged injuries. 

By decision dated November 5, 2013, OWCP denied appellant’s claim. It found that she 

did not submit medical evidence in support of her claim. OWCP accepted that appellant was a 

federal civilian employee who filed a timely claim, and that the evidence supported that the 

September 25, 2013 incident occurred as described. 

On November 20, 2013 appellant requested reconsideration and submitted a letter dated 

November 18, 2013 signed by Jamie W. Covington, family nurse practitioner, on behalf of 

Dr. Charles W. Munn, a Board-certified internist. Ms. Covington noted that appellant had been 

seen on September 16, 2013 with complaints of left foot pain and lower back pain. Appellant 

followed up on October 1, 2013 with a worsening of her lower back pain, in addition to left knee 

and left shoulder pain. Ms. Covington stated that appellant saw an orthopedic surgeon, who 

placed her in a boot and diagnosed her with Achilles tendinitis. She noted that appellant’s back 

had not improved by wearing an orthotic while at work. This letter was not signed by a 

physician. 

In a statement dated November 20, 2013, appellant noted that she had not carefully read a 

document sent to her by OWCP which stated that “[n]urse practitioners and physician assistants 

are not considered qualified physicians.” Once she reviewed the document, she realized that the 

November 20, 2013 report needed to be countersigned by a physician. Appellant alleged that 

due to a current open EEO complaint, she had experienced an elevated level of controversy in 

filing her claim, causing her to make trivial mistakes due to stress. She stated that she was 

subjected to threats of disciplinary action and had repeatedly pleaded with her superiors that she 

was unable to complete her duties due to back and foot pain. Appellant wore a visible orthotic 

foot brace that extended to her upper left knee, as well as a back brace, but was forced to 

complete the pat-down procedure of a person with disabilities. She stated that it caused pain and 

her range of motion was so limited that she failed to pass the evaluation. 
4

In a statement dated December 18, 2013, Ms. Cooper noted that she did not recall seeing 

appellant wearing a foot brace or stating that she was unable to perform the procedures on 

September 25, 2013. In a statement of the same date, Mr. Harbin advised that he did not recall 

observing appellant wearing a foot brace or any other brace/appliance on her feet on 

September 25, 2013. Mr. Whetstone, Ms. Frierson and Mr. Carroll also noted that they did not 

observe appellant wearing a foot brace during her evaluations on September 25, 2013. 

By decision dated February 14, 2014, OWCP reviewed the merits of appellant’s claim. It 

found that the report of November 20, 2013 did not provide a history of work injury or mention 

the incident on September 25, 2013, and thus it did not suffice to meet her burden of proof to 

establish causal relation. 

On March 10, 2014 appellant requested reconsideration and submitted the second page of 

a Form CA-1 from the employing establishment, which had been marked “void.” The supervisor 

who completed the Form CA-1 had checked boxes indicating that appellant was injured in the 

performance of duty on September 25, 2013, that her knowledge of the facts about the injury 

agreed with the statements of the employee and/or witnesses and the document did not contain a 

controversion of continuation of pay. 

By decision dated March 19, 2014, OWCP denied appellant’s request for reconsideration 

without reviewing the merits of the case. It noted that the Form CA-1 appellant had submitted 

was already part of the case file. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA2 has the burden of establishing the essential 

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

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

limitation period of FECA, that an injury3 was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally 

related to the employment injury.4

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it must first be determined whether a “fact of injury” has been established. 

A fact of injury determination is based on two elements. First, the employee must submit 

sufficient evidence to establish that he or she actually experienced the employment incident at 

the time, place, and in the manner alleged. Second, the employee must submit sufficient 

evidence, generally only in the form of medical evidence, to establish that the employment 

 2 Supra note 1. 

3

 OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident, 

or series of events of incidents, within a single workday or shift. Such condition must be caused by external force, 

including stress or strain, which is identifiable as to time and place of occurrence and member or function of the 

body affected. 20 C.F.R. § 10.5(ee). 

4 T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40 

ECAB 1143, 1145 (1989). 
5

incident caused a personal injury. An employee may establish that the employment incident 

occurred as alleged but fail to show that his or her condition relates to the employment incident.5

ANALYSIS -- ISSUE 1 

Appellant alleged that on September 25, 2013 she sustained injuries to her neck, left 

shoulder, left knee, right foot and lower back in the performance of duty. OWCP accepted that 

she performed a pat-down of a person with a disability and a standard pat-down, during a 

training demonstration. While appellant subsequently alleged that she was “forced” to complete 

the pat-down of an individual with a disability while wearing a visible orthotic foot brace and 

back brace, the Board finds that she has not established this as factual. An employee’s statement 

regarding the occurrence of an employment incident will stand unless refuted by strong or 

persuasive evidence.6

 The record contains the statements from Ms. Cooper, Mr. Harbin, 

Mr. Whetstone, Ms. Frierson and Mr. Carroll, who were all present during the pat-down 

demonstration in question. Each individual related that they did not observe appellant wearing a 

brace during the incident in question. 

The Board finds that appellant has not established her claim because she did not submit 

sufficient medical evidence from a physician to establish that she sustained an injury due to the 

September 25, 2013 incident. 

Appellant submitted only one piece of medical evidence, a letter dated November 18, 

2013 signed by Ms. Covington, a nurse. A nurse practitioner does not qualify as a physician 

under FECA. Such medical reports do not qualify as probative medical evidence supportive of a 

claim for federal workers’ compensation, unless countersigned by a physician.7

 The letter dated 

November 18, 2013 was not signed by a physician: the only signature appearing on the letter is 

that of Ms. Covington. The Board finds this letter does not constitute probative medical 

evidence. As appellant did not submit any other medical evidence in support of her claim, she 

has not established a firm medical diagnosis of any condition in connection with the work-related 

incident of September 25, 2013. 

The Board finds that appellant did not submit sufficient medical evidence providing a 

diagnosis from a qualified physician. Appellant failed to establish that she had any diagnosed 

condition resulting from the September 25, 2013 employment incident. On appeal, she argued 

that she had been subject to retaliation due to the filing of an EEO claim. This argument is not 

relevant to the grounds upon which appellant’s claim was denied. 

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. 

 5 See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989). 

6 Virgil F. Clark, 40 ECAB 575 (1989); Robert A. Gregory, 40 ECAB 478 (1989). 

7 Id.
6

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s 

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.8 Section 10.608(b) of OWCP’s regulations 

provide that when an application for reconsideration does not meet at least one of the three 

requirements enumerated under section 10.606(b)(2), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.9

The Board has found that evidence that repeats or duplicates evidence already in the case 

record has no evidentiary value.10 The Board also has held that the submission of evidence 

which does not address the particular issue involved does not constitute a basis for reopening a 

case.

11 While the reopening of a case may be predicated solely on a legal premise not previously 

considered, such reopening is not required where the legal contention does not have a reasonable 

color of validity.12

ANALYSIS -- ISSUE 2 

OWCP issued a February 14, 2014 merit decision denying appellant’s claim for 

compensation. On March 10, 2014 appellant requested reconsideration of this decision. 

The issue is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), 

requiring OWCP to reopen her case for review of the merits. In her March 10, 2014 request for 

reconsideration, appellant did not contend that OWCP erroneously applied or interpreted a 

specific point of law, or did she advance a new and relevant legal argument not previously 

considered. Thus, she is not entitled to a review of the merits of her claim based on the first and 

second above-noted requirements under section 10.606(b)(2). 

The underlying issue is whether appellant submitted sufficient medical evidence to 

establish the causal relationship of her claimed injuries to the September 25, 2013 incident. A 

claimant may be entitled to a merit review by submitting new and relevant evidence, but 

appellant did not submit any new and relevant evidence in this case. With her request, appellant 

submitted the second page of a Form CA-1 marked “void.” While OWCP incorrectly stated that 

this evidence was previously of record, this was harmless error. The void Form CA-1 is 

irrelevant to the grounds upon which OWCP denied appellant’s claim. Appellant’s claim was 

 8

 20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007). 

9 Id. at § 10.608(b); K.H., 59 ECAB 495, 499 (2008). 

10 See Daniel Deparini, 44 ECAB 657, 659 (1993). 

11 P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB 

180, 187 (2000). 

12 Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000). 
7

denied because there was no medical opinion by a physician addressing how the employment 

incident on September 25, 2013 caused or contributed to any of her claimed conditions. As the 

void Form CA-1 did not contain any medical information and was not signed by a physician, it 

did not constitute medical evidence. As such, it was not relevant and thus insufficient to require 

a merit review of her claim. 

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law, advance a relevant legal argument not previously considered by OWCP, 

or submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish a traumatic 

injury in the performance of duty on September 25, 2013. The Board further finds that OWCP 

properly denied appellant’s request for review of the merits of her claim pursuant to 5 U.S.C. 

§ 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated March 19 and February 14, 2014 are affirmed. 

Issued: October 1, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board