United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.H., Appellant 

and 

U.S. POSTAL SERVICE, MONTEREY 

STATION, Lubbock, TX, Employer 

__________________________________________ 

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Docket No. 15-1670 

Issued: December 15, 2015 

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 H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On August 3, 2015 appellant filed a timely appeal from an April 16, 2015 merit decision 

and a June 16, 2015 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 the case.2

 

ISSUES 

The issues are: (1) whether appellant established an injury in the performance of duty on 

January 5, 2015, as alleged; and (2) whether OWCP properly refused to reopen appellant’s claim 

for merit review pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted new evidence on appeal. The Board cannot consider this evidence 

submitted for the first time on appeal as the Board’s jurisdiction is limited to reviewing the evidence that was before 

OWCP at the time of its final merit decision. 20 C.F.R. § 501.2(c)(1); see also Dennis E. Maddy, 47 ECAB 

259 (1995). However, as noted above, this evidence can be submitted with a timely filed request for reconsideration 

to OWCP. 
2

FACTUAL HISTORY 

On January 8, 2015 appellant, then a 65-year-old carrier technician, filed a traumatic 

injury claim (Form CA-1) alleging that on January 5, 2015 he slipped on ice and sustained a 

strain of his left lower back. 

In support of his claim, appellant submitted multiple documents from Concentra Medical 

Centers. In a January 8, 2015 note, Melissa L. Kemp, a physician assistant, diagnosed 

unspecified accidental fall, other symptoms referable to back, contusion of interscapular region, 

contusion of elbow, and contusion of hip. In a January 13, 2013 note, Michelle Coale, a nurse 

practitioner, diagnosed back muscle spasm, contusion of left back wall of thorax, and accidental 

fall. In reports dated from January 6 to 16, 2015, physical therapist John Martin and Ms. Coale 

noted treatment of appellant with therapeutic exercises for contusion of left back wall of thorax, 

contusion of left elbow, contusion of right hip, and back muscle spasm from an accidental fall. 

Appellant was released from care and to regular-duty work by his physical therapist on 

January 19, 2015. 

On January 14, 2015 appellant accepted an offer of a modified limited-duty job with the 

employing establishment. 

By decision dated April 16, 2015, OWCP denied appellant’s claim. 

On April 26, 2015 appellant submitted a request for reconsideration. He resubmitted the 

same notes from Concentra Medical Centers that were already in the record. These reports 

included duplicate copies of notes by Ms. Kemp and duplicate physical therapy notes. Appellant 

also submitted the results of an investigative interview conducted on January 14, 2015. He noted 

in this interview that he was aware of procedures for walking on ice and that there was no rail on 

the steps. Appellant noted that, when he slipped on ice and fell, he landed on his back and left 

elbow. He also submitted a January 19, 2015 clinical summary of his treatment prepared by 

Ms. Kemp. Ms. Kemp noted that appellant had current health issues of back muscle spasm; 

contusion of elbow, left; contusion of hip, left; contusion of left back wall of thorax; and fall, 

accidental. She noted that he was released from treatment as maximum medical improvement 

had been reached. 

By decision dated June 16, 2015, OWCP denied appellant’s reconsideration request 

without conducting a merit review. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA 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, that an injury was sustained in the performance of duty as alleged and that any 

disabilities and/or specific conditions for which compensation is claimed are causally related to 
3

the employment injury.3

 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.4

 

In order to determine whether an employee actually sustained an injury in the 

performance of duty, OWCP begins with an analysis of whether fact of injury has been 

established. Generally, fact of injury consists of two components, which must be considered in 

conjunction with one another. The first component to be established is that the employee 

actually experienced the employment incident or exposure, which is alleged to have occurred.5 

In order to meet his or her burden of proof to establish the fact that he or she sustained an injury 

in the performance of duty, an employee must submit sufficient evidence to establish that he or 

she actually experienced the employment injury or exposure at the time, place, and in the manner 

alleged.6

The second component is whether the employment incident caused a personal injury and 

generally can be established only by medical evidence.7

 The medical evidence required to 

establish causal relationship is usually rationalized medical evidence. Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on the 

issue of whether there is a causal relationship between the claimant’s diagnosed condition and 

the implicated employment factors. The opinion of the physician must be based on a complete 

factual and medical background of the claimant, must be one of reasonable medical certainty and 

must be supported by medical rationale explaining the nature of the relationship between the 

diagnosed condition and the specific employment factors identified by the claimant.8

ANALYSIS -- ISSUE 1 

It is undisputed that appellant slipped and fell on ice on January 5, 2015. However, the 

medical evidence does not establish a firm medical diagnosis causally related to the accepted 

injury. 

Appellant has not submitted any qualifying medical evidence containing a firm medical 

diagnosis or an opinion that the diagnosis was causally related to his accepted employment 

incident. All of the reports submitted were signed by physical therapists, a nurse, or a physician 

 3 Elaine Pendleton, 40 ECAB 1143 (1989). 

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

5 See supra note 3. 

6 Linda S. Jackson, 49 ECAB 486 (1998). 

7 John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978). 

8 Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994). 
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assistant. These reports have no probative value to establish appellant’s claim as these medical 

care providers are not considered physicians as defined under FECA.9

An award of compensation may not be based on surmise, conjecture, or speculation. 

Neither, the fact that appellant’s claimed condition became apparent during a period of 

employment nor his belief that the condition was caused by his employment is sufficient to 

establish causal relationship.10 Because he has not provided a medical opinion clearly explaining 

how the accepted employment incident resulted in a firm medical diagnosis, he failed to meet his 

burden of proof, and OWCP properly denied his claim for compensation. 

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. 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,11

OWCP 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.12 To be entitled to a merit review 

of an OWCP 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.13 When a claimant fails to 

meet one of the above standards, OWCP will deny the application for reconsideration without 

reopening the case for review on the merits.14 

ANALYSIS -- ISSUE 2 

The Board finds that appellant did not provide any relevant or pertinent new evidence 

warranting the reopening of the case on the merits. Submission of evidence which repeats or 

duplicates evidence already in the record does not constitute a basis for reopening a case.15 The 

majority of the evidence submitted on reconsideration, including the reports of appellant’s 

physical therapists and the nurse practitioner’s January 8, 2015 note, are duplicative of reports 

 9

 Section 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.404; Roy L. Humphrey, 57 ECAB 238 (2005). 

10 D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965). 

11 5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or 

against payment of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a). 

12 20 C.F.R. § 10.606(b)(3). 

13 Id. at § 10.607(a). 

14 Id. at § 10.608(b). 

15 See D.K., 59 ECAB 141 (2007). 
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already in the record. The clinical summary of appellant’s treatment prepared by Ms. Kemp on 

January 19, 2015 is repetitive of the other reports. Therefore, this duplicative or repetitive 

evidence is not sufficient to merit opening appellant’s case for reconsideration. 

The new evidence is also insufficient to warrant further merit review. The investigative 

report concerns how the employment incident occurred. However, OWCP accepted that the 

employment incident occurred as alleged. The underlying issue in this case was whether 

appellant sustained a medical diagnosis causally related to the accepted incident. That is a 

medical issue which must be addressed by relevant medical evidence.16 Accordingly, appellant 

failed to submit any new and relevant evidence addressing causal relationship in support of her 

claim.17

The Board finds that appellant did not show that OWCP erroneously interpreted a 

specific point of law, advance a relevant legal argument not previously considered, or submit 

relevant and pertinent new evidence not previously considered by OWCP. Appellant did not 

meet any of the regulatory requirements and OWCP properly declined to reopen his claim for 

further merit review.18

CONCLUSION 

The Board finds that appellant did not establish an injury in the performance of duty on 

January 5, 2015, as alleged. The Board further finds that OWCP properly refused to reopen his 

claim for merit review pursuant to 5 U.S.C. § 8128(a). 

 16 See Bobbie F. Cowart, 55 ECAB 746 (2004). 

17 D.H., Docket No. 15-1090 (issued July 29, 2015). 

18 A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 

630 (2006). 
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ORDER 

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

Compensation Programs dated June 16 and April 16, 2015 are affirmed. 

Issued: December 15, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board