United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

I.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer 

__________________________________________ 

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Docket No. 14-1109 

Issued: October 6, 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 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On April 14, 2014 appellant filed a timely appeal from a March 18, 2014 merit decision 

of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim 

and a March 31, 2014 nonmerit decision denying his request for reconsideration. 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 his burden of proof to establish that he 

sustained a left shoulder, left arm and low back injury in the performance of duty on 

November 27, 2013; and (2) whether OWCP properly denied appellant’s request for further 

merit review under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On January 27, 2014 appellant, then a 41-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on November 27, 2013 he sustained a left shoulder, left arm and 

lower back injury in a motor vehicle accident when his postal vehicle was rear ended when 

standing still at a traffic light. He stopped work on November 29, 2013. 

Appellant’s supervisor, Rich Thompson, controverted the claim. Mr. Thompson stated 

that, on the evening of November 27, 2013, appellant complained of pain in his shoulder and arm 

and did not notify Mr. Thompson that he had injured his back. Appellant did not seek medical 

treatment on the date of the accident and wanted to wait to see how he felt. He returned to work 

two days later on his next scheduled shift. Appellant informed Mr. Thompson that he could not 

work due to his back injury. Mr. Thompson speculated that appellant’s injury was due to a 

November 6, 2013 accident at the employing establishment and not a result of the November 27, 

2013 motor vehicle accident. He further controverted the case stating that appellant request a 

Form CA-1 until January 27, 2014, more than 30 days after the date of injury. 

By letter dated February 11, 2014, OWCP requested additional evidence from appellant 

and asked that he respond within 30 days. In a separate letter dated February 11, 2014, it 

requested that the employing establishment provide additional factual information pertaining to 

the motor vehicle accident. 

In a February 14, 2014 narrative statement, appellant reported that on November 27, 2013 

he was completing his mail route in his long life vehicle when it was struck from behind by 

another vehicle. He called his supervisor and the police at the time of the accident. 

Mr. Thompson arrived at the scene and appellant told him of tightness in his lower back and pain 

in his left shoulder and arm. Appellant noted that he had a prior work-related back injury on 

November 6, 2013 for which he filed a Form CA-1.2

 He stated that Mr. Thompson related his 

back injury to the November 6, 2013 injury and not to the motor vehicle accident. Appellant 

attempted to work on November 29, 2013 his next scheduled work date, but was unable to stand 

and case mail due to pain. He stopped work and made an appointment with his physician. 

Mr. Thompson interviewed appellant on the date of the motor vehicle accident and he thought 

his supervisor filed a Form CA-1 regarding the incident. In January 2014, appellant was 

informed by his claims examiner in claim File No. xxxxxx787, that there was no Form CA-1 

filed for the November 27, 2013 accident. She further informed him that all of the medical 

reports he submitted in that claim referenced the November 27, 2013 injury. Appellant then filed 

a claim, File No. xxxxxx691.3

 

In support of his claim, appellant submitted a November 27, 2013 Florida Traffic Crash 

Report. The Officer investigating the scene noted that appellant was struck from the rear by a 

motor vehicle. Appellant complained of left arm, shoulder and elbow pain but declined 

emergency medical services. 

 2

 Claim File No. xxxxxx787. The Board notes that this claim was not accepted by OWCP. 

3

 Claim File No. xxxxxx787 was subsequently cancelled and all documents were transferred to this new claim, 

File No. xxxxxx691. 
3

In a February 14, 2014 statement, Israel Castro, a city carrier and fellow employee, 

reported that appellant sustained injury on November 6 and 27, 2013. He noted that appellant 

informed him on November 27, 2013 that he was involved in a motor vehicle accident. 

Appellant complained of left shoulder pain and tightness in his lower back. 

In a February 21, 2014 statement, Mr. Thompson reported that appellant was returning 

from his assigned duty when he was struck by a motor vehicle on November 27, 2013. A police 

report was filed. 

In medical reports dated December 3, 2013 to January 6, 2014, Dr. Joseph Slattery, 

Board-certified in internal medicine, obtained a history that appellant was involved in a workrelated injury on November 6, 2013 when he was moving a tray of mail into his truck and felt the 

onset of low back pain. No x-rays were taken and appellant returned to work, complaining of 

continued low back pain. On November 27, 2013 he was involved in a motor vehicle accident 

when struck in the rear while his hands were on the steering wheel. Appellant complained of 

pain to his low back left shoulder, arm and elbow. Dr. Slattery noted intermittent numbness in 

the right leg running posteriorly since the November 6, 2013 injury and intermittent pain and 

tingling in the posterior legs bilaterally since November 27, 2013. He noted a prior history of 

strained a back in 2007, which resolved with chiropractic treatment and reported no neck or back 

problems at the time of the recent accident. Dr. Slattery reviewed x-rays of the cervical spine, 

lumbar spine and left shoulder as well as magnetic resonance imaging (MRI) scans of the 

cervical and lumbar spine. He diagnosed cervical sprain/strain with left radiculopathy causally 

related to the November 27, 2013 motor vehicle accident, lumbar sprain/strain with bilateral 

radiculopathy causally related to the November 6, 2013 employment incident with right radicular 

symptoms, which were aggravated by the November 27, 2013 motor vehicle accident and 

probable left shoulder sprain/strain, which was causally related to the November 27, 2013 

accident. 

By decision dated March 18, 2014, OWCP denied appellant’s claim. It found that the 

medical evidence of record failed to establish that his diagnosed conditions were causally related 

to the accepted November 27, 2013 employment incident. 

On March 24, 2014 appellant requested reconsideration of OWCP’s decision. 

In a December 12, 2013 report, Dr. Marlon Adler, a Board-certified diagnostic 

radiologist, reported that an x-ray of the cervical spine revealed straightening of the cervical 

lordosis which could reflect muscular spasm. An x-ray of the lumbar spine revealed mild disc 

space narrowing at L5-S1 with mild to moderate degenerative endplate changes and facet 

arthropathy. An x-ray of the left shoulder revealed no acute osseous pathology with mild 

mypertrophic degenerative changes at the acromioclavicular joint and mild degenerative 

arthrosis of the glenohumeral joint consistent with calcific tendinopathy. 

In a December 12, 2013 report, Dr. Thomas H. Magee, a Board-certified diagnostic 

radiologist, reported that an MRI scan of the lumbar spine revealed L4-5 posterocentral disc 

herniation of the protrusion type and annual tear, as well as an L5-S1 broad based posterocentral 

disc herniation of the protrusion type. 
4

Physical therapy notes dated December 19, 2013 to February 14, 2014 were submitted 

from Cora Rehabilitation Clinics. 

In a March 27, 2014 treatment note, Beth DiGiorgio, a registered nurse, reported that 

appellant was involved in a November 27, 2013 motor vehicle accident. She listed bilateral 

radiculopathy, disc herniations at L4-5 and L5-S1, a left shoulder injury and cervical 

radiculopathy. 

In a March 27, 2014 note, Dr. Slattery reported that appellant was placed on temporary 

total disability from November 29, 2013 through May 22, 2014 for injuries sustained in the 

November 27, 2013 accident. 

By decision dated March 31, 2014, OWCP denied appellant’s request for reconsideration. 

It found that he did not raise any substantive legal questions or included new and relevant 

evidence. 

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 filed within the applicable time 

limitation; that an injury was sustained while in the performance of duty as alleged and that any 

disability 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 on a traumatic injury or occupational disease.5

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 which is alleged to have occurred.6 The second 

component is whether the employment incident caused a personal injury and generally can be 

established only by medical evidence. 

To establish a causal relationship between the condition, as well as any attendant 

disability claimed and the employment event or incident, the employee must submit rationalized 

medical opinion evidence based on a complete factual and medical background, supporting such 

a causal relationship.7

 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 

 4 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989). 

5 Michael E. Smith, 50 ECAB 313 (1999). 

6 Elaine Pendleton, supra note 4 at 1143. 

7 See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983). 
5

condition and the specific employment factors identified by the claimant. This medical opinion 

must include an accurate history of the employee’s employment injury and must explain how the 

condition is related to the injury. The weight of medical evidence is determined by its reliability, 

its probative value, its convincing quality, the care of analysis manifested and the medical 

rationale expressed in support of the physician’s opinion.8

ANALYSIS -- ISSUE 1 

OWCP accepted that the November 27, 2013 incident occurred as alleged. The issue, 

however, is whether appellant established that the incident caused him a low back, left shoulder 

and left arm injury. The Board finds that he did not submit sufficient medical evidence to 

support that his low back, left shoulder and left arm injury is causally related to the 

November 27, 2013 employment incident.9 

In medical reports dated December 3, 2013 to January 6, 2014, Dr. Slattery reported that 

appellant was involved in a work-related injury on November 6, 2013 when he was moving a 

tray of mail into his truck and felt the onset of low back pain. No x-rays were taken and 

appellant returned to work complaining of continued back pain. On November 27, 2013 he was 

involved in a motor vehicle accident when he was struck in the rear while his hands were on the 

steering wheel. Appellant complained of low back pain and pain in his left shoulder, arm and 

elbow. Dr. Slattery noted a history of strained back in 2007, which resolved with chiropractic 

treatment. He reviewed diagnostic testing and provided findings on physical examination. 

Dr. Slattery diagnosed cervical sprain/strain with left radiculopathy causally related to the 

November 27, 2013 motor vehicle accident. Further, he discussed lumbar sprain/strain with 

bilateral radiculopathy causally related to the November 6, 2013 employment incident with right 

radicular symptoms, which were aggravated by the November 27, 2013 motor vehicle accident 

and probable left shoulder sprain/strain, which was causally related to the November 27, 2013 

motor vehicle accident. 

The Board finds the opinion of Dr. Slattery insufficiently rationalized. Dr. Slattery 

provided a limited medical history, which only generally noted a 2007 back injury without 

details pertaining to the preexisting condition. He diagnosed cervical sprain/strain with left 

radiculopathy, which he opined was causally related to the November 27, 2013 motor vehicle 

accident. Dr. Slattery further diagnosed lumbar sprain/strain with bilateral radiculopathy 

causally related to the November 6, 2013 employment incident with right radicular symptoms, 

which were aggravated by the November 27, 2013 accident. While he provided a firm medical 

diagnosis of cervical sprain/strain with left radiculopathy and lumbar sprain/strain with bilateral 

radiculopathy, he failed to adequately address how the November 27, 2013 incident caused or 

contributed to appellant’s low back condition. Dr. Slattery noted that appellant did not submit to 

diagnostic testing after his November 6, 2013 injury. While appellant underwent diagnostic 

testing on December 13, 2013 following the November 27, 2013 incident, Dr. Slattery was not 

clear as to whether the diagnosed conditions were caused or aggravated by the motor vehicle 

accident or a result of the prior November 6, 2013 incident. Moreover, his opinion on causation 

 8 James Mack, 43 ECAB 321 (1991). 

9 See Robert Broome, 55 ECAB 339 (2004). 
6

failed to explain the mechanism of injury with a physiological description of how the 

acknowledged accident caused a low back injury.10 

The Board further notes that Dr. Slattery’s diagnosis of probable left shoulder 

sprain/strain is speculative and fails to establish a firm medical diagnosis.11 Medical reports 

without adequate rationale on causal relationship are of diminished probative value and do not 

meet an employee’s burden of proof.12 The opinion of a physician supporting causal relationship 

must rest on a complete factual and medical background supported by affirmative evidence, 

address the specific factual and medical evidence of record and provide medical rationale 

explaining the relationship between the diagnosed condition and the established incident or 

factor of employment.13 Dr. Slattery’s reports are insufficient to meet appellant’s burden of 

proof.14

In the instant case, the record lacks sufficient medical evidence to establish a causal 

relationship between the November 27, 2013 motor vehicle accident and appellant’s injury. 

Thus, appellant has failed to meet his burden of proof. 

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. 

§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607. 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under FECA section 8128(a), 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.15 Section 10.608(b) of OWCP regulations 

provides 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.16

 10 B.D., Docket No. 11-464 (issued September 19, 2011). 

11 K.W., Docket No. 12-1467 (issued April 5, 2013). 

12 Ceferino L. Gonzales, 32 ECAB 1591 (1981). 

13 See Lee R. Haywood, 48 ECAB 145 (1996). 

14 Supra note 10. 

15 D.K., 59 ECAB 141 (2007). 

16 K.H., 59 ECAB 495 (2008). 
7

ANALYSIS -- ISSUE 2 

The Board finds that the refusal of OWCP to reopen appellant’s case for further 

consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an 

abuse of discretion. 

The issue presented on appeal is whether appellant met any of the requirements of 20 

C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. 

In his March 24, 2014 application for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law. He did not advance a new and relevant 

legal argument. Appellant’s argument was that his injury was employment related. The 

underlying issue in this case was whether his injury was causally related to the accepted 

November 27, 2013 motor vehicle accident. That is a medical issue which must be addressed by 

relevant medical evidence.17 

While appellant submitted new medical evidence, the reports are not relevant to 

establishing causal relationship between his diagnosed conditions and the November 27, 2013 

motor vehicle accident. The December 12, 2013 reports from Dr. Adler and Dr. Magee provided 

diagnostic findings yet failed to state an opinion regarding the cause of appellant’s injury. 

Dr. Slattery’s March 27, 2014 note only stated that appellant was disabled as a result of injuries 

sustained from the November 27, 2013 motor vehicle accident and failed to provide any opinion 

regarding the cause of his injuries. While these reports were not previously of record, they are 

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

denied because the medical evidence lacked a rationalized opinion from a physician, with a 

physiological description of how his claimed injury resulted from the November 27, 2013 

employment incident and a full and accurate factual and medical history, on the issue of causal 

relationship. As the reports of Dr. Slattery, Dr. Adler and Dr. Magee do not contain such an 

opinion, they are not relevant and insufficient to require a merit review of his claim.18

The Board also notes that the physical therapy notes and treatment notes from a 

registered nurse Ms. DiGiorgio are also insufficient to require merit review. Registered nurses, 

licensed practical nurses, physician’s assistants, physical and occupational therapists, they are 

not “physicians” as defined under FECA, their opinions are of no probative value.19 The 

underlying issue in this case was whether appellant’s injury was causally related to the accepted 

November 27, 2013 employment incident. That is a medical issue which must be addressed by 

relevant medical evidence.20 A claimant may obtain a merit review of an OWCP decision by 

submitting new and relevant evidence. In this case, appellant failed to submit any new and 

relevant evidence addressing causal relationship. 

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

18 M.N., Docket No. 14-245 (issued May 2, 2014). 

19 5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

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

by State law.

20 See Bobbie F. Cowart, supra note 17. 
8

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 his burden of proof to establish that he 

sustained a traumatic injury on November 27, 2013 in the performance of duty, as alleged. 

OWCP properly denied his request for reconsideration without a merit review. 

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decisions dated March 31 and 18, 2014 are affirmed. 

Issued: October 6, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board