United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.G., Appellant 

and 

DEPARTMENT OF AGRICULTURE, FOREST 

SERVICE, GILA NATIONAL FOREST, 

Albuquerque, NM, Employer 

__________________________________________ 

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Docket No. 14-1755 

Issued: March 26, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 11, 2014 appellant filed an appeal from a May 28, 2014 merit decision and a 

June 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.2

ISSUES 

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

injury in the performance of duty on March 27, 2014; and (2) whether OWCP properly denied 

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

 1

 5 U.S.C. § 8101 et seq. 

2

 On appeal, appellant submitted evidence with his appeal form. The Board cannot consider new evidence on 

appeal. Review is limited to the evidence of record at the time of OWCP’s final decision. 20 C.F.R. § 501.2(c). 
2

FACTUAL HISTORY 

On April 16, 2014 appellant, then a 45-year-old forestry technician, filed a traumatic 

injury claim (Form CA-1) alleging that on March 27, 2014 his back began to feel sore while in 

training and that, when he went to the restroom, the pain became severe enough that he could 

barely stand or walk. He stated that his injury was to the lower right of his back. The employing 

establishment controverted continuation of pay, stating, “Need to establish how this injury is 

work related and what [appellant] was doing to cause the back strain.” 

In a hospital note dated March 28, 2014, Dr. Bryant M. Beesley, an emergency physician, 

diagnosed appellant with acute lumbar myofascial strain and hypertension.3

 He recommended 

that appellant not work for a week and to take Naproxen and Flexeril for his back pain. 

By letter dated April 22, 2014, OWCP advised appellant of the deficiencies in his claim. 

It noted that he had not provided sufficient evidence to establish that he actually experienced an 

incident alleged to have caused injury, and asked that he submit a response to its questionnaire to 

substantiate the factual elements of his claim. OWCP asked appellant to state where he was and 

what he was doing at the time the injury occurred; whether he had any similar disability or 

symptoms before the injury; and to explain why he was not at his normal duty station at the time 

of his injury. It also asked him to submit medical evidence in support of his claim. OWCP 

afforded him 30 days to submit this additional evidence. 

In an attending physician’s report dated March 28, 2014, Dr. Beesley diagnosed appellant 

with myofascial strain, noting a spasm of the right lower paralumbar muscle. He stated that 

appellant had lower back pain due to sitting in class all day. Dr. Beesley stated that appellant had 

no limitations and was able to resume work on April 4, 2014. 

In a report dated March 28, 2014, Dr. Joseph A. Orzel, a Board-certified radiologist, 

examined the results of an x-ray of appellant’s lumbar spine. He stated that the alignment 

appeared normal and that he did not observe any acute osseous abnormality. 

In hospital notes dated March 28, 2014, a nurse noted that appellant had stated that his 

lower back pain started when he got up to use the restroom at about 11:00 p.m. 

By decision dated May 28, 2014, OWCP denied appellant’s claim as the evidence 

submitted was insufficient to establish the factual component of fact of injury, as he had not 

responded to OWCP’s inquiries. It stated that it was unable to determine where and how his 

injury occurred from his training, and whether he was authorized to be away from his duty 

station at the time of injury. 

By form received on June 9, 2014, appellant requested reconsideration of his claim. He 

attached a statement, which read in relevant part, “To Whom It May Concern, along with my 

appeal request I have enclosed a copy of my approved travel voucher, a copy of my class 

nomination form, and the letter that was requested of me clarifying my reason for being away 

 3

 Dr. Beesley’s certification in a medical specialty could not be confirmed with the American Board of Medical 

Specialties or the American Osteopathic Association. 
3

from my duty station and etc.”4 Appellant attached a form authorizing and certifying training 

from March 24 through 28, 2014. He also attached a travel voucher. 

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

It found that he had not submitted relevant and pertinent new evidence not previously considered 

by OWCP, because his statement lacked detail as to what part of his training had caused an 

injury to his back. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA5

 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 injury6

 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.7

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 

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.8

With respect to the first component of fact of injury, the employee has the burden of 

establishing the occurrence of an injury at the time, place, and in the manner alleged, by a 

preponderance of the reliable, probative, and substantial evidence.9 An injury does not have to 

be confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury 

in the performance of duty, but the employee’s statements must be consistent with the 

surrounding facts and circumstances and his or her subsequent course of action.10 An employee 

 4

 This letter of clarification does not appear in the case record. 

5

 5 U.S.C. §§ 8101-8193. 

6

 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). 

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

40 ECAB 1143, 1145 (1989). 

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

9 William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979). 

10 Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984). 
4

has not met his or her burden of proof of establishing the occurrence of an injury when there are 

such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.11 

Such circumstances as late notification of injury, lack of confirmation of injury, continuing to 

work without apparent difficulty following the alleged injury and failure to obtain medical 

treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in 

determining whether a prima facie case has been established.12 However, an employee’s 

statement alleging that an injury occurred at a given time and in a given manner is of great 

probative value and will stand unless refuted by strong or persuasive evidence.13

While on temporary-duty assignment, an employee is covered by FECA 24 hours a day 

with respect to any injury that results from activities incidental to the temporary assignment. The 

fact that an employee was on a special mission or in travel status during the time the condition 

manifested itself does not raise an inference that the condition was causally related to the 

incidents of employment.14

ANALYSIS -- ISSUE 1 

While appellant attributed his lower back condition to training exercise in the course of 

his federal employment, he did not describe what aspect of that training caused his back spasm. 

Even if he was in travel status for training, it remained his burden to establish that the alleged 

condition was causally related to incidents of employment.15 In an April 22, 2014 letter, OWCP 

noted that appellant had not provided sufficient evidence to establish that he actually experienced 

an incident alleged to have caused injury and asked that he submit a response to its questionnaire 

to substantiate the factual elements of his claim. It asked him to state where he was and what he 

was doing at the time the injury occurred; whether he had any similar disability or symptoms 

before the injury; and to explain why he was not at his normal duty station at the time of his 

injury. Appellant did not respond. 

A statement describing the particular employment incident that caused or contributed to 

the claimed lower back condition is crucial to appellant’s claim. As noted, appellant’s burden of 

proof includes the submission of a factual statement including the time, place, and manner of his 

injury. His assertion that his lower back began to hurt during workplace training does not 

support that a particular workplace incident caused or aggravated a lower back condition. 

Appellant has not submitted a clear description to OWCP clarifying the manner in which 

his lower back condition was alleged to arise from a traumatic incident on March 27, 2014. 

Thus, the Board finds that he has not established that he sustained a lower back condition in the 

performance of duty. 

 11 Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988). 

12 Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984). 

13 D.B., 58 ECAB 464, 466-67 (2007); Robert A. Gregory, 40 ECAB 478, 483 (1989). 

14 See A.F., Docket No. 14-1392 (issued October 21, 2014). 

15 Id. 
5

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), 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.16 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.17 

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

record has no evidentiary value.18 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.19 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.20

ANALYSIS -- ISSUE 2 

OWCP issued a May 28, 2014 merit decision denying appellant’s claim for 

compensation. By form received June 9, 2014, appellant requested reconsideration of this 

decision. 

The issue presented on appeal of the May 28, 2014 decision is whether appellant met any 

of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review 

of the merits of the claim. With his June 9, 2014 request for reconsideration, appellant did not 

show that OWCP erroneously applied or interpreted a specific point of law, or advance a new 

and relevant legal argument not previously considered. Thus, he is not entitled to a review of the 

merits of his claim based on the first and second above-noted requirements under section 

10.606(b)(2). 

 16 Id. at § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007). 

17 20 C.F.R. § 10.608(b); see K.H., 59 ECAB 495, 499 (2008). 

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

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

180, 187 (2000). 

20 Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000). 
6

The underlying issue in this case is whether appellant has established that he or she 

actually experienced the employment incident at the time, place, and in the manner alleged. A 

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

not do so in this case. With his request, appellant submitted a travel voucher and a form 

authorizing and certifying training from March 24 through 28, 2014. He also submitted a 

statement which indicated that a letter clarifying the events of March 27, 2014 was attached, 

however, this letter does not appear in the case record. While the statement, travel voucher, and 

form authorizing and certifying training were not previously of record, they are not relevant to 

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

it lacked a clear statement of the manner in which he alleged that he was injured on 

March 27, 2014. Neither the statement accompanying the travel voucher and form authorizing 

and certifying training, nor the voucher and form themselves clarify the nature of the alleged 

traumatic incident. As such, these documents were not relevant and insufficient to require a 

merit review of his 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 

constitute 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 in the performance of duty on March 27, 2014. The Board further 

finds that OWCP properly denied his request for review of the merits of his claim pursuant to 5 

U.S.C. § 8128(a). 
7

ORDER 

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

Compensation Programs dated June 19 and May 28, 2014 are affirmed. 

Issued: March 26, 2015 

Washington, DC 

 

 Patricia Howard Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board