United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.E., Appellant 

and 

DEPARTMENT OF THE INTERIOR, BUREAU 

OF INDIAN AFFAIRS, Sacramento, CA, 

Employer 

__________________________________________ 

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Docket No. 15-0787 

Issued: October 20, 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 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 24, 2015 appellant filed a timely appeal from a November 12, 2014 merit 

decision of the Office of Workers’ Compensation Programs (OWCP) and a February 10, 2015 

nonmerit decision. 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 an injury 

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

reopen appellant’s case for further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the issuance of the February 10, 2015 OWCP decision and on appeal, appellant 

submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time 

it issued its final decision. See 20 C.F.R. § 501.2(c)(1). 
2

On appeal, appellant contends that he submitted sufficient evidence to establish his claim 

and further submitted additional medical evidence. 

FACTUAL HISTORY 

On September 26, 2014 appellant, a 57-year-old highway engineer, filed an occupational 

disease claim (Form CA-2), alleging that he sustained an injury to his back and shoulder area due 

to factors of his federal employment, including electronic drafting. He became aware of his 

condition on April 3, 2014 and first attributed it to his federal employment on May 5, 2014. 

In a September 30, 2014 narrative statement, appellant indicated that computer-aided 

design was not a part of his job duties as a construction engineer, yet electronic drafting was 

requested of him for the past nine months and caused him a lot of pain during the month of 

August 2014. 

Appellant submitted two prescriptions dated September 19, 2014 from Dr. Andres Pena, 

a Board-certified physiatrist, who diagnosed myofascial neck and shoulder pain, ordered 

physical therapy, and recommended an ergonomic evaluation. 

In an August 27, 2014 report, Dr. James Abshire, a Board-certified internist, noted that 

appellant was evaluated on August 26, 2014. He advised that appellant was “to refrain from 

assignments relating to drawing graphs on the Google Earth and Excel programs due to medical 

problems.” 

In an October 9, 2014 letter, OWCP notified appellant that the evidence submitted was 

insufficient to support his claim and requested additional factual and medical evidence. It 

allotted 30 days for appellant to respond to its inquiries and submit additional evidence. 

Appellant resubmitted the August 27, 2014 report from Dr. Abshire and the 

September 19, 2014 prescriptions from Dr. Pena. 

By decision dated November 12, 2014, OWCP denied the claim on the basis that 

appellant failed to establish fact of injury. It found that the evidence was insufficient to establish 

the implicated employment factors, specifically the frequency and duration of the electronic 

drafting he had indicated on his claim form. 

On December 2, 2014 appellant requested reconsideration and submitted an x-ray of the 

cervical spine dated August 26, 2014. 

In reports dated November 7, 2014 through January 27, 2015, Dr. Franklin Chinn, Jr., an 

occupational medicine specialist, diagnosed aggravation of preexisting cervical arthritis and 

degenerative disc disease due to work activities, cervical radiculitis and chronic pain, and left 

hand numbness. He noted that appellant’s left hand numbness appeared to be a result of his 

cervical radiculitis, but noted that peripheral entrapment neuropathy could not be totally 

excluded. Dr. Chinn opined that appellant was “not able to do computer graphic design without 

repeatedly aggravating [his] condition.” He released appellant to modified duty and 

recommended an evaluation of his workstation for ergonomic improvements. 
3

By decision dated February 10, 2015, OWCP denied appellant’s request for 

reconsideration of the merits finding that he did not submit pertinent new and relevant evidence 

and did not show that OWCP erroneously applied or interpreted a point of law not previously 

considered by OWCP. It found that the medical evidence he submitted was irrelevant and 

immaterial as it failed to address the frequency and duration of the implicated employment 

factors. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA3

 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, and that an injury4

 was sustained in the performance of duty. These 

are the essential elements of each 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 a claim for an 

occupational disease claim, an employee must submit the following: (1) a factual statement 

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

occurrence of the disease or condition; (2) medical evidence establishing the presence or 

existence of the disease or condition for which compensation is claimed; and (3) medical 

evidence establishing that the diagnosed condition is causally related to the employment factors 

identified by the employee.6

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical evidence. The opinion of the physician must 

be based on a complete factual and medical background of the employee, 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 employee.7

ANALYSIS -- ISSUE 1 

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

the performance of duty. 

 3 Supra note 1. 

4

 OWCP regulations define an occupational disease or illness as a condition produced by the work environment 

over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). 

5 See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004). 

6 See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); 

Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989). 

7 See O.W., supra note 5. 
4

The evidence of record does not contain the duties appellant performed in the course of 

his federal employment or explain how often and how long he performed the duties. Appellant 

merely stated that he sustained medical conditions due to electronic drafting at work. He stated 

that computer-aided design was not a part of his job duties, but there is no evidence to establish 

that fact. OWCP informed appellant of the deficiencies in his claim, but he did not provide the 

required documentation prior to OWCP’s issuance of its November 12, 2014 decision. 

Accordingly, the Board finds that he failed to meet his burden of proof to establish fact of 

injury.8

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

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

employment, nor his belief that the conditions were caused by his employment, is sufficient to 

establish a causal relationship.9 Since appellant failed to establish the first component of fact of 

injury, it is not necessary to discuss whether he submitted medical evidence sufficient to 

establish that a medical condition existed.10

On appeal, appellant contends that he submitted sufficient evidence to establish his claim. 

For the reasons stated above, the Board finds appellant’s argument is not substantiated. 

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 

Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as 

a matter of right; it vests OWCP with discretionary authority to determine whether it will review 

an award for or against compensation.11 OWCP, through regulations, has imposed limitations on 

the exercise of its discretionary authority under section 8128(a).12

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

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.13 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant’s application for review must 

 8 See M.L., Docket No. 12-957 (issued December 7, 2012). 

9 See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979). 

10 See Bonnie A. Contreras, 57 ECAB 364, 368 n.10 (2006). 

11 Supra note 1. Under section 8128 of FECA, the Secretary of Labor may review an award for or against 

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

12 See Annette Louise, 54 ECAB 783, 789-90 (2003). 

13 20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).
5

be received within one year of the date of that decision.14 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.15

The Board has held that the submission of evidence or argument which repeats or 

duplicates evidence or argument already in the case record16 and the submission of evidence or 

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

reopening a case.17

ANALYSIS -- ISSUE 2 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). 

In support of his December 2, 2014 reconsideration request, appellant submitted an x-ray 

of the cervical spine and medical reports from Dr. Chinn. The Board finds that submission of 

this evidence did not require reopening appellant’s case for merit review as they did not address 

the frequency and duration of the implicated employment factors, which was the issue before 

OWCP. Therefore, they do not constitute relevant and pertinent new evidence and are not 

sufficient to require OWCP to reopen the claim for consideration of the merits. 

Appellant did not submit any evidence to show that OWCP erroneously applied or 

interpreted a specific point of law or advanced a relevant legal argument not previously 

considered by OWCP, nor did he submit any relevant and pertinent new evidence not previously 

considered. The Board finds that he did not meet any of the necessary requirements and is not 

entitled to further merit review.18

CONCLUSION 

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

the performance of duty. The Board further finds that OWCP properly refused to reopen his case 

for further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). 

 14 Id. at § 10.607(a). 

15 Id. at § 10.608(b). 

16 See A.L., supra note 13. See also Eugene F. Butler, 36 ECAB 393, 398 (1984). 

17 Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 

18 See L.H., 59 ECAB 253 (2007). 
6

ORDER 

IT IS HEREBY ORDERED THAT the February 10, 2015 and November 12, 2014 

decisions of the Office of Workers’ Compensation Programs are affirmed. 

Issued: October 20, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board