United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Fort Lauderdale, Employer 

__________________________________________ 

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Docket No. 15-419 

Issued: April 27, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 15, 2014 appellant filed a timely appeal from a September 29, 2014 merit 

decision and a November 12, 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 an 

employment-related injury on July 17, 2014; and, (2) whether OWCP properly refused to reopen 

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

On appeal appellant asserts that the actual date of injury was July 16, 2014. 

 1

 5 U.S.C. §§ 8101-8193. 

2

 Appellant submitted evidence with his appeal to the Board. The Board’s review is limited to evidence that was 

in the record at the time OWCP rendered its final decision. 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On August 9, 2014 appellant, then a 41-year-old tractor-trailer operator, filed a traumatic 

injury claim alleging that on July 17, 2014 he injured his lower back when he slammed onto the 

driver’s seat when driving over a bump in the road. He stopped work on August 11, 2014. 

Edward Grey, supervisor of distribution operations, challenged the claim. In August 25, 2014 

correspondence, Celeste Eckford, a human resources specialist at the employing establishment, 

controverted appellant’s claim. She advised that appellant did not work on July 17, 2014 and, 

therefore, the accident did not occur in the performance of duty. She stated that appellant 

returned to work on July 19, 2014 following military duty, and he worked continuously until 

August 9, 2014 when he reported an alleged July 17, 2014 injury. Appellant indicated that he 

required surgery which was scheduled for September 11, 2014, and that he had submitted no 

medical documentation. 

Mr. Grey completed an OWCP Form CA-16, authorization for examination and/or 

treatment, on August 11, 2014. He indicated that there was doubt whether the employee’s 

condition was caused by employment. 

By letter dated August 27, 2014, OWCP informed appellant of the evidence needed to 

support his claim. Appellant submitted handwritten notes dated August 9, 2014. He stated that 

at approximately 3:45 p.m., he hit a bad bump while driving the postal tractor-trailer at 

approximately 40 miles per hour and was launched into the roof of the tractor and landed 

extremely hard on the seat. Appellant stated that, after exiting the truck, he tried to walk off the 

pain and felt better. He claimed he did not want to stop work because of his financial situation, 

but ultimately concluded that his back was too sore to work. Appellant further stated that he had 

seen a doctor and did not need any assistance at that time. 

A duty status report from a neurosurgeon with an illegible signature dated August 4, 2014 

stated that appellant had a herniated lumbar disc and that he could not work due to pain. On 

disability slips dated August 11 and 29, 2014 Dr. Ewa Solski, Board-certified in family 

medicine, advised that appellant should be off work because he was scheduled for surgery. 

On September 3, 2014 Nena Sanders, a health resource manager at the employing 

establishment reiterated that the claim was challenged. She again indicated that appellant was 

not in pay status on the claimed date of injury. On Thursday, July 17, 2014 appellant was in 

leave-without-pay (LWOP) status. Friday, July 18, 2014 was his regularly scheduled day off. 

On July 19, 2014 appellant was on military leave, and that Sunday, July 20, 2014, was a 

scheduled day off. He returned to work on July 21, 2014 and continued to work until August 3, 

2014, at which point he was in LWOP status until he returned to work on August 7, 2014. 

Appellant then worked until Saturday, August 9, 2014 when he stopped work and did not return. 

On that date, he submitted the claim form. 

Ms. Sanders submitted an August 6, 2014 consultation report in which Dr. Kenneth W. 

Ward, a Board-certified physiatrist, noted appellant’s complaint of radiating back pain and his 

report that the pain began two weeks earlier when he was driving a tractor-trailer at work and 

had then visited an emergency room. Physical examination of the lumbosacral spine 

demonstrated moderate restricted lumbar extension with pain and tenderness to palpation of the 
3

left paraspinals. Dr. Ward reviewed a July 22, 2014 magnetic resonance imaging (MRI) scan of 

the lumbar spine that demonstrated a left-sided disc extrusion at L5-S1, evidence of prior 

surgery, and right L5-S1 foraminal stenosis due to spondylosis with impingement of the L5 

nerve root. He diagnosed acute left S1 radiculopathy, depression, history of lumbar laminotomy, 

gait disturbance, and decrease in functional status. 

By decision dated September 29, 2014, OWCP denied the claim because the evidence did 

not establish that the injury occurred as alleged. Appellant requested reconsideration on 

October 20, 2014 and submitted additional medical evidence. 

In an August 21, 2014 treatment note, Dr. Peter Navarro, a resident physician in physical 

medicine and rehabilitation, reported an eight-month history of low back pain that had increased 

since appellant hit a bump in the road while driving a truck several months previously. 

Appellant reported previous surgery at L4-5, stating that he was relieved of low back pain until 

the recent incident. Dr. Navarro provided physical examination findings, reviewed the MRI scan 

study, and diagnosed L5-S1 disc herniation. He noted that appellant would like to proceed with 

surgery. 

On a discharge summary dated September 29, 2014, Dr. Howard B. Levene, a Boardcertified neurosurgeon, noted that appellant was admitted on September 23, 2014 and that 

appellant was discharged the next day with a primary diagnosis of lumbar herniated disc. He 

indicated that microdiscectomy surgery was performed on September 23, 2014 and appellant was 

discharged with full strength in all extremities and no apparent deficits. On October 10, 2014 

Dr. Levene examined appellant in a postoperative neurosurgery clinic visit where he reported 

that appellant felt better than before the surgery but still had radiating pain. Dr. Levene stated 

that appellant would be discharged after a two-month follow-up visit. Appellant gave him a 

history that while at work he was driving his truck and he hit a dip in the road after which he felt 

a twinge in his back. This caused him pain. Dr. Levene related that appellant had an MRI scan 

study and computerized tomography (CT) scan studies which were consistent with a herniated 

disc at L5-S1. He noted appellant’s history of a prior surgery, and advised that this could be an 

exacerbation or reherniation of his disc. Dr. Levene concluded, “it is more likely than not that 

this herniated or reherniated disc results from his vehicle hitting the large dip in the road which 

he described occurring during his work duties.” 

In a nonmerit decision dated November 12, 2014, OWCP declined to review the merits of 

appellant’s claim. It found the new evidence irrelevant to the issue of whether appellant 

sustained an injury in the performance of duty. 

LEGAL PRECEDENT -- ISSUE 1 

Congress, in providing for a compensation program for federal employees, did not 

contemplate an insurance program against any and every injury, illness or mishap that might 

befall an employee contemporaneous or coincidental with his or her employment. Liability does 

not attach merely upon the existence of an employee/employer relation. Instead, Congress 

provided for the payment of compensation for the disability or death of an employee resulting 
4

from personal injury sustained while in the performance of his duty.3 The phrase while in the 

performance of duty has been interpreted by the Board to be the equivalent of the commonly 

found prerequisite in workers compensation law of arising out of and in the course of 

employment.4

 In the compensation field, to occur in the course of employment, an injury must 

occur: (1) at a time when the employee may be reasonably said to be engaged in the master’s 

business; (2) at a place where he or she may reasonably be expected to be in connection with the 

employment; and (3) while he or she was reasonably fulfilling the duties of the employment or 

engaged in doing something incidental thereto.5

 The course of employment relates to the 

elements of time, place, and work activity.6

 An employee seeking benefits under FECA has the 

burden of proof to establish by reliable, probative, and substantial evidence the essential 

elements of his or her case.7

ANALYSIS -- ISSUE 1 

Appellant’s injury did not occur at a time when one could reasonably say he was engaged 

in his employer’s business. On the claim form he indicated that the injury occurred on 

July 17, 2014. Both Ms. Eckford and Ms. Sanders of the employing establishment indicated that 

appellant was not at work on July 17, 2014. Appellant submitted no evidence substantiating that 

he was at work on July 17, 2014, the date of the claimed injury. 

Appellant has failed to establish a fundamental element of a FECA claim -- that the 

claimed incident occurred at a time when the employee may reasonably said to be engaged in the 

master’s business.8

 He therefore did not establish that he sustained an injury in the performance 

of duty on July 17, 2014.9

LEGAL PRECEDENT -- ISSUE 2 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.10 Section 10.608(a) of the Code of Federal Regulations provide that a 

 3

 5 U.S.C. § 8102(a); Angel R. Garcia, 52 ECAB 137 (2000). 

4 D.L., 58 ECAB 667 (2007). 

5 See R.C., 59 ECAB 427 (2008). 

6 Howard W. Faverman, 57 ECAB 151 (2005). 

7 S.B., 58 ECAB 398 (2007). 

8 Supra note 6. 

9

 The Board, however, notes that where, as in this case, an employing establishment properly executes a 

Form CA-16 which authorizes medical treatment as a result of an employee’s claim for an employment-related 

injury, the Form CA-16 creates a contractual obligation, which does not involve the employee directly, to pay for the 

cost of the examination or treatment regardless of the action taken on the claim. See Tracy P. Spillane, 54 ECAB 

608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of 

issuance, unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c). 

10 5 U.S.C. § 8128(a). 
5

timely request for reconsideration may be granted if OWCP determines that the employee has 

presented evidence and/or argument that meet at least one of the standards described in section 

10.606(b)(3).11 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (i) shows that OWCP 

erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal 

argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new 

evidence not previously considered by OWCP.12 Section 10.608(b) provides that when a request 

for reconsideration is timely but fails to meet at least one of these three requirements, OWCP 

will deny the application for reconsideration without reopening the case for a review on the 

merits.13

ANALYSIS -- ISSUE 2 

With his October 20, 2014 reconsideration request, made on an OWCP appeal rights 

form, appellant merely checked that he was requesting reconsideration. He did not allege or 

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

relevant legal argument not previously considered by OWCP. Consequently, appellant was 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).14

With respect to the third requirement under section 10.606(b)(2), appellant submitted 

additional medical evidence concerning his lumbar condition and surgery. This evidence is not 

relevant to the underlying issue in this case as to whether appellant was in the performance of 

duty when the claimed July 17, 2014 incident occurred.15 

Appellant has not established that OWCP erred in applying a point of law, has not 

advanced a relevant legal argument not previously considered, or submitted relevant and 

pertinent new evidence not previously considered by OWCP. OWCP properly denied her 

reconsideration request. 

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. 

 11 20 C.F.R. § 10.608(a). 

12 Id. at § 10.606(b)(3). 

13 Id. at § 10.606(b). 

14 Id. at § 10.606(b)(2). 

15 Supra note 6. 
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CONCLUSION 

The Board finds that appellant has failed to establish an injury in the performance of duty 

on July 17, 2014. The Board further finds that OWCP properly refused to reopen appellant’s 

case for further consideration 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 November 12 and September 29, 2014 are affirmed. 

Issued: April 27, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board