United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Frazer, MT, Employer 

__________________________________________ 

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Docket No. 14-1777 

Issued: December 1, 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 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 15, 2014 appellant filed a timely appeal of a March 7, 2014 merit decision and 

a July 9, 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 has met her burden of proof to establish a traumatic 

injury in the performance of duty; and (2) whether OWCP properly denied appellant’s request 

for reconsideration. 

 

 1 5 U.S.C. §§ 8101-8193. 

2

 On appeal, appellant submitted additional evidence. However, the Board may not consider new evidence on 

appeal; see 20 C.F.R. § 501.2(c). 
2

FACTUAL HISTORY 

On February 1, 2013 appellant, then a 65-year-old postmaster, filed a Form CA-1, 

traumatic injury claim, alleging that on January 30, 2013, while shoveling snow, she slipped and 

fell injuring her left wrist while in the performance of duty. She did not stop work but returned 

to a light-duty position. 

On January 30, 2013 appellant was treated by a nurse practitioner for a left wrist and 

right shoulder work injury. She reported that she was shoveling snow when she tripped and fell 

injuring her right shoulder and left wrist. The nurse practitioner noted x-rays which revealed a 

fracture of the distal radius and appellant was placed in a wrist splint. She diagnosed left wrist 

fracture with significant swelling and right shoulder strain secondary to fall. On February 4, 

2013 the nurse practitioner removed the splint and placed appellant in a cast. In an attending 

physician’s report dated February 12, 2013, she noted that appellant reported shoveling snow, 

tripping, and falling injuring her shoulder and wrist. The nurse practitioner diagnosed right 

shoulder strain and left wrist distal radial fracture. She noted with a checkmark “yes” that 

appellant’s condition was caused or aggravated by an employment activity and returned her to 

light-duty work. 

Appellant submitted an x-ray of the left wrist dated January 30, 2013 which revealed 

nondisplaced fracture of the distal radius with degenerative changes. An x-ray of the right 

shoulder dated January 30, 2013 revealed degenerative changes of the acromioclavicular joint 

with inferior spur formation. Appellant continued treatment with a nurse practitioner. She 

diagnosed fall on ice, left wrist distal radius fracture and right shoulder pain and strain. In a duty 

status report dated March 14, 2013, a nurse practitioner noted that appellant reported slipping on 

ice and fracturing her left wrist and injured her right shoulder. She diagnosed left fractured wrist 

and right shoulder pain and returned appellant to work full time with restrictions. An x-ray of 

the left wrist dated February 26, 2013 revealed healing distal radius fracture and osteoarthritis. 

On March 5, 2013 appellant was treated by a physician assistant for right shoulder pain. 

Appellant reported that on January 30, 2013, while at work, appellant was shoveling snow and 

she slipped and fell sustaining a right shoulder and left wrist injury. She noted that appellant 

remained in a wrist brace and was having radiating right shoulder pain which was exacerbated by 

movement. The physician assistant noted tenderness of the right shoulder, minimally positive 

impingement sign, and symmetric with intact motor and sensory testing. She diagnosed joint 

pain in the shoulder region, impingement syndrome of the right shoulder status post work injury 

on January 30, 2013, degenerative joint disease of the acromioclavicular joint, right shoulder and 

adhesive capsulitis of the right shoulder. A March 5, 2013 right shoulder x-ray revealed 

prominent degenerative acromioclavicular joint with predominant superior spurring, mild 

decreased subacromial space, and degenerative left acromioclavicular joint with superior 

extension. A March 14, 2013 x-ray of the left wrist revealed healing distal radius fracture. 

In a January 30, 2014 letter, OWCP advised appellant of the type of evidence needed to 

establish her claim, particularly requesting that she submit a physician’s reasoned opinion 

addressing the relationship of her claimed condition and specific employment factors. 

Appellant submitted emergency room records dated January 30, 2013 for treatment of 

right shoulder and left wrist injuries. A nurse diagnosed left posterior distal radial fracture. 
3

Appellant submitted reports dated February 13 and 19, 2013 from a nurse practitioner who 

treated her for a right shoulder injury after a work-related fall in 2013. The nurse practitioner 

diagnosed right shoulder pain and noted that appellant was scheduled for surgery. She noted that 

appellant’s injury was related to a fall. 

In a March 7, 2014 decision, OWCP denied the claim on the grounds that appellant failed 

to submit sufficient medical evidence to establish that a medical condition was diagnosed in 

connection with the claim work incident. It noted that the medical evidence submitted was from 

a nurse or nurse practitioner and not from a physician. 

On June 27, 2014 appellant requested reconsideration. In an undated statement, she 

indicated that on January 31, 2013 she slipped while shoveling snow at work. She sought 

treatment at a health clinic and x-rays revealed a left wrist fracture and she was placed in a cast. 

Appellant noted undergoing a magnetic resonance imaging scan of the right shoulder which 

revealed a rotator cuff tear for which she underwent surgery on May 19, 2014. She submitted a 

duplicate copy of the March 5, 2013 report from a nurse practitioner countersigned by 

Dr. Thomas M. Mirich, III, a Board-certified orthopedic surgeon. 

In a July 9, 2014 decision, OWCP denied appellant’s request for reconsideration on the 

grounds that the evidence was insufficient to warrant 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 filed within the applicable time limitation 

of FECA, that an injury was sustained in the performance of duty as alleged, and that any 

disability and/or specific condition for which compensation is claimed is causally related to the 

employment injury. These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or occupational disease.3

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. 

There are two components involved in establishing fact of injury. First, the employee must 

submit sufficient evidence to establish that she actually experienced the employment incident at 

the time, place, and in the manner alleged. Second, the employee must submit medical evidence 

to establish that the employment incident caused a personal injury.4

Rationalized medical opinion evidence is generally required to establish causal 

relationship. The opinion of the physician must be based on a complete factual and medical 

background, must be one of reasonable medical certainty, and must be supported by medical 

 3 Gary J. Watling, 52 ECAB 357 (2001). 

4

 T.H., 59 ECAB 388 (2008). 
4

rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant.5

ANALYSIS -- ISSUE 1 

It is not disputed that appellant worked as a postmaster and that on January 30, 2013 she 

was shoveling snow and slipped and fell. However, she has not submitted sufficient medical 

evidence to establish any diagnosed conditions that are causally related to the January 30, 2013 

work incident. 

On January 30, 2014 OWCP advised appellant of the type of medical evidence needed to 

establish her claim. Appellant did not submit a rationalized medical report from an attending 

physician addressing how specific employment factors may have caused or aggravated her 

claimed condition. 

Appellant submitted reports from a nurse practitioner dated January 30 to March 14, 

2013, who treated her for injuries sustained to her left wrist and right shoulder after a fall at 

work. She reported that she was shoveling snow and tripped and fell injuring her right shoulder 

and left wrist. The nurse practitioner noted x-rays revealed a fracture of distal radius and she 

diagnosed left wrist fracture and right shoulder strain secondary to fall. Appellant also submitted 

emergency room notes from a nurse dated January 30, 2013 who diagnosed left posterior distal 

radial fracture. Similarly, she was treated by a physician assistant on March 5, 2013 who 

diagnosed pain in the joint involving the shoulder region, impingement syndrome of the right 

shoulder status post work injury on January 30, 2013, degenerative joint disease of the 

acromioclavicular joint, right shoulder, and adhesive capsulitis of the right shoulder. However, 

the Board has held that treatment notes signed by a nurse or physician assistant are not 

considered medical evidence as these providers are not a physician under FECA.6

 

The remainder of the medical evidence, including x-ray reports, are insufficient to 

establish the claim as they fail to provide an opinion on the causal relationship between 

appellant’s job and her diagnosed conditions 

As noted, part of appellant’s burden of proof includes the submission of rationalized 

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

a causal relationship between the employment and the diagnosed condition. Therefore, these 

notes are insufficient to meet her burden of proof. 

The record before OWCP at the time of its March 7, 2014 decision contains no other 

medical evidence. Because appellant did not submit medical evidence from a physician 

 5 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989). 

6 L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA). See David P. 

Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not 

competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a “physician” as 

surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners 

within the scope of their practice as defined by State law). 
5

explaining how and why any diagnosed condition was due to the January 30, 2013 work 

incident, she has not met her burden of proof. 

On appeal, appellant disagrees with OWCP’s decision denying her claim for 

compensation and noted that she submitted sufficient evidence to establish her claim. As noted 

above, the medical evidence does not establish that appellant’s diagnosed conditions are causally 

related to her employment. Appellant failed to submit a report from a physician which provides 

medical rationale explaining the reasons why her claimed conditions were caused or aggravated 

by particular employment duties. 

LEGAL PRECEDENT -- ISSUE 2 

Under section 8128(a) of FECA,7 OWCP has the discretion to reopen a case for review 

on the merits. OWCP must exercise this discretion in accordance with the guidelines set forth in 

section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may 

obtain review of the merits of his or her written application for reconsideration, including all 

supporting documents, sets forth arguments and contain evidence that: 

“(1) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

(2) Advances a relevant legal argument not previously considered by OWCP; or 

(3) Constitutes relevant and pertinent new evidence not previously considered by 

OWCP.”8

Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.9

ANALYSIS -- ISSUE 2 

OWCP denied appellant’s claim for a traumatic injury on the grounds that the medical 

evidence was insufficient to establish that her claimed conditions were causally related to work 

events. Thereafter, on July 9, 2014 it denied her reconsideration request, without a merit review, 

on the grounds that the evidence was insufficient to warrant a merit review. 

However, with her June 27, 2014 reconsideration request, appellant submitted relevant 

and pertinent evidence not previously considered by OWCP. After the March 7, 2014 decision, 

which denied appellant’s claim because she had not submitted a medical opinion establishing 

that the claimed medical condition was causally related to the established work-related events, 

appellant re-submitted a March 5, 2013 report from a physician assistant which was 

 7

 5 U.S.C. § 8128(a). 

8

 20 C.F.R. § 10.606(b)(2). 

9 Id. at § 10.608(b). 
6

countersigned by Dr. Mirich, a Board-certified orthopedic surgeon. In this report, the physician 

assistant noted that appellant reported slipping and falling while shoveling snow at work on 

January 30, 2013 and injured her right shoulder and left wrist injury. She noted findings of 

tenderness of the right shoulder and minimally positive impingement sign and diagnosed pain in 

the joint involving the shoulder region, impingement syndrome of the right shoulder status post 

work injury on January 30, 2013, degenerative joint disease of the acromioclavicular joint, right 

shoulder, and adhesive capsulitis of the right shoulder. This medical evidence is relevant as she 

opined that appellant was injured on January 30, 2013. Although OWCP’s July 9, 2014 decision 

found that the evidence was duplicative, this evidence was not previously countersigned by a 

physician and was not considered medical evidence by OWCP in rendering a decision. The 

Board has held that the requirement for reopening a claim for merit review does not include the 

requirement that a claimant must submit all evidence which may be necessary to discharge his or 

her burden of proof. Instead, the requirement pertaining to the submission of evidence in support 

of reconsideration only specifies that the evidence be relevant and pertinent and not previously 

considered by OWCP.10 The Board finds that, in accordance with 20 C.F.R. § 10.606(b)(2)(3), 

this new evidence from Dr. Mirich is sufficient to require reopening appellant’s case for further 

review on its merits. 

 Therefore, OWCP improperly refused to reopen appellant’s claim for further review on 

its merits under 5 U.S.C. § 8128. Consequently, the case must be remanded for OWCP to reopen 

appellant’s claim for a merit review. Following this and such other development as deemed 

necessary, OWCP shall issue an appropriate merit decision on appellant’s claim. 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish that her 

claimed conditions were causally related to her employment. The Board further finds that 

OWCP, in its decision dated July 9, 2014, improperly denied her request for reconsideration of 

her case on its merits. 

 10 See Helen E. Tschantz, 39 ECAB 1382 (1988). 
7

ORDER 

IT IS HEREBY ORDERED THAT the March 7, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed and the July 9, 2014 decision is set aside and the 

case is remanded to OWCP for further development in accordance with this decision.11

Issued: December 1, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 11 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.