United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.W., Appellant 

and 

U.S. POSTAL SERVICE, LOGISTICS & 

DISTRIBUTION CENTER, Charlotte, NC, 

Employer 

__________________________________________ 

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Docket No. 16-1656 

Issued: December 15, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On August 15, 2016 appellant timely appealed from a May 26, 2016 merit decision and a 

July 27, 2016 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 to consider the merits of the case. 

ISSUES 

The issues are: (1) whether appellant met his burden of proof to establish an injury in the 

performance of duty on June 15, 2015; and (2) whether OWCP properly denied appellant’s 

request for reconsideration pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On June 15, 2015 appellant, then a 43-year-old mail handler, filed an occupational disease 

claim (Form CA-2) alleging a left shoulder condition which arose on or about June 14, 2015 

                                                             1

 5 U.S.C. § 8101 et seq.
2

(File No. xxxxxx624). He explained that he had gone home from work and fell asleep, and when 

he awoke he felt pain in his shoulder. In a separate June 15, 2015 statement requesting medical 

attention, appellant indicated that he aggravated his shoulder “last night when [offloading bulk 

mail container]” (BMC). 

On July 7, 2015 appellant filed a traumatic injury claim (Form CA-1) and advised OWCP 

that he wished to withdraw the June 15, 2015 Form CA-2, noting that he should have filed a 

Form CA-1 instead.2

 He claimed to have suffered a left shoulder strain at 3:00 a.m. on June 15, 

2015 while offloading BMCs of mail.3

 

In a June 15, 2015 hospital emergency room (ER) report, Dr. Patrick R. Burnside, a 

specialist in emergency medicine, advised that appellant had complaints of left shoulder and 

neck pain. He noted that he had experienced preexisting bursitis problems with the left shoulder. 

Dr. Burnside related that appellant denied any acute injury or trauma, but noted that he was 

offloading a truck, which may have triggered the pain. He reported complaints of left superior 

shoulder pain radiating into the neck and that the pain began the day before, but had since 

worsened. 

In a July 2, 2015 report, Alvin Haymond, a physician assistant (PA-C), noted that 

appellant began experiencing left shoulder pain on May 15, 2015, due to an injury. Appellant 

related that he was pushing a cart that had a bad wheel, causing him to strain his left shoulder 

while trying to stabilize the cart. He reported having burning and aching pain, which he rated as 

a seven on a scale of one to ten. Mr. Haymond advised that radiographic studies of the left 

shoulder were normal. He diagnosed left shoulder impingement syndrome and prescribed a 

course of physical therapy. Mr. Haymond advised that appellant should undergo subacromial 

injections and possibly a magnetic resonance imaging (MRI) scan in the event conservative 

management did not resolve his symptoms. 

On August 9, 2015 appellant returned to the hospital ER after having recently aggravated 

his left shoulder at work while pulling a cart with mail. He complained of left shoulder pain for 

the past two days after injuring his existing shoulder injury from two months ago. Dr. Caleb C. 

Gerhart, an emergency medicine specialist, diagnosed rotator cuff syndrome. 

In an August 19, 2015 report, Dr. John Temple, Board-certified in orthopedic surgery, 

noted that appellant had sustained a work-related injury in May of that year when he was 

working for the employing establishment and moving a large box of mail. Appellant reported 

that the box was stuck under another box and that as he pulled, he felt a traction injury on his left 

side, up into his left trapezial region and around his left scapular region. Dr. Temple advised that 

the injury was initially treated as an impingement problem and that his shoulder symptoms had 

completely resolved. However, appellant was currently having severe pain around his cervical 

spine and thoracic spine, extending to the medial aspect of his scapula. Dr. Temple reported that 

appellant underwent physical therapy, but continued to experience pain in his spine. He noted 

that x-rays of his left shoulder showed no acute bony abnormality. Dr. Temple advised that 

                                                             2

 On July 27, 2015 OWCP granted appellant’s request to withdraw his occupational disease claim (File No. 

xxxxxx624). 

3

 Appellant’s regular work hours were 11:00 p.m. to 7:50 a.m. 
3

appellant’s condition was totally spine-related based on his examination and current symptoms. 

He prescribed a course of steroids and changed appellant’s physical therapy program to focus on 

a cervical and thoracic spine rehabilitation program. 

On August 25, 2015, the employing establishment offered appellant a limited-duty 

assignment scanning placards and trucks, which he accepted. 

By letter dated October 2, 2015, OWCP advised appellant that it required additional 

factual and medical evidence to determine whether he was eligible for FECA benefits. It asked 

appellant to submit a comprehensive medical report from his treating physician. OWCP also 

indicated that there were several discrepancies in the factual portion of the claim, noting that 

appellant provided different dates of injury and different mechanisms of injury to different 

medical providers. Additionally, it noted that appellant initially had filed a Form CA-2 with a 

June 14, 2015 date of injury, which he had since withdrawn. OWCP asked appellant to address 

the noted discrepancies, and to provide statements from individuals who may have witnessed the 

alleged June 15, 2015 injury. 

On October 15, 2015 appellant signed and returned OWCP’s October 2, 2015 

development questionnaire. 

In a September 18, 2015 report, Dr. Leo Spector, Board-certified in orthopedic surgery, 

advised that appellant had left-sided neck/scapular pain and pain between his shoulder blades, 

stemming from a June 15, 2015 work-related injury. He noted that x-rays of the cervical and 

thoracic spine taken that day showed spondylosis at C4-5, C5-6, and C6-7 with straightening of 

his cervical lordosis. Dr. Spector opined that the tests revealed no obvious acute abnormalities in 

the cervical or thoracic spine. He diagnosed left scapular pain and left shoulder pain. 

Dr. Spector recommended that appellant undergo a cervical spine and a left shoulder MRI scan. 

OWCP also received physical therapy treatment records covering the period July 30 

through October 6, 2015. 

By decision dated November 4, 2015, OWCP denied the claim, finding that appellant had 

failed to meet his burden of proof to establish fact of injury. 

In a November 3, 2015 report, received by OWCP on November 16, 2016, Dr. Spector 

advised that appellant continued to have pain in his neck and mid-shoulder blade region. He 

reported that appellant had undergone a cervical MRI scan on October 29, 2015, which showed 

evidence of mild left foraminal stenosis at C5-6 and mild-to-moderate left-sided foraminal 

stenosis at C6-7. A left shoulder MRI scan revealed mild subacromial/subdeltoid bursitis and 

synovitis, with low-grade partial-thickness tearing of the anterior supraspinatus undersurface and 

mild-to-moderate degenerative changes at the acromioclavicular (AC) joint. Dr. Spector 

recommended that appellant continue working with restrictions and resume physical therapy. He 

further recommended a referral for a left C6 and left C7 selective nerve root block. 

On March 31, 2016 appellant requested reconsideration. In a March 31, 2016 letter, he 

advised OWCP that one of his doctors listed the wrong date of injury in his report, which he had 

since corrected. Appellant also submitted a copy of a “request for correction/amendment of 

health information” which he sent to Mr. Haymond, asking him to change the date of injury from 

May to June 15, 2015. 
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By decision dated May 26, 2016, OWCP denied modification of the November 4, 2015 

decision. It found that the record contained several discrepancies, including providing different 

dates of injury and different mechanisms of injury to different medical providers. In addition, 

OWCP noted that appellant initially filed an occupational disease claim in File No. xxxxxx624 

indicating a date of injury of June 14, 2015, the day before the alleged injury in the instant claim. 

It reported that appellant indicated in the previous claim that he “went to sleep when (he) got 

home woke up and had pain in (his) shoulder,” and had subsequently requested withdrawal of 

that claim. 

On July 1, 2016 appellant again requested reconsideration. In a handwritten letter dated 

July 1, 2016, he asserted that management required him to perform work that exceeded his 

physical restrictions, which resulted in his reinjuring the left shoulder. 

Appellant submitted an amended equal employment opportunity (EEO) complaint dated 

January 27, 2016, in which he alleged various grievances pertaining to his working outside of his 

medical restrictions and his use of leave. 

By decision dated July 27, 2016, OWCP denied appellant’s request for reconsideration as 

it neither raised substantive legal questions nor included pertinent and relevant new evidence 

sufficient to require OWCP to review the merits of its prior decision. 

LEGAL PRECEDENT -- ISSUE 1 

A claimant seeking benefits under FECA has the burden of proof to establish the essential 

elements of his or her claim by the weight of the reliable, probative, and substantial evidence, 

including that an injury was sustained in the performance of duty as alleged and that any specific 

condition or disability claimed is causally related to the employment injury.4

To determine if an employee sustained a traumatic 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 that must be considered in conjunction with one another. 

The first component is whether the employee actually experienced the employment incident that 

allegedly occurred.5

 The second component is whether the employment incident caused a 

personal injury.6

OWCP cannot accept fact of injury if there are such inconsistencies in the evidence to 

seriously question whether the specific event or incident occurred at the time, place, and in the 

                                                             4

 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). 

5 Elaine Pendleton, 40 ECAB 1143 (1989). 

6 John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires 

rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s 

opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment 

factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345, 

352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical 

certainty, and must be supported by medical rationale, explaining the nature of the relationship between the 

diagnosed condition and appellant’s specific employment factor(s). Id.
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manner alleged.7

 An injury need not be confirmed by an eyewitness. However, the employee’s 

statements must be consistent with surrounding facts and circumstances and his subsequent course 

of action.8 Circumstances such 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 cast doubt on an employee’s statements regarding the alleged employment 

injury.9

ANALYSIS -- ISSUE 1 

The Board finds that appellant has not established that he injured his left shoulder on 

June 15, 2015 while offloading BMCs of mail. Dr. Spector indicated in his September 18, 2015 

report, that appellant had injured his left shoulder in a June 15, 2015 work-related incident. This 

assertion was contradicted, however, by differing accounts that appellant provided to several 

other medical personnel. In his July 2, 2015 report, Mr. Haymond advised that appellant began 

experiencing left shoulder pain due to an incident which occurred on May 15, 2015. He reported 

that appellant strained his left shoulder while trying to stabilize a cart with a bad wheel that he 

had been pushing. Dr. Temple indicated in his August 19, 2015 report that appellant was injured 

in May 2015 while moving a large box of mail. Appellant informed him that the box was stuck 

under another box and that, as he pulled, he felt a traction injury on his left side which radiated 

into his left trapezial region and around his left scapular region. Further, OWCP noted that 

appellant initially filed an occupational disease claim (File No. xxxxxx624) with a June 14, 2015 

date of injury, which he later withdrew. Appellant indicated on the Form CA-2 that he “went to 

sleep when I got home woke up and had pain in my shoulder.” Therefore, there are discrepancies 

in the accounts of injury appellant provided in the course of his treatments. This contradictory 

evidence created an uncertainty as to the time, place, and manner in which appellant allegedly 

injured his left shoulder. It is unclear whether the physicians of record had an accurate history of 

the June 15, 2015 incident as they related differing accounts of how the left shoulder injury 

occurred. 

Lastly, appellant failed to provide factual information in response to OWCP’s October 2, 

2015 development questionnaire. He also did not provide any corroborating witness statements. 

The lack of supporting documentation, coupled with inconsistent accounts of the alleged 

incident/injury, casts doubt on appellant’s assertion that he injured his left shoulder on June 15, 

2015 offloading BMCs of mail. 

Therefore, given the inconsistencies in the evidence regarding how appellant sustained his 

injury, the Board finds that there is insufficient evidence to establish fact of injury or to prove that 

he sustained an injury in the performance of duty as alleged.10

                                                             7 Supra note 5.

8 See Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541, 

547 (1991). 

9 See Constance G. Patterson, 42 ECAB 206 (1989). 

10 See Mary Joan Coppolino, 43 ECAB 988 (1992) (where the Board found that discrepancies and inconsistencies in 

appellant’s statements describing the injury created serious doubts that the injury was sustained in the performance of 

duty). 
6

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 review of an OWCP decision as a 

matter of right.11 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.12 One such limitation is that the request for 

reconsideration must be received by OWCP within one year of the date of the decision for which 

review is sought.13 A timely application for reconsideration, including all supporting documents, 

must set forth arguments and contain evidence that either: (i) shows that OWCP erroneously 

applied or interpreted a specific point of law; (ii) advances a relevant legal argument not 

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

previously considered by OWCP.14 When a timely application for reconsideration does not meet 

at least one of the above-noted requirements, OWCP will deny the request for reconsideration 

without reopening the case for a review on the merits.15

ANALYSIS -- ISSUE 2 

In the present case, appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law, nor has he advanced a relevant legal argument not previously 

considered by OWCP, or presented new evidence that is relevant and pertinent to the issue on 

appeal. 

The Board has held that the submission of evidence which does not address the particular 

issue in the case does not constitute a basis for reopening the claim.16 The January 27, 2016 

amended EEO complaint contains allegations appellant made subsequent to the alleged June 15, 

2015 work incident, which pertain to matters of leave and assertions of being required to do 

work exceeding his restrictions. The issue in this case is whether the June 15, 2015 incident 

occurred as alleged. Appellant’s reconsideration request thus failed to show that OWCP 

erroneously applied or interpreted a point of law, nor did it advance a relevant legal argument not 

previously considered by OWCP, or present new evidence relevant and pertinent to the issue on 

                                                             11 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a). 

12 20 C.F.R. § 10.607. 

13 Id. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be “received” by OWCP 

within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt 

date of the request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’ 

Compensation System (iFECS). Id. at Chapter 2.1602.4b. 

14 20 C.F.R. § 10.606(b)(3). 

15 Id. at § 10.608(a), (b). 

16 See David J. McDonald, 50 ECAB 185 (1998). 
7

appeal. Accordingly, OWCP properly declined to reopen appellant’s case under 5 U.S.C. 

§ 8128(a). 

CONCLUSION 

The Board finds that appellant failed to establish that he sustained an injury in the 

performance of duty on June 15, 2015. The Board further finds that OWCP properly denied 

appellant’s July 1, 2016 request for reconsideration.

ORDER 

IT IS HEREBY ORDERED THAT the July 27 and May 26, 2016 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: December 15, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board