United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.S., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Fort Lauderdale, FL, 

Employer 

__________________________________________ 

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Docket No. 15-0780 

Issued: September 3, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 19, 2015 appellant filed a timely appeal from a September 17, 2014 merit 

decision and a November 3, 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. 

ISSUES 

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

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

properly refused to reopen his case for further reconsideration of the merits pursuant to 5 U.S.C. 

§ 8128(a). 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

On appeal, appellant argues that he is disabled and unable to work, specifically due to his 

previous job as a transportation security officer and contends that there is a causal relationship 

that ties his injuries with the former job assignment. 

FACTUAL HISTORY 

On November 4, 2013 appellant, then a 51-year-old transportation security officer, filed 

an occupational disease claim (Form CA-2) alleging that he developed back conditions due to 

factors of his federal employment, including repetitive lifting, and loading of computerized 

tomography (CT) x-ray machines without proper rotations for eight hours a day, 700 to 900 bags 

daily. On the claim form, he indicated that he first became aware of his condition on July 5, 

2013 and first attributed it to his federal employment on October 29, 2013. 

In a December 3, 2013 letter, OWCP notified appellant of the deficiencies of his claim 

and afforded him 30 days to submit additional evidence and respond to its inquiries. 

Appellant submitted reports from Dr. Christopher Brown, a Board-certified orthopedic 

surgeon, who indicated that appellant worked at the airport and diagnosed low back pain 

(lumbago). In a November 22, 2013 report, Dr. Brown diagnosed lumbago and pain in joint, 

pelvic region, and thigh. He advised that appellant was able to return to work on 

December 22, 2013. 

In a November 19, 2013 physical therapy note, Jeffrey R. Davis, a registered physical 

therapist, indicated that appellant was a transportation security officer who worked at the airport 

and complained of mid as well as lower back pain, specifically on the left side. 

A December 6, 2013 magnetic resonance imaging (MRI) scan of the lumbar spine 

demonstrated slight levoscoliosis, mild disc bulge with mild multifactorial spinal stenosis at 

L3-4, disc protrusion with an annular tear at L4-5, multilevel facet arthropathy, and evidence of 

right sacroiliac joint disease. 

By decision dated January 6, 2014, OWCP denied the claim finding the evidence failed to 

establish fact of injury. 

On August 18, 2014 appellant requested reconsideration and submitted a patient chart 

from Associated Family Physicians of Boca Raton, Florida, indicating that his diagnosis history 

included hyperlipidemia, hypertension, and peripheral vascular disease. 

In an October 8, 2013 report, Dr. Steven Liu, an emergency medicine specialist, indicated 

that appellant was seen and examined in the emergency room. He opined that appellant was not 

fit for work and needed two days of bed rest. 

On October 31, 2013 Dr. Michael Kelly, a Board-certified orthopedic surgeon, indicated 

that appellant presented for orthopedic consultation regarding complaints of pain in the neck, 

upper back, and lower back. Appellant reported that he “had back problems since 1995, when he 

was involved in a motor vehicle accident.” Dr. Kelly stated that appellant was treated by a 

chiropractor and was told he had two herniated discs. He noted that appellant was “put in a 

position where he moved baggage all day long and this is when his back pain really increased.” 
3

Dr. Kelly diagnosed thoracic spondylosis without myelopathy and lumbosacral spondylosis 

without myelopathy. 

In a November 7, 2013 report, Dr. Kevin Bender, a cardiologist, indicated that appellant 

was seen for back pain and released him to work on November 12, 2013 with the following 

restrictions: no lifting more than 10 pounds, no standing more than 15 minutes, and no bending 

or reaching. 

On December 18, 2013 Dr. Brown opined that appellant was able to return to work as of 

December 23, 2013 with the following restrictions: no heavy lifting, carrying, pushing, or 

pulling more than five pounds; bending from the waist occasionally in an 8-hour shift; standing; 

and walking 20 minutes per hour in an 8-hour shift. 

By letter dated December 20, 2013, appellant tendered his resignation from the 

employing establishment effective December 22, 2013 for the following reasons: illness, 

discrimination, retaliation, and a hostile work environment. 

A May 30, 2014 MRI scan of the lumbar spine revealed a disc bulge and desiccation with 

facet liagmentum flavum hypertrophy at L2-3, posterior disc herniations at L3-4 and L4-5, and 

facet hypertrophy at L5-S1. 

Appellant also submitted medical literature regarding spondylolisthesis, bulging discs, 

degenerative disc disease (spondylosis), herniated discs, and degenerative discs in support of his 

claim. 

By decision dated September 17, 2014, OWCP affirmed its prior decision as modified, 

finding that the evidence of record was sufficient to establish fact of injury, but failed to establish 

a causal relationship between the diagnosed conditions and the implicated employment factors. 

On October 21, 2014 appellant requested reconsideration and resubmitted the 

November 19, 2013 physical therapy note from Mr. Davis. He also submitted two letters dated 

September 30, 2014 from the Office of Personnel Management (OPM) advising him that his 

application for disability retirement had been approved. OPM found appellant to be disabled 

from his previous position as a transportation security officer due to degenerative disc disease, 

bulging disc, cervicalgia, and sleep apnea. 

By decision dated November 3, 2014, 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 noted that OPM’s approval of disability retirement did not establish 

disability under FECA. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA2

 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 

                                                             2 Id. 
4

States” within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation period of FECA, and that an injury3

 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.4

 

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.5

 

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.6

 

ANALYSIS -- ISSUE 1 

The Board finds that appellant did not meet his burden of proof to establish a claim that 

federal employment factors caused or aggravated his back conditions. While appellant identified 

the factors of employment that he believed caused his conditions, he must also submit 

rationalized medical evidence which explains how his medical conditions were caused or 

aggravated by those employment factors.7 

On October 31, 2013 Dr. Kelly diagnosed thoracic spondylosis without myelopathy and 

lumbosacral spondylosis without myelopathy. Appellant reported that he had back problems 

since 1995, when he was involved in a motor vehicle accident. Dr. Kelly reported that appellant 

had been treated by a chiropractor and was told he had two herniated discs. He noted that 

appellant was put in a position where he moved baggage all day long and this is when his back 

pain really increased. The Board finds that Dr. Kelly failed to provide a rationalized opinion 

explaining how appellant’s employment caused or aggravated his back conditions. Dr. Kelly 

indicated that appellant moved baggage at work, but he failed to address appellant’s previous 

                                                             3

 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). 

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

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

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

6 See O.W., supra note 4. 

7 A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C. 

Moore, 52 ECAB 132 (2000). 
5

motor vehicle accident and the history of his condition since 1995. Such generalized statements 

merely repeat appellant’s allegations and are unsupported by adequate medical rationale 

explaining how his physical activity at work actually caused or aggravated the diagnosed 

conditions.8

 The Board has held that the mere fact that his symptoms arise during a period of 

employment or produce symptoms revelatory of an underlying condition does not establish a 

causal relationship between his condition and his employment factors.9

 

In his reports, Dr. Brown diagnosed low back pain (lumbago) and pain in joint, pelvic 

region, and thigh. He reported that appellant worked at the airport and opined that appellant was 

able to return to work as of December 23, 2013 with restrictions. Dr. Brown limited appellant to 

no heavy lifting, carrying, pushing, or pulling more than five pounds. He allowed appellant to 

bend from the waist occasionally in an 8-hour shift; and limited standing and walking for 20 

minutes an hour in an 8-hour shift. The Board finds that Dr. Brown’s diagnosis of low back pain 

(lumbago) and pain in joint is a description of a symptom rather than a clear diagnosis of the 

medical condition.10 Therefore, the Board finds the reports from Dr. Brown are insufficient to 

establish appellant’s claim. 

On October 8, 2013 Dr. Liu examined appellant in the emergency room and opined that 

he was not fit for work and needed two days of bed rest. On November 7, 2013 Dr. Bender 

stated that appellant had been seen for back pain and released him to work on November 12, 

2013 with restrictions. The Board has held that medical evidence without any opinion regarding 

the cause of an employee’s condition is of limited probative value on the issue of causal 

relationship.11 

The November 19, 2013 physical therapy note by Mr. Davis is of no probative value 

because FECA does not recognize physical therapists as physicians.12 The December 6, 2013 

and May 30, 2014 MRI scans, medical literature, and patient charts do not constitute probative 

medical evidence because they do not contain rationale by a physician relating appellant’s 

disability to his employment.13 

As appellant has not submitted any rationalized medical evidence to support his 

allegation that he sustained an injury causally related to the indicated employment factors, he 

failed to meet his burden of proof to establish a claim. 

                                                             8 See K.W., Docket No. 10-98 (issued September 10, 2010). 

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

10 The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S., 

Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008). 

11 See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009). 

12 See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons, 

podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the 

scope of their practice as defined by State law.” See M.M., Docket No. 14-1021 (issued July 1, 2015). 

13 See Barbara J. Williams, 40 ECAB 649 (1989). 
6

On appeal, appellant argues that he is disabled and unable to work, specifically due to his 

previous job as a transportation security officer and contends that there is a causal relationship 

that ties his injuries with the former job assignment. However, his arguments are not 

substantiated by medical evidence. 

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.14 OWCP, through regulations, has imposed limitations on 

the exercise of its discretionary authority under section 8128(a).15 

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.16 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her 

application for review within one year of the date of that decision.17 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.18 

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

duplicates evidence or argument already in the case record19 and the submission of evidence or 

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

reopening a case.20 

                                                             14 5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or 

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

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

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

17 Id. at § 10.607(a). 

18 Id. at § 10.608(b). 

19 See supra note 15. See also Eugene F. Butler, 36 ECAB 393, 398 (1984). 

20 Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979). 
7

ANALYSIS -- ISSUE 2 

Appellant did not attempt to demonstrate that OWCP erroneously applied or interpreted a 

point of law. Moreover, he did not advance a legal argument not previously considered by 

OWCP. 

In support of his October 21, 2014 reconsideration request, appellant submitted two 

letters dated September 30, 2014 from OPM advising him that his application for disability 

retirement had been approved. OPM found him to be disabled from his previous position as a 

transportation security officer due to degenerative disc disease, bulging disc, cervicalgia, and 

sleep apnea. In its November 3, 2014 decision, OWCP noted that OPM’s approval of disability 

retirement did not establish disability under FECA.21 The Board notes that findings of other 

federal agencies are not dispositive with regard to questions arising under FECA.22 

Appellant also resubmitted the November 19, 2013 physical therapy note from 

Mr. Davis. The Board finds that this evidence was previously reviewed by OWCP. As the 

reports duplicate evidence already in the case record, it does not constitute relevant and pertinent 

new evidence. Thus, appellant has not established a basis for reopening his case.23 

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.24 

CONCLUSION 

The Board finds that appellant has not met his burden of proof to establish back 

conditions causally related to factors of his federal employment. The Board further finds that 

OWCP properly refused to reopen appellant’s case for further reconsideration of the merits 

pursuant to 5 U.S.C. § 8128(a). 

                                                             21 The Board has consistently held that a disability determination under one statute or by one agency does not 

establish disability under the other statute. See Rufus C. Woodward, Docket No. 92-2033 (issued 

September 10, 1993). 

22 See Daniel Deparini, 44 ECAB 657 (1993). In determining whether an employee is disabled under FECA, the 

findings of other administrative agencies, such as OPM, are not determinative of disability under FECA. OPM and 

OWCP have different standards of medical proof on the question of disability. Under FECA, for a disability 

determination, appellant’s injury must be shown to be causally related to an accepted injury or factors of his federal 

employment. Under the rules of the OPM, conditions which are not employment related may be considered in 

rendering a disability determination. For this reason, the determinations of other administrative agencies or courts, 

while instructive, are not determinative with regard to disability under FECA. Id. 

23 See D.K., 59 ECAB 141 (2007). 

24 See L.H., 59 ECAB 253 (2007). 
8

ORDER 

IT IS HEREBY ORDERED THAT the November 3 and September 17, 2014 decisions 

of the Office of Workers’ Compensation Programs are affirmed. 

Issued: September 3, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board