United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Jackson, MS, Employer 

__________________________________________ 

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Docket No. 16-0837 

Issued: July 8, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 15, 2016 appellant filed a timely appeal from a November 2, 2015 merit 

decision and a December 15, 2015 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 an injury 

causally related to a February 17, 2015 employment incident; and (2) whether OWCP properly 

denied appellant’s request for reconsideration without merit review of the claim under 5 U.S.C. 

§ 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that on appeal appellant submitted additional evidence. However, the Board may only review 

evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., 

Docket No. 09-0196 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); 

Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes,54 ECAB 373 (2003). 
2

FACTUAL HISTORY 

On February 26, 2015 appellant, then a 63-year-old librarian, filed a traumatic injury 

claim (Form CA-1) alleging that she sustained injuries in the performance of duty on 

February 17, 2015.3

 On the claim form she alleged that she was removing 40 books from high 

shelves and placing them on a cart, and while pushing the cart, she injured her back. Appellant 

described the injury as a fracture of the upper and lower back. According to the claim form, she 

stopped work on February 18, 2015 and returned to work on February 23, 2015. The record also 

contains claims for compensation (Form CA-7) for April 13 to 24, 2015, and April 27 to 

May 8, 2015. 

Appellant submitted a report dated February 18, 2015 from Dr. David Walker, an 

employing establishment physician, who provided a history that she complained of a back strain 

while lifting books from a high shelf. Dr. Walker also indicated that she reported performing 

heavy pushing activity over the past month at work, which had aggravated her back pain. He 

diagnosed back strain. An x-ray of the thoracic spine dated February 18, 2015 showed diffuse 

osteopenia, according to Dr. Darin J. Hildoer, a radiologist. 

On February 19, 2015 appellant was treated by Dr. Ashley Pullen, a Board-certified 

family practitioner. In a report of that date, Dr. Pullen reported that appellant had a history of 

osteoporosis of the spine and pain worsened in the mid and lower back after moving a heavy cart 

at work. She provided results on examination and diagnosed back pain, osteoporosis, urinary 

tract infection and pleurisy. Dr. Pullen indicated that a magnetic resonance imaging (MRI) scan 

was recommended to rule out possible vertebral fractures. 

In a thoracic spine MRI scan report dated February 24, 2015, Dr. Hildoer, a diagnostic 

radiologist, reported acute to subacute mild to moderate fracture of the T5 vertebral body, and 

acute mild compression fracture of the T6 vertebral body. 

In a report dated March 13, 2015, Dr. Joseph Traina, a Board-certified neurosurgeon, 

provided a history that appellant had an injury on January 20, 2015 and a second injury while 

lifting many heavy books on February 17, 2015. He provided results on examination and 

diagnosed closed thoracic fracture. Dr. Traina indicated that appellant should be off work until 

April 13, 2015. 

Dr. Traina submitted a note dated April 27, 2015, indicating that when he saw appellant 

on March 13, 2015 she reported suffering a muscle strain at work on January 20, 2015. He 

reported that she had recuperated from that injury, and then on February 17, 2015 she was 

moving heavy books and felt a sharp pain. Dr. Traina noted that the MRI scan of February 24, 

2015 reported an acute fracture. 

By decision dated May 22, 2015, OWCP denied appellant’s claim for compensation. It 

accepted that the February 17, 2015 employment incident occurred as alleged, but found that the 

 3

 Appellant also filed an occupational disease claim (Form CA-2) on February 26, 2015. (OWCP File 

No. xxxxxx648). The claim form described work activity on January 20, 2015, such as opening heavy boxes and 

moving mail containers. Appellant reported on the claim form she injured her lower and upper back. This claim is 

not before the Board on this appeal. 
3

medical evidence of record was insufficient to establish an injury causally related to the 

February 17, 2015 employment incident. 

Appellant requested a review of the written record before an OWCP hearing 

representative on June 15, 2015. She submitted a June 15, 2015 report from Dr. Pullen. 

Dr. Pullen noted that appellant had a history of osteoporosis, and was seen on February 19, 2015 

“after moving heavy books in the library.” She reported that appellant had been diagnosed with 

pleurisy a day earlier. Dr. Pullen wrote, “Due to [appellant’s] history of osteoporosis, I 

recommended a[n] MRI [scan] of the spine to rule out compression fractures as the heavy lifting 

could have resulted in a compression fractures of the spine. [Appellant] had MRI [scans] of the 

spine that did confirm acute compression fractures of the spine. She has been referred to and 

followed by specialists since the diagnosis of vertebral compression fractures.” 

By decision dated November 2, 2015, the hearing representative affirmed the May 22, 

2015 OWCP decision. The hearing representative found that the medical evidence was not 

rationalized with respect to causal relationship between a thoracic fracture and the February 17, 

2015 employment activity. 

On November 30, 2015 appellant requested reconsideration of her claim. She indicated 

that she had mailed a CD with her MRI scan results to the hearing representative and would like 

a medical expert to review the results. Appellant noted that the MRI scan results showed an 

acute fracture, which physicians use to describe a recent injury. She submitted a physical 

therapy note and an undated note referring to a chest x-ray. 

By decision dated December 15, 2015, OWCP denied merit review of the claim. It found 

that appellant had not submitted pertinent and relevant new evidence with respect to the medical 

issue presented. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA has the burden of proof to establish that he or 

she sustained an injury while in the performance of duty.4

 

In order to determine whether an employee actually 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 which must be considered in 

conjunction with one another. The first component to be established is that the employee 

actually experienced the employment incident which is alleged to have occurred. The second 

component is whether the employment incident caused a personal injury, and generally this can 

be established only by medical evidence.5

 

Rationalized medical opinion evidence is medical evidence that is based on a complete 

factual and medical background, of reasonable medical certainty, and supported by medical 

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

 4 Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115. 

5 See John J. Carlone, 41 ECAB 354, 357 (1989). 
4

specific employment factors identified by the claimant. The weight of medical evidence is 

determined by its reliability, its probative value, its convincing quality, the care of the analysis 

manifested and the medical rationale expressed in support of the physician’s opinion.6

ANALYSIS -- ISSUE 1 

In the present case, the claim filed was for an injury from removing books from a high 

shelf and pushing a cart on February 17, 2015.7

 OWCP has accepted the factual element of this 

claim. The issue is whether the medical evidence of record establishes a diagnosed condition 

causally related to the identified February 17, 2015 incidents. 

As noted, appellant received treatment from Dr. Walker on February 18, 2015. He 

provides a brief history of lifting books from a high shelf, but did not provide an opinion as to 

causal relationship between a diagnosed condition and the employment activity. Dr. Pullen 

treated appellant on February 19, 2015 noting a history of osteoporosis. A February 24, 2015 

MRI scan showed acute compression fractures at T5 and T6. 

Dr. Pullen also did not provide a rationalized medical opinion on causal relationship 

between diagnosed compression fractures and the February 17, 2015 employment activity. Her 

June 15, 2015 report provides only a brief history of moving heavy books without further 

explanation. Dr. Pullen subsequently reports that an MRI scan was ordered as heavy lifting 

could have caused compression fractures. The MRI scan, once completed, confirmed acute 

compression fractures. However, this is not a rationalized medical opinion as it is speculative 

and lacking any medical explanation as to how the specific incidents on February 17, 2015 

caused compression fractures.8

 It is not enough for the MRI scan to show acute compression 

fractures. There must be a clear explanation as to why the physician believes that the findings on 

the February 24, 2015 MRI scan were the result of the identified employment activity on 

February 17, 2015. This is particularly important in this case because, as noted above, appellant 

had alleged other recent incidents of lifting and pushing items. 

The February 24, 2015 MRI scan report of Dr. Hildoer provided no opinion on causal 

relationship. As such, it is of limited probative value.9

Dr. Traina treated appellant on March 13, 2015, but did not provide an opinion on causal 

relationship between a diagnosed condition and the February 17, 2015 employment incidents. In 

an April 27, 2015 note, he referred to MRI scan results, without further explanation. 

 6 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 

7

 Appellant has also filed an occupational disease claim, for an injury occurring over more than on workday. 

With respect to the occupational disease claim, she identified a January 20, 2015 incident. The Board also notes that 

the history provided to Dr. Walker in the February 18, 2015 treatment note referred to heavy pushing activity for a 

month. To the extent that appellant is claiming an injury from such activity commencing on January 20, 2015 and 

continuing, she may pursue that issue with respect to the occupational claim which is not presently before the Board. 

8

 Medical opinions using terms such as the condition is “probably” related, “most likely” related or “could be” 

related are speculative and diminish the probative value of the medical opinion evidence. Kathy A. Kelley, 

55 ECAB 206, 211 (2004). 

9 See J.D., Docket No. 16-0064 (issued June 1, 2016); Michael E. Smith, 50 ECAB 313 (1999). 
5

The Board finds that the medical evidence of record does not include a medical report 

that has a complete factual and medical background and a rationalized medical opinion on the 

issue of causal relationship. It is appellant’s burden of proof to establish the claim, and the 

Board finds that she did not meet her burden in this case. 

On appeal, appellant reiterates her argument that a medical expert should review a CD of 

diagnostic testing. She included a copy of a CD and medical evidence of record. As noted, it is 

appellant’s burden of proof to establish her claim. The Board has reviewed the medical evidence 

of record that was before OWCP as of November 2, 2015. For the reasons discussed above, 

appellant did not meet her burden in this case. 

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 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,10

OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

evidence that either: “(1) shows that OWCP erroneously applied or interpreted a specific point 

of law; (2) advances a relevant legal argument not previously considered by OWCP; or 

(3) constitutes relevant and pertinent evidence not previously considered by OWCP.”11 

20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the 

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.12

ANALYSIS -- ISSUE 2 

In the present case, appellant submitted a reconsideration request dated 

November 30, 2015. However, she did not show that OWCP erroneously applied or interpreted 

a specific point of law, nor did she advance a relevant legal argument not previously considered 

by OWCP. Appellant argued that the medical evidence of record showed an acute fracture and 

this should require further development of the evidence and review by a medical expert. As 

discussed above, it is appellant’s burden of proof to submit probative evidence and the medical 

evidence showing acute thoracic fractures did not establish the claim. The reopening of a case is 

not required where the legal contention has no reasonable color of validity.13 

 10 5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.”) 

11 20 C.F.R. § 10.606(b)(3). 

12 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 

13 Elaine M. Borghini, 57 ECAB 549 (2006); Annette Louis, 54 ECAB 783 (2003). 
6

The underlying merit issue presented was a medical issue, and appellant did not submit 

any pertinent and relevant new evidence on the issue of causal relationship between a diagnosed 

condition and the February 17, 2015 employment activity. 

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law, advance a relevant legal argument not previously considered by OWCP, or submit relevant 

and pertinent new evidence not previously considered by OWCP. Accordingly, she did not meet 

the requirements of 20 C.F.R. § 10.606(b)(3) and OWCP properly declined to review the merits 

of the claim. 

CONCLUSION 

The Board finds that appellant did not establish an injury causally related to a 

February 17, 2015 employment incident. The Board further finds that OWCP properly denied 

the reconsideration request without merit review of the claim under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated December 15 and November 2, 2015 are affirmed. 

Issued: July 8, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board