United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.W., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

U.S. FOREST SERVICE, Albuquerque, NM, 

Employer 

__________________________________________ 

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Docket No. 16-0226 

Issued: March 28, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 18, 2015 appellant filed a timely appeal from a June 12, 2015 merit 

decision and an October 16, 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. 

ISSUES 

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

right thigh in the performance of duty on August 19, 2014; and (2) whether OWCP properly 

determined that appellant’s request for reconsideration was insufficient to warrant merit review 

of the claim under 5 U.S.C. § 8128(a). 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

On appeal, appellant submitted a letter from Dr. Wesley Stevens, an osteopathic 

physician, dated November 10, 2015.2

FACTUAL HISTORY 

Appellant filed a traumatic injury claim (Form CA-1) on August 25, 2014 alleging that he 

sustained an injury to his right thigh by overextending his leg while getting into a pick-up truck 

on August 19, 2014. He reported that he worked as an engineering equipment operator in Modoc 

National Forest in Alturas, California. Appellant listed his injury as “pulled tendon/muscle, right 

thigh, backside.” He did not list any witnesses. Appellant’s supervisor noted by checking a box 

that his knowledge of the facts of the injury agreed with appellant’s statement. 

In a letter dated December 29, 2014, OWCP requested appellant provide additional 

information. It, at that time, had no medical information about the claim and requested that 

appellant supply a report from his treating physician with a diagnosis of the condition alleged. 

OWCP further requested that a physician explain the causal relationship between the alleged 

work incident and the diagnosed condition. The letter included a questionnaire for appellant to 

complete. The questionnaire asked for details of the alleged incident, witness statements, and 

appellant’s immediate symptoms following the injury. The questionnaire asked about other 

injuries, the contact information for the doctor who first examined or treated appellant, and other 

background information. Appellant was afforded 30 days in which to respond. 

OWCP received a report from Dr. Stephens dated September 3, 2014. Dr. Stephens 

recorded appellant’s history of the incident. “This 60[-]year[-]old white male ... developed an 

injury to the right leg on [August 18, 2014] while climbing into a one ton four-wheel drive 

pickup truck. The pickup is very high off the ground. When [appellant] put his leg in and lifted 

his body into the truck he felt a sharp twinge in the posterior right thigh that has been persistent. 

It seems to be very localized to one spot now. Patient has continued to work every day.” He 

noted that appellant could get up and down and walk normally. Dr. Stephens noted “a very 

localized area of tenderness in the mid posterior right thigh on palpation.” He diagnosed 

posterior right thigh pain and prescribed an ultrasound study. Dr. Stephens allowed appellant to 

continue working. 

In a report dated September 5, 2014, Dr. Timothy A. Gallagher, Board-certified in family 

medicine, read and reported on a color flow duplex scan performed on appellant’s right thigh. 

He noted a small tear in the right biceps femoris muscle with an apparent, organized hematoma, 

but no evidence of active bleeding at the time of the examination. Dr. Gallagher’s report 

mentioned that appellant “sustained blunt trauma to his right thigh shortly after surgery to his 

right knee.” It contained no record of a physical examination (beyond the scan performed), no 

review of the record, and no discussion of appellant’s condition. The report also showed the 

signature of C. Bongiovanni, Ph.D., Director of Vascular laboratories, but was also signed by 

Dr. Gallagher. 

                                                             2

 The Board lacks jurisdiction to consider evidence for the first time on appeal. 20 C.F.R. § 501.2(c) (The 

Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final 

decision). 
3

In a January 26, 2015 decision, OWCP denied appellant’s claim. It found that he had 

provided insufficient medical evidence to support a firm medical diagnosis or support causation 

findings. OWCP determined that this medical evidence did not support appellant’s claim. 

On February 27, 2015 appellant requested a review of the written record by OWCP’s 

Branch of Hearings and Review. 

OWCP received a letter from appellant on March 2, 2015. Appellant reported that his 

doctor had kept him on light duty for approximately three weeks and that he desired only 

payment of his medical bills. He asserted a letter from Dr. Bongiovanni, Ph.D., was supportive 

of his claim. 

In a decision dated June 12, 2015, the hearing representative noted that no additional 

medical information had been provided. He affirmed the January 26, 2015 decision denying 

appellant’s claim. The hearing representative also noted that the report of Dr. Gallagher noted a 

conflicting mechanism of injury involving blunt trauma and a prior surgery to appellant’s right 

knee. 

Subsequent to the June 12, 2015 decision, appellant provided a report from 

Dr. Bongiovanni, Ph.D., dated June 29, 2015 which sought to clarify the September 5, 2015 

report of Dr. Gallagher.3

 The report repeated the “blunt trauma” causation, but noted that the 

condition of the right thigh was not related to a surgery on appellant’s left knee. In addition, 

appellant provided a copy of a California State Compensation Insurance Fund form4 dated 

September 3, 2014 and signed by Dr. Stevens. The form contained the same information on 

history and medical treatment as was provided in the September 3, 2014 narrative report. 

In a letter of July 9, 2015, received by OWCP on July 20, 2015, appellant requested 

reconsideration of the June 12, 2015 decision. Appellant again stated that he was only pursuing 

his claim for payment of his medical bills. 

By decision dated October 16, 2015, OWCP denied merit review of the claim, pursuant 

to 5 U.S.C. § 8128(a). 

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 timely filed within the applicable time 

limitation period 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 are causally 

                                                             3

 The signature of Dr. Gallagher does not appear as a counter-signature on this report. 

4

 “Doctor’s First Report of Occupational Injury or Illness.” 
4

related to the employment injury.5

 These are the essential elements of each compensation claim 

regardless of whether the claim is predicated upon a traumatic or an occupational disease.6

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

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

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

submit sufficient evidence to establish that he or she actually experienced the employment 

incident at the time, place, and in the manner alleged.7 Second, the employee must submit 

evidence, in the form of medical evidence, to establish that the employment incident caused a 

personal injury.8

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. The opinion of the 

physician must be based on a complete factual and medical background of appellant, 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 appellant.9

ANALYSIS -- ISSUE 1 

Appellant’s claim was initially denied by OWCP in a decision dated January 26, 2015. 

That decision is not before the Board. Appellant requested a review of the written record which 

resulted in a decision dated June 12, 2015 which affirmed the earlier denial of the claim. The 

Board finds that he has not established a traumatic injury to his right thigh as alleged in his 

claim. 

The written record before the hearing examiner was unchanged from that previously 

presented. That record does not explain the questions legitimately raised by Dr. Gallagher’s 

September 5, 2014 report concerning a “blunt trauma” mechanism of injury and the existence of 

a recent right knee surgery which constituted a preexisting condition. The report of September 3, 

2014 by Dr. Stevens fails to explain how the action of stepping up into a vehicle with high 

ground clearance caused appellant’s alleged injury to his right thigh. As such appellant did not 

submit a rationalized medical opinion explaining how appellant’s diagnosed condition was 

caused by the August 25, 2014 incident. 

                                                             5 G.T., 59 ECAB 178 (2008). 

6 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury 

caused by a specific event or incident or series of incidents occurring within a single workday or work shift whereas 

an occupational disease refers to an injury produced by employment factors which occur or are present over a period 

longer than a single workday or work shift. 20 C.F.R. §§ 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992). 

7 Julie B. Hawkins, 38 ECAB 393 (1987). 

8 John J. Carlone, 41 ECAB 354 (1989). 

9 See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990). 
5

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 

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

the merits. However, OWCP must exercise this discretion in accordance with the guidelines set 

forth in its regulations.10 Section 10.606(b)(3) of OWCP’s regulations provides that an 

application for reconsideration, including all supporting documents, must be submitted in writing 

and set forth arguments and contain evidence that either: (1) shows 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 new evidence not previously 

considered by OWCP.11

ANALYSIS -- ISSUE 2 

Appellant requested a reconsideration of OWCP’s June 12, 2015 decision. He did not 

show that OWCP made an error of law, nor did he advance a new legal theory. The record in the 

case was essentially unchanged from the time of the January 26, 2015 decision. The form report 

of Dr. Steven’s was factually identical to his earlier narrative report except in presentation. The 

letter from Dr. Bongiovanni (a Ph.D.) dated June 29, 2015 is not medical evidence because there 

is no indication that he is considered a physician under the definition found in FECA.12 His 

attempt to clarify the report of Dr. Gallagher serves to increase the uncertainty in the file and 

cannot be regarded as probative medical evidence. The evidence offered by appellant following 

the June 12, 2015 review of the record was entirely cumulative or irrelevant and therefore fails to 

establish that OWCP improperly denied a merit review under section 8128(a). 

CONCLUSION 

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

sustained an injury to his right thigh on August 19, 2014 in the performance of duty. OWCP also 

properly denied merit review under 5 U.S.C. § 8128(a) on October 16, 2015. 

                                                             10 E.B., 58 ECAB 681 (2007). 

11 D.E., 58 ECAB 448 (2007). 

12 5 U.S.C. § 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 B.B., Docket No. 09-1858 (issued April 16, 2010); Roy L. Humphrey, 57 ECAB 238 (2005). 
6

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decisions dated October 16 and June 12, 2015 are affirmed. 

Issued: March 28, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board