United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Brooklyn, NY, Employer 

__________________________________________ 

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Docket No. 17-0454 

Issued: April 6, 2017 

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 28, 2016 appellant, through counsel, filed a timely appeal from a July 27, 

2016 merit decision and a November 28, 2016 nonmerit decision of the Office of Workers’ 

Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this 

case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUES 

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

causally related to a June 11, 2015 employment incident; and (2) whether OWCP properly denied 

appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On June 13, 2015 appellant, then a 27-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained a neck injury while delivering mail on 

June 11, 2015. An unidentified young man reportedly snatched the headphones she was wearing 

and in the process grabbed her hair. Appellant claimed to have suffered a whiplash-type injury 

to the left side of her neck. She called 911 and reported the theft to the police. Appellant 

stopped work on June 12, 2015 and received continuation of pay.3 

Appellant sought medical treatment on June 13, 2015. She submitted the first two pages 

of a June 13, 2015 document from New York Methodist Hospital in which it is noted that her 

chief complaint was neck pain. Appellant received prescriptions for Valium and Ibuprofen.4 

In a June 30, 2015 note, Dr. Jacob Nir, a Board-certified physiatrist, referred appellant for 

physical therapy to treat her neck and left shoulder. Appellant also submitted physical therapy 

treatment notes beginning in late-June 2015. 

In an attending physician’s report (Form CA-20) dated July 17, 2015, Dr. Nir listed 

appellant’s date of injury as June 11, 2015 and the mechanism of injury as having headphones 

pulled off her head while delivering mail and suffering whiplash due to the resultant force. He 

diagnosed cervical radiculopathy at C5-6 and left shoulder derangement. Dr. Nir checked a box 

marked “Yes” indicating that the diagnosed conditions were caused or aggravated by the 

employment activity. He advised that appellant was totally disabled beginning June 30, 2015. 

In a form entitled “Work Capacity Evaluation Musculoskeletal Conditions” (Form 

OWCP-5c) dated July 18, 2015, Dr. Nir advised that appellant was not able to perform her usual 

job due to decreased neck motion, numbness, and tingling of the left upper extremity. He 

indicated that she could not perform any type of work at the present time, noting that she had left 

arm weakness, severe neck pain, spasms, and trigger points. 

In a July 27, 2015 letter, OWCP requested that appellant submit additional factual and 

medical evidence in support of her claim. 

Appellant submitted the second page of a July 18, 2015 form requesting authorization for 

examination and/or treatment (Form CA-16) in which Dr. Nir diagnosed radiculopathy with 

nerve root involvement and checked a box marked “Yes” indicating that the diagnosed 

 3

 Appellant subsequently filed a claim for wage-loss compensation (Form CA-7) for the period July 27 through 

August 21, 2015. 

4

 The document appears to be missing its third through fifth pages and does not contain a signature. 
3

conditions were caused or aggravated by the employment activity. She also submitted a report 

from a physical therapy session in August 2015. 

In a decision dated October 8, 2015, OWCP denied appellant’s claim for a work-related 

injury on June 11, 2015. It accepted the June 11, 2015 work incident as alleged and that a 

medical condition had been diagnosed. However, OWCP denied the claim because appellant 

had failed to submit medical evidence establishing a causal relationship between the diagnosed 

condition and the accepted employment incident. 

Appellant requested a telephone hearing with an OWCP hearing representative regarding 

the October 8, 2015 decision. During the hearing, held on June 14, 2016, she testified that on 

June 11, 2015 she was wearing the type of large headphones that entirely cover the ears, 

although at the time of the claimed injury the left side of the headphones covered her left ear and 

the right side of the headphones rested just behind her right ear so that she could hear out of her 

right ear. Appellant indicated that the young man who stole her headphones pulled them forward 

while removing them, thereby pulling her head forward. She provided a description of her 

symptoms and the treatment of her medical conditions. 

On the day of the hearing, appellant submitted several additional documents. In an 

October 20, 2015 report entitled “Initial Medical Evaluation,” Dr. Dorina Drukman, a Boardcertified physiatrist, reported that on June 11, 2015 a man pulled appellant’s headset, thereby 

twisting her neck, and causing her head to jerk. Appellant reported that she did not fall but that 

she thereafter experienced severe headaches and neck pain. Dr. Drukman noted that appellant’s 

current complaints included neck pain, left worse than right, with pain radiating down her left 

arm to her hand. Appellant also reported persistent numbness in her left hand and tingling and 

numbness in her left arm.5

 Dr. Drukman detailed the findings of her physical examination of 

appellant on October 20, 2015 and diagnosed pain in the cervical spine, spasm in the cervical 

paraspinals, sprain in the cervical spine, and numbness in the left arm. She indicated that 

appellant needed additional diagnostic testing, including a magnetic resonance imaging scan, 

x-ray testing, and electro-diagnostic testing to rule out cervical radiculopathy versus brachial 

plexopathy or peripheral traumatic neuropathy. Dr. Drukman noted that appellant was 

temporarily totally disabled from her work as a letter carrier. The record contains the findings of 

October 20, 2015 x-ray testing of appellant’s cervical spine which contained an impression of 

“slight reversal of lordosis, otherwise unremarkable examination.” 

Appellant also submitted a January 26, 2016 note from Dr. Salvatore R. Lenzo, a Boardcertified orthopedic surgeon. Dr. Lenzo indicated that she was totally incapacitated from 

January 26 to February 24, 2016 due to the diagnosed condition of status post left index finger 

trigger release, left carpal tunnel release, and decompression of the left median nerve at the 

forearm level. In an undated disability certification note, he indicated that appellant was totally 

incapacitated from February 23 to April 22, 2016. Dr. Lenzo noted that this disability was due to 

the diagnosed condition of status post left index finger trigger release, left carpal tunnel release, 

and decompression of the left median nerve at the forearm level. 

 5

 Appellant reported that the tingling and numbness in her left arm started about one week after the June 11, 2015 

employment incident. 
4

Appellant later submitted a July 1, 2016 report of Dr. Lenzo. In this report, Dr. Lenzo 

indicated that she reported that on June 11, 2015 she was wearing headphones while in a bentover position when “[appellant] was accosted and someone actually ripped the headphones off of 

her head and she sustained a violent injury to her cervical spine.” He noted that appellant further 

reported that she developed significant pain in her cervical spine area which radiated into her left 

upper extremity. Dr. Lenzo advised that Dr. Drukman performed electrodiagnostic studies on 

October 20, 2010 which revealed evidence of a C5-6 cervical radiculopathy and carpal tunnel 

syndrome, i.e., compression of the median nerve within the left arm. He indicated that he first 

saw appellant on December 22, 2015 at which time he diagnosed compression of the medial 

nerve both at the level of the hand and within the forearm at the level of the pronator near the 

elbow. Dr. Lenzo noted that she also developed swelling and tenderness consistent with 

tenosynovitis of the flexor tendons within the left index finger. He explained that, due to 

appellant’s continuing complaints lasting more than six months, he performed surgery on 

January 14, 2016 including “decompression of the respective nerves within the forearm and hand 

at the level of the median nerve as well as tenolysis and tenosynovectomy of the tendons.” 

Dr. Lenzo reported that, upon physical examination on July 1, 2016, she had well-healed scars 

on the volar aspect of the left proximal forearm over the volar aspect of the hand and the base of 

the left index finger. He noted: 

“Thus to summarize, [appellant] sustained a serious injury to her neck and left 

upper extremity which is causally related to the date of accident. She developed a 

cervical radiculopathy and a double crush syndrome in the left upper extremity, 

i.e., compression of the nerve at several sites. There is no prior history in this 

case for these similar problems and thus all of the symptoms I believe are related 

to the incident of June 11, 2015. This is with a degrees (sic) [of] medical 

certainty.” 

In a decision dated July 27, 2016, the hearing representative affirmed OWCP’s 

October 8, 2015 decision denying appellant’s claim for a work-related injury on June 11, 2015. 

The hearing representative determined that appellant had not submitted rationalized medical 

evidence relating specific, diagnosed conditions to the accepted June 11, 2015 work incident. 

On September 7, 2016 appellant, through counsel, requested reconsideration of OWCP’s 

July 27, 2016 decision. Counsel enclosed an August 9, 2016 report of Dr. Lenzo which he 

claimed provided an adequate explanation of how the claimed June 11, 2015 injury occurred. 

A copy of the August 9, 2016 report of Dr. Lenzo was received by OWCP on the 

September 7, 2016 letter. In this report, Dr. Lenzo indicated that he produced the report in order 

to clarify his prior report of July 1, 2016. He noted that he wished to clarify that appellant was 

significantly injured when a young man grabbed headphones from her head and violently injured 

her cervical spine while she was bending over a mailbag in the course of delivering mail. 

Dr. Lenzo noted: 

“[Appellant] sustained a violent type of whiplash injury to the cervical spine. 

This caused her to develop a significant C5-6 radiculopathy and a subsequent 

double crush syndrome with compression of the median nerve within the left arm. 

[Appellant] had no preexisting problem before this and I feel I can clearly state 
5

with a degree of medical certainty that the injury of [June 11, 2015] was the 

causation for her injury at the neck and subsequent problems in the left upper 

extremity for which she needed my treatment.” 

By decision dated November 28, 2016, OWCP denied appellant’s request for 

reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It noted that it had 

reviewed counsel’s September 6, 2016 letter. In denying appellant’s request for reconsideration 

of the merits of her claim, OWCP further noted: 

“Because [appellant’s] letter neither raised substantive legal questions nor 

included new and relevant evidence, it is insufficient to warrant a review of our 

prior decision at this time. Any future request for reconsideration must be made 

within one year from the prior decision and must be accompanied by statements 

or evidence as described above.” (Emphasis added). 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA has the burden of proof to establish 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 related to the employment injury.6 These are the essential elements of each 

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an 

occupational disease.7 

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 she actually experienced the employment incident at 

the time, place and in the manner alleged.8 Second, the employee must submit evidence, in the 

form of medical evidence, to establish that the employment incident caused a personal injury.9 

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 the claimant, must be 

one of reasonable medical certainty, and must be supported by medical rationale explaining the 

 6 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989). 

7 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). 

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

9 John J. Carlone, 41 ECAB 354 (1989). 
6

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the claimant.10

ANALYSIS -- ISSUE 1 

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

causally related to a June 11, 2015 employment incident. 

Appellant filed a Form CA-1 claiming that on June 11, 2015 she sustained a neck injury, 

in the form of left-sided whiplash and muscle strains of her neck, while delivering mail on her 

route. She indicated that a young man snatched the headphones she was wearing off her head in 

the course of stealing them. In decisions dated October 8, 2015 and July 27, 2016, OWCP found 

that appellant had established the June 11, 2015 work incident as alleged, but that she had failed 

to submit sufficient medical evidence establishing an injury due to that work incident. 

In support of her claim, appellant submitted a Form CA-20 dated July 17, 2015 in which 

Dr. Nir listed her date of injury as June 11, 2015 and the mechanism of injury as having 

headphones pulled off her head while delivering mail and suffering whiplash due to the resultant 

force. Dr. Nir diagnosed cervical radiculopathy at C5-6 and left shoulder derangement and 

checked a box marked “Yes” indicating that the diagnosed conditions were caused or aggravated 

by the employment activity. He advised that appellant was totally disabled from June 30, 2015 

to the present. 

The Board has held that when a physician’s opinion on causal relationship consists only of 

checking “Yes” to a form question, without more by the way of medical rationale, that opinion has 

little probative value and is insufficient to establish causal relationship. Appellant’s burden 

includes the necessity of furnishing an affirmative opinion from a physician who supports her 

conclusion with sound medical reasoning.11 As Dr. Nir did no more than check a box “yes” in 

response to a form question, his opinion on causal relationship is of little probative value and is 

insufficient to discharge her burden of proof to establish a June 11, 2015 work injury. He did not 

provide a rationalized medical opinion explaining why the diagnosed conditions of cervical 

radiculopathy at C5-6 and left shoulder derangement were related to the June 11, 2015 work 

incident. Dr. Nir did not describe the June 11, 2015 incident in any detail or explain how it could 

have caused or aggravated the diagnosed conditions. 

Appellant submitted the second page of a July 18, 2015 Form CA-16 in which Dr. Nir 

diagnosed radiculopathy with nerve root involvement and checked a box marked “Yes” 

indicating that the diagnosed conditions were caused or aggravated by the employment activity. 

The submission of this form report would not establish her claim for a June 11, 2015 work injury 

because he did not provide any explanation in this incomplete report that he felt that the 

diagnosed condition was caused or aggravated by the June 11, 2015 work incident. Dr. Nir did 

not provide a rationalized medical opinion relating the diagnosed condition to a specific, 

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

11 Lillian M. Jones, 34 ECAB 379, 381 (1982). 
7

accepted work factor.12 In Form OWCP-5c dated July 18, 2015, he advised that appellant was 

not able to perform her usual job due to decreased neck motion, numbness, and tingling of the 

left upper extremity. Dr. Nir did not, however, provide an opinion that this inability to work was 

due to any condition related to the June 11, 2015 work incident.13

In an October 20, 2015 report, Dr. Drukman, an attending physician, detailed the June 11, 

2015 work incident as reported by appellant and described her neck and upper extremity 

conditions. She provided the findings of her physical examination of appellant on October 20, 

2015 and diagnosed pain in the cervical spine, spasm in the cervical paraspinals, sprain in the 

cervical spine, and numbness in the left arm. Dr. Drukman noted that appellant was temporarily 

totally disabled from her work as a letter carrier. The submission of this report would not 

establish appellant’s claim because Dr. Drukman did not provide any indication that the 

diagnosed condition(s)/disability were related to the June 11, 2015 work incident.14 

In a July 1, 2016 report, Dr. Lenzo, an attending physician, indicated that appellant 

reported that on June 11, 2015 she was wearing headphones while in a bent-over position when 

“[appellant] was accosted and someone actually ripped the headphones off of her head and she 

sustained a violent injury to her cervical spine.” He advised that Dr. Drukman performed 

electrodiagnostic studies on October 20, 2010, which revealed evidence of a C5-6 cervical 

radiculopathy and carpal tunnel syndrome. The Board notes that these diagnostic testing results 

are not currently in the record. Dr. Lenzo also noted that he performed surgery on January 14, 

2016 including “decompression of the respective nerves within the forearm and hand at the level 

of the median nerve as well as tenolysis and tenosynovectomy of the tendons.” There is no 

report of this surgery in the record. 

In his July 1, 2016 report, Dr. Lenzo further noted, “Thus to summarize, [appellant] 

sustained a serious injury to her neck and left upper extremity which is causally related to the 

date of accident. She developed a cervical radiculopathy and a double crush syndrome in the left 

upper extremity, i.e., compression of the nerve at several sites.” The Board notes that his 

opinion in this regard is of limited probative value because he did not support this opinion with 

adequate medical rationale. The Board has held that a medical report is of limited probative value 

on the issue of causal relationship if it contains a conclusion regarding causal relationship which is 

unsupported by medical rationale.15 Dr. Lenzo did not explain how the June 11, 2015 work 

incident could have caused or aggravated the conditions of cervical radiculopathy or double 

crush syndrome in the left upper extremity. He further indicated, “There is no prior history in 

this case for these similar problems and thus all of the symptoms I believe are related to the 

incident of the June 11, 2015. This is with a degrees [of] medical certainty.” However, the 

Board has held that the fact that a condition manifests itself or worsens during a period of 

 12 Id. 

13 See Y.D., Docket No. 16-1896 (issued February 10, 2017); see also D.R., Docket No. 16-0528 (issued 

August 24, 2016). 

14 Id. 

15 C.M., Docket No. 14-0088 (issued April 18, 2014). 
8

employment16 or that work activities produce symptoms revelatory of an underlying condition17

does not raise an inference of causal relationship between a claimed condition and employment 

factors. The Board notes that Dr. Lenzo’s opinion is of limited probative value for the further 

reason that he did not provide a complete factual and medical history, particularly with regard to 

whether appellant had any neck or upper extremity problems prior to her June 11, 2015 work 

incident.18 

For these reasons, appellant did not establish an injury causally related to a June 11, 2015 

employment incident. Thus, she has failed to meet her burden of proof. 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,19

OWCP’s 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.20 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant’s application for review must 

be received within one year of the date of that decision.21 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.22 The Board has held that the submission of evidence or argument 

which repeats or duplicates evidence or argument already in the case record23 and the submission 

of evidence or argument which does not address the particular issue involved does not constitute a 

basis for reopening a case.24 While a reopening of a case may be predicated solely on a legal 

 16 William Nimitz, Jr., 30 ECAB 567, 570 (1979). 

17 Richard B. Cissel, 32 ECAB 1910, 1917 (1981). 

18 See supra note 11. In disability certification notes from early-2016, Dr. Lenzo indicated that appellant was 

totally incapacitated from January 26 to April 22, 2016. He noted that this disability was due to the diagnosed 

condition of status post left index finger trigger release, left carpal tunnel release, and decompression of the left 

median nerve at the forearm level. These notes are of limited probative value on the relevant issue of this case 

because Dr. Lenzo did not provide any indication that the diagnosed condition or disability was related to the 

June 11, 2015 work incident. 

19 Under section 8128 of FECA, “[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.” 5 U.S.C. § 8128(a). 

20 20 C.F.R. § 10.606(b)(3). 

21 Id. at § 10.607(a). 

22 Id. at § 10.608(b). 

23 Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980). 

24 Edward Matthew Diekemper, 31 ECAB 224-25 (1979). 
9

premise not previously considered, such reopening is not required where the legal contention 

does not have a reasonable color of validity.25 

ANALYSIS -- ISSUE 2 

OWCP issued a decision on July 27, 2016. Appellant, through counsel, requested 

reconsideration of this decision in a September 6, 2016 letter received by OWCP on 

September 7, 2016. In addition to this letter, she submitted an August 9, 2016 report of 

Dr. Lenzo. 

The issue presented on appeal is whether appellant met any of the requirements of 20 

C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. 

The Board notes that, in its November 28, 2016 decision denying appellant’s request for 

reconsideration of the merits of her claim, OWCP did not provide any indication that it 

considered the August 9, 2016 report of Dr. Lenzo. 

FECA provides that OWCP shall determine and make findings of fact in making an award 

for or against payment of compensation after considering the claim presented by the employee and 

after completing such investigation as OWCP considers necessary with respect to the claim.26 

Since the Board’s jurisdiction of a case is limited to reviewing that evidence which is before 

OWCP at the time of its final decision,27 it is necessary that OWCP review all evidence submitted 

by a claimant and received by OWCP prior to issuance of its final decision. As the Board’s 

decisions are final as to the subject matter appealed,28 it is crucial that all evidence relevant to that 

subject matter which was properly submitted to OWCP prior to the time of issuance of its final 

decision be addressed by OWCP.29 

The Board finds that OWCP improperly failed to consider all the relevant evidence 

submitted by appellant in denying her request for reconsideration of the merits of her claim 

pursuant to 5 U.S.C. § 8128(a). Therefore, the case is remanded to OWCP for consideration of 

the evidence she submitted in connection with her reconsideration request, to be followed by the 

issuance of an appropriate decision regarding her reconsideration request. 

CONCLUSION 

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

causally related to a June 11, 2015 employment incident. The Board further finds that OWCP 

failed to consider all the relevant evidence submitted by her in denying her request for 

 25 John F. Critz, 44 ECAB 788, 794 (1993). 

26 5 U.S.C. § 8124(a)(2). 

27 20 C.F.R. § 501.2(c). 

28 Id. at § 501.6(d). 

29 See E.P., Docket No. 14-0278 (issued February 26, 2014); see also William A. Couch, 41 ECAB 548, 553 (1990). 
10

reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a) and the case is 

remanded to OWCP for consideration of the evidence she submitted in connection with her 

reconsideration request. 

ORDER 

IT IS HEREBY ORDERED THAT the July 27, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. The November 28, 2016 decision of OWCP is 

set aside and the case remanded to OWCP for further proceedings consistent with this decision 

of the Board. 

Issued: April 6, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board