United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.S., Appellant

and

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Washington, DC, Employer

__________________________________________

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Docket Nos. 17-1592 & 

17-1629

Issued: November 13, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 17, 2017 appellant filed a timely appeal from an April 14, 2017 merit decision 

and a May 3, 2017 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 a cervical 

condition causally related to the July 6, 2015 employment incident; and (2) whether OWCP 

properly denied appellant’s request for reconsideration of the merits of his claim pursuant to 

5 U.S.C. § 8128(a).

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case was previously before the Board.2 On July 10, 2015 appellant, a 54-year-old 

marshal, filed a claim for recurrence of disability (Form CA-2a) for medical treatment only 

under OWCP File No. xxxxxx200. He had previously injured his neck and left upper extremity 

on January 6, 1997, which OWCP accepted for neck sprain and left elbow/forearm contusion. 

On his Form CA-2a, appellant identified July 6, 2015 as the date of recurrence and explained that 

the pain in his neck, left arm, and hand “came back a day after [he] was moving some boxes 

around at work.” Based on appellant’s description of events, OWCP treated his recurrence claim 

as a claim for a new traumatic injury. 

Appellant submitted medical evidence indicating that the July 6, 2015 employment 

incident aggravated an underlying cervical condition, which produced left arm pain. His treating 

physician, Dr. David C. Waters, a Board-certified neurosurgeon, diagnosed left C8 radiculopathy 

and recommended surgical intervention. In a November 17, 2015 report, Dr. Waters indicated 

that appellant’s July 6, 2015 work activities aggravated his underlying cervical condition. 

By decisions dated November 9, 2015 and April 4, 2016, OWCP denied appellant’s 

traumatic injury claim finding that the medical evidence submitted was insufficient to establish 

causal relationship between appellant’s condition and the employment incident.

On August 30, 2016 appellant requested reconsideration and purportedly submitted new 

medical evidence from his treating physician. However, there was no indication that OWCP 

received any additional evidence subsequent to its April 4, 2016 decision. OWCP denied 

appellant’s request for reconsideration by decision dated September 14, 2016. When the case 

was on prior appeal on January 25, 2017, the Board had affirmed OWCP’s September 14, 2016 

nonmerit decision.3 The facts and circumstances of the case as set forth in the Board’s 

January 25, 2017 decision are incorporated herein by reference.

On January 30, 2017 appellant requested reconsideration and submitted a May 3, 2016 

report from Dr. Waters who diagnosed left C8 radiculopathy. Dr. Waters noted that appellant 

had C8 radiculopathy since a motor vehicle accident in January 1997 and then experienced 

recurrent symptoms after stacking and unloading luggage while at work in May 2007. 

Dr. Waters reported that appellant was symptom-free until 2013 when he was “carrying boards 

on his left shoulder at home [and] he began to have recurrent symptoms.” He further indicated 

that appellant was diagnosed as having a pinched bone in his neck and his symptoms resolved 

after five months. Appellant had no symptoms between 2013 and July 2015. Dr. Waters noted 

that on July 6, 2015 appellant was moving two 41-pound ammunition boxes from the floor at his 

work location and placing them over his shoulder in a turning motion toward the left. While 

doing this, he felt some discomfort, sudden onset of pain in the upper scapula, and by the next 

day, he had pain radiating down his left arm with an electric current, which fit with the C8 nerve 

root distribution. Dr. Waters found that appellant had consistent C8 medical problems and 

 

2 Docket No. 17-0291 (issued January 25, 2017).

3

See supra note 2.
3

opined that his persistent left C8 radiculopathy was aggravated by the July 6, 2015 work 

incident. 

By decision dated April 14, 2017, OWCP denied modification of its prior decision 

because the medical evidence of record failed to establish a causal relationship between 

appellant’s cervical condition and the July 6, 2015 employment incident. 

On April 20, 2017 appellant again requested reconsideration. In support of his request, 

he submitted an April 20, 2017 narrative statement. Appellant reiterated the factual history of 

his claim and argued that Dr. Waters had in fact provided medical rationale in his May 3, 2016 

report, which appellant resubmitted.

By decision dated May 3, 2017, OWCP denied appellant’s request for reconsideration 

without a merit review. It found that no new evidence had been submitted and the May 3, 2016 

report from Dr. Waters was repetitious. 

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 An employee may establish that an injury occurred in the performance of duty 

as alleged, but fail to establish that the disability or specific condition for which compensation is 

being claimed is causally related to the injury.7

 

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.

7

Shirley A. Temple, 48 ECAB 404, 407 (1997).
4

The fact that a condition manifests itself during a period of employment is insufficient to 

establish causal relationship.8 Temporal relationship alone will not suffice.9 Entitlement to 

FECA benefits may not be based on surmise, conjecture, speculation, or on the employee’s own 

belief of a causal relationship.10

In any case where a preexisting condition involving the same part of the body is present 

and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.11

ANALYSIS -- ISSUE 1

OWCP accepted that the July 6, 2015 employment incident occurred as alleged, and also 

accepted that there was a medical diagnosis in connection with the employment incident. 

However, it denied appellant’s traumatic injury claim finding that the medical evidence was 

insufficient to establish a causal relationship between the diagnosed condition and the accepted 

employment exposure. The issue is whether appellant’s new cervical condition resulted from the 

July 6, 2015 employment incident. The Board finds that appellant failed to meet his burden of 

proof to establish causal relationship.

In a November 17, 2015 report, Dr. Waters indicated that appellant’s July 6, 2015 work 

activities aggravated his underlying cervical condition. He explained that appellant was moving 

boxes at work and he had another episode of severe left C8 radicular symptoms. However,

Dr. Waters did not adequately explain how the July 6, 2015 employment incident aggravated 

appellant’s preexisting cervical condition. A physician’s opinion on causal relationship must be 

supported by medical rationale, explaining the nature of the relationship between the diagnosed 

condition and appellant’s specific employment factor(s).12

In his May 3, 2016 report, Dr. Waters diagnosed left C8 radiculopathy. He noted that 

appellant had C8 radiculopathy since a January 1997 motor vehicle accident, and then 

experienced recurrent symptoms after stacking and unloading luggage at work in May 2007. 

Dr. Waters also reported that appellant was symptom-free until 2013 when he was carrying 

boards on his left shoulder at home and began to have recurrent symptoms. At that time, 

appellant was diagnosed with a pinched bone in his neck, and his symptoms reportedly resolved 

after five months. Dr. Waters noted that on July 6, 2015 appellant was moving two 41-pound 

ammunition boxes from the floor at his work location and placing them over his shoulder in a 

turning motion toward the left. While doing this, he felt some discomfort, sudden onset of pain 

in the upper scapula, and by the next day, he had pain radiating down his left arm with an electric 

 

8

20 C.F.R. § 10.115(e).

9

See D.I., 59 ECAB 158, 162 (2007).

10 See M.H., Docket No. 16-0228 (issued June 8, 2016).

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

12 Victor J. Woodhams, supra note 6.
5

current, which fit with the C8 nerve root distribution. Dr. Waters opined that appellant’s

persistent left C8 radiculopathy was aggravated by the July 6, 2015 work incident. The Board 

finds that Dr. Waters failed to provide sufficient medical rationale explaining how moving boxes

at work on July 6, 2015 either caused or contributed to appellant’s condition. As noted, a

physician’s opinion must be supported by medical rationale, explaining the nature of the 

relationship between the diagnosed conditions and appellant’s specific employment factor(s).13 

The need for rationale is particularly important as the evidence indicates that appellant had a 

preexisting cervical condition and prior, intervening injuries in 2007 and 2013.

14

 Thus, the 

Board finds that Dr. Waters’ latest report is similarly insufficient to establish that appellant 

sustained an employment-related injury on July 6, 2015.

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

that he sustained a cervical injury causally related to the July 6, 2015 employment incident, he 

has failed to meet his burden of proof to establish entitlement to compensation benefits.

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.15 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.16 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.17 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.18 When a timely application for reconsideration does not meet 

 

13 Victor J. Woodhams, supra note 6.

14 See supra note 11.

15 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 own motion or on application.” 5 U.S.C. § 8128(a).

16 20 C.F.R. § 10.607.

17 Id. at § 10.607(a). 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; see Chapter 2.1602.4b.

18 20 C.F.R. § 10.606(b)(3).
6

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.19

ANALYSIS -- ISSUE 2

Appellant’s April 20, 2017 request for reconsideration neither alleged nor demonstrated 

that OWCP erroneously applied or interpreted a specific point of law. He submitted an April 20, 

2017 narrative statement reiterating the factual history of his claim and arguing that OWCP did 

not reference any of Dr. Waters’ May 3, 2016 report wherein he provided medical rationale to 

support his opinion. The Board finds, however, that he has not advanced a relevant legal 

argument not previously considered by OWCP. Consequently, appellant is not entitled to further 

review of the merits of his claim based on the first and second above-noted requirements under 

section 10.606(b)(3).

With respect to the third requirement under section 10.606(b)(3), appellant has not 

submitted any relevant and pertinent new evidence. He resubmitted a May 3, 2016 report from

Dr. Waters, but the Board finds that the submission of this evidence did not require reopening 

appellant’s case for merit review because appellant had submitted the same evidence, which was 

previously reviewed by OWCP in its April 14, 2017 decision. As the report repeats evidence 

already in the case record, it is duplicative and does not constitute relevant and pertinent new 

evidence.20

The Board finds that OWCP properly determined that appellant was not entitled to 

further review of the merits of his claim pursuant to any of the three requirements under section 

10.606(b)(3), and properly denied his request for reconsideration.

CONCLUSION

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

condition causally related to a July 6, 2015 employment incident. The Board further finds that 

OWCP properly denied appellant’s request for reconsideration of the merits of his claim

pursuant to 5 U.S.C. § 8128(a).

 

19 Id. at § 10.608(a), (b).

20 See D.K., 59 ECAB 141 (2007).
7

ORDER

IT IS HEREBY ORDERED THAT the May 3 and April 14, 2017 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: November 13, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board