United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Grand Rapids, MI, Employer 

__________________________________________ 

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Docket No. 17-0059 

Issued: March 10, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 14, 2016 appellant filed a timely appeal from a June 1, 2016 merit decision 

and June 29, 2016 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 met her burden of proof to establish a left knee 

injury causally related to the February 25, 2016 employment incident; and (2) whether OWCP 

properly refused to reopen her case for reconsideration of the merits of her claim under 5 U.S.C. 

§ 8128(a). 

 

 1 5 U.S.C. § 8101 et seq.

2

 Following the issuance of the June 29, 2016 OWCP decision, appellant submitted new evidence to OWCP. The 

Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. 

Therefore, the Board lacks jurisdiction to review this additional evidence. See 20 C.F.R. § 501.2(c)(1). 
2

On appeal appellant contends that she has a work-related left knee injury for which she 

received medical treatment. 

FACTUAL HISTORY 

On March 30, 2016 appellant, then a 23-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on February 25, 2016 she developed left knee effusion when her 

knee popped as she was descending stairs at work. 

In a duty status report (Form CA-17) with an illegible date, Dr. David B. Crittenden, a 

Board-certified internist, provided a history of injury that on February 25, 2016 appellant’s left 

knee popped as she was walking down steps. He indicated that she had a left knee injury due to 

the February 25, 2016 incident. Dr. Crittenden noted that on April 19, 2016 appellant was 

advised that she could return to her regular work duties, eight hours a day with restriction. In a 

March 30, 2016 medical report, he diagnosed left knee effusion and acute pain. Dr. Crittenden 

advised that appellant was totally incapacitated from employment until her follow-up 

appointment. In a March 30, 2016 letter, he placed appellant off work from March 29 to 

31, 2016. 

In a report dated March 30, 2016, David M. Kaminski, a certified physician assistant, 

diagnosed left knee injury and left knee effusion and acute pain. He related that appellant was 

totally incapacitated from employment until her next follow-up appointment. 

By letter dated April 21, 2016, OWCP indicated that when appellant’s claim was 

received it appeared to be a minor injury that resulted in minimal or no lost time from work and, 

based on these criteria and because the employing establishment had not controverted the claim, 

payment of a limited amount of medical expenses was administratively approved. It stated that it 

had reopened the claim for consideration because the medical bills had exceeded $1,500.00. 

OWCP advised appellant of the type of evidence needed to establish her claim. 

In an April 19, 2016 report, Dr. Michael R. Jabara, a Board-certified orthopedic surgeon, 

placed appellant off work through May 1, 2016. He diagnosed left knee injury and acute pain of 

the left knee. Dr. Jabara related that appellant could gradually return to work on May 2, 2016, 

four hours a day, two days a week and then she may resume her normal duty. In a duty status 

report (Form CA-17) dated April 21, 2016, he provided a history that on February 25, 2016 

appellant’s left knee popped while she was descending stairs. Dr. Jabara restated his diagnosis 

of left knee injury and opinion that appellant was totally incapacitated through May 1, 2016. 

In a report dated April 19, 2016, Mr. Kaminski noted appellant’s current status and 

findings. 

An April 6, 2016 employing establishment accident report noted that on February 25, 

2016 appellant’s knee popped as she descended steps while delivering mail on her route. 
3

In response to OWCP’s queries, appellant reiterated her history of injury that on 

February 25, 2016 she felt her knee pop while descending steps.3

In a May 16, 2016 report, Dr. Jabara advised that appellant could only return to sedentary 

work on May 17, 2016. He further advised that she could return to work without restriction on 

May 30, 2016. 

In a therapy referral form dated May 16, 2016, Mr. Kaminski ordered physical therapy to 

treat appellant’s diagnosed left knee conditions. A May 17, 2016 Form CA-17 with an unknown 

signature provided clinical findings of left knee pain and effusion. Appellant was released to 

full-time work with restrictions. A plan of care report dated May 18, 2016 from Hulst Jepsen 

Physical Therapy addressed the treatment of appellant’s diagnoses of left knee pain and left 

lower leg muscle wasting and atrophy, not elsewhere classified. 

By decision dated June 1, 2016, OWCP denied appellant’s claim as the medical evidence 

of record did not contain a medical diagnosis in connection with the accepted February 25, 2016 

employment incident. 

Appellant resubmitted Mr. Kaminski’s May 16, 2016 therapy referral form and the 

May 18, 2016 plan of care report from Hulst Jepsen Physical Therapy. 

In a May 31, 2016 report, Dr. Jabara requested that appellant be excused from work due 

to her appointment on that date. He advised that she could return to work without restriction on 

June 1, 2016. In a May 31, 2016 therapy referral form, Dr. Jabara ordered physical therapy to 

treat appellant’s diagnosis of left knee injury. 

A daily note/billing sheet dated May 23, 2016 from Hulst Jepsen Physical Therapy 

addressed the treatment of appellant’s left knee conditions. 

On June 17, 2016 appellant requested reconsideration of OWCP’s June 1, 2016 decision. 

In a June 29, 2016 decision, OWCP denied appellant’s request for reconsideration 

without a review of the merits. It found that her request neither raised substantive legal 

questions nor included new and relevant evidence. 

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 by the weight of the reliable, probative, and substantial 

evidence4 including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability for work for which he or she claims compensation is causally 

related to that employment injury.5

 3

 Appellant accepted the employing establishment’s May 3, 2016 job offer for a modified city carrier position on 

that date. 

 4 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968). 

 5 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 
4

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

performance of duty, it first must be determined whether fact of injury has been established.6 

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.7

 

The second component is whether the employment incident caused a personal injury and 

generally can be established only by medical evidence.8

 The evidence required to establish 

causal relationship is rationalized medical opinion evidence, based upon complete factual and 

medical background, showing a causal relationship between the claimed condition and the 

identified factors.9

 The belief of the claimant that a condition was caused or aggravated by the 

employment is insufficient to establish a causal relationship.10

ANALYSIS -- ISSUE 1 

The Board finds that appellant has not met her burden of proof to establish that she 

sustained a traumatic injury causally related to the February 25, 2016 employment incident. As 

appellant failed to submit sufficient medical evidence to establish that she had a left knee injury 

causally related to the accepted employment incident. 

Dr. Crittenden’s Form CA-17 with an illegible date found that appellant had a left knee 

injury due to the accepted February 25, 2016 employment incident and that she was able return 

to her full-time regular work duties with restriction. However, he did not provide a firm 

diagnosis of a particular medical condition11 or explain how descending steps caused or 

aggravated the diagnosed medical condition and prior disability from work. As Dr. Crittenden’s 

report does not provide rationale linking a medical diagnosis to the accepted employment 

incident, it is of limited probative value.12 His remaining reports are also of limited probative 

value as this evidence failed to provide a history of injury,13 examination findings, or a specific 

 

 6 S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005). 

 7 Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968). 

 8 John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q) 

(traumatic injury and occupational disease defined, respectively). 

 9 Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979). 

 10 Kathryn Haggerty, 45 ECAB 383, 389 (1994). 

11 See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report 

providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident, 

appellant did not meet her burden of proof). 

 12 F.T., Docket No. 09-919 (issued December 7, 2009) (medical opinions not fortified by rationale are of 

diminished probative value); Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements 

merely asserting causal relationship generally do not discharge a claimant’s burden of proof). 

13 Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little 

probative value). 
5

opinion as to whether the February 25, 2016 employment incident caused or aggravated 

appellant’s left knee conditions and resultant disability.14

Similarly, Dr. Jabara’s reports are of diminished probative value. He found that appellant 

had a left knee injury and acute pain of the left knee. In addition, Dr. Jabara addressed her work 

capacity. However, he did not provide a specific medical diagnosis indicating that a medical 

condition was caused or aggravated by the February 25, 2016 employment incident. The Board 

notes that pain is a description of a symptom rather than a firm diagnosis of a compensable 

medical condition.15 Dr. Jabara failed to address how the work incident caused or aggravated a 

diagnosed medical condition.16

Evidence from Mr. Kaminski, a physician’s assistant, and a report presumably from a 

physical therapist at Hulst Jepsen Physical Therapy do not constitute competent medical 

evidence because neither physician assistants nor physical therapists are considered physicians as 

defined under FECA.17 As such, this evidence is also insufficient to meet appellant’s burden of 

proof. The May 17, 2016 Form CA-17 was not legibly signed and, thus, has no probative 

medical value as it cannot be established that the author is a physician.18

The Board finds that appellant has failed to submit rationalized probative medical 

evidence to establish that she sustained a left knee injury causally related to the February 25, 

2016 employment incident. Appellant, therefore, failed to meet her burden of proof. 

On appeal appellant contends that she has a work-related left knee injury for which she 

received medical treatment. For the reasons stated above, the Board finds that the weight of the 

medical evidence does not establish that appellant sustained a left knee condition causally related 

to the accepted February 25, 2016 work incident. 

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 of FECA vests OWCP with a discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

 14 See J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion 

regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship). 

15 C.F., Docket No. 08-1102 (issued October 10, 2008). 

16 See supra note 14. 

17 5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants); Jennifer L. Sharp, 48 ECAB 

209 (1996) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 

ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of 

probative medical evidence from a physician). 

18 See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988). 
6

application by a claimant.19 Section 10.608(b) of OWCP’s regulations provide that a timely 

request for reconsideration may be granted if OWCP determines that the claimant has presented 

evidence and/or argument that meet at least one of the standards described in section 

10.606(b)(3).20 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain 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 new evidence not 

previously considered by OWCP.21 Section 10.608(b) provides that when a request for 

reconsideration is timely but fails to meet at least one of these three requirements, OWCP will 

deny the application for reconsideration without reopening the case for a review on the merits.22

ANALYSIS -- ISSUE 2 

The Board finds that this case is not in posture for decision. 

With her June 13, 2016 reconsideration request, appellant did not allege or demonstrate 

that OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal 

argument not previously considered by OWCP. Consequently, she was not entitled to a review 

of the merits of her claim based on the first and second above-noted requirements under section 

10.606(b).23

With respect to the third above-noted requirement under section 10.606(b)(3), appellant 

submitted Dr. Jabara’s May 31, 2016 report and physical therapy records. 

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact 

and make an award for or against payment of compensation.24 Section 10.126 of Title 20 of the 

Code of Federal Regulations provides that the decision shall contain findings of fact and a 

statement of reasons.25 Moreover, OWCP procedures provide that, if the evidence submitted is 

not sufficient to require a merit review, OWCP should issue a decision which discusses the 

evidence submitted, or lack thereof, and explicitly state the basis for the finding of 

insufficiency.26

In its June 29, 2016 decision, OWCP did not discharge its responsibility to provide 

appellant a statement explaining the disposition so that appellant could understand the basis for 

the decision, as well as, the precise defect and the evidence needed to overcome the denial of her 

 19 5 U.S.C. § 8128(a). 

20 20 C.F.R. § 10.608(a). 

 21 Id. at § 10.606(b)(3). 

22 Id. at § 10.608(b). 

23 Id. at § 10.606(b)(3). 

24 5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005). 

25 20 C.F.R. § 10.126; see also O.R., 59 ECAB 432 (2008). 

26 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(b) (October 2011). 
7

claim. The Board notes that OWCP denied appellant’s June 13, 2016 request for reconsideration 

because it neither raised substantive legal questions nor included new and relevant evidence, but 

failed to provide any discussion of the evidence she submitted in support of her reconsideration 

request and to explain how the evidence was insufficient to warrant a merit review of her claim. 

Accordingly, the case must be remanded to OWCP for a proper decision which includes 

findings of fact and a clear and precise statement regarding appellant’s request for 

reconsideration on the denial of her traumatic injury claim or why she is not entitled to further 

reconsideration. Following this and such further development as OWCP deems necessary, it 

shall issue an appropriate decision.27 

CONCLUSION 

The Board finds that appellant has failed to meet her burden of proof to establish a left 

knee injury causally related to the February 25, 2016 employment incident. The Board further 

finds that the case is not in posture for decision as to whether OWCP improperly refused to 

reopen her case for reconsideration of the merits of her claim under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the June 29, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision of the Board. The June 1, 2016 decision is affirmed. 

Issued: March 10, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy 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 

 27 See J.Y., Docket No. 13-0471 (issued January 2, 2014).