United States Department of Labor

Employees’ Compensation Appeals Board

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T.C., Appellant

and

DEPARTMENT OF THE ARMY, ARMY 

DEPOT, Anniston, AL, Employer

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Docket No. 17-1449

Issued: November 17, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 16, 2017 appellant filed a timely appeal from a December 20, 2016 merit 

decision and a January 25, 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.2

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish a back

injury in the performance of duty; 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 Appellant submitted new evidence with his appeal following the January 25, 2017 decision. However, since the 

Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board 

may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 

126 (2005). 
2

FACTUAL HISTORY

On November 9, 2016 appellant, then a 55-year-old heavy mobile equipment repairer, 

filed an occupational disease claim (Form CA-2) alleging that, as a result of his repetitive 

employment duties, he developed bulging discs in his back that were pinching on a nerve and 

causing leg pain. He related that he had worked as a heavy mobile equipment repairer for over 

15 years and his work duties required walking constantly on cement, repeatedly lifting items 

weighing over 15 pounds, standing, bending, and twisting. Appellant did not stop work. 

In an October 5, 2016 lumbar spine magnetic resonance imaging (MRI) scan report,

Dr. Sandra Martin, a Board-certified diagnostic radiologist, noted multilevel degenerative 

changes present at the right L4-5 neural foramen.

The employing establishment controverted appellant’s claim in a letter dated 

November 9, 2016. It alleged that he failed to provide any medical documentation to support his 

claim and failed to complete the Form CA-35 (Evidence Required To Support a Claim for 

Occupation Disease) that was provided to him. 

By letter dated November 15, 2016, OWCP advised appellant that the evidence submitted 

was insufficient to establish an occupational disease claim. It requested that he respond to an 

attached development questionnaire in order to substantiate the factual element of his claim and 

submit additional medical evidence to establish a diagnosed condition causally related to his 

employment. Appellant was afforded 30 days to submit the additional evidence. A similar letter 

requesting additional information was sent to the employing establishment. 

OWCP denied appellant’s occupational disease claim in a December 20, 2016 decision 

because the evidence of record was insufficient to establish fact of injury. It determined that he

had not provided sufficient details regarding the employment factors which he believed caused 

his condition. OWCP noted that appellant had not responded to questions regarding the 

employment-related activities he believed caused his condition, therefore the factual portion of 

his claim remained vague. It further found that the medical evidence failed to establish a 

diagnosed condition causally related to his federal employment. 

On December 23, 2016 OWCP received a December 15, 2016 letter by the employing 

establishment, which indicated that it was challenging appellant’s claim. It noted that according 

to the October 5, 2016 lumbar spine MRI scan report appellant had degenerative changes. 

In reports dated November 22 and December 7, 2016, Dr. Zenko Hrynkiw, a Boardcertified neurosurgeon related appellant’s complaints of right lower extremity pain and 

numbness. He indicated that appellant worked as “a heavy motor equipment repairer which 

involves a lot of heavy lifting.” Upon physical examination of appellant’s back, Dr. Hrynkiw

reported mild distress secondary to pain and negative straight leg raise testing bilaterally. He 

diagnosed lumbar radiculopathy. Dr. Hrynkiw provided a patient information form which 

appellant had completed indicating that he had lower back and right leg pain as a result of his 

work activity. 
3

OWCP also received a November 23, 2016 lumbar spine computerized tomography (CT) 

scan report, from Dr. Rob Gish, an internist, who noted right-sided intraforaminal disc herniation 

at the L4-L5 level, resulting in severe neural foraminal stenosis. 

On January 9, 2017 appellant requested reconsideration. He resubmitted Dr. Gish’s 

November 23, 2016 lumbar spine CT scan report. 

By decision dated January 25, 2017, OWCP denied further merit review of appellant’s 

claim under 5 U.S.C. § 8128(a). It found that the medical evidence received after the 

December 20, 2016 decision was irrelevant or immaterial to the issue of fact of injury. 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA3has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence,4including 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 In an occupational disease claim, appellant’s burden requires 

submission of the following: (1) a factual statement identifying employment factors alleged to

have caused or contributed to the presence or occurrence of the disease or condition; (2) medical 

evidence establishing the presence or existence of the disease or condition for which 

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is 

causally related to the employment factors identified by the employee.6

ANALYSIS -- ISSUE 1

Appellant alleged that he developed bulging discs in his back and leg pain as a result of 

walking constantly on cement, repeatedly lifting items weighing over 15 pounds, standing, 

bending, and twisting at work. OWCP denied his claim finding that he failed to establish fact of 

injury. The Board finds that appellant has not met his burden of proof to establish an injury in 

the performance of duty.

In the Form CA-2, appellant reported that he had worked as a heavy mobile equipment 

repairer for over 15 years. He described his work duties as walking constantly on cement, 

repeatedly lifting items weighing over 15 pounds, standing, bending, and twisting. Appellant did 

not provide any further details describing his work activities, how often he performed these 

activities, or for how long he performed them. 

The Board finds that the evidence of record does not contain any evidence to substantiate 

appellant’s described employment factors as a heavy mobile equipment repairer. To establish a 

 

3

Supra note 1.

4

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

5 G.T., 59 ECAB 447 (2008); M.M., Docket No. 08-1510 (issued November 25, 2010).

6 R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).
4

claim for compensation, an employee must submit a statement which identifies the factors of 

employment believed to have caused his or her condition and submit medical evidence to 

establish causal relation.7 Appellant has not provided sufficient detail to establish that an 

occupational exposure occurred as alleged. He did not adequately describe the circumstances of 

his injury, what his injury was, how he injured his back, and the duties he was performing which 

caused his injury.8 The Board therefore concludes that appellant’s description of his 

employment factors that allegedly caused injury was vague.9 Appellant has also not submitted 

probative evidence that his position as a heavy mobile equipment repairer required constant 

walking, lifting over 15 pounds, standing, bending, and twisting.10 The Board, therefore, finds 

that appellant has failed to substantiate the employment factors alleged.11

As appellant has not established the factual component of his claim, the Board will not 

address the medical evidence with respect to causal relationship.12

On appeal appellant explained that in March 2016 he notified his supervisor of a workrelated injury and sought medical treatment. He also described an August 2016 incident when he 

felt extreme pain in his back while at work. Appellant explained that, after receiving additional 

medical treatment, he learned that his back pain was caused by constant and repeated lifting, 

bending, and twisting in the performance of duty. As explained above, however, the Board 

cannot review new evidence and based on the evidence of record, he has failed to provide the 

necessary description of his employment factors alleged to have caused or contributed to his 

claimed back condition.13 

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 vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award 

for or against compensation at any time on his own motion or on application.14 

 

7 Donald W. Wenzel, 56 ECAB 390 (2005); Richard H. Weiss, 47 ECAB 182 (1995).

8

See A.R., Docket No. 15-1716 (issued November 17, 2015). 

9

See C.M., Docket No. 17-0627 (issued June 25, 2017). 

10 See A.S., Docket No. 16-0944 (issued November 2, 2016).

11 See P.S., Docket No. 17-0194 (issued July 24, 2017); see also B.J., Docket No. 14-1028 (issued 

September 17, 2014).

12 See B.G., Docket No. 16-1454 (issued November 22, 2016).

13 Supra note 2.

14 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 

372 (2008).
5

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (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.15 

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP’s decision for which review is sought.16 If it chooses to grant reconsideration, it 

reopens and reviews the case on its merits.17 If the request is timely but fails to meet at least one 

of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.18

ANALYSIS -- ISSUE 2

In its December 20, 2016 merit decision, OWCP denied appellant’s occupational disease 

claim, finding that the evidence of record failed to establish fact of injury. Appellant 

subsequently requested reconsideration and submitted additional medical evidence.

The Board finds that OWCP properly denied appellant’s request for reconsideration of 

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

Appellant has not shown that OWCP erroneously applied or interpreted a specific point 

of law; appellant has not advanced a relevant legal argument not previously considered by 

OWCP; and appellant has not submitted relevant and pertinent new evidence not previously 

considered by OWCP.

The underlying issue in this case was whether appellant had submitted sufficient factual 

evidence to establish compensable factors of employment. Following OWCP’s December 15, 

2016 decision it received Dr. Hrynkiw’s November 22 and December 7, 2016 reports. While 

this evidence was new to the record, it was not relevant to the underlying issue. The submission 

of evidence that does not address the particular issue involved does not constitute a basis for 

reopening a case.19 

In support of his reconsideration request, appellant resubmitted Dr. Gish’s November 23, 

2016 lumbar spine CT scan report, which had previously been considered. The submission of 

evidence which repeats or duplicates evidence already in the case record does not constitute a 

 

15 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-

1569 (issued December 9, 2008).

16 Id. at § 10.607(a).

17 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

18 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

19 Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
6

basis for reopening a case.20 Furthermore, this medical report was also irrelevant to appellant’s 

claim as it fails to address fact of injury. 

The Board finds, therefore, that appellant has not met any of the regulatory requirements 

and OWCP properly declined his request for reconsideration of the merits of his claim under 

5 U.S.C. § 8128(a).21

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish an injury in 

the performance of duty. The Board also finds that OWCP properly denied his request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the January 25, 2017 and December 20, 2016 

decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: November 17, 2017

Washington, DC

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

20 E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

21 A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 

630 (2006).