United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Omaha, NE, Employer

__________________________________________

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Docket No. 17-0839

Issued: October 12, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 6, 2017 appellant filed a timely appeal from a December 15, 2016 merit 

decision and February 16, 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 met her burden of proof to establish a chest injury

causally related to factors of her federal employment; 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). 

 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted a timely request for oral argument with her March 9, 2017 appeal. By 

letter dated March 19, 2017, appellant requested that the Board withdraw her oral argument request and proceed 

with a decision based on review of the case record.
2

FACTUAL HISTORY

On September 7, 2016 appellant, then a 33-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that she developed chest pain due to factors of her federal 

employment. She stopped work and notified her supervisor on June 14, 2016. 

In an attached narrative statement, appellant explained that her chest pain had gradually 

worsened causing her to seek medical treatment in June 2016. After a series of medical visits 

and testing which revealed normal cardiac findings, her physician suspected that her condition

could be muscular in nature and related to her work duties. Appellant subsequently sought 

physical therapy treatment which revealed that her ribs were being positioned upward and the 

muscle was rotating out as a result of her work-related duties. In another narrative statement

dated August 26, 2016, she reported that approximately one and a half years prior she 

experienced chest pain in a specific area of her chest and was diagnosed with an inverted rib 

which resolved about a year ago. Appellant explained that her current condition was unrelated 

and began several months ago, which encompassed her entire chest and pressed against her 

sternum.

In a July 5, 2016 medical report, Dr. Jeffrey S. Nelson, a Board-certified pediatric 

pulmonologist, reported that appellant presented for evaluation of possible asthma as a cause of 

hyperinflation that was seen on a recent chest x-ray. He reported that appellant worked as a rural 

carrier and complained of chest pain and chest tightness. Dr. Nelson provided findings on 

physical examination and diagnosed chest tightness, chest wall pain on the left side of the 

sternum around the fourth and fifth rib, and nonallergic rhinitis. He noted that appellant had 

chest pain about one year prior which resolved with physical therapy. Appellant was doing well 

until recently when she entered another exercise regimen and the high intensity version of this 

resulted in additional chest pain in the same area and also spread across the superior aspect of the 

chest. Dr. Nelson opined that her pain was likely chest wall in nature and recommended 

Ibuprofen tablets for two weeks.

A Melham Medical Center discharge note indicated that appellant was admitted on 

July 14, 2016 for chest pain and released on July 15, 2016 to follow-up with her physician and 

physical therapy.

In a July 14, 2016 diagnostic report, Dr. Ladd D. Lake, a Board-certified diagnostic 

radiologist, reported that a chest x-ray revealed no acute cardiopulmonary findings and sequela 

from prior granulomatous infection.

In an August 2, 2016 medical report, Dr. Clayton J. Friesen, Board-certified in 

cardiovascular disease, reported that appellant complained of chest pain which had been 

recurrent since her last visit. He reported that testing revealed no cardiogenic etiology of her 

symptoms. Dr. Friesen opined that based on her history and examination, she was experiencing 

musculoskeletal-type pain. He noted possible diagnosis of a pinched nerve or herniated disc and 

recommended continued physical therapy.
3

In an August 26, 2016 physical therapy note, Lindsay Myers, a physical therapist, 

released appellant to full-duty work on August 29, 2016. She diagnosed pain in the thoracic 

spine and generalized muscle weakness. 

By letter dated September 26, 2016, OWCP informed appellant that the evidence of 

record was insufficient to support her claim. It provided a questionnaire for completion and 

advised her to describe in detail the employment-related activities which she believed caused or 

contributed to her condition. Appellant was informed of the medical and factual evidence 

needed and was afforded 30 days to respond. In another letter of that same date, OWCP 

requested additional factual information from the employing establishment.

In an October 18, 2016 narrative statement, appellant responded to OWCP’s

questionnaire and described her employment duties as a rural carrier. She noted that her duties 

required about five to six hours of driving per day and pulling about five to seven bundles per 

day. Appellant explained that she drove with her left arm and would have to reach to open mail 

boxes and to make sharp turns on the steering wheel. Her duties involved repeatedly pulling

bundles and packages from the back seat with her left arm while driving her route. Appellant 

reported that her chest pain began in May 2016 and continued to worsen, causing her to seek 

medical treatment. She noted that testing revealed normal cardiac findings and physical therapy 

treatment revealed that her ribs on the left side had rotated out. Appellant further noted no prior 

injury to this area of her chest.

Physical therapy progress notes dated August 11 and October 14, 2016 were submitted in 

support of appellant’s claim.

In an October 6, 2016 report, Dr. David A. Minnick, Board-certified in family medicine, 

reported that appellant was a patient with musculoskeletal chest pain secondary to her job duties. 

He noted that appellant was a rural mail carrier who sat on the right side of a left driver-sided 

car. Appellant performed repetitive twisting, reaching, and stretching which caused left rib 

discomfort and thoracic spine dysfunction. Dr. Minnick recommended job modification, 

physical therapy, and anti-inflammatories, noting no further repetitive twisting and reaching 

behind. 

By decision dated December 15, 2016, OWCP denied appellant’s claim finding that the 

medical evidence of record failed to provide a firm medical diagnosis which could be reasonably 

attributed to the accepted federal employment factors. It noted that the medical evidence 

submitted contained a diagnosis of “pain” which is a symptom and not a diagnosed medical 

condition. 

On January 10, 2017 appellant requested reconsideration. No evidence was submitted 

with her reconsideration request.

By decision dated February 16, 2017, OWCP denied appellant’s request for 

reconsideration finding that she neither raised substantive legal questions nor included relevant 

and pertinent new evidence. It specifically noted that no medical evidence was received. 
4

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 filed within the applicable 

time limitation, that an injury was sustained while in the performance of duty as alleged, and that 

any disability or specific condition for which compensation is claimed are causally related to the 

employment injury.3 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4

In order to determine whether an employee actually sustained an 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 which must be considered in 

conjunction with one another. The first component to be established is whether the employee 

actually experienced the employment incident which is alleged to have occurred.5 The second 

component is whether the employment incident caused a personal injury and generally can be 

established only by medical evidence.

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee must submit: (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

To establish a causal relationship between the condition, as well as any attendant 

disability claimed and the employment event or incident, the employee must submit rationalized 

medical opinion evidence based on a complete factual and medical background, supporting such 

a causal relationship.7 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 nature of the relationship between the diagnosed 

condition and the specific employment factors identified by the claimant. This medical opinion 

must include an accurate history of the employee’s employment injury and must explain how the 

condition is related to the injury. The weight of medical evidence is determined by its reliability, 

its probative value, its convincing quality, the care of analysis manifested, and the medical 

rationale expressed in support of the physician’s opinion.8

 

3 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4 Michael E. Smith, 50 ECAB 313 (1999).

5 Elaine Pendleton, supra note 3.

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

8

James Mack, 43 ECAB 321 (1991).
5

ANALYSIS -- ISSUE 1

OWCP accepted that appellant engaged in repetitive activities of reaching, twisting, and 

pulling in her employment duties as a rural carrier. The issue, therefore, is whether she 

submitted sufficient medical evidence to establish that the employment factor caused her to 

sustain an injury. The Board finds that the medical evidence of record is insufficient to establish 

a diagnosed medical condition causally related to factors of her federal employment as a rural 

carrier.9 

In support of her claim, appellant submitted a July 5, 2016 medical report from

Dr. Nelson who diagnosed chest tightness, chest wall pain left side of the sternum around the 

fourth and fifth rib. The Board notes that Dr. Nelson failed to establish a firm medical diagnosis 

and offered no opinion as to the cause of these symptoms. A claimant has the burden of proof to 

establish by the weight of the medical evidence a firm diagnosis of the condition claimed and a 

causal relationship between that condition and factors of federal employment.10 The Board has 

long held that pain is a symptom, not a compensable medical diagnosis.11 To establish personal 

injury the medical evidence of record must document a diagnosed condition and must explain 

how that condition is causally related to the accepted factors of employment.12 Lacking a firm 

diagnosis and rationalized medical opinion regarding causal relationship, Dr. Nelson’s report is 

of limited probative value. 

Dr. Friesen’s August 2, 2016 report also fails to establish a firm medical diagnosis as the 

physician reported normal cardiogenic findings and musculoskeletal-type pain. As previously 

noted, pain is a symptom and not a compensable medical diagnosis.13 As such, the reports of

Dr. Nelson and Dr. Friesen are insufficient to support appellant’s claim as neither of the 

physicians diagnosed a medical condition causally related to factors of her federal employment.14

Dr. Minnick’s October 6, 2016 report is also insufficient to establish appellant’s

occupational disease claim. He did not describe, explain, or diagnose a medical condition, 

noting only musculoskeletal chest pain secondary to her job duties. Moreover, while

Dr. Minnick had some understanding of appellant’s employment duties as a rural carrier which 

he opined caused her injury, he failed to describe the tasks and the frequency and duration of 

each task to which appellant attributes to her injury.15 His statement on causation failed to 

provide a sufficient explanation as to the mechanism of injury pertaining to this occupational 

 

9

See Robert Broome, 55 ECAB 339 (2004).

10 See Roy L. Humphrey, supra note 6; see Naomi A. Lilly, 10 ECAB 560, 574 (1959).

11 Supra note 9.

12 George A. Davis, Docket No. 95-1684 (issued April 3, 1997).

13 See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued 

October 10, 2008) (regarding pain); J.S., Docket No. 07-881 (issued August 1, 2007) (regarding spasm).

14 R.S., Docket No. 15-1364 (issued February 22, 2016).

15 See O.M., Docket No. 15-1723 (issued November 5, 2015). 
6

disease claim as alleged by appellant, namely, how repetitive twisting, reaching, and stretching 

would cause or aggravate a chest injury.

16

 Without explaining how, physiologically, the 

movements involved in appellant’s employment duties caused or contributed to a diagnosed 

condition, his opinion is equivocal in nature and of limited probative value.17 

The remaining medical evidence of record is also insufficient to establish appellant’s 

occupational disease claim. Dr. Lake’s July 14, 2016 diagnostic report interpreted imaging 

studies related to the chest, but provided no opinion on the cause of appellant’s injury.

18

 

The physical therapy reports documenting treatment for her chest are also insufficient to 

establish her claim. Registered nurses, physical therapists, and physician assistants are not 

considered physicians as defined under FECA, their opinions are of no probative value.19 

An award of compensation may not be based on surmise, conjecture, or speculation.20 To 

establish a firm medical diagnosis and causal relationship, appellant must submit a physician’s 

report in which the physician reviews those factors of employment alleged to have caused her 

condition and, taking these factors into consideration, as well as findings upon examination and 

appellant’s medical history, explain how these employment factors caused or aggravated any 

diagnosed condition, and present medical rationale in support of his opinion.21 Appellant’s 

recitation of the facts does not support her allegation that her employment factors as a rural 

carrier caused her injury.22 As there is no probative, rationalized medical evidence containing a 

medical diagnosis explaining how a diagnosed condition was causally related to the accepted 

employment duties, she has not established that an injury occurred as alleged.23 

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. 

§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

 

16 S.W., Docket 08-2538 (issued May 21, 2009).

17 See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014); 

K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).

18 J.P., Docket No. 14-87 (issued March 14, 2014).

19 5 U.S.C. § 8102(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 also Roy L. Humphrey, supra note 6. A physical therapist is not considered a physician as 

defined by FECA. See E.R., Docket No. 16-1634 (issued May 25, 2017). 

20 D.D., 57 ECAB 734 (2006).

21 Supra note 6.

22 Paul Foster, 56 ECAB 1943 (2004); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

23 Tracey P. Spillane, 54 ECAB 608 (2003); 5 U.S.C. § 8101(5).
7

LEGAL PRECEDENT -- ISSUE 2

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

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.24 Section 10.608(b) of OWCP regulations 

provide that when an application for reconsideration does not meet at least one of the three 

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.25

ANALYSIS -- ISSUE 2

The Board finds that the refusal of OWCP to reopen appellant’s case for further 

consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an 

abuse of discretion.

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. 

In her application for reconsideration, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law, and she did not advance a new and relevant legal argument

not previously considered. Consequently, appellant is not entitled to review of the merits of her 

claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

The Board notes that the underlying issue in this case was whether appellant sustained an 

injury causally related to her accepted federal employment factors as a rural carrier. That is a 

medical issue which must be addressed by relevant medical evidence not previously 

considered.

26

 Appellant failed to submit any evidence with her reconsideration request. A 

claimant may obtain a merit review of an OWCP decision by submitting relevant and pertinent 

new evidence not previously considered. In this case, appellant failed to submit any relevant and 

pertinent new evidence addressing a firm medical diagnosis involving a chest injury and causal 

relationship in support of her claim.27

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review.

 

24 D.K., 59 ECAB 141 (2007).

25 K.H., 59 ECAB 495 (2008). 

26 See Bobbie F. Cowart, 55 ECAB 746 (2004).

27 M.H., Docket No. 13-2051 (issued February 21, 2014).
8

CONCLUSION

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

causally related to factors of her federal employment. The Board also finds that OWCP properly 

denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. 

§ 8128(a).

ORDER

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

decisions dated February 16, 2017 and December 15, 2016 are affirmed.

Issued: October 12, 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