United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Milwaukee, WI, Employer

__________________________________________

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Docket No. 16-0908

Issued: October 26, 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 13, 2015 appellant filed a timely appeal from an April 20, 2015 merit 

decision and a July 15, 2015 nonmerit decision of the Office of Workers’ Compensation

Programs (OWCP).1 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.3

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(f). One hundred eighty days from April 20, 2015, the date of OWCP’s last merit decision, was 

October 17, 2015. Since using October 21, 2015, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is October 13, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2

5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence after OWCP rendered its July 15, 2015 decision. 

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

Therefore, the Board is precluded from considering this new evidence for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). 
2

ISSUES

The issues are: (1) whether appellant met his burden of proof to establish that he 

sustained an injury in the performance of duty, as alleged; and (2) whether OWCP properly 

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

FACTUAL HISTORY

On November 6, 2014 appellant, then a 45-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on November 3, 2014 he sustained neck, back, and left shoulder 

injuries when he was repetitively bending forward and reaching at a 45 degree angle. He

reported that he was unable to use appropriate equipment while working which resulted in 

continually bending his lower back, causing neck strain, back strain, and muscle strain with 

associated herniated disc in the lower back. On the reverse side of the form, appellant’s

supervisor disagreed with the facts surrounding the claimed incident and reported that the injury 

appeared to be preexisting and occupational. Appellant did not stop work.

By letter dated November 25, 2014, OWCP notified appellant that the evidence of record 

was insufficient to support his claim. Appellant was advised of the medical and factual evidence 

needed and was asked to respond to the provided questionnaire. The questionnaire requested 

him to specify whether he was claiming an occupational disease or traumatic injury based on the 

definitions provided. Appellant was afforded 30 days to submit the requested evidence. He did 

not respond and no other evidence was received.

By decision dated December 30, 2014, OWCP denied appellant’s claim, finding that he

had not established fact of injury as he had not established that a medical condition was 

diagnosed in connection with the claimed event and/or work factors.

On January 21, 2015 appellant requested reconsideration of OWCP’s decision. In an 

accompanying narrative statement, he reported that he had prior workers’ compensation claims 

regarding his neck (OWCP File No. xxxxxx968) and back (OWCP File No. xxxxxx678) for 

injuries, which occurred while working as a letter carrier.4 Appellant reported that he had been 

provided reasonable accommodation for his back conditions since 2001. In 2007, he was 

provided a special vehicle with built in trays and a special cart to use during his mail delivery. 

When appellant’s vehicle was taken away for 10 days without appropriate accommodation, he 

sustained the back injury alleged in this claim. Appellant reported that he was claiming a 

traumatic injury of thoracic back strain caused from not being able to use his postal vehicle. 

In a January 13, 2015 narrative statement, appellant reported that the injury to his back 

occurred when he was delivering mail. He explained that, after he filed a lawsuit, the employing 

establishment provided him with a special vehicle equipped with trays so that he would not have 

to bend further than a 45 degree angle. Appellant did not have use of the vehicle on the dates in 

question because it was sent for repairs. He explained that when he delivered mail with a 

standard vehicle he had to reach and lean forward to retrieve mail trays and parcels 50 to 100 

times a day. Appellant noted that the injury felt like a pulling sensation at his lower back and by 

 

4 The Board notes that the record contains no other information pertaining to appellant’s prior claims.
3

the 10th day it caused him discomfort. He experienced spasms between his shoulder blade which 

started to affect his preexisting neck and back injuries. Appellant reported no similar injuries 

involving the thoracic spine and explained that his prior injuries involved a herniated and bulging 

disc.

In a December 22, 2014 medical report, Dr. Lawrence J. Maciolek, a Board-certified 

orthopedic surgeon, reported that appellant was seen for a new work-related injury, which 

occurred on November 3, 2014 due to events which transpired a week prior. He related that 

appellant had previously been granted a modified mail truck as an accommodation, but his 

modified truck was out of service, undergoing repair. Therefore, appellant was relegated to 

using a standard issue mail truck, which required him to bend over 50 to 60 times per day at a 45 

degree angle. He reported straining the interscapular region of his thoracic spine. Dr. Maciolek 

provided findings on physical examination and review of diagnostic testing. An x-ray of the 

cervical spine revealed straightening of the cervical lordosis and degenerative disc space 

narrowing particularly at C5-6 and C6-7. Thoracic films demonstrated appropriate alignment 

with mild diffuse degenerative spondylosis. Lumbar films demonstrated appropriate alignment 

with slight disc space narrowing at L5-S1. Dr. Maciolek reported that appellant sustained a 

thoracic strain that was caused by the repetitive nature of bending over into the mail truck at the 

end of October 2014. He noted lingering symptoms and recommended physical therapy and 

work restrictions.

By decision dated April 20, 2015, OWCP found that the evidence submitted was 

sufficient to modify the December 30, 2014 decision in that appellant had established a 

diagnosed condition of thoracic sprain. However, it denied the claim as appellant had not 

established causal relationship. OWCP noted that Dr. Maciolek’s opinion was of diminished 

probative value because the factual background he provided, that appellant’s thoracic strain was 

a result of repetitive bending at the end of October 2014, was inconsistent with appellant’s

allegations regarding the factual circumstances of the case.

On June 15, 2015 appellant requested reconsideration of the April 20, 2015 OWCP 

decision. In an accompanying narrative statement, he explained the differences in the modified 

vehicle that accommodated his injury and the regular postal vehicle he was forced to use. 

Appellant provided pictures of the vehicles and explained the different motions that resulted 

from the use of each vehicle and why the regular vehicle caused his injury. He further stated that

Dr. Maciolek properly diagnosed his condition as thoracic strain and provided an opinion 

regarding the cause of his condition.

By decision dated July 15, 2015, OWCP denied appellant’s request for reconsideration of 

the merits of his claim, finding that it neither raised substantive legal questions nor included new 

and relevant evidence.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA5has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an “employee of 

 

5

Supra note 2.
4

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 is causally related to the 

employment injury.6 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.7

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 that the employee 

actually experienced the employment incident which is alleged to have occurred.8 The second 

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

be established by medical evidence. 

To establish causal relationship between the claimed condition, or any attendant disability 

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

opinion evidence supporting such causal relationship.9The 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.10

ANALYSIS -- ISSUE 1

In this case, appellant filed a traumatic injury claim (Form CA-1) alleging that he 

sustained a thoracic back strain on November 3, 2014 as a result of repetitive bending. The 

April 20, 2015 OWCP decision found an inconsistent factual background pertaining to his claim 

for a traumatic injury and his physician’s opinion regarding the occupational cause of his 

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

Appellant alleged a traumatic injury on November 3, 2014 as a result of his federal 

employment duties. In his January 13, 2015 narrative statement, however, he explained that 

during 10 days without his personal employment vehicle, he sustained a back injury. Appellant

further noted that the injury felt like a pulling sensation at his lower back and by the 10th day it 

 

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

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

8 Elaine Pendleton, supra note 6.

9

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

10 James Mack, 43 ECAB 321 (1991).
5

was causing him discomfort. Therefore, it is unclear whether appellant is alleging an 

occupational disease produced by his work environment over a period longer than a single 

workday or shift, or a traumatic injury from a single occurrence within a single workday or

shift.

11 The only medical evidence received was a December 22, 2014 medical report from

Dr. Maciolek. Dr. Maciolek reported that appellant returned with a new work-related injury, 

which occurred on November 3, 2014 due to events having transpired a week prior. He reported 

that appellant sustained a thoracic strain that was caused by the repetitive nature of bending over 

into the mail truck at the end of October 2014. 

Under FECA, although it is the employee’s burden of proof to establish his or her claim, 

OWCP also has a responsibility in the development of the factual evidence.12 It is the duty of the 

claims examiner to develop a claim based on the facts at hand and not solely on the basis of the 

type of claim form filed.13 The Federal Procedure (FECA) Manual provides that if the actual 

benefits claimed by the claimant cannot be determined from review of the form, OWCP should 

develop the claim based upon the claim form filed and direct questions to the claimant to 

determine the type of benefits claimed. Based upon the response to the development letter, 

OWCP should make a determination as to whether the correct claim was established and, if not, 

it should convert the claim to the proper type of claim, and notify the claimant and employing 

establishment (and any representative, if applicable) of the conversion.14 

In this instance, OWCP did not discharge its burden to make findings as to whether 

appellant sustained a traumatic injury or an occupational disease. Therefore, the case should be 

remanded for further findings regarding whether appellant sustained a traumatic injury or an 

occupational disease in the performance of duty.

15 Following this and any other further 

development deemed necessary, OWCP shall issue a de novo decision on appellant’s claim.16

CONCLUSION

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

 

11 A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or 

incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition 

produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).

12 Willie A. Dean, 40 ECAB 1208, 1212 (1989); Willie James Clark, 39 ECAB 1311, 1318-19 (1988).

13 Id. 

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.3(c)(2)(b) 

(June 2011). C.f. S.N., Docket No. 12-1814 (issued March 11, 2013).

15 Colleen A. Murphy, Docket No. 01-1319 (issued November 6, 2002).

16 Given the disposition of the first issue as this case is not in posture for decision, the second nonmerit issue is 

moot.
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ORDER

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

decisions dated July 15 and April 20, 2015 are set aside and the case is remanded for further 

proceedings consistent with this opinion. 

Issued: October 26, 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