United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Indianapolis, IN, Employer 

__________________________________________ 

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Docket No. 17-0424 

Issued: August 22, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 16, 2016 appellant, through counsel, filed a timely appeal from August 16, 

2016 merit and November 10, 2016 nonmerit decisions of the Office of Workers’ Compensation 

Programs (OWCP). 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. 

ISSUES 

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

injury in the performance of duty on August 31, 2015 as alleged; and (2) whether OWCP 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq.
2

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

5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On August 31, 2015 appellant, then a 55-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on March 13, 2015 his “right side gave out (leg and hand)” and 

he scraped his right knee and right side of his face. He stopped work on March 14, 2015 and 

returned on June 15, 2015.3

Appellant underwent a head computerized tomography (CT) scan by Dr. William I. 

Babchuk, a Board-certified diagnostic radiologist, who indicated in a March 13, 2015 report that 

the “patient fell.” He reported that the CT scan was negative. On an x-ray scan of appellant’s 

right knee, Dr. Babchuk noted a negative right knee study with no dislocation, fracture, or 

degenerative changes. 

Appellant provided examination and work status notes dated March 13 and 16, 2015 from 

a nurse practitioner, who related that appellant had a slip and fall on March 6, 2015 provided 

examination findings, and diagnosed neck strain. The nurse practitioner recommended that 

appellant return to work on March 18, 2015 with restrictions of no lifting or carrying more than 

20 pounds. 

By letter dated September 30, 2015, OWCP advised appellant that the evidence of record 

was insufficient to establish his claim. It requested that he respond to the attached questionnaire 

in order to substantiate that the March 13, 2015 incident occurred as alleged and provide medical 

evidence to establish a diagnosed condition causally related to the alleged incident. Appellant 

was afforded 30 days to submit this evidence. 

Dr. Khaled Hammoud, Board-certified in psychiatry and neurology, treated appellant and 

in reports dated April 24 to May 15, 2015, indicated that he last examined appellant for 

complaints of neck pain and right-sided weakness resulting from a fall in January 2015. He 

related that a magnetic resonance imaging (MRI) scan showed cervical myelopathy, a large disc 

herniation at the C4-5 level with compression of the spinal cord, and large disc bulges at C3-4 

and C4-5. Dr. Hammoud noted that appellant currently complained of worsening right-sided 

weakness and increased trouble walking. He reviewed appellant’s history and conducted an 

examination. Dr. Hammoud reported sensory examination of decreased palpation and light 

touch in right upper and lower extremities. He diagnosed cervical myelopathy evident on MRI 

scan of the cervical spine resulting in worsening right-sided weakness and severe cervicogenic 

headache. Dr. Hammoud recommended cervical decompression surgery. On May 28, 2015 

appellant underwent cervical surgery. 

 3

 Appellant has a previously accepted traumatic injury claim under OWCP File No. xxxxxx523 due to a 

January 10, 2015 employment injury. The case was accepted for head and right arm contusion. Appellant was 

currently receiving medical treatment and physical therapy for the accepted claim at the time of the alleged 

March 13, 2015 employment incident. He provided physical therapy treatment notes dated February 25 to 

March 13, 2015. 
3

Appellant underwent a cervical spine MRI scan by Dr. Steven Marchioni, a Boardcertified diagnostic radiologist, who noted in a June 10, 2015 report that appellant had anterior 

plate and screw fixation of C3 through C6. Dr. Marchioni reported no fragmentation of 

hardware, fracture, or bone destruction. He indicated that the scan showed satisfactory 

postoperative findings. 

In a July 8, 2015 cervical spine MRI scan, Dr. David R. Martin, a Board-certified 

diagnostic radiologist, related that he compared appellant’s scan to the June 10, 2015 scan and 

noted slight ventral subluxation of C6 on C7 and slight loss of height of the disc space at C6-7. 

He reported no prevertebral soft tissue swelling and no fracture. Dr. Martin diagnosed a grade 1 

degenerative subluxation of C6 ventral on C7. 

Dr. Hammoud continued to treat appellant and in an August 14, 2015 report related that 

appellant no longer had right-sided weakness or abnormal gait following cervical spine surgery. 

He reviewed appellant’s history and reported motor examination of 5/5 in the bilateral upper and 

lower extremities. Dr. Hammoud indicated that sensory examination showed decreased to 

palpation and light touch in the right upper and lower extremities and slightly reduced vibration 

sensation over the right side of the forehead. He diagnosed cervical myelopathy evident on MRI 

scan with complete resolution of right-sided weakness after cervical decompression surgery. 

In an August 19, 2015 cervical spine MRI scan, Dr. Martin reported that the height of the 

vertebral bodies, the alignment of the cervical spine, the mineralization, and the atlantoaxial 

relationship appeared normal. 

OWCP denied appellant’s claim by decision dated November 5, 2015 finding that the 

evidence of record was insufficient to establish that the March 13, 2015 incident occurred as 

alleged. It further determined that the medical evidence submitted was insufficient to establish a 

diagnosed condition causally related to the employment incident. 

On December 7, 2015 appellant requested a hearing before an OWCP hearing 

representative. 

Appellant provided a November 18, 2015 cervical spine MRI scan by Dr. Martin who 

noted “no adverse change” when compared to the August 19, 2015 MRI scan. 

In a December 1, 2015 report, Dr. Mario P. Brkaric, a Board-certified orthopedic 

surgeon, indicated that appellant was evaluated for a cervical spine problem. He noted that an xray scan showed good position of appellant’s cervical fusion surgery. Dr. Brkaric related that 

appellant was back to work full time. 

On July 11, 2016 a hearing was held. Appellant related that on March 13, 2015 he was 

delivering mail on a walking route when his leg suddenly gave out and he fell down, scraping his 

face and knee. He explained that he did not trip or slip on anything, but his knee just suddenly 

gave out causing him to fall on the right side of his body. Appellant noted that he currently had a 

claim for an accepted January 10, 2015 employment injury and explained that the January 10, 

2015 injury did not involve any problems with his right leg or right lower extremity. He 

described the medical treatment he had received, including the cervical and upper spine surgery 

in May 2015. Appellant asserted that his physicians, Dr. Hammoud and Dr. Brkaric, had 
4

attributed his neck condition to the fall. He further explained that he delayed filing a claim 

because the employing establishment was in the midst of changing postmasters. 

By decision dated August 16, 2016, an OWCP hearing representative affirmed the 

November 5, 2015 decision. He determined that the evidence of record was insufficient to 

establish that appellant sustained a work-related injury on March 13, 2015. The hearing 

representative noted that appellant had delayed filing his claim and had not submitted any 

evidence to factually corroborate that the March 13, 2015 incident occurred as alleged. 

On November 1, 2016 OWCP received appellant’s request, through counsel, for 

reconsideration in a letter dated October 31, 2016. He noted that he was submitting an 

October 23, 2016 medical note by Dr. Hammoud. Counsel asserted that OWCP should vacate its 

decision based on the new evidence. 

In a handwritten note dated October 23, 2016, Dr. Hammoud related that appellant 

reported slipping on ice and falling backwards in January 2015 and “sustaining another fall 

shortly afterwards.” He noted appellant’s complaints of right-sided weakness and neck pain. 

Dr. Hammoud reported examination findings of mild weakness in the right upper and lower 

extremities and leaning to the right side while ambulating. He indicated that a cervical spine 

MRI scan showed a large disc bulge from C3 through C5 and cord compression signal. 

Dr. Hammoud diagnosed cervical myelopathy. He signed a paragraph, which stated: “the facts 

of injury are the direct and proximate cause of the diagnosis that I cited above ... there may be 

other causes for this medical problem, but one of the causes is clearly the activities of work 

described.” 

By decision dated November 10, 2016, OWCP denied appellant’s November 1, 2016 

reconsideration request. It found that the new medical evidence was irrelevant or immaterial to 

the issue of fact of injury. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA4

 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,5 including that he or she is an “employee” within the meaning of FECA6 and that a 

claim was filed within the applicable time limitation.7

 An employee must also establish 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.8

 4 Supra note 2. 

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

6 See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercardo), 4 ECAB 357, 359 (1951). 

7 R.C., 59 ECAB 42 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954). 

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

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.9 

There are two components involved in establishing fact of injury. First, the employee must 

submit sufficient evidence to establish that he or she actually experienced the employment 

incident at the time, place, and in the manner alleged.10 Second, the employee must submit 

evidence, generally only in the form of probative medical evidence, to establish that the 

employment incident caused a personal injury.11

The employee has the burden of proof to establish the occurrence of an injury at the time, 

place, and in the manner alleged, by a preponderance of the reliable, probative, and substantial 

evidence. An injury does not have to be confirmed by eyewitnesses in order to establish the fact 

that an employee sustained an injury in the performance of duty, as alleged, but the employee’s 

statements must be consistent with the surrounding facts and circumstances and his or her 

subsequent course of action.12 An employee has not met his or her burden of proof establishing 

the occurrence of an injury when there are such inconsistencies in the evidence as to cast serious 

doubt upon the validity of the claim. Such circumstances as late notification of injury, lack of 

confirmation of injury, continuing to work without apparent difficulty following the alleged 

injury, and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient 

doubt on an employee’s statement in determining whether a prima facie case has been 

established. An employee’s statement alleging that an injury occurred at a given time and in a 

given manner is of great probative value and will stand unless refuted by strong or persuasive 

evidence.13

ANALYSIS -- ISSUE 1 

Appellant alleged that on March 13, 2015 he injured his neck and scraped the right side 

of his body when he fell down while delivering mail at work. OWCP denied his claim, finding 

that the evidence of record was insufficient to establish that the March 13, 2015 incident 

occurred as alleged. OWCP further found that the evidence of record failed to establish a 

diagnosed condition causally related to the alleged incident. The Board finds that appellant has 

failed to meet his burden of proof to establish that he sustained a traumatic injury on 

March 13, 2015. 

In his Form CA-1, appellant reported that his “(right) side gave out (leg and hand)” and 

he scraped his right knee and right side of his face. During the July 11, 2016 hearing, he further 

testified that he did not trip or slip while delivering mail on his walking route, but his knee 

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

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

11 David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989). 

12 Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued 

March 9, 1995). 

13 D.B., 58 ECAB 529 (2007). 
6

suddenly gave out, causing him to fall down on his right knee and scrape the right side of his 

face. 

The Board finds that there is no detailed account of the alleged injury sufficient to 

establish that the incident occurred in the manner alleged.14 In its September 30, 2015 

development letter, OWCP advised appellant of the deficiencies of his claim and requested 

additional evidence to establish a traumatic injury on March 13, 2015. It specifically requested 

that appellant respond to a questionnaire in order to establish the factual element of his claim. 

Appellant did not respond to the questionnaire, nor did he provide any supplemental statement or 

detailed information surrounding the alleged March 13, 2015 incident. The Board finds that 

appellant’s vague description does not provide adequate detail to establish that the March 13, 

2015 employment incident occurred as alleged and caused a work-related injury.15 

The Board further finds that the contemporaneous medical evidence of record fails to 

establish fact of injury. Appellant submitted examination notes and work status notes dated 

March 13 and 16, 2015 with illegible signatures, which indicated that appellant had a “slip and 

fall” and noted a date of injury of March 6, 2015. The Board notes that these medical reports 

provide a different history of injury that appellant’s right side suddenly gave out on 

March 13, 2015.16 

Dr. Hammoud further noted in various reports that appellant began to experience 

symptoms after a fall in January 2015. As these reports attributed appellant’s symptoms to a 

January 2015 fall, and not the alleged March 13, 2015 employment incident, they are insufficient 

to establish fact of injury. Dr. Hammoud’s report failed to provide a sufficient explanation as to 

the mechanism of injury pertaining to this traumatic injury claim, namely, how walking would 

have caused appellant’s leg to give out resulting in an injury.17 He provided no specific details 

describing the incident of March 13, 2015, which could have caused appellant’s alleged injury. 

 14 See S.R., Docket No. 15-1274 (issued August 25, 2015); M.B., Docket No. 11-1785 (issued February 15, 2012); 

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997). 

15 See Paul Foster, 56 ECAB 1943 (2004); Betty J. Smith, 54 ECAB 174 (2002); 5 U.S.C. § 8101(5). 

16 James Mack, 43 ECAB 321 (1991). 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. 

17 L.S., Docket No. 16-0036 (issued May 23, 2016). See also L.R., Docket No. 16-736 (September 2, 2016) 

wherein the Board found that appellant’s treating physician had described the mechanism of injury due to walking. 

He explained that hard surfaces impact forces to the medial and lateral joint compartments to the knee that incites 

the inflammatory response, and results in synovitis of the knee. This resulting synovitis is the basis of the 

inflammatory response and it produced microscopic cartilaginous wear debris; thinning of the medial and lateral 

compartment articular cartilage. This cartilaginous wear debris produces the stimulus to the inflammatory response 

that, while metabolizing the debris also damages the cartilage of the femoral condyles, producing the current 

fragmentation and fissuring of the patellar cartilage damage. 
7

The various CT and MRI scan reports and Dr. Brkaric’s reports are also insufficient to 

establish fact of injury as none of the medical reports mention or provide any description of the 

alleged March 13, 2015 employment incident.18

Neither appellant, nor any of the medical providers who treated him, provided a 

consistent, detailed history of injury describing the time, place, and manner in which the alleged 

March 13, 2015 injury occurred.19 Accordingly, the evidence of record is insufficient to 

establish that the incident occurred as alleged. 

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. §§ 10.606 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.20 OWCP regulations provide that it may review 

an award for or against compensation at any time on its own motion or upon application. The 

employee shall exercise his right through a request to the district office.21 

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.22 

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.23 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.24 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.25

 18 See T.C., Docket No. 17-353 (issued March 22, 2017). 

19 Supra note 13. 

20 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 

372 (2008). 

21 20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730 

(issued March 16, 2009). 

22 20 C.F.R. § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008). 

23 20 C.F.R. § 10.607(a). 

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

25 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 
8

ANALYSIS -- ISSUE 2 

By decisions dated November 5, 2015 and August 16, 2016, OWCP denied appellant’s 

traumatic injury claim, finding that the evidence of record did not establish fact of injury. On 

November 1, 2016 it received appellant’s request for reconsideration. OWCP denied further 

merit review in a decision dated November 10, 2016, finding that the evidence submitted on 

reconsideration neither raised a substantive legal question, nor constituted relevant and pertinent 

new evidence sufficient to warrant merit review. 

The Board finds that appellant did not submit any evidence along with his request for 

reconsideration to show that OWCP erroneously applied or interpreted a specific point of law. 

Along with his reconsideration request, appellant submitted an October 23, 2015 report 

by Dr. Hammoud who related that appellant had two falls, provided physical examination 

findings, and offered an affirmative opinion on causal relationship. This medical report, 

however, is not relevant and pertinent to the issue in this case and is insufficient to require 

OWCP to reopen his claim for consideration of the merits.26 Because Dr. Hammoud failed to 

address the specific issue of describing the time, place, and manner in which the alleged 

March 13, 2015 injury occurred, his report is irrelevant and does not constitute a basis for 

reopening a case.27

The Board further finds that appellant did not submit any evidence along with his request 

for reconsideration to show that OWCP erroneously applied or interpreted a specific point of 

law, or advance a relevant legal argument not previously considered by OWCP. Because 

appellant did not meet any of the necessary requirements under 20 C.F.R. § 10.606(b)(3), he is 

not entitled to further merit review. Therefore, OWCP properly denied his request for 

reconsideration of the merits of his claim under 5 U.S.C. § 8128. 

CONCLUSION 

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

injury in the performance of duty on March 13, 2015 as alleged. 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). 

 26 See James W. Scott, 55 ECAB 606 (2004). 

27 See Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 
9

ORDER 

IT IS HEREBY ORDERED THAT the November 10 and August 16, 2016 decisions of 

the Office of Workers’ Compensation Programs are affirmed. 

Issued: August 22, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board