United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.O., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

St. Paul, MN, Employer

__________________________________________

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Docket No. 18-0086

Issued: March 28, 2018

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, 2017 appellant filed a timely appeal from a June 21, 2017 merit decision 

and a September 12, 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.

ISSUES

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

condition causally related to the accepted April 26, 2017 employment incident; and (2) whether 

OWCP properly denied appellant’s request for a review of the written record pursuant to 5 U.S.C. 

§ 8124 as untimely filed. 

 

1 5 U.S.C. § 8101 et seq.
2

On appeal, appellant contends that her back condition was causally related to the accepted 

employment incident.2

FACTUAL HISTORY

On April 27, 2017 appellant, then a 50-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging on April 26, 2017 she injured her lower back and experienced pain radiating 

down her left leg while lifting mail tubs into a truck. She stopped work on April 27, 2017 and has 

not returned. 

In support of her claim, appellant submitted April 27 and May 8, 2017 reports wherein 

Annette Lerew-Zimanski, a physician assistant, indicated that appellant had acute left-sided low 

back pain without sciatica caused by lifting tubs of mail on April 27, 2017. In a May 5, 2017 

report, Timothy Pampusch, a physician assistant, diagnosed low back pain. 

On May 11, 2017 appellant underwent a magnetic resonance imaging (MRI) scan of her 

lumbar spine. Dr. Peter Busselberg, a Board-certified neuroradiologist, found multilevel 

degenerative changes. 

By development letter dated May 18, 2017, OWCP informed appellant that additional 

medical evidence was necessary to establish her claim. It afforded her 30 days to submit the 

necessary information. 

In a May 15, 2017 report, Dr. Paul Hartleben, a Board-certified orthopedic surgeon, related 

appellant’s diagnoses as acute left leg L5 radiculopathy, secondary to work-related injury 

occurring on March 28, 2017 causing a substantial aggravation of L4-5 degenerative-type 

spondylolisthesis and severe subarticular impingement of the L5 nerve root and bilateral hip 

osteoarthritis with minor symptoms, left worse than right. He provided a history of injury that she

was injured at work on March 26, 2017 when she was lifting and moving totes to the shelves, and 

that on April 26, 2017 she had a recurrence of back and leg symptoms and left buttock pain 

radiating down the calf and dorsum of the foot with numbness and tingling. Dr. Hartleben also 

noted that appellant’s past history of bilateral hip arthritis. He indicated that she was planning to 

undergo a right total hip replacement. Dr. Hartleben noted that appellant was in significant 

distress, and that he recommended taking her off work for a period of temporary total disability 

while she continued to pursue physical therapy as well as epidural injections. In a May 31, 2017 

report, he noted persistent left L5 radiculopathy secondary to L4-5 disc disease and subarticular 

stenosis substantially aggravated or induced by a work-related event occurring at the end of 

April 2017. Dr. Hartleben noted that appellant’s activity tolerance did not allow even light work. 

By decision dated June 21, 2017, OWCP denied appellant’s claim, as it determined that 

the medical evidence of record did not establish that her claimed medical condition was causally 

related to the accepted April 26, 2017 employment incident. 

 

2 Appellant submitted new evidence with her appeal. The Board’s jurisdiction is limited to the evidence that was 

before OWCP at the time of its final decision. Therefore, the Board is precluded from considering this evidence for

the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005). 
3

By appeal request form with a certified mail tracking slip dated August 19, 2017, and 

received by OWCP on August 23, 2017, appellant requested a review of the written record by an 

OWCP hearing representative. 

By decision dated September 12, 2017, an OWCP hearing representative denied 

appellant’s request for a review of the written record. She noted that the request for a review of 

the written record was postmarked August 19, 2017, more than 30 days after the June 21, 2017 

merit decision. Thus, she was not entitled to review of the written record as a matter of right,

OWCP’s hearing representative exercised her discretion to review appellant’s request, but

determined that the issue could be equally well addressed by requesting reconsideration from 

OWCP and submitting evidence not previously considered. 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA3 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 timely filed within the applicable 

time limitation of FECA, that an injury was caused 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.4 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5

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

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

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

employment incident caused a personal injury.7

The opinion of the physician must be based on a complete factual and medical background 

of the employee, 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 employee.8 The weight of the 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.9

 

3

Id.

4

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5 Victor J. Woodhams, 41 ECAB 345 (1989).

6

John J. Carlone, 41 ECAB 354 (1989).

7

Id. 

8

I.J., 59 ECAB 408 (2008); supra note 5.

9

James Mack, 43 ECAB 321 (1991). 
4

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish a back condition 

causally related to the accepted April 26, 2017 employment incident.

In support of her claim, appellant submitted medical reports by Dr. Hartleben, who opined 

that her left L5 radiculopathy secondary to L4-5 disc disease and subarticular stenosis were 

substantially aggravated or induced by a work-related event occurring the end of April 2017. He 

also however noted a prior March 28, 2017 injury. Although Dr. Hartleben’s opinion is generally 

supportive of causal relationship, he did not provide sufficient rationale explaining the basis of his 

conclusion that there was a causal relationship between appellant’s diagnosed medical conditions 

and her accepted employment incident of April 26, 2017. He did not explain how lifting the tubs 

of mail on April 26, 2017 caused her diagnosed medical conditions. This is especially important 

as Dr. Hartleben had noted that appellant had a prior injury in March 2017 causing these similar 

conditions.10 He failed to provide sufficient medical reasoning, or rationale, explaining how the 

April 26, 2017 employment incident caused or aggravated a particular diagnosed condition. A 

mere conclusion without necessary rationale explaining why the physician believes that a 

claimant’s accepted employment incident resulted in the diagnosed condition is not sufficient.11 

Thus, Dr. Hartleben’s reports are insufficient to establish causal relationship.

The remaining evidence is also insufficient to establish causal relationship. Dr. Busselberg 

found that appellant’s MRI scan revealed multilevel degenerative changes, but provided no 

opinion regarding causal relationship. Diagnostic studies are of limited probative value as they do 

not address whether her federal employment caused the diagnosed conditions.12 As such, his 

opinion is insufficient to establish causal relationship. 

OWCP also received reports from two physician assistants. These reports are insufficient 

to establish the claim as physician assistants are not considered physicians under FECA and, thus,

their reports have no probative value.13 

Appellant’s belief that the April 26, 2017 employment incident caused a medical condition, 

however sincerely held, does not constitute medical evidence sufficient to establish causal 

relationship.14 

 

10 See A.C., Docket No. 16-0452 (issued October 27, 2017).

11 S.K., Docket No. 15-0384 (issued May 7, 2015). 

12 See M.M., Docket No. 17-1641 (issued February 15, 2018).

13 A medical report may not be considered as probative medical evidence if there is no indication that the person 

completing the report qualifies as physician as defined in 5 U.S.C. § 8101(2). Section 8101(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 Merton J. Sills, 39 ECAB 572, 

575(1988). Healthcare providers such as licensed clinical social workers, nurses, acupuncturists, physician assistants, 

and physical therapists are not considered physicians under FECA and their reports and opinions do not constitute 

competent medical evidence to establish a medical condition, disability, or causal relationship. See D.F., Docket No. 

17-0135 (issued June 5, 2017).

14 See V.D., Docket No. 17-1463 (issued December 19, 2017).
5

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 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an 

OWCP hearing representative, provides: Before review under section 8128(a) of this title, a 

claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of 

this section is entitled, on request made within 30 days after the date of the issuance of the decision, 

to a hearing on his or her claim before a representative of the Secretary.15 A hearing is a review

of an adverse decision by OWCP’s hearing representative. Initially, the claimant can choose 

between two formats: an oral hearing or a review of the written record. In addition to the evidence 

of record, the claimant may submit new evidence to the hearing representative.16 A request for 

either an oral hearing or a review of the written record must be sent, in writing, within 30 days of 

the date of the decision for which the hearing is sought.17 A claimant is not entitled to a hearing 

or a review of the written record if the request is not made within 30 days of the date of the 

decision.18

If the request is not made within 30 days, a claimant is not entitled to a review of the written 

record as a matter of right. However, the Branch of Hearings and Review may exercise its 

discretion to either grant or deny the request.

19

ANALYSIS -- ISSUE 2

Appellant’s request for a review of the written record was sent on August 17, 2017, as 

noted on the certified mail tracking slip. OWCP’s regulations provide that [t]he hearing request 

must be sent within 30 days of the date of the decision for which a hearing is sought. Because 

appellant’s request is postmarked on the tracking slip dated August 17, 2017, more than 30 days 

after OWCP’s last merit decision, it was untimely filed and appellant was not entitled to a review 

of the written record as a matter of right. OWCP exercised its discretion and reviewed appellant’s 

request, but denied it, finding that the issue could be equally well addressed by requesting 

reconsideration before OWCP. The Board thus finds that OWCP properly denied appellant’s 

request for a review of the written record.

20

 

15 5 U.S.C. § 8124(b)(1).

16 20 C.F.R. § 10.615.

17 James Smith, 53 ECAB 188 (2001); id. at § 10.616(a).

18 K.S., Docket No. 17-1814 (issued February 13, 2018).

19 5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467 472-73 (2006); Herbert C. Holley, 33

ECAB 140 (1981). 

20 Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest 

error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable 

deductions from known facts. See Andre Thyraton, 54 ECAB 257, 261 (2002). 
6

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish a back condition 

causally related to the accepted April 26, 2017 employment incident. The Board further finds that 

OWCP properly denied appellant’s request for a review of the written record pursuant to 5 U.S.C. 

§ 8124 as untimely filed. 

ORDER

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’

Compensation Programs dated September 12 and June 21, 2017 are affirmed.

Issued: March 28, 2018

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