United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Buffalo, NY, Employer

__________________________________________

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Docket No. 18-0726

Issued: November 5, 2018

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 February 20, 2018 appellant filed a timely appeal from an October 5, 2017 merit 

decision and a January 16, 2018 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 his burden of proof to establish a lumbar 

condition causally related to the accepted factors of his federal employment; 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

FACTUAL HISTORY

On June 26, 2017 appellant, then a 59-year-old letter carrier, filed a recurrence claim (Form 

CA-2a) alleging that he sustained a recurrence of disability beginning June 16, 2017 under OWCP 

File No. xxxxxx601.2 He reported that following his original injury, he returned to work in 

October 2011 and required no further treatment. Appellant indicated that his accepted condition 

gradually returned following his return to work due to his work duties of sitting, twisting, standing, 

walking, and lifting all day. 

On July 7, 2017 OWCP advised appellant that since he described a new injury, his claim 

would be processed as an occupational disease claim under OWCP File No. xxxxxx710. 

In a June 26, 2017 medical note, Dr. Andrew Cappuccino, a Board-certified orthopedic 

surgeon, reported that appellant was unable to work due to a spine condition. 

By development letter dated August 15, 2017, OWCP informed appellant that on June 26, 

2017 he had filed a notice of recurrence which was administratively amended into a new 

occupational disease claim based on his statement indicating that his medical condition gradually 

occurred due to sitting, twisting, and lifting all day. It informed him that the evidence of record 

was insufficient to establish his claim. OWCP advised appellant of the medical and factual 

evidence necessary and provided a questionnaire for completion. In another letter of that same 

date, it requested the employing establishment provide additional information pertaining to his

occupational disease claim. OWCP afforded 30 days for submission of additional evidence.

On August 22, 2017 appellant responded to OWCP’s questionnaire. He described the 

employment-related activities he believed contributed to his condition which included bending, 

lifting, and twisting when casing mail for two hours per day, and twisting 180 degrees when 

delivering mail for six hours per day. Appellant reported that he performed these repetitive 

activities for eight hours per day, five days per week. 

Appellant also submitted a June 26, 2017 medical report from Dr. Cappuccino in support 

of his claim. Dr. Cappuccino reported that appellant was evaluated for injuries sustained while 

working for the employing establishment in 2010. Appellant was doing well and had returned to 

work when, on June 14, 2017, he began to experience increasing mechanical pain in the back, 

buttock, and legs. Dr. Cappuccino described the findings of appellant’s 2010 lumbar spine 

magnetic resonance imaging (MRI) scan and noted that appellant underwent lumbar spine surgery 

in 2010. He provided findings on physical examination pertaining to the cervical and lumbar spine. 

Dr. Cappuccino reported that appellant was to remain out of work and requested authorization for 

a new lumbar spine MRI scan. He further requested authorization for a brace because of 

radiographs showing collapse of L4-5 and L3-4 with trace anterior instability on flexion/extension 

at L4-5 and loss of lordosis. 

 

2 On May 19, 2010 appellant filed an occupational disease claim (Form CA-2) alleging a work-related lumbar injury 

as a result of his repetitive federal employment duties. OWCP accepted the claim for displacement of lumbar 

intervertebral disc without myelopathy, left, in OWCP File No. xxxxxx601. Appellant stopped work on June 19, 2010 

and returned to work on October 13, 2010 in a part-time modified-duty capacity working four hours per day. He was 

released to full-duty work on October 5, 2011. 
3

By decision dated October 5, 2017, 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 duties.3

By letter dated October 18, 2017, appellant requested reconsideration of OWCP’s decision. 

He noted that OWCP’s decision incorrectly found that his Form CA-2a was alleging a right knee 

injury. Rather, appellant had noted a prior right knee medial collateral ligament tear when asked 

about any other injuries. He reiterated that he was claiming injury to his lumbar spine and 

requested OWCP review his original CA-2a form which was for a recurrence of a lower back 

injury. 

In support of his reconsideration request, appellant resubmitted Dr. Cappuccino’s June 26, 

2017 report with an accompanying October 16, 2017 addendum. In the addendum,

Dr. Cappuccino opined that appellant’s injuries were due to the repetitive motions of lifting and 

constant twisting at his job as a letter carrier for the employing establishment. 

By decision dated January 16, 2018, OWCP denied appellant’s request for reconsideration, 

finding that he neither raised substantive legal questions nor submitted relevant and pertinent new 

evidence. 

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 is causally related to the 

employment injury.4 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or an occupational disease.5

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.6 The second component is whether the 

employment incident caused a personal injury and generally can be established only by medical 

evidence. 

 

3 The decision noted that, in addition to his lumbar injury, appellant also alleged a right knee injury. It further noted 

that there was no medical evidence submitted supporting an injury to the right knee.

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

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

6 Elaine Pendleton, supra note 4. 
4

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.7 

To establish 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 supporting such causal relationship.8 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. 

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.9

ANALYSIS -- ISSUE 1

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

condition causally related to the accepted factors of his federal employment.10 

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

and bending in his employment duties as a letter carrier after his return to work in October 2011. 

The issue, therefore, is whether appellant submitted sufficient medical evidence to establish that 

the employment exposure caused a lumbar condition.

11

 

In support of his claim, appellant submitted Dr. Cappuccino’s June 26, 2017 note and a 

narrative report of the same date indicating that he was to remain off work due to a spine injury. 

The Board finds that Dr. Cappuccino’s note fails to provide a firm medical diagnosis as the 

 

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

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

9

James Mack, 43 ECAB 321 (1991).

10 See Robert Broome, 55 ECAB 339 (2004).

11 The Board notes that although appellant filed a notice of recurrence claiming disability, the evidence of record 

indicates an intervening incident negating causal relationship between his current lumbar spine injury and his prior 

May 19, 2010 work-related injury. As such, OWCP properly converted his June 26, 2017 notice of recurrence to a 

new occupational disease injury. A recurrence of disability means an inability to work after an employee has returned 

to work, caused by a spontaneous change in a medical condition which resulted from a previous compensable injury 

or illness and without an intervening injury or new exposure in the work environment. 20 C.F.R. § 10.5(x); see S.F., 

59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical condition as a documented need for 

medical treatment after release from treatment for the accepted condition). OWCP procedures provide that a 

recurrence of disability does not include a work stoppage caused by a new injury, even if it involves the same part of 

the body previously injured, or by renewed exposure to the causative agent of a previously suffered occupational 

disease. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3 (June 2013). 
5

physician only related a “spine injury.” Dr. Cappuccino’s note did not diagnose a medical 

condition.

12

 He also related in his narrative report dated June 26, 2017 that x-ray examination 

revealed the collapse of L4-5 and L3-4 with trace anterior instability on flexion/extension at L4-5 

and loss of lordosis. Dr. Cappuccino did not, however, relate the date of appellant’s x-ray 

examination or whether in fact the x-ray findings constituted his diagnosis of appellant’s current 

lumbar condition. As such, the Board finds that Dr. Cappuccino did not diagnose a medical 

condition in corroboration with the x-ray findings.13 Dr. Cappuccino’s reports are, therefore, of 

limited probative value. 

For these reasons, the Board finds that there is no medical evidence of record establishing 

a lumbar condition causally related to appellant’s accepted factors of his federal employment.14

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

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

15

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.16 To be entitled to a merit review of an OWCP 

decision denying or terminating a benefit, a claimant also must file his or her application for review 

within one year of the date of that decision.17 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.18

ANALYSIS -- ISSUE 2

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

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

 

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

13 See D.B., Docket No. 15-1507 (issued October 26, 2015). 

14 T.O., Docket No. 18-0139 (issued May 24, 2018).

15 5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against 

payment of compensation at any time on his own motion or on application.

16 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141 (2007).

17 Id. at § 10.607(a).

18 Id. at § 10.608(b); K.H., 59 ECAB 495 (2008). 
6

In his application for reconsideration, appellant did not show that OWCP erroneously 

applied or interpreted a specific point of law, and he did not advance a new and relevant legal 

argument not previously considered. He argued that he sustained a work-related lumbar injury 

and that OWCP incorrectly suggested that he filed a claim for a right knee injury. The Board notes 

that, while the October 5, 2017 decision incorrectly noted a right knee injury, OWCP reviewed the 

evidence of record to determine whether appellant established a work-related lumbar injury as 

alleged. As such, discussion of the right knee was harmless error and insufficient to reopen the 

case for review of the merits of the claim.

19

 Consequently, appellant is not entitled to review of 

the merits of his 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 a 

lumbar condition causally related to the accepted factors of his federal employment as a letter 

carrier. That is a medical issue which must be addressed by relevant medical evidence not 

previously considered.

20

 The only medical evidence received was the resubmission of

Dr. Cappuccino’s June 26, 2017 report with the accompanying October 16, 2017 addendum. The 

Board notes that his June 26, 2017 report was previously addressed and evaluated by OWCP in its 

October 5, 2017 merit decision. As the report repeats evidence already in the case record, it is 

duplicative and does not constitute pertinent new and relevant medical evidence.21 

While the October 16, 2017 addendum constituted new medical evidence, Dr. Cappuccino 

did not address the relevant issue in this claim. He opined that appellant’s “injuries” were due to 

repetitive motions of lifting and constant twisting at his job as a letter carrier for the employing 

establishment. However, Dr. Cappuccino again failed to provide a firm medical diagnosis. The 

Board has held that the submission of evidence which does not address the particular issue 

involved does not constitute a basis for reopening a case.22 In this case, appellant failed to submit 

any relevant and pertinent new evidence regarding a firm diagnosis of his current lumbar 

condition.23 

The Board accordingly finds that appellant has not met 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 submit 

relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. § 10.608, 

OWCP properly denied merit review.

 

19 Sherry A. Hunt, 49 ECAB 467 (1998).

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

21 See Kenneth R. Mroczkowski, 40 ECAB 855 (1989) (material which is duplicative of that already contained in 

the case record does not constitute a basis for reopening a case).

22 Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).

23 M.H., Docket No. 13-2051 (issued February 21, 2014).
7

CONCLUSION

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

condition causally related to the accepted factors of his federal employment. 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 Office of Workers’ Compensation Programs’

decisions dated January 16, 2018 and October 5, 2017 are affirmed.

Issued: November 5, 2018

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