United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.F., Appellant

and

DEPARTMENT OF COMMERCE, BUREAU 

OF THE CENSUS, Clayton, MO, Employer

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Docket No. 19-0547

Issued: December 20, 2019

Appearances: Case Submitted on the Record

James E. Retter, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 2, 2019 appellant filed a timely appeal from an October 30, 2018 merit decision 

and a December 13, 2018 nonmerit decision 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 has met his burden of proof to establish an injury 

causally related to the accepted February 16, 2018 employment incident; (2) whether OWCP’s 

 

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

hearing representative properly denied his request for the issuance of a subpoena; and (3) whether 

OWCP properly denied appellant’s request for reconsideration of the merits of his claim under 

5 U.S.C. § 8128(a).

FACTUAL HISTORY

On February 20, 2018 appellant, then a 72-year-old field representative, filed a traumatic 

injury claim (Form CA-1) alleging that at 5:15 p.m. on February 16, 2018 he fractured his ribs, 

injured his left shoulder, sustained a cut above his left eye, and suffered a concussion when he “fell 

up the steps and back down the steps” while in the performance of duty. He stopped work on 

February 16, 2018.

In a report dated February 17, 2018, Dr. Jeffrey Evan Siegler, Board-certified in emergency 

medicine, evaluated appellant for a closed fracture of multiple ribs and a left eyebrow laceration 

after a fall. 

In a development letter dated March 6, 2018, OWCP informed appellant that, when his 

claim was first received, it had appeared to be a minor injury that had resulted in minimal or no 

lost time from work. The claim was administratively approved to allow payment for limited 

medical expenses, but the merits of the claim had not been formally adjudicated. OWCP advised 

that, because appellant had not returned to full-time employment, his claim would be formally 

adjudicated. It requested that he submit factual and medical information, including a 

comprehensive report from his physician regarding how a specific work incident contributed to 

his claimed injury. OWCP afforded appellant 30 days to submit the necessary evidence.

Thereafter, OWCP received a February 17, 2018 emergency department report from

Dr. Siegler. Dr. Siegler evaluated appellant for rib and shoulder pain that had begun eight hours 

earlier when he had fallen at home, striking the kitchen counter. He diagnosed three fractured ribs 

and a possible loose body in the left shoulder after a fall that had occurred eight hours earlier. 

On February 19, 2018 Dr. Vishal Pankaj Kapadia, an osteopath, evaluated appellant at the 

emergency department for complaints of disorientation and confusion. He noted that appellant

had fallen two nights earlier at home when he got up at night to go to the bathroom, striking his 

head and the left side of his chest. Dr. Kapadia found that appellant had symptoms of a concussion.

In a consultation report dated February 20, 2018, Dr. James E. Alonso, a Board-certified 

neurologist, noted that appellant had a history of hypertension, diabetes, and aortic valve 

replacement. He noted that appellant had sought treatment at the emergency department on 

February 17, 2018 after he had fallen at home in the night hitting his ribs and the left side of his 

face. Appellant subsequently developed disorientation.

In an e-mail dated March 29, 2018, the employing establishment controverted the claim, 

noting that the medical evidence failed to relate any condition to a fall at work. In an April 4, 2018 

letter, it advised OWCP that it had no documentation supporting that appellant was working in the 

field after 5:00 p.m. on February 16, 2018. 

By decision dated April 11, 2018, OWCP denied appellant’s traumatic injury claim. It 

found that the evidence of record was insufficient to establish that the February 16, 2018 
3

employment incident occurred as alleged. OWCP concluded, therefore, that the requirements had 

not been met to establish an injury as defined by FECA.

On April 27, 2018 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review. In an accompanying statement of even date, he advised 

that at 5:15 p.m. on February 16, 2018 he was attempting to contact a resident at his or her home 

when he fell on a flight of stairs. Appellant related that his head was bleeding so he went home 

without interviewing the resident. In the middle of the night he got up and fell against the kitchen 

counter, reopening the cut on his head.

In a letter dated May 7, 2018, appellant requested that OWCP’s hearing representative 

issue a subpoena to compel I.S., his field supervisor, to attend his hearing. 

On August 14, 2018 OWCP’s hearing representative denied appellant’s request for the 

issuance of a subpoena under 20 C.F.R. § 10.619. She found that he had not established that the 

only means to obtain information from I.S. was through a subpoena rather than other methods, 

such as a written statement. The hearing representative advised that appellant could appeal the 

denial of his subpoena request after the issuance of her decision if it was not favorable.

During the telephonic hearing held on September 12, 2018 appellant described the alleged 

February 16, 2018 employment incident. He related that he had experienced dizziness when he 

got home and went to sleep on the couch. Appellant had failed to recognize his daughter when 

she arrived home. Later that night he fell against the kitchen counter, hitting the left side of his 

chest, and reopening the cut on his head. 

Thereafter, OWCP received a March 12, 2018 report from Dr. James Caviness, Boardcertified in preventive medicine, who reviewed the medical evidence for the employing 

establishment. Dr. Caviness recommended that the employing establishment challenge appellant’s 

claim as the medical evidence supported that he had fallen at home eight hours before his 

emergency room visit on February 17, 2018.

In a September 9, 2018 e-mail, the employing establishment advised that appellant set his 

own schedule as an intermittent field representative. It noted that it did not have proof that at 

5:00 p.m. on February 16, 2018 he was working in the field.

By decision dated October 30, 2018, OWCP’s hearing representative affirmed as modified 

the April 11, 2018 decision. She found that appellant had factually established the occurrence of 

the February 16, 2018 employment incident. The hearing representative determined, however, 

that the medical evidence was insufficient to support that he had sustained a diagnosed condition 

causally related to the accepted employment incident.

On November 13, 2018 appellant requested reconsideration. He challenged the employing 

establishment’s contention that he was not working at the time of the February 16, 2018 

employment incident. Appellant advised that he sustained two falls, the first causing a “head 

laceration at the work assignment, the second resulted in mental confusion, broken ribs, and 

shoulder bruising at home.”
4

By decision dated December 13, 2018, OWCP denied appellant’s request for 

reconsideration, finding that he had not raised an argument or submitted evidence sufficient to 

warrant reopening his case for further merit review under 5 U.S.C. § 8128(a). 

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 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 each and every compensation claim 

regardless of whether the claim is predicated on 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 first must be determined whether fact of injury has been established. 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.6 Second, the employee must submit medical evidence to 

establish that the employment incident caused a personal injury.7

Causal relationship is a medical issue and the medical evidence required to establish causal 

relationship is rationalized medical opinion evidence. 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.8

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish an injury 

causally related to the accepted February 16, 2018 employment incident.

In support of his claim, appellant submitted medical evidence regarding his treatment on 

February 17, 2018 at the emergency department after he fell at home, striking the kitchen counter. 

On February 17, 2018 Dr. Siegler diagnosed a closed fracture of multiple ribs and a laceration of 

the left eyebrow after he fell at home onto the kitchen counter. In a report dated February 19, 

2018, Dr. Kapadia evaluated appellant for confusion and noted his history of falling at home two 

 

3

Id.

4 See E.B., Docket No. 17-0164 (issued June 14, 2018); Alvin V. Gadd, 57 ECAB 172 (2005).

5 See P.S., Docket No. 17-0939 (issued June 15, 2018); Ellen L. Noble, 55 ECAB 530 (2004).

6 See V.J., Docket No. 18-0452 (issued July 3, 2018); Bonnie A. Contreras, 57 ECAB 364 (2006).

7

Id.

8 See H.B., Docket No. 18-0781 (issued September 5, 2018).
5

days earlier hitting the left side of his chest and his head. On February 20, 2018 Dr. Alonso 

indicated that appellant had received treatment at the emergency department on February 17, 2018 

after falling at night at home. None of the medical evidence of record contains a history of the 

accepted February 16, 2018 employment incident. Instead, it attributes appellant’s condition to a 

subsequent fall at home. Medical evidence submitted to support a claim for compensation should 

reflect a correct history, and the physician should offer a medically sound explanation of how the 

accepted employment incident caused or aggravated a claimed condition.9 As the medical 

evidence fails to discuss the accepted employment incident, appellant has failed to meet his burden 

of proof.10 

On appeal appellant argues that his supervisor confirmed that he was at work at the time 

of his February 16, 2018 fall. As discussed, however, OWCP accepted the occurrence of the 

February 16, 2018 employment incident. The issue is whether the medical evidence of record is 

sufficient to establish that appellant sustained a medical condition causally related to the 

February 16, 2018 employment incident. He failed to submit evidence establishing that he 

sustained a diagnosed condition causally related to the accepted employment incident and thus has 

not met his burden of proof.11

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

In requesting a subpoena, a claimant must explain why the testimony is relevant to the 

issues in the case and why a subpoena is the best method or opportunity to obtain such evidence 

because there is no other means by which the testimony could have been obtained.12 The hearing 

representative of OWCP’s Branch of Hearings and Review has discretion to approve or deny a 

subpoena request.13 Abuse of discretion is generally shown through proof of manifest error, a 

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

probable deductions from established facts.14

ANALYSIS -- ISSUE 2

The Board finds that OWCP’s hearing representative properly denied appellant’s request 

for the issuance of subpoena.

 

9 See R.C., Docket No. 17-0372 (issued May 3, 2018).

10 See B.P., Docket No. 19-1054 (issued November 14, 2019).

11 See R.J., Docket No. 19-0593 (issued September 9, 2019).

12 20 C.F.R. § 10.619; E.C., Docket No. 18-1808 (issued May 16, 2019).

13 Id.

14 B.M., Docket No. 17-1157 (issued May 22, 2018).
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Appellant requested that OWCP’s hearing representative issue a subpoena to obtain 

testimony from I.S., his field supervisor. She denied his request, noting that he had not 

demonstrated that the evidence from I.S. could not be obtained through other methods, including 

the submission of a written statement. Appellant has insufficiently explained why a subpoena was 

the best method to obtain this evidence or shown that there was no other method to obtain the 

information. The Board finds that OWCP’s hearing representative did not abuse her discretion 

when denying the subpoena request.15

LEGAL PRECEDENT -- ISSUE 3

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. 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

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.17

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.18 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.19 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.20

ANALYSIS -- ISSUE 3

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).

The Board finds that, on reconsideration, appellant has not alleged or demonstrated that 

OWCP erroneously applied or interpreted a specific point of law. Moreover, appellant has not 

advanced a relevant legal argument not previously considered. He argued that the employing 

 

15 See E.C., supra note 12; L.M., Docket No. 17-0159 (issued September 27, 2017).

16 5 U.S.C. § 8128(a).

17 20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

18 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

19 Id. at § 10.608(a); see also A.P., Docket No. 19-0224 (issued July 11, 2019).

20 Id. at § 10.608(b); A.G., Docket No. 19-0113 (issued July 12, 2019).
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establishment erred in advising that he was not at work at the time that the February 16, 2018 

incident occurred. Appellant maintained that he fell twice, once at work and once at home. 

OWCP, however, accepted that the February 16, 2018 employment incident occurred, as alleged. 

The underlying issue in this case is whether the medical evidence of record established a causal 

relationship between a diagnosed condition and the February 16, 2018 accepted employment 

incident. This is a medical issue that must be addressed by relevant medical evidence.21 

Appellant’s arguments, consequently, are not relevant to the issue at hand. The Board has held 

that the submission of evidence or argument that does not address the particular issue involved 

does not constitute a basis for reopening a case.22 Consequently, appellant is not entitled to a 

review of the merits of his claim based on the first and second above-noted requirements under 

section 10.606(b)(3).23

A claimant may be entitled to a merit review by submitting relevant and pertinent new 

evidence with a request for reconsideration. The Board finds, however, that appellant has not 

provided any relevant and pertinent new evidence not previously considered relevant to the issue 

of whether he has established an injury causally related to the February 16, 2018 employment 

incident. As appellant did not provide relevant and pertinent new evidence, he is not entitled to a 

merit review based on the third requirement under section 10.606(b)(3).24

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

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.25

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish an injury 

causally related to the accepted February 16, 2018 employment incident. The Board further finds 

that OWCP’s hearing representative properly denied his request for the issuance of a subpoena 

and that OWCP properly denied his request for reconsideration of the merits of his claim under 

5 U.S.C. § 8128(a).

 

21 M.C., Docket No. 18-0841 (issued September 13, 2019).

22 L.E., Docket No. 19-0470 (issued August 12, 2019).

23 C.B., Docket No. 18-1108 (issued January 22, 2019).

24 R.L., Docket No. 18-0175 (issued September 5, 2018).

25 See L.A., Docket No. 18-1226 (issue December 28, 2018) (when an application for reconsideration does not meet 

at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits).
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ORDER

IT IS HEREBY ORDERED THAT the December 13 and October 30, 2018 merit 

decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: December 20, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board