United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Monmouth, ME, Employer

__________________________________________

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Docket No. 18-1546

Issued: December 12, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On August 10, 2018 appellant filed a timely appeal from a March 14, 2018 merit decision 

and a June 14, 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.2

ISSUES

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

condition causally related to the accepted October 27, 2017 employment incident; and (2) whether 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of 

Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before 

OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first 

time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for 

the first time on appeal. Id.
2

OWCP properly denied her request for reconsideration of the merits of her claim pursuant to 5 

U.S.C. § 8128(a).

FACTUAL HISTORY

On November 27, 2017 appellant, then a 61-year-old postmaster, filed a traumatic injury 

claim (Form CA-1) alleging that on October 27, 2017 she suffered a herniated disc on the right 

side of her lower back while in the performance of duty. She stopped work on October 29, 2017.

In a letter dated November 27, 2017, the employing establishment controverted the claim. 

It noted that she swam competitively and had filed her traumatic injury claim two weeks prior to 

her scheduled retirement. In a separate letter of even date, the employing establishment asserted 

that appellant had initially alleged that she had sustained a recurrence of a November 2, 2015 

employment injury.3

On October 31, 2017 a physician assistant requested that appellant be excused from work 

from October 31 to November 6, 2017. She advised that appellant could resume work on 

November 7, 2017 with restrictions. In an accompanying report of even date, the physician 

assistant noted that she had experienced increased back pain the previous Friday after performing 

work activities, and had sought treatment at the emergency room the next day. She noted that 

appellant had subsequently fallen at home landing on her left hip. 

On November 6, 2017 a physician assistant advised that appellant was unable to work due 

to radiculopathy from S1.

Appellant received treatment at a hospital emergency room on November 12, 2017. A 

physician assistant provided a diagnosis of right hip pain and found that she should not perform 

heavy lifting. 

A November 15, 2017 magnetic resonance imaging (MRI) scan revealed a central L4-5 

disc herniation indenting the thecal sac with “moderately advanced posterior element degenerative 

findings, moderate acquired central spinal stenosis, some narrowing of [the] subarticular recesses 

[that] could result in L5 origin neural encroachment,” and moderate disc bulging at L3-4 with 

possible mild encroachment of the right L3 nerve root.

On November 17, 2017 a physician assistant determined that appellant was unable to work 

until January 1, 2018 due to back pain. 

In a development letter dated December 13, 2017, OWCP advised appellant that, when her 

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

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

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

appellant that it would not formally adjudicate her claim. It requested that she submit factual and 

medical information, including a comprehensive report from her physician regarding how a 

 

3 The record indicates that OWCP previously had accepted that on November 2, 2015 appellant sustained an 

aggravation of right hip arthritis requiring a total right hip arthroplasty. It assigned OWCP File No. xxxxxx420.
3

specific work incident contributed to her claimed injury. OWCP afforded appellant 30 days to 

submit the necessary evidence. 

Thereafter, OWCP received a November 28, 2017 report from Dr. Genevieve A. Hall, a 

Board-certified physiatrist. Dr. Hall obtained a history of appellant experiencing back pain on 

October 27, 2017 at work after she had performed “a significant amount of repetitive heavy lifting 

and reaching” during a period when they were understaffed. She noted that appellant had a history 

of a right hip arthroplasty. Dr. Hall reviewed the results of the MRI scan and diagnosed low back 

pain with right lower extremity radicular symptoms.

On December 8, 2017 Dr. Julie Phelps, Board-certified in family medicine, noted that 

appellant had sought treatment at a hospital emergency room on October 28, 2017 for pain in her 

back, right hip, and upper leg. She indicated that her pain had begun after she had worked extended 

days for a week lifting and sorting mail. Dr. Phelps found that x-rays showed a stable right hip 

arthroplasty and diagnosed a disc herniation with radiculopathy. She opined that appellant was 

disabled from employment. Dr. Phelps advised that it was difficult to determine the time that a 

disc herniation occurred, but that her work duties of twisting and lifting could have aggravated a 

disc herniation, noting that her pain presented after a busy day at work.

In a statement dated December 10, 2017, appellant noted that she had seen a physician for 

pain in the area of her pancreas on October 5, 2017. She sought medical treatment on October 29, 

2017 for a fall at home following her October 27, 2017 employment incident. 

In a December 27, 2017 response to OWCP’s request for additional information, appellant 

related that her injury had occurred during the period October 23 to 27, 2017, when two clerks 

were off work and she had to perform additional duties, including lifting parcels, loading mail for 

transport, and working at the window. She described her fall at home on October 29, 2017. 

Appellant related that she had a history of a bulging disc in her back that was not disabling. 

By decision dated January 19, 2018, OWCP denied appellant’s traumatic injury claim. It 

found that the medical evidence she had submitted was insufficient to establish that she sustained 

a diagnosed condition causally related to the accepted October 27, 2017 work event. 

Thereafter, appellant submitted a December 28, 2017 report from Dr. Phelps who indicated 

that she had a history of back pain that had begun when she was working 12-hour days and had to 

stand at the counter, lift mail sacks, and sort mail. She diagnosed a disc herniation with 

radiculopathy. Dr. Phelps related, “It is difficult to determine when exactly a disc herniation 

occurs as symptoms do not always occur right after the herniation, but symptoms can be aggravated 

by a lot of twisting, turning or lifting, which is what [appellant] was doing at work when her pain 

started.”

On February 8, 2018 Dr. Phelps reviewed the results of a November 16, 2017 MRI scan. 

She again advised that she was unable to determine when the disc herniation happened, but that 

twisting, turning, and lifting consistent with appellant’s employment activities could aggravate the 

symptoms. Dr. Phelps related:

“[Appellant’s] symptoms of back pain and radiculopathy started during a busy 

week at work where she worked 12-hour days standing [at] the counter as well as 
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lifting and twisting to sort mail repeatedly. Prior to her change in activity at work 

[she] had not been recently seen or evaluated for back pain. It was only after her 

extended work hours and limited assistance that she presented to the emergency 

room with severe pain.”

On February 21, 2018 appellant requested reconsideration.

By decision dated March 14, 2018, OWCP denied modification of its January 19, 2018 

decision. 

On April 30, 2018 appellant again requested reconsideration. She submitted a letter from 

her husband describing her symptoms following her work activities.

By decision dated June 14, 2018, OWCP denied appellant’s request for reconsideration of 

the merits of her claim under 5 U.S.C. § 8128(a).

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 timely filed within the applicable 

time limitation period of FECA,4that an injury was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally related 

to the employment injury.5 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.6 

In an occupational disease claim, appellant’s burden of proof requires submission of the following:

(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

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 

 

4 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

6 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

7 T.H., Docket No. 18-1585 (issued March 22, 2019); Joe D. Cameron, supra note 4.
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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 her burden of proof to establish a back condition 

causally related to the accepted factors of her federal employment.

Appellant filed a claim for a traumatic injury. However, in a December 27, 2017 statement, 

she attributed her condition to performing additional duties from October 23 to 27, 2017, when 

two clerks were off sick. OWCP defines an occupational disease as a condition produced by the 

work environment over a period longer than a single workday or shift.9 As appellant attributed 

her back condition to her employment duties occurring over more than one day, OWCP should 

have adjudicated her claim as an occupational disease.10 While she filed a traumatic injury claim, 

the Board finds, in fact, her claim was for an occupational disease. 

In support of her claim, appellant submitted reports dated October 31 and November 6, 12, 

and 17, 2017 from a physician assistant. These reports, however, are of no probative value as 

physician assistants are not considered physicians as defined under FECA.11 Consequently, the 

opinion of a physician assistant is insufficient to meet appellant’s burden of proof.12

On November 28, 2017 Dr. Hall noted that on October 27, 2017 appellant had experienced 

back pain at work after performing repetitive heavy lifting and reaching. She diagnosed low back 

pain with right radiculopathy. Dr. Hall, however, did not address the cause of the diagnosed 

condition. Medical evidence that does not offer an opinion regarding the cause of an employee’s 

condition is of no probative value on the issue of causal relationship.13

In a report dated December 8, 2017, Dr. Phelps discussed appellant’s history of pain in her 

back, right hip, and upper leg after lifting and sorting mail at work for a week. She diagnosed a 

disc herniation with radiculopathy. Dr. Phelps explained that it was difficult to determine the time 

of occurrence of a disc herniation, but found that appellant’s employment duties could aggravate 

a herniated disc, noting that her back pain had begun after a full workday. Her opinion, however, 

that work duties could aggravate a herniated disc is speculative in nature and thus of little probative 

 

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

9 20 C.F.R. § 10.5(q).

10 Id.; see also E.K., Docket No. 18-0091 (issued April 6, 2018).

11 5 U.S.C. § 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. K.C., Docket No. 19-0834 (issued October 28, 2019); E.T., Docket No. 17-0265 (issued May 25, 2018) 

(physician assistants are not considered physicians under FECA).

12 See A.A., Docket No. 19-0957 (issued October 22, 2019).

13 See J.H., Docket No. 19-0838 (issued October 1, 2019); S.G., Docket No. 19-0041 (issued May 2, 2019).
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value.14 Additionally, the fact that a claimant was asymptomatic before the injury is insufficient, 

without adequate rationale, to establish causal relationship.15

On December 28, 2017 Dr. Phelps noted that appellant had experienced back pain after 

working 12-hour days lifting and sorting mail, and standing at the counter. She diagnosed a disc 

herniation with radiculopathy. Dr. Phelps again explained that symptoms did not always occur 

immediately following a disc herniation and thus it was challenging to determine when the 

herniation had happened. She opined that symptoms of a herniated disc could be aggravated by 

lifting, turning, or twisting, the activities that appellant was performing at work at the time of the 

onset of her pain. Dr. Phelps provided a similar report on February 8, 2018, noting that she had 

not experienced recent back pain prior to her busy workweek. Again, however, her opinion that 

the symptoms of appellant’s herniated disc could be aggravated by her employment activities is 

speculative in nature.16 Dr. Phelps failed to explain with certainty how or why appellant’s work 

duties aggravated her herniated disc, noting only that she had not experienced recent back pain 

prior to the incident. As discussed, an opinion that a condition results from employment because 

the employee was asymptomatic before the incident is insufficient to establish causal relationship 

absent supporting rationale.17 Such rationale is particularly necessary given appellant’s history of 

a prior back condition.18 Consequently, Dr. Phelps’ opinion is insufficient to meet her burden of 

proof.

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 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.19

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.20

 

14 See D.R., Docket No. 19-0954 (issued October 25, 2019).

15 M.B., Docket No. 19-0840 (issued October 2, 2019). 

16 See M.M., Docket No. 18-1522 (issued April 22, 2019).

17 Id.

18 M.E., Docket No. 18-0940 (issued June 11, 2019).

19 5 U.S.C. § 8128(a).

20 20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).
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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.21 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.22 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.23

ANALYSIS -- ISSUE 2

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

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

The Board finds that appellant has not alleged or demonstrated that OWCP erroneously 

applied or interpreted a specific point of law. Moreover, she has not advanced a relevant legal 

argument not previously considered. Consequently, appellant is not entitled to a review of the 

merits of her claim based on the first and second above-noted requirements under section 

10.606(b)(3).24

The Board further finds that appellant has not submitted relevant and pertinent new 

evidence not previously considered relevant to the issue of whether she has established a back 

condition causally related to factors of her federal employment. With her reconsideration request, 

she submitted a statement from her husband regarding her condition. The lay opinion of 

appellant’s spouse, however, is not relevant to the underlying issue in this case, which is whether 

the medical evidence establishes that appellant sustained an employment-related back condition.25 

This is a medical issue that must be addressed by relevant medical evidence, including the opinion 

of a physician.

26

 As appellant did not provide relevant and pertinent new evidence, she is not 

entitled to a merit review based on the third requirement under section 10.606(b)(3).27

On appeal appellant argues that she submitted a report from her physician that OWCP 

failed to consider. The record, however, does not contain a medical report submitted with her 

reconsideration request.

 

21 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.

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

23 Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

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

25 See R.S., Docket No. 18-0684 (issued October 18, 2018).

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

27 R.L., Docket No. 18-0175 (issued September 5, 2018).
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The Board, accordingly, finds that appellant has not met 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.28

CONCLUSION

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

causally related to the accepted factors of her federal employment. The Board further finds that 

OWCP properly denied her request for reconsideration of the merits of her claim pursuant to 5 

U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the June 14, 2018 decision of the Office of Workers’

Compensation Programs is affirmed. The March 14, 2018 decision of the Office of Workers’

Compensation Programs is affirmed, as modified.

Issued: December 12, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

28 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)(3), OWCP will deny the application for 

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