United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Spartanburg, SC, Employer

__________________________________________

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Docket No. 18-1278

Issued: March 7, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 11, 2018 appellant filed a timely appeal from a March 5, 2018 merit decision and 

an April 11, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 

 

1 The Board notes that during the pendency of this appeal, OWCP issued a July 9, 2018 decision which modified 

the March 5, 2018 merit decision currently on appeal. OWCP continued to deny the claim based on causal 

relationship, and on November 5, 2018 it issued two separate decisions. In the first decision, it vacated its July 9, 

2018 decision, and in the second decision it accepted appellant’s traumatic injury claim for right elbow lateral 

epicondylitis. However, OWCP’s July 9 and November 5, 2018 decisions are null and void as the Board and OWCP 

may not simultaneously exercise jurisdiction over the same issue(s). 20 C.F.R. §§ 501.2(c)(3), 10.626; see, e.g., 

Lawrence Sherman, 55 ECAB 359, 360 n.4 (2004). 
2

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.3

ISSUES

The issues are: (1) whether appellant met her burden of proof to establish an injury in the 

performance of duty on January 22, 2018, as alleged; and (2) whether OWCP properly denied 

appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On January 22, 2018 appellant, then a 53-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on that date, she injured her right arm when she lifted a package 

incorrectly. She was reportedly working at her case when the injury occurred. Appellant did not 

lose any time from work.

By development letter dated January 29, 2018, OWCP informed appellant that the evidence 

of record was insufficient to establish her claim. It specifically noted that the evidence was 

insufficient to establish that the January 22, 2018 incident occurred as alleged. OWCP advised 

appellant of the factual and medical evidence necessary to establish her claim and provided a 

questionnaire for completion. It afforded her 30 days to provide the necessary factual information 

and medical evidence.

In a January 30, 2018 examination note, Donna V. Wright, a nurse practitioner, related that 

on January 22, 2018 appellant was picking up a package with both hands at work when she felt a 

burning feeling radiating up her arm to her elbow. She reviewed appellant’s history and conducted 

an examination of appellant’s right upper extremity. Ms. Wright diagnosed right elbow and right 

wrist pain.

On February 6, 2018 appellant underwent several magnetic resonance imaging (MRI) 

scans of her right wrist, elbow, and forearm.4

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence on appeal. 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.

4 A right wrist MRI scan report showed diffuse arthritis and degenerative changes of the scapholunate and the 

lunotriquetral ligaments, mild arthritic changes of the carpus, mild degenerative arthritis of the thumb carpometacarpal 

(CMC) joint, mild arthropathy at the pisiform-triquetral joint, and increased fluid within the flexor compartment 

tendon sheaths, which may indicate tenosynovitis. A right elbow MRI scan report demonstrated medial and lateral 

epicondylosis and nonspecific edema within the dermal fat. A right forearm MRI scan report showed no significant 

forearm abnormalities. 
3

In a February 14, 2018 work status note, Dr. Elisa Katemba, a Board-certified family 

practitioner, indicated diagnoses of pain in the right elbow, right wrist, upper arm joint, and 

forearm joint.

By decision dated March 5, 2018, OWCP denied appellant’s claim finding that the 

evidence of record was insufficient to establish that the January 22, 2018 incident occurred as 

alleged. It explained that she failed to respond to OWCP’s January 29, 2018 development letter 

and request for a detailed statement regarding how the alleged injury occurred. OWCP also noted 

that appellant failed to submit sufficient medical evidence to establish a diagnosed condition 

causally related to the alleged incident.

On March 26, 2018 appellant requested reconsideration.

OWCP received a March 20, 2018 work capacity evaluation (Form OWCP-5c) and work 

status form report by Ms. Wright. Ms. Wright indicated diagnoses of right elbow lateral 

epicondylitis, right wrist tenosynovitis, right wrist pain, and upper arm and forearm pain. She

noted that appellant could work with restrictions.

By decision dated April 11, 2018, OWCP denied reconsideration of the merits of 

appellant’s claim. It determined that the evidence submitted was irrelevant to the issue of whether 

appellant established a factual basis for her claim.

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,5that 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.6 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.7

In order to determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, OWCP must first determine whether fact of injury has been established.8 

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 

 

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

153 (1989).

6

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

ECAB 312 (1988).

7 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).

8 S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).
4

time, place, and in the manner alleged.9 Second, the employee must submit evidence, to establish 

that the employment incident caused a personal injury.10 An employee may establish that the 

employment incident occurred as alleged, but fail to show that his or her disability or condition 

relates to the employment incident.11

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.12 

Moreover, 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.13 An employee has not met his or her burden of proof to establish 

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

doubt upon the validity of the claim. Circumstances such 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.14 

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish that she 

sustained an injury in the performance of duty on January 22, 2018, as alleged. 

In her Form CA-1, appellant related that on January 22, 2018 she experienced right arm 

pain when she picked up a package the wrong way, however, she did not submit a detailed account 

of the alleged injury or any additional corroborating factual evidence describing how she sustained 

an injury on January 22, 2018. The Board has found that such a vague recitation of facts does not 

support a claimant’s allegation that a specific event occurred to cause a work-related injury.15

By letter dated January 29, 2018, OWCP informed appellant that the evidence it had 

received was insufficient to establish that she experienced the January 22, 2018 employment 

incident as alleged. It asked appellant to complete an attached questionnaire describing what event 

or incident occurred on January 22, 2018 and explain how the alleged incident caused the alleged 

injury. Appellant, however, did not respond to OWCP’s development letter. She neither presented

evidence regarding the specific mechanism of injury nor alleged that she experienced a specific 

 

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

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

11 T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

12 D.B., 58 ECAB 529 (2007); Gregory J. Reser, 57 ECAB 277 (2005).

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

March 9, 1995).

14 Betty J. Smith, 54 ECAB 174 (2002).

15 See M.B., Docket No. 11-1785 (issued February 15, 2012).
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event, incident, or exposure at a definite time, place, and manner.16 As appellant has not provided 

a factual statement describing in detail the January 22, 2018 incident alleged to have caused the 

claimed conditions, the Board finds that she has not met her burden of proof.17 As she did not 

establish an incident as alleged, the Board need not discuss the probative value of the medical 

evidence submitted.18

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 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 

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). 

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law, and did not advance a relevant legal argument not previously considered by OWCP. It 

 

16 See Betty J. Smith, 54 ECAB 174 (2002).

17 S.J., Docket No. 17-1798 (issued February 23, 2018).

18 Tracey P. Spillane, 54 ECAB 608 (2003).

19 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

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

(issued December 9, 2008).

21 20 C.F.R. § 10.607(a).

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

23 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
6

therefore properly determined that her request did not warrant a review of the merits of the claim 

based on the first and second requirements of section 10.606(b)(3).24 

In support of her reconsideration request, appellant submitted a work capacity evaluation 

form and work status form dated March 20, 2018 by Ms. Wright, a nurse practitioner. The Board 

notes that OWCP denied appellant’s traumatic injury claim because she failed to submit a 

statement describing how the alleged injury occurred on January 22, 2018. As the medical reports 

from Ms. Wright fail to address the alleged January 22, 2018 incident or provide other information 

to describe how appellant’s alleged injury occurred, they are irrelevant to the issue on 

reconsideration. The Board notes that the submission of evidence that does not address the 

particular issue involved does not constitute a basis for reopening a case.25 Therefore, OWCP 

properly determined that her request did not warrant a review of the merits of the claim based on 

the third requirement of section 10.606(b)(3). 

The Board finds that as appellant has not met any of the regulatory requirements, OWCP 

properly declined her request for reconsideration of the merits of her claim pursuant to 5 U.S.C. 

§ 8128(a).26 Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish an injury in the 

performance of duty on January 22, 2018, as alleged. The Board also finds that OWCP properly 

denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. 

§ 8128(a).

 

24 See S.M., Docket No. 17-1899 (issued August 3, 2018).

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

26 A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 

630 (2006).
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ORDER

IT IS HEREBY ORDERED THAT the April 11 and March 5, 2018 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: March 7, 2019

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