United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Boston, MA, Employer

__________________________________________

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Docket No. 17-1983

Issued: August 17, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 25, 2017 appellant filed a timely appeal from an August 3, 2017 merit 

decision and a September 5, 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 the claim.2

ISSUES

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

sustained a left leg and calf condition causally related to an accepted June 10, 2017 employment 

 

1 5 U.S.C. § 8101 et seq.

2 The record provided the Board includes evidence received after OWCP issued its September 5, 2017 decision. 

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. 20 C.F.R. § 501.2(c)(1). Therefore, evidence not before OWCP at the time of the September 5, 2017 

decision will not be considered by the Board for the first time on appeal. Id.
2

incident; and (2) whether OWCP properly denied appellant’s request for reconsideration of the 

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

FACTUAL HISTORY

On June 16, 2017 appellant, then a 46-year-old city carrier assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on June 10, 2017 she experienced pain in her left leg and calf 

area while walking up stairs when delivering mail. She stopped work the next day on June 11, 

2017 and was evaluated at the Boston Medical Center (BMC) Emergency Department. In a 

June 11, 2017 note, a nurse practitioner excused appellant from work.

In a June 15, 2017 statement, appellant related that she had informed her supervisor about 

her leg condition on June 10, 2017 and that she had been unable to complete her route. An undated 

statement from appellant’s supervisor verified that appellant had reported her leg condition.

A June 15, 2017 authorization for examination and/or treatment form (Form CA-16) was 

completed by an employing establishment official on June 15, 2017 and purported to authorize 

treatment at Brigham and Women’s Hospital Primary Care Clinic.

Appellant submitted June 16, 2017 attending physician’s report (Form CA-20), a June 16, 

2017 duty status report (Form CA-17), and June 18 and 20, 2017 work release notes from certified 

physician assistants. In a June 20, 2017 note, a certified physician assistant referred appellant to 

physical therapy for left synovial cyst of popliteal space.

By development letter dated June 26, 2017, OWCP advised appellant that the evidence 

submitted was insufficient to establish her claim. It requested that she respond to the attached 

questionnaire to establish that the June 10, 2017 incident occurred as alleged and provide 

additional medical evidence, including a well-rationalized medical report from a physician, to 

establish that she sustained a diagnosed condition as a result of the alleged incident. OWCP 

afforded appellant 30 days to submit the requested information.

OWCP received a June 21, 2017 statement from appellant’s supervisor and a July 11, 2017 

statement from appellant, which provided additional factual information.

A June 26, 2017 form report from Brigham and Woman’s Hospital indicated that appellant 

was seen by Dr. Amy Flaster, a Board-certified internist on that day. Care instructions for a 

Baker’s cyst were included. On June 26, 2017 Dr. Flaster countersigned a June 20, 2017 note 

written by the certified physician assistant, which held appellant off work until July 10, 2017.

In a July 11, 2017 note, Dr. Richard M. Wilk, a Board-certified orthopedic surgeon, held 

appellant off work for her left leg injury pending magnetic resonance imaging (MRI) scan and 

physical therapy. In a July 11, 2017 referral to physical therapy, he diagnosed a left gastrocnemius 

muscle strain.

By decision dated August 3, 2017, OWCP denied appellant’s claim. It accepted that the 

June 10, 2017 employment incident occurred as alleged and that she had been diagnosed with a 

left gastrocnemius strain. However, OWCP denied the claim, finding that the medical evidence 
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of record was insufficient to establish that her diagnosed condition was causally related to the 

accepted June 10, 2017 employment incident.

Additional evidence was received subsequent to OWCP’s decision.

In a July 11, 2017 duty status report (Form CA-17), Dr. Wilk diagnosed mass in left knee 

and left gastrocnemius strain due to June 10, 2017 injury. He opined that appellant was unable to 

work.

A July 15, 2017 left knee MRI scan indicated mild patellofemoral cartilage abnormalities 

and a finding consistent with patellar tendon-lateral femoral condyle friction syndrome.

In an August 1, 2017 report, Dr. Wilk reported that appellant had moderate pain in the calf 

and that the back of her leg tingled. He reported examination findings and reviewed her left knee 

MRI scan. Dr. Wilk diagnosed left gastrocnemius muscle strain, acute left-sided low back pain 

with left-sided sciatica, and chronic left knee pain. He also provided an August 1, 2017 Form CA17 and an August 1, 2017 work release note.

On August 24, 2017 appellant requested reconsideration of the merits of her claim.

In an August 21, 2017 report, Dr. Flaster related that appellant had a suspected workrelated injury. She explained that appellant had persistent left knee pain since a June 10, 2017 

workplace injury while completing her mail route. Appellant reported that she was walking up the 

steps to a house on the mail route and felt a pull in her leg while going up the steps. She had 

persistent left knee pain since then. Dr. Flaster diagnosed synovial cyst of popliteal space, 

gastrocnemius muscle strain, left knee pain, and acute left-sided low back pain with left-sided 

sciatica. She referred appellant to physical therapy and physiatry. In an August 21, 2017 Form 

CA-17, Dr. Flaster diagnosed lateral peroneal condyle friction syndrome due to the June 10, 2017 

employment injury. By decision dated September 5, 2017, OWCP denied appellant’s request for 

reconsideration of the merits of her claim. It found that her reconsideration request neither raised 

substantive legal questions nor included new and relevant evidence to address the issue of causal 

relationship.

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 by the weight of the reliable, probative, and substantial 

evidence4including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability from work for which compensation is claimed is causally related 

to that employment injury.5

 

3 Supra note 1.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).
4

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.6 There 

are two components involved in establishing the fact of injury. First, the employee must submit 

sufficient evidence to establish that he or she actually experienced the employment incident at the 

time and place, and in the manner alleged.7 Second, the employee must submit evidence, generally 

only in the form of probative medical evidence, to establish that the employment incident caused 

a personal injury.8 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.9

Whether an employee sustained an injury in the performance of duty requires the 

submission of rationalized medical opinion evidence.10 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.11 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.12

ANALYSIS -- ISSUE 1

The Board finds that appellant has not established that she sustained a left leg and calf 

condition causally related to the accepted June 10, 2017 employment incident. 

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 claimed work 

event caused or aggravated the claimed condition.13 The Board finds that no physician did so in 

this case.

Dr. Flaster countersigned a June 20, 2017 work release note, however, the note did not 

contain a history of injury, a medical diagnosis, or an opinion on causal relationship.14 Thus, this

report from Dr. Flaster was of little probative value to establish appellant’s claim.

 

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

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

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

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

10 See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

11 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

12 James Mack, 43 ECAB 321 (1991).

13 D.D., Docket No. 13-1517 (issued April 14, 2014).

14 Id.
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In a July 11, 2017 referral to physical therapy, Dr. Wilk diagnosed a left gastrocnemius 

muscle strain. While he provided a definitive diagnosis, he did not provide an opinion that the 

diagnosed condition was employment related.15 As such, this report is of diminished probative 

value.

The remainder of the medical evidence was from certified physician assistants and physical 

therapists. The Board has held that treatment notes signed by physician assistants and physical 

therapists have no probative value as these providers are not considered physicians under FECA.16 

Thus, this evidence is insufficient to meet appellant’s burden of proof. 

It is appellant’s burden of proof to establish that a diagnosed condition is causally related 

to the accepted June 10, 2017 employment incident. As the evidence of record is insufficient to 

establish causal relationship, she has not met her burden of proof.17

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.18

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.19

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.20 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.21 If the request is timely, but fails to meet at least one 

 

15 See E.B., Docket No. 17-1862 (issued January 12, 2018).

16 See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses, and physical 

therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a 

physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic 

practitioners within the scope of their practice as defined by State law).

17 Where an employing establishment properly executes a Form CA-16 authorizing medical treatment related to a 

claim for a work injury, the form creates a contractual obligation, which does not involve the employee directly, to 

pay for the cost of the examination/treatment regardless of the action taken on the claim. See Tracy P. Spillane, 

54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the 

date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).

18 5 U.S.C. § 8128(a).

19 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).

20 Id. at § 10.607(a).

21 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).
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of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.22

ANALYSIS -- ISSUE 2

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

the merits of her claim. 

With her reconsideration request, appellant did not attempt to show that OWCP 

erroneously applied or interpreted a specific point of law, or advance a relevant legal argument not 

previously considered by OWCP. Consequently, she was 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).

23

With respect to the third above-noted requirement under section 10.606(b)(3), appellant 

submitted new medical evidence from Dr. Wilk and Dr. Flaster, which addressed the relevant issue 

of causal relationship. Prior to the denial of her claim, she had not submitted any medical evidence 

which addressed causal relationship. 

In his August 1, 2017 report, Dr. Wilk diagnosed left gastrocnemius muscle strain, acute 

left-sided low back pain with left-sided sciatica, and chronic left knee pain. He opined in July 11

and August 1, 2017 duty status reports that appellant’s diagnosed conditions were due to the 

June 10, 2017 injury. 

Likewise, Dr. Flaster, in her August 21, 2017 report, noted the specific history of the 

June 10, 2017 employment incident and diagnosed synovial cyst of popliteal space, gastrocnemius 

muscle strain, left knee pain, and acute left-sided low back pain with left-sided sciatica. She 

indicated that appellant had a suspect work-related injury. Dr. Flaster opined in her August 21, 

2017 Form CA-17 that the diagnosed lateral peroneal condyle friction syndrome was due to the 

June 10, 2017 employment injury. 

The Board finds that the opinions expressed in narrative reports by Dr. Wilk and Dr. Flaster 

constitute relevant and pertinent new evidence not previously considered by OWCP. Their

opinions directly addressed the basis upon which OWCP denied appellant’s claim as it addressed 

the issue of causal relationship between her condition and the June 10, 2017 employment 

incident.24 Appellant’s request for reconsideration met one of the standards for obtaining a merit 

review of her case.25 Accordingly, she is entitled to a merit review. 

 

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

23 Id. at § 10.606(b)(3).

24 The Board has held that, in support of a request for reconsideration, a claimant is not required to submit all 

evidence which may be necessary to discharge his or her burden of proof. He or she need only submit relevant and 

pertinent evidence not previously considered by OWCP. See S.H., Docket No. 17-1101 (issued August 3, 2017);

Helen E. Tschantz, 39 ECAB 1382 (1988).

25 L.Y., Docket No. 15-1344 (issued March 10, 2016).
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The Board will, therefore, set aside OWCP’s September 5, 2017 decision and remand the 

case for an appropriate merit decision on appellant’s claim. After such further development of the 

evidence as might be necessary, OWCP shall issue an appropriate decision. 

CONCLUSION

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

injury causally related to the accepted June 10, 2017 employment incident. The Board, however, 

finds that OWCP improperly 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 August 3, 2017 merit decision is affirmed and 

the September 5, 2017 nonmerit decision of the Office of Workers’ Compensation Programs is set 

aside and the case remanded for further action consistent with this decision of the Board.

Issued: August 17, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board