United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.E., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

HUDSON VALLEY HEALTH CARE SYSTEM,

VETERANS ADMINISTRATION HEALTH 

CARE CENTER, Montrose, NY, Employer

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Docket No. 19-0470

Issued: August 12, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 December 28, 2018 appellant filed a timely appeal from a September 25, 2018 merit 

decision and a November 8, 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

 

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

ISSUES

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

condition causally related to the accepted March 28, 2018 employment incident; 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).

FACTUAL HISTORY

On March 29, 2018 appellant, then a 61-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that while in the performance of duty on March 28, 2018, he 

developed head, neck, low and middle back, and right hip pain when he was hit by a patient and 

knocked to the ground. He did not indicate whether he had stopped work. 

In a report dated March 29, 2018, Dr. Alan Rios, an employing establishment Boardcertified internist, noted that appellant was seen for left shoulder and back pain following an 

incident with a patient. Appellant had related falling to the floor after a patient swung and hit him 

on the left shoulder. Dr. Rios provided examination findings, but reported that appellant refused 

a medical work up and full physical examination and that he appeared to be in no acute distress. 

In notes dated March 29, April 12, and 18, 2018, Dr. Michael A. Gott, a Board-certified 

orthopedic surgeon, related that appellant was disabled from work. In an April 18, 2018 note, he 

related that appellant had low back pain and was unable to work. 

Dr. Gott, in an April 19, 2018 note, indicated that appellant was treated for right hip pain, 

acute right shoulder pain, and right-sided low back pain without sciatica. He related appellant’s 

history of injury and advised that he was disabled from work due to his current work restrictions. 

In a development letter dated April 30, 2018, OWCP informed appellant that the evidence 

of record was insufficient to support his claim. It advised him of the factual and medical evidence 

necessary to establish his claim. OWCP afforded appellant 30 days to submit the necessary 

evidence. No additional evidence was received.

By decision dated June 19, 2018, OWCP denied appellant’s claim, finding that the medical 

evidence of record did not provide a firm diagnosis causally related to the accepted employment 

incident. It concluded, therefore, that the requirements had not been met to establish an injury as 

defined by FECA. 

OWCP subsequently received additional medical evidence.

In an encounter report dated March 29, 2018, Dr. Gott noted appellant’s right hip pain, 

acute right shoulder pain, and acute right-sided low back pain without sciatica. A history of the 

accepted March 28, 2018 employment incident was noted and physical examination findings 

provided. Dr. Gott reviewed lumbar and right hip x-ray interpretations and found no lumbar 

fracture dislocation with some degenerative joint disease and no right hip dislocations or fractures 

and no significant arthritis. Under impression he noted shoulder pain, neck pain, and right hip and 

back contusion.
3

In a June 15, 2018 report, Nicole K. Shelly, a physician assistant, related that appellant was 

treated that day for right hip pain, acute right shoulder pain, and acute right-sided low back pain 

without sciatica. She noted appellant’s March 28, 2018 employment incident, and provided work 

restrictions. 

In a June 22, 2018 report, Dr. Gott again noted a March 28, 2018 history of injury and that 

appellant was receiving treatment for right hip pain, acute right shoulder pain, and low back right 

sided pain without sciatica. He recommended physical therapy and indicated that appellant was

currently disabled from work.

On July 13, 2018 appellant requested reconsideration. 

By decision dated September 25, 2018, OWCP denied modification of its prior decision, 

finding that the evidence submitted was insufficient to establish that a diagnosed medical condition 

was causally related to the accepted March 28, 2018 employment incident. 

On November 2, 2018 appellant again requested reconsideration. Accompanying his 

request was an October 22, 2018 letter reminding him of his upcoming appointment with Dr. Gott. 

By decision dated November 8, 2018, OWCP denied appellant’s request for 

reconsideration of the merits of his 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,3that 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.4 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.5

To determine if an employee has sustained a traumatic 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 that must be considered in conjunction with one another. The 

first component is whether the employee actually experienced the employment incident that 

 

3

J.C., Docket No. 18-1503 (issued May 2, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 

ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989). 

4 E.S., Docket No. 18-1750 (issued March 11, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 

ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).

5 S.C., Docket No. 18-1242 (issued March 13, 2019); 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).
4

allegedly occurred.6 The second component is whether the employment incident caused a personal 

injury.7

Rationalized medical opinion evidence is required to establish causal relationship. The 

opinion of the physician must be based on a complete factual and medical background, 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 incident.8

ANALYSIS -- ISSUE 1

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

condition causally related to the accepted March 28, 2018 employment incident.

Initially OWCP received a March 29, 2018 report from Dr. Rios who noted appellant’s 

history of injury and noted appellant’s complaints of left shoulder and back pain. The Board notes 

that pain is a symptom, not a compensable medical diagnosis.9 The Board has held that a medical 

report is of no probative value if it does not provide a firm diagnosis of a particular medical 

condition, or offer a specific opinion as to whether the accepted employment incident caused or 

aggravated the claimed condition.10 As Dr. Rios did not diagnose an actual medical condition 

causing appellant’s symptoms, his reports lack probative value and are insufficient to establish the 

claim.11

OWCP also received multiple progress notes dated March 29, April 12 and 19, and 

June 22, 2018 from Dr. Gott. In several of these notes Dr. Gott merely related that appellant was 

disabled from work. As previously noted, lacking a firm diagnosis and opinion that the 

employment incident caused the diagnosed condition, these reports are of no probative value 

regarding causal relationship.12 In several of his other notes, Dr. Gott only related appellant’s 

history of injury and pain complaints, but again, pain is a symptom not a compensable diagnosis.13 

These notes are therefore insufficient to establish appellant’s claim. 

In a report dated March 29, 2018 Dr. Gott reviewed lumbar and right hip x-ray 

interpretations and noted degenerative joint disease and a right hip and back contusion. However, 

he offered no opinion regarding the cause of those diagnoses. The Board has held that medical 

 

6

J.C., supra note 3; Elaine Pendleton, 40 ECAB 1143 (1989).

7 M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

8 S.S., Docket No. 18-1488 (issued March 11, 2019).

9

J.C., supra note 3; C.M., Docket No. 18-0146 (issued August 16, 2018); D.D., 57 ECAB 734, 738 

(2006); Kathy A. Kelley, 55 ECAB 206 (2004).

10 See M.J., Docket No. 18-1114 (issued February 5, 2019).

11 See T.J., Docket No. 18-1500 (issued May 1, 2019); D.K., Docket No. 17-1186 (issued June 11, 2018).

12 See supra note 10.

13 Id.
5

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.14

OWCP also received a report from a physician assistant dated June 15, 2018 report. This 

report, however, is of no probative value as physician assistants are not considered physicians as 

defined under FECA.15 Consequently, this report is insufficient to establish appellant’s claim.

For the reasons set forth above, the medical evidence of record is insufficient to establish 

diagnosed right hip and lumbar conditions causally related to the accepted March 28, 2018 

employment incident. Therefore, appellant has not met his burden of proof to establish an 

employment-related injury.

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 of FECA vests OWCP with a discretionary authority to determine whether it 

will review an award for or against compensation, either under its own authority or on application 

by a claimant.16 Section 10.608(b) of OWCP’s regulations provide that a timely request for 

reconsideration may be granted if OWCP determines that the claimant has presented evidence 

and/or argument that meet at least one of the standards described in section 10.606(b)(3).17 This 

section provides that the application for reconsideration must be submitted in writing and set forth 

arguments and contain evidence that either: (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.18 Section 10.608(b) provides that when a request for reconsideration is 

timely, but fails to meet at least one of these three requirements, OWCP will deny the application 

for reconsideration without reopening the case for a review on the merits.19

 

14 R.Z., Docket No. 19-0408 (issued June 26 2019); P.S., Docket No. 18-1222 (issued January 8, 2019).

15 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. M.M., Docket No. 18-1096 (issued December 14, 2018); E.T., Docket No. 17-0265 (issued May 25, 

2018) (physician assistants are not considered physicians under FECA).

16 5 U.S.C. § 8128(a).

17 20 C.F.R. § 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.

18 Id. at 10.606(b)(3).

19 Id. at § 10.608(b).
6

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).

With his timely request for reconsideration, appellant neither showed that OWCP 

erroneously applied or interpreted a specific point of law, nor advanced a relevant legal argument 

not previously considered by OWCP. Consequently he 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).

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

evidence, but the Board finds that appellant has not submitted any such evidence in this case.20 

Appellant only submitted an October 22, 2018 medical appointment reminder with his request for 

reconsideration. The submission of this factual evidence does not require reopening of his claim 

for review of the merits of the claim because this evidence is irrelevant to the underlying issue of 

causal relationship. As noted, the underlying issue of the present case is medical in nature, i.e. 

whether appellant submitted medical evidence sufficient to establish causal relationship between 

a diagnosed medical condition and the accepted March 28, 2018 employment incident. The Board 

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

involved does not constitute a basis for reopening a case.21 Thus, appellant is also not entitled to 

a review of the merits of his claim based on the third above-noted requirement under 20 C.F.R. 

§ 10.606(b)(3).

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.

CONCLUSION

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

condition causally related to the accepted March 28, 2018 employment incident. The Board 

further finds that OWCP properly denied his request for reconsideration of the merits of his claim 

pursuant to 5 U.S.C § 8128(a).

 

20 B.T., Docket No. 18-1397 (issued January 15, 2019); 20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-

1041 (issued October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).

21 T.B. Docket No. 19-0029 (issued June 21, 2019).
7

ORDER

IT IS HEREBY ORDERED THAT the November 8 and September 25, 2018 decisions 

of the Office of Workers’ Compensation Programs are affirmed.

Issued: August 12, 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