United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.G., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Chicago, IL, Employer

__________________________________________

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Docket No. 19-0904

Issued: November 25, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 26, 2019 appellant filed a timely appeal from a November 9, 2018 merit decision

and a January 10, 2019 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 lower back 

injury related to the accepted July 22, 2018 employment incident; and (2) whether OWCP properly 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 10, 2019 decision, OWCP received additional evidence. 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

denied appellant’s request for a review of the written record by an OWCP hearing representative 

as untimely filed pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On August 2, 2018 appellant, then a 49-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that on July 22, 2018 she sustained a lower back injury when she was attempting 

to move a cart while in the performance of duty. She stated that she was pushing a medication cart 

when a wheel seemed to be stuck or stopped rolling smoothly and she attempted to shift the cart 

so the wheels would roll properly. While shifting the cart, appellant subsequently felt sharp pain 

in her lower back and heard a grinding/clicking noise. Afterwards it was difficult for her to 

walk/stand or push/move the cart around, as well as perform other duties that required bending or 

moving items. Appellant stopped working on the date of injury.

In an August 2, 2018 return to work/school verification form, Dr. Allison Martin, a Boardcertified family practitioner, indicated that appellant had received treatment on August 2, 2018 and 

was totally disabled from August 5 to 14, 2018. 

In return to work/school verification form dated September 6, 2018, Shanay Johnson, a 

registered medical assistant, indicated that appellant was able to resume light-duty work with a 10-

pound lifting restriction for two weeks. She further indicated that appellant had been diagnosed 

with lumbar spondylosis causing low back pain and recommended a physical therapy program. 

In a duty status report (Form CA-17) dated September 25, 2018, an unidentifiable 

healthcare provider diagnosed low back pain due to pushing a medication cart and advised that 

appellant was able to resume full-time, light-duty work. 

Appellant also submitted physical therapy treatment notes dated September 6, 2018. 

In a development letter dated October 4, 2018, OWCP advised appellant that when her 

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

work and, since the employing establishment had not controverted continuation of pay or 

challenged the case, a limited amount of medical expenses were administratively approved and 

paid. It noted that it had reopened the claim for formal consideration because she had requested 

authorization for physical therapy. OWCP informed appellant of the type of factual and medical 

evidence necessary to establish her claim and afforded her 30 days to submit the necessary 

evidence.

In response, appellant submitted physical therapy treatment notes dated October 9, 11, 16, 

and 18, 2018. 

A medical excuse note dated October 19, 2018 from Marlon McCurine, a certified medical 

assistant, indicated that appellant was able to resume work on October 21, 2018.

In an October 12, 2018 narrative statement, appellant related that she was pushing a cart 

into an elevator at the time of injury and one of the wheels slid down into the open gap space 

between the floor and the elevator. The cart had to be pushed up and pulled out to release it and it 

weighed approximately 75 to 140 pounds due to carrying medications and other medical devices.
3

By decision dated November 9, 2018, OWCP accepted that the July 22, 2018 employment 

incident occurred as alleged, but denied appellant’s claim, finding that she had not established a 

diagnosed medical condition causally related to the accepted employment incident and, thus, the 

requirements had not been met for establishing an injury as defined by FECA. 

On an appeal request form postmarked on December 31, 2018, appellant requested a 

review of the written record by a representative of OWCP’s Branch of Hearings and Review.

By decision dated January 10, 2019, a representative of OWCP’s Branch of Hearings and 

Review denied appellant’s request for a review of the written record, finding that it was untimely 

filed as it was not postmarked within 30 days of the issuance of the November 9, 2018 decision. 

After exercising its discretion, the hearing representative further found that the issue in the case 

could equally well be addressed through the reconsideration process.

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 

evidence, 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, that an injury was sustained 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 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 must first be determined whether fact of injury has been established.6 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.7 Second, the employee must 

submit sufficient evidence, generally only in the form of medical evidence, to establish that the 

employment incident caused a personal injury.8

 

3 Supra note 1.

4 K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn 

Haggerty, 45 ECAB 383, 388 (1994).

5 K.V., and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

6 R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009); 

Bonnie A. Contreras, 57 ECAB 364 (2006).

7 S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8 A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008); 

D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 6.
4

Causal relationship is a medical issue, and rationalized medical opinion evidence is 

generally required to establish causal relationship.9 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 a 

diagnosed condition and the specific employment incident identified by the claimant.10

ANALYSIS -- ISSUE 1

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

injury causally related to the accepted July 22, 2018 employment incident.

In her August 2, 2018 report, Dr. Martin indicated that appellant was totally disabled from 

work for the period August 5 to 14, 2018; however, she did not provide a medical diagnosis. 

Lacking a firm diagnosis and rationalized medical opinion regarding causal relationship, this report 

is of no probative value.11

Appellant also submitted a September 25, 2018 duty status report (Form CA-17), which 

provided a diagnosis of low back pain. However, the report contained an illegible signature from 

an unidentifiable healthcare provider. The Board has held that reports that bear illegible signatures 

cannot be considered probative medical evidence because they lack proper identification that the 

author is a physician.12 Moreover, the Board has held that pain is a symptom and not a 

compensable medical diagnosis.13 Accordingly, this report is also insufficient to satisfy 

appellant’s burden of proof to establish the medical component of fact of injury.

14

The record also contains evidence from medical assistants and physical therapists, as well 

as a September 6, 2018 report from Ms. Johnson, a registered medical assistant, noting that 

appellant had been diagnosed with lumbar spondylosis, causing low back pain. The Board has 

held that certain medical providers, such as medical assistants and physical therapists, are not 

considered “physician[s]” as defined under FECA.15 Consequently, their medical findings and/or 

 

9 L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10 See B.J., Docket No. 18-1276 (issued February 4, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).

11 See A.S., Docket No. 17-2010 (issued October 12, 2018); Louis R. Blair, Jr., 54 ECAB 348 (2003).

12 J.P., Docket No. 19-0197 (issued June 21, 2019).

13 R.C., Docket No. 19-0376 (issued July 15, 2019).

14 Supra note 9.

15 See 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). E.W., Docket No. 16-1729 (issued May 12, 2017) (physical therapists); R.S., Docket No. 16-1303 

(issued December 2, 2016) (medical assistants); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). See also 

Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in general, can only be 

given by a qualified physician).
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opinions are of no probative value and will not suffice for purposes of establishing entitlement to 

compensation benefits.

As appellant has not submitted rationalized medical evidence that establishes a lower back 

injury in connection with the accepted July 22, 2018 employment incident, she has not met her 

burden of proof.

On appeal appellant reiterated her claim that she sustained a back injury while on duty at 

work. As explained above, there is no competent medical evidence of record that establishes an 

injury in connection with the accepted employment incident.

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 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with 

a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance 

of the decision, to a hearing on his or her claim before a representative of the Secretary.16 Sections 

10.617 and 10.618 of the federal regulations implementing this section of FECA provide that a 

claimant shall be afforded a choice of an oral hearing or a review of the written record by a 

representative of the Secretary.17 A claimant is entitled to a hearing or review of the written record 

as a matter of right only if the request is filed within the requisite 30 days as determined by 

postmark or other carrier’s date marking and before the claimant has requested reconsideration.18 

Although there is no right to a review of the written record or an oral hearing, if not requested 

within the 30-day time period, OWCP may within its discretionary powers grant or deny 

appellant’s request and must exercise its discretion.19

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s December 31, 2018 request for a 

review of the written record before an OWCP hearing representative as untimely filed pursuant to 

5 U.S.C. § 8124(b).

OWCP’s regulations provide that the request for a review of the written record must be 

mailed within 30 days of the date of the decision for which a review is sought. OWCP received 

an appeal request form postmarked on December 31, 2018. As the postmark date was more than 

 

16 5 U.S.C. § 8124(b)(1).

17 20 C.F.R. §§ 10.616, 10.617, and 10.618.

18 Id. at § 10.616(a).

19 J.T., Docket No. 18-0664 (issued August 12, 2019); Eddie Franklin, 51 ECAB 223 (1999); Delmont L. 

Thompson, 51 ECAB 155 (1999).
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30 days after OWCP’s November 9, 2018 decision, it was untimely filed and she was not entitled 

to a review of the written record as a matter of right.20

Although appellant’s request for a review of the written record was untimely, OWCP has 

the discretionary authority to grant the request and it must exercise such discretion.21 In its

January 10, 2019 decision, OWCP’s hearing representative properly exercised her discretion by 

notifying appellant that she had considered the matter in relation to the issue of whether appellant 

established that she sustained an injury within the performance of duty causally related to the 

accepted July 22, 2018 employment incident and determined that the issue involved could be 

equally well addressed by a request for reconsideration before OWCP. The Board finds that the 

hearing representative properly exercised her discretionary authority in denying appellant’s 

request for a review of the written record.

22

 The Board has held that the only limitation on 

OWCP’s authority is reasonableness. An abuse of discretion is generally shown through proof of 

manifest error, a clearly unreasonable exercise of judgment, or actions taken which are contrary to 

both logic and probable deductions from established facts.23 In this case, the evidence of record 

does not indicate that OWCP abused its discretion by denying appellant’s request for a review of 

the written record. Accordingly, the Board finds that OWCP properly denied her request for a 

review of the written record.

CONCLUSION

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

injury related to the accepted July 22, 2018 employment incident. The Board further finds that 

OWCP properly denied her request for a review of the written record as untimely filed pursuant to 

5 U.S.C. § 8124(b).

 

20 Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis 

of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings 

and Reviews of the Written Record, Chapter 2.1601.4a (October 2011); see also G.S., Docket No. 18-0388 (issued 

July 19, 2018).

21 Id.; see also Rudolf Bermann, 26 ECAB 354 (1975).

22 Id.; see also Mary B. Moss, 40 ECAB 640, 647 (1989).

23 Id.; see also Samuel R. Johnson, 51 ECAB 612 (2000).
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ORDER

IT IS HEREBY ORDERED THAT the January 10, 2019 and November 9, 2018 

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

Issued: November 25, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board