United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

DORN VETERANS ADMINISTRATION

MEDICAL CENTER, Columbia, SC, Employer

__________________________________________

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Docket No. 19-1638

Issued: July 17, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On July 30, 2019 appellant, through counsel, filed a timely appeal from an April 10, 2019 

merit decision and an April 22, 2019 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP). 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

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the April 22, 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

ISSUES

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

medical condition causally related to the accepted February 11, 2019 employment incident; and 

(2) whether OWCP properly denied her request for reconsideration of the merits of her claim 

pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On February 11, 2019 appellant, then a 44-year-old social worker, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she injured her left shoulder, wrist, ankle, and arm 

when she slipped and fell on spilled coffee while in the performance of duty. She stopped work 

that day. 

A February 11, 2019 emergency room treatment note from a nurse practitioner, noted the 

history of injury as a trip and fall at work. The nurse noted diagnoses of left shoulder, left wrist, 

right knee, and left ankle sprains. 

X-rays of appellant’s left ankle obtained on February 11, 2019 revealed degenerative 

changes and some diffuse swelling of the soft tissue. X-rays of the right knee showed mild 

degenerative changes and x-rays of the left wrist and left shoulder were unremarkable. 

In an unsigned note dated February 13, 2019, Dr. Cassandra Patterson, a Board-certified 

internist, indicated that appellant had been seen in her clinic and requested that she be excused 

from work from February 11 to 17, 2019. On February 15, 2019 she requested that appellant be

excused from work from February 15 to 24, 2019.

In a development letter dated March 8, 2019, OWCP informed appellant that the evidence 

submitted was insufficient to establish her claim. It advised her of the type of factual and medical 

evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30 

days to submit the requested information. No additional evidence was received.

By decision dated April 10, 2019, OWCP denied appellant’s traumatic injury claim finding 

that she had not submitted medical evidence containing a diagnosis in connection with the accepted 

February 11, 2019 employment incident, and thus had not met the requirements to establish an 

injury as defined by FECA. 

On April 17, 2019 appellant requested reconsideration. She maintained that she had only 

received OWCP’s denial of her claim and no other communication. 

Along with her reconsideration request, appellant resubmitted the February 11, 2019 note 

from the nurse practitioner and the February 13 and 15, 2019 notes from Dr. Patterson. 

Also received was a February 22, 2019 note by Dr. Patterson who evaluated appellant for 

left shoulder pain. Dr. Patterson advised that appellant should be excused from work from 

February 15 to March 10, 2019. In an unsigned note dated March 7, 2019, she excused appellant 

from work from March 7 through 12, 2019.

In an after-visit summary dated March 12, 2019, Dr. Kevin K. Nahigian, a Board-certified 

orthopedist, noted diagnoses of chronic left shoulder pain, subacromial impingement of the left 
3

shoulder, and chronic frozen shoulder for which he administered an injection and prescribed 

medication. He advised that appellant should remain off work until March 28, 2019.

By decision dated April 22, 2019, 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 FECA4 has the burden of proof to establish the 

essential elements of his or her claim, including 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 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

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.8 

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 allegedly occurred.9 The second component is whether employment incident caused 

a personal injury.10 An employee may establish that an injury occurred in the performance of duty 

as alleged, but fail to establish that the disability or specific condition for which compensation is 

being claimed is causally related to the injury.11

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 

certainty, and must be supported by medical rationale explaining the nature of the relationship 

between the diagnosed condition and the specific employment incident.12

 

4

Id.

5

J.W., Docket No. 18-0678 (issued March 3, 2020); 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.S., Docket No.18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018); 

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

7 R.R., Docket No.18-0914 (issued February 24, 2020); Delores C. Ellyett, 41 ECAB 992 (1990).

8 S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388 (2008).

9 E.M., Docket No. 18-1599 (issued March 7, 2019); Bonnie A. Contreras, 57 ECAB 364 (2006).

10 Id.

11 D.V., Docket No. 19-1642 (issued June 4, 2020); Shirley A. Temple, 48 ECAB 404 (1997).

12 See S.S., supra note 8; H.B., Docket No. 18-0781 (issued September 5, 2018).
4

ANALYSIS -- ISSUE 1

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

medical condition causally related to the accepted February 11, 2019 employment incident.

In reports dated February 13 and 15, 2019, Dr. Patterson noted treatment of appellant and 

indicated that she was disabled from February 15 to 24, 2019. However, she provided no opinion 

regarding whether appellant sustained an injury causally related to her accepted employment 

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

condition or disability is of no probative value on the issue of causal relationship.13 Therefore, 

these reports are insufficient to establish appellant’s claim.

Appellant submitted emergency room notes and a work excuse note dated February 11, 

2019 from a nurse practitioner. While the nurse practitioner did provide diagnoses of left shoulder, 

left wrist, right knee, and left ankle sprains, the Board has held that medical reports signed solely 

by a nurse practitioner are of no probative value as such healthcare providers are not considered 

“physician[s]” as defined under FECA.14 Consequently, this evidence is insufficient to establish 

appellant’s claim.15

Appellant also submitted several diagnostic studies of the knee, ankle, shoulder, and wrists. 

The Board has explained, however, that diagnostic studies, standing alone, lack probative value as 

they do not address whether the employment incident caused any of the diagnosed conditions.

16

 

As the medical evidence of record was insufficient to establish a medical condition in 

relation to the accepted February 11, 2019 employment incident, the Board finds that she has not

met her burden of proof to establish her claim.17

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. 

 

13 See A.S., Docket No. 19-0915 (issued November 22, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018);

D.K., Docket No. 17-1549 (issued July 6, 2018).

14 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.” 5 U.S.C. § 8101(2). See also S.L., Docket No. 19-0607 (issued January 28, 2020); David P. Sawchuk, 

57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not 

competent to render a medical opinion under FECA); M.C., Docket No 19-1074 (issued June 12, 2020) (nurse 

practitioners are not considered physicians under FECA).

15 M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket No. 19-0221 (issued July 15, 2019).

16 T.S., Docket No. 18-0150 (issued April 12, 2019). 

17 H.A., Docket No. 18-1253 (issued April 23, 2020).
5

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 

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 pursuant to 5 U.S.C. § 8128(a).

In her April 17, 2019 request for reconsideration, appellant contended that she had not 

received any correspondence from OWCP other than its decision denying her claim. However, 

the March 8, 2019 development letter from OWCP was properly addressed to her. Absent 

evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business 

is presumed to have been received. This is known as the mailbox rule.23 Appellant has not 

submitted evidence of non-delivery of OWCP’s development letter such that the presumption 

would be rebutted.24 The Board therefore finds that on reconsideration, appellant did not show 

that OWCP erroneously applied or interpreted a specific point of law, nor did she advance a new

and relevant legal argument not previously considered. Accordingly, she is not entitled to a review 

of the merits of her claim based on the first or second above-noted requirements under 20 C.F.R. 

§ 10.606(b)(3).

 

18 5 U.S.C. § 8128(a).

19 20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

20 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.

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

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

23 See C.Y., Docket No. 18-0263 (issued September 14, 2018).

24 See D.R., Docket No. 19-1899 (issued April 15, 2020).
6

However, with respect to the third above-noted requirement under 20 C.F.R. 

§ 10.606(b)(3), appellant submitted an after-visit summary dated March 12, 2019 from

Dr. Nahigian. In this report Dr. Nahigian noted diagnoses of chronic left shoulder pain, 

subacromial impingement of the left shoulder, and chronic frozen shoulder for which he 

administered an injection and prescribed medication. He advised that appellant should remain off 

work until March 28, 2019. OWCP denied her claim as the medical evidence did not provide a 

diagnosis of a medical condition in connection with the accepted employment injury. This report 

from Dr. Nahigian does in fact provide medical evidence of a diagnosis.

The Board, thus, finds that OWCP improperly denied appellant’s request for 

reconsideration of the merits, as the evidence she submitted in support of her reconsideration 

request is relevant and pertinent new evidence not previously considered.25 

As appellant has submitted relevant and pertinent new evidence not previously considered 

by OWCP, she is entitled to a review of the merits of her claim pursuant to 20 C.F.R. 

§ 10.606(b)(3) of OWCP’s regulations.26 Following such further development as may be deemed 

necessary, OWCP shall issue an appropriate merit decision on her claim for disability 

compensation.

CONCLUSION

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

condition causally related to the accepted February 11, 2019 employment incident. The Board 

further finds that OWCP improperly denied her request for reconsideration of the merits of her 

claim pursuant to 5 U.S.C. § 8128(a).

 

25 20 C.F.R. § 10.606(b)(3); P.M., Docket No. 19-1253 (issued January 23, 2020).

26 T.P., Docket No. 18-0608 (issued August 2, 2018). See L.K., Docket No. 15-0659 (issued September 15, 2016).
7

RDER

IT IS HEREBY ORDERED THAT the April 10, 2019 decision is affirmed. IT IS 

FURTHER ORDERED THAT the April 22, 2019 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: July 17, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board