United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.D., Appellant

and

SMITHSONIAN INSTITUTE, OFFICE OF 

FACILITIES MANAGEMENT & 

RELIABILITY, Washington, DC, Employer

__________________________________________

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Docket No. 17-1310

Issued: June 7, 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 May 30, 2017 appellant filed a timely appeal from a November 29, 2016 merit decision 

and a March 9, 2017 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).1 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 On her application for review (Form AB-1), appellant identified a November 29, 2016 merit decision as the subject 

of the current appeal. An appeal of a given final OWCP decision must be filed within 180 days of the decision. See 

20 C.F.R. § 501.3(e). The 180th day after OWCP’s November 29, 2016 decision was Sunday, May 28, 2017. Because 

the last day of the filing period fell on a weekend, and Monday, May 29, 2017 was a federal holiday, appellant had 

until May 30, 2017 to file her appeal. See 20 C.F.R. § 501.3(f)(2). As noted, the Clerk of the Appellate Boards 

received the current appeal on May 30, 2017.

2 5 U.S.C. § 8101 et seq.

3 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). After exercising its discretion, by order dated October 12, 2017, the Board denied the request as 

appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted 

on the record. Order Denying Request for Oral Argument, Docket No. 17-1310 (issued October 12, 2017).
2

ISSUES

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

due to a January 27, 2016 employment incident; 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 February 18, 2016 OWCP received a traumatic injury claim (Form CA-1) which 

indicated that appellant, then a 53-year-old facilities services worker, injured her lower back at 

work on January 27, 2016. Appellant was reportedly working outdoors on Jefferson Drive 

adjacent to the employing establishment’s National Air and Space Museum. The Form CA-1 noted 

that she “[was pushing a salt spreader ... up the steps].” Appellant then cut a bag (of salt) open 

with a key, and when she went to lift the bag her “knees went out.” She stopped work on 

January 27, 2016.4

Appellant submitted a March 15, 2016 report from Dr. Brittany Harris, an attending 

chiropractor, who listed a date of injury of January 27, 2016 and reported examination findings 

regarding her low back. Dr. Harris indicated that appellant was not cleared to return to work. In 

a separate March 15, 2016 report, she advised that she was treating appellant for a spinal condition 

and that she would not be able to return to work. In a March 22, 2016 notation on this report,

Dr. Ghulam Abbas, an attending Board-certified family practitioner, indicated, “I agree with

Dr. Harris.”

5

In an April 13, 2016 development letter, OWCP requested that appellant submit additional 

factual and medical evidence in support of her claim. It asked her to provide further details 

regarding the circumstances of the claimed January 27, 2016 injury.

6

Appellant submitted a February 18, 2016 report from Dr. Rashida Cohen, an attending 

chiropractor, who indicated that she had reported experiencing left low back pain and posterior 

thigh pain after engaging in heavy lifting at work during the last week of January 2016.7 Dr. Cohen 

reported examination findings and diagnosed low back pain, myalgia, muscle spasm of back, and 

segmental and somatic dysfunction of the lumbar, pelvic, and sacral regions. She treated appellant 

with a low-volt electronic muscle stimulation machine. Dr. Cohen produced reports dated 

 

4 Appellant’s portion of the claim form is unsigned. She later advised that the Form CA-1 was completed by her 

supervisor, E.W., whose name/signature appears under item 38. As discussed infra, appellant takes issue with the 

accuracy of some of the information reported by E.W. on the Form CA-1. 

5 Appellant also submitted a March 11, 2016 report in which Nancy Shinozuka, a registered nurse and case manager 

for the employing establishment, requested that Dr. Abbas submit an updated work status report.

6 OWCP advised appellant that chiropractors are only considered physicians under FECA to the extent that they treat 

spinal subluxations as demonstrated by x-ray to exist.

7 Appellant reported that she went to the emergency room on January 27, 2016 and received an injection. The 

record does not contain a report of such an emergency room visit.
3

February 22, 24, 29, March 9, 15, 16, 23, April 4 and 6, 2016 in which she provided the same 

diagnoses.8

In a report dated May 12, 2016, Dr. Abbas indicated that he had been treating appellant for 

chronic back pain since February 2016. He discussed appellant’s pain symptoms and described 

her participation in physical therapy sessions. 

By decision dated May 17, 2016, OWCP denied appellant’s claim for a January 27, 2016 

work injury. It found that appellant had not established fact of injury because the evidence 

submitted did not establish that the claimed injury and/or event occurred as alleged. OWCP noted 

that appellant did not respond to the request in its April 13, 2016 development letter to submit 

additional factual evidence.9

On June 1, 2016 appellant requested reconsideration of the May 12, 2016 decision. 

Appellant submitted April 20 and 25, 2016 reports in which Dr. Cohen again diagnosed 

low back pain, myalgia, muscle spasm of back, and segmental and somatic dysfunction of the 

lumbar, pelvic, and sacral regions.

A May 13, 2016 lumbar magnetic resonance imaging (MRI) scan revealed a central 

extruded disc at L5-S1 without definite neural compression or spinal stenosis.

In a May 23, 2016 disability certificate, Dr. Janaki Kalyanam, an attending Board-certified 

physical medicine and rehabilitation physician, indicated that appellant had been under her care 

since May 23, 2016. She diagnosed “back injury January 27, 2016,” L5-S1 disc extrusion, lumbar 

radicular symptoms bilaterally, and back muscle spasm. Dr. Kalyanam indicated that appellant 

was unable to return to work.

Appellant also submitted a May 23, 2016 narrative report in which Dr. Kalyanam indicated 

that appellant reported that she lifted a bag of salt on January 27, 2016 and experienced 

excruciating pain which radiated down both legs. Dr. Kalyanam advised that appellant was being 

seen for a lumbar injury which occurred at work and diagnosed several back conditions, including 

intervertebral disc extrusion and lumbar radiculopathy. 

In a May 31, 2016 report, Dr. Abbas noted that appellant developed a back injury at work 

by lifting heavy salt bags. He indicated that appellant’s MRI scan showed L5-S1 disc extrusion 

and noted that physical examination revealed tenderness in the lumbar and paraspinal areas. 

Dr. Abbas recommended that appellant resume physical therapy. On June 16, 2016 he advised 

that appellant presented due to a flare-up of her chronic low back pain. Dr. Abbas noted that her 

“pain gets exacerbated by lifting heavy objects.”

In a July 28, 2016 report, Dr. Oladunni Filani, an attending Board-certified family 

practitioner, indicated that appellant was currently undergoing treatment for recurrent low back 

pain which was secondary to herniation of a lumbar vertebral disc. He noted that this problem was 

 

8

In some of the reports, Dr. Cohen indicated that appellant had “daily objective findings” of spinal subluxations.

9 OWCP also indicated that appellant did not submit medical evidence relating a diagnosed condition to an 

employment factor.
4

aggravated by another injury at work that occurred while appellant was lifting a heavy object, and 

that it continued to cause her recurrent low back pain with numbness and occasional weakness of 

her right lower extremity. Dr. Filani advised that appellant would continue to experience 

intermittent flare-ups which might make it difficult for her to continue to do any work that involved 

lifting. Appellant was advised to continue with physical therapy.10

By decision dated August 26, 2016, OWCP denied appellant’s request for reconsideration 

of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It indicated that the evidence submitted 

by appellant was immaterial to the main issue of her claim.

In an August 29, 2016 report, Dr. Filani noted that appellant reported that at work on 

January 27, 2016 she was attempting to lift a bag of salt into a snow spreader when she developed 

sudden onset low back pain radiating to her right leg. He indicated that appellant had since 

experienced recurrent flare-ups and difficulty with walking, bending, and lifting. Dr. Filani 

advised that a lumbar spine MRI scan showed evidence of a herniated lumbar disc.

By decision dated October 6, 2016, OWCP vacated its August 26, 2016 decision, noting 

that it had not adequately reviewed the evidence submitted by appellant in connection with her 

June 1, 2016 reconsideration request. It conducted a merit review of her claim, but denied 

modification of its May 17, 2016 decision, noting that she had not established fact of injury 

because the evidence submitted did not establish that the claimed injury and/or event occurred.

On October 24, 2016 appellant requested reconsideration of the October 6, 2016 decision.

In a May 11, 2016 statement, appellant indicated that while at work on January 27, 2016 

she was lifting a bag of salt out of a salt spreader and experienced an excruciating, sharp pain in 

her lower back which radiated down the back of her legs. She advised that she dropped to her 

knees and fell into a sitting position. Appellant then rested on her left side until the ambulance 

arrived.

In an October 10, 2016 report, Dr. Filani indicated that he examined appellant on July 18, 

August 29, and October 10, 2016. He noted that she reported that at work on January 27, 2016

she was attempting to lift a bag of salt into a snow spreader when she developed sudden onset low 

back pain radiating to her right leg. Appellant reported that she had experienced recurrent flareups and difficulty with walking, bending, and lifting. Dr. Filani detailed the findings of his 

October 10, 2016 examination and found that appellant was unable to return to work. He indicated 

that appellant had a lumbar MRI scan which showed evidence of a herniated lumbar disc and he 

recommended that she undergo physical therapy.

By decision dated November 29, 2016, OWCP denied appellant’s claim for a January 27, 

2016 work injury. It modified its prior decisions to reflect that appellant had established the

January 27, 2016 employment incident occurred as alleged. However, OWCP further found that 

she failed to submit rationalized medical evidence relating a diagnosed condition to the accepted 

employment incident.

 

10 Appellant also submitted a June 23, 2016 letter in which Ms. Shinozuka requested that Dr. Kalyanam submit an 

updated report detailing appellant’s present medical condition.
5

On January 23, 2017 appellant requested reconsideration of the November 29, 2016 

decision. In a January 19, 2017 letter, she indicated that her supervisor incorrectly completed the 

Form CA-1 because she suggested that she injured herself on January 27, 2016 by pushing a salt 

spreader. Appellant asserted that her January 27, 2016 injury occurred when she lifted a bag of 

salt.

In a December 6, 2016 report, Dr. Filani indicated that he examined appellant on July 18, 

August 29, October 10, and December 6, 2016. He noted that she reported that at work on 

January 27, 2016 she was attempting to lift a bag of salt into the snow spreader when she developed 

sudden onset low back pain radiating to her right leg. Appellant reported that she had experienced 

recurrent flare-ups and difficulty with walking, bending, and lifting. Dr. Filani detailed the 

findings of his December 6, 2016 examination and found that appellant was unable to return to 

work. He indicated that appellant had a lumbar MRI scan which showed evidence of a herniated 

lumbar disc and he recommended that she undergo physical therapy.

By decision dated March 9, 2017, OWCP denied appellant’s request for reconsideration of 

the merits of her claim pursuant to 5 U.S.C. § 8128(a). It noted that the evidence she submitted in 

support of her reconsideration request was cumulative in nature.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA11 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, that an injury was sustained in the performance of duty as alleged,

and that any disability and/or specific condition for which compensation is claimed are causally 

related to the employment injury.12 These are the essential elements of each compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.13

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. There 

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

sufficient evidence to establish that she actually experienced the employment incident at the time,

place, and in the manner alleged.14 Second, the employee must submit evidence, in the form of 

medical evidence, to establish that the employment incident caused a personal injury.15

 

11 Supra note 2.

12 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

13 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury caused 

by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an 

occupational disease refers to an injury produced by employment factors which occur or are present over a period longer 

than a single workday or work shift. 20 C.F.R. §§ 10.5 (q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).

14 Julie B. Hawkins, 38 ECAB 393 (1987).

15 John J. Carlone, 41 ECAB 354 (1989).
6

Causal relationship is a medical issue and the medical evidence generally 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 factors 

identified by the claimant.16

Under section 8101(2) of FECA, chiropractors are only considered physicians, and their 

reports considered medical evidence, to the extent that they treat spinal subluxations as 

demonstrated by x-ray to exist.17 OWCP’s regulations at 20 C.F.R. § 10.5(bb) have defined 

subluxation as an incomplete dislocation, off-centering, misalignment, fixation or abnormal 

spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained in 

the reading of x-rays.18

ANALYSIS -- ISSUE 1

Appellant claimed that on January 27, 2016 she sustained injury to her back with pain 

radiating into her legs due to lifting a bag of salt. OWCP denied her claim for a January 27, 2016 

work injury in several decisions. In a November 29, 2016 decision, it found that appellant had 

established the occurrence of a January 27, 2016 employment incident as alleged. However, 

OWCP further found that she failed to submit rationalized medical evidence relating a diagnosed 

condition to the accepted employment incident.

The Board finds that appellant has failed to meet her burden of proof to establish an injury 

due to a January 27, 2016 employment incident.

Appellant submitted a March 15, 2016 report from Dr. Harris, an attending chiropractor, 

who listed a date of injury of January 27, 2016 and reported examination findings for her low back. 

Dr. Harris indicated that appellant was not cleared to return to work. This report of Dr. Harris 

does not constitute probative medical evidence because Dr. Harris did not indicate that appellant 

had a spinal subluxation as demonstrated by x-rays to exist.19 Appellant also submitted several 

reports dated between February and April 2016 of Dr. Cohen, an attending chiropractor, but these 

 

16 See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

17 5 U.S.C. § 8101(2). See Jack B. Wood, 40 ECAB 95, 109 (1988).

18 20 C.F.R. § 10.5(bb); see also Bruce Chameroy, 42 ECAB 121, 126 (1990).

19 See supra notes 17 and 18. In another March 15, 2016 report, Dr. Harris advised that she was treating appellant 

for a spinal condition and that she would not be able to return to work. In a March 22, 2016 notation on this report, 

Dr. Abbas, an attending Board-certified family practitioner, indicated, “I agree with Dr. Harris.” Although Dr. Abbas 

affirmed Dr. Harris’ opinion on disability, this affirmation is of limited probative value on the relevant issue of the 

present case because Dr. Abbas did not provide any opinion on the cause of appellant’s disability. The Board has held 

that medical evidence which does not offer a clear opinion regarding the cause of an employee’s condition is of limited 

probative value on the issue of causal relationship. See Charles H. Tomaszewski, 39 ECAB 461 (1988). 
7

reports also would not constitute probative medical evidence because Dr. Cohen did not indicate 

that appellant had a spinal subluxation as demonstrated by x-rays to exist.20

In a May 23, 2016 report, Dr. Kalyanam indicated that appellant had been under her care 

since May 23, 2016. She diagnosed “back injury January 27, 2016,” L5-S1 disc extrusion, lumbar 

radicular symptoms bilaterally, and back muscle spasm. Dr. Kalyanam indicated that appellant 

was unable to return to work. In a separate May 23, 2016 report, she noted that appellant reported 

that she lifted a bag of salt on January 27, 2016 and experienced excruciating pain which radiated 

down both legs. Dr. Kalyanam advised that appellant was being seen for a lumbar injury which 

occurred at work and diagnosed several back conditions, including intervertebral disc extrusion 

and lumbar radiculopathy. 

The Board finds that the submission of these reports do not establish appellant’s claim for 

a January 27, 2016 work injury. Although Dr. Kalyanam suggested that appellant sustained an 

injury on January 27, 2016 due to lifting, she did not provide a clear, rationalized medical opinion 

on causal relationship. She did not describe the January 27, 2016 employment incident in any 

detail or explain how it could have caused a diagnosed medical condition. The Board has held that 

a report is of limited probative value regarding causal relationship if it does not contain medical 

rationale explaining how an employment activity could have caused or aggravated a medical 

condition.21 Dr. Kalyanam’s reports are of limited probative value on the relevant issue of this 

case for the further reason that she did not provide a detailed factual and medical history.

22

In a July 28, 2016 report, Dr. Filani indicated that appellant was currently undergoing 

treatment for recurrent low back pain which was secondary to herniation of a lumbar vertebral 

disc. He noted that this problem was aggravated by another injury at work which occurred while 

appellant was lifting a heavy object and that it continued to cause her recurrent low back pain with 

numbness and occasional weakness of her right lower extremity. Dr. Filani advised that appellant 

would continue to experience intermittent flare-ups which might make it difficult for her to 

continue to do any work that involved lifting. In August 29 and October 10, 2016 reports, he noted 

that appellant reported that at work on January 27, 2016 she was attempting to lift a bag of salt 

into a snow spreader when she developed sudden onset low back pain radiating to her right leg. 

Dr. Filani advised that a lumbar MRI scan showed evidence of a herniated lumbar disc.

Dr. Filani’s reports do not establish appellant’s claim for a January 27, 2016 work injury 

because he did not provide a rationalized medical opinion relating a diagnosed condition to the 

accepted January 27, 2016 employment incident. The Board has held that a medical report is of 

limited probative value on the issue of causal relationship if it contains a conclusion regarding causal 

 

20 In some of the reports, Dr. Cohen indicated that appellant had “daily objective findings” of spinal subluxations, 

but she did not indicate that they were demonstrated by x-rays to exist.

21 See Y.D., Docket No. 16-1896 (issued February 10, 2017); D.R., Docket No. 16-0528 (issued August 24, 2016).

22 See supra note 16. In a May 31, 2016 report, Dr. Abbas noted that appellant developed a back injury at work by 

lifting heavy salt bags. He indicated that an MRI scan showed L5-S1 disc extrusion and noted that physical 

examination revealed tenderness in the lumbar and paraspinal areas. However, Dr. Abbas did not provide a clear 

opinion that appellant sustained a diagnosed condition due to the specific, accepted January 27, 2016 employment 

incident and his May 31, 2016 report is of limited probative value regarding the claimed work injury. See Charles H. 

Tomaszewski, supra note 19.
8

relationship which is unsupported by medical rationale.23 Dr. Filani only provided a general 

description of the January 27, 2016 employment incident and he provided no explanation of how 

this incident caused or aggravated a diagnosed medical condition. In fact, it appears that he merely 

referenced appellant’s belief that she sustained an injury due to the January 27, 2016 employment 

incident, rather than provided his own opinion relative to causal relationship. Dr. Filani did not 

provide a clear, unequivocal opinion that he believed that she sustained a diagnosed medical 

condition due to the January 27, 2016 employment incident.

24

On appeal appellant argues that a Form CA-1 was submitted on her behalf by her supervisor 

which contained many inaccuracies.25 She also argues that she submitted medical evidence 

showing that she sustained an injury at work on January 27, 2016 which exacerbated her back 

condition and affected her ability to work. The Board notes that appellant later clarified the nature 

of her claimed injury and OWCP has accepted the occurrence of a January 27, 2016 employment 

incident as alleged, i.e., lifting a bag of salt. Moreover, the Board has explained the deficiencies 

of the medical evidence submitted by appellant.

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 does not entitle a claimant to review of an OWCP decision as a 

matter of right.26 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.27 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.28 

A timely application for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.29 When a timely application for reconsideration does not meet at least one 

 

23 C.M., Docket No. 14-0088 (issued April 18, 2014).

24 The Board has held that an opinion which is equivocal or speculative is of limited probative value regarding the 

issue of causal relationship. See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956).

25 Appellant also asserts, without explanation, that her “claim was never submitted correctly.”

26 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).

27 20 C.F.R. § 10.607.

28 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.

29 20 C.F.R. § 10.606(b)(3).
9

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.30

The Board has held that the submission of evidence or argument which repeats or duplicates 

evidence or argument already in the case record31 and the submission of evidence or argument which 

does not address the particular issue involved does not constitute a basis for reopening a case.32

ANALYSIS -- ISSUE 2

OWCP issued a decision on November 29, 2016. Appellant requested reconsideration of 

that decision on January 23, 2017. 

The issue presented on appeal is whether appellant met any of the requirements of 

20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. 

In her application for reconsideration, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. She did not identify a specific point of law or show that it was 

erroneously applied or interpreted, nor did she advance a new and relevant legal argument not 

previously considered by OWCP. The underlying issue in this case is whether the medical 

evidence establishes a back or leg injury due to the accepted January 27, 2016 employment 

incident, i.e., lifting a bag of salt. That is a medical issue which must be addressed by relevant 

medical evidence.33 A claimant may be entitled to a merit review by submitting relevant and 

pertinent new evidence, but the Board finds that appellant did not submit any such evidence in this 

case. 

On reconsideration appellant submitted a December 6, 2016 report of Dr. Filani. However, 

the submission of this report would not require reopening of her claim for merit review because 

this report is substantially similar to reports she previously submitted and already considered by 

OWCP. In particular, Dr. Filani’s December 6, 2016 report is strikingly similar to his October 10, 

2016 report which OWCP had previously deemed to be insufficient to establish appellant’s claim 

for a January 27, 2016 work injury.

34

 As noted, the Board has held that the submission of evidence 

or argument which repeats or duplicates evidence or argument already in the case record does not 

constitute a basis for reopening a case.35

 

30 Id. at § 10.608(a), (b).

31 Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

32 Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

33 See Bobbie F. Cowart, 55 ECAB 746 (2004).

34 In both reports, Dr. Filani indicated that appellant reported she was attempting to lift a bag of salt into the snow 

spreader at work on January 27, 2016 when she developed sudden onset low back pain radiating to her right leg. He 

advised that an MRI scan showed a herniated lumbar disc, but he did not provide an opinion on the cause of this 

condition in either report.

35 See supra note 31.
10

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Therefore, 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 due 

to a January 27, 2016 employment incident. The Board further finds that OWCP properly denied 

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

ORDER

IT IS HEREBY ORDERED THAT the March 9, 2017 and November 29, 2016 decisions

of the Office of Workers’ Compensation Programs are affirmed.

Issued: June 7, 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