United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Pittsburgh, PA, Employer

__________________________________________

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Docket No. 18-0723

Issued: November 9, 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 February 20, 2018 appellant filed a timely appeal from an August 21, 2017 merit 

decision and a December 1, 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 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of the 

last merit decision by OWCP. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See

20 C.F.R. § 501.3(e)-(f). One hundred and eighty days from August 21, 2017, the date of OWCP’s last merit decision, 

was Saturday, February 17, 2018. It is well established that when a time limitation expires on a nonbusiness day, the 

limitation is extended to include the next business day. As Monday, February 19, 2018 was a federal holiday, the time 

period for filing an appeal did not expire until the next business day, which was Tuesday, February 20, 2018, rendering 

the appeal timely filed. See M.H., Docket No. 13-1901 (issued January 8, 2014); Debra McDavid, 57 ECAB 149-50 

(2005); Angel M. Lebron, Jr., 51 ECAB 488, 490 (2000); Gary J. Martinez, 41 ECAB 427-28 (1990). 

2 5 U.S.C. § 8101 et seq.

3 Appellant submitted additional evidence on appeal. However, “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 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 concussion 

causally related to the accepted July 10, 2017 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 July 10, 2017 appellant, then a 51-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on that same date he sustained a concussion when he was involved in a 

motor vehicle accident (MVA) while in the performance of duty. He stopped work and sought 

emergency medical treatment. 

In support of his claim, appellant submitted July 10, 2017 visit summary and discharge 

notes from Forbes Hospital documenting treatment for a head injury from a motor vehicle 

collision. 

By development letter dated July 17, 2017, OWCP informed appellant that the evidence of 

record was insufficient to establish his traumatic injury claim. Appellant was advised of the type 

of medical and factual evidence needed and provided a questionnaire for his completion. OWCP 

afforded him 30 days to submit the necessary evidence. 

In a July 10, 2017 emergency department report, Dr. Evan Miller, a physician of 

osteopathic medicine, reported that appellant arrived by emergency medical services following a 

MVA while driving his mail truck. Appellant reported that he was in the left hand lane with his 

turn signal on when his mail truck was rear-ended by another vehicle, causing his truck to be 

thrown into oncoming traffic. Dr. Miller reported no airbag deployment as the mail truck was 

unequipped with same. Appellant was unsure if he hit his head, but was dazed immediately 

following his accident. He complained of pain on the top of his head. A computerized tomography 

(CT) scan of the brain read by Dr. Michael Goldberg, an osteopathic physician, revealed no acute 

intracranial abnormality. Dr. Miller provided findings on physical examination and diagnosed 

head injury and motor vehicle collision. 

Appellant also submitted a July 12, 2017 treatment note from Vincent Golik, a nurse 

practitioner, as well as chiropractic treatment notes dated July 18 through 28, 2017. 

By decision dated August 21, 2017, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish a firm medical diagnosis which could be 

attributed to the accepted July 10, 2017 employment incident. 

On August 29, 2017 appellant requested reconsideration of OWCP’s decision. 

In a signed August 29, 2017 statement, appellant responded to OWCP’s questionnaire and 

described the circumstances surrounding his June 10, 2017 traumatic injury. He reported that he 

was driving his employing establishment vehicle on his regular route and was in the left lane with 

his turn signal on when another vehicle rear-ended him, causing his vehicle to push into oncoming 

traffic. Appellant explained that the collision caused him to hit his head on the roof of his vehicle 

due to the severity and speed of the other vehicle. The blow to the head caused him to blackout 
3

for several seconds and disoriented him. Appellant was thereafter transported to Forbes Hospital 

for treatment where he was advised that he had suffered a mild concussion. 

On June 10, 2017 the employing establishment issued appellant a properly completed Form 

CA-16, authorization for examination, which indicated that he was authorized to seek medical 

treatment at Forbes Hospital for his July 10, 2017 injury of concussion and loss of consciousness 

from head injury. 

Appellant also submitted a July 10, 2017 emergency medical service’s report documenting 

the motor vehicle collision and transport to the hospital for his head abrasion. 

Appellant also submitted a July 12, 2017 Duty Status Report (Form CA-17) which 

indicated that he could return to full-duty work and additional chiropractic therapy notes dated 

August 3 through September 6, 2016. He also resubmitted Dr. Miller’s July 10, 2017 report,

Dr. Goldberg’s July 10, 2017 diagnostic report, and Mr. Golik’s July 12, 2017 treatment report. 

By decision dated December 1, 2017, OWCP denied appellant’s request for 

reconsideration without reviewing the merits of his claim finding that he neither raised substantive 

legal questions nor submitted relevant and pertinent new evidence. 

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 the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was filed within the applicable time 

limitation, that an injury was sustained while 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.5 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or an occupational disease.6

In order to determine whether an employee actually sustained an 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 which must be considered in conjunction with one 

another. The first component to be established is that the employee actually experienced the 

employment incident which is alleged to have occurred.7 The second component is whether the 

employment incident caused a personal injury and generally can be established only by medical 

evidence. 

To establish causal relationship between the condition, as well as any attendant disability 

claimed and the employment event or incident, the employee must submit rationalized medical 

 

4 Supra note 2.

5 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

6 Michael E. Smith, 50 ECAB 313 (1999).

7 Elaine Pendleton, supra note 5. 
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opinion evidence sufficient to establish such causal relationship.8 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. This medical opinion must include an accurate history of the employee’s 

employment injury and must explain how the condition is related to the injury. The weight of 

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.9

ANALYSIS -- ISSUE 1

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

causally related to the accepted July 10, 2017 employment incident. 

On the date of injury, appellant sought emergency medical treatment with Dr. Miller.

10

 

While Dr. Miller’s report documents immediate treatment for appellant’s injury, the physician 

failed to provide a firm medical diagnosis as he only diagnosed head injury and motor vehicle 

collision. He also documented appellant’s complaints of head pain. The Board has consistently 

held that pain is a symptom, not a compensable medical diagnosis.11 Moreover, Dr. Miller 

reported that a CT scan of the head revealed no acute intracranial abnormality. As he related that 

appellant’s diagnostic testing revealed normal findings, his report is insufficient to establish that 

appellant sustained a traumatic injury.

12

 

The remaining medical evidence of record is also insufficient to establish a diagnosed 

medical condition causally related to the July 10, 2017 MVA. Dr. Goldberg’s July 10, 2017 report 

interpreted diagnostic findings and related no acute intracranial abnormality. The Board has held 

that reports of diagnostic tests lack probative value as they do not provide an opinion on causal

relationship between appellant’s employment duties and a diagnosed condition.13

OWCP also received chiropractic treatment notes documenting therapy. The evidence, 

however, does not reflect that the treating chiropractors diagnosed subluxation based on the results 

 

8 See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

9

James Mack, 43 ECAB 321 (1991).

10 In its August 21, 2017 decision, OWCP found that the July 10, 2017 report was signed by a physician assistant. 

The Board notes that contrary to OWCP’s finding, the report was cosigned by Dr. Miller, a qualified physician. 

11 C.F., Docket No. 08-1102 (issued October 10, 2008).

12 J.P., Docket No. 14-87 (issued March 14, 2014).

13 See S.G., Docket No. 17-1054 (issued September 14, 2017).
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of an x-ray.14 Therefore, these reports do not constitute probative medical evidence as the 

chiropractors do not meet the statutory definition of a physician.15 

The July 12, 2017 report from Mr. Golik, a nurse practitioner, is also insufficient to 

establish appellant’s claim. Reports from a nurse practitioner lack probative value as healthcare 

providers such as physician assistants, physical therapists, or nurse practitioners, are not 

considered physicians as defined under FECA.16

Appellant’s honest belief that the July 10, 2017 motor vehicle collision caused injury, 

however, sincerely held, does not constitute medical evidence sufficient to establish a firm medical 

diagnosis causally related to the accepted work event(s).

17

 In the instant case, the record lacks 

rationalized medical evidence establishing a diagnosed medical condition causally related to the 

accepted July 10, 2017 employment incident. Thus, appellant has not met his burden of proof to 

establish his claim.

18

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. 

§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.19

LEGAL PRECEDENT -- ISSUE 2

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. If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits. To require it to reopen a case for merit review under

section 8128(a) of FECA, OWCP regulations provide that the evidence or argument submitted by 

a claimant must: (1) show that OWCP erroneously applied or interpreted a specific point of law; 

(2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute 

 

14 5 U.S.C. § 8102(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. The term ‘physician’ includes chiropractors only to the extent that their reimbursable services are limited 

to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist 

and subject to regulation by the secretary.” See Merton J. Sills, 39 ECAB 572, 575 (1988).

15 L.S., Docket No. 07-560 (issued June 22, 2007). 

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

therapists are not competent to render a medical opinion under FECA). See also M.M., Docket No. 16-1617 (issued 

January 24, 2017).

17 D.D., 57 ECAB 734 (2006).

18 T.O., Docket No. 18-0139 (issued May 24, 2018).

19 The record contains a Form CA-16 signed by the employing establishment official on July 10, 2017. When the 

employing establishment properly executes a CA-16 form which authorizes medical treatment as a result of an 

employee’s claim for an employment-related injury, the CA-16 form creates a contractual obligation, which does not 

involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the 

claim. The period for which treatment is authorized by a CA-16 form is limited to 60 days from the date of issuance, 

unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003). The record 

is silent as to whether OWCP paid for the cost of appellant’s examination or treatment for the period noted on the 

form.
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relevant and pertinent new evidence not previously considered by OWCP.20 Section 10.608(b) of 

OWCP regulations provide that when an application for reconsideration does not meet at least one 

of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the request for 

reconsideration without reopening the case for a review on the merits.21

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 submitted his completed factual 

development questionnaire which provided further details regarding the June 10, 2017 motor 

vehicle incident. However, as OWCP previously accepted that the June 10, 2017 incident occurred 

as alleged, this evidence did not show that OWCP erroneously applied or interpreted a specific 

point of law, and he did not advance a new and relevant legal argument not previously 

considered.

22

 Consequently, appellant 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).

The Board notes that the underlying issue in this case is whether appellant sustained a 

diagnosed medical condition causally related to the July 10, 2017 motor vehicle collision. That is 

a medical issue which must be addressed by relevant medical evidence not previously 

considered.23 Appellant resubmitted Dr. Miller’s July 10, 2017 report, Dr. Goldberg’s July 10, 

2017 diagnostic report, and Mr. Golik’s July 12, 2017 treatment report. The Board notes that these 

reports were previously addressed and evaluated by OWCP in its August 21, 2017 merit decision. 

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

in the case record does not constitute a basis for reopening a case.24

The Board notes that appellant also submitted new evidence in the form of an emergency 

medical services report dated July 10, 2017 documenting the motor vehicle collision and transport 

to the hospital for his head abrasion, a July 12, 2017 Form CA-17, and chiropractic therapy notes 

dated August 3 through September 6, 2017. While this evidence was new, it did not constitute

relevant and pertinent medical evidence as none of the reports were signed by a physician and did 

not provide a firm medical diagnosis in connection to the July 10, 2017 injury.

25

 The Board has 

 

20 D.K., 59 ECAB 141 (2007).

21 K.H., 59 ECAB 495 (2008). 

22 Sherry A. Hunt, 49 ECAB 467 (1998).

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

24 See L.R., Docket No. 18-0400 (issued August 24, 2018). 

25 See Kenneth R. Mroczkowski, 40 ECAB 855 (1989) (material which is duplicative of that already contained in 

the case record does not constitute a basis for reopening a case).
7

held that the submission of evidence which does not address the particular issue involved does not 

constitute a basis for reopening a case.26 

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 concussion

causally related to the accepted July 10, 2017 employment incident. The Board also finds that 

OWCP properly denied his request for reconsideration of the merits of his claim pursuant to 5 

U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the December 1 and August 21, 2017 decisions of 

the Office of Workers’ Compensation Programs are affirmed.

Issued: November 9, 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

 

26 Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).