United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.C., Appellant

and

U.S. POSTAL SERVICE, VADNAIS HEIGHTS 

ANNEX POST OFFICE,

St. Paul, MN, Employer

__________________________________________

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Docket No. 20-1321

Issued: July 7, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On June 23, 2020 appellant filed a timely appeal from a February 27, 2020 merit decision 

and a May 19, 2020 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 his burden of proof to establish a lower back 

condition causally related to the accepted September 16, 2019 employment incident; and 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the May 19, 2020 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 evidence for 

the first time on appeal. Id. 
2

(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 September 30, 2019 appellant, then a 56-year-old city letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on September 16, 2019 he injured his lower back when he 

twisted to place a small box down, while in the performance of duty. He indicated that he injured 

his back at the L4-5 level, where he had previously undergone surgery, and that it hurt to twist and 

sit in his vehicle.3 On the reverse side of the claim form the employing establishment controverted 

the claim because appellant had significant preexisting conditions. It noted that appellant stopped 

work on September 23, 2019 and returned to work on October 1, 2019.

In a development letter dated October 23, 2019, OWCP informed appellant that additional 

evidence was needed to establish his claim. It advised him of the type of medical evidence 

necessary to establish his claim and afforded 30 days for him to submit the requested evidence.

September 23, 2019 x-rays of appellant’s lumbar spine interpreted by Dr. Deepak 

Somashekar, a Board-certified radiologist, revealed unchanged transitional anatomy with a 

lumbarized S1 segment, an L5-S1 posterior spinal fusion hardware with interbody spacer, overall 

unchanged retrolisthesis of L5 on S1, and anterolisthesis of S1 on S2.

September 23, 2019 progress notes by Dr. Asif Maknojia, a Board-certified neurosurgeon, 

indicated that on May 28, 2019 appellant underwent a transforaminal lumbar interbody fusion and 

left L2-3 discectomy, which had initially resolved his back and leg pain. Dr. Maknojia related that 

appellant indicated that the previous Monday at work his back started to hurt when he was lifting 

a box; however, he indicated that the pain had improved. He conducted a physical examination,

which revealed normal findings, reviewed appellant’s diagnostic imaging, and diagnosed back 

pain with sciatica. A September 23, 2019 work restriction report from Dr. Maknojia advised that 

appellant could return to work without restrictions on October 1, 2019.

In October 25, 2019 controversion letters, the employing establishment indicated that 

appellant had a significant preexisting back condition. It additionally stated that medical 

documentation did not indicate that appellant sustained a work-related injury.

November 6, 2019 progress notes by Dr. Maknojia reviewed appellant’s medical history 

and history of injury. Dr. Maknojia indicated that appellant was experiencing a recurrence of back 

and leg pain following his injury at work. Appellant indicated that pain traveled down the front 

of his left leg towards his ankle, which was very similar to how he felt before his surgery. 

Dr. Maknojia conducted a physical examination, which revealed normal results. He indicated that 

appellant should perform light-duty work and listed restrictions.

 

3 The Board notes that on April 11, 2006 appellant filed a traumatic injury claim (Form CA-1) alleging that on 

April 3, 2006 he twisted and threw out his back when he put a tray of flat mail into his hamper while in the performance 

of duty. OWCP assigned the claim OWCP File No. xxxxxxx591. This file was closed without a formal decision. 

Appellant’s claims have not been administratively combined.
3

A November 12, 2019 magnetic resonance imaging (MRI)scan of appellant’s lumbar spine 

interpreted by Dr. Zackary Royce, a Board-certified radiologist, revealed transitional lumbosacral 

anatomy with lumbarized S1 vertebra and probable recurrent L3-4 left subarticular disc extrusion 

without significant migration that effaced the left lateral recess and contacts and may exert mass 

effect on the descending left L4 nerve root.

A November 13, 2019 letter from Dr. Maknojia indicated that appellant could return to 

work with restrictions.

A November 15, 2019 duty status report (Form CA-17) by Dr. Maknojia indicated that on 

September 16, 2019 appellant dropped a parcel and, when he picked it up, he twisted to put it on 

a shelf. Dr. Maknojia diagnosed a lumbar disc herniation, which he stated was due to appellant’s 

injury.

In a November 20, 2019 work capacity evaluation (Form OWCP-5c), Dr. Maknojia 

indicated that appellant had a lumbar disc herniation and he had hurt his back when he picked up 

a dropped parcel to place on a shelf. He related that appellant could not perform his usual job 

without restrictions, but was able to work an eight-hour day with restrictions. Dr. Maknojia stated 

that he did not know how long appellant’s restrictions would apply, and that appellant had not yet 

reached his maximum medical improvement (MMI).

By decision dated November 25, 2019, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record was insufficient to establish a medical diagnosis in connection 

with the accepted September 16, 2019 employment incident. It concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA.

A July 11, 2019 x-ray of appellant’s lumbar spine interpreted by Dr. Eric Carolan, a Boardcertified radiologist, revealed transitional anatomy with five non-rib-bearing lumbar-type 

vertebrae seated transitional lumbarized S1 segment, a posterior spinal instrument fusion of L5-S1 

with an accompanying interbody fusion device, stable four millimeter (mm) anterolisthesis of S1 

on S2, and mild L3-4 and L4-5 degenerative disc disease. It additionally revealed unchanged 

leftward curvature to the lumbar spine, unchanged exaggerated lumbar lordosis, unchanged 

minimal retrolisthesis of L4-5, and unchanged six mm retrolisthesis of L5 on S1.

In a December 9, 2019 work capacity evaluation (Form OWCP-5c), Dr. Maknojia 

indicated that appellant sustained a lumbar disc herniation and he picked up a dropped parcel to 

put on a shelf and hurt his back. He related that appellant could not perform his usual job without 

restrictions, but was able to work an eight-hour day with restrictions.

On December 31, 2019 appellant requested reconsideration.

By decision dated February 27, 2020, OWCP modified its November 25, 2019 decision, 

finding that the evidence of record was sufficient to establish a diagnosed condition. However, it 

continued to deny appellant’s claim, finding that the evidence of record was insufficient to 

establish causal relationship between appellant’s diagnosed back condition and the accepted 

September 16, 2019 employment incident. OWCP stated that it was particularly important for the 

medical evidence to address causal relationship because appellant had a preexisting back 

condition.
4

On March 23, 2020 appellant requested reconsideration.

On May 19, 2020 OWCP received an April 23, 2020 narrative medical report by Dr. Zeke 

McKinney, Board-certified in preventive medicine. Dr. McKinney noted an extensive review of 

appellant’s diagnostic studies. He related that appellant had L3-4 disc herniation, status post L4-

5 fusion and L2-3 discectomy on May 29, 2019, and work-related recurrent herniation on 

September 16, 2019. Dr. McKinney explained that appellant had a history of L3-4 disc herniation 

that was surgically treated with success until a work-related incident caused a recurrence of 

herniation. He related that “regardless of whether this is a new or unrelated herniation at the same 

level, or simply an exacerbation of his prior herniation, this is a work-related injury.”

By decision dated May 19, 2020, OWCP denied appellant’s reconsideration request, 

finding that the evidence of record was insufficient to warrant review of its February 27, 2020 

decision. It stated that the evidence reviewed in support of appellant’s reconsideration request 

included his undated statement.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA4has 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,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 claimant sustained a traumatic injury in the performance of duty, 

it must first be determined whether fact of injury has been established.8 Fact of injury consists of 

two components that must be considered in conjunction with one another. 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.9 Second, the employee must submit 

 

4 Supra note 1.

5 G.L., Docket No. 18-1057 (issued April 14, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); 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.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

7 See J.C., Docket No. 18-1803 (issued April 19, 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).

8 G.L., supra note 5; 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).
5

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

employment incident caused a personal injury.10

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.11

In a case in which a preexisting condition involving the same part of the body is present 

and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.

12

ANALYSIS -- ISSUE 1 

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

condition causally related to the accepted September 16, 2019 employment incident. 

Dr. Maknojia’s September 23, 2019 progress notes indicated that on May 28, 2019 

appellant underwent a transforaminal lumbar interbody fusion and left L2-3 discectomy, which 

had initially resolved his back and leg pain. He related that, the previous Monday at work, 

appellant’s back started to hurt when he was lifting a box; however, he indicated that the pain had 

improved. Dr. Maknojia conducted a physical examination, reviewed appellant’s diagnostic 

imaging, and diagnosed back pain with sciatica. The Board has consistently held that pain is a 

symptom, not a compensable medical diagnosis.13 As such, this medical report is insufficient to 

establish appellant’s claim. 

Dr. Maknojia’s November 6, 2019 progress notes reviewed appellant’s medical history and 

history of injury. He indicated that appellant was experiencing a recurrence of back and leg pain 

following his injury at work. Appellant indicated that pain traveled down the front of his left leg 

down to his ankle, which was very similar to how he felt before his surgery. Dr. Maknojia 

conducted a physical examination, which revealed normal results, and he diagnosed back and leg 

pain. As stated above, the Board has consistently held that pain is a symptom, not a compensable 

medical diagnosis.14 As such, this medical report is insufficient to establish appellant’s claim.

Dr. Maknojia’s November 15, 2019 duty status report (Form CA-17) reviewed appellant’s 

history of injury. He diagnosed a lumbar disc herniation, which he stated was due to appellant’s 

 

10 M.H., Docket No. 18-1737 (issued March 13, 2019); J.N., Docket No. 18-0675 (issued December 10, 2018); 

E.H., Docket No. 16-1786 (issued January 30, 2017).

11 H.B., Docket No. 18-0781 (issued September 5, 2018).

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

13 J.S., Docket No. 0764 (issued January 21, 2021). 

14 Id. 
6

injury. Dr. Maknojia, in November and December 2019 Form OWCP-5c work capacity 

evaluations, reviewed appellant’s history of injury and diagnosed a lumbar disc herniation. He 

noted that appellant had not reached MMI. In these reports, Dr. Maknojia does not explain how 

the accepted September 16, 2019 employment incident caused appellant’s lumbar disc herniation, 

nor does he differentiate between the effects of appellant’s employment incident and his

preexisting condition. The Board has held that a medical opinion should offer a medically-sound 

explanation of how the specific employment incident physiologically caused the injury15 and, in a 

case in which a preexisting condition involving the same part of the body is present and the issue 

of causal relationship, therefore, involves aggravation, acceleration, or precipitation, the physician 

must provide a rationalized medical opinion that differentiates between the effects of the workrelated injury or disease and the preexisting condition.16

 As such, these reports are insufficient to 

establish appellant’s claim. 

Appellant additionally submitted a July 7, 2019 lumbar spine x-ray, September 23, 2019 

lumbar spine x-rays, and a November 12, 2019 lumbar spine MRI scan. The Board has held that 

diagnostic tests, standing alone, lack probative value on the issue of causal relationship as they do 

not address whether the employment incident caused a diagnosed condition.17

As the medical evidence of record is insufficient to establish a lower back condition 

causally related to the accepted employment incident, the Board finds that appellant has not met 

his burden of proof to establish his claim.

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 the review of an OWCP decision as a 

matter of right.18 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.19 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.20

 

15 T.W., Docket No. 20-0767 (issued January 13, 2021); see H.A., Docket No. 18-1466 (issued August 23, 2019); 

L.R., Docket No. 16-0736 (issued September 2, 2016).

16 Supra note 12. 

17 V.Y., Docket No. 18-0610 (issued March 6, 2020).

18 5 U.S.C. § 8128(a).

19 20 C.F.R. § 10.607

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.
7

A timely request for reconsideration, including all supporting documents, must 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.21 When a timely request for reconsideration does not meet at least one of 

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

the case for a review on the merits.22

ANALYSIS -- ISSUE 2 

The Board finds that this case is not in posture for a decision with regard to whether OWCP 

properly denied appellant’s request for reconsideration pursuant to 5 U.S.C. § 8128(a). 

In the case of William A. Couch,

23 the Board held that when adjudicating a claim OWCP 

is obligated to consider all evidence properly submitted by a claimant and received by OWCP 

before the final decision is issued.

OWCP’s May 19, 2020 decision found that the only evidence submitted in support of 

appellant’s reconsideration request was his undated statement. However, the record indicates that 

on May 19, 2020 OWCP received Dr. McKinney’s April 23, 2020 narrative medical report. 

Whether OWCP receives relevant evidence on the date of the decision or days before, such 

evidence must be considered.24

It is crucial that OWCP address all evidence received prior to the issuance of its final 

decision, as the Board’s decisions are final with regard to the subject matter appealed.25 The Board 

finds that this case is not in posture for decision, as OWCP did not review the above-noted evidence 

in its May 19, 2020 decision.26 On remand OWCP shall review all evidence of record, and 

following any further development as it deems necessary, it shall issue an appropriate decision.

CONCLUSION

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

condition causally related to the accepted September 16, 2019 employment incident. The Board 

 

21 Id. at § 10.606(b)(3); see B.R., Docket No. 19-0372 (issued February 20, 2020).

22 Id. at § 10.608.

23 41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

24 See G.A., Docket No. 19-1080 (issued January 2, 2020); T.J., Docket No. 14-1854 (issued February 3, 2015); 

J.J., Docket No. 12-1062 (issued December 12, 2012); William McKennon, 51 ECAB 145 (1999); Linda Johnson, 45 

ECAB 439 (1994) (applying Couch where OWCP did not consider a medical report received on the date of its 

decision).

25 See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also 

William A. Couch, supra note 23.

26 See V.C., Docket No. 16-0694 (issued August 19, 2016).
8

further finds that this case is not in posture for decision with regard to whether OWCP properly 

denied appellant’s request for reconsideration.

ORDER

IT IS HEREBY ORDERED THAT the February 27, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed, and the May 19, 2020 decision of OWCP is set 

aside and the case is remanded for further proceedings consistent with this decision of the Board.

Issued: July 7, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board