United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Jamaica, NY, Employer

__________________________________________

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Docket No. 20-1559

Issued: August 5, 2021

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 27, 2020 appellant, through counsel, filed a timely appeal from a March 5, 2020 

merit 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 March 5, 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 additional 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish a medical condition 

causally related to the accepted November 26, 2011 employment incident.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

On November 27, 2011 appellant, then a 53-year-old express mail clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on November 26, 2011 she was carrying heavy bags and 

placing them into a postal container when she felt pain in her left leg and hip while in the 

performance of duty.

By decision dated March 14, 2012, OWCP denied appellant’s claim. It found that the

medical evidence submitted was insufficient to establish a firm medical diagnosis in connection

with the accepted November 26, 2011 employment incident. OWCP noted that appellant’s

physician diagnosed low back, left thigh and hip pain; however, pain was a symptom, not a medical 

diagnosis.

On March 29, 2012 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review and submitted additional medical evidence. By 

decision dated July 11, 2012, the hearing representative affirmed the March 14, 2012 decision.

Appellant, through counsel, subsequently submitted multiple requests for reconsideration.

By decisions dated June 14, 2013, and February 19, July 8, and December 12, 2014, OWCP denied 

modification of its prior decisions.

On March 3, 2015 appellant, through counsel, appealed to the Board. By decision dated 

January 15, 2016, the Board found that appellant had not met her burden of proof to establish that 

her left hip and back conditions were causally related to the accepted November 26, 2011 

employment incident.5

On January 3, 2017 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence.

A November 29, 2016 magnetic resonance imaging (MRI) scan of appellant’s left hip read 

by Dr. Jonathan S. Luchs, a Board-certified diagnostic radiologist, demonstrated left greater 

trochanteric bursitis, left gluteus medius tendinitis with intrasubstance longitudal partial tear 

without full-thickness tear, and insertional left gluteus medius tendinosis without full-thickness 

tear.

 

4 Docket No. 15-0830 (issued January 15, 2016), petition for recon. denied, Docket No. 15-0830 (issued

August 19, 2016); Docket No. 17-1460 (issued December 21, 2018), petition for recon. denied, Docket No. 17-1460 

(issued April 22, 2019).

5

Id.
3

In a December 27, 2016 narrative report, Dr. Carlos Montero, a Board-certified orthopedic 

surgeon, noted that appellant’s injury occurred while she was carrying and lifting heavy bags and 

placing the heavy bags into a postal container. He noted that appellant initially saw Dr. Andrew D. 

Brown, a Board-certified internist, who diagnosed a strain of the left hip with traumatic bursitis 

and iliotibial band syndrome with aggravation of degenerative joint disease. Dr. Montero related 

that appellant had a previous work-related injury on August 10, 2009, when a heavy box struck 

her right foot, causing a contusion of the right foot, a lumbar sprain, and a right foot crushing 

injury. He noted that the prior injury involved her right lower extremity and lumbar spine and that 

appellant was examined by him for the first time on November 10, 2016, with the chief complaint 

of severe pain in the left trochanteric region related to the left thigh and knee. Dr. Montero

examined appellant and provided findings which included a history of left hip pain localized in the 

left thigh. He also indicated that the examination disclosed full range of motion (ROM) in the left

hip, but painful at extremes. Dr. Montero noted that appellant walked with a cane due to the pain 

in her left thigh and that an examination of the hip disclosed no evidence of contractions. He

related that appellant had an intact neurovascular examination, her x-rays were unremarkable, and 

an MRI scan of the left hip revealed greater trochanteric bursitis, left gluteus medius tendinitis 

with intrasubstance longitudinal partial tear, and left gluteus medius tendinitis. Dr. Montero

diagnosed chronic left greater trochanteric bursitis unresponsive to treatment with gluteus medius 

tendinosis. He opined that appellant’s condition was related to her work injury on 

November 26, 2011. Dr. Montero advised that her condition was permanent, that she might 

require surgery, and that she was totally disabled from work.

By decision dated March 24, 2017, OWCP denied modification of its January 15, 2016 

decision.

On June 19, 2017 appellant, through counsel, filed an appeal to the Board. By decision 

dated December 21, 2018, the Board found that appellant had not met her burden of proof to 

establish that her left hip or low back conditions were causally related to the accepted 

November 26, 2011 employment incident.6

In a March 4, 2019 hospital report, Dr. Tadeusz Korszun, Board-certified in emergency 

medicine, noted that appellant was seen for left hip pain.

A March 4, 2019 report from a physician assistant assessed calcific bursitis of the left 

trochanter region. March 4, 2019 x-rays of the hip and femur revealed calcific bursitis on the left 

greater trochanteric region and no acute fracture or dislocation.

On December 6, 2019 appellant, through counsel, requested reconsideration and submitted 

additional evidence. The additional evidence consisted of copies of previously submitted reports 

which included a June 7, 2018 MRI scan of the lumbosacral spine, a copy of a November 29, 2016

MRI scan of the left hip, and an April 3, 2014 report from Dr. Brown.

By decision dated March 5, 2020, OWCP denied modification of its prior decision.

 

6 Supra note 4. 
4

LEGAL PRECEDENT

A claimant seeking benefits under FECA7has 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, that an injury was sustained in the performance of duty as alleged, and that any specific 

condition or disability claimed is causally related to the employment injury.8 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.9

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. 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. Second, the employee must 

submit sufficient evidence to establish that the employment incident caused a personal injury.10

The medical evidence required to establish causal relationship is rationalized medical 

opinion evidence.11 The opinion of the physician must be based on a complete factual and medical 

background of the employee, 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 

specific employment incident identified by the employee.12

ANALYSIS

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

condition causally related to the accepted November 26, 2011 employment incident.

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to March 24, 2017 as the Board considered that evidence in its 

January 15, 2016 and December 21, 2018 decisions and found that appellant had not met her 

burden of proof to establish an injury causally related to the accepted November 26, 2011 

 

7 Supra note 2.

8 See V.L., Docket No. 20-0884 (issued February 12, 2021); L.C., Docket No. 19-1301 (issued January 29, 2020); 

J.H., Docket No. 18-1637 (issued January 29, 2020); James E. Chadden, Sr., 40 ECAB 312 (1988).

9 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

Delores C. Ellyett, 41 ECAB 992 (1990).

10 T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

11 S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); 

Robert G. Morris, 48 ECAB 238 (1996).

12 T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); 

Victor J. Woodhams, 41 ECAB 345, 352 (1989).
5

employment incident. Findings made in prior Board decisions are res judicata absent any further 

review by OWCP under section 8128 of FECA.13

Appellant subsequently submitted reports dated March 4, 2019, in which Dr. Korszun 

noted that appellant was seen for left hip pain. However, as the Board has held, pain is a symptom, 

not a specific medical diagnosis.14 It is appellant’s burden of proof to obtain and submit medical 

documentation containing a firm diagnosis.15 This report is, therefore, insufficient to establish 

appellant’s claim.

A March 4, 2019 report from a physician assistant indicated a diagnoses of left trochanteric 

bursitis. However, the Board has previously explained that reports from a physician assistant do

not constitute competent medical evidence because physician assistants are not considered 

physicians as defined under FECA.16 This report is, therefore, also insufficient to establish 

appellant’s claim. 

March 4, 2019 x-rays of the hip and femur revealed calcific bursitis on the left greater 

trochanteric region and no acute fracture or dislocation. The Board has held that diagnostic studies 

standing alone lack probative value, as they do not address whether the employment incident 

caused a diagnosed condition.17 This report is, therefore, insufficient to establish causal 

relationship between appellant’s diagnosed condition and the accepted November 26, 2011 

employment incident. 

The Board, therefore, finds that appellant has not met her burden of proof as there is no 

medical evidence of record which contains a rationalized medical opinion of how the 

November 26, 2011 employment incident caused or aggravated a medical condition.18 Thus, 

appellant has not met her burden of proof.

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 S.M., Docket No. 19-1961 (issued January 28, 2021); V.G., Docket No. 19-0038 (issued June 18, 2019); 

B.W., Docket No. 17-0366 (issued June 7, 2017); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

14 See C.W., Docket No. 19-0468 (issued July 16, 2019); E.M., Docket No. 18-1599 (issued March 7, 2019); Federal 

(FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012) (findings of pain or 

discomfort alone do not satisfy the medical aspect of the fact of injury medical determination).

15 E.M., id.

16 Section 8101(2) of FECA provides that 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); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal 

Relationship, Chapter 2.805.3a(1) (January 2013); 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); see also C.K., Docket No. 19-1549 (issued June 30, 2020) (physician assistants are not considered physicians 

under FECA).

17 See J.S., Docket No. 19-0345 (issued August 11, 2020); J.S., Docket No. 17-1039 (issued October 6, 2017).

18 See C.C., Docket No. 17-1841 (issued December 6, 2018); George Randolph Taylor, 6 ECAB 986, 988 (1954) 

(where the Board found that a medical opinion not fortified by medical rationale is of little probative value).
6

CONCLUSION

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

condition causally related to the accepted November 26, 2011 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the March 5, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 5, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board