United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.V., Appellant

and

U.S. POSTAL SERVICE, MAIN POST OFFICE, 

Berkeley, CA, Employer

__________________________________________

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Docket No. 18-0289

Issued: August 3, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 22, 2017 appellant filed a timely appeal from an August 2, 2017 merit 

decision and a September 27, 2017 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.

ISSUES

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

left leg injuries in the performance of duty, as alleged; 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 June 7, 2017 appellant, then a 56-year-old distribution/sales associate, filed an 

occupational disease claim (Form CA-2) alleging that she experienced aggravated pain in her back 

 

 

1 5 U.S.C. § 8101 et seq.
2

and left leg due to continuous standing for six and one-half hours, walking back and forth to an 

all-purpose container (APC) machine and a counter, and providing relief on windows during the 

course of her federal employment. She alleged that she first became aware of her claimed 

condition and its relationship to her federal employment on May 24, 2017. In an accompanying 

narrative statement dated May 25, 2017, appellant reiterated that her work duties involved 

prolonged standing and walking and using an APC machine. She also related that she worked in 

a lobby where she assisted customers and accepted and processed Priority Mail and parcels. 

Appellant attributed severe pain in her lower back and left leg to performing window services in 

the lobby. However, prior to the filing of her Form CA-2 in the instant claim and prior to 

completion of the narrative statement, the employing establishment offered appellant a modified 

assignment as an MPOS/lunch relief clerk on February 10, 2017. Appellant accepted this position 

on that same date. The job offer was effective as of February 11, 2017, and noted a July 15, 2016 

date of injury. The modified assignment required sitting up to eight hours a day in a lobby with 

an MPOS device, lunch relief at a front window, and lifting up to 15 pounds, zero to two hours a 

day.

On May 30, 2017 appellant completed a Kaiser Permanente initial industrial visit 

questionnaire. She indicated a date of injury as May 24, 2017. Appellant provided a history of 

injury as continuous standing, walking, and reaching over which aggravated pain in her lower back 

and left leg.

In a March 29, 2017 industrial work status report, Dr. Brian E. Knapp, a physician Boardcertified in occupational medicine, noted July 15, 2016 as the date of injury. He also noted a 

diagnosis of osteoarthritis of the right acromioclavicular joint and right shoulder internal 

impingement. Dr. Knapp indicated that appellant’s previsit work status was working modified 

duty and listed her permanent restrictions. 

In a May 26, 2017 work status report, Dr. Eric J. Crisostomo, a Board-certified internist,

placed appellant off work through May 30, 2017. He also placed her on modified activity at home 

and work from May 31 through July 2, 2017. Dr. Crisostomo advised that, if modified activity 

was not accommodated by the employing establishment, then appellant was considered 

temporarily totally disabled from her regular work for the designated time and a separate off work 

order was not required.

OWCP, by development letter dated June 14, 2017, informed appellant that the evidence 

of record was insufficient to support her claim. It provided a questionnaire for completion and 

advised her to provide a job offer or position description regarding the duties of her position and 

to describe in detail the employment-related activities which she believed contributed to her 

condition, how often she performed the activities described, for how long on each occasion, and 

all activities and hobbies outside of her federal employment. OWCP also requested that appellant 

submit medical evidence, including a detailed narrative report from her physician, which included 

a history of the injury and a medical explanation with objective evidence of how the reported work 

activities caused, contributed to, or aggravated the claimed condition. It afforded her 30 days to 

submit the requested information. 

In support of her claim, appellant submitted a July 2, 2017 letter from Dr. Crisostomo. 

Dr. Crisostomo reported that she had symptoms of lower back pain with radiation down her left 
3

leg and right shoulder pain. He further reported that the low back pain started sometime in 2014 

and appellant felt that it was related to lifting packages and twisting to set them down. 

Dr. Crisostomo noted one instance in 2015 where she lifted a heavy box and strained her back. He 

related that appellant felt her right shoulder pain was due to repetitive lifting and reaching 

overhead. Dr. Crisostomo maintained that her symptoms certainly could be due to such activities 

especially if she had to consistently perform them (lifting, reaching). He provided a history of 

appellant’s medical treatment for these symptoms from April 18, 2016 to June 9, 2017 by an 

occupational medicine physician and himself. Dr. Crisostomo related that she was diagnosed with 

spinal stenosis, spinal degenerative joint/disc disease, and right shoulder impingement syndrome. 

He indicated that a February 2015 lumbar spine magnetic resonance imaging scan showed L4-5 

spinal stenosis and multilevel degenerative joint disease and degenerative disc disease. 

Dr. Crisostomo related that, so far, certain treatment measures had failed to provide lasting relief 

of appellant’s symptoms. He listed her work restrictions.

By decision dated August 2, 2017, OWCP denied appellant’s claim, finding that she had 

not established the factual portion of her claim as she provided an inconsistent history of injury. 

OWCP noted that she had already commenced work in her modified position on the date that she 

alleged her occupational disease arose. It also noted that she had failed to respond to its 

development letter and submit a copy of her modified job duties. OWCP also noted that her 

description of the job duties she alleged resulted in her injury were inconsistent with the job duties 

set forth in the medical report of Dr. Crisostomo. Finally, it found that appellant failed to submit 

sufficient medical evidence to establish that her diagnosed medical conditions were causally 

related to the work injury or event.

On September 5, 2017 appellant requested reconsideration. She noted that she was 

submitting new documentation from her physician, which indicated that her job duties caused her 

condition. Appellant also noted that she was submitting documentation from Dr. Knapp, which

documented her lumbosacral joint sprain (back). OWCP, however, did not receive any new 

medical evidence. 

By decision dated September 27, 2017, OWCP denied appellant’s request for 

reconsideration of the merits of her claim. It found that her request for reconsideration neither 

raised substantive legal questions, nor included relevant and pertinent new evidence.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA2 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 

 

2 Supra note 1.
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employment injury.3 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed; (2) a factual 

statement identifying employment factors alleged to have caused or contributed to the presence or 

occurrence of the disease or condition; and (3) medical evidence establishing that the employment 

factors identified by the claimant were the proximate cause of the condition for which 

compensation is claimed or, stated differently, medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the claimant. 

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 employee, must be one of reasonable 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 employee.5 

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish back and left 

leg injuries in the performance of duty, as alleged.

Appellant alleged that she developed back and left leg pain as a result of continuously 

standing for six and one-half hours, walking to an APC machine and a counter, and assisting 

customers and accepting and processing Priority Mail and parcels at a lobby window. She 

contended that she first became aware of her condition and its relationship to her federal 

employment on May 24, 2017. OWCP denied appellant’s claim, finding that she failed to establish 

fact of injury.

The Board finds that there are inconsistencies in the record with regard to how the alleged 

injuries occurred. In the June 7, 2017 Form CA-2 and accompanying May 25, 2017 narrative 

statement, appellant alleged that her distribution/sales associate duties, which involved continuous 

standing for six and one-half hours, walking to an APC machine and a counter, and assisting 

customers and accepting and processing Priority Mail and parcels at a lobby window, caused her 

back and left leg injuries. However, the employing establishment’s February 10, 2017 job offer 

indicates that prior to the filing of her occupational disease claim in the instant case, appellant had 

accepted a modified MPOS/lunch relief clerk position, effective February 11, 2017. The position 

required sitting up to eight hours a day in a lobby with an MPOS device, lunch relief at a front 

window, and lifting up to 15 pounds zero to two hours a day. The job position and work duties 

are different than the position and work duties appellant alleged caused her claimed injuries. 

 

 

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

 

4 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

 

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I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.
5

Further, Dr. Knapp’s March 29, 2017 industrial work status report implicates that appellant was 

performing modified-duty work prior to the filing of her occupational disease claim. He noted that 

appellant’s work status prior to her visit with him was modified duty. Appellant did not respond 

to a questionnaire and failed to provide a job offer or position description regarding the job duties 

which she believed contributed to her claimed back and left leg conditions as requested by OWCP

in its June 14, 2017 development letter.

There are also inconsistencies regarding the date of injury and appellant’s actual injuries. 

The employing establishment’s February 10, 2017 job offer and Dr. Knapp’s March 29, 2017 

industrial work status report listed July 15, 2016 as the date of injury, a different date of injury 

than that provided by appellant. In addition, Dr. Knapp provided right shoulder diagnoses which 

are not consistent with the back and left leg conditions appellant alleged that she developed as a 

result of her work duties. Moreover, while Dr. Crisostomo’s July 2, 2017 letter found that 

appellant’s back and right shoulder conditions could be due to lifting heavy packages and twisting, 

this history of injury contradicts appellant’s claim of sustaining back and left leg injuries due to 

continuous standing for six and one-half hours, walking to an APC machine and a counter, and 

assisting customers and accepting and processing Priority Mail and parcels at a lobby window. As 

noted, appellant did not respond to OWCP’s questionnaire and failed to submit a job offer or 

position description concerning the job duties which she believed contributed to her claimed back 

and left leg conditions.

For the reasons set forth above, the Board finds that appellant has not sufficiently 

established the employment activities alleged to have caused or contributed to her claimed 

conditions to meet her burden of proof.6 As appellant has not established the factual component 

of her claim, the Board will not address the medical evidence with respect to causal relationship.7

On appeal appellant describes her work duties that she believes caused her claimed back 

and left leg injuries. She relates that a supervisor instructed her to walk customers over to an APC

machine and then she walked back to her station. Appellant relates that she was also instructed to 

sell stamps and mail customers’ packages with a mobile POS machine which could not be done 

while sitting down. She maintains that she stood and walked back and forth up to six hours each 

day. However, for the reasons discussed above, appellant failed to establish fact of injury. 

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 of FECA vests OWCP with a discretionary authority to determine whether it 

will review an award for or against compensation, either under its own authority or on application 

 

6 W.C., Docket No. 15-1123 (issued November 13, 2015).

7 See T.C., Docket No. 17-1449 (issued November 17, 2017); B.G., Docket No. 16-1454 (issued 

November 22, 2016).
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by a claimant.8 Section 10.608(b) of OWCP’s regulations provide that a timely request for 

reconsideration may be granted if OWCP determines that the claimant has presented evidence 

and/or argument that meet at least one of the standards described in section 10.606(b)(3).9 This 

section provides that the application for reconsideration must be submitted in writing and 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.10 Section 10.608(b) provides that when a request for reconsideration is 

timely but fails to meet at least one of these three requirements, OWCP will deny the application 

for reconsideration without reopening the case for a review on the merits.11

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a).

Appellant disagreed with OWCP’s denial of her occupational disease claim for back and 

left leg injuries causally related to alleged factors of her federal employment. On September 5, 

2017 she requested reconsideration. Appellant did not allege that OWCP erroneously applied or 

interpreted a specific point of law or advance a legal argument not previously considered by 

OWCP. Thus, she is not entitled to a review of the merits of her claim based on the first and 

second above-noted requirements under section 10.606(b)(3).

In her September 5, 2017 request for reconsideration, appellant indicated that new evidence 

would be submitted. However, the record does not reflect that any new evidence was received by 

OWCP. Appellant did not submit any relevant and pertinent new evidence in support of her 

request for reconsideration.12

The Board finds that appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

provide relevant and pertinent new evidence not previously considered by OWCP. Appellant 

therefore did not meet 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.13

 

8 5 U.S.C. § 8128(a).

9 20 C.F.R. § 10.608(a).

 

10 Id. at § 10.606(b)(3).

11 Id. at § 10.608(b).

12 See Patricia G. Aiken, 57 ECAB 441 (2006); A.C., Docket No. 12-1866 (issued January 23, 2013).

13 See A.R., Docket No. 16-1416 (issued April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K.,

Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); 

(when an application for reconsideration does not meet at least one of the three requirements enumerated under section

10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review on the merits).
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CONCLUSION

The Board finds that appellant has not met her burden of proof to establish back and left 

leg injuries in the performance of duty, as alleged. 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 September 27 and August 2, 2017 decisions of 

the Office of Workers’ Compensation Programs are affirmed.

Issued: August 3, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board