United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.L., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, FEDERAL 

CORRECTIONAL INSTITUTION, 

Danbury, CT, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 20-1403

Issued: July 21, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 22, 2020 appellant, through counsel, filed a timely appeal from a January 29, 2020 

merit decision and a February 27, 2020 nonmerit decision of the Office of Workers’ Compensation

 

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

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

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish a medical

condition causally related to the accepted October 30, 2019 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 November 1, 2019 appellant, then a 44-year-old correctional systems officer, filed a 

traumatic injury claim (Form CA-1) alleging that on October 30, 2019 he injured his back, neck, 

and hand when his vehicle was struck on the rear passenger side by another vehicle while in the 

performance of duty. He noted that he had a sore back and neck, as well as a tingling sensation in 

his fingers. Appellant stopped work on October 30, 2019 and returned to work on 

November 1, 2019.

In a development letter dated November 7, 2019, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of factual and medical evidence needed and 

provided a factual questionnaire for his completion. In a separate development letter of even date, 

OWCP also requested additional information from the employing establishment. It afforded both 

parties 30 days to respond. 

In a November 6, 2019 medical report, Dr. Aditya Patel, Board-certified in pain medicine, 

indicated that appellant was involved in a motor vehicle collision (MVC) and diagnosed 

cervical/thoracic herniated nucleus pulposus (HNP).

A November 9, 2019 magnetic resonance imaging (MRI) scan of the cervical spine 

demonstrated multilevel interspace narrowing and dehydration, central disc bulge at C2-3, right 

paracentral disc herniation at C3-4 effacing the anterolateral aspect of the subarachnoid space with 

right-sided neural foraminal narrowing, central disc bulge at C4-5, central and left lateral disc 

herniation at C4-5 effacing the anterolateral subarachnoid space with left-sided neural foraminal 

narrowing, central disc bulge at C6-7, and subligamentous central disc herniation at C7-T1 

abutting the ventral aspect of the spinal cord.

In a November 18, 2019 response to OWCP’s questionnaire, appellant alleged that he was 

leaving the employing establishment’s parking lot when his vehicle was struck on the rear 

passenger side by another vehicle. He noted that he had no immediate symptoms following his 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the February 27, 2020 decision, appellant submitted 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.
3

MVC, but eventually began to experience a tingling sensation in three fingers in the left hand and 

soreness in the upper back and the left side of his neck.

A November 26, 2019 MRI scan of the thoracic spine demonstrated multilevel spondylosis,

multilevel interspace narrowing and dehydration, central and left paracentral disc bulge at T1-2, 

central disc bulge at T2-3, mild left lateral disc herniation at T3-4, central disc herniation with 

right neuroforaminal narrowing at T4-5, broad-based disc herniation partly effacing the anterior 

subarachnoid space at T6-7, broad-based and right paracentral disc herniation at T8-9, and central 

and right paracentral disc herniation at T11-12.

In a December 8, 2019 medical report, Dr. Daniel Schlusselberg, a diagnostic radiologist, 

noted that appellant was injured on October 30, 2019 and diagnosed thoracic spine pain and 

cervical radiculopathy.

By decision dated December 16, 2019, OWCP denied appellant’s traumatic injury claim, 

finding that he had not submitted sufficient evidence to establish causal relationship between his 

diagnosed conditions and the accepted October 30, 2019 employment incident. 

On January 28, 2020 appellant requested reconsideration.

In a January 15, 2020 narrative report, Dr. Sukdeb Datta, Board-certified in pain medicine, 

noted that appellant presented with neck, back, and left upper extremity pain, as well as headache. 

He indicated that appellant sustained multiple injuries from being involved in an MVC at work on 

October 30, 2019 when he was leaving his work facility. Dr. Datta reviewed appellant’s MRI 

scans of the cervical and thoracic spines and an electromyography and nerve conduction velocity 

(EMG/NCV) study of the left upper extremity. He also conducted a physical examination and 

diagnosed cervical and thoracic disc herniation, spondylosis, and radiculopathy. Based on 

appellant’s history and physical examination findings, Dr. Datta opined to a reasonable degree of 

medical certainty that the accepted October 30, 2019 employment incident caused his diagnosed 

conditions.

By decision dated January 29, 2020, OWCP denied modification of the December 16, 2019 

decision. 

On February 13, 2020 appellant requested reconsideration. With his request, he

resubmitted copies of the November 9, 2019 cervical spine MRI scan and the November 26, 2019 

thoracic spine MRI scan, as well as the January 15, 2020 report from Dr. Datta, previously of 

record.

By decision dated February 27, 2020, OWCP denied appellant’s request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
4

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 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,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 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 fact of injury. 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 component is whether the employment incident 

caused a personal injury and can be established only by medical evidence.8 

The medical evidence required to establish causal relationship between a claimed specific 

condition and an employment incident is rationalized medical opinion evidence.9 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 factors 

identified by the employee.10

ANALYSIS -- ISSUE 1

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

condition causally related to the accepted October 30, 2019 employment incident. 

 

4 Supra note 2.

5 F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. 

Cameron, 41 ECAB 153 (1989). 

6 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).

7 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).

8 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

9 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).

10 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

In a January 15, 2020 narrative report, Dr. Datta provided a history of the accepted 

October 30, 2019 employment incident, discussed his examination findings, and diagnosed 

cervical and thoracic disc herniation, spondylosis, and radiculopathy. Based on appellant’s history 

and physical examination findings, he opined, to a reasonable degree of medical certainty, that 

appellant’s accepted October 30, 2019 employment incident caused his diagnosed conditions. 

While his opinion is generally supportive of causal relationship, Dr. Datta has not provided 

adequate medical rationale explaining how and why he believes that being involved in a workrelated MVC could have resulted in or contributed to the diagnosed conditions. The Board has 

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

medical rationale explaining how a given medical condition/disability was related to the 

employment incident.11 Therefore, this report is insufficient to establish appellant’s claim.

In a November 6, 2019 medical report, Dr. Patel indicated that appellant was involved in

an MVC. He diagnosed cervical/thoracic HNP, but failed to specifically relate the diagnosed 

condition to the accepted October 30, 2019 employment incident. The Board has held that medical 

evidence that does not offer an opinion regarding the cause of an employee’s condition is of no 

probative value on the issue of causal relationship.12 Thus, the report is also insufficient to meet 

appellant’s burden of proof.

Dr. Schlusselberg, in his December 8, 2019 report, indicated that appellant was injured on 

October 30, 2019 and diagnosed thoracic spine pain and cervical radiculopathy. However, the 

Board has held that pain is a symptom and not a compensable medical diagnosis.13 Lacking a firm 

diagnosis and reasoned medical opinion regarding causal relationship, this report is also 

insufficient to meet appellant’s burden of proof.14

Appellant additionally submitted a November 9, 2019 cervical spine MRI scan and a 

November 26, 2019 thoracic spine MRI scan. The Board has held, however, that diagnostic 

studies, standing alone, lack probative value on the issue of causal relationship as they do not 

provide an opinion on causal relationship between an employment incident and a diagnosed 

condition.15

As appellant has not submitted sufficient medical evidence to establish a medical condition 

causally related to the accepted October 30, 2019 employment injury, the Board finds that he has 

not met his burden of proof to establish his claim.

 

11 See S.Y., Docket No. 20-0470 (issued July 15, 2020); T.J., Docket No. 19-1339 (issued March 4, 2020).

12 N.D., Docket No. 20-0991 (issued January 12, 2021); J.R., Docket No. 20-0292 (issued June 26, 2020); L.B., 

Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13 S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

14 J.R., supra note 12; T.G., Docket No. 19-0904 (issued November 25, 2019).

15 M.M., Docket No. 20-0019 (issued May 6, 2020).
6

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 vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.16

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (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.17

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.18 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.19 If the request is timely, but fails to meet at least one of the 

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.20

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 has not alleged or demonstrated that OWCP erroneously applied or interpreted 

a specific point of law. Moreover, he has not advanced a relevant legal argument not previously 

 

16 5 U.S.C. § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued 

February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).

17 20 C.F.R. § 10.606(b)(3); see also E.W., Docket No. 19-1393 (issued January 29, 2020); L.D., id.; B.W., Docket 

No. 18-1259 (issued January 25, 2019).

18 Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

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.

19 Id. at § 10.608(a); see also Y.H., Docket No. 18-1618 (issued January 21, 2020); R.W., Docket No. 18-1324 

(issued January 21, 2020); M.S., 59 ECAB 231 (2007).

20 Id. at § 10.608(b); D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., Docket No. 19-0291 (issued 

June 21, 2019). 
7

considered. Consequently, appellant is not entitled to a 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).21

Further, appellant has not provided relevant and pertinent new evidence in support of his

request for reconsideration. On reconsideration he resubmitted copies of the November 9, 2019 

cervical spine MRI scan and the November 26, 2019 thoracic spine MRI scan, as well as the 

January 15, 2020 report from Dr. Datta. 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 and thus, these reports also insufficient to warrant a merit 

review.22 As appellant failed to provide relevant and pertinent new evidence related to the 

underlying issue of causal relationship, he was not entitled to a merit review based on the third 

requirement under 20 C.F.R. § 10.606(b)(3).

The Board accordingly finds that OWCP properly determined that appellant was not 

entitled to further review of the merits of his claim pursuant to any of the three requirements under 

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.23

CONCLUSION

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

condition causally related to the accepted October 30, 2019 employment incident. The Board 

further finds that OWCP properly denied his request for reconsideration of the merits of his claim 

pursuant to 5 U.S.C. § 8128(a).

 

21 See M.O., Docket No. 19-1677 (issued February 25, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).

22 D.M., Docket No. 18-1003 (issued July 16, 2020); L.C., Docket No. 19-0503 (issued February 7, 2020); A.A., 

Docket No. 18-0031 (issued April 5, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984).

23 D.M., id.; Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one 

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

without reopening the case for a review on the merits).
8

ORDER

IT IS HEREBY ORDERED THAT the February 27, 2020 and January 29, 2020 

decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: July 21, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board