United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Los Angeles, CA, Employer

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Docket No. 21-0870

Issued: January 5, 2022

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 May 20, 2021 appellantfiled a timely appeal from a March 16, 2021 merit decision and 

a May 11, 2021 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 medical

condition causally related to the accepted February 4, 2021 employment incident; and (2) whether 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the May 11, 2021 decision, appellant submitted additional evidence to OWCP. 

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

OWCP properly denied appellant’s request for an oral hearing as untimely filed pursuant to 

5 U.S.C. § 8124(b).

FACTUAL HISTORY

On February 4, 2021 appellant, then a 40-year-old customs and border protection officer,

filed a traumatic injury claim (Form CA-1) alleging that on February 4, 2021 he sustained an injury 

to his lower back when performing an inspection of an aircraft while in the performance of duty. 

He explained that, while slightly bent at the waist, he turned left and up to inspect an open 

compartment and felt a pain in the lower right area of his back. Appellant stopped work on 

February 4, 2021.

In a February 9, 2021 development letter, OWCP informed appellant of the deficiencies of 

his claim. It advised him of the type of factual and medical evidence required and provided a 

questionnaire for his completion. OWCP afforded appellant 30 days to respond.

On February 7, 2021 appellant was treated in the emergency room by Dr. Angelique 

Campen, a Board-certified emergency room physician for back pain, which began on February 4, 

2021 while he was inspecting a plane at work. Findings on examination revealed tenderness to 

palpation with spasm of the right lumbar area. Dr. Campen advised that appellant’s symptoms 

were compatible with muscular skeletal back pain and there was no indication for imaging. She

diagnosed low back pain and discharged appellant in stable condition with work restrictions. In a 

note dated February 7, 2021, Dr. Campen returned him to modified-duty work on 

February 8, 2021. In an after visit summary of even date,she diagnosed lumbar sprain/strain initial 

encounter and provided information on back sprain/strain.

In a report dated February 8, 2021, Dr. James Kwok, a Board-certified physiatrist, treated 

appellant for lower back pain, which began on February 4, 2021. Findings on physical 

examination revealed tenderness to palpation in the left paralumbar area. On a state workers’

compensation form, Dr. Kwok diagnosed lumbar strain, initial encounter and checked a box 

marked “Yes” that his findings and diagnosis were consistent with appellant’s account of injury. 

He recommended hot and cold compresses and a back and hip wrap. Dr. Kwok returned appellant 

to modified-duty work on February 8, 2021. 

Appellant was treated by Gabriel Chang, a physician assistant, on February 8, 2021 for low 

back pain. He reported working as a customs officer and on February 4, 2021 he was performing 

an inspection of the underbelly of an aircraft when he bent over and turned to look up toward the 

left and suddenly felt back pain. Examination of the lumbar spine revealed tenderness to palpation 

in the left paralumbar area. Mr. Chang diagnosed lumbar strain, initial encounter and 

recommended oral analgesics, cold/heat wrap, and hot/cold compress. He returned appellant to 

modified-duty work. In work activity status reports dated February 8, 2021, Mr. Chang diagnosed 

lumbar strain, initial encounter. He released appellant to modified work duty. 

On February 12, 2021 Mr. Chang treated appellant in follow up and reported that his back 

pain had resolved. He diagnosed lumbar strain and indicated that appellant reached maximum 

medical improvement (MMI) and could return to full duty. In a work activity status report dated 

February 12, 2012, Mr. Chang diagnosed lumbar strain, initial encounter and returned appellant to 

full duty. He noted MMI was reached on February 12, 2021 and released him from his care.
3

By decision dated March 16, 2021, OWCP denied appellant’s traumatic injury claim, 

finding that the medical evidence submitted was insufficient to establish causal relationship 

between his diagnosed condition and the accepted February 4, 2021 employment incident.

In an appeal request form dated April 26, 2021, appellant requested an oral hearing before 

a representative of OWCP’s Branch of Hearings and Review.

By decision dated May 11, 2021, OWCP denied appellant’s April 26, 2021 request for an 

oral hearing as untimely filed, finding that his request was not made within 30 days of the 

March 16, 2021 OWCP decision. It further exercised discretion and determined that the issue in 

this case could equally well be addressed by requesting reconsideration and submitting evidence 

not previously considered.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA3 has 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,4that 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.5 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.6

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 and place, and in the manner alleged. Second, the employee must 

submit sufficient evidence to establish that the employment incident caused a personal injury. 7

The medical evidence required to establish causal relationship is rationalized medical 

opinion evidence.8 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 

3

Supra note 1.

4 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); JoeD. 

Cameron, 41 ECAB 153 (1989).

5 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).

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

DeloresC. Ellyett, 41 ECAB 992 (1990).

7 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).

8

S.S.,Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April24, 2019); RobertG. 

Morris, 48 ECAB 238 (1996).
4

by medical rationale explaining the nature of the relationship between the diagnosed condition and 

specific employment incident identified by the employee.9

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 February 4, 2021 employment incident.

On February 7, 2021 Dr. Campen treated appellant for back pain that began on February 4, 

2021 while he was inspecting a plane at work. She diagnosed low back pain. The Board has held 

that pain is a symptom and not a compensable medical diagnosis. 10 Accordingly, this report is 

insufficient to meet appellant’s burden of proof.

Dr. Campen submitted another note dated February 7, 2021 returning appellant to 

modified-duty work on February 8, 2021. She completed an after visit summary and diagnosed 

lumbar sprain/strain initial encounter. Similarly, in a report dated February 8, 2021, Dr. Kwok 

treated appellant for lower back pain that began on February 4, 2021. He diagnosed lumbar strain, 

initial encounter and checked a box marked “Yes” that his findings and diagnosis was consistent 

with appellant’s account of injury. However, Drs. Campen and Kwok did not offer an opinion on 

causal relationship. As the Board has held, medical evidence that does not offer an opinion 

regarding the cause of an employee’s condition or disability is of no probative value on the issue 

of causal relationship.11 Thus, the Board finds that these reports are insufficient to meet appellant’s 

burden of proof.

Appellant submitted reports from a physician assistant. However, certain healthcare 

providers such as physician assistants12 are not considered “physician[s]” as defined under 

FECA.13 Consequently, their medical findings and/or opinions will not suffice for purposes of 

establishing entitlement to FECA benefits.

14

9 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).

10 G.L., Docket No. 18-1057 (issued April14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, supranote 4.

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

12 C.P., Docket No. 19-1716 (issued March 11, 2020) (a physician assistant is not a physician as defined under 

FECA). 

13 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 also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal 

Relationship, Chapter 2.805.3a(1) (January 2013);DavidP. 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).

14 Id.
5

As the record lacks rationalized medical evidence establishing causal relationship between 

a medical condition and the accepted February 4, 2021 employment incident, the Board finds that 

appellant has not met his 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. 

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with 

a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance 

of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”

15

 

Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide 

that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a 

representative of the Secretary.16 A claimantis entitled to a hearing or review of the written record 

as a matter of right only if the request is filed within the requisite 30 days as determined by 

postmark or other carrier’s date marking and before the claimant has requested reconsideration. 17 

Although there is no right to a review of the written record or an oral hearing, if not requested 

within the 30-day time period, OWCP may within its discretionary powers grant or deny 

appellant’s request and must exercise its discretion.

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for an oral hearing as 

untimely filed pursuant to 5 U.S.C. § 8124.

OWCP’s regulations provide that the request for an oral hearing must be made within 30 

days of the date of the decision for which a review is sought. Because appellant’s hearing request 

was dated April 26, 2021, it post-dated OWCP’s March 16, 2021 decision by more than 30 days 

and, therefore, is untimely. Appellant was, therefore, not entitled to an oral hearing as a matter of 

right.18

OWCP, however, has the discretionary authority to grant the request and it must exercise 

such discretion.19 The Board finds that, in the May 11, 2021 decision, OWCP’s Branch of 

Hearings and Review properly exercised its discretion by determining that the issue in the case 

could be equally well addressed through a request for reconsideration before OWCP, along with 

the submission of additional evidence.

15 5 U.S.C. § 8124(b)(1).

16 20 C.F.R. §§ 10.616, 10.617.

17 Id. at § 10.616(a).

18 See P.C., Docket No. 19-1003 (issued December 4, 2019).

19 Id.
6

The Board has held that the only limitation on OWCP’s authority is reasonableness. An 

abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable 

exercise of judgment or actions taken which are contrary to both logic and probable deductions 

from established facts.20 In this case, the evidence of record does not indicate that OWCP abused 

its discretion by denying appellant’s request for an oral hearing. Accordingly, the Board finds that 

OWCP properly denied his request for an oral hearing pursuant to 5 U.S.C. § 8124(b).

CONCLUSION

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

condition causally related to the accepted February 4, 2021 employment incident. The Board 

further finds that OWCP properly denied his request for an oral hearing as untimely filed pursuant 

to 5 U.S.C. § 8124(b).

ORDER

IT IS HEREBY ORDERED THAT the March 16 and May 11, 2021 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: January 5, 2022

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

20 Id.