United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.K., Appellant

and

U.S. POSTAL SERVICE, OSHKOSH POST 

OFFICE, Oshkosh, WI, Employer

__________________________________________

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Docket No. 20-1246

Issued: July 13, 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 1, 2020 appellant filed a timely appeal from a January 8, 2020 merit decision and 

a March 31, 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

ISSUE

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

condition causally related to the accepted November 5, 2019 employment incident; and 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the March 31, 2020 decision, appellant submitted additional evidence on appeal.

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

(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 5, 2019 appellant, then a 54-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he sustained a left ankle sprain when delivering mail 

he slipped and tripped over a stick covered in leaves while in the performance of duty. He stopped 

work that day.

In a November 5, 2019 return-to-work report, Angela Obermeier, a certified physician 

assistant, diagnosed an anterior talofibular ligament sprain of the left ankle. 

In a November 6, 2019 medical report, Dr. Timothy J. Bergan, an occupational medicine 

specialist, indicated that appellant sustained a work-related injury on November 5, 2019 and 

diagnosed an anterior talofibular ligament sprain of the left ankle. He advised that appellant could 

return to work with restrictions on November 6, 2019. 

In a development letter dated November 22, 2019, OWCP informed appellant that, when 

his claim was received, it appeared to be a minor injury that resulted in minimal or no lost time 

from work and; therefore, payment of a limited amount of medical expenses was administratively 

approved without formal consideration of the merits of his claim. It had now reopened appellant’s 

claim for consideration of the merits. OWCP informed him of the deficiencies of his claim and 

requested additional medical evidence. It afforded appellant 30 days to respond. 

In a November 20, 2019 medical report, Dr. Bergan again indicated that appellant 

sustained a work-related injury on November 5, 2019 and reiterated his diagnosis of an anterior 

talofibular ligament sprain of the left ankle. He revised his opinion that appellant could return to 

work with restrictions on November 20, 2019. 

By decision dated January 8, 2020, OWCP denied appellant’s traumatic injury claim, 

finding that he had not submitted medical evidence containing a diagnosis in connection with the 

accepted November 5, 2019 employment incident. It concluded, therefore, that the requirements 

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

On January 21, 2020 appellant requested reconsideration.

By decision dated March 31, 2020, OWCP denied appellant’s request for reconsideration 

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

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA3has 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 

 

3 Supra note 2.
3

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. 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. The second component is whether the employment incident 

caused a personal injury and can be established only by medical evidence.7 

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

condition and an employment incident 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 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 left ankle 

condition causally related to the accepted November 5, 2019 employment incident.

In medical reports dated November 6 and 20, 2019, Dr. Bergan indicated that appellant 

sustained a November 5, 2019 work-related injury and diagnosed an anterior talofibular ligament 

sprain of the left ankle. While Dr. Bergan provided a diagnosis, he failed to provide a specific 

history of injury or any explanation of how the accepted November 5, 2019 employment incident 

caused appellant’s left ankle sprain. The Board has held that a medical opinion should reflect a 

correct history and offer a medically-sound explanation by the physician regarding how the 

specific employment incident caused or aggravated the diagnosed conditions.10 Without 

 

4 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). 

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); 

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

7 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).

8 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).

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 B.M., Docket No. 19-1341 (issued August 12, 2020); S.J., Docket No. 20-0157 (issued April 1, 2020).
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explaining, physiologically, how the accepted employment incident caused or contributed to the 

diagnosed conditions, Dr. Bergan’s reports are of limited probative value.11 Accordingly, the 

Board finds that the reports are insufficient to establish appellant’s claim.

Appellant also submitted a November 5, 2019 report from Ms. Obermeier, a physician 

assistant. The Board has held, however, that medical reports signed solely by a physician assistant 

are of no probative value as physician assistants are not considered physicians as defined under 

FECA.12 As such, this evidence is of no probative value and is also insufficient to establish 

appellant’s claim.

As there is no evidence of record that establishes a causal relationship between his 

diagnosed left ankle condition and the accepted November 5, 2019 employment incident, the 

Board finds that appellant has not met his burden of proof.

13

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 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.14

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.15

 

11 See J.J., Docket No. 19-1783 (issued March 30, 2020); J.G., Docket No. 19-1116 (issued November 25, 2019); 

E.G., Docket No. 19-0914 (issued October 18, 2019); A.B., Docket No. 16-1163 (issued September 8, 2017).

12 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). See also 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); M.W., Docket 

No. 19-1667 (issued June 29, 2020) (physician assistants are not considered physicians under FECA).

13 J.L., Docket No. 18-1804 (issued April 12, 2019); M.H., Docket No. 18-1737 (issued March 13, 2019); John J. 

Carlone, supra note 7.

14 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).

15 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).
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A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.16 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.17 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.18

ANALYSIS -- ISSUE 2

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

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

With his January 21, 2020 request for reconsideration, appellant submitted no additional 

argument or evidence. The Board, therefore, finds that appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law or advance a relevant legal argument not 

previously considered by OWCP, nor did he submit relevant and pertinent new evidence not 

previously considered by OWCP.19

The Board, therefore, finds that appellant has not met 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.20

CONCLUSION

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

condition causally related to the accepted November 5, 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).

 

16 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.

17 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).

18 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). 

19 Supra note 15. See also A.G., Docket No. 20-0290 (issued June 24, 2020); G.Q., Docket No. 18-1697 (issued 

March 21, 2019).

20 C.A., Docket No. 19-0160 (issued January 16, 2020); L.E., Docket No. 19-0470 (issued August 12, 2019).
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ORDER

IT IS HEREBY ORDERED THAT the March 31 and January 8, 2020 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: July 13, 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