United States Department of Labor

Employees’ Compensation Appeals Board

R.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

SHERIDAN VETERANS AFFAIRS MEDICAL 

CENTER, Sheridan WY, Employer

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Docket No. 21-1382

Issued: March 7, 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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 15, 20201 appellant filed a timely appeal from a February 5, 2020 merit decision 

and an April 29, 2020 nonmerit decision of the Office of Workers’ Compensation Programs 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from February 5, 2020, the date of OWCP’s last decision, was 

August 3, 2020. Because using September 9, 2021, the date the appeal was received by the Clerk of the Appellate 

Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filin g. The date of 

the U.S. Postal Service postmark is May 15, 2020, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

(OWCP).2 Pursuant to the Federal Employee’s Compensation Act3(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 his burden of proof to establish a diagnosed

medical condition causally related to the accepted August 28, 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 September 2, 2019 appellant, then a 54-year-old police officer, filed a traumatic injury 

claim (Form CA-1) alleging on August 28, 2019 he injured his lower back and was exposed to 

blood when escorting and controlling a patient while in the performance of duty. He stopped work 

on August 30, 2019. On the reverse of the claim form, appellant’s supervisor acknowledged that 

appellant was in the performance of duty.

On August 30, 2019 Melanie Kawalok, a family nurse practitioner, opined that appellant 

was partially disabled from work and recommended light duty with lifting restrictions.

In a development letter dated September 18, 2019, OWCP informed appellant of the 

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

needed and provided a questionnaire for his completion. OWCP afforded appellant 30 days to 

submit the necessary evidence. Appellant did not respond.

By decision dated October 21, 2019, OWCP accepted that the August 18, 2019 incident 

occurred as alleged, but denied appellant’s traumatic injury claim, finding that he had not 

submitted evidence containing a medical diagnosis in connection with the injury. Consequently, 

it found that he had not met the requirements to establish an injury as defined by FECA.

On November 8, 2019 appellant requested reconsideration of the October 21, 2019 

decision. He provided the completed September 18, 2019 development questionnaire and asserted 

that he did not initially experience low back pain and was more concerned about the blood 

exposure that had occurred on the date of injury. Appellant noted that he first sought medical 

treatment on September 9, 2019.

Appellant resubmitted the August 30, 2019 note from Ms. Kawalok and provided an 

additional September 7, 2019 note that she completed. On September 11, 2019 Sean Schoonover, 

2 The Board notes that,following the April29, 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.

3

5 U.S.C. § 8101et seq.
3

a physician assistant, completed a form report and a work release note. He also completed form 

reports on November 7, 2019.

On February 5, 2020 OWCP denied modification of its October 21, 2019 decision. 

OWCP continued to receive evidence. Appellant submitted September 25 and October 28, 

2019 notes from Mr. Schoonover who noted that he presented with continued complaints of low 

back pain. He also resubmitted copies of Mr. Schoonover’s September 11 and November 7, 2019 

notes.

On April 3, 2020 appellant requested reconsideration of OWCP’s February 5, 2020 

decision. 

By decision dated April 29, 2020, OWCP denied reconsideration of the merits of 

appellant’s claim.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA4 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 FECA, that the claim was timely filed within the applicable time 

limitation period 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 must first be determined whether fact of injury has been established. There 

are two components involved in establishing fact of injury. The first component is that 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.8

4

Id.

5 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).

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); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

8 T.H., Docket No. 19-0599 (issued January28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).
4

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 August 28, 2019 employment incident.

In support of his claim, appellant submitted an August 30, 2019 note from Ms. Kawalok, 

a family nurse practitioner, as well as September 11 and November 7, 2019 notes from

Mr. Schoonover, a physician assistant. The Board has long held that certain healthcare providers 

such as physician assistants and nurse practitioners are not considered qualified physicians as 

defined under FECA.11 Their medical findings, reports and/or opinions, unless cosigned by a 

qualified physician, will not suffice for purposes of establishing entitlement to FECA benefits.12 

Consequently, the notesfrom Ms. Kawalok andMr. Schoonover are insufficient to meet his burden 

of proof.13

As the evidence of record is insufficient to establish a diagnosed medical condition causally 

related to the accepted August 28, 2019 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.

9

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

Morris, 48 ECAB 238 (1996).

10 O.P., Docket No. 19-0445 (issued July 24, 2019); L.H., Docket No. 18-1217 (issued May 3, 2019); S.C.,Docket 

No. 16-0293 (issued May10, 2016); A.C., Docket No. 08-1453 (issued November 18, 2008) (as there was no medical 

evidence diagnosing an emotional condition, appellant failed to establish a prima facieclaim).

11 Section 8102(2) of FECA provides as follows: “(2) physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as d efined 

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); 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); see also E.W., Docket No. 20-0338 (issued October 9, 2020).

12 Id.; K.A., Docket No. 18-0999 (issued October 4, 2019); K.W., 59 ECAB 271, 279 (2007).

13 S.E., Docket No. 21-0666 (issued December 28, 2021).
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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

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).

Appellant’s timely request for reconsideration on November 8, 2019 neither alleged nor 

demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally, 

the Board finds that he did not advance a relevant legal argument not previously considered by 

OWCP. Consequently, appellant is not entitled to further review of the merits of his claim based 

on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 

The Board further finds that appellant did not submit relevant and pertinent new evidence 

not previously considered by OWCP. OWCP previously denied his claim because there was no 

medical evidence of record establishing a diagnosed medical condition causally related to the 

accepted August 28, 2019 employment incident. In support of his reconsideration request, 

14 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-

1287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

15 20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March3, 2010); C.N., Docket 

No. 08-1569 (issued December 9, 2008).

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

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP 

within one year of the merit decision for which review is sought. Supra note 11 at 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 M.S., 59 ECAB 231 (2007).

18 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).
6

appellant submitted September 25 and October 28, 2019 notes from Mr. Schoonover. The Board 

finds that submission of these notes did not require reopening appellant’s case for merit review 

because they have no probative value on the underlying issue on reconsideration. These reports 

do not constitute competent medical evidence because physician assistants are not considered 

physicians as defined under FECA.19 Therefore, this evidence is not relevant and is insufficient to 

require a merit review.20

The Board, accordingly, finds that appellant 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.21

CONCLUSION

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

medical condition causally related to the accepted August 28, 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).

19 Supra note 11.

20 Id.; see R.G., Docket No. 19-1889 (issued April14, 2021).

21 R.G., id.; D.G., Docket No. 19-1348 (issued December 2, 2019).
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ORDER

IT IS HEREBY ORDERED THAT the February 5 and April 29, 2020 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: March 7, 2022

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