United States Department of Labor

Employees’ Compensation Appeals Board

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J.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Seattle, WA, Employer

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Docket No. 21-1353

Issued: March 21, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 13, 2021 appellant filed a timely appeal from a May 17, 2021 merit decision

and a September 8, 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 diagnosed 

medical condition causally related to the accepted factors of his federal employment; and 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the September 8, 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

(2) whether OWCP properly denied appellant’s request for a review of the written record as 

untimely filed, pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On April 7, 2021 appellant, then a 30-year-old mail carrier, filed an occupational disease 

claim (Form CA-2) alleging that he experienced a left knee strain due to factors of his federal 

employment, including repetitive walkingof 20,000 steps per day, stepping into his van repeatedly,

and climbing many flights of stairs daily. He indicated that he first became aware of his condition 

and first realized its relation to his federal employment on April 4, 2021. Appellant stopped work 

on April 5, 2021.

In an April 14, 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 submit the necessary 

evidence. It did not receive a response. 

An activity prescription form dated April 6, 2021 from Katherine Hester, an advanced 

registered nurse practitioner, noted that appellant was examined following an April 4, 2021 

workplace incident. She diagnosed left knee sprain and advised that he could return to work.

By decision dated May 17, 2021, OWCP denied appellant’s occupational disease claim, 

finding that the medical evidence of record was insufficient to establish a diagnosed medical 

condition causally related to the accepted factors of his federal employment as it was rendered by

Ms. Hester . It concluded, therefore, that the requirements had not been met to establish an injury 

as defined by FECA.

On July 2, 2021 appellant was seen by Dr. Marilyn Nayan, a Board-certified family 

medicine physician, with ongoing complaints of lower back and leg pain relating to his official 

duties as a mail carrier. She indicated that his current symptoms began on June 27, 2021, but that 

he had been experiencing pain for six months. Dr. Nayan diagnosed a strain of the muscle and

tendon of the lower back, and radiculopathy in the lumbar region. In duty status reports (Form 

CA-17) dated July 2, 9, 16 and 2021, she provided clinical findings of strain of muscle, fascia and 

tendon of the lower back and lumbar radiculopathy related to a June 27, 2021 work injury. 

Dr. Nayan advised that appellant could return to work with restrictions. 

In a diagnostic report dated July 2, 2021, Dr. Aamer Farooki, a Board-certified radiologist, 

performed an x-ray of the lumbar spine, which revealed no acute abnormalities.

On July 9, 2021 appellant presented in follow up to Dr. Nayan and related that his 

symptoms had improved with medication.

On August 10, 2021 appellant requested a review of the written record before a 

representative of OWCP’s Branch of Hearings and Review.

In a July 16, 2021 note, Dr. Nayan noted that appellant’s condition was exacerbated by 

prolonged walking or standing while working. She further indicated that he could return to work

with limited duties. 
3

An August 6, 2021 follow-up note from Dr. Nayan related appellant’s ongoing symptoms 

and improvement with medication. In a Form CA-17 of even date, she indicated that he could 

return to work.

On August 20, 2021 appellant was seen by Dr. Nayan in follow up. Dr. Nayan noted that 

his pain symptoms increased after returning to full-duty work, and further noted that prolonged 

walking and carrying heavy bags aggravated his condition. She diagnosed a lumbar strain without 

a herniated disc. In a Form CA-17 of even date, Dr. Nayan indicated that appellant could return 

to work with restrictions. 

By decision dated September 8, 2021, OWCP denied appellant’s request for a review of 

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

May 17, 2021 OWCP decision as it was postmarked on August 10, 2021. It further exercised 

discretion and determined that the issue in this case could equally well be addressed by a request 

for reconsideration before OWCP along with the submission of new evidence.

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

disease claim, a claimant must submit: (1) a factual statement identifying employment factors 

alleged to have caused or contributed to the presence or occurrence of the disease or condition; 

(2) medical evidence establishing the presence or existence of the disease or condition for which 

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is 

casually related to the identified employment factors.7

3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); JoeD. 

Cameron, 41 ECAB 153 (1989).

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

6 R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

7 R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. 

Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
4

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue. A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background. Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s 

specific employment factor(s).8

ANALYSIS -- ISSUE 1

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

medical condition causally related to the accepted factors of his federal employment.

In support of his claim, appellant submitted an activity prescription form dated April 6, 

2021 from Ms. Hester, an advanced registered nurse practitioner, who diagnosed a left knee sprain

following a workplace incident on April 4, 2021. The Board, however, has held that medical 

reports signed solely by a nurse practitioner are of no probative value as such providers are not 

considered physicians as defined under FECA.9 This evidence, therefore, is insufficient to 

establish appellant’s burden of proof. 

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

causally related to the accepted factors of appellant’s federal employment, the Board finds that he 

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.”

10

 

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 

8

John J. Carlone, 41 ECAB 354 (1989).

9 Section 8101(2) of FECA provides that a 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). SeeFederal (FECA) Procedure Manual, Part 2 --Claims, Causal Relationship, 

Chapter 2.805.3a(1) (January 2013); 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);see 

also M.C., Docket No. 19-1074 (issued June 12, 2020); S.L., Docket No. 19-0607 (issued January 28, 2020) (nurse 

practitioners are not considered physicians under FECA).

10 5 U.S.C. § 8124(b)(1).
5

representative of the Secretary.11 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. 12 

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 a review of the written 

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

OWCP’s regulations provide that the request for a hearing or review of the written record

must be made within 30 days of the date of the decision for which review is sought.13 Because 

appellant’s request was postmarked on August 10, 2021, it post-dated OWCP’s May 17, 2021

decision, by more than 30 days and, therefore, is untimely. Appellant was, therefore, not entitled 

to a review of the written record as a matter of right.14

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

such discretion.15 The Board finds that, in the September 8, 2021 decision, OWCP 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.

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, clearly unreasonable 

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

from established facts.16 In this case, the evidence of record does not indicate that OWCP abused 

its discretion by denying appellant’s request for a review of the written record. Accordingly, the 

Board finds that OWCP properly denied his request for a review of the written record pursuant to 

5 U.S.C. § 8124(b) as untimely filed.

CONCLUSION

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

medical condition causally related to the accepted factors of his federal employment. The Board 

11 20 C.F.R. §§ 10.616, 10.617.

12 Id. at § 10.616(a).

13 Supra note 9; Federal (FECA) Procedure Manual, Part 2 --Claims, Hearings and Reviews of the Written Record, 

Chapter 2.1601.4(a) (September 2020).

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

15 Id.

16 Id.
6

further finds that OWCP properly denied his request for a review of the written record as untimely 

filed pursuant to 5 U.S.C. § 8124(b).

ORDER

IT IS HEREBY ORDERED THAT the May 17 and September 8, 2021 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: March 21, 2022

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