United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.W., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

COMMISSARY AGENCY, CHERRY POINT 

COMMISSARY, Cherry Hill, NC, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 22-1065

Issued: January 3, 2023

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

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 11, 2022 appellant filed a timely appeal from a March 23, 2022 merit decision and 

a July 5, 2022 nonmerit decision of the Office of Workers’ Compensation Programs. Pursuant to 

the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction to consider the merits of this case.2

ISSUES

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

medical condition in connection with the accepted November 18, 2021 employment incident; and 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the July 5, 2022 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 reconsideration of the merits of her

claim, pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On November 30, 2021 appellant, then a 63-year-old store worker, filed a traumatic injury 

claim (Form CA-1), alleging that on November 18, 2021 she pulled a cart into the chill freezer to 

process items from an online order and ran into a pallet hand jack that had been stored improperly 

at the entrance to the freezer while in the performance of duty. She stated that she was “jerked 

hard” and experienced the onset of back pain. M.O., appellant’s supervisor, controverted the claim 

in a December 1, 2021 statement. She acknowledged that a pallet jack had been left by the chill 

freezer door and that appellant had pulled items from a cart and scanned them for bagging. 

However, M.O. alleged that appellant had not reported a back injury at that time.

In support of her claim, appellant provided a November 29, 2021 report of a November 18, 

2021 examination by Dr. Douglas DeSantis, a Board-certified anesthesiologist. Dr. DeSantis 

recounted the November 18, 2021 employment incident when she “walked into something that 

was out of its normal position” and experienced the onset of back pain. On examination, he 

observed left-sided sacroiliac tenderness to palpation, and left-sided sacroiliac pain when rising 

from a flexed position to standing upright. Dr. DeSantis provided an assessment of “[s]acro ilial 

pain” and prescribed medication. He noted that appellant had been under work restrictions at the 

time of the November 18, 2021 employment incident. 

In a development letter dated February 11, 2022, OWCP notified appellant of the 

deficiencies of her claim. It advised her of the type of evidence needed and provided a 

questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary 

evidence. 

In a report dated February 17, 2022, Dr. DeSantis noted the November 18, 2021 

employment incident and that appellant had sustained chronic sciatica from a prior occupational 

injury. He explained that, during the November 29, 2021 examination, she “was found to have 

sacroiliac discomfort related to trauma at work.” Dr. DeSantis did not obtain x-rays. He 

prescribed anti-inflammatory medication and recommended physical therapy. Dr. DeSantis 

concluded that the mechanism of injury appellant had described “correlated with the physical 

exam[ination] findings.”

Appellant submitted a February 18, 2022 statement recounting that on November 18, 2021

she pushed a grocery cart into the freezer and struck a pallet jack, causing jerking forces to her 

back and the onset of severe pain. She noted that, at the time of the injury, she had been on work 

restrictions from an April 23, 2019 employment injury when she had been kicked in the back by a 

customer. Appellant also provided two coworker witness statements who corroborated the

November 18, 2021 employment incident and a November 20, 2021 employing establishment 

accident report confirming that a pallet jack had been improperly stored at the cooler entrance . 

By decision dated March 23, 2022, OWCP accepted that appellant struck a pallet jack at

the entrance to a chill freezer in the performance of duty on November 18, 2021 as alleged. 

However, it denied her claim, finding that the medical evidence of record was insufficient to 

establish a medical diagnosis in connection with the accepted November 18, 2021 employment 
3

incident. OWCP concluded, therefore, that the requirements had not been met to establish an 

injury as defined by FECA. 

On April 12, 2022 appellant requested reconsideration. In supporting statements dated 

April 7, 2022, she contended that she had submitted additional information that was not included 

in the case record, and that her supervisor saw the pallet jack on November 18, 2021 and realized 

that appellant had been injured. 

On April 12, 2022 OWCP received an April 4, 2022 report by Dr. DeSantis noting the

November 18, 2021 employment injury. Dr. DeSantis explained that, during his November 29, 

2021 examination, he observed “inflammation of [appellant’s] sacroiliac joint and evidence of 

piriformis spasm on the left side related to the trauma.” He prescribed anti-inflammatory 

medication and recommended physical therapy. Dr. DeSantis opined that the mechanism of injury 

appellant described correlated with the findings on physical examination. 

Appellant also submitted documents previously of record. 

By decision dated July 5, 2022, OWCP denied appellant’s request for reconsideration of 

her claim under 5 U.S.C. § 8128(a). 

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 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 if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established. 7 Fact of injury 

consists of two components that must be considered in conjunction with one another. The first 

3

20 C.F.R. § 10.607(a).

4 Federal (FECA) Procedure Manual, Part 2 --Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

5 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); LeonD. 

Faidley, Jr., 41 ECAB 104 (1989).

6

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 

499, 501-02 (1990).

7 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April15, 2010). See 

also 20 C.F.R. § 10.607(b);supranote 4 at Chapter 2.1602.5 (September 2020).
4

component is whether the employee actually experienced the employment incident that allegedly 

occurred.8 The second component is whether the employment incident caused a personal injury.9

Rationalized medical opinion evidence is required to establish causal relationship. The 

opinion of the physician must be based on a complete factual and medical background, 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 the specific employment incident. 10 

Neither the mere fact that a disease or condition manifests itself during a period of employment, 

nor the belief that the disease or condition was caused or aggravated by employment factors or 

incidents is sufficient to establish causal relationship.11

ANALYSIS -- ISSUE 1

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

medical condition in connection with the accepted November 18, 2021 employment incident.

In a report dated November 29, 2021, Dr. DeSantis noted the November 18, 2021 

employment incident, observed left-sided sacroiliac tenderness and pain on examination, and 

provided an assessment of sacroiliac pain. In a February 17, 2022 report, he opined that on 

November 29, 2021 appellant “was found to have sacroiliac discomfort related to trauma at work.” 

The Board has held that pain alone is a symptom, not a medical diagnosis, and that findings of 

pain or discomfort alone do not satisfy the medial aspect of the fact of injury medical 

determination.12 Therefore, Dr. DeSantis’ reports are insufficient to establish a medical diagnosis 

in connection with the accepted employment incident.13

As the medical evidence of record does not contain a medical report relating a diagnosed 

medical condition in connection with the accepted November 18, 2021 employment incident, the 

Board finds that appellant has not met her 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.

8

J.W., Docket No. 18-0703 (issued November 14, 2018); RobertG. Burns, 57 ECAB 657 (2006).

9

J.S., Docket No. 16-1240 (issued December 1, 2016);supra note 4 at Chapter 2.1602.5(a) (September 2020).

10 S.S., Docket No. 18-1488 (issued March 11, 2019).

11 T.M., Docket No. 22-0220 (issued July 29, 2022); J.L., Docket No. 18-1804 (issued April12, 2019).

12 See F.U., Docket No. 18-0078 (issued June 6, 2018); supra note 4 at Chapter 2.803.4a(6) (August 2012).

13 M.H., Docket No. 18-1737 (issued March 13, 2019);B.P., Docket No. 16-1549 (issued January 18, 2017); John J. 

Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).
5

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 or her 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 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.18

ANALYSIS -- ISSUE 2

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

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

On reconsideration, appellant submitted an April 4, 2022 report by Dr. DeSantis, noting 

new findings based on his November 29, 2021 examination of “inflammation of [appellant’s]

sacroiliac joint and evidence of piriformis spasm on the left side related to the trauma. ” In its 

July 5, 2022 decision, OWCP found that Dr. DeSantis’ April 4, 2022 report had merely reiterated 

his prior diagnosis of “sacroiliac discomfort.” The Board finds, however, that he did not diagnose 

sacroiliac discomfort in his April 4, 2022 report. Instead, Dr. DeSantis noted new objective 

findings of sacroiliac joint inflammation and evidence of left-sided piriformis spasm. His April 4, 

2022 report, therefore, constitutes relevant and pertinent new evidence that was not previously 

14 5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April30, 2020); L.D., Docket No. 18-1468 (issued 

February11, 2019); 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 March 3, 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 OWCP’s decision for which review is sought. Supra note 4 at Chapter 2.1602.4 (September 2020). 

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 Supra note 15 at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 

231 (2007).

18 Supra note 15 at§ 10.608(b); S.K., Docket No. 22-0248 (issued June 27, 2022); B.S., Docket No. 20-0927 (issued 

January 29, 2021); E.R., Docket No. 09-1655 (issued March 18, 2010).
6

considered. Therefore, the Board finds that the submission of this evidence requires reopening of 

appellant’s claim for merit review pursuant to the third requirement of 20 C.F.R. § 10.606(b)(3).

19

Consequently, the Board will set aside OWCP’s July 5, 2022 decision and remand the case 

for an appropriate merit decision on appellant’s claim.20

CONCLUSION

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

medical condition in connection with the accepted November 18, 2021 employment incident. The 

Board further finds that OWCP improperly denied appellant’s request for reconsideration of the 

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

ORDER

IT IS HEREBY ORDERED THAT the March 23, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed. The July 5, 2022 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with the decision of the Board.21

Issued: January 3, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

19 Supra note 15;S.C., Docket No. 20-1661 (issued May 6, 2022);see also J.T., Docket No. 20-1301 (issued July 28, 

2021); M.J.,Docket No. 20-1067 (issued December 23, 2020).

20 S.C., id.; F.K., Docket No. 21-0998 (issued December 29, 2021).

21 On return of the case record, OWCP should consider combining all of appellant’s relevant claim files.