United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.E., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION,

Lyons, NJ, Employer

__________________________________________

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Docket No. 22-0091

Issued: May 6, 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, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On October 29, 2021 appellant filed a timely appeal from a June 23, 2021 merit decision

and an August 24, 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 met her burden of proof to establish a low back 

condition causally related to the accepted May 10, 2021 employment incident; and (2) whether 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the August 24, 2021 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.
2

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 May 10, 2021 appellant, then a 51-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on May 10, 2021 she sustained a lower back injury when holding

onto a safety belt to assist a patient while in the performance of duty. She did not stop work.

In a development letter dated May 24, 2021, OWCP informed appellant of the deficiencies 

of her claim. It advised her of the type of factual and medical evidence necessary. OWCPafforded 

appellant 30 days to respond.

In May 10 and 17, 2021 work capacity evaluations (Form OWCP-5c), Dr. Bin Yang, a 

Board-certified occupational medicine specialist, diagnosed tenderness of the right and left 

paraspinal and lateral lower back. He provided work restrictions of no lifting, carrying, or pulling 

over 15 pounds, and alternatively sitting and standing through May 17, 2021.

By decision dated June 23, 2021, OWCPdenied appellant’straumatic injury claim, finding

that she had not established a low back condition causally related to the accepted May 10, 2021

employment incident. Consequently, it found that she had not met the requirements to establish 

an injury as defined by FECA.

On July 3, 2021 appellant requested reconsideration of OWCP’s June 23, 2021 decision 

and submitted additional evidence.

A temporary limited-duty assignment note dated May 10, 2021 from Michelle Dunn, a 

registered nurse, suggested that appellant’s modified duties be extended through May 25, 2021.

In a May 26, 2021 Form OWCP-5c, Dr. Yang reiterated appellant’s diagnosis and 

indicated that she should continue work restrictions through June 7, 2021.

OWCP also received duplicate copies of Dr. Yang’s May 10, 17, and 26, 2021 reports and

a Form CA-1 dated May 10, 2021.

By decision dated August 24, 2021, OWCP denied appellant’s reconsideration pursuant to 

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 that the individual is an employee of the United 

3

Supra note 1; D.M., Docket No. 18-1003 (issued July 16, 2020); L.C., Docket No. 19-0503 (issued February 7, 

2020); A.A., Docket No. 18-0031 (issued April5, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984).
3

States within the meaning of FECA,4that the claim was timely filed within the applicable time 

limitation of FECA, that 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 and place, and in the manner alleged.7 Second, the employee must submit sufficient evidence 

to establish that the employment incident caused a personal injury.8

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

condition and an employment incident is rationalized medical opinion evidence. 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.9

ANALYSIS -- ISSUE 1

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

condition causally related to the accepted May 10, 2021 employment incident. 

In OWCP-5c forms dated May 10 and 17, 2021, Dr. Yang diagnosed tenderness and a 

spasm of the right and left paraspinal and lateral lower back and provided work restrictions. 

However, he did not provide an opinion as to the cause of her condition. The Board has held that 

medical evidence that does not offer an opinion regarding the cause of an employee’s condition is 

4 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued December 13, 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); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

7 D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

8 B.M., Docket No. 17-0796 (issued July 5, 2018); JohnJ. Carlone, 41 ECAB 354 (1989).

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).
4

of no probative value on the issue of causal relationship.

10

 These reports are, therefore, insufficient 

to establish appellant’s burden of proof. 

As there is no rationalized medical evidence explaining how appellant’s employment duties 

caused or aggravated her diagnosed condition, the Board finds that appellant has not met her 

burden of proof to establish a low back condition causally related to the accepted May 10, 2021 

employment incident.

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 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 payment of compensation at any time on his own motion or on application.11

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.12

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP’s decision for which review is sought.13 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or provided an argument 

that meets at least one of the requirements for reconsideration. If OWCP chooses to grant 

reconsideration, it reopens and reviews the case on its merits.14 If the request is timely but fails to 

10 See B.S., Docket No. 20-0895 (issued June 15, 2021); see D.C., Docket No. 19-1093 (issued June 25, 2020); see 

L.B., Docket No. 18-0533 (issued August27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11 5 U.S.C. § 8128(a); see D.G., Docket No. 20-1203 (issued April28, 2021); T.K., Docket No. 19-1700 (issued 

April 30, 2020); see L.D., Docket No. 18-1468 (issued February 11, 2019); W.C., 59 ECAB 372 (2008).

12 20 C.F.R. § 10.606(b)(3); see D.G., id.; 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).

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

Reconsiderations, 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). Chapter 2.1602.4b.

14 Id. at § 10.608(a); D.G., supra note 11; F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 

231 (2007)
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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.15

ANALYSIS -- ISSUE 2

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

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

Appellant’s timely July 3, 2021 request for reconsiderationdid not demonstrate that OWCP 

erroneously applied or interpreted a specific point of law. Moreover, she has not advanced a 

relevant legal argument not previously considered. Consequently, appellant is not entitled to a 

review of the merits of her claim based on the first and second above-noted requirements under 20 

C.F.R. § 10.606(b)(3).16

Furthermore, appellant has not provided relevant and pertinent new evidence in support of 

her request for reconsideration. On reconsideration she submitted a temporary limited-duty 

assignment note dated May 10, 2021 from Ms. Dunn and a May 26, 2021 Form OWCP-5c from

Dr. Yang, reiterating her diagnoses and work restrictions. However, the underlying issue on 

reconsideration was whether appellant had met her burden of proof to establish that her medical 

condition was causally related to the accepted May 10, 2021 employment incident. This is a 

medical issue that requires rationalized medical opinion evidence to resolve the issue. 17 These 

reports, however, do not provide a rationalized medical opinion on whether appellant’s diagnosed 

condition was causally related to the employment incident and, therefore, are insufficient to 

warrant a merit review. 

In addition, appellant resubmitted copies of Dr. Yang’s May 10, 17, and 26, 2021 reports 

and a duplicate Form CA-1 dated May 10, 2021. The Board, however, has held that the submission 

of evidence or argument which repeats or duplicates evidence or argument already in the case 

record does not constitute a basis for reopening a case and thus, these reports are also insufficient 

to warrant a merit review.

18

 OWCP also received a May 10, 2021 temporary limited-duty 

assignment note from Ms. Dunn, a registered nurse. The Board has long held that certain 

healthcare providers such as physician assistants, nurse practitioners, and physical therapists are 

not considered qualified physicians as defined under FECA. Their medical findings, reports and/or 

opinions, unless cosigned by a qualified physician, will not suffice for purposes of establishing 

entitlement to FECA benefits. Consequently, this additional evidence is irrelevant to the 

underlying issue of causal relationship, which is medical in nature. As appellant did not provide 

15 Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

16 See R.L., Docket No. 20-1403 (issued July 21, 2021); M.O., Docket No. 19-1677 (issued February 25, 2020); 

C.B., Docket No. 18-1108 (issued January 22, 2019).

17 F.L., Docket No. 20-1288 (issued July 13, 2021); D.P., Docket No. 20-1225 (issued January 8, 2021); R.S., 

Docket No. 19-0312 (issued June 18, 2019); T.B., Docket No. 18-1214 (issued January 29, 2019).

18 Id.; D.M., Docket No. 18-1003 (issued July 16, 2020); L.C., Docket No. 19-0503 (issued February 7, 2020); A.A., 

Docket No. 18-0031 (issued April5, 2018); EugeneF. Butler, 36 ECAB 393, 398 (1984).
6

relevant and pertinent new evidence related to the underlying issue of causal relationship, she is

not entitled to a merit review based on the third requirement under 20 C.F.R. § 10.606(b)(3). 

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific 

point of law, advance a relevant legal argument not previously considered by OWCP, or submit 

relevant and pertinent new evidence not previously considered by OWCP. Pursuant to 20 C.F.R.

§ 10.608(b), OWCP properly declined to review the merits of the claim.

CONCLUSION

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

condition causally related to the accepted May 10, 2021 employment incident. The Board further 

finds that OWCP properly denied her request for reconsideration of the merits of her claim 

pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the June 23 and August 24, 2021 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: May 6, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board