United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.T., Appellant 

and 

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Oxford, MS, Employer 

__________________________________________ 

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Docket No. 14-1173 

Issued: September 24, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 24, 2014 appellant filed a timely appeal from a December 17, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP) and a February 21, 2014 

nonmerit decision denying reconsideration. 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. 

ISSUES 

The issues are: (1) whether appellant established an injury in the performance of duty on 

September 6, 2013; and (2) whether OWCP properly denied appellant’s application for 

reconsideration of the merits of his claim under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 10, 2013 appellant, then a 31-year-old deputy marshal, filed a traumatic 

injury claim (Form CA-1) alleging that on September 6, 2013 he sustained a left ankle injury in 

the performance of duty. He was jumping over a fence while chasing a fugitive and landed 

awkwardly on his left ankle. 

In a report dated September 16, 2013, Dr. Cooper L. Terry, a Board-certified orthopedic 

surgeon, reported that appellant jumped a fence while chasing a fugitive and complained of left 

ankle pain. He stated that appellant had prior ankle symptoms since 2008 and was seen in 

April 2012 with similar complaints. Dr. Terry diagnosed chronic, recurrent left ankle pain with 

instability symptoms and a possible talar dome lesion. He advised that x-rays showed a chronic 

osteophyte at the lateral talar process and a possible osteochondral defect (OCD) lesion. 

By letter dated October 30, 2013, OWCP advised appellant to submit additional medical 

evidence with an opinion, supported by medical rationale, as to how the September 6, 2013 work 

incident caused or aggravated the claimed left ankle injury. In a report dated October 21, 2013, 

Dr. Terry stated that appellant continued to complain of left ankle pain and was six and a half 

weeks status post injury. He noted that an October 17, 2013 magnetic resonance imaging (MRI) 

scan showed an OCD lesion of the lateral talar dome. Dr. Terry stated that appellant was 

referred for possible ankle arthroscopic surgery. Appellant submitted an October 17, 2013 MRI 

scan report from radiologist, Dr. William Lawrence. 

In a report dated October 24, 2013, Dr. Kurre Luber, a Board-certified orthopedic 

surgeon, noted that appellant had ankle pain since 2008 that had been off and on with 

intermittent swelling. He provided results on examination, noted the MRI scan findings and 

diagnosed left ankle interior impingement with OCD lesion of the talus. Dr. Luber advised that 

appellant would have a computerized tomography (CT) scan for preoperative planning. In a 

report dated November 25, 2013, he stated that appellant needed left ankle arthroscopic 

osteophyte excision surgery. On December 10, 2013 appellant submitted a November 6, 2013 

report of CT scan of the left ankle by Dr. Lawrence. 

By decision dated December 17, 2013, OWCP denied appellant’s claim for 

compensation. It found that the medical evidence was insufficient to establish a left ankle injury 

causally related to the September 6, 2013 employment incident. 

On January 27, 2014 appellant requested reconsideration. He resubmitted the 

October 17, 2013 MRI scan and November 6, 2013 CT scan reports with the October 21, 2013 

report from Dr. Terry. 

By decision dated February 21, 2014, OWCP denied further merit review of the claim. It 

found that appellant’s application for reconsideration was insufficient to warrant a merit review 

of the compensation claim. 
3

LEGAL PRECEDENT -- ISSUE 1 

FECA provides for the payment of compensation for “the disability or death of an 

employee resulting from personal injury sustained while in the performance of duty.”2

 The 

phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the 

commonly found requisite in workers’ compensation law of “arising out of an in the course of 

employment.”3

 An employee seeking benefits under FECA has the burden of establishing that 

he or she sustained an injury while in the performance of duty.4 In order to determine whether 

an employee actually sustained an injury in the performance of duty, OWCP begins with an 

analysis of whether “fact of injury” has been established. Generally, “fact of injury” consists of 

two components which must be considered in conjunction with one another. The first 

component to be established is that the employee actually experienced the employment incident 

which is alleged to have occurred. The second component is whether the employment incident 

caused a personal injury and generally this can be established only by medical evidence.5

 

Rationalized medical opinion evidence is medical evidence based on a complete factual 

and medical background, of reasonable medical certainty and supported by sound medical 

reasoning explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant. The weight of medical evidence is 

determined by its reliability, its probative value, its convincing quality, the care of the analysis 

manifested and the medical rationale expressed in support of the physician’s opinion.6

ANALYSIS -- ISSUE 1 

Appellant alleged that he sustained a left ankle injury when he jumped over a fence in the 

performance of duty on September 6, 2013. OWCP accepted that the incident occurred as 

alleged. The issue is whether appellant submitted sufficient medical evidence to establish a 

causal relationship between his left ankle condition and the employment incident. 

Dr. Terry provided a report dated September 16, 2013, advising that appellant had prior 

complaints of left ankle pain. He noted that appellant had jumped a fence 10 days prior at work. 

However, providing a brief history of an incident and listing left ankle pain is not a rationalized 

medical opinion on causal relationship.7

 Dr. Terry stated that appellant had preexisting problems 

with his ankle, noting pain since 2008 and treatment for similar complaints in 2012. He did not 

provide a factual description of appellant’s prior history or treatment. Dr. Terry diagnosed 

chronic, recurrent left ankle pain and noted diagnostic testing indicating an OCD lesion. The 

 2

 5 U.S.C. § 8102(a). 

3 Valerie C. Boward, 50 ECAB 126 (1998). 

4 Melinda C. Epperly, 45 ECAB 196, 198 (1993). 

5 See Elaine Pendleton, 40 ECAB 1143 (1989). 

6 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 

7 See, e.g., L.G., Docket No. 10-637 (issued August 5, 2010) (reports with a brief history and references to pain 

are not rationalized medical evidence). 
4

report is not probative as he failed to provide a complete history, a firm diagnosis or an opinion 

addressing how the incident of September 6, 2013 caused or aggravated appellant’s left ankle 

condition. 

The reports from Dr. Luber do not provide a rationalized medical opinion on causal 

relationship. He also noted a prior history of pain since 2008 and diagnosed left ankle interior 

impingement with OCD lesion of the talus. Dr. Luber did not specifically discuss the 

September 6, 2013 incident, provide a complete medical history or offer a rationalized opinion 

relating the left ankle condition to the employment incident. 

It is appellant’s burden of proof to establish the claim for compensation. Based on a 

review of the evidence of record, he did not meet his burden of proof.8 Appellant may submit 

new evidence or argument with a written application 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 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9

OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

evidence that either: “(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 evidence not previously considered by OWCP.”10 

20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the 

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.11

ANALYSIS -- ISSUE 2 

Appellant requested reconsideration on January 27, 2014. He did not contend that 

OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal 

argument not previously considered by OWCP. With respect to his request, appellant 

resubmitted medical evidence previously of record. He did not meet the requirement of 

submitting relevant and pertinent evidence not previously considered by OWCP. 

The Board accordingly 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 

 8

 The Board notes that appellant submitted additional evidence on appeal. The Board is limited to review of 

evidence that was before OWCP at the time of the final decision on appeal. 20 C.F.R. § 501.2(c)(1). 

9

 5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.”) 

10 20 C.F.R. § 10.606(b)(3). 

11 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 
5

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

or submit relevant and pertinent evidence not previously considered by OWCP. Pursuant to 

20 C.F.R. § 10.608(b), OWCP properly denied review of the merits of the claim. 

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish a left ankle 

injury on September 6, 2013. The Board further finds that OWCP properly denied merit review 

of the claim. 

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated February 21, 2014 and December 17, 2013 are affirmed. 

Issued: September 24, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board