United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.T., Appellant 

and 

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Columbia, SC, Employer 

__________________________________________ 

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Docket No. 14-1116 

Issued: September 24, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 14, 2014 appellant filed a timely appeal of a December 3, 2013 merit decision 

of the Office of Workers’ Compensation Programs (OWCP) concerning the denial of a traumatic 

injury claim. The Board also has jurisdiction over a January 21, 2014 nonmerit decision denying 

merit review. 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 that he sustained a traumatic injury in 

the performance of duty on March 11, 2013; and (2) whether OWCP properly refused to reopen 

appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On March 21, 2013 appellant, then a 26-year-old deputy U.S. marshal, filed a traumatic 

injury claim alleging that on March 11, 2013 he felt acute pain in his left rib cage when he was 

taken to the ground during training by another deputy who landed with his full body weight on 

appellant’s chest. 

In a letter dated September 16, 2013, OWCP informed appellant that the evidence was 

insufficient to establish his claim. Specifically, it advised him that medical evidence was 

required. Appellant was given 30 days to provide the requested information. No evidence was 

received. 

By decision dated October 25, 2013, OWCP denied his claim on the grounds that he 

failed to establish fact of injury. 

On November 6, 2013 appellant requested reconsideration. In support of his request, he 

submitted the following medical evidence. 

In a March 25, 2013 report, Dr. Erica L. Pate, a treating physician, reported that appellant 

was seen on March 22, 2013 and when diagnosing his condition stated, “I suspect he has suffered 

a bruised rib and possible intercostal muscle strain.” A review of an x-ray interpretation revealed 

no evidence of any fractured ribs. Appellant related having a moderate sharp pain with a 

stabbing sensation. According to him, his symptoms began about two weeks ago when he was in 

training and another man’s shoulder landed on his top left anterior chest. Appellant related that 

his symptoms were aggravated by sneezing, deep breathing and exertion. 

By decision dated December 3, 2013, OWCP denied modification. 

On January 3, 2014 appellant requested reconsideration and submitted evidence in 

support of his request. In a December 19, 2013 note, Dr. Pate related seeing appellant about two 

weeks after an alleged work injury on March 22, 2013 for rib pain. She related that the injury 

occurred as the result of another deputy’s shoulder landing on appellant’s chest during a training 

session. 

By decision dated January 21, 2014, OWCP denied reconsideration. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA2

 has the burden of establishing the essential 

elements of his claim, including the fact that the individual is an employee of the United States 

within the meaning of FECA; that the claim was filed within the applicable time limitation; that 

an injury was sustained while in the performance of duty as alleged and that any disability and/or 

specific condition for which compensation is claimed are causally related to the employment 

 2

 5 U.S.C. § 8101 et seq. 
3

injury.3

 These are the essential elements of each and every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or an occupational disease.4

 

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty it must first be determined whether a fact of injury has been established.5

 

First, 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.6

 Second, the 

employee must submit sufficient evidence, generally only in the form of medical evidence, to 

establish that the employment incident caused a personal injury.7

ANALYSIS -- ISSUE 1 

Appellant claimed a rib injury as the result of being taken to the ground during training 

by another deputy who landed with his full body weight on appellant’s chest. The issue is 

whether appellant sustained an injury as a result of the March 11, 2013 employment incident. 

OWCP accepted that the incident occurred as alleged. However, the Board finds that appellant 

did not meet his burden of proof to establish that he sustained a medical condition due to the 

accepted March 11, 2013 employment incident. 

The medical evidence of record is insufficient to establish that the employment incident 

caused an injury. The only medical evidence submitted by appellant was a March 25, 2013 

report by Dr. Pate who diagnosed a suspected bruised rib and intercostal muscle strain. While 

Dr. Pate stated that the injury occurred approximately two weeks previously when appellant was 

in training and another man’s shoulder landed onto appellant’s top left anterior chest, she 

provided no opinion as to whether the diagnosed conditions were caused or aggravated by the 

March 11, 2013 employment incident. Medical evidence which does not offer any opinion 

regarding the cause of an employee’s condition is of limited probative value on the issue of 

causal relationship.8

 Moreover, use of the word “suspect” when describing the diagnosis 

indicates that Dr. Pate’s opinion is speculative and has little probative value.9

An award of compensation may not be based on surmise, conjecture or speculation. 

Neither the fact that appellant’s conditions became apparent during a period of employment nor 

the belief that his condition was caused, precipitated or aggravated by his employment is 

 3 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006). 

4 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989). 

5 B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3. 

6 D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005). 

7 C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra

note 3. 

8 E.K., Docket No. 09-1827 (issued April 21, 2010); A.F., 59 ECAB 714 (2008); Michael E. Smith, 50 ECAB 

313 (1999). 

9 Ricky S. Storms, 52 ECAB 349 (2001); Leslie C. Moore, 52 ECAB 132 (2000). 
4

sufficient to establish causal relationship.10 Causal relationship must be established by 

rationalized medical opinion evidence and such evidence was not submitted. 

OWCP advised appellant that it was his responsibility to provide a comprehensive 

medical report which described his symptoms, test results, diagnosis, treatment and the 

physician’s opinion, with medical reasons, on the cause of his condition. Appellant failed to 

submit appropriate medical documentation in response to OWCP’s request. As there is no 

probative, rationalized medical evidence addressing how his claimed rib condition was caused or 

aggravated by the March 11, 2013 employment incident, 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 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,11

OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or 

interpreted a specific point of law; (2) advance a relevant legal argument not previously 

considered by OWCP; or (3) submit relevant and pertinent new evidence not previously 

considered by OWCP.12 To be entitled to a merit review of an OWCP decision denying or 

terminating a benefit, a claimant also must file his or her application for review within one year 

of the date of that decision.13 When a claimant fails to meet one of the above standards, OWCP 

will deny the application for reconsideration without reopening the case for review on the 

merits.14 

ANALYSIS -- ISSUE 2 

Appellant’s January 3, 2014 request for reconsideration did not allege or demonstrate that 

OWCP erroneously applied or interpreted a specific point of law. Additionally, he did not 

advance a relevant legal argument not previously considered by OWCP or submit any pertinent 

new and relevant evidence with his reconsideration request. The Board finds that appellant is not 

entitled to a review of the merits of his claim based on any of the three requirements under 

section 10.606(b)(3). 

 10 See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB 

339 (2004); Anna C. Leanza, 48 ECAB 115 (1996). 

11 5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award 

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

12 20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB 

630 (2006). 

13 20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 

657 (2006).

14 20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB 

598 (2006).
5

Along with his reconsideration request, appellant submitted a new December 19, 2013 

note from Dr. Pate. Dr. Pate noted the employment incident of March 11, 2013 and that 

appellant had rib pain following the incident and addressed causal relationship in a manner 

similar to her previously considered March 22, 2013 report. The Board finds that this evidence 

is cumulative and does not offer any relevant or pertinent new evidence on the relevant issue in 

this claim, causal relationship. OWCP already accepted the employment incident and previously 

found that Dr. Pate’s prior opinion failed to diagnose a medical condition causally related to the 

accepted March 11, 2013 incident. In the December 19, 2013 note, Dr. Pate related seeing 

appellant for rib pain without providing any diagnosis. She also opined that he was injured at 

work on March 11, 2013 without any discussion as to how she arrived at this conclusion beyond 

describing how the incident occurred. As such, this letter is also repetitive of Dr. Pate’s 

previously submitted report and fails to diagnose a definitive medical condition due to the 

accepted March 11, 2013 employment incident. 

Appellant did not provide any relevant and pertinent new medical evidence supporting 

how the specific employment incident on March 11, 2013 caused a diagnosed medical condition. 

He also did not otherwise show that OWCP erroneously applied or interpreted a specific point of 

law or advance a relevant legal argument not previously considered by OWCP. 

The Board finds that OWCP properly determined that appellant was not entitled to 

further review of the merits of his claim pursuant to any of the three requirements under section 

10.606(b)(3) and properly denied his January 3, 2014 request for reconsideration.15

CONCLUSION 

The Board finds that appellant did not meet his burden of proof in establishing that he 

sustained a traumatic injury in the performance of duty on March 11, 2013, as alleged. The 

Board further finds that OWCP properly refused to reopen appellant’s case for further review of 

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

 15 M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); Candace A. Karkoff, 56 ECAB 622 (2005) 

(when an application for reconsideration does not meet at least one of the three requirements enumerated under 

section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the case for a review 

on the merits). 
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ORDER 

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

Compensation Programs dated January 21, 2014 and December 3, 2013 are affirmed. 

Issued: September 24, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board