United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.N., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

San Diego, CA, Employer 

__________________________________________ 

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Docket No. 15-1821 

Issued: January 8, 2016 

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 H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On September 4, 2015 appellant filed a timely appeal from an April 23, 2015 merit 

decision and a June 3, 2015 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. 

ISSUES 

The issues are: (1) whether appellant established a bilateral foot injury causally related to 

his federal duties, as alleged; and (2) whether OWCP properly refused to reopen appellant’s 

claim for merit review pursuant to 5 U.S.C. § 8128(a). 

On appeal, appellant contends that OWCP failed to review all of the medical evidence 

submitted which he contends was sufficient to establish that his foot strain was due to prolonged 

walking and standing at work. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 21, 2014 appellant, then a 51-year-old supervising customs and border patrol 

officer, filed an occupational disease claim (Form CA-2) alleging that he developed pain on the 

soles of both of his feet as a result of walking and standing on his feet a large percentage of the 

time during his federal employment. 

On July 1, 2014 OWCP informed appellant that the information submitted was 

insufficient to establish his claim and listed the evidence that he must supply to support his 

claim. 

In response, appellant submitted a July 14, 2014 work status report wherein 

Dr. Thomas C. Bruff, a Board-certified internist with additional Board-certifications in 

occupational medicine and medical toxicology, indicated that appellant was treated for a workrelated event and discharged to regular work effective that date. 

By decision dated August 26, 2014, OWCP denied appellant’s claim as he failed to 

establish the medical component of his claim. 

Thereafter on September 8, 2014 OWCP received a May 15, 2014 report from Dr. Bruff. 

In this report Dr. Bruff noted appellant’s subjective complaint as foot pain and listed objective 

findings of foot tenderness. In May 15 and 22, 2014 reports, he indicated that he had treated 

appellant for bilateral foot strain which appeared to be work related as a result of cumulative 

trauma to the foot due to prolonged walking and standing. Dr. Bruff placed appellant on 

modified duty, sitting work only. 

On April 7, 2015 appellant requested reconsideration of the April 26, 2014 decision. In 

support thereof, he also submitted a June 12, 2014 follow-up report wherein Dr. Bruff noted 

treating him for bilateral foot strain, and that he was able to return to his usual and customary 

work. Appellant also submitted a July 14, 2014 report wherein Dr. Bruff noted that he was 

treated for foot strain, resolved, and that he was at full-duty status and discharged. 

By decision dated April 23, 2015, OWCP denied modification of its prior decision as 

appellant had not established a firm medical diagnosis in connection with the injury and/or 

events. 

On April 28, 2015 appellant requested reconsideration. At that time, he resubmitted the 

reports of Dr. Bruff dated May 15 and 22, June 12, and July 14, 2014. 

By decision dated June 3, 2015, OWCP denied appellant’s request for reconsideration 

without conducting a merit review. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA has the burden of establishing 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, that an injury was sustained in the performance of duty as alleged, 
3

and that any disability and/or specific condition for which compensation is claimed are causally 

related to the employment injury. 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.2

 

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 or exposure, which is alleged to have occurred.3 

In order to meet his or her burden of proof to establish the fact that he or she sustained an injury 

in the performance of duty, an employee must submit sufficient evidence to establish that he or 

she actually experienced the employment injury or exposure at the time, place, and in the manner 

alleged.4

 The second component is whether the employment incident caused a personal injury 

and generally can be established only by medical evidence.5

 The medical evidence required to 

establish causal relationship is usually rationalized medical evidence. Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on the 

issue of whether there is a causal relationship between the claimant’s diagnosed condition and 

the implicated employment factors. The opinion of the physician must be based on a complete 

factual and medical background of the claimant, 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 factor identified by the claimant.6

ANALYSIS -- ISSUE 1 

There is no dispute that appellant is engaged in standing and walking as part of his 

employment. The Board finds that appellant has not established, however, that a medical 

condition resulted from these accepted employment factors. Initially, Dr. Bruff noted that 

appellant sustained foot pain and foot tenderness. The Board has held that pain is a symptom 

rather than a firm medical diagnosis.7

 Therefore, this report does not establish a compensable 

medical diagnosis. In his other reports, Dr. Bruff diagnosed foot strain, but failed to provide a 

rationalized analysis with regard to how the factors of appellant’s employment led to this foot 

strain. In the May 15, 2014 report, Dr. Bruff noted that the bilateral foot strain injury appeared 

to be employment related as a result of cumulative trauma to the foot due to prolonged walking 

and standing. The Board notes that the use by Dr. Bruff of the phrase “appeared to be 

employment related” indicates that his opinion was speculative. The Board has held that medical 

 2 Jussara L. Arcanjo, 55 ECAB 281, 283 (2004). 

3 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995). 

4 Linda S. Jackson, 49 ECAB 486 (1998). 

5 John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978). 

6 Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994). 

7 L.J., Docket No. 14-1595 (issued September 16, 2015). 
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opinions which are speculative or equivocal are of diminished probative value.8 Furthermore, 

Dr. Bruff does not discuss the specific factors of appellant’s employment. For example, he does 

not note specifically how much walking and standing appellant did during his employment. 

Dr. Bruff also does not provide a medical explanation as to how this walking and standing 

resulted in appellant’s alleged injury. 

Medical reports without adequate rationale on causal relationship are of diminished 

probative value and do not meet an employee’s burden of proof.9

 The opinion of a physician 

supporting causal relationship must rest on a complete factual and medical background supported 

by affirmative evidence, address the specific factual and medical evidence of record, and provide 

medical rationale explaining the relationship between the diagnosed condition and the 

established incident or factor of employment.10 

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

Because appellant failed to submit a rationalized medical report establishing a medical diagnosis 

causally related to his accepted factors of federal employment, he failed to meet his burden of 

proof to establish his case. 

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. 

§ 8128(a) and 20 C.F.R. §§ 10.606 and 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 the evidence or argument submitted by 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) constitute 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 

 8 See S.E., Docket No. 08-2214 (issued May 6, 2009) (finding that opinions such as the condition is probably 

related, most likely related or could be related are speculative and diminish the probative value of the medical 

opinion); Cecilia M. Corley, 56 ECAB 662, 669 (2005) (finding that medical opinions which are speculative or 

equivocal are of diminished probative value). 

9 G.M., Docket No. 15-1288 (issued September 18, 2015). 

10 See Lee R. Raywood, 48 ECAB 145 (1996). 

 11 5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[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.” 5 U.S.C. § 8128(a). 

12 20 C.F.R. § 10.606(b)(3). 

13 Id. at § 10.607(a). 
5

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 

The Board finds that appellant did not provide any relevant or pertinent new evidence 

warranting the reopening of the case on the merits. OWCP conducted a merit review of 

appellant’s claim in its decision dated April 23, 2015. On April 28, 2015 appellant requested 

reconsideration, and resubmitted reports from Dr. Bruff dated May 15 and 22, June 12 and 

July 14, 2014. Submission of evidence which repeats or duplicates evidence already in the 

record does not constitute a basis for reopening a case.15 This duplicative evidence is not 

sufficient to merit opening appellant’s case for reconsideration. 

The Board finds that appellant did not show that OWCP erroneously interpreted a 

specific point of law, advance a relevant legal argument not previously considered, or constitute 

relevant and pertinent new evidence not previously considered by OWCP. Appellant did not 

meet any of the regulatory requirements and OWCP properly declined to reopen his claim for 

further merit review.16

CONCLUSION 

The Board finds that appellant has failed to establish a bilateral foot injury causally 

related to his federal duties, as alleged. The Board further finds that OWCP properly refused to 

reopen his claim for merit review pursuant to 5 U.S.C. § 8128(a). 

 14 Id. at § 10.608(b). 

15 See D.K., 59 ECAB 141 (2007). 

16 M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); A.K., Docket No. 09-2032 (issued 

August 3, 2010). 
6

ORDER 

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

Compensation Programs dated June 3 and April 23, 2015 are affirmed. 

Issued: January 8, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board