United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Harrisburg, PA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1640 

Issued: May 3, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 9, 2016 appellant filed a timely appeal from a March 22, 2016 merit decision 

and a June 28, 2016 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 met her burden of proof to establish a right foot 

condition causally related to factors of her federal employment; and (2) whether OWCP properly 

denied appellant’s request for reconsideration of the merits of her claim under 5 U.S.C. § 8128. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 30, 2015 appellant, a 33-year-old mail carrier, filed an occupational 

disease claim (Form CA-2), alleging that she developed a right foot condition causally related to 

factors of her federal employment. 

On January 21, 2016 OWCP advised appellant that it required factual and medical 

evidence to determine whether she was eligible for compensation benefits. It requested that she 

submit a comprehensive report from a treating physician describing her symptoms and the 

medical reasons for her condition, with an opinion as to whether her claimed condition was 

causally related to her federal employment. OWCP afforded appellant 30 days to submit this 

evidence. 

In a written statement dated February 1, 2016, appellant asserted that her right foot 

condition developed as a result of her walking, lifting, pushing, pulling, stooping, and being on her 

feet all day long. She related that she had a collapsed bone in her right foot which was aggravated 

by her continuous, daily walking. Appellant advised that she might require surgery to ameliorate 

her right foot condition. 

On February 18, 2016 the employing establishment controverted the claim. It asserted that 

appellant was provided with ample breaks and was given a stool to sit, as needed, while 

performing her tasks at work. 

In a January 25, 2016 report, Dr. Jennifer O. Dempsey, an osteopath, advised that she had 

examined and treated appellant for right foot pain on May 12, August 11, and October 27, 2015. 

She noted that appellant had a history of pain in her right second toe and the bottom of her right 

foot. Dr. Dempsey reported that appellant had experienced pain in her right foot for a few years, 

but that recently it had been worsening. Appellant had tried multiple, different shoes, but 

continued to have pain. Dr. Dempsey advised on examination that appellant had a dorsally 

contracted right second toe, which was semi-reducible, edema to the plantar right second 

metatarsal-phalangeal joint, and erythema to the dorsal right second toe proximal phalangeal joint. 

She found pain on palpation and reduced range of motion to the right second metatarsal-phalangeal 

joint. Dr. Dempsey also found pain on palpation of the right second interspace. 

Dr. Dempsey noted that she had scheduled appellant for x-rays and a magnetic resonance 

imaging scan of her right foot to rule out a neuroma, but her insurance company had denied the 

request. She diagnosed hammertoe, deformity right second toe, bursitis right second metatarsalphalangeal joint, neuroma right second interspace, and pain right foot. Dr. Dempsey reported that 

appellant had some improvement in her symptoms, but continued to have irritation and pain due to 

the dorsal contracture of her right second toe. She opined that appellant’s job as a mail carrier was 

adversely affecting her foot condition and that she would benefit from surgery to correct her 

painful foot deformity. 

By decision dated March 22, 2016, OWCP found that appellant had failed to meet her 

burden of proof to establish a right foot condition causally related to the accepted federal 

employment factors. It noted that Dr. Dempsey had failed to provide a well-rationalized medical 

opinion explaining how work factors contributed to appellant’s claimed right foot condition. 
3

On June 10, 2016 appellant requested reconsideration. She did not submit any additional 

evidence. 

By decision dated June 28, 2016, OWCP denied appellant’s request for reconsideration as 

it did not meet the requirements for a merit review. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA2

 has the burden of proof to establish that 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, 

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

related to the employment injury.3 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.4

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed; (2) a factual 

statement identifying employment factors alleged to have caused or contributed to the presence 

or occurrence of the disease or condition; and (3) medical evidence establishing that the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed, or stated differently, medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant. 

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 factors 

identified by the claimant.5

Appellant has the burden of proof to establish by the weight of the substantial, reliable, 

and probative evidence, a causal relationship between her claimed right foot condition and her 

federal employment. This burden includes providing medical evidence from a physician who 

 2 Id. 

3 Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989). 

4

 Victor J. Woodhams, 41 ECAB 345 (1989). 

5 Id.
4

concludes that the disabling condition is causally related to employment factors and supports that 

conclusion with sound medical reasoning.6

ANALYSIS -- ISSUE 1 

The Board finds that appellant has failed to submit any medical opinion containing a 

rationalized, probative report which relates her claimed right foot condition to factors of her 

federal employment. For this reason, appellant has not discharged her burden of proof to 

establish her claim. 

Dr. Dempsey advised in her January 25, 2016 report, that appellant had experienced right 

foot pain for several years which was worsening. She diagnosed hammertoe, deformity right 

second toe, bursitis right second metatarsal-phalangeal joint, neuroma right second interspace and 

pain right foot. Dr. Dempsey advised that appellant had attained some improvement in her 

condition, but that she continued to have irritation and pain due to the dorsal contracture of her 

right second toe. She concluded that appellant’s job as a mail carrier was adversely affecting her 

right foot condition and opined that she would benefit from surgery to ameliorate this condition. 

Dr. Dempsey did not provide a probative, rationalized medical opinion that the claimed 

right foot condition was causally related to employment factors. Her opinion on causal 

relationship is of limited probative value as it does not contain medical rationale explaining how 

appellant’s claimed right foot condition was caused by factors of employment.7

 While 

Dr. Dempsey diagnosed hammer toe of the right foot, she did not sufficiently describe 

appellant’s job duties or explain the medical process through which such duties would have been 

competent to cause the claimed condition. Her January 25, 2016 report thus did not constitute 

adequate medical evidence to establish that appellant’s claimed right foot condition was causally 

related to factors of her federal employment. 

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

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

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

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

rationalized medical opinion evidence and she failed to submit such evidence. 

OWCP advised appellant of the evidence required to establish her claim, however, she 

failed to submit such evidence. Consequently, appellant has not met her burden of proof to 

establish that her claimed right foot condition was causally related to factors of her federal 

employment. 

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. 

 6 See Nicolea Bruso, 33 ECAB 1138, 1140 (1982). 

7 William C. Thomas, 45 ECAB 591 (1994). 
5

LEGAL PRECEDENT -- ISSUE 2 

Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her 

claim by showing that OWCP erroneously applied or interpreted a specific point of law, by 

advancing a relevant legal argument not considered by OWCP, or by submitting relevant and 

pertinent new evidence not previously considered by OWCP.8

 Evidence that repeats or 

duplicates evidence already in the case record has no evidentiary value and does not constitute a 

basis for reopening a case.9

 When a claimant fails to meet one of the above standards, OWCP 

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

merits.10

ANALYSIS -- ISSUE 2 

In the present case, appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law; nor has she advanced a relevant legal argument not previously 

considered by OWCP. Moreover, she submitted no additional medical evidence with her 

reconsideration request which would constitute pertinent new and relevant and evidence. 

Appellant has not met any of the criteria to warrant a merit review.11 OWCP did not abuse its 

discretion in refusing to reopen her claim for a review on the merits in its June 28, 2016 decision. 

CONCLUSION 

The Board finds that appellant has failed to meet her burden of proof to establish that she 

sustained a right foot condition causally related to factors of her federal employment. The Board 

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

claim under 5 U.S.C. § 8128(a). 

 8

 20 C.F.R. § 10.606(b)(3); see generally 5 U.S.C. § 8128(a). 

9 Howard A. Williams, 45 ECAB 853 (1994). 

10 Supra note 8 at § 10.608(b). 

11 Id. 
6

ORDER 

IT IS HEREBY ORDERED THAT the June 28 and March 22, 2016 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: May 3, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board