United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.D., Appellant 

and 

DEPARTMENT OF THE ARMY, FORT 

LEONARD WOOD, MO, Employer 

__________________________________________ 

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Docket No. 16-1752 

Issued: March 1, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 30, 2016 appellant filed a timely appeal from a June 17, 2016 merit decision 

and an August 12, 2016 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).1

 Pursuant to the Federal Employees’ Compensation Act2 (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 his burden of proof to establish a traumatic 

injury causally related to a February 27, 2015 employment incident; and (2) whether OWCP 

properly denied appellant’s request for reconsideration of the merits under 5 U.S.C. § 8128(a). 

 1

 The Board notes that appellant submitted new evidence on appeal. The Board, however, cannot consider this 

evidence as its review of the case is limited to the evidence of the record which was before OWCP at the time of its 

final decision. 20 C.F.R. § 501.2(c)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On March 27, 2015 appellant, then a 51-year-old materials handler, filed a traumatic 

injury claim (Form CA-1) alleging that on February 27, 2015 he sprained his left foot and ankle 

when small arms protective insert (SAPI) plates fell over and landed on his foot. On form 

reports dated March 5, 2015 Dr. G. Ripoli, an employing establishment osteopath, diagnosed 

ankle sprain and advised that appellant should not bear weight on the left lower extremity for one 

week. 

On May 11, 2016 appellant filed a recurrence of disability claim (Form CA-2a) indicating 

that long periods of standing and twisting would cause sharp pain in the left ankle and foot which 

had recently worsened such that by May 1, 2016 he was using crutches. He stated that the 

recurrence began on May 2, 2016. The employing establishment indicated that no 

accommodations were made for appellant after the initial injury. 

In support of his claim, appellant submitted a May 2, 2016 disability slip, signed by 

Dr. Selina A. Jeanise, an employing establishment osteopath, who indicated that appellant should 

not work for 72 hours and could then return with no weight bearing until he was cleared by his 

private physician. 

By letter dated May 17, 2016, OWCP noted that appellant’s initial claim was 

administratively approved because it appeared to be a minor injury that resulted in minimal or no 

lost time from work and was not challenged. It informed appellant that the claim had now been 

reopened for formal adjudication because he had filed a claim for recurrence. OWCP notified 

appellant that the medical evidence of record did not establish that the diagnosed left ankle 

sprain was caused or aggravated by an employment injury. Appellant was asked to provide all 

medical records of treatment relating to the February 27, 2015 employment incident and advised 

to submit a medical report from an examining physician with an opinion explaining how the 

reported work incident caused or aggravated the claimed injury. OWCP forwarded an attending 

physician’s report (Form CA-20) for his convenience. The letter also informed appellant that 

nurse practitioners and physician assistants were not considered qualified physicians under 

FECA unless the medical report was countersigned by a physician. Appellant was afforded 30 

days to respond. 

In a May 2, 2016 report, Dr. Jeanise noted a diagnosis of left foot pain, degenerative 

changes, and possible peroneus longus tendon damage. She recommended splinting, elevation, 

and ice packs, and provided restrictions of nonweight bearing and crutches until a follow up with 

his primary physician. 

By decision dated June 17, 2016, OWCP denied the claim. It noted that, although 

informed of the evidence needed to establish his claim, appellant had not submitted records of 

medical treatment relating to the accepted February 27, 2015 employment incident or a medical 

report from a physician explaining how the February 27, 2015 employment incident caused the 

current condition. 

Appellant requested reconsideration on July 19, 2016. This was accomplished by a check 

mark on the form indicating said request. A June 20, 2016 magnetic resonance imaging (MRI) 

scan of the left foot and ankle demonstrated a torn anterior talofibular ligament, a partial tear 
3

versus sprain of the posterior talofibular ligament, moderate tendinopathy and mild 

intrasubstance tearing of the peroneus long tendon with mild peroneus brevis and peroneus long 

tenosynovitis, a small area of signal change that could be sequela of a mild osteochondral injury, 

and mild degenerative formation of the cuboid calcaneus articulation and base of the fourth 

metatarsal. 

In a July 14, 2016 report, Marie Wright, a family nurse practitioner, advised that 

appellant reported a history that SAPI plates fell on his left foot on February 27, 2015, and that 

he had a similar injury on May 2, 2016. She indicated that appellant was evaluated on May 20, 

2016, continued under her care, and was unable to bear weight on the left foot due to tears of the 

peroneus longus tendon and anterior and posterior talofibular ligaments. Ms. Wright concluded 

that appellant would be further evaluated by orthopedics on July 25, 2016 and recommended 

evaluation by an occupational medicine physician. On July 19, 2016 she reiterated appellant’s 

restrictions and advised that appellant could not work on July 18, 2016 due to left foot and ankle 

pain. 

In a nonmerit decision dated August 12, 2016, OWCP denied review of the merits of the 

June 17, 2016 decision. It found that the evidence submitted was insufficient to warrant merit 

review, noting that the MRI scan did not include an opinion on causal relationship, and that, as 

Ms. Wright’s reports were not countersigned by a physician, her reports were not considered 

medical opinion evidence under FECA. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking compensation under FECA has the burden of proof to establish the 

essential elements of his or her claim by the weight of reliable, probative, and substantial 

evidence,3 including that he or she is an “employee” within the meaning of FECA and that the 

claim was within the applicable time limitation.4

 The employee must also establish that he 

sustained an injury in the performance of duty as alleged and that his disability for work, if any, 

was causally related to the employment injury.5

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 actually experienced the employment incident at 

the time, place, and in the manner alleged. Second, the employee must submit medical evidence 

to establish that the employment incident caused a personal injury.6

Causal relationship is a medical issue, and the medical evidence required to establish a 

causal relationship is rationalized medical evidence.7 The opinion of the physician must be 

 3

 J.P., 59 ECAB 178 (2007). 

4 R.C., 59 ECAB 427 (2008). 

5 Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

6

 T.H., 59 ECAB 388 (2008). 

7 Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 
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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 employee.8

 Neither the mere fact that a disease or condition manifests itself during a period 

of employment nor the belief that the disease or condition was caused or aggravated by 

employment factors or incidents is sufficient to establish causal relationship.9

ANALYSIS -- ISSUE 1 

It is undisputed that, while at work on February 27, 2015, SAPI plates fell over and 

landed on appellant’s left foot. The Board, however, finds that the medical evidence of record is 

insufficient to establish that this accepted incident resulted in an employment injury. 

Medical evidence submitted to support a claim for compensation should reflect a correct 

history, and the physician should offer a medically-sound explanation of how the claimed work 

event caused or aggravated the claimed condition.10 No physician did so in this case. 

The medical evidence submitted which is relevant to the claimed injury consists of two 

reports from Dr. Jeanise, an employing establishment osteopath. On a disability slip dated 

May 2, 2016 Dr. Jeanise noted that appellant was excused from work for 72 hours and should not 

bear weight until cleared by his private physician. This was supplemented by a May 2, 2016 

treatment note in which she diagnosed left foot pain, degenerative changes, and possible 

peroneus longus tendon damage. Dr. Jeanise recommended splinting, elevation, and ice packs, 

and provided restrictions of no weight bearing and crutches until a follow up with his primary 

physician. She did not, however, relate the diagnosed condition to the February 27, 2015 

incident or to any employment event. The Board has held that medical evidence that does not 

offer any opinion regarding the cause of an employee’s condition is of limited probative value on 

the issue of causal relationship.11 

Consequently, the medical evidence of record, at the time of the June 17, 2016 OWCP 

decision, is insufficient to meet appellant’s 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 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

 8 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 

9 Dennis M. Mascarenas, 49 ECAB 215 (1997). 

10 D.D., Docket No. 13-1517 (issued April 14, 2014). 

11 K.W., 59 ECAB 271 (2007). 
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application by a claimant.12 Section 10.608(a) of OWCP’s regulations provides that a timely 

request for reconsideration may be granted if OWCP determines that the employee has presented 

evidence and/or argument that meet at least one of the standards enumerated in section 

10.606(b)(3).13 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (i) shows that OWCP 

erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal 

argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new 

evidence not previously considered by OWCP.14 Section 10.608(b) provides that when a request 

for reconsideration is timely, but fails to meet at least one of these three requirements, OWCP 

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

merits.15

ANALYSIS -- ISSUE 2 

With his July 19, 2016 reconsideration request, appellant merely indicated by a check on 

an OWCP form that he was requesting reconsideration. He therefore did not show that OWCP 

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

not previously considered by OWCP. Consequently, appellant was not entitled to a review of the 

merits of the claim based on the first and second above-noted requirements under section 

10.606(b).16 

As to the third above-noted requirement under section 10.606(b)(3), appellant submitted 

a June 20, 2016 report of a left foot and ankle MRI scan. This evidence, however, did not 

contain an opinion regarding a cause of any diagnosed condition. The merit issue in this case is 

whether appellant established a traumatic injury causally related to the February 27, 2015 

employment incident. The Board has long held that evidence which does not address the 

particular issue involved in the case does not constitute a basis for reopening the claim.17 

Appellant also submitted reports dated July 14 and 19, 2016 from Ms. Wright, a family 

nurse practitioner. A nurse practitioner is not considered a physician under FECA.18 Thus, her 

opinion is of no relevance to the issue of causal relationship and does not comprise a basis for 

reopening the case for a merit review.19 

 12 5 U.S.C. § 8128(a). 

13 20 C.F.R. § 10.608(a). 

14 Id. at § 10.608(b)(3). 

15 Id. at § 10.608(b). 

16 Id. at § 10.606(b). 

17 D’Wayne Avila, 57 ECAB 642 (2006). 

18 Section 8101(2) of FECA provides that “physician” includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. Registered nurses, licensed practical nurses, and physician assistants are not “physicians” as defined 

under FECA. Their opinions are of no probative value. Roy L. Humphrey, 57 ECAB 238 (2005). 

19 See K.J., Docket No. 16-0611 (issued May 13, 2016). 
6

As appellant did not show that OWCP erred in applying a point of law, advancing a 

relevant legal argument not previously considered, or submitting relevant and pertinent new 

evidence not previously considered by OWCP, it properly denied his reconsideration request. 

CONCLUSION 

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

injury causally related to the February 27, 2015 employment incident, and that OWCP properly 

denied appellant’s request for reconsideration of the merits under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the August 12 and June 17, 2016 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: March 1, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board