United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.S., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PATROL, 

Buffalo, NY, Employer 

__________________________________________ 

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Docket No. 16-1436 

Issued: August 8, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 July 1, 2016 appellant, through counsel, filed a timely appeal from a May 13, 2016 

merit decision and a June 6, 2016 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP). 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 the case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUES 

The issues are: (1) whether appellant has met her burden of proof to establish a right foot 

injury causally related to the June 3, 2010 employment incident; and (2) whether OWCP 

properly denied appellant’s request for an oral hearing. 

FACTUAL HISTORY 

This case has previously been before the Board. On June 4, 2010 appellant, then a 37-

year-old customs and border patrol officer, filed a traumatic injury claim (Form CA-1), alleging 

that on June 3, 2010 she developed a bump on the bottom of her right foot and experienced pain 

when walking and when putting pressure on her big toe. She noted that the cause of the injury 

was unknown, but that she was working in the vehicle export office and was walking up and 

down stairs. Appellant did not stop work. In an April 4, 2012 decision, the Board affirmed an 

April 14, 2011 OWCP decision. The Board found that appellant had not met her burden of proof 

to establish a right foot injury causally related to her June 3, 2010 employment incident as she 

submitted insufficient medical evidence addressing causal relationship.3 In a decision dated 

April 16, 2014, the Board again affirmed a June 18, 2013 OWCP decision,4 finding that 

appellant had failed to meet her burden of proof to establish a right foot injury causally related to 

her June 3, 2010 employment incident. The facts and circumstances as set forth in the Board’s 

prior decision are incorporated herein by reference. 

On January 27, 2015 counsel requested reconsideration. He provided a 

December 16, 2014 report from Dr. Catherine Watkins Campbell, a Board-certified family 

practitioner specializing in occupational medicine. Dr. Watkins Campbell reported that appellant 

had developed subacute pain in the right great toe area on June 3, 2010 with no history of prior 

symptoms. Appellant indicated to Dr. Watkins Campbell that on June 3, 2010 she worked a 12-

hour shift and repeatedly had to ascend and descend a flight of seven to eight concrete steps 

approximately 78 times during that shift. She believed that the stair climbing was the inciting 

activity for the onset of her symptoms. Appellant reported seeking treatment the next day at a 

local urgent care facility where right foot x-rays were negative. Dr. Watkins Campbell noted a 

magnetic resonance imaging (MRI) scan of the right foot revealed aseptic necrosis of the medial 

sesamoid bone. Appellant reported returning to light-duty work on July 16, 2010 and full duty 

on August 15, 2010. She underwent a surgical removal of a mass, which was identified as a 

segment of tendon with mild degenerative changes. Dr. Watkins Campbell noted that on 

October 12, 2012 Dr. Kenneth Goldstein, a podiatrist, surgically removed the medial sesamoid 

bone. Appellant subsequently retired on disability. 

On physical examination, Dr. Watkins Campbell noted findings that included a 

moderately antalgic gait, a mildly tender small-sized mass in the plantar fascia of the medial 

arch, atrophic skin changes and hair loss on the right foot, and asymmetric muscle atrophy with 

the right. She noted limited right foot dorsiflexion as well as limited plantar flexion, inversion, 

and eversion. Appellant also had variable decreased sensation to pinprick in the right lower leg. 

 3

 Docket No. 11-1885 (issued April 4, 2012). 

4

 Docket No. 14-23 (issued April 16, 2014). 
3

Dr. Watkins Campbell diagnosed complex regional pain syndrome (CRPS), medial sesamoid 

fracture of the right foot, and aseptic necrosis of the medial sesamoid bone of the right foot. She 

referenced an article from the Journal of Foot Surgery titled “Symptomatic Bipartite Sesamoids” 

(Frankel and Harrington, pages 318-323) and noted that it was probable that appellant’s right 

medial sesamoid bone and the fibrocartilage connection between the bones was disrupted with 

repeated hyperextension of the right big toe going up and down the concrete steps. 

Dr. Watkins Campbell noted that because there was no sharp bony disruption, the x-rays 

obtained on the date of injury did not identify an acute fracture, but there was “most likely” a 

fibrocartilage fracture of the right medial sesamoid bone. She opined that the inciting event 

resulted in significant disruption of the mechanical function of the sesamoid bones within the 

flexor halluces tendon, which caused subsequent avascular and aseptic necrosis of one or both of 

the fragments. Dr. Watkins Campbell advised that the CRPS condition was causally related to 

the June 3, 2010 injury event. She opined that in all reasonable medical probability repeatedly 

ascending and descending concrete steps and the repeated extension of the right big toe directly 

resulted in the separation or fracture of the fibrocartilage of the bipartite medial sesamoid bone. 

This activity caused a disruption in the manner in which the medial and lateral sesamoid bones 

function causing inflammation and subsequent necrosis of the medial bone. 

Dr. Watkins Campbell noted that there was clear evidence of CRPS of the leg. In addition to 

CRPS, she opined that the diagnosed conditions were work related. 

In an April 2, 2015 letter, OWCP notified appellant that it was unable to process her 

January 27, 2015 reconsideration request because she had appealed her claim to the Board and it 

was currently being processed. It indicated that she could only elect one method of appeal at a 

time. OWCP further advised that no further action would be taken on appellant’s 

reconsideration request received on January 17, 2015. 

By letter dated June 19, 2015, received by OWCP on June 23, 2015, again appellant, 

through counsel, requested reconsideration and indicated that the January 27, 2015 

reconsideration request was based on the Board’s decision dated April 16, 2014. She requested 

OWCP process the timely January 27, 2015 reconsideration request. 

In a decision dated May 13, 2016, OWCP denied modification. 

On May 25, 2016 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. 

In a decision dated June 6, 2016, an OWCP hearing representative denied appellant’s 

request for a telephone hearing. It noted that the Board had previously issued a decision on 

April 16, 2014 on the issue of whether she sustained a June 3, 2010 injury and advised that it did 

not have jurisdiction to review the decision of the Board. OWCP also noted that, while appellant 

was not entitled to a hearing as a matter of right, it had further considered the matter, in its 
4

discretion, and found that the hearing request was further denied because appellant could pursue 

the matter through the reconsideration process.5

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA6

 has the burden of proof to establish 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 filed within the applicable time 

limitation 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. 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.7

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.8

 The second component of fact of 

injury is whether the employment incident caused a personal injury and generally can be 

established only by medical evidence. To establish causal relationship between the condition, as 

well as any attendant disability, claimed and the employment event or incident, the employee 

must submit rationalized medical opinion evidence, based on a complete factual and medical 

background, supporting such a causal relationship.9

Rationalized medical opinion evidence is medical evidence which includes a physician’s 

rationalized opinion on the issue of whether there is 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.10 The weight of medical evidence is determined by its reliability, its 

 5

 It appears that OWCP inadvertently indicated that since the Board previously issued a decision on the issue of 

whether appellant sustained an injury on June 3, 2010 the Branch of Hearings and Review had no jurisdiction to 

review the Board decision. However, section 8124(b)(1) of FECA, provides that appellant was not entitled to an 

oral hearing if he or she had previously requested reconsideration pursuant to 5 U.S.C. § 8128(a) of FECA. See 

Peggy R. Lee, 46 ECAB 527 (1995) (where the Board found that appellant’s request for an oral hearing was made 

after OWCP issued its decision on her request for reconsideration made pursuant to 5 U.S.C. § 8128 and therefore 

appellant was not entitled to an oral hearing before an OWCP hearing representative as a matter of right). 

6 Supra note 2. 

7 Gary J. Watling, 52 ECAB 357 (2001). 

8 Michael E. Smith, 50 ECAB 313 (1999). 

9 Id. 

10 Leslie C. Moore, 52 ECAB 132 (2000). 
5

probative value, its convincing quality, the care of analysis manifested and the medical rationale 

expressed in support of the physician’s opinion.11

ANALYSIS -- ISSUE 1 

The Board finds that the medical evidence of record is insufficient to establish that 

appellant sustained a right foot injury due to the June 3, 2010 work incident. 

Appellant submitted a December 16, 2014 report from Dr. Watkins Campbell who 

diagnosed medical sesamoid fracture of the right foot, aseptic necrosis of the medial sesamoid 

bone of the right foot and complex regional pain syndrome lower extremity. She opined that it 

was probable that the fibro cartilaginous tissue of appellant’s right medial sesamoid bone was 

most likely disrupted causing a fibrocartilage fracture of the right medial sesamoid bone as a 

result of repeated hyperextension of the right big toe going up and down the concrete steps. The 

Board notes that Dr. Watkins Campbell’s report provides some support for causal relationship, 

but is insufficient to establish that the claimed right foot condition was causally related to her 

employment duties. In her report, Dr. Watkins Campbell opined that it was “probable” and 

“most likely” that the fibrocartilage fracture of the right medial sesamoid bone was the result of 

going up and down the concrete steps. At best, this report provides only speculative support for 

causal relationship.12 Dr. Watkins Campbell provided insufficient medical reasoning to support 

her opinion on causal relationship. 

Dr. Watkins Campbell further opined that the inciting event of June 3, 2010 resulted in 

significant disruption of the mechanical function of the sesamoid bones and flexor halluces 

tendon, which caused subsequent avascular and aseptic necrosis of one or both of the fragments. 

She advised that CRPS was causally related to the injury event that occurred on June 4, 2010. 

Dr. Watkins Campbell referenced medical literature and opined that, in all reasonable medical 

probability, ascending and descending concrete steps with the repeated extension of the right big 

toe directly resulted in the separation or fracture of the fibrocartilage of the bipartite medial 

sesamoid bone. She opined that this activity caused a disruption of the mechanism in which the 

medial and lateral sesamoid bones function causing ultimate inflammation and subsequent 

necrosis of the medial bone. Dr. Watkins Campbell noted that there was clear evidence of CRPS 

of the lower extremity. Again, she did not explain how such activity would result in the 

diagnosed condition. Dr. Watkins Campbell did not adequately explain why walking on stairs on 

or about June 3, 2010 was a competent cause or contributor to appellant’s diagnosed right foot 

conditions.13 She also did not clearly explain how the referenced medical literature applied to 

appellant’s situation.14 The Board finds that, although Dr. Watkins Campbell provided some 

 11 Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are 

entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001). 

12 Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D.,

57 ECAB 734 (2006). 

13 Supra note 12. 

14 See Roger G. Payne, 55 ECAB 535 (2004) (excerpts from publications have little probative value in resolving 

medical questions unless a physician shows the applicability of the general medical principles discussed in the 

articles to the specific factual situation in a case). 
6

support for causal relationship, this report is insufficient to establish the claim as she failed to 

provide sufficient medical rationale explaining the basis of her conclusion regarding the causal 

relationship between appellant’s right foot condition and the factors of employment. 

Consequently, the medical evidence of record is insufficient to establish that the June 3, 

2010 work incident caused or aggravated a diagnosed medical condition. Appellant has failed to 

meet her burden of proof. 

On appeal appellant asserts that she has established fact of injury and noted that her 

condition, specifically possible fracture and osteonecrosis, could be caused by the trauma she 

reported on June 3, 2010. As noted, however, the Board found she has not submitted sufficient 

medical evidence to explain how walking on stairs on June 3, 2010 caused or aggravated the 

diagnosed right foot condition. 

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 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before a 

hearing representative, states: Before review under section 8128(a) of this title, a claimant for 

compensation not satisfied with a decision of the Secretary under subsection (a) of this section is 

entitled, on request made within 30 days after the date of the issuance of the decision, to a 

hearing on his or her claim before a representative of the Secretary.15 A hearing is a review of an 

adverse decision by a hearing representative. Initially, the claimant can choose between two 

formats: an oral hearing or a review of the written record. In addition to the evidence of record, 

the claimant may submit new evidence to the hearing representative.16 The Branch of Hearings 

and Review, in its broad discretionary authority in the administration of FECA, has the power to 

hold hearings in certain circumstances where no legal provision was made for such hearings and 

must exercise this discretionary authority in deciding whether to grant a hearing.17 The Board 

has held that it must exercise its discretion to grant or deny a hearing when the request is 

untimely or made after reconsideration under section 8128(a).18 

ANALYSIS -- ISSUE 2 

On May 25, 2016 appellant requested an oral hearing with the Branch of Hearings and 

Review. The Board finds that, because she had previously requested reconsideration under 

section 8128 of FECA, she was not entitled to a hearing as a matter of right under section 

8124(b)(1). OWCP exercised its discretion and determined that the issue in the case could be 

 15 5 U.S.C. § 8124(b)(1). 

16 20 C.F.R. § 10.615. 

17 D.M., Docket No. 08-1814 (issued January 16, 2009). 

18 See R.T., Docket No. 08-0408 (issued December 16, 2008). 
7

resolved equally well through a request for reconsideration and the submission of additional 

evidence. The Board therefore finds that OWCP did not abuse its discretion in denying 

appellant’s request for an oral hearing in its June 6, 2016 decision. 

CONCLUSION 

The Board finds that appellant failed to meet her burden of proof to establish a right foot 

injury causally related to the June 3, 2010 employment incident. The Board further finds that 

OWCP did not abuse its discretion in denying her request for an oral hearing. 

ORDER 

IT IS HEREBY ORDERED THAT the June 6 and May 13, 2016 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: August 8, 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