United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.C., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, Pine Knot, KY, 

Employer

__________________________________________

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Docket No. 19-0673

Issued: September 6, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 5, 2019 appellant, through counsel, filed a timely appeal from a January 2, 

2019 merit 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 this case.3

 

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. 

3 The Board notes that following the January 2, 2019 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish a right foot fracture 

causally related to the accepted factors of her federal employment.

FACTUAL HISTORY

On March 1, 2018 appellant, then a 39-year-old medical records technician, filed a 

traumatic injury claim (Form CA-1) alleging that at 10:00 a.m. on November 27, 2017 she 

experienced the onset of severe right foot pain when escorting inmates to and from a mobile “MRI 

truck” while in the performance of duty. In a March 7, 2018 statement, she noted that she had 

initially attributed her right foot pain to gout, a possible side effect of a recently prescribed diuretic. 

Appellant’s attending physician later diagnosed a stress fracture of the right second metatarsal.

In support of her claim, appellant submitted chart notes signed by Jennifer West, a nurse 

practitioner, dated from November 27, 2017 to February 9, 2018. Ms. West noted that 

November 27, 2017 x-rays had been negative for fracture, while x-rays reviewed on December 11, 

2017 demonstrated a displaced second metatarsal fracture. 

In reports dated February 6 and March 8, 2018, Dr. Tracy A. Pesut, a Board-certified 

orthopedic surgeon, obtained x-rays of the right foot which demonstrated a mildly angulated stress 

fracture of the second metatarsal neck, hammering of the second and third toes, and a hallux valgus 

deformity. She diagnosed a right second metatarsal stress fracture with malunion, and right 

metatarsalgia. 

In a development letter dated March 19, 2018, OWCP informed appellant that the evidence 

of record did not establish the November 27, 2017 incident as factual or that work factors had 

caused the claimed right foot injury. It advised her of the type of factual and medical evidence 

needed and provided a questionnaire for her completion. OWCP afforded appellant 30 days to 

provide the necessary information.

In response, appellant submitted a March 26, 2018 statement contending that she had not 

realized the metatarsal fracture had been work related until a February 28, 2018 meeting with an 

employing establishment safety official. She also submitted December 11, 2017 and January 30, 

2018 x-rays which demonstrated an angulated fracture of the right second metatarsal.

By decision dated May 4, 2018, OWCP denied the traumatic injury claim finding that the 

evidence of record did not establish that the November 27, 2017 incident had occurred as alleged. 

On May 18, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. At the hearing, held October 19, 2018, counsel contended that 

appellant had sustained an occupational condition due to frequent prolonged walking in the 

performance of duty, rather than a traumatic injury caused by a single incident on 

November 27, 2017. Appellant noted that she had returned to work intermittently in July 2018,

but could not continue as fixation screws had bent or broken. She underwent revision surgery on 

September 26, 2018. Appellant also submitted additional medical evidence.

On April 18, 2018 Dr. Pesut performed a right second metatarsal osteotomy with plate and 

screw fixation, right third metatarsal Weil osteotomy, a right Lapidus bunion correction with screw 
3

fixation, and right calcaneal autograft. In a May 3, 2018 report, she noted good postsurgical 

progress. 

In a report dated May 31, 2018, Dr. Pesut noted that the second metatarsal fracture and 

surgical correction were “related to [appellant’s] work activities,” but that the bunionectomy and 

third metatarsal procedures were not occupationally related. In a July 5, 2018 report, she opined 

that the second metatarsal fracture “occurred at work.”

In an August 16, 2018 report, Dr. Pesut obtained x-rays which demonstrated broken 

fixation screws. She opined that appellant had sustained the second metatarsal fracture at work, 

with consequential third metatarsalgia from the second metatarsal malunion.

In a letter dated August 27, 2018, Dr. Pesut opined that appellant had sustained a right 

second metatarsal stress fracture at work due to prolonged walking and standing in required 

footwear. The malunion increased pressure on the great toe and third toe which caused pain with 

weight bearing and necessitated an osteotomy. Dr. Pesut corrected the nonoccupational hallux 

valgus deformity to prevent “impingement on the second toe and difficulty with healing.”

In a September 14, 2018 report, Dr. Ryan L. Dabbs, a Board-certified orthopedic surgeon, 

recommended surgical revision of the Lapidus bunion correction due to nonunion and broken 

fixation hardware.

Appellant also provided an undated letter and additional chart notes from Ms. West. 

In a November 1, 2018 statement, the employing establishment noted that appellant had 

been required to personally escort inmates “many miles” to and from medical units during 

lockdown incidents.

By decision dated January 2, 2019, an OWCP hearing representative affirmed the May 4, 

2018 decision as modified finding that appellant had established that the claimed employment 

events occurred as alleged. She indicated that, although appellant initially filed a traumatic injury 

claim, her testimony was sufficient as to her duties over time to change the complexion of the 

claim to occupational in nature. However, the claim remained denied because the medical 

evidence of record failed to establish that the accepted employment factors caused appellant’s

diagnosed stress fracture or other right foot conditions. 

LEGAL PRECEDENT

An employee seeking benefits under FECA 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 timely filed within the applicable 

time limitation period of FECA,4that an injury was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally related 

 

4 C.B., Docket No. 18-0071 (issued May 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 

ECAB 178 (issued 2007); Joe D. Cameron, 41 ECAB 153 (1989).
4

to the employment injury.5 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.6 

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 diagnosed 

condition is causally related to the employment factors identified by the claimant.7

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

relationship is rationalized medical evidence.8 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 employee.9

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.10

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a right foot 

fracture causally related to the accepted factors of her federal employment.

Appellant submitted a series of reports from Dr. Pesut asserting that prolonged standing 

and walking in the performance of duty had caused the right second metatarsal fracture. The Board 

has held that a medical report is of limited probative value regarding causal relationship if it does 

not contain medical rationale explaining how a given medical condition was related to employment 

factors.11 Without medical reasoning explaining how the accepted employment activities caused 

or contributed to appellant’s diagnosed conditions, Dr. Pesut’s reports are insufficient to establish 

appellant’s claim.12

 

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

6 C.B., supra note 4; K.M., Docket No. 15-1660 (issued September 16, 2016); Delores C. Ellyett, 41 ECAB 

992 (1990).

7 E.M., Docket No. 18-0275 (issued June 8, 2018).

8 A.M., Docket No. 18-0685 (issued October 26, 2018).

9 E.V., Docket No. 18-0106 (issued April 5, 2018).

10 A.M., Docket No. 18-1748 (issued April 24, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

11 C.B., supra note 4; see Y.D., Docket No. 16-1896 (issued February 10, 2017).

12 Id.
5

In his September 14, 2018 report, Dr. Dabbs recommended surgical revision of the Lapidus 

bunion correction previously performed on appellant’s right foot, however, he did not offer an 

opinion relative to causal relationship. Medical evidence that does not offer an opinion regarding 

the cause of an employee’s condition is of no probative value on the issue of causal relationship.13

Appellant also submitted reports signed solely by Ms. West, a nurse practitioner. These 

reports do not constitute competent medical evidence because a nurse practitioner is not considered 

a “physician” as defined under FECA.14 Consequently, the medical findings and opinions of a 

nurse practitioner will not suffice for purposes of establishing entitlement to compensation 

benefits.15

On appeal counsel asserts that OWCP did not accord adequate weight to the medical 

evidence of record. As explained above, appellant’s physicians did not provide sufficient medical 

rationale 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. 

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish a right foot 

fracture causally related to the accepted factors of her federal employment.

 

13 M.W., Docket No. 18-1624 (issued April 3, 2019); S.B., Docket No. 18-1296 (issued January 24, 2019).

14 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law); 

20 C.F.R. § 10.5(t); see also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician 

assistants, nurse practitioners, and physical therapists are not competent to render a medical opinion under 

FECA); K.S., Docket No. 18-0954 (issued February 26, 2019); K.W., 59 ECAB 271, 279 (2007). 

15 Id. 
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ORDER

IT IS HEREBY ORDERED THAT the January 2, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 6, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board