United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

DEPARTMENT OF COMMERCE,

U.S. CENSUS BUREAU, Bethesda, MD,

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-0126

Issued: September 9, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 5, 2020 appellant filed a timely appeal from an October 19, 2020 merit

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.

2

ISSUE

The issue is whether appellant has met her burden of proof to establish a left ankle condition 

causally related to the accepted September 7, 2020 employment incident.

 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the October 19, 2020 decision, OWCP received additional evidence. 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

FACTUAL HISTORY

On September 8, 2020 appellant, then an 18-year-old census enumerator, filed a traumatic 

injury claim (Form CA-1) alleging that on September 7, 2020 she sustained a closed fracture of 

the left ankle when she fell from a porch when evading a homeowner’s dog while in the 

performance of duty. She stopped work on that date.

In a note dated September 7, 2020, Dr. Krisseda S. Solomon, an emergency medicine 

specialist, limited appellant to light-duty work with no ambulation until cleared by an orthopedic 

surgeon. 

On September 11, 2020 Dr. Alexander Martusiewicz, an orthopedic surgeon, diagnosed 

distal fibula fracture and recommended that appellant remain off from work until October 8, 2020. 

In a September 11, 2020 development letter, OWCP informed appellant that the evidence 

submitted was insufficient to establish her claim. It advised her of the type of factual and medical 

evidence necessary and provided a questionnaire for completion. OWCP afforded appellant 30 

days to respond.

OWCP thereafter received a September 10, 2020 new patient visit report by

Dr. Martusiewicz, who indicated that on the date appellant related a history of twisting her left 

ankle when she “jumped over a porch” while running away from a dog while working. 

Dr. Martusiewicz performed a physical examination of her left lower extremity and noted mild

swelling and tenderness, but no bruising. He also reviewed x-rays and diagnosed a closed left 

distal fibula avulsion fracture. 

October 8, 2020 x-rays revealed a stable appearing fibula avulsion fracture. In a letter of 

even date, Dr. Martusiewicz released appellant to work on November 2, 2020. 

By decision dated October 19, 2020, OWCP accepted that the September 7, 2020

employment incident occurred as alleged. However, it denied the claim, finding that the medical 

evidence of record was insufficient to establish that the diagnosed left ankle condition was causally 

related to the accepted employment incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim, including 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 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 to the 

 

3

Supra note 1.

4 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); Joe D. 

Cameron, 41 ECAB 153 (1989). 
3

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 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. The first component is that the 

employee must submit sufficient evidence to establish that he or she actually experienced the 

employment incident at the time and place, and in the manner alleged. The second component is 

whether the employment incident caused a personal injury and can be established only by medical 

evidence.7 

The medical evidence required to establish causal relationship between a claimed specific 

condition and an employment incident is rationalized medical opinion evidence.8 The opinion of 

the physician must be based on a complete factual and medical background of the employee, 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 specific employment factors 

identified by the employee.9

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a left ankle 

condition causally related to the accepted September 7, 2020 employment incident.

In his September 10, 2020 new patient visit report, Dr. Martusiewicz noted appellant’s 

history of twisting her left ankle while working, and diagnosed a closed left distal fibula avulsion 

fracture. However, he did not provide an opinion on the issue of causal relationship. Likewise, in 

his September 11 and October 8, 2020 reports, Dr. Martusiewicz provided a work excuse and a 

subsequent release to work effective November 2, 2020. However, he did not provide an opinion 

on the issue of causal relationship. The Board has held that 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.10 Therefore, Dr. Martusiewicz’s September 10, 11 and October 8, 2020 

reports are insufficient to establish appellant’s claim.

 

5 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E.Chadden, Sr., 40 ECAB 312 (1988).

6 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

DeloresC.Ellyett, 41 ECAB 992 (1990).

7 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April24, 2019); Robert G. 

Morris, 48 ECAB 238 (1996).

9 T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); 

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10 W.K., Docket No. 20-0765 (issued February 26, 2021); S.W., Docket No. 19-1579 (issued October 9, 2020); L.B., 

Docket No. 18-0533 (issued August27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
4

Similarly, Dr. Solomon’s September 7, 2020 letter provided a work excuse, but he did not 

offer an opinion on the cause of appellant’s condition. As previously noted, medical evidence that 

does not offer an opinion regarding an employee’s condition or disability is of no probative value. 11 

Thus, Dr. Solomon’s report is also insufficient to the claim. 

The remainder of the record consists of October 8, 2020 x-rays of appellant’s left ankle. 

The Board has held that diagnostic studies, standing alone, lack probative value on the issue of 

causal relationship as they do not address whether the employment incident caused a diagnosed 

condition.12

As appellant has not submitted rationalized medical evidence to establish a left ankle 

condition causally related to the accepted September 7, 2020 employment incident, the Board finds 

that she has not met her 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 left ankle 

condition causally related to the accepted September 7, 2020 employment incident.

 

11 Id.

12 J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).
5

ORDER

IT IS HEREBY ORDERED THAT the October 19, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 9, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board