United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

SANTEE, CA, Employer

__________________________________________

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Docket No. 22-1162

Issued: December 20, 2022

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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 2, 2022 appellant filed a timely appeal from an April 5, 2022 merit decision 

and a July 12, 2022 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 has met his burden of proof to establish a diagnosed 

medical condition in connection with the accepted February 19, 2022 employment incident; and 

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his

claim, pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On February 23, 2022 appellant, then a 39-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that on February 19, 2022 he injured his knees, right shoulder, 

and left arm when trying to apprehend a group of individuals while in the performance of duty. 

He further explained that he sustained left and right knee scrapes and bruises, as well as pain in 

the left knee and right shoulder. On the reverse side of the claim form, appellant’s supervisor 

acknowledged that appellant was injured in the performance of duty. 

In a development letter dated March 1, 2022, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of additional factual and medical evidence needed to 

establish his claim and afforded him 30 days to respond.

OWCP received a work capacity evaluation (Form OWCP-5c) dated March 17, 2022 

signed by Dr. Michael Lenihan, a Board-certified orthopedic surgeon. Dr. Lenihan indicated that 

appellant could work with no restrictions and that appellant had not reached maximum medical 

improvement. Appellant submitted a work status note of even date from Dr. Lenihan which also 

allowed appellant to return to work with no restrictions. OWCP received a physical therapy order 

of even date from Dr. Lenihan recommending treatment of appellant’s right shoulder, left elbow,

and left knee.

Appellant additionally submitted two magnetic resonance imaging (MRI) scan referral 

forms from Dr. Lenihan dated March 17, 2022, requesting a right shoulder MRI scan to rule out a 

labral tear and a left knee MRI scan to rule out chondral defect or chondral flap tear.

By decision dated April 5, 2022, OWCP found that the February 19, 2022 incident had 

occurred as alleged, but denied appellant’s traumatic injury claim, finding that the evidence of 

record was insufficient to establish a diagnosed medical condition in connection with the accepted 

employment incident. It concluded, therefore, that the requirements had not been met to establish 

an injury as defined by FECA. 

On April 21, 2022 appellant requested reconsideration. No additional evidence or 

argument was submitted. 

By decision dated July 12, 2022, OWCP denied appellant’s request for reconsideration of 

the merits of his claim, pursuant to 5 U.S.C. § 8128(a). 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA2 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, that 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 

2

Id.
3

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 determine whether an employee sustained a traumatic injury in the performance of duty, 

it must first be determined whether fact of injury has been established. There are two components 

involved in establishing fact of injury. The first component is whether the employee actually 

experienced the employment incident that allegedly occurred at the time, place, and in the manner 

alleged. The second component is whether the employment incident caused a personal injury and 

can generally be established only by medical evidence.5

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

condition and an employment incident is rationalized medical opinion evidence. 6 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 spec ific employment factors 

identified by the employee.7

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish a diagnosed 

medical condition in connection with the accepted February 19, 2022 employment incident. 

In support of his claim, appellant submitted several reports from Dr. Lenihan dated 

March 17, 2022. In a work status note and a Form OWCP-5c dated March 17, 2022, Dr. Lenihan 

related that appellant could return to work without restriction. In a physical therapy order of even 

date, he referred appellant for physical therapy for unspecified diagnoses related to appellant’s 

right shoulder, left elbow, and left knee. Similarly, in the MRI scan referral forms dated March 17, 

2022, Dr. Lenihan referred appellant for MRI scans to rule out medical diagnoses. None of the 

reports from him, dated March 17, 2022, provided a firm diagnosis or a rationalized medical 

opinion on causal relationship. The Board has held that a medical report lacking a firm 

diagnosis and a rationalized medical opinion regarding causal relationship is of no probative 

3

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

ECAB 312 (1988).

4 B.H., Docket No. 20-0777 (issued October 21, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);

L.M., Docket No. 13-1402 (issued February 7, 2014);DeloresC. Ellyett, 41 ECAB 992 (1990).

5 M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. 

§ 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q) (traumatic injury and occupational disease defined, 

respectively).

6

S.S.,Docket No. 19-0688 (issued January24, 2020); A.M.,Docket No. 18-1748 (issued April24, 2019); RobertG. 

Morris, 48 ECAB 238 (1996).

7 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).
4

value.8 As these reports did not provide a firm diagnosis in connection with the accepted 

employment incident, they are insufficient to establish appellant’s claim.9

As the medical evidence of record does not contain a medical diagnosis in connection with

the accepted February 19, 2022 employment incident, the Board finds that appellant has not met 

his 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 of FECA vests OWCP with a discretionary authority to determine whether it 

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

by a claimant.10

Section 10.608(b) of OWCP’s regulations provide that a timely request for reconsideration 

may be granted if OWCP determines that the claimant has presented evidence and/or argument 

that meet at least one of the standards described in section 10.606(b)(3).11 This section provides 

that the request for reconsideration must be submitted in writing and set forth arguments and 

contain evidence that: (1) shows that OWCP erroneously applied or interpreted a specific point of 

law; (2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes 

relevant and pertinent new evidence not previously considered by OWCP. 12 Section 10.608(b) 

provides that, when a request for reconsideration is timely, but fails to meet at least on e of these 

three requirements, OWCP will deny the request for reconsideration without reopening the case 

for a review on the merits.13

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim, pursuant to 5 U.S.C. § 8128(a).

Appellant’s request for reconsideration did not show that OWCP erroneously applied or 

interpreted a specific point of law, or advance a relevant legal argument not previously considered 

8 K.H., Docket No. 22-0489 (issued August2, 2022); R.L.,Docket No. 20-0284 (issued June 30, 2020).

9 M.O., Docket No. 21-1068 (issued March 1, 2022).

10 5 U.S.C. § 8128(a).

11 20 C.F.R. § 10.608(a).

12 Id. at § 10.606(b)(3);see L.D., Docket No. 18-1468 (issued February 11, 2019).

13 Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued 

April 2, 2020).
5

by OWCP. Consequently, he is not entitled to further review of the merits of his claim based on 

either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

Appellant also has not provided relevant and pertinent new evidence not previously 

considered by OWCP.14 Therefore, he is also not entitled to further review of the merits of his 

claim based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).

The Board, accordingly, finds that appellant has not met any of the requirements of 20 

C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a diagnosed 

medical condition in connection with the accepted February 19, 2022 employment incident. The 

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

claim, pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the April 5 and July 12, 2022 decisions of the Office 

of Workers’ Compensation Programs are affirmed.

Issued: December 20, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

14 See S.L., Docket No. 21-0201 (issued June10, 2022); P.C., Docket No. 18-1703 (issued March 22, 2019).