United States Department of Labor 

Employees’ Compensation Appeals Board 

___________________________________________

E.C., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

MAINTENANCE WORKING CAPITAL FUND, 

RANDOLPH AIR FORCE BASE, TX, Employer 

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Docket No. 15-1943 

Issued: May 5, 2016 

Appearances: Case Submitted on the Record

Jason S. Lomax, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 28, 2015 appellant, through counsel, filed a timely appeal from the 

April 13, 2015 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. 

ISSUES 

The issues on appeal are: (1) whether OWCP properly terminated appellant’s medical 

benefits and wage-loss compensation effective February 3, 2014, as he was no longer disabled 

from work as a result of his work-related injury; and (2) whether appellant has met his burden of 

proof to establish continuing residuals or disability after the February 3, 2014 termination of his 

compensation benefits. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On March 21, 2013 appellant then a 51-year-old letter carrier filed a recurrence claim 

(Form CA-2a) alleging that he sustained a flare up of his Achilles tendon in the performance of 

duty. He noted that it was not a new injury but only a flare-up. Appellant explained that his 

original injury was a broken ankle which healed. However, he advised that during rehabilitation, 

an injury to the Achilles tendon was discovered. Appellant indicated that he became aware of 

his disease or illness on March 12, 2013. He stopped work on March 12, 2013. OWCP 

developed this as a claim for a new occupational disease.2

In a February 19, 2013 report, Dr. Laura Ross, a Board-certified orthopedic surgeon and 

osteopath, noted that appellant had full range of motion in his right ankle, no swelling and some 

tenderness to palpation along the Achilles insertion on the right. She diagnosed a healed right 

ankle fracture and Achilles tendinitis. Dr. Ross advised that, after two weeks of physical 

therapy, appellant could return to full duty on March 5, 2013. 

On March 25, 2013 appellant related an exacerbation of pain at the insertion of the 

Achilles tendon after his return to full duty. Dr. Ross explained that during the time appellant 

received physical therapy for the healed fracture, he developed Achilles tendinitis. She advised 

that the symptoms waxed and waned. Dr. Ross had returned appellant to full-time full-duty 

status on March 5, 2013 and was doing well; however, he had an exacerbation of Achilles 

tendinitis. She provided results on examination: full active range of motion of the right ankle; a 

negative Thompson’s test bilaterally; and tenderness to palpation along the Achilles insertion on 

the right. Additionally, there was some swelling around the insertion of the right Achilles. 

Dr. Ross diagnosed a healed right ankle fracture and exacerbation of Achilles tendinitis. She 

recommended a walker boot and ordered a magnetic resonance imaging (MRI) scan of his right 

ankle. Dr. Ross placed him off work until the results of the MRI scan were made available. 

In an April 1, 2013 report, Dr. Ross advised that since his last visit he had a right ankle 

MRI scan which was significant for Achilles tendinitis at the insertion site with no significant 

tear. She found range of motion of his right foot and ankle within normal limits. Dr. Ross found 

some point tenderness along the insertion of the right Achilles but no swelling. She diagnosed 

right Achilles tendinitis as a result from right ankle fracture and recommended a walker boot for 

four weeks and physical therapy. Dr. Ross placed appellant off work. 

On May 14, 2013 OWCP accepted the claim for aggravation of right Achilles tendinitis. 

Appellant received wage-loss compensation and medical benefits. 

Dr. Ross again saw appellant on May 20, 2013 and found tenderness to palpation over the 

Achilles insertion on the right and mild swelling at the Achilles insertion and range of motion of 

the right foot and ankle within normal limits. She advised that appellant had reached maximum 

medical improvement relative to the Achilles tendinitis. Dr. Ross explained that appellant’s 

                                                             2

 The record reflects that appellant had a prior claim accepted on September 11, 2012 for closed fracture of the 

distal fibula, right ankle. That claim was accepted under File No. xxxxxx554. Appellant returned to full duty on 

March 5, 2013. This claim has been combined with the present claim, File No. xxxxxx776, which serves as the 

master claim. 
3

condition would be chronic and that appellant could not return to his duties as a letter carrier as 

he would have times of exacerbation, especially when walking on uneven surfaces. She opined 

that he could perform sedentary-type work. 

Dr. Ross referred appellant to Dr. Joseph Daniel, a Board-certified orthopedic surgeon, to 

review the history of injury and treatment. In a June 26, 2013 report, Dr. Daniel reviewed 

diagnostic x-ray and MRI scan findings of the right ankle and noted that the right ankle fracture 

was completely healed. He found evidence of osteophytes about the anterior aspect of the distal 

tibia and the neck of the talus and evidence of a large enthesophyte at the insertion of the 

Achilles tendon. Appellant had normal range of motion of the ankles in dorsiflexion and plantar 

flexion. Dr. Daniel found passive dorsiflexion of the ankle on the right which was limited to 15 

degrees and on the left to 30 degrees and passive plantar flexion of the ankles to 40 degrees. He 

explained there was no evidence of instability to anterior drawer testing in all positions and 

passive range of motion of the subtalar, talonavicular, calcaneocuboid, and tarsometatarsal 

articulations bilaterally was normal, apparently painless and without crepitation. Dr. Daniel 

indicated that there was evidence of degenerative arthritis of the right ankle as well as a right 

Achilles insertional tendinosis. He stated that these conditions were “not related to the accepted 

right ankle fracture whatsoever.” Dr. Daniel opined that appellant reached maximum medical 

improvement. He stated that he would be happy to manage the right ankle pain and Achilles 

insertional discomfort “outside the realm of [w]orkers[’] [c]ompensation.” 

In a July 8, 2013 report, Dr. Ross again noted appellant’s history and provided results on 

examination. She found full active range of motion in both ankles with no gross instability 

present. Dr. Ross found tenderness in the anterior aspect of the right ankle, no swelling, and a 

negative Thompson test. She diagnosed right ankle pain, early degenerative joint disease of the 

right ankle and Achilles tendinitis. Dr. Ross indicated that appellant could return to work with 

restrictions but could not perform the duties of a letter carrier. She disagreed with Dr. Daniel 

and asserted that appellant’s Achilles tendinitis and right ankle pain were due to the work injury. 

On November 8, 2013 OWCP referred appellant for a second opinion, along with a 

statement of accepted facts, a set of questions and the medical record to Dr. Stanley Askin, a 

Board-certified orthopedic surgeon, to determine whether appellant continued to have any workrelated residuals and or restrictions. 

In a November 22, 2013 report, Dr. Askin noted appellant’s history of injury and 

treatment and provided examination results. Appellant’s current complaints included right ankle 

stiffness and pain in the front and back of the right ankle that worsened with activity. Dr. Askin 

related that appellant had pain that limited his walking. Calf circumferences measured 43 

centimeters on the right and 43.5 centimeters on the left. Dr. Askin determined the 

circumferences of his ankles just above the malleoli were 22 centimeters equally. He determined 

that range of motion of his ankles was equivalent, both 30 degrees of plantarflexion and 10 

degrees of dorsiflexion and there were symmetrical findings for both feet, with no edema, 

redness or deformity, and normal skin wear patterns on the soles of both feet, which were 

normal. Dr. Askin explained that appellant reported tenderness at the medial and distal Achilles 

tendon, but he found no outward manifestation of bursal enlargement. He did not detect any 

instability of the ankles on gentle stress. Dr. Askin also did not detect any crepitus of either 
4

ankle as he moved the ankles through range of motion and that appellant was able to rise on his 

heels and toes, limited somewhat on the right. 

Dr. Askin reviewed a May 28, 2013 MRI scan of the right ankle and explained that MRI 

scans were not equivalent to x-rays with regard to showing bony healing. However, he noted 

that the MRI scan was descriptive of the right distal fibular fracture and appeared to be healed. 

Dr. Askin reviewed x-rays from 2012 and diagnosed a fracture of the right distal fibula and 

advised that the case had been accepted for aggravation of Achilles tendinitis. He found no 

objective evidence and opined that appellant did not suffer from any disabling residual of his 

accepted condition. He explained that the condition had resolved. Dr. Askin opined that 

appellant had reached maximum medical improvement and could return to work without 

restrictions. 

On January 2, 2014 OWCP issued a proposed notice to terminate appellant’s wage-loss 

compensation as the weight of the medical evidence, as demonstrated by the opinion of 

Dr. Askin, established that appellant no longer had residuals or disability from work as a result of 

the work injury. Appellant was given 30 days to submit additional evidence or argument. 

In a letter dated January 17, 2014, appellant responded to the notice of proposed 

termination. He questioned Dr. Askin’s examination and findings noting that the examination 

lasted five to seven minutes in which he was asked a few questions and his calf and ankle area 

were measured. Appellant noted that Dr. Askin asked him to move his ankle around and to rise 

on his toes. However, he did not believe that Dr. Askin considered the physical requirements of 

his job. For example, appellant noted that at the end of the day, he had terrible pain and swelling 

in his ankle. He noted that his physicians had treated him since the date of his injury and they 

suggested that performing the full duties of a letter carrier position would only cause his Achilles 

tendon to continue to worsen. Appellant explained that his physicians indicated that he could 

return to modified duties and noted that he had accepted a modified job assignment. He 

requested that he be allowed to work in a modified capacity and that his case not be terminated. 

In a December 3, 2013 duty status report (Form CA-7), Dr. Ross indicated that appellant 

could return to work on February 3, 2014 with restrictions, to include walking of no more than 

one hour on a level surface. 

OWCP received a January 15, 2014 report from Dr. Steven B. Cancell, a podiatrist, who 

noted appellant’s history of a previous right ankle fracture in September 2012 which healed 

uneventfully. Dr. Cancell indicated that appellant presented with right Achilles tendinitis and 

right ankle pain. He noted that during physical therapy, appellant developed Achilles tendinitis 

on the right side and was treated with a controlled ankle movement (CAM) boot. Dr. Cancell 

examined appellant and found that his vascular status was intact, there was mild edema of the 

right ankle, and there was a palpable retrocalcaneal spur with pain at the distal Achilles tendon, 

which seemed “somewhat out of proportion for the amount of pressure applied.” He identified 

some pain in the right ankle joint and range of motion without crepitus but found appellant 

somewhat limited in extension, with tenderness anterolaterally in the ankle joint. Dr. Cancell 

explained that, after an ankle fracture, post-traumatic arthritis was extremely likely and Achilles 

tendinitis was something that occurs due to gait change. He opined that this was consistent with 

his previous injury and he agreed with Dr. Ross’ restrictions as appellant required some change 
5

in his work activity. Dr. Cancell explained that appellant was not trying to stay out of work, but 

attempting to change his position at work so that he did not have ongoing pain. He concurred 

with Dr. Ross with regard to his disability. 

OWCP also received nurse reports dated May 13 and July 8, 2013 and January 16, 2014. 

In a February 4, 2014 decision, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective February 3, 2014. 

 On January 20, 2015 counsel for appellant requested reconsideration. He submitted no 

new medical evidence but submitted a brief arguing Dr. Cancell’s report was entitled to greater 

weight as he was a foot and ankle specialist, that OWCP had incorrectly read Dr. Cancell’s 

report, and that a conflict should have been declared with a referral to an impartial medical 

examiner.3

By decision dated April 13, 2015, OWCP reviewed the merits of counsel’s arguments but 

denied modification of the prior decision. It continued to find that the weight of the medical 

evidence was represented by Dr. Askin. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim and pays compensation, it bears the burden of proof to 

justify modification or termination of benefits.4 Having determined that an employee has a 

disability causally related to his or her federal employment, OWCP may not terminate 

compensation without establishing either that the disability has ceased or that it is no longer 

related to the employment.5 

ANALYSIS -- ISSUE 1 

In the instant case, OWCP accepted that appellant sustained aggravation of Achilles 

tendinitis, on the right. 

OWCP developed the claim and referred appellant for a second opinion with Dr. Askin, 

who found that appellant could perform his job without restrictions. In a November 22, 2013 

report, Dr. Askin reviewed appellant’s history and examined him. Findings included 

symmetrical findings for both feet with no edema, redness or deformity, and normal skin wear 

patterns. Dr. Askin advised that, despite appellant’s reports of tenderness at the medial and distal 

Achilles tendon, he found no outward manifestation of bursal enlargement and he did not detect 

any instability of the ankles on gentle stress. There was no crepitus of either ankle as he moved 

the ankles through range of motion. Dr. Askin reviewed diagnostic reports and noted that a 

May 28, 2013 MRI scan of the right ankle revealed the right distal fibular fracture appeared to be 

healed. He indicated that there were no objective findings or residuals of the accepted condition. 

                                                             3

 Counsel included a copy of Dr. Cancell’s curriculum vitae from the doctor’s website. 

4 Curtis Hall, 45 ECAB 316 (1994). 

5 Jason C. Armstrong, 40 ECAB 907 (1989). 
6

Dr. Askin explained that appellant’s subjective complaints did not correspond with any objective 

findings. He opined that appellant could return to work without restrictions. 

The Board finds that Dr. Askin’s opinion is entitled to the weight of the evidence as his 

report is rationalized and based upon a proper factual background. OWCP properly relied upon 

his reports in finding that appellant was no longer disabled from work. Dr. Askin did not 

attribute any current conditions to appellant’s employment. He examined appellant, reviewed his 

medical records, and reported an accurate history. 

Furthermore, the record contains medical evidence from one of appellant’s physicians, 

Dr. Daniel, who supported that the work-related condition had resolved. On June 26, 2013 

Dr. Daniel concluded that the right ankle fracture was completely healed and advised that there 

was evidence of degenerative arthritis of the right ankle as well as a right Achilles insertional 

tendinosis. He opined that these conditions were “not related to the accepted right ankle fracture 

whatsoever.” 

Reports from Dr. Ross, while supporting a continuing work-related condition, have 

limited probative value as they were devoid of medical rationale explaining her conclusions. 

There are no reports contemporaneous with the opinion of Dr. Askin which provide medical 

rationale explaining how any continuing residuals are employment related.6

In response to the notice of proposed termination, appellant submitted a January 15, 2014 

report from Dr. Cancell. Dr. Cancell noted appellant’s history of injury and treatment and 

examined him. His findings included that appellant had mild edema of the right ankle and a 

palpable retrocalcaneal spur with pain at the distal Achilles tendon, which seemed “somewhat 

out of proportion for the amount of pressure applied.” Dr. Cancell found some pain in the right 

ankle joint, however, he noted that appellant’s range of motion was without crepitus and 

somewhat limited in extension with tenderness anterolaterally in the ankle joint. He explained 

that post-traumatic arthritis was extremely likely after an ankle fracture and Achilles tendinitis 

was something that occurred due to gait change. Dr. Cancell advised that appellant was not 

trying to stay out of work, but attempting to change his position at work so that he did not have 

ongoing pain. He concurred with Dr. Ross with regard to disability. However, Dr. Cancell did 

not explain his opinion. This is important as he appears to attribute some of appellant’s 

symptoms to post-traumatic arthritis, a condition not accepted as employment related,7

 and found 

that some of appellant’s responses were out of proportion. Without further rationale, this report 

is of limited probative value. 

The Board finds that OWCP properly terminated appellant’s medical benefits and wageloss compensation effective February 3, 2014, as he was no longer disabled from work as a result 

of his work injury. 

                                                             6

 See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not 

fortified by medical rationale is of little probative value) 

7

 Where an employee claims that a condition not accepted or approved by OWCP was due to an employment 

injury, he or she bears the burden of proof to establish an employment relationship. See Jaja K. Asaramo, 55 ECAB 

200 (2004). 
7

LEGAL PRECEDENT -- ISSUE 2 

It is well established that after termination or modification of compensation benefits, 

clearly warranted on the basis of the evidence, the burden for reinstating compensation shifts to 

appellant. In order to prevail, appellant must establish by the weight of the reliable, probative 

and substantial evidence that she had an employment-related disability, which continued after 

termination of compensation benefits.8 

ANALYSIS -- ISSUE 2 

Subsequent to the February 4, 2014 decision, which terminated appellant’s compensation 

benefits effective February 3, 2014, the burden shifted to appellant to demonstrate that he 

continued to have disability for work on and after February 3, 2014 due to the accepted injury.9

After the termination of appellant’s compensation benefits, OWCP received a January 20, 

2015 request for reconsideration from counsel. He submitted a brief and a copy of Dr. Cancell’s 

curriculum vitae. Counsel argued that Dr. Cancell’s report was entitled to greater weight as he 

was a foot and ankle specialist, that OWCP had incorrectly read Dr. Cancell’s report, and that a 

conflict should have been declared and a referral to an impartial medical examiner was 

warranted. The Board finds that these arguments do not support continuing injury-related 

residuals or disability after February 3, 2014. The issue in the present case is medical in nature 

and must be resolved by the submission of reliable, probative, and substantial evidence.10 

Appellant’s arguments are not sufficient to meet his burden of proof that appellant continued to 

suffer residuals from his accepted work-related condition after February 3, 2014. The Board 

finds Dr. Askin is sufficient to represent the weight of the medical evidence. 

On appeal, counsel for appellant argues that Dr. Cancell was a foot and ankle specialist 

and his report was well rationalized and supported that appellant had residuals of his accepted 

conditions. He also argues that his opinion was entitled to greater weight and that in the 

alternative, a conflict was created. However, as found above, the weight of the evidence is 

attributed to Dr. Askin, who provided a rationalized report and supported that appellant was no 

longer disabled from work as a result of his work-related injury. As explained, the reports of 

Drs. Cancell and Ross are of limited probative value and insufficient to create a medical 

conflict.11 

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. 

                                                             8 Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955). 

9 See id.; Virginia Davis-Banks, 44 ECAB 389 (1993). 

10 Supra note 6. 

11 See 5 U.S.C. § 8123(a). See also John D. Jackson, 55 ECAB 465 (2004) (a simple disagreement between two 

physicians does not, of itself, establish a conflict; to constitute a conflict of medical opinion, the opposing 

physicians’ reports must be of virtually equal weight and rationale). 
8

CONCLUSION 

The Board finds that OWCP properly terminated appellant’s medical benefits and wageloss compensation effective February 3, 2014, as he was no longer disabled from work as a result 

of his work-related injury. The Board also finds that appellant has not met his burden of proof 

to establish continuing residuals or disability after the February 3, 2014 termination of his 

compensation benefits. 

ORDER 

IT IS HEREBY ORDERED THAT the April 13, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 5, 2016 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board