United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.K., Appellant 

and 

DEPARTMENT OF AGRICULTURE, FOOD 

SAFETY & INSPECTION SERVICE, 

Springdale, AR, Employer 

__________________________________________ 

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Docket No. 16-0955 

Issued: September 15, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 4, 2016 appellant, through counsel, filed a timely appeal of a February 26, 2016 

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 to consider the merits of this 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

ISSUE 

The issue is whether appellant met his burden of proof to establish aggravation of a left 

foot ulcer causally related to factors of his federal employment. 

On appeal counsel argues that the decision is contrary to fact and law. 

FACTUAL HISTORY 

Appellant, then a 49-year-old consumer safety inspector, filed an occupational disease 

claim (Form CA-2) alleging that on October 31, 2014 he first realized that his left foot ulcer 

reopened due to walking at work. He noted that he had a previous claim under OWCP File No. 

xxxxxx358.3

 

In support of his current claim, appellant submitted factual evidence including a 

September 18, 2014 limited-duty assignment and a February 13, 2015 statement by Suzanne 

Nelson, resource manager. Ms. Nelson detailed the amount of walking required with appellant’s 

limited-duty assignment, which included 20 feet to the front door of the office building, 10 feet 

to the elevator, and approximately 100 feet to his office. She further noted that the restroom was 

about 40 feet one way from appellant’s office and he would have to walk 20 feet to attend a 

weekly meeting. Ms. Nelson explained that appellant’s position was sedentary and required 

working on a computer, sending e-mails and answering telephones. 

In a November 17, 2014 statement, appellant noted that he was on a limited-duty work 

assignment due to right knee surgery under OWCP File No. xxxxxx917. However, as a result of 

walking, his foot ulcer reopened. Appellant related that as a result of right knee pain, he placed 

more weight on his left foot which contributed to the reopening of his left foot ulcer. He 

indicated that OWCP had previously accepted a left foot ulcer under OWCP File No. 

xxxxxx358. 

Appellant submitted reports from Dr. Phuong Q. Mueller, a treating podiatrist, dated 

November 3, 2014 and January 12, 2015, and duty status forms (Form CA-17) dated 

November 3 and December 22, 2014, and January 6, 12, and 20, 2015 which provided work 

restrictions. Diagnoses on the reports and forms included left foot first metatarsal ulcer. 

Dr. Mueller reported that appellant attributed the reopening of his left foot ulcer to his 

compensation for his right knee surgery causing placement of more weight on the left lower 

extremity. 

By letter dated February 4, 2015, OWCP informed appellant that the evidence of record 

was insufficient to establish his claim. It advised as to the medical and factual evidence required 

and afforded appellant 30 days to provide this evidence. 

 3

 The record reveals that OWCP accepted a 2013 occupational disease claim for aggravation left foot ulcer under 

OWCP File No. xxxxxx358. Under this claim appellant was released to regular duty effective August 12, 2014. 

OWCP accepted occupational disease claims for right knee sprain, medial meniscus and anterior cruciate ligament 

tears under OWCP File No. xxxxx917 and aggravation of left flat foot, aggravation of Charcot foot/collapsed arches, 

and arthropathy under OWCP File No. xxxxxx817. These claims were combined under OWCP File No. 

xxxxxx358, which was assigned as the master file number. 
3

Subsequent to the February 4, 2015 letter, OWCP received a position description and 

statement from the employing establishment. It also received duty status reports (Form CA-17) 

and reports from Dr. Mueller as set forth below. 

In a July 17, 2013 report, Dr. Mueller diagnosed left foot ulcer, provided dates of 

treatment, and recommended restrictions regarding walking and standing. 

In CA-17 forms dated February 24, March 10, and 24, 2015, Dr. Mueller diagnosed left 

foot first metatarsal ulcer and provided work restrictions. 

Dr. Mueller, in a March 17, 2015 form report, diagnosed a recurring left foot first 

metatarsal ulcer. He noted that the ulcer reopened while appellant was on an alternate work 

assignment from September 9 to November 3, 2014. Dr. Mueller attributed appellant’s condition 

to his employment walking and standing on hard surfaces. 

In a May 5, 2015 e-mail, the employing establishment reported that appellant had not 

worked since November 17, 2014. The absence was attributed to his claim in OWCP File No. 

xxxxxx554. 

By decision dated May 13, 2015, OWCP denied appellant’s claim. It found the medical 

evidence insufficient to establish that the alleged aggravation of his left foot ulcer was caused or 

aggravated by the identified employment factors. 

In correspondence dated May 20, 2015, counsel requested a telephonic hearing before an 

OWCP hearing representative. The hearing was held on January 5, 2016. At the hearing, 

appellant testified that his limited-duty job assignment was sedentary and did not require 

standing. 

By decision dated February 26, 2016, an OWCP hearing representative affirmed the 

May 13, 2015 decision denying appellant’s occupational disease claim. She found Dr. Mueller’s 

reports failed to provide any explanation as to how appellant’s limited walking at work caused or 

aggravated his left foot ulcer. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA4 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, that an injury was sustained while 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.5

 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6

 

 4

 5 U.S.C. § 8101 et seq. 

5 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006). 

6 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989). 
4

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee must submit: (1) a factual statement identifying employment 

factors alleged to have caused or contributed to the presence or occurrence of the disease or 

condition; (2) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed 

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

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.8

 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is a causal relationship between the employee’s diagnosed condition and the 

compensable employment factors.9

 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 the specific employment factors identified by the employee.10 

ANALYSIS 

Appellant alleged that he sustained aggravation of his left foot first metatarsal ulcer 

causally related to his walking while working for the employing establishment. OWCP accepted 

that he had identified employment factors alleged to have caused or contributed to his claimed 

condition. The issue is whether appellant has met his burden of proof to establish a diagnosed 

condition causally related to established employment factors. The Board finds that he failed to 

establish that the accepted work factors caused or aggravated the medical condition. 

The issue of causal relationship is a medical one and must be resolved by probative 

medical opinion from a physician.11 OWCP received a March 17, 2015 report from Dr. Mueller 

which attributed appellant’s left foot ulcer condition to his walking and standing on hard 

surfaces. The Board notes that appellant denied that he did any standing at work during his 

hearing testimony. In addition, Dr. Mueller did not explain why physiologically walking and 

standing would cause or aggravate appellant’s condition. The Board has found that a mere 

conclusion without the necessary rationale is insufficient to meet a claimant’s burden of proof.12 

Accordingly, Dr. Mueller’s report is insufficient to meet appellant’s burden of proof. 

 7 D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238 

(2005); Donald W. Wenzel, 56 ECAB 390 (2005). 

8 Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 

642 (2006). 

9 J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006). 

10 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989). 

11 I.A., Docket No. 13-1701 (issued January 17, 2014); Ronald K. Jablanski, 56 ECAB 616 (2005). 

12 See T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); 

William C. Thomas, 45 ECAB 591 (1994) (a medical report is of limited probative value on the issue of causal 

relationship if it contains a conclusion regarding causal relationship which is unsupported by medical rationale). 
5

Appellant also submitted progress reports and CA-17 forms from Dr. Mueller diagnosing 

left foot first metatarsal ulcer. Dr. Mueller offered no opinion as to the cause of the left foot 

ulcer in the CA-17 forms, or the July 17, 2013 and November 3, 2014 reports. The Board has 

held that medical evidence offering no opinion regarding the cause of an employee’s condition is 

of limited probative value on the issue of causal relationship.13

The Board has held that the fact that a condition manifests itself during a period of 

employment does not raise an inference of causal relation.14 An award of compensation may not 

be based on surmise, conjecture, or speculation. Neither the fact that appellant’s condition 

became apparent during a period of employment nor the belief that his condition was caused, 

precipitated, or aggravated by his employment is sufficient to establish causal relationship.15 To 

establish a firm medical diagnosis and causal relationship, appellant must submit a physician’s 

report that addresses how his walking at work caused or aggravated his left foot ulcer.16 

OWCP advised appellant that it was his responsibility to provide a comprehensive 

medical report which described his symptoms, test results, diagnosis, treatment and the doctor’s 

opinion, with medical reasons, on the cause of his condition. Appellant failed to do so. As there 

is no probative, rationalized medical evidence addressing how appellant’s claimed condition was 

caused or aggravated by his employment, he has not met his burden of proof to establish an 

occupational disease causally related to factors of employment. 

On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based 

on the findings and reasons stated above, the Board finds the attorney’s arguments are not 

substantiated. 

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 failed to meet his burden of proof to establish an 

aggravation of a left foot ulcer causally related to factors of his federal employment. 

 13 C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,

supra note 8; Jaja K. Asaramo, 55 ECAB 200 (2004). 

14 L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007) Daniel O. Vasquez, 57 ECAB 

559 (2006). 

15 See D.U., supra note 7; D.I., id.; Robert Broome, 55 ECAB 339 (2004); Anna C. Leanza, 48 ECAB 115 (1996). 

16 Michael S. Mina, supra note 9; Michael E. Smith, 50 ECAB 313 (1999). 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated February 26, 2016 is affirmed. 

Issued: September 15, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board