United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bell Gardens, CA, Employer 

__________________________________________ 

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Docket No. 16-0421 

Issued: October 17, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 4, 2016 appellant filed a timely appeal of an October 19, 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 to consider the merits of the case.2

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s 

compensation benefits for her right ankle sprain effective May 3, 2015; and (2) whether 

appellant met her burden of proof to establish continuing disability after May 3, 2015. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the October 19, 2015 decision, OWCP received additional evidence. However, 

the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 

C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 

ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

On appeal appellant argues that OWCP erred in finding that her right ankle condition had 

resolved with no disability or residuals. 

FACTUAL HISTORY 

On April 29, 2009 appellant, then a 45-year-old temporary mail carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on April 20, 2009 she twisted her right foot and ankle 

when she stepped out of her postal vehicle. OWCP accepted the claim for right ankle sprain, and 

later expanded the acceptance to include right plantar fasciitis, as well as a September 9, 2009 

claim for a recurrence of disability.3 Appellant received compensation benefits on the periodic 

rolls as of September 9, 2009. 

In an April 16, 2010 report, Dr. Babak Alavynejad, a treating podiatrist, reviewed 

appellant’s history of injury and performed a physical examination. Appellant’s physical 

examination revealed no swelling, tenderness on palpation of the plantar fascia, no pain on tarsal 

tunnel palpation, and normal range of motion. Dr. Alavynejad opined that appellant continued to 

suffer from plantar fasciitis, but that she could return to work with no restrictions. 

In subsequent reports and work status reports, Dr. Alavynejad provided examination 

findings and indicated that appellant could return to work with no restrictions. 

On June 30, 2010 OWCP referred appellant to Dr. Joseph P. Conaty, a Board-certified 

orthopedic surgeon, for a second opinion regarding the status of her accepted employment 

conditions. In a July 13, 2010 report, Dr. Conaty, based upon a review of the medical record and 

statement of accepted facts (SOAF), diagnosed a resolved right ankle sprain. However, he 

related that her right foot plantar fascia still caused restrictions. Dr. Conaty opined that appellant 

was unable to work her date-of-injury job, but was able to work with restrictions. A physical 

examination revealed an abnormal right weight-bearing gait, normal range of motion, normal 

muscle strength, and normal neurological examination with mild tenderness in the sinus tarsi and 

lateral ankle joint. Dr. Conaty also observed no evidence of weakness in the dorsiflexors or 

plantar flexors. He related that appellant was restricted to two hours of intermittent walking 

during an eight-hour workday, and four hours of intermittent standing. 

By letter dated September 22, 2010, OWCP referred appellant to Dr. Ronald W. Smith, a 

Board-certified orthopedic surgeon, to resolve the conflict in the medical opinion evidence 

between Dr. Alavynejad and Dr. Conaty, regarding appellant’s ability to return to work. 

In a November 23, 2010 report, Dr. Smith, based upon a review of the medical record, 

employment injury history, and SOAF, diagnosed right lateral ankle sprain and right plantar 

fasciitis with symptoms of spasm in the right foot mid-arch. He concluded that appellant 

required no active medical treatment for her ankle sprain or plantar fasciitis and that she was 

capable of working. Dr. Smith related that to give appellant “the benefit of the doubt” regarding 

her plantar fasciitis symptoms, she should continue with work restrictions of carrying up to 20 

pounds for six hours in an eight-hour day, and only up to two hours of standing and intermittent 

sitting in an eight-hour day. 

 3

 Appellant’s temporary mail carrier appointment ended December 3, 2009. 
3

On September 24, 2012 OWCP referred appellant to Dr. Smith for a follow-up 

examination on the issue of appellant’s entitlement to benefits. Specifically, Dr. Smith was 

asked to provide an opinion as to whether the accepted right ankle sprain and right plantar 

fasciitis had resolved. If he found that the conditions had not resolved he was asked to explain 

why they had not resolved, and whether they were disabling on an objective basis. 

In reports dated September 14 and October 12, 2012, Dr. Alavynejad provided 

examination findings and an assessment of possible right foot plantar fasciitis and right ankle 

sprain. He opined that appellant was capable of returning to work with restrictions of up to two 

hours of limited standing and walking, which was increased to three hours in his October 12, 

2012 report. 

In a November 5, 2012 report, Dr. Smith noted appellant’s symptoms primarily 

concerned her right ankle although she did have complaints of right heel plantar aspect pain. 

Physical examination findings were provided and diagnoses of right plantar heel pain and right 

ankle chronic pain syndrome. Dr. Smith reported that appellant’s symptoms exceeded what 

would be expected based on examination findings. He noted that she likely had a lateral 

collateral ligament injury which was consistent with hearing a pop at the time of her injury and 

with magnetic resonance imaging (MRI) scan findings. Dr. Smith concluded that appellant was 

capable of working a modified light-duty job. He also opined that no further medical treatment 

was required for appellant’s accepted plantar fasciitis. 

A notice of proposed termination of wage-loss compensation and medical benefits was 

issued by OWCP on January 2, 2013. 

By decision dated February 7, 2013, OWCP terminated appellant’s medical benefits and 

wage-loss compensation for her right plantar fasciitis as it found that she no longer had any 

residuals or disability due to this condition. 

In a May 9, 2013 report, Dr. Paul A. Anilie, a treating osteopath, diagnosed joint ankle 

pain and ankle foot sprain/strain. A physical examination revealed right ankle tenderness and 

restricted range of motion. 

In an August 16, 2013 report, Dr. Alavynejad diagnosed right ankle sprain with possible 

sural neuritis. A physical examination revealed full ankle range of motion, no neurological 

deficits, and normal strength. Dr. Alavynejad indicated that appellant was capable of working 

with restrictions. He related that appellant was limited to standing and walking for three hours a 

day. 

In a September 25, 2013 report, Dr. Smith provided an updated review of the medical 

record and physical examination findings. He requested authorization for appellant to have a 

right ankle arthroscopic surgical consultation with Dr. Thomas Harris, a Board-certified 

orthopedic surgeon. Diagnoses included right ankle lateral ankle pain following a 2009 

inversion sprain and possible right arthrofibrosis subtalar joint. Dr. Harris noted that appellant 

had persistent significant symptoms, but there were no signs of measurable calf atrophy and her 

neurological symptoms were not confirmed by objective evidence. He found no evidence of any 

right foot plantar fasciitis. Dr. Harris recommended continuing medical care and found no 
4

objective evidence of disability. He attributed appellant’s symptoms to her accepted right ankle 

injury. 

Dr. Alavynejad submitted September and October 2014 follow-up podiatric reports, 

provided examination findings, and indicated that appellant was capable of working with 

restrictions. Diagnoses included right sural neuritis and right lateral ankle sural neuritis. Range 

of motion findings were provided, which included guarded right ankle range of motion. 

In a December 1, 2014 report, Dr. Ronald E. Bishop, an examining physician specializing 

in anesthesiology and pain medicine, diagnosed right sural neuritis and possible L5-S1 

radiculitis, which was unlikely due to the accepted employment injury. He noted the history of 

the injury and medical treatment provided and that appellant’s chief complaint was right ankle 

pain. A physical examination revealed trace right ankle swelling, diminished right extensor 

halluces and right ankle dorsiflexors strength, and limited ankle range of motion. 

Dr. Bishop, in a follow-up pain management report dated January 12, 2015, reported 

reduced right heel light touch sensation. He diagnosed right lower extremity pain, diagnosed 

right sural neuritis, and possible L5-S1 radiculitis, which was unlikely due to the accepted 

employment injury. 

On January 26, 2015 OWCP referred appellant for a second opinion evaluation with 

Dr. Richard A. Rogachefsky, a Board-certified orthopedic surgeon, for an opinion as to whether 

appellant has any continuing residuals and disability due to her accepted April 20, 2009 

employment injury. 

In a February 19, 2015 report, Dr. Rogachefsky, based upon a review of the medical 

evidence, SOAF, and physical examination, noted diagnoses of right ankle sprain, and right foot 

plantar fasciitis due to the accepted April 20, 2009 employment injury. Physical examination 

findings included full right ankle range of motion, mild tenderness in the right lateral ankle 

region on palpation, intact sensory and pulses, slight right ankle lateral aspect fullness, and 

negative posterior and anterior drawer, varus, and valgus tests. Dr. Rogachefsky reported that 

appellant continued to have complaints of pain in the right lateral ankle region. A review of the 

right ankle MRI scan showed anterior talofibular and calcaneofibular ligaments tears and 

objectively appellant had mild increased lateral ankle region fullness. Dr. Rogachefsky noted 

minimal physical findings, but opined that no further medical treatment or diagnostic testing was 

required. He observed that appellant had significant subjective findings with minimal supportive 

objective findings. Dr. Rogachefsky concluded that appellant had no restrictions and was 

capable of working full duty. 

On March 10, 2015 OWCP issued a notice proposing to terminate appellant’s wage-loss 

compensation and medical benefits for her right ankle sprain as it determined that she no longer 

had any residuals or disability due to this condition. 

Following the proposal to terminate her benefits, OWCP received a February 19, 2013 

report by Dr. F. John Hajaliloo, an examining Board-certified orthopedic surgeon, and 

February 9, 2015 follow-up pain management report from Dr. Bishop. Dr. Hajaliloo reviewed 

medical records of treatment provided for appellant’s injuries. Physical examination findings 
5

included mild right ankle swelling, abnormal range of motion, and absent sural nerve distribution 

sensation. Dr. Hajaliloo diagnosed right ankle instability and sural neuritis. 

Dr. Bishop, in the February 9, 2015 follow-up pain management report, reiterated 

findings and diagnoses from his January 12, 2015 report. 

By decision dated April 16, 2015, OWCP finalized the termination of appellant’s 

compensation benefits for her accepted right ankle sprain effective May 3, 2015. It found the 

report of Dr. Rogachefsky, the second opinion physician, constituted the weight of the evidence 

establishing that her right ankle sprain had resolved with no continuing residuals or disability. 

OWCP also noted that none of appellant’s treating physicians found any objective findings of 

disability. 

Dr. Bishop, in an April 6, 2015 follow-up pain management report, received by OWCP 

on May 4, 2015, noted reduced right ankle range of motion. He diagnosed right sural neuritis 

and right lower extremity pain. 

In an April 24, 2015 report, Dr. Alavynejad reported full right ankle range of motion, no 

neurological deficit, and full muscle strength. He diagnosed right sural neuritis and indicated 

that appellant was capable of working with restrictions of up to two hours of limited walking and 

standing. 

On May 7, 2015 appellant requested a review of the written record by an OWCP hearing 

representative. 

By decision dated October 19, 2015, the hearing representative affirmed the April 16, 

2015 decision terminating appellant’s compensation benefits for her accepted right ankle sprain. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits.4

 After it has determined that an 

employee has disability causally related to her federal employment, OWCP may not terminate 

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

the employment.5 OWCP’s burden of proof includes the necessity of furnishing rationalized 

medical opinion evidence based on a proper factual and medical background.6 

The right to medical benefits for an accepted condition is not limited to the period of 

entitlement for disability.7 To terminate authorization for medical treatment, OWCP must 

 4 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 

5 I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003). 

6 See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988). 

7 T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). 
6

establish that appellant no longer has residuals of an employment-related condition, which would 

require further medical treatment.8 

For conditions not accepted by OWCP as being employment related, it is the employee’s 

burden to provide rationalized medical evidence sufficient to establish causal relation, not 

OWCP’s burden to disprove such relationship.9

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s claim for right ankle sprain and right plantar fasciitis. In a 

decision dated February 7, 2013, it terminated her compensation benefits for her accepted right 

plantar fasciitis, but continued to provide medical and wage-loss compensation for her accepted 

right ankle sprain. By decision dated April 16, 2015, OWCP terminated appellant’s 

compensation benefits for her accepted right ankle condition as it found she no longer required 

further medical treatment or had any disability due to this condition. A hearing representative 

affirmed the April 16, 2016 decision terminating benefits for the accepted right ankle condition 

on October 19, 2015. The issue on appeal is whether OWCP met its burden of proof to terminate 

appellant’s compensation benefits for her accepted right ankle sprain effective May 3, 2015. The 

Board finds that OWCP improperly terminated appellant’s medical and wage-loss benefits. 

In its termination decision, OWCP determined that the weight of the medical evidence 

resided with the opinion of Dr. Rogachefsky, a Board-certified orthopedic surgeon serving as a 

second opinion physician. However, Dr. Rogachefsky’s opinion regarding appellant’s disability 

and residuals contains inconsistent statements and opinions on whether appellant continues to 

have residuals or disability due to the accepted ankle sprain. In his February 19, 2015 report, 

Dr. Rogachefsky reported continued residuals from the injury based on the lateral aspect fullness 

of the right ankle when compared with the normal left ankle. He also found tenderness on 

palpation and pain in the lateral ankle region. In responding to OWCP’s question regarding the 

need for further medical treatment and surgery options, Dr. Rogachefsky opined that no further 

medical treatment or surgery was necessary, but noted minimal objective findings, but significant 

subjective findings. In responding to a question regarding appellant’s physical limitations, he 

opined that appellant was capable of returning to work with no restrictions, but also reported 

minimal objective findings and subjective complaints. Dr. Rogachefsky opined that appellant 

had no disability or residuals due to her accepted conditions, but also concluded that appellant 

continued to have minimal objective findings. Due to the inconsistent responses to questions 

posed by OWCP in his report regarding appellant’s ability to work, the Board finds 

Dr. Rogachefsky’s opinion to be equivocal. The Board has held that a medical report that is 

equivocal is of diminished probative value.10 Due to the inconsistencies and equivocal nature of 

his report, the Board finds that Dr. Rogachefsky’s report is insufficient to support OWCP’s 

burden of proof. 

 8 Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003). 

9 G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51 

ECAB 638 (2000). 

10 T.M., Docket No. 08-975 (issued February 6, 2009); D.D., 57 ECAB 734 (2006); Cecelia M. Corley, 56 ECAB 

662 (2005). 
7

Furthermore, the record contains no other medical reports contemporaneous with the 

termination of benefits establishing that appellant’s accepted ankle sprain had resolved with no 

residuals. The medical reports from Drs. Alavynejad, Bishop, and Hajaliloo, appellant’s treating 

physicians, provide some support for a continuing employment-related condition. 

The Board finds that OWCP failed to satisfy its burden of proof to terminate appellant’s 

medical and wage-loss benefits. The medical evidence of record is insufficiently rationalized to 

establish that appellant no longer has residuals from her accepted right ankle sprain. 

Dr. Rogachefsky’s report did not establish by the weight of the evidence that appellant no longer 

had any residuals or disability due to her accepted right ankle sprain. OWCP failed to follow its 

own procedures to seek clarification from Dr. Rogachefsky.11 Further development of the 

medical evidence was called for, particularly in light of Dr. Rogachefsky’s inconsistent and 

equivocal report. 

Consequently, OWCP has failed to meet its burden to terminate appellant’s compensation 

benefits. 

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits effective May 3, 2015. Given the Board’s 

determination regarding the first issue, the Board finds the second issue is moot. 

 11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.9(j) (June 2015). 
8

ORDER 

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

Compensation Programs dated October 19, 2015 is reversed. 

Issued: October 17, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees' Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees' Compensation Appeals Board