United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Needham, MA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0146 

Issued: September 9, 2016 

Appearances: Case Submitted on the Record

John L. Whitehouse, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 2, 2015 appellant, through counsel, filed a timely appeal from an 

October 14, 2015 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 over the merits of this case. 

ISSUE 

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

preexisting back condition consequential to his accepted employment injury. 

 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

On appeal counsel contends that OWCP erroneously found that the medical reports of 

Dr. Stanley Hom, a Board-certified orthopedic surgeon, constituted the weight of the medical 

evidence as his reports were speculative, conclusory, and unrationalized. 

FACTUAL HISTORY 

On May 17, 2010 appellant, then a 51-year-old custodian, filed a traumatic injury claim 

(Form CA-1) claiming that on that date while climbing a ladder, he felt a sharp pain from his 

heel to his ankle. He stopped work on the date of injury. On August 23, 2010 OWCP accepted 

appellant’s claim for a small plantar calcaneal spur of the left heel. On September 20, 2010 it 

expanded the claim to include acceptance for tibialis tendinitis. Appellant received 

compensation benefits on the periodic rolls commencing July 2, 2010 until June 3, 2011. 

In an August 25, 2010 report, Dr. Eric J. Woodard, appellant’s treating Board-certified 

neurosurgeon, noted back pain status post foot injury causing strain on his back. In a 

September 1, 2010 medical report, he noted that he has been following appellant for many years 

for his lumbar spine disease and subsequent surgery. Dr. Woodard indicated that appellant 

recently injured his foot at work and that this had dramatically altered his gait and that due to the 

change in gait and balance he was experiencing an exacerbation of his lumbar symptoms. He 

recommended physical therapy to treat appellant’s lumbar spine symptoms and opined that these 

symptoms were directly related to his foot injury. 

On December 1, 2010 OWCP referred appellant to Dr. Stanley Hom, Board-certified in 

orthopedic and hand surgery, for a second opinion. In a December 22, 2010 report, Dr. Hom 

diagnosed left foot plantar fasciitis. He also noted magnetic resonance imaging (MRI) scan 

findings consistent with peroneus longus and posterior tibial tendinopathy (chronic tendinitis). 

Dr. Hom further diagnosed chronic low back condition, by history and lumbar degenerative disc 

disease, status post failed disc implant, and subsequent lower lumbar fusion. He explained that 

he would not consider the history of injury a major or predominant cause of appellant’s current 

left foot and ankle symptoms. Dr. Hom further found that the history of injury was unrelated to 

appellant’s current low back condition, which he believed that was more related to his chronic 

underlying low back condition. He opined that, based on appellant’s diagnosis of left foot 

chronic plantar fasciitis and his chronic low back condition, he could return to work in a 

modified capacity. In conclusion, Dr. Hom related that appellant’s left foot plantar fasciitis 

reached maximum medical improvement seven months following his injury. In a January 25, 

2011 supplemental report, he opined that appellant’s left foot plantar fasciitis and the MRI scan 

findings suggestive of peroneus longus and posterior tibial tendinopathy were not currently 

related to the history of injury dated May 17, 2010. 

In a May 16, 2011 decision, OWCP terminated appellant’s compensation and medical 

benefits because the medical evidence established that he no longer had any residuals or 

disability due to his accepted work injury. 

On June 9, 2011 appellant requested a hearing before an OWCP hearing representative. 

At the hearing held on September 20, 2011 he testified that on May 17, 2010 he was climbing an 

unstable ladder to let the air conditioning repairman on the roof when his left foot slipped and he 

felt a sharp pain shoot from this left heel up to his left ankle and back to his heel. Appellant 
3

noted that once he got to the roof he could not put any weight on his left foot. He indicated that 

he first sought medical treatment with his primary care physician on May 19, 2010. Appellant 

noted that he saw a podiatrist on May 20, 2010 and that she told him to stay off the foot, stay off 

work for 12 weeks, and to wear a boot at all times. He indicated that he wore the boot in June, 

July, and maybe into August 2010. Appellant noted that he had lumbar fusion surgery in 2009 

and that his physicians told him that the foot injury worsened his back injury. He further noted 

that he tried to return to work on September 1, 2011, but his supervisor told him he needed a note 

from his physicians to return to work. Appellant obtained releases to return to work, but after 

working for two days he could not continue because of back pain. He noted that he did not 

perform heavy work those days, but still he aggravated his back and leg pain. Appellant stated 

that he worked full time before the injury, but since had been unable to perform his work duties. 

OWCP continued to receive medical evidence. In a September 1, 2010 note, 

Dr. Woodard indicated that he has followed appellant for many years for his lumbar spine 

disease and subsequent surgery. He noted that recently appellant injured his foot at work and 

that this dramatically altered his gait. Dr. Woodard opined that due to the change in gait and 

balance appellant was experiencing an exacerbation in his lumbar symptoms. He recommended 

physical therapy to treat appellant’s lumbar spine symptoms and further opined that these 

symptoms were directly related to appellant’s foot injury. In October 13, 2010 progress notes, 

Dr. Woodard diagnosed lumbosacral spondylosis without myelopathy. He noted that appellant 

was 21 months following his L4-5 posterior fusion and fixation for a failed L4-5 disc 

arthroplasty. Dr. Woodard noted that appellant had improved since the surgery, but still 

experienced recurrent low back pain. In an October 6, 2011 note, he noted that on May 5, 2014 

appellant underwent a L4-5 disc arthroplasty and a subsequent L4-5 interbody lumbar fusion and 

hardware fixation on January 26, 2009. Dr. Woodard noted that appellant was doing well and 

returned to work, but that while working in May 2010 he injured his foot and was placed in a 

foot orthotic. He indicated that while appellant wore this foot orthotic subsequent to a workrelated injury, he aggravated his preexisting lumbar degenerative disc disease for which he had 

undergone two surgical procedures. Dr. Woodard noted that since wearing the foot orthotic 

appellant experienced progressive worsening back pain. He indicated that the foot injury altered 

appellant’s gait and put additional strain on his lumbar spine. Dr. Woodard recommended 

lumbar spine physical therapy as an initial treatment option. He opined that appellant had a 

consequential injury to his lumbar spine that was essentially an exacerbation of his preexisting 

condition. Dr. Woodard further opined that this was directly caused by the foot orthotic 

appellant was wearing to treat a work-related injury. 

By decision dated December 15, 2011, OWCP’s hearing representative affirmed the 

termination of benefits based on the opinion of Dr. Hom. However, he remanded the case for 

OWCP to further develop the medical evidence with regard to whether appellant developed an 

aggravation of a prior back condition causally related to his accepted foot condition. The hearing 

representative determined that, although Dr. Woodard had not provided detailed rationale in 

support of his medical opinion with regard to the back injury being related to appellant’s 

accepted medical condition, his opinion was sufficient to compel additional development of the 

evidence. 

In response to questions posed by OWCP on February 24, 2012, Dr. Hom wrote a 

supplemental report dated April 9, 2012 wherein he opined that there was sufficient evidence to 
4

support of the use of an orthotic boot on appellant’s left foot for eight weeks during the period 

June to August 2010 for his suspected diagnosis of plantar fasciitis. However, he further opined 

that the use of the prefabricated walking cast did not cause or contribute to a worsening of the 

examinees preexisting lumbar degenerative disease and what is described in a computerized 

tomography (CT) scan as a nonunion of his L4-5 attempted fusion, or any other condition 

affecting the lumbar spine. Dr. Hom also noted that he was unaware of any widely held studies 

that correlate use of a prefabricated walking cast with the development of low back symptoms or 

worsening of lumbar degenerative disc disease. 

In a May 21, 2012 report, Dr. Michael A. Marciello, a Board-certified physiatrist, listed 

his impression as chronic lower back pain and combination of stenosis, facet arthropathy, 

deconditioning, and a compensatory altered gait pattern and limited mobility. He reviewed a 

lumbar MRI scan study from July 2011 and indicated that it revealed extensive degenerative 

facet arthropathy and marked L5-S1 disc space narrowing, stenosis at L3-4, with fusion at L4-5, 

and multilevel facet arthropathy greatest at the lower lumbar segment. In a July 2, 2012 progress 

note, Dr. Marciello listed impressions of discogenic lower back pain, and lumbar stenosis with 

diffuse degeneration of the lumbar spine. 

By decision dated July 13, 2012, OWCP denied expansion of appellant’s claim as it 

determined that the medical evidence of record did not establish that he sustained an injury to his 

back as a direct result of his accepted employment injury. It determined that the weight of the 

medical evidence was represented by the well-rationalized opinions of Dr. Hom, who as a Boardcertified orthopedic surgeon, possessed expertise and training in a more pertinent medical field 

with respect to the appellant’s back condition. 

In a June 30, 2013 report, Dr. Woodard noted that appellant was under his care. He noted 

that appellant underwent two previous lumbar surgeries for his debilitating mechanical back pain 

secondary-to-severe lumbar degenerative disc disease. Dr. Woodard noted that his first surgery 

in 2004 was a L4-5 disc arthroplasty, and the second surgery in 2009 was an L4-5 interbody 

lumbar fusion with hardware fixation. He noted that, at his subsequent appointment, appellant 

had improved and had returned to work full time. Dr. Woodward related appellant’s history of 

his employment injury. He noted that subsequently appellant was evaluated by his primary care 

physician as well as his podiatrist and asked to remain off his foot. Dr. Woodward noted that 

appellant wore a foot orthotic for approximately 12 weeks. He opined that during this time 

frame appellant’s gait was completely altered because he was straining his lumbar spine on a 

daily basis in favor of the foot injury and boot. Dr. Woodward noted that, in August 2010, 

appellant contacted his office with the complaint of increasing leg pain, weakness, and lower 

back pain with trouble standing for any length of time. He noted that by this time he had 

removed the foot orthotic due to the pain. At the time, Dr. Woodward recommended physical 

therapy and foot therapy. He noted that this request was denied by workers’ compensation for 

the reason that the lumbar spine issues were not related to his foot injury, and that this was 

inaccurate as his symptoms progressively got worse following his foot injury. 

Dr. Woodard related that repeat MRI and CT scans were performed on April 9, 2012 and 

showed a solid L4-5 fusion and some significant facet arthroscopic subacromial decompression 

at L3-4, L5-S1. He noted that appellant had been unable to complete the recommended 

treatment due to the denial of his workers’ compensation claim. Dr. Woodard opined that 
5

appellant’s continued pain in his lumbar spine as well as his groin pain that radiates into his left 

leg was all related to his work injury from May 2010. He noted that appellant was medically 

disabled for an appropriate period of time while recovering from both surgeries in 2004 and 

2009, and that he was disabled again when injured in May 2010 despite trying to return to work a 

few times. Dr. Woodard concluded that appellant’s recovery was hindered due to the denial 

from workers’ compensation for continued physical therapy for his spine. 

On July 15, 2013 appellant requested reconsideration of the July 13, 2012 decision. 

Appellant continued to seek treatment from Dr. Marciello, who continued to submit 

progress reports. In a September 19, 2013 report, Dr. Marciello noted that appellant had chronic 

discogenic mechanical lower back pain, cervical spondylosis, generalized degenerative joint 

disease and focal axial spine degeneration, ongoing deconditioning, and medication dependency. 

He noted that appellant got through the workday with frequent rests and activity modification. 

By decision dated October 3, 2013, OWCP denied appellant’s request for reconsideration 

as it was untimely filed and failed to demontrate clear evidence of error. Appellant appealed to 

the Board. However, by decision dated May 12, 2014, the Board set aside the October 3, 2013 

decision and remanded the case, finding that appellant’s request for reconsideration was timely 

filed and ordered that OWCP review appellant’s request under the proper standard of review for 

timely requests for reconsideration.3

By decision dated July 9, 2014, OWCP reviewed the merits of appellant’s case and 

denied modification of the July 13, 2012 decision, finding that the additional evidence submitted 

on reconsideration was not of sufficient probative value to alter the July 13, 2012 decision. It 

determined that the reports of Drs. Woodard and Marciello lacked probative value to establish 

causal relationship. 

On July 2, 2015 appellant, through counsel, requested reconsideration of OWCP’s July 9, 

2014 decision. Counsel listed several studies and articles in support of the proposition that 

appellant’s back condition was causally related to his altered gait. He contended that appellant’s 

physicians related appellant’s back pathology to the effects of an altered gait due to ambulation 

with a walking boot and that there was no contrary competent medical evidence. 

In support of the reconsideration request, appellant submitted a May 17, 2015 report 

wherein Dr. Sung K. Anderson, a Board-certified internist, noted that appellant has lumbar 

degenerative disc disease. Dr. Anderson related that appellant had undergone L4-5 disc 

arthroplasty in 2004 and an interbody fusion and hardware fixation at the same level in 2009. He 

noted that, after an appropriate recovery, appellant returned to work full time. Dr. Anderson 

discussed the May 17, 2015 employment injury, noting that on that date appellant had severe and 

sharp pain to the left heel and into the ankle while climbing the rungs of the metal ladder at 

work. He noted that appellant was placed in an orthotic cast, which completely altered his gait, 

his pelvis, and back resulting in increased back and leg pain. Dr. Anderson further noted that 

appellant had mild arthropathy at L3-4 and L5-S1, which never caused him any problems. Due 

to appellant’s injury on his left foot, heel, and ankle, these areas on his spine were inflamed and 

 3

 Docket No. 14-0300 (issued May 12, 2014). 
6

irritated causing severe back pain. Dr. Anderson explained that, prior to his left heel, foot, and 

ankle injury in 2010, appellant had been without any back problems. He noted that the orthotic 

boot immobilized appellant’s foot, locking the foot and ankle at a neutral position in the 

dorsiflexion/plantar flexion and inversion/eversion planes. Dr. Anderson noted that such 

immobility significantly altered appellant’s gait patterns and cadence as well as his knee, hip, 

pelvic, and lumbar kinematics. He explained that as appellant’s lumbar spine was already 

compromised, he was susceptible to injury and irritation due to use of the orthotic boot on his left 

foot and ankle. Dr. Anderson opined, to a reasonable degree of medical certainty, that 

appellant’s lumbar spine arthropathy was inflamed and irritated causing severe back pains for 

him, and that this was directly due to ambulating with an orthotic boot following his injury of left 

foot and ankle on May 17, 2010. 

By decision dated October 14, 2015, OWCP denied modification of its prior decisions. It 

determined that the weight of the medical evidence was represented by the opinion of Dr. Hom 

as he was a Board-certified orthopedic surgeon. It also noted that Dr. Anderson did not provide 

a well-rationalized report. 

LEGAL PRECEDENT 

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

essential elements of his or her claim, including that any disability or specific condition for 

which compensation is claimed is causally related to the employment injury.4 With respect to 

consequential injuries, it is an accepted principle of workers’ compensation law that, when the 

primary injury is shown to have arisen out of and in the course of employment, every natural 

consequence that flows from the injury is deemed to arise out of the employment, unless it is the 

result of an independent intervening cause which is attributable to employee’s own intentional 

conduct.5 The basic rule is that a subsequent injury, whether an aggravation of the original 

injury or a new and distinct injury, is compensable if it is the direct and natural result of a 

compensable primary injury.6

A claimant bears the burden of proof to establish a claim for a consequential injury.7 As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, showing causal relationship. Rationalized medical 

evidence is evidence which relates to a work incident or factors of employment to a claimant’s 

condition, with stated reasons of a physician. The opinion must be one of reasonable medical 

certainty and must be supported by medical rationale explaining the nature of the relationship of 

 4 Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 

5 Albert F. Ranieri, 55 ECAB 598 (2004). 

6 See A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000). 

7 R.H., Docket No. 15-1785 (issued January 29, 2016). 
7

the diagnosed condition and the special employment factors or employment injury.8

 Medical 

rationale is a medically-sound explanation for the opinion offered.9

Section 8123(a) of FECA provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician who shall make an examination.10 When the case is referred to an 

impartial medical specialist for the purpose of resolving the conflict, the opinion of such 

specialist, if sufficiently well rationalized and based on a proper factual background, must be 

given special weight.11

ANALYSIS 

In the present case, appellant seeks to expand the conditions accepted as a result of a 

May 17, 2010 employment injury. OWCP previously accepted small plantar calcaneal spur of 

the left heel and tibialis tendinitis. Appellant alleges an aggravation of a prior back injury as a 

result of wearing an orthotic boot for 8 to 12 weeks in the summer of 2010. The Board finds that 

the case is not in posture for decision as a conflict exists in the medical opinion evidence. 

Dr. Woodard, appellant’s treating Board-certified neurosurgeon, noted that he had 

followed appellant for many years with regard to his lumbar spine disease and subsequent 

surgery. He indicated that appellant was doing well following his back surgeries until May 2010 

when he injured his foot and was placed in a foot orthotic. Dr. Woodard noted that while 

appellant wore this foot orthotic his gait was altered and that this aggravated his preexisting 

lumbar degenerative disc disease, for which he had two surgical procedures. 

Dr. Anderson, appellant’s treating Board-certified internist, explained that when appellant 

was placed in an orthotic cast due to his left heel injury on May 17, 2010, the boot immobilized 

appellant’s foot, locking the foot and ankle at a neutral position in the dorsiflexion/plantar 

flexion and inversion/eversion planes. He further explained that this immobility significantly 

altered appellant’s gait patterns, cadence, and his knee, hip, pelvic, and lumbar kinematics. 

Since appellant’s lumbar spine was already compromised, he explained that appellant’s spine 

was inflamed and irritated. 

OWCP determined that the weight of the medical evidence was represented by the 

opinion of Dr. Hom, the second opinion physician who is Board-certified in orthopedic surgery. 

Dr. Hom opined that appellant’s issues with his back were causally related to his preexisting low 

back condition. In his report of April 9, 2012, he noted that the use of the prefabricated walking 

cast did not cause or contribute to a worsening of appellant’s preexisting lumbar degenerative 

 8 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 

9 See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003). 

10 5 U.S.C. § 8123(a); see J.J., Docket No. 09-27 (issued February 10, 2009); Geraldine Foster, 54 ECAB 

435 (2003). 

11 B.P., Docket No. 08-1457 (issued February 2, 2009); J.M., 58 ECAB 478 (2007); Barry Neutuch, 54 ECAB 

313 (2003); David W. Pickett, 54 ECAB 272 (2002). 
8

disease or a nonunion of his L4-5 attempted fusion or any other condition affecting the lumbar 

spine, but he provided no rationale in support of his opinion. Dr. Hom noted that he was 

unaware of any widely held studies that correlate the use of a prefabricated walking cast with the 

development of low back symptoms or worsening of lumbar degenerative disc disease. 

It is well established that when there are opposing medical reports of virtually equal 

probative value between an attending physician and a second opinion physician, 5 U.S.C. 

§ 8123(a) requires OWCP refer the case to a referee physician to resolve the conflict.12 The 

Board finds that the medical reports of Drs. Woodward and Anderson are in equipoise with the 

opinion of Dr. Hom as to whether appellant sustained an aggravation of his preexisting back 

condition consequential to his accepted left heel and tibialis injury. Appellant’s treating 

physicians provided long-standing medical care for the accepted conditions in this claim and set 

forth medical opinions on the relevant issue with equal rationale and clarity as the opinion of the 

second opinion physician, Dr. Hom.13 As the opposing medical reports are of virtually equal 

weight and rationale, the Board finds that there is an unresolved conflict as to whether appellant 

sustained a consequential aggravation of his preexisting back condition.14 On remand OWCP 

shall prepare a statement of accepted facts and refer appellant to an impartial medical specialist 

for examination and evaluation. After such further development as necessary, OWCP shall issue 

a de novo decision. 

CONCLUSION 

The Board finds that this case is not in posture for decision. 

 12 See P.C., Docket No. 15-1013 (issued June 15, 2016). 

13 See D.E., Docket No. 15-0712 (issued June 23, 2016). 

14 Supra note 12. 
9

ORDER 

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

Compensation Programs dated October 14, 2015 is set aside and this case is remanded for further 

proceedings consistent with this opinion. 

Issued: September 9, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board