United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Ogden, UT, Employer 

__________________________________________ 

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Docket No. 15-1915 

Issued: June 17, 2016 

Appearances: Case Submitted on the Record

Eric M. Stott, Esq., for the appellant 

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 September 23, 2015 appellant, through counsel, filed a timely appeal from a 

March 27, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).1

 

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.3

 

ISSUE 

The issue is whether appellant sustained a left foot condition in the performance of duty. 

 1

 Appellant’s attorney requested oral argument. However, by letter dated November 9, 2015, he withdrew his 

oral argument request. 

2

 5 U.S.C. § 8101 et seq. 

3

 The Board notes that, following the issuance of the March 27, 2015 OWCP decision and on appeal, appellant 

submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time 

it issued its final decision. See 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On September 30, 2013 appellant, then a 38-year-old carrier assistant, filed an 

occupational disease claim (Form CA-2) alleging that he sustained posterior tibial tendon 

insufficiency and Achilles equinus contracture causally related to factors of his federal 

employment. He became aware of his condition on May 6, 2013 and attributed it to his federal 

employment on June 25, 2013. Appellant voluntarily resigned from employment on 

June 25, 2013. 

In an August 19, 2013 statement submitted with his claim, appellant described his work 

duties, including casing mail, loading mail into his vehicle, and delivering mail either on foot or 

in a vehicle depending on his route assignment. He related that he lifted up to 70 pounds and 

performed repeated bending and stooping. Appellant also climbed hills and stairs and delivered 

his route over terrain that included grass, pavement, cement, or loose gravel that could be wet, 

dry, or snow covered. 

On September 3, 2013 Dr. Jeffrey Rocco, a Board-certified orthopedic surgeon, related 

that on July 1, 2013 appellant underwent a left foot reconstruction to treat posterior tibial tendon 

insufficiency and Achilles equinus. He reviewed his description of his work duties and related, 

“It is my medical opinion that [his] posterior tibial tendon insufficiency was precipitated by his 

work requirements. Prior to the start of his current job [he] was asymptomatic in his [left] foot.4 

The distances, forces, and repetitive loading of his left foot subsequently led to failure of the 

posterior tibial tendon and certainly exacerbated pain and swelling in and around that left foot 

and ankle.” Dr. Rocco opined that appellant was totally disabled beginning July 1, 2013, but 

could now return to sedentary employment. 

The employing establishment, by letter dated October 4, 2013, controverted appellant’s 

claim. It advised that he only worked from April 6 to June 25, 2013, participated in training for 

the first two weeks of employment, failed to mention any injury to his supervisors, filed his 

claim three months after he stopped work, and engaged in motocross racing. 

On October 10, 2013 OWCP requested that appellant submit additional factual and 

medical information in support of his claim, including a detailed report from his attending 

physician addressing the causal relationship between any diagnosed condition and work factors.5

 

Appellant’s supervisor, in a statement dated October 21, 2013, related that appellant 

participated in motocross racing before working for the employing establishment. The 

supervisor asserted that appellant’s job duties required lifting up to 70 pounds, pushing 

equipment from the building to a vehicle, and loading and unloading mail from a vehicle. 

 4

 Dr. Rocco indicated that appellant was asymptomatic in his right rather than his left foot. However, this appears 

to be a typographical error. 

5

 In an October 11, 2013 letter, OWCP informed appellant that it had deleted his file number xxxxxx114 because 

it was a duplicate of a previous case created under file number xxxxxx627, currently under appeal. It moved the 

contents of the duplicate case to the current case record. 
3

By decision dated January 3, 2014, OWCP denied appellant’s claim as the medical 

evidence failed to establish that he sustained a diagnosed condition causally related to the 

accepted employment factors. It found that Dr. Rocco’s opinion was not sufficiently rationalized 

to establish that his left foot condition arose from employment. 

On February 3, 2014 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. 

At the telephone hearing, held on January 6, 2015, appellant described his motocross 

activities from 2002 to 2004 and resulting injuries to his right knee, sternum, ribs, and hands. He 

denied sustaining a foot injury from motocross racing, but did acknowledge a fracture of his left 

foot in 2012 and an injury of his left toe in 2012 or 2013. Appellant’s supervisor, during his 

training, instructed him to move quickly from house to house. 

In a January 9, 2014 postoperative report, Dr. Rocco indicated that appellant underwent 

left foot surgery on December 27, 2013 to remove hardware.6

 He released him to work five 

hours per day without restrictions for the next four weeks with an anticipated return to full-time 

employment in one month. 

On January 30, 2014 Dr. Colby Frost, a podiatrist, performed a left peroneal tendon 

debridement and repair.7

 In a May 7, 2014 report, the podiatrist found that appellant continued 

to have pain at the insertion of the peroneus brevis tendon, left, and explained to him that his 

tendon injury prior to surgery was significant and would take time to heal. 

Dr. Rocco, in an addendum report dated February 4, 2015, noted that appellant’s work 

requirements included “repetitive stair climbing, walking on uneven surfaces ... going down 

stairs, and carrying relatively heavy loads in his mailbag.” He opined that these “specific 

activities precipitated [appellant’s] posterior tibial tendon.” 

In a statement dated February 10, 2015, appellant’s supervisor related that carriers could 

cut across lawns if it was safe. 

By decision dated March 27, 2015, an OWCP hearing representative affirmed as 

modified the January 3, 2014 decision. He thus determined that he had not factually established 

all of the work factors to which he attributed his condition. 

On appeal appellant’s counsel argues that Dr. Rocco’s September 3, 2013 report supports 

that appellant’s work duties caused an injury in the performance of duty. He notes that whether 

appellant was trained to jump off porches or not is not the relevant issue as he attributed his 

condition to a variety of work duties. Counsel further maintains that appellant did not experience 

a left foot injury from motocross activities from 2002 to 2004 

 6

 Appellant submitted physical therapy notes dated September 12 to 24, 2013. 

7

 In an August 25, 2014 report, a nurse practitioner noted that appellant sustained an injury in June 2013 as a 

result of stepping off a porch in the performance of duty and diagnosed pain in joint involving ankle and foot, 

neuralgia, neuritis, and radiculitis, opioid-type dependence, episodic use, and reflex sympathetic dystrophy of the 

lower limb. 
4

LEGAL PRECEDENT 

An employee seeking benefits under FECA8 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.9 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.10

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed;11 (2) a 

factual statement identifying employment factors alleged to have caused or contributed to the 

presence or occurrence of the disease or condition;12 and (3) medical evidence establishing the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed or, stated differently, medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant.13

An employee’s statement that an injury occurred at a given time and in a given manner is 

of great probative value and will stand unless refuted by strong or persuasive evidence.14 

Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement, 

however, must be consistent with the surrounding facts and circumstances and his subsequent 

course of action. An employee has not met his burden in establishing the occurrence of an injury 

when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of 

the claim. Circumstances such as late notification of injury, lack of confirmation of injury, 

continuing to work without apparent difficulty following the alleged injury, and failure to obtain 

medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in 

determining whether a prima facie case has been established.15

 

 8 Supra note 2. 

9 Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989). 

10 See Ellen L. Noble, 55 ECAB 530 (2004). 

11 Michael R. Shaffer, 55 ECAB 386 (2004). 

12 Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001). 

13 Beverly A. Spencer, 55 ECAB 501 (2004). 

14 R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005). 

15 Betty J. Smith, 54 ECAB 174 (2002). 
5

The medical evidence required to establish causal relationship generally is rationalized 

medical opinion evidence. The opinion of the physician must be based on a complete factual and 

medical background of the claimant,16 must be one of reasonable medical certainty17 explaining 

the nature of the relationship between the diagnosed condition and the specific employment 

factors identified by the claimant.18

ANALYSIS 

Appellant attributed his left foot condition to the performance of his work duties, 

including lifting up to 70 pounds, climbing hills, and going up and down stairs. He further 

delivered mail over varied terrain consisting of loose gravel, grass, cement, and pavement which 

could be dry, wet, or snow covered depending on the weather. At the hearing, appellant advised 

that a supervisor instructed him to move quickly from house to house. OWCP denied appellant’s 

claim after finding that he had not factually established the occurrence of the implicated work 

factors. 

Appellant has the burden to establish the occurrence of the employment factors to which 

he attributes his condition.19 The Board finds that the evidence is sufficient to establish that his 

occupational exposure occurred as alleged. It is undisputed that in the course of his employment 

he lifted up to 70 pounds, delivered mail over various terrains, climbed hills and stairs, and cut 

through yards. The Board finds that appellant adequately described the work duties to which he 

attributed his condition and that the record does not contain evidence sufficient to refute his 

depiction of his implicated work factors.20 

Given that appellant has established the work factors he identified as causing his 

condition, the question becomes whether the medical evidence establishes a causal relationship 

between the claimed conditions and the identified employment factors. He submitted medical 

evidence diagnosing a left foot condition. The Board will remand the case for OWCP to issue a 

de novo decision as to whether the medical evidence is sufficient to establish that appellant 

sustained a left foot condition as a result of the established work factors. 

CONCLUSION 

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

 16 Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001). 

17 John W. Montoya, 54 ECAB 306 (2003). 

18 Judy C. Rogers, 54 ECAB 693 (2003). 

19 See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005). 

20 See A.R., Docket No. 15-1716 (issued November 17, 2015). 
6

ORDER 

IT IS HEREBY ORDERED THAT the March 27, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board. 

Issued: June 17, 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