United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.P., Appellant 

and 

U.S. POSTAL SERVICE, CANAL STREET 

STATION, New York, NY, Employer 

__________________________________________ 

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Docket No. 15-1580 

Issued: September 1, 2016 

Appearances: Case Submitted on the Record

James D. Muirhead, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 10, 2015 appellant, through counsel, filed a timely appeal from a January 13, 

2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

 Pursuant to 

 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

 The Board notes that appellant had filed a second appeal with the Board regarding an overpayment of 

compensation (OWCP file number xxxxxx618). N.P., Docket No. 15-1799 (issued January 8, 2016). 
2

the Federal Employees’ Compensation Act3

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case.4

ISSUE 

The issue is whether appellant established any continuing employment-related disability 

or condition after May 20, 2013 due to her December 21, 2010 employment injury. 

On appeal counsel asserts that the statement of accepted facts (SOAF) was incomplete 

because it did not list all accepted conditions and that the referee opinion was insufficient to 

carry the weight of the medical evidence. 

FACTUAL HISTORY 

On December 21, 2010 appellant, then a 45-year-old letter carrier working in a part-time 

modified-duty position, filed a traumatic injury claim (Form CA-1) asserting that she “missstepped” and slipped on a ramp, injuring her left ankle and foot that day. In an attached 

statement, she indicated that she was walking onto a ramp when she stepped on a crack and 

twisted her left ankle. Appellant stopped work and did not return. The employing establishment 

controverted the claim, maintaining that she had taken a short cut up over the ramp causing her 

injury when she stepped over the side of the ramp. 

An emergency services report dated December 21, 2010 provided a history that appellant 

tripped over a crack on a metal ramp. The report indicated that her left ankle was swollen and 

very painful. Appellant was treated with an icepack and medication and transported to Beth 

Israel Hospital. A left foot and ankle x-ray at Beth Israel Hospital on December 21, 2010 

demonstrated mild soft tissue swelling without evidence of fracture or dislocation.5

A December 31, 2010 emergency department report from New York Methodist Hospital, 

signed by Dr. Reda Hadpawat, Board-certified in emergency medicine, described a history that 

appellant had sustained an inversion injury to the left ankle and foot at work on 

December 21, 2010. Left ankle examination demonstrated tenderness, swelling, and decreased 

range of motion. An x-ray of the left lower leg, ankle, and foot demonstrated severe soft tissue 

 3

 5 U.S.C. § 8101 et seq. 

4

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from January 13, 2015, the date of OWCP’s last decision, was 

July 12, 2015. As this fell on a Sunday the appeal would have been timely filed if received by the next business day 

which was Monday, July 13, 2015. Since using July 15, 2015, the date the appeal was received by the Clerk of the 

Appellate Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. 

The date of the U.S. Postal Service postmark is July 10, 2015 rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f)(1). 

5

 Other than the x-ray report and unsigned patient instructions in Spanish, with a note in English that appellant 

sustained a small foot fracture, a complete copy of the Beth Israel Hospital report from December 21, 2010 is not 

found in the case record. 
3

swelling surrounding the left ankle, with no acute displaced fracture or dislocation of bones 

identified. Dr. Hadpawat diagnosed ankle and foot sprains. 

A January 5, 2011 left ankle magnetic resonance imaging (MRI) scan showed ligament 

tears with remodeling and thickening, tibiotalar joint effusion with impaction injury of the 

plantar medial distal talus, contusion of the distal cuboid with no fracture, and an os trigonum 

with fluid through the synchondrosis, compatible with instability. A March 1, 2011 left ankle 

x-ray was negative. A March 11, 2011 computerized tomography (CT) scan of the left foot was 

normal. 

Dr. Craig Kaiser, an attending podiatrist, submitted treatment notes dated from January 3 

to February 28, 2011, but they are illegible. 

On April 20, 2011 OWCP accepted left ankle and foot sprains. Appellant received 

compensation and was placed on the periodic compensation rolls. 

A May 9, 2011 left ankle MRI scan showed no fracture or tenosynovitis, scarring and 

thickening of the lateral ligaments and deltoid ligament, compatible with nonacute trauma, no 

Achilles tendon tear, and no tarsal tunnel lesion.6

 In May 20, 2011 electrodiagnostic testing, 

Dr. Kaiser noted a history for approximately one year of diabetes and reported complaints of 

stabbing pain in the left foot. The test was abnormal with significant evidence of a moderate 

polyneuropathic compromise of both legs. A June 7, 2011 left ankle x-ray was negative for 

fracture. Soft tissue swelling was present. 

In July 2011 OWCP referred appellant, along with a SOAF and the medical record, to 

Dr. Leon Sultan, a Board-certified orthopedic surgeon, for a second opinion evaluation. In an 

August 16, 2011 report, Dr. Sultan noted the history of injury, his review of the record, her 

complaint of localized soreness, and that she used crutches to ambulate. He indicated that 

appellant was 5 feet 4 inches tall and weighed 280 pounds, and described left ankle/foot 

examination findings of swelling, intact sensation, diminished ankle motion, and mild left calf 

atrophy. Dr. Sultan found her totally disabled, that maximum medical improvement (MMI) had 

not been reached, and that surgery was appropriate for a medial plantar fascial release. He did 

not find that any additional work-related conditions should be accepted. 

A December 12, 2011 left foot and ankle x-ray demonstrated no definite acute osseous 

abnormality with nonspecific swelling present. On December 15, 2011 Dr. Kaiser performed an 

authorized left tarsal tunnel release. 

In March 2012 OWCP again referred appellant to Dr. Sultan for an updated report. In his 

March 29, 2012 report, Dr. Sultan noted that appellant complained of residual left ankle pain and 

restricted motion. He provided left ankle/foot examination findings and opined that her current 

disability was due to the December 21, 2010 employment injury. Dr. Sultan again advised that 

the accepted conditions should not be expanded but that appellant had not reached MMI. He 

opined that she could perform sedentary employment. 

 6

 The January 5 and May 9, 2011 MRI scans were both read by Dr. Mark J. Decker, a Board-certified radiologist. 
4

In August 2012 appellant experienced increased pain in the left foot after stepping out of 

bed while at home. 

Dr. Kaiser continued to submit reports in which he diagnosed plantar nerve lesion, 

nontraumatic rupture of other tendons of foot and ankle, plantar fascial fibromatosis, and sprain 

and strain of the left foot. He performed additional authorized left tarsal tunnel release surgery 

on November 16, 2012. 

Following appellant’s November 2012 surgery, OWCP referred appellant to Dr. Joel L. 

Teicher, a Board-certified orthopedic surgeon, for a second opinion evaluation. Dr. Teicher was 

provided a SOAF and the medical record, and was asked to respond to a set of questions. In his 

January 15, 2013 report, he noted the history of injury and his review of the medical record. 

Dr. Teicher advised that appellant presented in a wheelchair with a walking boot on the left leg. 

The device was removed and examination was conducted in a seated position. Dr. Teicher 

provided extensive examination findings and diagnosed acute contusion and sprain of the left 

foot and ankle which had resolved after conservative management. He noted that this had 

resolved prior to the second accident in August 2012 and second surgery of November 16, 2012. 

Dr. Teicher advised that the repair of tarsal tunnel syndrome, recurrent dislocation of the ankle 

and foot, and Achilles tendinitis were not documented by x-rays or clinical studies, and were not 

accepted as due to the December 21, 2010 work injury. He reported that he had no medical 

documentation concerning the second injury, but that appellant should have been able to return 

to her regular duties prior to that time. Dr. Teicher concluded that her examination findings that 

day were referable to injuries unrelated to the December 21, 2010 employment injury. He 

advised that appellant could not perform letter carrier job duties because she recently had surgery 

unrelated to the accepted conditions and had not reached MMI. In an attached work capacity 

evaluation, Dr. Teicher advised that she could not work due to a subsequent injury and surgery 

that were not related to the employment injury. 

On April 11, 2013 OWCP proposed to terminate appellant’s wage-loss compensation and 

medical benefits. It found that Dr. Teicher’s opinion that her work-related conditions had 

resolved constituted the weight of the medical evidence. 

Appellant disagreed with the proposed termination, indicating that she continued to have 

left ankle pain and swelling. In an April 23, 2013 report, Dr. Kaiser related that he began 

treating her in early 2011, shortly after the December 2010 work injury. He described 

appellant’s treatment, and maintained that she had sustained a recurrence on August 23, 2012 

after which additional surgery was done, and that she was currently improving and could walk 

unassisted with a left foot brace. In an undated attending physician’s report, Dr. Kaiser noted 

findings of left ankle swelling and pain. He diagnosed ankle and tarsal tunnel instability and 

checked a form box marked “yes,” writing that the diagnoses were caused by a fall at work. 

Dr. Kaiser advised that it was undetermined when appellant could return to work. 

In a May 20, 2013 decision, OWCP finalized the termination of wage-loss compensation 

and medical benefits, finding that the weight of the medical evidence rested with the opinion of 

Dr. Teicher. 
5

Appellant, through counsel, timely requested a hearing and submitted reports from 

Dr. Kaiser dated June 11 and July 30, 2013. Dr. Kaiser noted her complaint of pain between the 

fourth and fifth digits and left ankle pain, and described mild edema on foot examination with no 

heel pain, and a positive moulder sign in the third interspace. He diagnosed sprain and strain of 

foot, nontraumatic rupture of other tendons of foot and ankle, and lesion of plantar nerve. 

Dr. Kaiser disagreed with Dr. Teicher’s report, as he believed that appellant had sustained a 

hairline fracture and torn ligament and tendons when she stepped in a hole on 

December 21, 2010. He indicated that she improved following the December 2011 surgery until 

she sustained a recurrence on August 23, 2012 and opined that she needed additional surgery. 

Dr. Kaiser reiterated his disagreement with Dr. Teicher’s report. 

At the hearing, held on September 11, 2013, appellant testified that on December 21, 

2010 she had been working six hours a day due to a prior injury and continued to receive two 

hours compensation following termination of the instant claim. She stated that her job duties on 

December 21, 2010 were delivering express mail, checking routes, answering the telephone, and 

responding to complaints. Appellant indicated that as she was walking up a ramp at the 

employee entrance on December 21, 2010 she fell in a hole and hurt her left foot, ankle, and toes. 

She also indicated that on August 23, 2012 when she stepped out of bed, her left ankle started to 

throb, and that after the November 2012 surgery, she had continued pain, and swelling. Counsel 

argued that the accepted conditions should be updated and that Dr. Teicher’s opinion was 

insufficient to carry the weight of the medical evidence. 

In a November 15, 2013 report, Dr. Kaiser advised that a March 9, 2011 MRI scan 

showed scarring and thickening of lateral and deltoid ligaments, and that a May 20, 2011 

electrodiagnostic study was abnormal. He advised that appellant was not responding to 

conservative care and recommended surgery. 

On December 24, 2013 OWCP’s hearing representative affirmed the May 20, 2013 

decision, finding that OWCP properly terminated appellant’s wage-loss compensation and 

medical benefits based on the opinion of Dr. Teicher. He further found that a conflict in medical 

evidence had been created between Dr. Teicher and Dr. Kaiser regarding whether she continued 

to be disabled after that day. The hearing representative directed OWCP to update the SOAF 

and obtain a referee opinion as to whether additional conditions should be accepted, whether the 

December 15, 2011 and/or November 16, 2012 surgical procedures were necessitated by the 

December 21, 2010 injury, and whether appellant still required medical treatment for the 

accepted injury. 

On remand OWCP prepared an updated SOAF noting that the accepted conditions were 

sprains of the left ankle and foot, and included a description of the part-time duties appellant was 

performing on December 21, 2010. It noted that she had a second claim for a March 28, 1996 

employment injury, which had been accepted for right hand, left knee, and lumbosacral sprains 

and it referenced the two surgical procedures.7

On January 21, 2014 OWCP referred appellant, along with a SOAF, a set of questions, 

and the medical record to Dr. Stanley Soren, a Board-certified orthopedic surgeon, for an 

 7 Supra note 3. 
6

impartial evaluation.8

 In a February 11, 2014 report, Dr. Soren noted a history of injury, relating 

that she fell forward and hit her left foot and ankle and was transported to an emergency room 

where she reportedly was told that she had an ankle sprain and a hairline fracture of the left foot. 

He described appellant’s complaint of constant pain or throbbing of the left ankle and foot with 

decreased strength. Dr. Soren also referenced her medical and surgical care, noting preexisting 

diabetes, and his review of the SOAF and medical record, including records regarding the 1996 

work injury. He noted that appellant used an electric scooter because she reported left foot and 

ankle pain. Dr. Soren recorded her height at 5 feet 5 inches and weight at 263 pounds. He 

indicated that appellant could walk in the examination room and used a cane most of the time. 

Examination of the ankles and feet demonstrated equal inframalleolar girth, normal color and 

temperature, and normal dorsalis pedis pulses bilaterally. Dr. Soren described trace tenderness 

over two left ankle scars. Both were well healed with no inflammation or drainage, and there 

was no instability of either ankle. Left ankle dorsiflexion was diminished, and there was no 

perimalleolar tenderness of either ankle. Appellant had trace sensitivity to touch in the left fifth 

toe with no indication of deformity, fracture, or intermetatarsal neuroma. Dr. Soren diagnosed 

sprain of left foot and left ankle. He reported reviewing diagnostic testing and surgical findings. 

Dr. Soren discussed the January 5, 2011 MRI scan findings9

 and electrodiagnostic abnormalities 

of the legs by Dr. Kaiser on May 20, 2011 which, he opined, were related to diabetic neuropathy 

and not the December 2010 work injury. He diagnosed tarsal tunnel syndrome with ankle 

tendinitis, lateral ankle instability, status post December 15, 2011 tarsal tunnel release and lateral 

ankle and Achilles tendon repair; and tarsal tunnel area navicular, chronic sprain left foot and 

ankle, status post tarsal tunnel release on November 16, 2002 with repair of the ankle ligaments, 

removal of accessory bone and tendon, and plantar fascia release. 

Dr. Soren advised that appellant had recovered from the December 2010 injury by the 

time she had sustained the second injury which led to the November 2012 surgery, and that the 

December 2011 surgery had primarily been due to her excessive weight. He further advised any 

additional conditions were unrelated to the December 2010 work injury, and that her left ankle 

and foot condition had been aggravated by excessive weight. Dr. Soren further indicated that 

while left ankle loss of flexion could have been partially caused by the December 2010 injury it 

was not sufficiently symptomatic to produce problems, noting that diabetic peripheral 

neuropathy could increase appellant’s pain. He advised that there were no residuals of the 

December 2010 employment injury, that there was no need for further treatment or surgery, and 

that MMI had been reached as of Dr. Teicher’s report on January 15, 2013. Dr. Soren found that 

appellant could work full-time, light duty in a sedentary position and should avoid prolonged, 

uninterrupted standing or walking, and should not squat, kneel, or climb. Any residual 

symptoms were not employment related, but were related to the August 23, 2012 injury and to 

her excessive weight. On an attached work capacity evaluation, Dr. Soren diagnosed left ankle 

and foot sprains. He advised that appellant could not perform her regular job due to limited 

ability for prolonged walking and standing. Dr. Soren provided indefinite restrictions, limiting 

 8

 The record includes screen shots of bypassed physicians and a bypass log, a screen shot showing an 

appointment with Dr. Soren was scheduled, an OWCP ME023 report, and an OWCP referral form.) 

9

 These findings were described as of partial tear anterior talofibular ligament, posterior talofibular ligament 

intact, calcaneofibular ligament partial tear, deltoid ligament minimally thickened, tear of the peroneal retinacular, 

no subluxation of peroneal tendon, contusion of the distal cuboid, and no fracture. 
7

walking and standing to two hours daily, with lifting limited to 20 pounds occasionally and no 

squatting, kneeling, or climbing. Appellant was to have hourly breaks of 5 to 10 minutes. 

On March 12, 2014 OWCP proposed to terminate appellant’s wage-loss compensation 

based on his impartial medical opinion. It noted that the case had been remanded by a hearing 

representative as to whether she was entitled to continuing wage-loss compensation or medical 

benefits after the date of termination. On March 12, 2014 OWCP asked Dr. Soren to clarify 

whether any further treatment was necessary. 

On March 17, 2014 Dr. Soren responded that he had answered all questions in his 

February 11, 2014 report and referred OWCP to pages 13 to 15 of his report, noting that he 

indicated that no specific orthopedic medical treatment was necessary. 

On March 20, 2014, following additional clarification from Dr. Soren, OWCP issued a 

new notice to terminate appellant’s medical benefits based on the impartial opinion of Dr. Soren. 

It again noted that the case had been remanded to OWCP by an OWCP hearing representative 

regarding whether she was entitled to wage-loss compensation or medical benefits after the date 

of termination. 

Appellant, through counsel, disagreed with the proposed termination, maintaining that 

Dr. Soren’s opinion lacked rationale. In an April 7, 2014 report, Dr. Kaiser reiterated the 

findings and conclusions he described in a July 30, 2013 report. He further indicated that 

appellant was pending an additional MRI scan study and surgery for a left foot neuroma. 

By decision dated April 21, 2014, OWCP found that the weight of the medical evidence 

rested with referee physician Dr. Soren. It finalized the termination of wage loss and medical 

benefits, essentially finding no continuing disability or residuals of the accepted injury following 

the May 20, 2013 termination of wage-loss compensation and medical benefits. 

Counsel timely requested a hearing.10 In an April 1, 2014 report, Dr. Kaiser noted 

treating appellant since January 3, 2011, following a December 21, 2010 injury. He maintained 

that she remained disabled and could not put any weight on her left ankle. Dr. Kaiser indicated 

that appellant was still awaiting authorization for surgery. 

At a November 12, 2014 hearing, counsel generally maintained that appellant should 

have been returned to the compensation rolls after the December 14, 2013 hearing representative 

decision and that additional conditions should be accepted. He reported that she recently had a 

third foot surgery. Appellant testified about a prior injury, stating that she continued to receive 

two hours compensation under a separate claim for knee injuries. She stated that she had foot 

and ankle pain and swelling since the December 21, 2010 work injury and related that she 

sometimes delivered mail after her knee surgery. Appellant stated that she had always been 

heavy, was borderline diabetic since 2010, and recently retired on disability. 

In a December 4, 2014 report, Dr. Kaiser described appellant’s history, noting that on 

August 23, 2012 she complained of intense pain at the injury site. He disagreed with Dr. Soren’s 

 10 Counsel also requested supportive materials regarding the selection of Dr. Soren as referee physician. Id. 
8

report, maintaining that she had a hairline fracture, torn ligaments, and tendons on December 21, 

2010 when she stepped into a hole and injured her left foot and leg. Dr. Kaiser related that 

appellant had a third surgery on July 22, 2014 to remove a neuroma which was most likely a 

complication of the original injury. Appellant also submitted duplicates of the December 15, 

2011 and November 16, 2012 operative reports. 

On January 13, 2015 an OWCP hearing representative affirmed the April 21, 2014 

decision, finding that the weight of the medical evidence rested with the referee opinion of 

Dr. Soren. 

LEGAL PRECEDENT 

As OWCP had met its burden of proof to terminate appellant’s compensation benefits on 

May 20, 2013, the burden shifted to appellant to establish continuing disability causally related 

to the accepted conditions.11 Causal relationship is a medical issue. The opinion of the 

physician must be based on a complete factual and medical background of the claimant, 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 claimant.12 

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.13 The implementing regulations 

provides that, if a conflict exists between the medical opinion of the employee’s physician and 

the medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP 

shall appoint a third physician to make an examination. This is called a referee examination, and 

OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case.14 When there exist opposing medical reports of virtually equal weight 

and rationale and 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 

upon a proper factual background, must be given special weight.15 

ANALYSIS 

The Board finds that appellant has not established continuing residuals of the accepted 

left ankle and foot sprains after May 20, 2013. OWCP terminated benefits by decision dated 

May 20, 2013. That decision was affirmed by OWCP’s hearing representative on 

December 24, 2013. Although the January 13, 2015 decision referenced termination of both 

 11 See Joseph A. Brown, Jr., 55 ECAB 542 (2004). 

12 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 

13 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

14 20 C.F.R. § 10.321. 

15 V.G., 59 ECAB 635 (2008). 
9

wage-loss and medical benefits, the Board notes that the benefits had previously been 

terminated. The case before the Board, therefore, is solely that of continuing benefits for which 

appellant bears the burden of proof. 

In a December 24, 2013 decision, an OWCP hearing representative found that OWCP 

had properly terminated appellant’s wage-loss compensation and medical benefits based on the 

opinion of Dr. Teicher and affirmed the May 20, 2013 decision. He, however, found a conflict in 

medical evidence between Dr. Teicher and Dr. Kaiser regarding whether she continued to be 

disabled after that day. The hearing representative remanded the case for OWCP to obtain a 

referee opinion regarding whether additional conditions should be accepted, whether the 

December 15, 2011 and/or November 16, 2012 surgeries were necessitated by the December 21, 

2010 injury, and whether appellant continued to require medical treatment for the accepted 

injury. 

On January 21, 2014 OWCP referred appellant, along with an updated SOAF, a set of 

questions, and the medical record to Dr. Soren for an impartial evaluation. In a comprehensive 

February 11, 2014 report, Dr. Soren noted the history of injury, and her complaint of constant 

left ankle and foot pain and decreased strength. He noted appellant’s preexisting diabetes, his 

review of the SOAF and medical record, including records regarding a 1996 employment injury. 

Dr. Soren provided extensive physical examination findings. He diagnosed sprain of left foot 

and left ankle and noted additional diagnoses that were unrelated to the December 2010 

employment injury. Dr. Soren advised that appellant had recovered from the December 2010 

injury prior to when she sustained the second injury, which then led to the November 2012 

surgery. He further advised that additional conditions were unrelated to the December 2010 

employment injury, that she had no residuals of the December 2010 employment injury, that 

there was no need for further treatment or surgery, and that MMI had been reached as of 

Dr. Teicher’s report on January 15, 2013. Dr. Soren concluded that any residual symptoms were 

not employment related, but instead were related to the August 23, 2012 injury when appellant 

stepped out of bed and had symptomatology and to her excessive weight. 

In an April 1, 2014 report, Dr. Kaiser advised that appellant had been under his care since 

January 3, 2011, following a December 21, 2010 injury. He reiterated the findings and 

conclusions from his July 30, 2013 report and maintained that she remained disabled and could 

not put any weight on the left ankle. Dr. Kaiser indicated that appellant was pending a new MRI 

scan study and surgery for a left foot neuroma. On December 4, 2014 he again described her 

history, noting that on August 23, 2012 she complained of intense pain at the site of the injury. 

Dr. Kaiser indicated that he disagreed with Dr. Soren’s report, maintaining that appellant 

sustained a hairline fracture, torn ligaments, and tendons on December 21, 2010 when she 

stepped into a hole and injured her left foot and leg. He related that she had another surgery on 

July 22, 2014 to remove a neuroma and this was most likely a complication from the original 

injury. 

The Board has long held that reports from a physician who was on one side of a medical 

conflict that an impartial specialist resolved, are generally insufficient to overcome the weight 

accorded to the report of the impartial medical examiner, or to create a new conflict.16 

 16 I.J., 59 ECAB 408 (2008). 
10

Dr. Kaiser had been on one side of the conflict resolved by Dr. Soren. He merely reiterated his 

opinion that additional conditions should be accepted. Dr. Kaiser’s reports are therefore 

insufficient to outweigh Dr. Soren’s opinion or to create a new conflict in medical evidence.17

As to counsel’s arguments on appeal, the SOAF dated January 9, 2014 that was 

forwarded to Dr. Soren, described the accepted conditions, appellant’s medical and surgical 

history, and her additional claim. The Board further notes that, even though OWCP authorized 

and paid for some medical treatment, this does not establish that the condition for which she 

received treatment was employment related.18 

The Board finds that Dr. Soren provided a comprehensive, well-rationalized opinion in 

which he clearly advised that any residuals of appellant’s accepted left foot and ankle sprains had 

resolved and that her current condition was not due to the accepted injury, but rather, to an 

August 2012 injury that she had at home. The Board has carefully reviewed the opinion of 

Dr. Soren and finds that it has reliability, probative value, and convincing quality with respect to 

its conclusions regarding the relevant issue in the present case. Dr. Soren’s opinion is based on a 

proper factual and medical history and he thoroughly reviewed the factual and medical history 

and accurately summarized the relevant medical evidence.19 His opinion is entitled to special 

weight as the impartial medical examiner and establishes that appellant has no continuing 

employment-related disability causally related to the December 21, 2010 employment injury.20

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 failed to establish continuing employment-related 

disability after the date of termination, May 20, 2013, causally related to the December 21, 2010 

employment injury. 

 17 See B.T., Docket No. 08-1885 (issued June 3, 2009). 

18 See G.A., supra note 14. See also Gary L. Whitmore, 43 ECAB 441 (1992); James F. Aue, 25 ECAB 151 

(1974) (the mere fact that OWCP authorized and paid for medical treatment does not establish that the condition for 

which the employee received treatment was employment related). 

19 See Melvina Jackson, 38 ECAB 443 (1987). 

20 Barry Neutuch, 54 ECAB 313 (2003). 
11

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: September 1, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board