United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer

__________________________________________

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Docket No. 17-0331

Issued: June 15, 2018

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 30, 2016 appellant, through counsel, filed a timely appeal from an August 4, 

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 over 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 her burden of proof to establish that she was totally 

disabled for the period January 27 to April 17, 2015 causally related to her accepted employment 

injury.

FACTUAL HISTORY

On December 20, 2014 appellant, a 28-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained a left ankle sprain on December 13, 2014 as 

a result of walking through grass in the performance of duty. OWCP accepted the claim for left 

ankle sprain. On February 4, 2015 appellant underwent a posterior tibial tendon debridement and 

arthrodesis of the left lower extremity. She later underwent an incision, drainage, and hardware 

removal of the left foot on April 22, 2015.3 Appellant has not returned to work. 

Appellant, through counsel, filed a claim for disability (Form CA-7) for the period 

January 27 to March 6, 2015. She submitted hospital records relating to her February 4, 2015 

surgery in support of her claim. 

In a January 13, 2015 report, Dr. Ali Anaim, a podiatric surgeon, noted that appellant 

sustained an injury while working approximately one month prior and diagnosed calcaneofibular 

(ligament) ankle sprain, osteoarthrosis, tenosynovitis, and pain in the left ankle and foot. 

On February 9, 2015 Dr. Anaim noted that appellant was being treated for left foot and 

ankle pain due to a slip and fall. He reported that he had performed a subtalar joint arthrodesis on 

February 4, 2015. Dr. Anaim explained that, due to appellant’s previous arthrodesis and being a 

high risk surgery site with a high probability of nonunion, she was advised to start on a bone 

growth stimulator as soon as possible to promote healing at the fusion site. He prescribed a bone 

growth stimulator and recommended its authorization by OWCP in order to achieve bony union 

and avoid additional costly surgical intervention. 

In a February 25, 2015 report, Dr. Anaim saw appellant for a follow-up examination and 

found that x-rays revealed good fusion at the surgical site. He opined that she was totally disabled 

for work and advised that she continue with casting and avoid weight-bearing for three weeks. 

In a March 17, 2015 development letter, OWCP advised appellant that her claim for 

compensation for disability for the period January 27 to March 6, 2015 could not be processed 

because the medical evidence of record indicated that she was being treated for and claiming 

disability due to conditions that were not accepted under the current claim. It afforded her 30 days 

to submit additional medical evidence establishing how her diagnoses, surgeries, and disability

were causally related to the December 13, 2014 employment injury. 

In response, appellant submitted x-rays of the left foot and ankle dated February 25, 2015

demonstrating stable changes of subtalar joint arthrodesis and no new abnormalities. A March 19, 

2015 x-ray of the left foot revealed postsurgical changes in the hind foot and no acute bony 

 

3 OWCP did not authorize either of these procedures.
3

abnormality. An April 7, 2015 x-ray of the left ankle revealed status post subtalar joint arthrodesis 

and no significant interval change. 

Appellant, through counsel, filed additional claims for disability for the period March 7 to 

April 17, 2015. She further submitted physical therapy reports dated April 13 to 16, 2015 in 

support of her claim. 

In an April 30, 2015 letter, OWCP requested additional medical evidence establishing 

appellant’s disability for work during the period claimed and afforded her 30 days to respond to 

its inquiries. It noted that Dr. Anaim’s February 9, 2015 report indicated that the injury was due 

to a “slip and fall” which was discrepant with the accepted employment injury of walking through 

grass. OWCP requested a well-rationalized narrative report from a physician containing a 

complete and accurate factual and medical history supported by objective findings that explained 

how appellant’s diagnoses, surgeries, and disability were causally related to the December 13, 

2014 employment injury. 

By decision dated April 30, 2015, OWCP denied appellant’s claim for disability for the 

period January 27 through March 6, 2015 finding that the medical evidence of record was 

insufficient to support disability due to the employment injury. 

On May 18, 2015 counsel requested an oral hearing by a representative of OWCP’s Branch 

of Hearings and Review. Appellant submitted two February 4, 2015 x-rays of the left foot and 

ankle demonstrating two newly placed screws in the subtalar joint and a physical therapy report

dated June 16, 2015 in support of her claim. She also resubmitted hospital records dated 

February 4, 2015 relating to her previous surgery, including a report from Dr. Jocelyn Edathil, an 

internist, who indicated that appellant had a past medical history of asthma and a recent fall while 

at work. 

In a May 11, 2015 report, Dr. Anaim noted that appellant sustained a sprain of the left foot 

and ankle on grass on December 13, 2014 while delivering mail. He opined that her work injury 

caused her synovitis, extreme synovitis, and tenosynovitis of her tibialis posterior. Dr. Anaim 

noted that appellant underwent a surgical procedure when she was 14-years old for flatfoot: 

arthrodesis plus removal of accessory navicular. 

By decision dated June 29, 2015, OWCP denied appellant’s claim for disability for the 

period March 7 to April 17, 2015 finding that the medical evidence of record was insufficient to 

support disability due to the employment injury. 

On July 6, 2015 counsel requested an oral hearing by a representative of OWCP’s Branch 

of Hearings and Review. Appellant submitted progress reports dated February 18 through 

April 20, 2015 from Dr. Anaim who reiterated his diagnoses and medical opinions. In a March 19, 

2015 report, Dr. Anaim indicated that she was seen in 2012 for left ankle pain, unrelated to any 

work injury, and was given an injection. He noted that appellant subsequently sustained an injury 

while delivering mail at work that caused synovitis and unstable subtalar joint that lead to her 

fusion surgery. On March 30, 2015 Dr. Anaim noted that she never had a preexisting condition 

with her left foot and ankle, reiterating that she had a surgical procedure when she was a child for 

arthroereisis, but noting that she did very well postoperatively in both feet. He also reiterated that 
4

appellant was seen in 2012 for a minor injection of her left ankle, which was not employment 

related. 

Appellant’s disability claims were combined and a hearing was held before an OWCP 

hearing representative on September 11, 2015 via video conference. She provided testimony and 

the hearing representative held the case record open for 30 days for the submission of additional 

evidence. 

Subsequently, appellant submitted an October 16, 2015 report from Dr. Anaim who 

reiterated his diagnoses and recommended a return to physical therapy. She also submitted an 

April 20, 2015 x-ray of the left ankle demonstrating disuse osteoporosis in the foot and an 

August 19, 2015 x-ray of the left foot revealing subtalar joint arthrodesis with bony ankylosis, soft 

tissue swelling, and diffuse osteopenia. 

By decision dated December 9, 2015, OWCP’s hearing representative affirmed the prior 

decisions, finding the medical evidence of record insufficient to establish that appellant was 

disabled for the period January 27 to April 17, 2015 due to the accepted condition of left ankle 

sprain. The hearing representative further found that the medical evidence of record was 

insufficient to establish a causal relationship between appellant’s surgical procedures and 

additional diagnoses and the December 13, 2014 employment injury. 

Subsequently, appellant submitted progress reports dated November 20 and December 11, 

2015 from Dr. Anaim who noted that she was continuing with physical therapy and requested 

custom-molded orthotics and a cane for support. She also submitted a December 11, 2015 x-ray 

of the left foot demonstrating no acute fracture or dislocation, no evidence to suggestion 

complication from subtalar arthrodesis, and no significant ankle joint degenerative changes. 

OWCP referred appellant to Dr. Willie Thompson, a Board-certified orthopedic surgeon, 

for a second opinion evaluation to determine the nature and extent of her employment-related

condition. In his January 15, 2016 report, Dr. Thompson reviewed her medical history and a 

statement of accepted facts (SOAF). He found that physical examination of the left foot and ankle 

revealed mild diffuse swelling, as well as well-healed scars both medially and laterally at the left 

ankle. Appellant had 20 degrees of plantar flexion and 15 degrees of dorsiflexion. There was only 

minimal motion at the hind foot and some mild tenderness present. Appellant had complete 

numbness over the lateral three toes to the left foot and a noticeable limp with ambulation. 

Dr. Thompson reported that she was seven months post-op and continued with significant 

complaints related to the foot and ankle. He opined that appellant’s present complaints related to 

the December 13, 2014 employment injury and that she required additional treatment of her 

conditions. Dr. Thompson further opined that she had not yet reached maximum medical 

improvement and that her limitations due to the work injury were not due to a prior or preexisting 

condition. He advised that appellant was capable of returning to work in a sedentary capacity with 

the following restrictions: walking, standing, lifting, and squatting up to two hours per day. 

In a January 18, 2016 report, Dr. Anaim found that appellant was improving and released 

her to full-duty work in one month. On February 11, 2016 he recommended a Provant Therapy 

System twice a day for 30 minutes daily on her left ankle. 
5

In a February 17, 2016 letter, OWCP requested clarification from Dr. Thompson regarding 

his second opinion as to the nature and extent of appellant’s work-related conditions based on the 

SOAF. It stated that it was unclear whether he utilized the SOAF as a framework to provide his 

medical opinion on whether her surgeries were appropriate and necessary due to the accepted work 

injury. OWCP asked Dr. Thompson to specifically address how appellant’s preexisting conditions 

and current disability from work, resulting from surgeries which had not been authorized by 

OWCP, were caused or aggravated by the December 13, 2014 employment injury. 

In a March 10, 2016 addendum report, Dr. Thompson advised that he had no opinion as to 

whether or not the surgical procedures performed on appellant’s foot and ankle related to the 

December 13, 2014 employment injury because there was inadequate information in the medical 

evidence of record. He noted that the surgeries were performed by a podiatrist and the history she 

provided was that these procedures were related to the December 13, 2014 work injury, but at no 

time did he or the podiatrist specifically indicate as to whether these surgeries were related to her

employment. Dr. Thompson further opined that it was reasonable to accept that appellant’s 

preexisting conditions of osteoarthritis and synovitis of the subtalar joint were aggravated by the 

December 13, 2014 work injury, but would have been temporary and resolved within a period of 

three to four weeks. 

On May 6, 2016 counsel requested reconsideration and submitted a May 3, 2016 report 

from Dr. Anaim who noted that appellant had been treated for her left foot and ankle condition 

since she was 11-years old and underwent excision of accessory bone at the insertion of the tibialis 

posterior when she was 12-years old, as well as suspension of her arch. He noted that she had a 

successful procedure on both right and left sides. Dr. Anaim indicated that appellant had multiple 

positions at work where she did her duties uneventfully without any problems until December 13, 

2014 when she suffered an injury with disruption of some ligaments and a partial tear of her tibialis 

posterior while walking on an uneven surface of grass to deliver mail. He opined that she could 

not heal her injury due to the disruption of her ligaments surrounding the joint and the aggravation 

of a previous history of a surgical procedure on her left foot. Dr. Anaim concluded that appellant 

had a completely healed surgical procedure when she was 12-years old, followed by multiple 

pregnancies as well as multiple jobs which she had performed uneventfully until December 13, 

2014 when she was forced to walk on an uneven surface, which caused some disruption of her 

ligaments surrounding the joint which in turn caused instability of her subtalar joint and a partial 

tear of her tibialis posterior requiring surgical correction and fusion of her subtalar joint. Appellant 

further submitted progress reports dated March 7 through June 28, 2016 from Dr. Anaim who 

reiterated his diagnoses and medical opinions. 

By decision dated August 4, 2016, OWCP denied modification of its prior decision relying 

upon Dr. Thompson’s second opinion reports dated January 15 and March 10, 2016. 

LEGAL PRECEDENT

Section 8102(a) of FECA4sets forth the basis upon which an employee is eligible for 

compensation benefits. That section provides: “The United States shall pay compensation as 

 

4 5 U.S.C. § 8102(a).
6

specified by this subchapter for the disability or death of an employee resulting from personal 

injury sustained while in the performance of his duty....” In general the term “disability” under 

FECA means “incapacity, because of an employment injury, to earn the wages the employee was 

receiving at the time of injury.”

5

 This meaning, for brevity, is expressed as disability for work.6 

For each period of disability claimed, the employee has the burden of proving that he or she was 

disabled for work as a result of the accepted employment injury.7 Whether a particular injury 

caused an employee to be disabled for employment and the duration of that disability are medical 

issues which must be proved by the preponderance of the reliable probative and substantial medical 

evidence.8

Disability is not synonymous with physical impairment, which may or may not result in an 

incapacity to earn wages. An employee who has a physical impairment causally related to his or 

her federal employment, but who nonetheless has the capacity to earn the wages he or she was 

receiving at the time of injury, has no disability as that term is used under FECA, and is not entitled 

to compensation for loss of wage-earning capacity. The Board will not require OWCP to pay 

compensation for disability in the absence of any medical evidence directly addressing the 

particular period of disability for which compensation is claimed. To do so would essentially 

allow employees to self-certify their disability and entitlement to compensation.9

ANALYSIS

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

OWCP referred appellant together with a SOAF and the medical evidence of record to

Dr. Thompson for second opinion examination to determine the nature and extent of her accepted 

conditions. In his January 15, 2016 report, Dr. Thompson noted that she continued with significant 

complaints related to her left foot and ankle. He opined that appellant’s conditions were causally

related to the December 13, 2014 employment injury and required additional treatment. 

Dr. Thompson further opined that she had not yet reached maximum medical improvement and 

her limitations due to the work injury were not due to a prior or preexisting condition. He advised 

that appellant was capable of returning to work in a sedentary capacity with restrictions.

By letter dated February 17, 2016, OWCP requested clarification from Dr. Thompson 

regarding his second opinion, finding that it was unclear whether he utilized the SOAF as a 

framework to provide his medical opinion on whether appellant’s surgeries were appropriate and 

necessary due to the accepted work injury. It asked him to specifically address how her preexisting 

 

5 20 C.F.R. § 10.5(f); see also William H. Kong, 53 ECAB 394 (2002).

6 See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

7 See William A. Archer, 55 ECAB 674 (2004).

8 See Fereidoon Kharabi, 52 ECAB 291-92 (2001).

9

Id.
7

conditions and current disability from work, resulting from surgeries which had not been 

authorized by OWCP, were caused or aggravated by the December 13, 2014 employment injury.

Based on a review of Dr. Thompson’s March 10, 2016 addendum report, the Board finds 

that he provided seemingly contradictory answers and failed to fully explain the nature and extent 

of appellant’s accepted conditions and related disability and was thus equivocal in nature. 

Dr. Thompson noted that he had no opinion as to whether or not the surgical procedures performed 

on her left foot and ankle were related to the December 13, 2014 employment injury. He further 

opined that it was reasonable to accept that appellant’s preexisting conditions of osteoarthritis and 

synovitis of the subtalar joint were aggravated by the December 13, 2014 work injury, but would 

have been temporary and resolved within a period of three to four weeks. The Board finds that

Dr. Thompson failed to address OWCP’s question regarding appellant’s surgery-related disability. 

The Board further finds that Dr. Thompson’s opinion regarding her preexisting conditions is 

speculative and equivocal in nature.10 A physician’s opinion on causal relationship must be based 

on a complete factual and medical background and must be supported by medical rationale.11 

Under the circumstances, additional clarification of these medical issues are necessary.12 Once 

OWCP undertakes development of the record, it must do a complete job in procuring medical 

evidence that will resolve the relevant issues in the case.13

It is well established that, proceedings under FECA are not adversarial in nature and while 

the claimant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence to see that justice is done.14 When OWCP selects 

a physician for an opinion on causal relationship, it has an obligation to secure, if necessary, 

clarification of the physician’s report and to have a proper evaluation made.15 Because it referred 

appellant to Dr. Thompson, OWCP had the responsibility to obtain a report to resolve the issue of 

whether appellant was disabled for the period January 27 to April 17, 2015 causally related to the

employment injury. As Dr. Thompson failed to provide a consistent sufficient response after being 

asked for clarification, OWCP should schedule a second opinion examination with a new 

physician.16 

On remand OWCP shall refer appellant to a new second opinion physician to address

whether her claimed disability for the period January 27 to April 17, 2015 is causally related to 

 

10 Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A. Kelley, 

55 ECAB 206 (2004).

11 Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12 See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 

3.500.3f(2) (July 2011). 

13 Richard F. Williams, 55 ECAB 343, 346 (2004).

14 See Phillip L. Barnes, 55 ECAB 426 (2004).

15 See W.C., Docket No. 14-0633 (issued June 19, 2014); S.E., Docket 08-2243 (issued July 20, 2009).

16 See E.B., Docket No. 17-0795 (issued January 18, 2018); supra note12 at Part 2 -- Claims, Developing and 

Evaluating Medical Evidence, Chapter 2.810.9(j) (issued September 2010 and June 2015).
8

her December 13, 2014 employment injury and whether the acceptance of her claim should be 

expanded to include any additional conditions.17 After it has developed the medical record 

consistent with the above-noted directive, it shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 4, 2016 decision of the Office of 

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

consistent with this decision.

Issued: June 15, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

17 When a medical evaluation is made at its request, OWCP has the responsibility of obtaining a proper evaluation. 

See Leonard Gray, 25 ECAB 147, 151 (1974).