United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.E., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Fort Dix, NJ, Employer

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Docket No. 17-0564

Issued: March 5, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 January 18, 2017 appellant filed a timely appeal from an August 31, 2016 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.2

ISSUES

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

wage-loss compensation and medical benefits, effective September 28, 2015, as he no longer had 

residuals or disability due to his accepted June 28, 2005 employment injury; and (2) whether 

 

1 5 U.S.C. § 8101 et seq.

2 Appellant timely requested oral argument before the Board. By order dated May 9, 2017, the Board exercised 

its discretion and denied oral argument, finding that appellant’s arguments on appeal could adequately be addressed 

in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 17-0564 

(issued May 9, 2017). 
2

appellant has met his burden of proof to establish continuing disability after September 28, 2015, 

causally related to the accepted June 28, 2005 employment injury.

FACTUAL HISTORY

On June 29, 2005 appellant, then a 39-year-old electrical worker supervisor, filed a 

traumatic injury claim (Form CA-1) alleging that, on June 28, 2005, he twisted his left foot and 

ankle while working on a ladder. He stopped work. OWCP accepted appellant’s claim for 

tenosynovitis of the left ankle and foot. It paid him wage-loss compensation on the periodic 

rolls, effective December 19, 2005. 

OWCP proposed to terminate appellant’s wage-loss compensation and medical benefits 

on June 14, 2006 because he no longer suffered residuals or disability as a result of his June 28, 

2005 employment injury. By decision dated August 1, 2006, it finalized the termination of 

appellant’s wage-loss compensation and medical benefits, effective that date. OWCP found that 

the weight of the medical evidence rested with the April 25, 2006 report of Dr. Zohar Stark, a 

Board-certified orthopedic surgeon and second opinion examiner, who determined that appellant 

no longer suffered residuals or disability causally related to his June 28, 2005 employment 

injury.

Appellant retired from federal employment due to disability on August 6, 2006. He 

elected to receive Office of Personnel Management (OPM) disability retirement benefits 

effective August 6, 2006. 

On August 15, 2006 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative, which was held on December 13, 2006. By decision dated 

March 2, 2007, the hearing representative set aside the August 1, 2006 termination decision due 

to an unresolved conflict in medical opinion evidence. He remanded the case for OWCP to 

arrange an impartial medical examination in order to resolve a conflict in medical opinion 

regarding whether appellant continued to suffer residuals causally related to the June 28, 2005 

employment injury and whether OWCP should authorize left foot surgery in order to treat 

appellant’s accepted employment injury.

OWCP referred appellant’s claim to Dr. David A. Bundens, a Board-certified orthopedic 

surgeon, for an impartial medical examination. In a May 18, 2007 report, Dr. Bundens reviewed 

appellant’s history and provided physical examination findings. He opined that appellant 

continued to have persistent symptoms and remained disabled from work due to his June 28, 

2005 employment injury. Dr. Bundens further reported that appellant also sustained a severe 

sprain to his left subtalar joint.

On June 21, 2007 OWCP expanded the acceptance of appellant’s claim to include severe 

sprain of the left subtalar joint. 

Appellant began to receive medical treatment from Dr. Andrew J. Elliott, a Boardcertified orthopedic surgeon. In a November 11, 2008 report, Dr. Elliott related appellant’s 

history of injury and provided physical examination findings. He also indicated that x-ray 

examination findings of appellant’s left foot were consistent with a moderate flatfoot. Dr. Elliott 
3

diagnosed subtalar pathology, possibly likely to sprain type of injury coupled with pes planus. 

He recommended a new MRI scan to evaluate the subtalar region and determine whether 

appellant had degenerative arthrosis. 

On April 9, 2011 appellant filed a notice of recurrence (Form CA-2a) of his June 28, 

2005 employment injury alleging that he never returned to work and that his disability continued 

through the present. He explained that he retired due to disability on August 6, 2006, but 

continued to receive medical treatment for his June 28, 2005 employment injury. Appellant 

noted that he now required surgery on April 29, 2011. He also filed claims for wage-loss 

compensation (CA-7 forms) beginning August 5, 2006. 

In an April 4, 2011 report, Dr. Scott Ellis, a general surgeon, related appellant’s 

complaints of pain, particularly over the subtalar joint area dating back to a job-related injury 

five years earlier. Upon physical examination of appellant’s left foot and ankle, he reported 

slight hindfoot valgus. Deep tendon reflexes were 2+. Dr. Ellis reviewed appellant’s old scans 

and images and opined that appellant had evidence of some posterior subtalar joint arthrosis. He 

believed that appellant’s pain was coming from the subtalar joint and recommended subtalar 

fusion with a partial tibial bone graft surgery. 

An April 4, 2011 left foot and ankle radiology examination report by Dr. Carolyn Sofka, 

a Board-certified radiologist, showed pes planus with heel spur and mild hallux valgus and 

bunion formation.

OWCP referred appellant’s case to Dr. Kenneth P. Heist, a Board-certified orthopedic 

surgeon and second opinion physician, to determine whether appellant continued to suffer 

residuals and disability causally related to his June 28, 2005 employment injury and whether 

OWCP should authorize left foot and ankle surgery in order to treat appellant’s accepted injury. 

In an August 3, 2011 report, Dr. Heist reviewed appellant’s history and related his complaints of 

constant pain across the ankle joint of his left foot. He provided physical examination findings 

and diagnosed post-traumatic osteochondral defect, lateral talar bone on the left, and 

degenerative joint disease, subtalar joint, of the left ankle. Dr. Heist recommended that 

appellant’s claim be expanded to include the degenerative condition and that OWCP authorize 

surgical fusion surgery. He opined that appellant should be able to return to full duty after 

surgery.

In June 2012 appellant elected to receive FECA benefits in lieu of Office of Personnel 

Management (OPM) disability retirement benefits effective August 6, 2006. OWCP paid wageloss compensation benefits retroactive to August 6, 2006 and placed appellant on the periodic 

rolls, effective June 9, 2013.

Appellant submitted a June 27, 2013 report by Dr. Ellis who related appellant’s 

complaints of continued left foot pain on the lateral aspect. Upon physical examination of 

appellant’s left foot, Dr. Ellis reported pain in the sinus tarsi and minor pain around the area of 

the ankle. Deep tendon reflexes and pedal pulses were 2+. Sensation examination was intact. 

Dr. Ellis noted that x-ray examination showed some joint space narrowing of the subtalar joint 

and some mild arthritis. He diagnosed primary localized osteoarthrosis of the left ankle and foot. 
4

Dr. Ellis reported that appellant had tried everything in terms of conservative treatment and 

opined that left foot fusion surgery was needed. 

In a June 27, 2013 left ankle and foot MRI scan report, Dr. Sofka noted mild flat foot 

deformity with midfoot osteoarthritis and heel spur. 

OWCP referred appellant to Dr. Stanley R. Askin, a Board-certified orthopedic surgeon, 

for another second opinion examination to determine whether appellant continued to suffer 

residuals or disability causally related to his June 28, 2005 employment injury. In a July 5, 2013 

report, Dr. Askin described the June 28, 2005 employment injury and provided physical 

examination findings. He opined that appellant no longer had tenosynovitis of the left foot and 

ankle and no current disability as a result of the June 28, 2005 employment injury.

Dr. Ellis provided a July 11, 2013 letter in which he related that appellant sustained a 

work injury in approximately 2006 and had experienced chronic problems in his left foot and 

ankle since the injury. He noted that he first examined appellant on June 25, 2009 and observed 

that appellant’s foot had collapsed over time and he had extreme pain. Dr. Ellis reviewed the 

medical treatment he provided for appellant and recommended left foot fusion surgery. He 

explained that appellant had debilitating pain dating back to the accident at work. Dr. Ellis 

opined that the employment injury did damage to the posterior subtalar joint, which caused 

appellant’s pain and likely caused the osteochondral defect in his ankle. He reported that the 

longer appellant’s surgery was delayed, the more pain and instability appellant would have. 

Dr. Ellis opined that the problem with appellant’s foot and subtalar joint was due to the injury as 

appellant was not symptomatic before the employment injury. He indicated that appellant would 

need, at least, modified work duty. Dr. Ellis diagnosed primary localized osteoarthrosis of the 

left ankle and foot. 

In November 2014, OWCP referred appellant’s claim to Dr. Donald Heitman, a Boardcertified orthopedic surgeon, for another second opinion examination to determine whether he 

continued to suffer residuals and remained disabled from work due to his June 28, 2005 

employment injury. In a December 3, 2014 report, Dr. Heitman described the June 28, 2005 

employment injury and reviewed appellant’s prior medical treatment. Upon physical 

examination of appellant’s left foot, he noted obvious pes planus deformity bilaterally, slightly 

worse on the left than right. Dr. Heitman also observed extreme tenderness to palpation over the 

sinus tarsi and over the distal fibula laterally. He indicated that appellant was able to perform a 

heel rise on the right side, but was completely unable to do so on the left side. Dr. Heitman 

reported decreased strength against resisted inversion, eversion, and plantar flexion. He noted

decreased range of motion findings. 

Dr. Heitman reported that there were objective findings of obvious pes planus deformity 

bilaterally, slightly worse on the left than right. He explained that appellant had gone on to 

develop a contusion to the anterolateral talus and a mild-to-moderate degree of subtalar arthrosis 

and mild tenosynovitis of his posterior tibialis tendon. Dr. Heitman opined that appellant 

presently suffered from residuals of the accepted condition. He noted that appellant had 

decreased ambulation and chronic pain when walking at all times of the day. Dr. Heitman 

reported that appellant’s condition would not resolve spontaneously without further diagnostic 

work-ups and likely surgery. He indicated that appellant was not currently able to perform the 
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full duties of his employment and that this disability was due to the accepted June 28, 2005 work

injury. Dr. Heitman noted that appellant would likely have permanent restrictions to work 

capacity, regardless of treatment rendered, but that treatment would improve his pain. He opined 

that appellant could work in a light-duty capacity that did not involve prolonged standing for 

more than a few minutes at a time. Dr. Heitman further recommended that appellant’s claim be 

expanded to include tibialis tendinitis and flatfoot deformity. He reported that appellant likely 

required surgery. Dr. Heitman recommended an updated MRI scan of the left ankle to see the 

degree of progression of his adult-acquired flatfoot deformity.

In a January 5, 2015 left ankle MRI scan report, Dr. Vince Jarrett, an osteopath 

specializing in diagnostic radiology, noted mild soft tissue edema in the region of the sinus tarsi 

and mild degenerative changes of the second and third tarsometatarsal joints. He reported no 

ligamentous or tendinous injury. 

Dr. Heitman provided an addendum report dated January 7, 2015. He reviewed the 

January 5, 2015 left ankle MRI scan report and related that appellant did not have any objective 

findings of the accepted conditions. Dr. Heitman noted that the MRI scan showed only 

degenerative changes. He explained that it appeared that appellant’s physical examination did 

not correlate with the recent MRI scan findings, which showed only degenerative changes. 

Dr. Heitman reported that appellant was not disabled from work due to his accepted conditions 

and that the proposed surgery was not appropriate or causally related to the June 28, 2005 

employment injury. He noted that there was no other pathology shown on the MRI scan, which 

prohibited this claimant from returning to full duty. Dr. Heitman indicated that appellant had 

reached maximum medical improvement , but he was unable to determine approximately when it 

had occurred since it had been almost 10 years since appellant’s work injury.

In a February 13, 2015 statement, appellant alleged that Dr. Heitman’s December 3, 2014 

and January 7, 2015 reports were in conflict and that Dr. Heitman’s revised report lacked any 

medical explanation. He asserted that this was the second occasion that a conflict of medical 

opinion existed in his claim with his treating physician, Dr. Ellis. Appellant noted that a similar 

conflict existed between Dr. Askin’s second opinion report and Dr. Ellis’ reports. He requested 

that OWCP schedule an impartial medical examination to resolve the conflicting medical 

opinions and also requested that he participate in the selection of the impartial medical specialist. 

Appellant alleged that these conflicts were directly delaying the necessary medical surgical 

procedures and his recovery.

On February 22, 2015 appellant elected to receive OPM retirement benefits in lieu of 

FECA benefits. He noted that he still wanted to pursue FECA benefits because his treating 

physician’s requests included surgery, recovery, and a schedule award. 

OWCP terminated appellant’s wage-loss compensation benefits, effective 

February 22, 2015. 

In a March 6, 2015 letter, counsel noted that in his December 13, 2014 second opinion

report, Dr. Heitman requested that appellant’s claim be expanded to include tibialis tendinitis and 

flatfoot deformity and recommended surgery. He provided an excerpt of Dr. Heitman’s report. 

Counsel alleged that appellant’s claim should be expanded to accept left foot tenosynovitis, left 
6

systematic sclerosis, and left tibialis tendinitis. He further requested OWCP authorize left foot 

and ankle surgery for appellant.

OWCP referred appellant to Dr. Gregory Maslow, for an impartial medical examination, 

in order to resolve the conflict in medical opinion evidence between Dr. Ellis and Dr. Heitman 

regarding whether appellant continued to suffer residuals of his June 28, 2005 employment 

injury, whether he remained disabled from work as a result of the accepted conditions, and 

whether OWCP should authorize left foot and ankle surgery. 

In a May 27, 2015 report, Dr. Maslow described the June 28, 2005 employment injury

and noted that appellant’s claim was accepted for left ankle tenosynovitis. He also noted that 

appellant had sustained a sprain of the left ankle as a result of the accepted employment injury. 

Upon physical examination of appellant’s lower extremities, Dr. Maslow noted bilateral pes 

planus. He reported that appellant’s uninjured right side had no tenderness about the foot or 

ankle and normal range of motion and stability. Examination of appellant’s left ankle showed 

normal range of motion. Dr. Maslow also observed no tenderness at the Achilles, no swelling 

measurable of the circum malleolar, and no tenderness over the posterior tibialis tendon and over 

the peroneal tendon around the ankle. He reported some tenderness over the lateral ankle and 

over the subtalar joint area on the lateral side of the ankle. Dr. Maslow indicated that 

neurological examination showed intact reflexes. Sensation and strength examinations were 

normal throughout. 

Dr. Maslow reported that appellant’s complaints of left ankle pain were not credible 

based on the most recent MRI scan and various diagnostic studies. He also noted that upon 

examination, appellant had normal gait and was not using a supportive cane or crutch. 

Dr. Maslow opined that there was no objective evidence that appellant could not return to 

employment. He indicated that given appellant’s bilateral pes planus and mild degenerative 

changes in the feet some 10 years after the employment injury, it was reasonable for him to have 

a work capacity evaluation. Dr. Maslow concluded that there was no evidence of the accepted 

work-related condition of tenosynovitis and no medical reason for continued total disability. He

also reported that surgical intervention would be a mistake. 

In a work capacity evaluation form (OWCP-5c), Dr. Maslow checked a box marked

“yes” indicating that appellant was capable of performing his employment with no restrictions. 

On August 25, 2015 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits. It found that the special weight of medical evidence rested with

Dr. Maslow’s May 27, 2015 impartial medical report, which found that there were no objective 

findings to demonstrate that appellant continued to suffer residuals or disability causally related 

to the June 28, 2005 employment injury. Appellant was advised by OWCP that he had 30 days 

to submit additional evidence or argument if he disagreed with the decision. 

No additional documentation was received by OWCP.

By decision dated September 28, 2015, OWCP finalized the termination of appellant’s 

wage-loss compensation and medical benefits. It found that the special weight of medical 

evidence rested with the impartial medical examiner, Dr. Maslow, who determined in his 
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May 27, 2015 report that appellant’s work-related left ankle and foot injury had ceased and that 

he could return to work.

On October 5, 2015 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. 

Appellant submitted a September 24, 2015 examination and narrative report by Dr. Ellis 

who related that appellant complained of severe pain in multiple areas on his left foot. Upon 

physical examination of appellant’s left ankle and foot, he observed slight hindfoot valgus, 

slightly worse on the other side, and not highly abducted. Dr. Ellis reported that appellant could 

not do a single heel raise on the left side in large part just due to the more general pain. Deep 

tendon reflexes were positive. Dr. Ellis indicated that appellant’s sensation examination was 

intact and range of motion examination was somewhat reduced. He noted that a left ankle and 

foot MRI scan showed some mild degenerative changes at the posterior subtalar joint. Dr. Ellis 

reported: “it is amazing that such an MRI [scan] dramatically changed Dr. Heitman’s opinions 

in a very short period of time.” He explained that an MRI scan is one small tool and should not 

change an overall opinion. Dr. Ellis requested a repeat MRI scan to look at structures, including 

the subtalar joint, lateral ankle ligaments, and personeal tendons. He also recommended a 

selected guided injection under ultrasound in the subtalar joint of the left ankle in order to 

determine whether appellant could expect pain relief from the fusion surgery.

Dr. Ellis opined that appellant had continued pain and problems since the June 28, 2005 

employment injury. He indicated that appellant’s surgery was still very likely to help him 

because a subtalar fusion and heel slide would neutralize his heel in a neutral position. Dr. Ellis

diagnosed primary localized osteoarthritis of the ankle and foot. 

In a September 24, 2015 left ankle and foot MRI scan report, Dr. Sofka noted mild 

bunion formation, bipartic medial hallux sesamoid, heel spur, and mild midfoot osteoarthritis. 

He diagnosed bunion formation, heel spur, and mild midfoot osteoarthritis. 

Dr. Ellis provided an October 6, 2015 note and related that he spoke at length with 

appellant on the telephone about his complaints of persistent pain. He believed that the pain was 

most likely lateral impingement. Dr. Ellis requested a repeat subtalar injection to confirm that 

appellant’s impingement was coming from the subtalar joint and another left ankle and foot MRI 

scan of better quality. He explained that these diagnostic studies would guide his surgical 

decision making at the time of surgery. 

In a January 21, 2016 left ankle MRI scan report, Dr. Sofka noted pes planovalgus 

deformity with findings consistent with lateral subtalar impingement, mild degenerative pattern 

of cartilage wear in the ankle and posterior subtalar joints with more moderate chondral wear in 

the talonavicular joint, moderate insertional degeneration of the posterior tibial tendon with 

thickening and scar remodeling of the superomedial fibers of the spring ligament, and mild-tomoderate diffuse tendinosis of the posterior tibial tendon. He diagnosed primary osteoarthritis of 

the left ankle and foot. 

On June 16, 2016 a telephone hearing was held. Appellant expressed his disagreements 

with Dr. Maslow’s May 27, 2015 impartial medical report. He alleged that Dr. Ellis’ most recent 
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narrative medical report and left ankle MRI scan report showed that he continued to suffer 

residuals and remained disabled as a result of his June 28, 2005 employment injury. Appellant 

noted that his surgery was cancelled three times due to second opinion examinations and his case 

had not yet been resolved after 11 years. He requested that his wage-loss compensation and 

medical benefits be reinstated so he could receive proper medical treatment for his accepted 

medical conditions.

By decision dated August 31, 2016, an OWCP hearing representative affirmed the 

September 28, 2015 decision, which terminated appellant’s wage-loss compensation and medical 

benefits. He found that the weight of medical evidence rested with the medical opinion of

Dr. Maslow,

3

an OWCP second opinion examiner, who determined in a May 27, 2015 report that 

there was no objective evidence to support that appellant continued to suffer residuals or 

disability causally related to the June 28, 2005 employment injury. 

LEGAL PRECEDENT -- ISSUE 1

According to FECA, once OWCP accepts a claim and pays compensation, it has the 

burden of justifying termination or modification of an employee’s benefits.4 OWCP may not 

terminate compensation without establishing that the disability had ceased or that it was no 

longer related to the employment.5 Its burden of proof includes the necessity of furnishing 

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

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

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

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

require further medical treatment.8 

ANALYSIS -- ISSUE 1

OWCP accepted that appellant sustained left foot and ankle tenosynovitis and severe 

sprain of the subtalar joint as a result of a June 28, 2005 employment injury. Appellant received

wage-loss compensation and medical benefits until February 22, 2015. By decision dated 

September 28, 2015, OWCP terminated his wage-loss compensation and medical benefits based 

 

3 The hearing representative also noted that although OWCP referred to Dr. Maslow as a referee medical 

examiner, he was in fact a second opinion physician as a conflict in medical opinion evidence did not exist between 

an OWCP referral physician and the claimant’s physician. See 5 U.S.C. § 8123(a). The hearing representative

related that conflicting opinions from the same physician (in this case Dr. Heitman) were insufficient to cause a 

conflict in medical opinion within the meaning of FECA. 

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

5

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 

ECAB 541 (1986).

6 See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7 T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued 

August 5, 2009).

8

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., id.
9

on the opinion of Dr. Maslow, the second opinion examiner, who concluded in a May 27, 2015 

report that appellant no longer suffered residuals of his June 28, 2005 employment injury and 

was capable of returning to work. The Board finds that OWCP met its burden of proof to 

terminate appellant’s wage-loss compensation and medical benefits, effective September 28, 

2015, as the medical evidence of record established that he did not have any residuals or 

disability causally related to the June 28, 2005 employment injury.

In his May 27, 2015 report, Dr. Maslow described the June 28, 2005 employment injury

and related appellant’s complaints of continued pain of the left ankle. Upon physical 

examination of appellant’s lower extremities, he noted bilateral pes planus. Dr. Maslow reported 

normal range of motion of appellant’s left ankle and no tenderness at the Achilles, no swelling, 

and no tenderness over the posterior tibialis tendon and over the peroneal tendon. Neurological 

examination showed intact reflexes. Sensation and strength examinations were normal 

throughout. Dr. Maslow opined that appellant’s complaints of left ankle pain were not credible 

based on the most recent MRI scan and various diagnostic studies. He also noted that upon 

examination, appellant had normal gait and was not using a supportive cane or crutch. 

Dr. Maslow opined that there was no objective evidence that appellant could not return to 

employment. He concluded that there was no objective evidence of appellant’s June 28, 2005 

employment injury and no medical reason for continued total disability. 

The Board finds that OWCP properly accorded the weight of medical opinion with

Dr. Maslow who reported that appellant no longer had residuals or disability as a result of the 

June 28, 2005 employment injury. Dr. Maslow based his opinion on a proper factual and 

medical history and physical examination findings and he provided medical rationale for his 

opinion that appellant did not have any current residual injury or work limitations. He reported 

essentially normal objective findings on physical examination, except for pes planus, and 

diagnostic testing. Dr. Maslow related that he found no objective signs or clinical findings to 

demonstrate any residuals related to his accepted left foot and ankle tenosynovitis and severe 

sprain injury. 

The Board notes that Dr. Maslow’s opinion that appellant no longer had residuals of the 

accepted conditions was supported by the second opinion reports of Dr. Askin and Dr. Heitman. 

Dr. Askin opined on July 5, 2013 that appellant no longer had tenosynovitis of the left foot and 

ankle, and was no longer disabled due to the accepted employment injury. Dr. Heitman 

explained in his January 7, 2015 report that appellant’s January 5, 2015 MRI scan of the left 

ankles showed only degenerative changes, and no objective findings of the accepted conditions. 

Because Dr. Maslow provided a well-rationalized opinion based on medical evidence 

regarding appellant’s June 28, 2005 employment injury, OWCP properly relied on his May 27, 

2015 second opinion report in terminating appellant’s wage-loss compensation and medical 

benefits for the June 28, 2005 employment injury.9

The Board finds that the other medical evidence of record temporally pertinent to the 

termination of appellant’s compensation benefits on September 28, 2015 is of limited probative

value and insufficient to create a conflict with the report from Dr. Maslow. 

 

9 See A.F., Docket No. 16-0393 (issued June 24, 2016).
10

After June 2012 when appellant elected to receive FECA benefits in lieu of OPM 

disability retirement benefits, OWCP paid wage-loss compensation benefits retroactive to 

August 6, 2006 and placed appellant on the periodic rolls, effective June 9, 2013. 

OWCP thereafter received continuing reports from appellant’s treating physician,

Dr. Ellis. Dr. Ellis, however, offered no opinion as to whether appellant had residuals of the

accepted conditions of left ankle and foot tenosynovitis, and severe sprain of the left subtalar 

joint. In his report dated June 27, 2013, he provided physical examination findings and 

diagnosed primary localized osteoarthritis of the left ankle and foot. Dr. Ellis offered no opinion 

regarding the cause of the appellant’s left ankle and foot osteoarthritis. It is appellant’s burden 

of proof to establish that an additional diagnosed medical condition was causally related to the 

accepted employment injury.10 Without a medical opinion establishing causal relationship 

between the newly diagnosed condition and the accepted employment injury, this report does not 

establish medical residuals resulting from either the accepted condition or from an additional 

employment-related condition.11

Dr. Ellis further explained in his July 11, 2013 report that he first examined appellant on 

June 25, 2009 for a “work injury in approximately 2006.” He related that the employment injury

damaged appellant’s posterior subtalar joint, which “likely” caused the osteochondral defect in 

appellant’s ankle. Dr. Ellis concluded that appellant’s “problem” with his foot and subtalar joint 

was due to the employment injury because he was not symptomatic prior to the employment 

injury. This report is of limited probative value for several reasons. The Board notes initially 

that appellant’s accepted employment injury occurred on June 28, 2005, not in 2006, Dr. Ellis’

opinion is therefore premised upon an incorrect history of injury.

12

 Furthermore, his opinion 

regarding causal relationship of the diagnosed left ankle osteochondral defect, which was not an 

accepted condition, is speculative and unrationalized. An opinion that an additionally diagnosed 

condition was “likely” causally related to a previous injury is speculative and does not provide 

conclusive evidence of continuing residuals.13 The Board has held that medical opinions that are 

speculative or equivocal in character have little probative value.14 Furthermore, Dr. Ellis’

opinion that appellant’s current foot and subtalar joint conditions were caused by the 

employment injury because he was not symptomatic prior to the injury lacks probative value. 

The Board has held that an opinion that a condition is causally related to an employment injury 

because the employee was asymptomatic before the injury is insufficient, without supporting 

rationale, to support causal relationship.15

 

10 See Y.L., Docket No. 14-1337 (issued March 27, 2015). 

11 Id. 

12 See Vernon R. Stewart, 5 ECAB 276, 280 (1953) (where the Board held that medical opinions based on 

histories that do not adequately reflect the basic facts are of little probative value in establishing a claim).

13 See J.C., Docket No. 17-0089 (issued July 18, 2017). 

14 See L.R. (E.R.), 58 ECAB 369 (2007); Kathy A. Kelley, 55 ECAB 206 (2004).

15 See P.L., Docket No. 17-0082 (issued April 13, 2017). 
11

Appellant also submitted several diagnostic test results to the record. Dr. Sofka 

interpreted a June 27, 2013 left ankle and foot MRI scan and noted mild flatfoot deformity, 

midfoot osteoarthritis, and heel spur. Dr. Jarrett interpreted a January 5, 2015 left ankle MRI 

scan, noting mild tissue edema of the sinus tarsi and mild degenerative changes of the second 

and third tarsometarsal joints. These diagnostic tests did not make findings relative to the 

accepted employment conditions. The Board has found that diagnostic studies which offer no 

findings regarding the accepted conditions, and provide no opinion regarding the cause of the 

diagnosed conditions are of limited probative value.16

On appeal appellant alleges that his medical benefits were unfairly terminated because 

OWCP did not provide an impartial medical examination to resolve the conflict in medical 

evidence. As explained, however, in OWCP’s August 31, 2016 decision, a conflict in medical 

evidence did not exist in this case because conflicting opinions from the same physician are 

insufficient to cause a conflict in medical opinion within the meaning of FECA.17 As appellant 

has not submitted probative medical evidence from a treating physician regarding whether he 

continued to suffer residuals or disability causally related to his June 28, 2005 employment 

injury, OWCP was not required to refer his claim to an impartial medical examiner.18 Appellant 

also asserted that OWCP should not have relied on Dr. Maslow’s May 25, 2017 report because 

he is not a foot specialist. As explained above, however, Dr. Maslow provided a wellrationalized opinion based on medical evidence explaining how appellant no longer suffered 

residuals or disability as a result of his June 28, 2005 employment injury.

LEGAL PRECEDENT -- ISSUE 2

After OWCP has met its burden of proof to terminate compensation benefits, the burden 

for reinstating compensation benefits shifts to appellant to establish that he or she had continuing 

disability causally related to the accepted employment injury.19 To establish causal relationship 

between the condition as well as any attendant disability claimed and the employment injury, an 

employee must submit rationalized medical evidence based on a complete medical and factual 

background, supporting such causal relationship.20 Causal relationship is a medical issue and the 

medical evidence required to establish causal relationship is rationalized medical evidence.21

 

16 See T.H., Docket No. 17-0025 (issued July 6, 2017). 

17 John H. Taylor, 40 ECAB 1228 (1989).

18 The Board has found that for a conflict to arise the opposing physicians’ viewpoints must be of virtually equal 

weight and rationale.” Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

19 Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001); George Servetas, 43 ECAB 

424, 430 (1992).

20 Manuel Gill, 52 ECAB 282 (2001).

21 Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 
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ANALYSIS -- ISSUE 2

Following OWCP’s September 28, 2015 decision terminating appellant’s wage-loss 

compensation and medical benefits, effective September 28, 2015, appellant submitted additional 

reports from Dr. Ellis and diagnostic test results. The Board finds that the additional medical 

evidence is of diminished probative value to establish that appellant had any remaining workrelated residuals or disability after September 28, 2015. Therefore, the Board finds that appellant 

has not met his burden of proof to establish disability or need for medical care due to his June 28, 

2005 employment injury after September 28, 2015.

In his September 24, 2015 report, Dr. Ellis related appellant’s complaints of continued 

pain in multiple areas of his left foot. He reported slight hindfoot valgus upon examination of 

appellant’s left ankle and foot. Dr. Ellis noted that appellant could not do a single heel raise and 

deep tendon reflexes were positive. He indicated that a left ankle and foot MRI scan showed 

some mild degenerative changes at the posterior subtalar joint and requested another repeat MRI 

scan. Dr. Ellis opined that appellant had continued left ankle and foot pain and problems since 

the June 28, 2005 employment injury. He diagnosed primary localized osteoarthritis of the ankle 

and foot. In an October 6, 2015 note, Dr. Ellis noted that he spoke with appellant over the 

telephone about his complaints of persistent left ankle and foot pain. He requested additional 

diagnostic testing to confirm that appellant’s impingement was coming from the subtalar joint. 

The Board notes that although Dr. Ellis reported that appellant continued to experience problems 

and symptoms as a result of the June 28, 2005 employment injury, such generalized statements 

are unsupported by medical rationale explaining how appellant’s current symptoms and 

disability are causally related to the accepted employment injury.22 On the contrary, Dr. Ellis 

attributes appellant’s current symptoms to his localized osteoarthritis of the left ankle and foot, 

which is not an accepted condition. He failed to explain how appellant had continuing and 

disabling residuals of his accepted left foot and ankle tenosynovitis and severe sprain injury and 

required further medical treatment. The Board finds that Dr. Ellis’ reports are entitled to little 

probative value and are insufficient to meet appellant’s burden of proof to establish that he 

continued to have work-related disability as a result of his June 28, 2005 employment injury.23

Similarly, in a September 24, 2015 left ankle and foot MRI scan report, Dr. Sofka noted 

mild bunion formation, bipartic medial hallux sesamoid, heel spur, and mild midfoot 

osteoarthritis. In a January 21, 2016 left ankle MRI scan report, he also noted pes planovalgus 

deformity, mild degenerative pattern in the ankle and posterior subtalar joints, and mild-tomoderate diffuse tendinosis of the posterior tibial tendon. Dr. Sofka diagnosed primary 

osteoarthritis of the left ankle and foot. Although these diagnostic testing reports contain various 

diagnoses, none of them have an opinion on the cause of these conditions nor explain how these 

conditions caused or contributed to appellant’s inability to work. As previously explained the 

Board has found that diagnostic medical evidence that does not offer any opinion regarding the 

cause of an employee’s condition is of limited probative value on the issue of causal 

relationship.

24

 These reports, therefore, are insufficient to establish appellant’s claimed disability 

 

22 K.W., Docket No. 10-98 (issued September 10, 2010).

23 See O.L., Docket No. 16-0616 (issued October 24, 2016).

24 Willie M. Miller, 53 ECAB 697 (2002).
13

after September 28, 2015. Appellant did not meet his burden of proof to establish continuing 

residuals or disability related to the accepted June 28, 2005 employment injury after 

September 28, 2015.

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 OWCP properly terminated appellant’s wage-loss compensation and 

medical benefits, effective September 28, 2015, as he no longer had any residuals or disability 

causally related to the June 28, 2005 employment injury. The Board also finds that appellant has 

not met his burden of proof to establish continuing disability after September 28, 2015, causally 

related to the accepted employment injury.

ORDER

IT IS HEREBY ORDERED THAT the August 31, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 5, 2018

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