United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Racine, WI, Employer

__________________________________________

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Docket No. 18-0228

Issued: August 8, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 13, 2017 appellant filed a timely appeal from an August 1, 2017 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 merit decision of this case.2

ISSUE

The issue is whether OWCP abused its discretion by denying authorization for left lower 

extremity surgery.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the August 1, 2017 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

FACTUAL HISTORY

On June 9, 2002 appellant, then a 41-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that he developed bone spurs in the joint of his left foot as a result of 

prolonged walking while delivering mail. OWCP accepted his claim for capsulitis of the first and 

second metatarsal cuneiform joint of the left foot secondary to dorsal exostosis. Appellant did not 

stop work. 

Appellant was treated by Dr. John L. Bostanche, a podiatrist, on May 29 and 

September 24, 2002 for left foot pain. He reported walking on uneven hard surfaces throughout 

the day as a mail carrier when his foot became painful. Dr. Bostanche diagnosed resolving 

capsulitis of the first and second metatarsal cuneiform joint of the left foot secondary to dorsal 

exostosis and inflammation. He noted conservative treatment including orthotics, shoe changes,

and anti-inflammatories provided some improvement. Dr. Bostanche opined that the significant 

number of years on the job and required walking accelerated the deterioration of appellant’s foot 

structure producing deformities at the joint. He treated appellant from February 7, 2003 to 

October 12, 2005 for capsulitis of the first and second metatarsal cuneiform area of left foot. 

Dr. Bostanche advised that recent x-rays revealed further degenerative changes in the joint relative 

to prior x-rays. He diagnosed dorsal exostosis/capsulitis of the left foot and neuritis, dorsal nerve, 

secondary to dorsal exostosis of the left foot. Reports dated April 19, 2011 to October 28, 2014

noted follow up for capsulitis of the left first and second metatarsal joints and dorsal exostosis first 

metatarsocuneiform joint. Dr. Bostanche noted appellant’s condition remained stable.

In reports dated January 6 and 20, March 3 and April 28, 2015, Dr. Bostanche treated 

appellant for increased left foot pain. He noted that he had long-standing chronic pain in the left 

foot due to changes in the mid tarsal joints and a dorsal bone spur. Appellant reported having 

problems walking on ice and uneven ground and continued to reaggravate the left foot. 

Dr. Bostanche noted conservative treatment including anti-inflammatory medications, cortisone 

injections, and long-standing orthotics failed and that appellant’s condition was progressing. 

Findings on physical examination revealed pain on palpation of the first metatarsocuneiform 

navicular joint on the left, bony enlargements throughout the joint, pain on palpation of the plantar 

grade joint, and stiffness on range of motion. Dr. Bostanche noted that appellant had a plantar 

grade arch due to worsening joint destruction and he experienced increasing pain in the medial 

aspect of the foot, ankle, into the posterior tibial tendon, and sinus tarsi. He noted that x-rays 

revealed degenerative changes with plantar grade collapse into the mid arch joints of the first 

metatarsocuneiform navicular joints with significant bony changes and arthritis. Dr. Bostanche 

diagnosed dorsal exostosis of the first metatarsocuneiform joint on the left, arthrosis of the first 

metatarsocuneiform navicular joint left, posterior tibial tendinitis left, capsulitis of the left subtalar 

joint, and pain in the limb. He recommended fusing the arthritic joints in the mid foot to stabilize 

the left foot and foot structure for long-term pain control. In medical authorization records dated 

April 28 and December 14, 2015, Dr. Bostanche requested authorization to perform incision of the 

heel bone, revision of foot bones, and revision of calf tendon. On May 1, 2015 he submitted 

supporting documentation for the pending authorization and noted surgery was tentatively 

scheduled for May 13, 2015. Dr. Bostanche requested that authorization be expedited.

On December 29, 2015 OWCP notified appellant that his request for authorization of the 

incision of the heel bone, revision of foot bones, and revision of calf tendon could not be approved. 
3

It indicated that the evidence was insufficient to authorize the proposed surgery because the 

requested treatment did not appear to be medically necessary for and causally related to the 

accepted conditions. OWCP requested that he submit a detailed narrative medical report from his 

treating physician, which provided an accurate history of injury, a firm diagnosis resulting from 

the injury, findings, description of treatment provided, extent of disability, and if the condition was 

caused or aggravated by the claimed injury.

In a January 14, 2016 report, Dr. Bostanche noted treating appellant conservatively after 

the May 7, 2002 work injury to his left foot; however, appellant’s condition deteriorated over the 

years due to walking and weight-bearing activities at work. He opined that appellant’s symptoms 

were in direct causation to the injury of May 7, 2002 and were causing significant changes to other 

joints in the left foot. Examination revealed a significantly collapsed arch and swelling and pain 

throughout the medial lateral aspect of the left ankle joint and outer aspect of the foot. 

Dr. Bostanche noted his foot joints were severely arthritic and collapsed since the time of the injury 

causing an overall change in his foot structure and positioning causing changes to the hind foot

joints and ankle. He opined that appellant’s original injury and job duties accelerated his condition 

over the years. Dr. Bostanche diagnosed capsulitis of the first and second metatarsocuneiform 

joint with a dorsal exostosis on the left foot, severe arthrosis, first and second metatarsocuneiform 

joint left foot, subtalar joint capsulitis/arthrosis, left foot secondary to arthrosis of the first and 

second metatarsocuneiform joint and ankle joint capsulitis, secondary to arthrosis of the first and 

second metatarsocuneiform joint on the left. He opined that conservative therapy was no longer 

effective and he recommended surgical intervention to include fusion of the first and second 

metatarsocuneiform joint on the left with removal of the bone spur, correction of the subtalar joint 

capsulitis on the left to include a bone cut into the heel to correct the position of the joint, 

lengthening the Achilles’ tendon in the calf since the foot collapsed and the heel bone raised, 

tightening the Achilles’ tendon due to the changes in the foot structure. 

OWCP requested that an OWCP medical adviser address whether the requested incision of 

the heel bone, revision of foot bones, and revision of calf tendon was warranted and necessitated 

by the accepted conditions. In an April 26, 2016 report, the medical adviser noted reviewing the 

medical record and statement of accepted facts (SOAF). He noted that Dr. Bostanche

recommended a fusion for the first and second metatarsocuneiform joint on the left, correction of 

subtalar joint capsulitis, lengthening the Achilles tendon, and osteotomy of the calcaneus. The 

medical adviser indicated that there was insufficient evidence of a temporal relationship between 

the employment injury on May 7, 2002 and the requested osteotomy of the calcaneus with fusion

in 2015. He opined that the incision of the heel bone, revision of foot bones, and revision of calf 

tendon was not medically necessary. The medical adviser noted an absence of imaging in the 

records of capsulitis or severe arthritis to support the requested osteotomy and first and second ray 

fusion. He diagnosed metatarsalgia and opined that the diagnosed condition did not warrant 

surgical intervention as there was a lack of evidence of severe arthritis or deformity to warrant a 

first and second ray fusion. The medical adviser advised that an adequate trial of conservative 

treatment was demonstrated.

Appellant continued to treat with Dr. Bostanche on April 21, 2016 for left foot pain 

secondary to dorsal exostosis and arch collapse. Dr. Bostanche noted findings and diagnosed 

dorsal exostosis left foot, subtalar joint impingement, and pain in the left foot. He opined that 

appellant’s left foot was collapsing and he was experiencing impingement laterally.
4

On August 2, 2016 OWCP referred appellant to Dr. Mysore S. Shivaram, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine if the proposed surgery was 

medically necessary and causally related to the accepted medical conditions. In an August 22, 

2016 report, Dr. Shivaram discussed appellant’s work history and stated that he had current 

complaints of pain along the left dorsal aspect of the foot, burning sensation around the top of the 

foot and along the left second toe, and pain along the inner aspect of the ankle. He noted 

appellant’s medical history was significant for bunion surgery of the left foot in 2001 and bilateral 

flat foot deformity. Dr. Shivaram noted findings on examination of the feet revealed evidence of 

bilateral severe pes planus deformity (flatfoot), healed scar on the left foot, good capillary 

circulation, intact sensation, limited range of motion of the left big toe, degenerative arthritis of 

the tarsometatarsal joint of the left big toe, small bony exostosis at the metatarsocuneiform joint 

along the first and second metatarsocuneiform joints, no contracture of the Achilles tendon, and 

no pain with range of motion of the ankle. He noted x-rays of the left ankle revealed mild 

degenerative changes of the ankle. X-ray of the left foot revealed pes planus deformity and

minimal degenerative changes at the tarsometatarsal joint. Dr. Shivaram diagnosed degenerative 

arthritis of the metatarsophalangeal joint of the left big toes, status post bunionectomy of the left 

big toes, mild degenerative arthritis of the tarsometatarsal joint of the left first and second 

tarsometatarsal joint, and severe pes planovalgus. He noted that appellant had preexisting pes 

planovalgus deformity, which resulted in more stress being placed along the inner column of the 

foot causing stress along the tarsometatarsal joint and degenerative changes. Dr. Shivaram advised 

that in long-standing pes planovalgus deformity the calcaneus may sublux laterally resulting in 

degenerative changes in the subtalar joint, deficiency of the tibialis posterior tendon, and 

contracture of the Achilles tendon. He opined that the changes in appellant’s foot were not the 

result of his occupation, rather, they were caused by long-standing stresses placed on the foot in 

the condition of pes planovalgus. Dr. Shivaram advised that appellant’s foot condition and 

proposed surgery were not work related, but was secondary to long-standing preexisting severe 

flatfoot deformity unrelated to his employment as a letter carrier.

On October 26, 2016 Dr. Bostanche noted that appellant developed degenerative changes 

to the first metatarsocuneiform joint on the left foot, which caused a collapse of the arch and 

changes to the surrounding joints of the left foot. He noted that these changes were beyond the 

normal progression of preexisting condition and opined that appellant’s employment injury 

accelerated his condition beyond the normal course. Dr. Bostanche diagnosed degenerative 

arthritis of the tarsometatarsal joints, left first and second metatarsals and severe pes planovalgus 

deformity of the left foot. He advised that the changes to the left foot were not from a preexisting 

condition; rather, he indicated that appellant’s work injury and job duties significantly accelerated 

the condition. Dr. Bostanche recommended surgical intervention to correct the degenerative 

arthritis changes to the left foot.

OWCP determined that there was a conflict in medical opinion between the treating 

podiatrist, Dr. Bostanche, who indicated that the proposed surgery was medically necessary and 

causally related to the accepted medical conditions, and OWCP’s second opinion physician,

Dr. Shivaram and OWCP’s medical adviser, who opined that appellant’s foot condition and 

proposed surgery was secondary to preexisting severe flatfoot deformity and not related to the 

employment injury of May 7, 2002.
5

In a medical authorization record dated April 18, 2017, Dr. Bostanche requested 

authorization to perform incision of the heel bone, revision of foot bones, and revision of calf 

tendon.

On April 19, 2017 OWCP scheduled an impartial medical examination with

Dr. Bradley M. Fideler, a Board-certified orthopedic surgeon. It provided Dr. Fideler with a 

SOAF, which noted appellant’s claim was accepted for capsulitis of the first and second metatarsal 

cuneiform joint of the left foot secondary to dorsal exostosis. 

In a May 22, 2017 report, Dr. Fideler detailed the history of the injury and appellant’s 

treatment. He reviewed the SOAF. Dr. Fideler noted findings on examination of normal heel-totoe gait, significant flatfoot deformity of both feet, loss of normal arch in left foot, pain within the 

metatarsal cuneiform joint with an osteophyte, pain laterally due to significant collapse of his arch 

and flatfoot deformity, and hind foot valgus impinging laterally. He diagnosed severe pes planus 

flatfoot deformity of the left foot with the development of degenerative arthritis of the first and 

second metatarsal cuneiform joints and significant hind foot valgus due to the collapsing midfoot. 

Dr. Fideler opined that appellant’s condition was preexisting and the development of the 

degenerative changes within the midfoot was related to the deformity within his midfoot. He noted 

that appellant’s standing and walking for extended distances carrying a mailbag aggravated the 

condition, but he found no evidence that his work activity was directly related to the development 

of the degenerative condition. Dr. Fideler opined that appellant’s condition, due to significant pes 

planus and hind foot valgus, may have developed regardless of his occupation as a postal carrier. 

He noted that appellant had no residuals of the accepted capsulitis of the first and second metatarsal 

cuneiform joint, left foot secondary to dorsal exostosis. Dr. Fideler opined that the proposed 

surgical fusion of the metatarsocuneiform joint, calcaneal osteotomy, and Achilles tendon 

lengthening were not related to any specific work activities rather they were related to his 

preexisting planovalgus condition. He opined that appellant’s condition was preexisting due to 

preexisting pes planovalgus deformity and hind foot valgus and the proposed surgery was not 

directly related to the accepted work injury.

On April 20, 2017 Dr. Bostanche noted findings on examination and diagnosed subtalar 

joint impingement, degenerative arthritis of the left first and second tarsometatarsal joints, severe 

pes planovalgus deformity on the left, left dorsal exostosis first metatarsocuneiform joint, pain in

left limb, and left posterior tibial tendinitis. He noted appellant’s condition was worsening and 

recommended surgical intervention.

In a decision dated August 1, 2017, OWCP denied authorization for incision of the heel 

bone, revision of foot bones, and revision of calf tendon. It based its decision on the report of

Dr. Fideler, the referee physician, who opined that the proposed surgery was not medically 

necessary or causally related to the accepted employment-related conditions. Consequently, 

OWCP accorded Dr. Fideler’s report special weight. 

LEGAL PRECEDENT

Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies 

prescribed or recommended by a qualified physician which OWCP, under authority delegated by 

the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or 
6

aid in lessening the amount of monthly compensation.3 In interpreting section 8103(a), the Board 

has recognized that OWCP has broad discretion in approving services provided under FECA to 

ensure that an employee recovers from his or her injury to the fullest extent possible in the shortest 

amount of time.4 OWCP has administrative discretion in choosing the means to achieve this goal 

and the only limitation on OWCP’s authority is that of reasonableness.5

While OWCP is obligated to pay for treatment of employment-related conditions, appellant 

has the burden of establishing that the expenditure is incurred for treatment of the effects of an 

employment-related injury or condition.6 Proof of causal relationship in a case such as this must 

include supporting rationalized medical evidence.7 Therefore, in order to prove that the procedure 

is warranted, appellant must establish that the procedure was for a condition causally related to the 

employment injury and that the procedure was medically warranted. Both of these criteria must 

be met in order for OWCP to authorize payment.8

Section 8123(a) 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.9

ANALYSIS

The Board finds that OWCP did not abuse its discretion in denying authorization for left 

lower extremity surgery. 

OWCP properly declared a conflict in medical opinion between appellant’s physician,

Dr. Bostanche, who recommended surgery, and the DMA and second opinion examiner,

Dr. Shivaram, who opined that appellant’s foot condition and proposed surgery was secondary to 

preexisting severe flatfoot deformity and not related to the work injury of May 7, 2002. 

Consequently, it referred appellant to Dr. Fideler to resolve the conflict, pursuant to 5 U.S.C.

§ 8123(a). The Board finds that the opinion of Dr. Fideler is sufficiently well rationalized and

based upon a proper factual background such that it is entitled to special weight to establish

 

3 5 U.S.C. § 8103(a). 

4 G.M., Docket No. 18-1710 (issued June 3, 2019); Dale E. Jones, 48 ECAB 648, 649 (1997). 

5 G.M., id.; Daniel J. Perea, 42 ECAB 214, 221 (1990) (abuse of discretion by OWCP is generally shown through 

proof of manifest error, clearly unreasonable exercise of judgment, or administrative actions, which are contrary to 

both logic, and probable deductions from established facts). 

6 G.M., supra note 4; Debra S. King, 44 ECAB 203, 209 (1992). 

7

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986). 

8 See Cathy B. Millin, 51 ECAB 331, 333 (2000). 

9 5 U.S.C. § 8123(a); see Guiseppe Aversa, 55 ECAB 164 (2003).
7

that the proposed surgery was not medically necessary and causally related to the accepted 

employment-related conditions.

10

In a May 22, 2017 report, Dr. Fideler reviewed appellant’s history and noted findings on 

examination. He diagnosed severe pes planus flatfoot deformity of the left foot with the 

development of degenerative arthritis of the first and second metatarsal cuneiform joints and 

significant hind foot valgus due to the collapsing midfoot. Dr. Fideler opined that appellant’s 

condition was preexisting and the development of the degenerative changes within the midfoot 

was related to the deformity within his midfoot. He noted that prolonged standing and walking 

carrying a mailbag aggravated appellant’s condition, but he found no evidence that his work 

activity was directly related to the development of the degenerative condition. Dr. Fideler believed 

that appellant’s condition may have developed regardless of his occupation as a postal carrier due 

to significant pes planus and hind foot valgus. He further advised that the aggravation of 

appellant’s condition was not beyond normal progression. Dr. Fideler noted that appellant had no 

residuals of the accepted capsulitis of the first and second metatarsal cuneiform joint of the left 

foot secondary to dorsal exostosis. He opined that the proposed surgical procedure fusion of the 

metatarsocuneiform joint, calcaneal osteotomy and Achilles tendon lengthening was not related to 

any specific work activities; rather, they were related to his preexisting planovalgus condition.

Dr. Fideler opined that appellant’s condition was preexisting and due to preexisting pes 

planovalgus deformity and hind foot valgus. He further opined that the proposed surgery was to 

treat the degenerative condition and flatfoot deformity and was not directly related to the accepted 

employment injury. 

The Board finds that Dr. Fideler had full knowledge of the relevant facts and evaluated

the course of appellant’s condition. Dr. Fideler is a specialist in the appropriate field. He indicated

that the proposed surgery was not related to any specific work activities; rather, it was related to 

his preexisting planovalgus condition and hind foot valgus. The Board finds that Dr. Fideler’s

opinion constitutes the special weight of the medical evidence and establishes that the proposed 

surgery was not medically necessary and causally related to the accepted employment-related 

conditions.

Subsequent to Dr. Fideler’s report, appellant submitted an April 20, 2017 report from

Dr. Bostanche who noted positive findings on examination and diagnosed subtalar joint 

impingement, degenerative arthritis of the left first and second tarsometatarsal joints, severe pes 

planovalgus deformity, left dorsal exostosis first metatarsocuneiform joint, pain in left limb, and 

left posterior tibial tendinitis. Dr. Bostanche noted appellant’s condition was progressively 

worsening and he recommended surgical intervention. However, his report failed to provide a 

rationalized opinion regarding the causal relationship of the proposed surgery to the employment 

injury and also address why it was medically warranted.11 Dr. Bostanche did not provide the 

necessary medical explanation as to how the proposed surgery would cure, reduce the period of 

 

10 See 5 U.S.C. § 8123(a); Solomon Polen, 51 ECAB 341 (2000) (where there exists a conflict of medical opinion

and the case is referred to an impartial specialist for the purpose of resolving the conflict, the opinion of such

specialist, if sufficiently well rationalized and based upon a proper factual background, is entitled to special weight).

11 Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not 

containing rationale on causal relationship are entitled to little probative value). 
8

disability, or aid in lessening the amount of monthly compensation.12 The Board notes that

Dr. Bostanche had been on one side of the conflict resolved by Dr. Fideler and his report is

similar to his prior reports and are therefore insufficient to overcome the special weight of

Dr. Fideler’s report or to create a new medical conflict.13 The Board notes that Dr. Bostanche’s 

reports do not contain new findings or rationale upon which a new conflict might be based.

As noted, the only limitation on OWCP’s authority in approving or disapproving service 

under FECA is one of reasonableness.14 Because appellant did not submit a reasoned medical 

opinion explaining how the May 7, 2002 work injury caused or contributed to his need for the 

requested surgery, OWCP properly acted within its discretionary authority to deny authorization 

for the requested equipment. Therefore, the Board finds that OWCP did not abuse its discretion 

under section 8103 in denying approval of the proposed surgery.

On appeal appellant argues that he needed the proposed surgery to aid in his recovery from 

the accepted medical conditions. As discussed, appellant did not show that the surgery was 

medically necessary or reasonable to treat his ongoing employment-related problems with his left 

foot. The medical evidence of record is insufficient to establish causal relationship and OWCP 

did not abuse its discretion in denying authorization for the proposed surgery. 

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 did not abuse its discretion by denying authorization for left 

lower extremity surgery.

 

12 See E.J., Docket No. 10-0743 (issued November 2, 2010). 

13 See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy

Sidwell, 41 ECAB 857 (1990).

14 Supra note 5.
9

ORDER

IT IS HEREBY ORDERED THAT the August 1, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 8, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board