United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Dayton, OH, Employer

__________________________________________

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Docket No. 19-1282

Issued: December 23, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 21, 2019 appellant, through counsel, filed a timely appeal from an April 30, 2019 

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 has met his burden of proof to establish right foot conditions

causally related to the accepted March 23, 2018 employment incident.

FACTUAL HISTORY

On April 10, 2018 appellant, then a 52-year-old lead information technology specialist, 

filed a traumatic injury claim (Form CA-1) alleging that on March 23, 2018 he injured his right 

“big toe” when he stepped on a nail that went through his toe while walking between buildings

while in the performance of duty. On the reverse side of the claim form, the employing 

establishment acknowledged that appellant was in the performance of duty at the time of his 

alleged injury and that he did not stop work. No additional evidence was submitted.

In a development letter dated April 16, 2018, OWCP notified appellant of the deficiencies 

of his claim and the evidence necessary to establish his claim. Appellant was instructed to provide 

a narrative medical report from his physician which contained a detailed description of findings 

and diagnoses, explaining how the reported work incident had caused or aggravated his medical 

condition. OWCP afforded him 30 days to submit the requested information.

In response appellant submitted a surgical consultation note dated March 30, 2018 from

Dr. Aaron J. Schneider, a surgical resident physician. Dr. Schneider noted that appellant presented 

with a wound on his right great toe and reported that he had stepped on a nail one week prior. He

discussed examination findings and laboratory test results. Dr. Schneider provided an assessment 

that appellant had a history of diabetes and a one-week history of a right great toe wound which 

was debrided at bedside. He advised that there was no evidence of necrotizing fasciitis. The 

wound was draining purulent fluid which appeared to extend close to the bone, but there was no 

absolute evidence of osteomyelitis at that time. Dr. Schneider indicated that appellant was 

scheduled for debridement of the right great toe and possible amputation the next day following 

his examination.

In a consultation note and progress notes dated March 31 and April 1, 2, and 3, 2018,

Dr. Dominic E. Dipierro, an attending podiatrist and foot and ankle surgeon, examined appellant 

and diagnosed gas gangrene with acute osteomyelitis, cellulitis, and tarsal tunnel syndrome of the 

right foot, contributory diabetes mellitus with peripheral neuropathy and tarsal tunnel syndrome. 

On March 31, 2018 he performed a transmetatarsal amputation and flexor hallucis longus 

tenosynovectomy of the right foot and tarsal tunnel decompression of the right foot and ankle. In 

an attending physician’s report (Form CA-20) dated May 2, 2018, Dr. Dipierro checked a box 

marked “yes” indicating that appellant’s gas gangrene condition was caused or aggravated by 

walking at work. He opined that appellant was totally disabled from work commencing 

March 31, 2018. Dr. Dipierro, in a May 7, 2018 duty status report (Form CA-17), described a 

history of injury that on March 23, 2018 appellant stepped on a nail that went through his right 

great toe while walking between buildings. He provided a clinical finding of gas gangrene limb 

threatening infection due to injury. Dr. Dipierro advised that the condition required partial foot 

amputation surgery and hospitalization. He noted that appellant could not resume full-duty work.
3

Dr. Scott Zelasko, a Board-certified diagnostic radiologist, in a right foot x-ray report dated 

March 30, 2018, provided an impression of soft tissue swelling with a small amount of 

subcutaneous emphysema involving the great toe without definite evidence for osseous erosive 

changes. He reported that the findings were compatible with soft tissue infection without definite 

evidence for osteomyelitis. Dr. Zelasko advised that if there was continued clinical concern for 

osteomyelitis, then further evaluation with a magnetic resonance imaging (MRI) scan would be 

considered. He also provided an impression that nonspecific density was seen adjacent to the great 

toe distal phalanx on the oblique view which may only be on the skin surface or possibly related 

to a foreign body.

In a report also dated March 30, 2018, Dr. Ali T. Jaffery, an internist, noted that appellant 

related a history that he stepped on a nail one week prior and developed a wound on his right foot. 

He reported examination findings and reviewed diagnostic test results, including Dr. Zelasko’s 

March 30, 2018 right foot x-ray report.

In a discharge summary report dated April 11, 2018, Dr. Abdul M. Masood, a Boardcertified internist, indicated that appellant was admitted to the hospital for gas gangrene with 

cellulitis of the right foot and acute osteomyelitis and underwent transmetatarsal amputation. He

also indicated that appellant developed an acute kidney injury (AKI) secondary to use of the 

antibiotic medicine vancomycin. Dr. Masood noted that his creatinine was improving after 

adjustment of his antibiotics and that he was waiting to undergo another reconstructive surgery 

performed by Dr. Dipierro after improvement of his AKI. 

In a second development letter dated June 14, 2018, OWCP advised appellant of the factual 

deficiencies of his claim and provided a questionnaire for his completion. It afforded him 30 days 

to respond. 

On July 5, 2018 appellant responded to OWCP’s development questionnaire, noting that 

on March 23, 2018 he was walking between two buildings at work when he stepped on a nail that 

entered the bottom of his shoe and right great toe. He maintained that he did not realize that he 

was injured until he arrived at home and removed his shoe. Appellant described the treatment he 

performed at home and indicated that he sought treatment in an emergency room on 

March 30, 2018. He claimed that his injury occurred on March 23, 2018 because he checked his 

extremities daily since he was a diabetic. Appellant told hospital staff that he had not felt the nail 

in his foot due to diabetic neuropathy.

OWCP thereafter received a July 6, 2018 work/school excuse form from Dr. Dipierro who 

advised that appellant could return to work with the restriction of wearing a controlled ankle

motion boot.

In a letter dated July 12, 2018, the employing establishment informed OWCP that appellant 

had stopped work on April 30, 2018 and returned on July 8, 2018 with restrictions.

OWCP subsequently received an additional Form CA-17 report dated July 17, 2018 from

Dr. Dipierro in which he reiterated appellant’s history of injury and diagnosis of gas gangrene due 

to injury. He advised that appellant could resume full-time regular work with restrictions.
4

By decision dated August 22, 2018, OWCP accepted that the March 23, 2018 employment 

incident occurred as alleged and that there was a diagnosed right foot condition. However, it 

denied the claim finding that the medical evidence then of record was insufficient to establish that 

appellant’s diagnosed conditions were causally related to the accepted March 23, 2018 

employment incident. Thus, appellant had not met the requirements for establishing an injury as 

defined by FECA. 

OWCP continued to receive medical evidence from Dr. Dipierro. In a May 22, 2018 

progress note, Dr. Dipierro again examined appellant’s right foot and provided an impression of 

complicated open wound, diabetic ulcer of the right foot and ankle, Wagner grade 2 with 

derangement complicated by contributive history of transmetatarsal amputation gas gangrene, 

tarsal tunnel syndrome, and type 2 diabetes mellitus with peripheral neuropathy. Also, on May 22, 

2018 he performed a partial metatarsectomy and secondary complicated closure of the right foot. 

On September 21, 2018, appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review. 

In an operative report dated April 16, 2018, Dr. Dipierro performed a partial 

metatarsectomy, intrinsic abductor hallucis, flexor digitorum brevis, adductor digiti minimi muscle 

transposition, and secondary complicated closure of the right foot. The preoperative diagnoses 

were complicated open wound with equinus contracture osteomyelitis right lower extremity with 

contributory diabetes mellitus with peripheral neuropathy, status post open transmetatarsal

amputation and tenosynovectomy with tarsal tunnel decompression, complicated open wound with 

equinus contracture osteomyelitis of the right lower extremity with contributory diabetes mellitus 

with peripheral neuropathy, and status post open transmetatarsal amputation and tenosynovectomy 

with tarsal tunnel decompression. 

By decision dated April 30, 2019, OWCP’s hearing representative affirmed the August 22, 

2018 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the

essential elements of his or her claim, including the fact that the individual is an employee of the

United States within the meaning of FECA, that the claim was timely filed within the applicable

time limitation period of FECA,4that an injury wassustained in the performance of duty as alleged,

and that any disability or medical condition for which compensation is claimed is causally related

 

3

Id.

4 S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 

ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

to the employment injury.5 These are the essential elements of each and every compensation claim,

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6

To determine if an employee sustained a traumatic injury in the performance of duty,

OWCP begins with an analysis of whether fact of injury has been established.7 There are two

components that must be considered in conjunction with one another. The first component is

whether the employee actually experienced the employment incident that allegedly occurred.8 The

second component is whether the employment incident caused a personal injury.9

Pursuant to OWCP’s procedures, where the condition reported is a minor one, such as a

burn, laceration, insect sting, or animal bite, which can be identified on visual inspection by a lay

person, a case may be accepted without a medical report and no development of the case need be

undertaken, if the injury was witnessed or reported promptly, and no dispute exists as to the

occurrence of an injury; and no time was lost from work due to disability.10 An employee’s

statement that an injury occurred at a given time and in a given manner is of great probative value

and will stand unless refuted by strong or persuasive evidence.11

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.12 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment incident must be based on a 

complete factual and medical background.13 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition, and 

appellant’s specific employment incident.14

 

5 T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 

59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).

6 T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., 

Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

7 S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8 E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9 E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

10 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a) 

(June 2011).

11 See M.C., Docket No. 18-1278 (issued March 7, 2019); R.T., Docket No. 08-0408 (issued December 16, 2008); 

Gregory J. Reser, 57 ECAB 277 (2005).

12 S.S., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

13 C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14 Id.
6

ANALYSIS

The Board finds that appellant has met his burden of proof to establish a right great toe 

injury causally related to the accepted March 23, 2018 employment incident. The Board further

finds that he has not met his burden of proof to establish consequential right foot conditions as 

casually related to the puncture wound to his right great toe.

OWCP found that the March 23, 2018 employment incident, in which appellant sustained 

a puncture wound to his right great toe, occurred as alleged. As such, that puncture wound is 

clearly a diagnosed condition which is causally related to the accepted employment incident which

consisted of appellant stepping on a nail which punctured his shoe and entered his right great toe.15 

In the contemporaneous medical notes, it is documented by Dr. Schneider that appellant had 

presented with a puncture wound to his toe consistent with the accepted employment incident. The 

Board therefore finds that appellant has met his burden of proof to establish a puncture wound to 

his right great toe as a result of the accepted March 23, 2018 employment incident.

Appellant has not, however, submitted sufficient medical evidence to establish that he 

sustained diagnosed conditions as a consequence of his accepted right toe injury, as alleged.

In a May 2, 2018 Form CA-20 report, Dr. Dipierro checked a box marked “yes” indicating 

that appellant’s gas gangrene condition was caused or aggravated by walking at work. He advised 

that appellant was totally disabled from work commencing March 31, 2018. The Board has held, 

however, that when a physician’s opinion on causal relationship consists only of checking “yes”

to a form question, without explanation or rationale, that opinion has little probative value and is 

insufficient to establish a claim. This report is therefore insufficient to establish appellant’s claim 

for additional right foot conditions.

Similarly, Dr. Dipierro’s May 17 and July 17, 2018 Form CA-17 reports are insufficient to 

establish causal relationship for consequential right foot conditions. In these reports he noted a 

history of the March 23, 2018 employment incident and diagnosed gas gangrene limb threatening 

infection due to injury. Dr. Dipierro indicated that the diagnosed condition required partial foot 

amputation surgery and hospitalization. In addition, he initially advised that appellant was totally 

disabled from work as of May 17, 2018 and subsequently advised that he could return to full-time 

regular work with restrictions as of July 17, 2018. Again, Dr. Dipierro failed to explain the 

medical process through which the March 23, 2018 employment incident would have been 

competent to cause the diagnosed foot conditions and resulted in the need for surgery and 

appellant’s total disability from work and the subsequent need for restrictions. 

In his remaining consultation note, progress notes, and reports, Dr. Dipierro reiterated his 

prior right foot diagnosis and opinion that appellant could return to work with restrictions. He also

described his March 31, April 6, and May 22, 2018 right foot surgeries and provided additional 

right foot diagnoses and a diagnosis of type 2 diabetes mellitus with peripheral neuropathy. These 

additional reports do not contain a specific opinion as to the cause of appellant’s diagnosed 

conditions or resultant surgeries and work restrictions. The Board has held that medical evidence 

that does not offer an opinion regarding the cause of an employee’s condition is of no probative 

 

15 Supra note 10.
7

value on the issue of causal relationship.16 These reports, therefore, are insufficient to establish 

appellant’s claim.

Likewise, Dr. Schneider’s March 30, 2018 consultation note, Dr. Jaffery’s March 30, 2018 

report, and Dr. Masood’s April 11, 2018 discharge summary report, related a history of the 

March 23, 2018 employment incident and indicated that appellant sustained a right great toe 

wound and diagnosed the conditions for which he underwent a transmetatarsal amputation, also 

are deficient as there is no opinion regarding causal relationship.17

Appellant also submitted a diagnostic test report from Dr. Zelasko. The Board has held 

that diagnostic studies lack probative value as they do not address whether the employment 

incident caused any of the diagnosed conditions.18 Such reports are therefore insufficient to 

establish appellant’s claim.

On appeal counsel contends that OWCP’s April 30, 2019 decision is contrary to fact and 

law. For the foregoing reasons, the Board finds that the medical evidence of record is insufficient 

to establish that appellant sustained a right foot condition causally related to the accepted 

March 23, 2018 employment incident.

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 and 20 C.F.R.

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has met his burden of proof to establish a right great toe 

injury causally related to the accepted March 23, 2018 employment incident. The Board further 

 

16 See M.S., Docket No. 19-0587 (issued July 22, 2019); B.C., Docket No. 18-1735 (issued April 23, 2019); A.L.,

Docket No. 18-1756 (issued April 15, 2019); K.E., Docket No. 18-1357 (issued March 26, 2019); L.B., Docket No. 

18-0533 (issued August 27, 2018).

17 Id.

18 See M.S., supra note 16; B.C., supra note 16; J.S., Docket No. 17-1039 (issued October 6, 2017).
8

finds that he has not met his burden of proof to establish consequential right foot conditions as 

casually related to the puncture wound to his right great toe.

ORDER

IT IS HEREBY ORDERED THAT the April 30, 2019 decision of the Office of Workers’

Compensation Programs is affirmed as modified and the case is remanded for further development 

of the claim consistent with this decision of the Board.

Issued: December 23, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board