United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Highland Falls, NY, Employer

__________________________________________

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Docket No. 16-1670

Issued: April 6, 2018

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 19, 2016 appellant, through counsel, filed a timely appeal from a July 29, 

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 claim.

ISSUES

The issues are: (1) whether OWCP properly terminated appellant’s wage-loss 

compensation and medical benefits effective April 18, 2016; and (2) whether appellant met his 

 

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

burden of proof to establish continuing disability or residuals causally related to the accepted 

January 9, 2014 employment injury.

FACTUAL HISTORY

On January 9, 2014 appellant, then a 58-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that day he slipped off a step while in the performance of 

duty. He stated that his foot bent backwards and his ankle swelled. Appellant stopped work on 

January 9, 2014 and has not returned. OWCP initially accepted the claim for left calf sprain and 

left ankle sprain. It paid compensation benefits and placed appellant on the periodic 

compensation rolls effective July 27, 2014. 

Appellant initially sought medical care at Nyack Hospital on January 9, 2014. He was 

placed in a short leg posterior orthotic glass splint (air cast) and provided with crutches. 

In a January 14, 2014 report, Dr. Patrick J. Murray, an orthopedic surgeon, noted the 

history of injury and provided examination findings. He diagnosed left ankle sprain and left calf 

strain. Due to continued pain in the left ankle, Dr. Murray ordered physical therapy and a 

magnetic resonance imaging (MRI) scan. In a February 6, 2014 report, he reported that appellant 

had ongoing complaints of pain and inability to perform his normal job duties. Physical therapy 

was again prescribed. At his reevaluation on March 6, 2014, appellant showed no improvement. 

On March 14, 2014 he underwent a left ankle MRI scan. In an April 3, 2014 report, Dr. Murray 

diagnosed left ankle pain and left foot pain and opined that appellant was totally disabled. He 

recommended that appellant be evaluated by foot/ankle specialist and a neurologist as he 

believed that some of his symptoms were neurologic in nature. 

Dr. James R. McWilliam, a Board-certified orthopedic surgeon specializing in the 

treatment of the foot and ankle, began treating appellant on April 10, 2014. After reviewing the 

March 14, 2014 MRI scan of the left ankle, he diagnosed appellant with tibialis tendinitis and 

plantar neuritis, which he opined was related to the twisting injury sustained at work. On July 3, 

2014 Dr. McWilliam provided assessments of tibialis tendinitis, left ankle sprain, and tarsal 

tunnel syndrome, which he indicated were related to the twisting injury sustained at work. 

Although he released appellant to full-time, sedentary-type work, appellant did not resume work.

In July 2014, OWCP referred appellant, a list of questions, a statement of accepted facts

(SOAF) and the medical file, to Dr. Joseph Laico, a Board-certified orthopedist, for a second 

opinion examination. In a September 4, 2014 report, Dr. Laico noted the history of the injury, 

his review of the medical record, and presented examination findings. He diagnosed tibialis 

posterior tendinitis and ankle strain causally related to the January 9, 2014 work incident. 

Dr. Laico found no clinical evidence of a left calf sprain. He opined that appellant was partially 

disabled due to the diagnosis of posterior tibial tendinitis. Dr. Laico explained that appellant had 

objective findings of bilateral calcaneal valgus, greater on the left than on the right, and that his 

variant was prolonging the symptoms of left tibialis posterior tendinitis. He found that clinically 

appellant did not present with tarsal tunnel syndrome, but his symptoms were suggestive of tarsal 

tunnel syndrome superimposed on posterior tibialis tendinitis. Dr. Laico also explained that 

appellant had preexisting bilateral calcaneal valgus. He noted that the condition of calcaneal 

valgus had not been aggravated by the work injury, but the morphology of appellant’s left ankle 
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was a causative factor in his continued symptoms of left ankle pain as it stretched his tibial 

tendon and prolonged the resolution of his injury. Dr. Laico recommended custom-made 

orthotics. With regard to the left calf, he found no clinical evidence of a calf strain. This was 

based upon Dr. Laico’s examination findings of no atrophy of the calf or intrinsic foot muscles,

and no swelling or tenderness in the left calf. He opined that appellant was capable of returning 

to full-time, limited-duty work with restrictions of walking and climbing no more than two hours 

or with more than 25 pounds. 

On September 10, 2014 Dr. Jamie Lyn Garber, a podiatrist, evaluated appellant’s left foot 

for suspected old posterior tibial tendon tear. She fitted him with a prefabricated ankle-foot 

orthosis, multi-ligamentous ankle support, and referred him for a left foot MRI scan. Appellant 

underwent a left foot MRI scan on September 26, 2014, which revealed no signs of tearing of the 

posterior tibial tendon. 

In an October 3, 2014 report, Dr. Garber diagnosed posterior tibialis tendinitis, posterior 

tibial tendon dysfunction Stage 2, talipes valgus, anomalies of the foot, and musculoskeletal 

anomalies. She opined that appellant’s tendon/ligamanetous injury caused adult-acquired 

flatfoot deformity and recommended surgical intervention. 

In an October 27, 2014 letter, OWCP requested additional information and clarification 

from Dr. Laico. In an October 28, 2014 addendum report, Dr. Laico recommended that 

appellant’s claim be expanded to include left tibialis posterior tendinitis. He opined that OWCP 

should not authorize the surgery recommended by appellant’s physician as it was too aggressive 

pending appellant’s response to the use of custom made orthotics. 

On November 19, 2014 Dr. Garber began treating appellant for flatfoot, posterior tibial 

tendon dysfunction, and left os naviculare pedis malacia, which she opined occurred posttraumatically due to the work injury. 

OWCP, on March 18, 2015, accepted the additional condition of tibialis posterior 

tendinitis, left side. 

In an April 8, 2015 report, Dr. Garber provided an assessment of worsening flatfoot, 

worsening posterior tibial tendon dysfunction, and worsening os naviculare pedis malacia. She 

indicated that appellant had severe acquired flatfoot deformity due to the posterior tibial tendon 

dysfunction that developed as a result of his work-related injury. Surgical treatment was 

recommended. 

In September 2015, OWCP referred appellant, a list of questions, a SOAF, and the 

medical record, to Dr. Mark Kramer, a Board-certified orthopedist, for a second opinion 

evaluation. In an October 7, 2015 report, Dr. Kramer noted the history of injury and his review 

of the medical records. He presented examination findings, noting that appellant ambulated 

normally. Appellant was noted to have nontender, prominent excessive navicular bilaterally left 

more than right, normal inversion of the calcaneus, normal arch, and normal forefoot. While he 

had evidence of mild pes planus, he formed a normal arch when he performed toe rises. 

Appellant was also able to independently toe rise on his left foot. He also had equal 

circumferences of the calf and was able to ambulate normally barefoot, without limping. 
4

Measurements of the foot were equal on the right and left side with no evidence of swelling or 

cyanosis. Neurological examination was grossly intact. Dr. Kramer opined that there was no 

evidence of any ongoing disability to the left ankle. He noted that there was no evidence of any 

posterior tibial tendinitis as appellant could unilaterally toe rise on the left side without any 

discomfort and there was no discomfort along the course of the posterior tibial tendon. 

Dr. Kramer noted that appellant was not receiving any orthopedic treatment or physical therapy, 

only podiatric treatment. He opined that appellant did not require any further treatment as there 

was no evidence of any ongoing disability based on his evaluation. Dr. Kramer also noted that 

there was no evidence of calf atrophy after 21 months of persistent pain in the left ankle and 

concluded that appellant had no ongoing orthopedic disability to the left ankle. He opined that 

appellant had reached maximum medical improvement (MMI) from the left ankle sprain and that 

appellant was able to return to his date-of-injury position without restrictions. 

In a December 10, 2015 letter, OWCP requested that Dr. Kramer clarify some of his 

answers. In a December 14, 2015 addendum, Dr. Kramer indicated that, while appellant had 

mild pes planus, there was no evidence of disabling pain. He explained that pes planus was an 

ordinary variant of human anatomy. Dr. Kramer indicated that, by history, there was no 

evidence of any preexisting condition. In response to the question of whether having flatfoot put 

more strain on the posterior tibial tendon, he noted that appellant had a normal examination. 

Dr. Kramer explained that appellant was able to single toe rise on the affected foot without any 

discomfort, which indicated that the posterior tibial tendon functioned fully and caused the 

posterior tibial tendon to contract, which elicited no complaints of discomfort. Appellant was 

also able to invert his ankle fully without any discomfort. Dr. Kramer reiterated that appellant 

was not temporarily totally disabled. 

Dr. Garber continued to report that appellant’s flatfoot, posterior tibial tendon 

dysfunction, and os naviculare pedis malacia had worsened, and surgical treatment was 

necessary. 

On March 15, 2016 OWCP advised appellant that it proposed to terminate his wage-loss 

compensation and medical benefits. It found that the weight of the medical evidence, as 

represented by Dr. Kramer, established that appellant no longer had any residuals or continuing 

disability from work stemming from his accepted employment injury. OWCP provided him 30 

days to submit evidence and argument challenging the proposed termination. 

In response to its notice of proposed termination, OWCP received a March 4, 2016 return 

to duty letter from the employing establishment and a March 28, 2016 statement from appellant. 

In an April 8, 2016 medical note, Dr. Garber continued to report that appellant’s 

conditions of flatfoot, posterior tibial tendon dysfunction, and os naviculare pedis malacia had 

worsened and recommended surgical treatment. She indicated that his severe acquired flatfoot 

deformity was due to the posterior tibial tendon dysfunction that developed as a result of the 

work-related injury. 

In an April 13, 2016 attending physician’s report (Form CA-20), Dr. Garber noted 

findings of a valgus deformity of foot secondary to posterior tibial tendon dysfunction secondary 

to work trauma. She diagnosed tibialis tendinitis and acquired flatfoot. Surgery was again 
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recommended. Dr. Garber opined that appellant could perform sedentary work with no lifting, 

carrying, pushing, or climbing. 

By decision dated April 18, 2016, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective that same date. It found that the weight of the medical evidence 

rested with Dr. Kramer’s reports wherein he concluded that there were no ongoing residuals or 

disability causally related to appellant’s accepted work-related conditions. 

On April 29, 2016 OWCP received appellant’s April 20, 2016 request for an oral hearing 

before a representative of OWCP’s Branch of Hearings and Review. Appellant submitted a 

May 2, 2016 attending physician’s report (Form CA-20) by Dr. Garber who reiterated her prior 

diagnoses and indicated by a checking a box marked “yes” that the conditions were employment 

related. She explained that “continued walking up and down stairs caused [appellant’s] foot to 

collapse” and she checked a box marked “no” indicating that appellant could not return to work, 

“unless light duty.” Dr. Garber reiterated her opinion that walking up and down the stairs caused 

appellant’s foot to collapse and that reconstructive surgery was necessitated “as related to work 

injury.” Accompanying the Form CA-20 were progress notes by her for treatment administered 

on an intermittent basis from January 27 until April 15, 2016. Dr. Garber emphasized the need 

for reconstructive surgery to prevent further deterioration of appellant’s employment-related foot 

conditions. 

An oral hearing was held on June 23, 2016. 

By decision dated July 29, 2016, an OWCP hearing representative affirmed OWCP’s 

April 18, 2016 decision terminating appellant’s compensation benefits, finding that the weight of 

the medical evidence rested with Dr. Kramer, OWCP’s referral physician, upon whose report the 

termination was based. 

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim and pays compensation, it bears the burden of proof to 

justify modification or termination of benefits.3 Having determined that, an employee has a 

disability causally related to his or her federal employment, OWCP may not terminate 

compensation without establishing either that the disability has ceased or that it is no longer 

related to the employment.4 The right to medical benefits for an accepted condition is not 

limited to the period of entitlement to compensation for disability.5 To terminate authorization 

for medical treatment, OWCP must establish that the employee no longer has residuals of an 

employment-related condition that require further medical treatment.6

 

3 Curtis Hall, 45 ECAB 316 (1994).

4

Jason C. Armstrong, 40 ECAB 907 (1989).

5 Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

6 Calvin S. Mays, 39 ECAB 993 (1988).
6

ANALYSIS -- ISSUE 1

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

April 18, 2016. It found that the weight of the medical opinion evidence was with Dr. Kramer, 

the referral physician. 

The Board finds that OWCP has met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective April 18, 2016.

In his October 7, 2015 narrative report, Dr. Kramer detailed appellant’s factual and 

medical history and reported findings upon physical examination. He opined that there was no 

evidence of any ongoing disability to the left ankle. Dr. Kramer noted that there was no 

evidence of any posterior tibial tendinitis as appellant could unilateral toe rise on the left side 

without any discomfort and there was no discomfort along the course of the posterior tibial 

tendon. He noted that appellant was only receiving podiatry treatment. Dr. Kramer opined that 

appellant did not require any further treatment as there was no evidence of any ongoing disability 

based on his evaluation. He noted that there was no evidence of calf atrophy after 21 months of 

persistent pain in the left ankle and concluded that appellant had no ongoing orthopedic disability 

to the left ankle. Dr. Kramer opined that appellant had reached MMI from the left ankle sprain 

and that he was able to return to his date-of-injury position without restrictions. 

In his December 14, 2015 addendum report, Dr. Kramer indicated that, while appellant 

had mild pes planus, there was no evidence of disabling pain. He explained that pes planus was 

an ordinary variant of human anatomy. In response to the question of whether having flatfoot 

put more strain on the posterior tibial tendon, Dr. Kramer noted that appellant had a normal 

examination. He explained that appellant was able to single toe rise on the affected leg without 

any discomfort, which indicated that the posterior tibial tendon functioned fully and caused the 

posterior tibial tendon to contract, which elicited no complaints of discomfort. Appellant was 

also able to invert his ankle fully without any discomfort. Dr. Kramer reiterated that appellant 

was not temporarily totally disabled. 

The Board finds that Dr. Kramer’s opinion represents the weight of the medical evidence 

in this case. Dr. Kramer provided a detailed medical report reviewing the numerous medical 

reports and evidence of record. He unequivocally opined that appellant did not have continuing 

residuals of an employment-related condition and provided a medical explanation supported by 

objective findings. Dr. Kramer’s opinion was based on an accurate background.7

Dr. Garber, a podiatrist, opined that appellant had residuals and disability from his work 

injury. However, she failed to provide a well-rationalized opinion with supporting objective 

evidence. In an April 13, 2015 attending physician’s report and an April 8, 2016 medical note,

Dr. Garber diagnosed tibialis tendinitis and acquired flatfoot. She indicated that appellant’s 

severe, acquired flatfoot deformity was due to the posterior tibial tendon dysfunction that 

 

7 See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy 

and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested and 

the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be 

given to each individual report).
7

developed as a result of the work-related injury. However, Dr. Garber failed to provide objective 

findings to support such conditions or provide a well-rationalized opinion which addressed that 

pes planus (flatfoot) was a normal human variation and how and whether the twisting injury had 

caused or aggravated appellant’s “severe acquired flatfoot deformity” to the point surgery was 

indicated. 

The Board has long held that medical opinions not containing rationale on causal 

relationship are of diminished probative value and are generally insufficient to meet appellant’s 

burden of proof.8 Moreover, the Board has held that the mere fact that an employee was 

asymptomatic before the injury, but symptomatic after the injury is insufficient, without 

supporting rationale, to establish causal relationship.9 Dr. Garber did not address the issue of 

appellant’s underlying pes planus condition. For these reasons, her opinion is insufficiently 

rationalized to support that appellant has any residuals of his accepted conditions to cause a 

conflict with Dr. Kramer’s opinion. The Board finds that the medical evidence of record was 

sufficient for OWCP to meet its burden of proof in this case. Dr. Kramer provided a wellrationalized opinion that represents the weight of the medical evidence.

On appeal, counsel reiterates appellant’s argument that a conflict in medical evidence 

existed between Dr. Garber and Dr. Kramer. However, for the reasons set forth above,

Dr. Kramer’s report represents the weight of the medical evidence as Dr. Garber’s reports are 

insufficient to cause a conflict of medical opinion with Dr. Kramer.

LEGAL PRECEDENT -- ISSUE 2

As OWCP properly terminated appellant’s compensation benefits, the burden shifts to the 

employee to establish continuing disability after that date causally related to his or her accepted 

injury.10 To establish causal relationship between the accepted conditions as well as any 

attendant disability claimed and the employment injury, the employee must submit rationalized 

medical evidence based on a complete medical and factual background supporting such causal 

relationship.11 Causal relationship is a medical issue and the medical evidence required to 

establish causal relationship is rationalized medical evidence.12

It is well established that OWCP must review all evidence submitted by a claimant and 

received by OWCP prior to issuance of its final decision.13 As the Board’s decisions are final as 

to the subject matter appealed, it is crucial that all evidence relevant to the subject matter of the 

 

8 Carolyn F. Allen, 47 ECAB 240 (1995).

9 Thomas D. Petrylak, 39 ECAB 276 (1987).

10 Manuel Gill, 52 ECAB 282 (2001). See G.C., Docket No. 17-0062 (issued December 11, 2017).

11 R.F., Docket No. 16-0845 (issued July 25, 2017); R.D., Docket No. 16-0982 (issued December 20, 2016).

12 Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

13 William A. Couch, 41 ECAB 548 (1990).
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claim, which was properly submitted to OWCP prior to the time of issuance of its final decision, 

be addressed by OWCP.14

ANALYSIS -- ISSUE 2

Subsequent to OWCP’s April 18, 2016 termination decision appellant submitted 

additional medical evidence from his attending physician, Dr. Garber. In these reports,

Dr. Garber consistently maintained that he continued to suffer from residuals of his employmentrelated foot conditions and that these conditions had progressed to the point that reconstructive 

surgery was warranted. Although appellant submitted these reports prior to the issuance of the 

July 29, 2016 decision, there is no evidence that the hearing representative reviewed them. 

As OWCP’s hearing representative did not review all the evidence of record prior to 

issuing her July 29, 2016 decision, the Board finds that the case is not in posture for decision 

with regard to whether appellant met his burden of proof to establish continuing residuals or 

disability causally related to the accepted January 9, 2014 employment injury. For this reason, 

the case will be remanded to OWCP to enable it to properly consider all the evidence submitted 

at the time of the July 29, 2016 decision. Following such further development as OWCP deems 

necessary, it shall issue a de novo decision on the issue of continuing employment-related 

disability or residuals.

CONCLUSION

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective April 18, 2016. The Board further finds that this 

case is not in posture for decision as to whether he has met his burden of proof to establish 

continuing disability or residuals causally related to the accepted January 9, 2014 employment 

injury.

 

14 Id.
9

ORDER

IT IS HEREBY ORDERED THAT the July 29, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: April 6, 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