United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.O., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Newburgh, NY, Employer

__________________________________________

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Docket No. 19-0326

Issued: July 16, 2019

Appearances: Case Submitted on the Record

Brigitte M. Gulliver, 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 November 26, 2018 appellant, through counsel, filed a timely appeal from an August 8, 

2018 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.3

 

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.

3 The Board notes that appellant submitted additional evidence on appeal. 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

ISSUE

The issue is whether OWCP has abused its discretion by denying appellant’s request for 

authorization of right foot surgery.

FACTUAL HISTORY

On September 15, 2015 appellant, then a 27-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained a right ankle/foot injury on 

September 12, 2015 while in the performance of duty. He asserted that he was on his mail delivery 

route when a dog chased him and that the injury occurred when he went up some stairs to escape 

the dog. Appellant stopped work on September 12, 2015, but later returned to light-duty work. 

OWCP accepted appellant’s claim for sprain of an unspecified ligament of the right ankle 

and unspecified sprain of the right foot.

Appellant had visited an emergency room on September 12, 2015 where Dr. Alexis 

Johnson, a Board-certified emergency medicine physician, produced a report on that date in which 

he detailed the September 12, 2015 twisting incident and diagnosed right foot and ankle sprain. 

Dr. Johnson obtained right foot x-rays which showed no fracture and he placed appellant’s right 

foot/ankle in a splint.

Appellant received follow-up care from Dr. Mikhail Itingen, a Board-certified orthopedic 

surgeon, who advised on September 16, 2015 that appellant had removed his splint and was 

walking without crutches. Dr. Itingen’s physical examination of appellant’s right foot/ankle 

demonstrated minimal swelling, no ecchymosis, mild tenderness at the anterolateral ankle, and 

normal motor function. 

The findings of an October 21, 2015 magnetic resonance imaging (MRI) scan of 

appellant’s right foot showed a mild-to-moderate chronic Lisfranc sprain with subcortical cysts in 

the medial cuneiform and base of the first metatarsal. The scan also showed slight arthrosis of the 

dorsolateral second tarsometatarsal (TMT) joint and distal peroneus longus thickening at the 

plantar base of the first metatarsal.

In a November 12, 2015 report, Dr. Itingen noted that recent right foot x-rays showed mild 

TMT spurring. He placed appellant on light-duty work. On February 8, 2016 Dr. Itingen advised 

that appellant had reported his right foot/ankle condition had improved and that he had been 

working full duty. Upon physical examination, he observed mild swelling and spurring over the 

first TMT joint. Dr. Itingen provided a diagnosis of TMT ligament sprain.

In a March 28, 2018 report, Dr. John L. Zboinski, a podiatrist specializing in foot and ankle 

surgery, reported that appellant made an initial visit for his workers’ compensation case. He 

provided a summary of appellant’s factual and medical history, including a description of the 

September 12, 2015 injury, and reported findings of the physical examination he conducted. 

Appellant had a positive anterior drawer sign in the right ankle, pain across the midtarsal joint of 

the right foot, and pain upon range of motion of the right ankle. Dr. Zboinski advised that appellant 
3

had an antalgic gait and that he might have some Lisfranc instability. On April 5, 2018

Dr. Zboinski advised that appellant could continue to work full duty.

In a June 4, 2018 report, Dr. Zboinski provided an assessment of appellant’s right 

foot/ankle condition which was similar to his previous assessments. He diagnosed right foot pain, 

post-traumatic arthritis of the right ankle, and unspecified sprain of the right foot. Dr. Zboinski 

recommended surgical excision of the metatarsal bossing/exostosis of appellant’s right foot and 

requested that OWCP provide authorization for such surgery. He noted, “Based upon the history 

as provided by the patient, the subjective complaints, and the objective findings, it is within a 

reasonable degree of podiatric medical certainly that the above[-]noted diagnoses are causally 

related to the [September 12, 2015] accident....”

4 The request for right foot surgery was made on 

July 10, 2018.

In a July 11, 2018 development letter, OWCP requested that appellant submit additional 

evidence in support of his request for authorization of right foot surgery, including a physician’s 

rationalized medical opinion on the issue of causal relationship between the September 12, 2015 

employment injury and the proposed surgery. It afforded him 30 days to submit such evidence.

Appellant subsequently submitted an April 20, 2018 MRI scan of his right foot/ankle which 

indicated that the bone marrow signal of the osseous structures of his right foot was intact without 

occult fracture or bone marrow edema/contusion. The scan listed an impression of no acute bony 

or ligamentous findings and intact anterior talofibular ligament.

In a July 25, 2018 report, Dr. Zboinski discussed the September 12, 2015 employment 

injury and advised that, when he first examined appellant, he exhibited enlargement of the medial 

cuneiform area of his right foot with pain upon direct palpation.5 He noted that appellant had 

denied injury to that area of his right foot either before or after suffering the September 12, 2015 

injury. Dr. Zboinski opined that the September 12, 2015 employment incident was, within a 

reasonable degree of podiatric medical certainty, the cause of appellant’s right foot pain and the 

diagnosed conditions of unspecified ligament sprain of the right ankle and unspecified sprain of 

the right foot. He further indicated that appellant recently underwent a right foot MRI scan which 

demonstrated no significant pathology and he explained that a ligamentous sprain of the right foot 

can lead to palpable enlargement of the peri-joint area of the right foot. Dr. Zboinski noted, “This 

can slowly develop over [two] years and would be considered somewhat degenerative in nature. 

The area has not progressed to the point where it’s appreciable on MRI [scan] evaluation.” 

Dr. Zboinski maintained that surgical intervention was warranted in order to remodel appellant’s 

right foot and allow him to wear a shoe with less pain. He advised that appellant only had pain 

and enlargement in his right foot and noted that there were no preexisting conditions contributing 

to his right foot pain. Dr. Zboinski indicated, “Again, this is related to the accident of 

September 12, 2015.”

 

4 Dr. Zboinski opined that the September 12, 2015 accident was a competent producing cause for appellant’s 

clinical presentation, his complaints were consistent with the history of injury, and his history of injury was consistent 

with the objective findings.

5 Dr. Zboinski observed that appellant currently had palpable enlargement of the first metatarsocuneiform and 

cuneiform navicular areas of his right foot.
4

In July 2018 OWCP referred appellant’s case to Dr. Ari Kaz, a Board-certified orthopedic 

surgeon serving as an OWCP district medical adviser (DMA). It requested that he provide an 

opinion regarding whether the proposed right foot surgery was necessitated by appellant’s 

September 12, 2015 employment injury.

In an August 6, 2018 report, the DMA noted that, although Dr. Zboinski had opined that 

appellant’s right foot pain was due to midfoot osteophytes occurring over time due to the 

September 12, 2015 employment injury, an October 21, 2015 MRI scan showed slight arthrosis of 

the dorsolateral second TMT joint of the right foot, indicating that TMT arthritis was already 

present by the date of the scan. He also noted that Dr. Itingen had reported that x-rays from 

November 12, 2015 showed TMT spurring in the right foot. The DMA opined that diagnostic 

studies from within two months of the September 12, 2015 injury both indicate the presence of 

TMT arthrosis and dorsal TMT spurring and therefore these studies directly refuted the opinion of

Dr. Zboinski, who asserted that the spurring developed over a two-year period after the injury. 

Moreover, although Dr. Zboinski indicated that appellant’s right foot problem was degenerative 

in nature, the April 20, 2018 MRI scan made no mention of a degenerative process.

The DMA further maintained that, if the right foot spurring was due to a degenerative 

process significant enough to cause pain severe enough to warrant surgical intervention, one would 

expect marrow edema or some other evidence of arthritis in the diagnostic studies. However, there 

was no evidence of record supporting the existence of marrow edema or arthritis in appellant’s 

right foot. The DMA advised that the April 20, 2018 MRI scan interpretation made no mention of 

marrow edema or a degenerative process, and that it showed no evidence of inflammation, edema, 

or bruising in the midfoot. He indicated that, for these reasons, the medical evidence of record did 

not support that the surgical intervention proposed by Dr. Zboinski was necessitated by the 

accepted employment injury. Moreover, the evidence did not support that the employment injury 

was “a source of pain significant enough that excision will provide symptomatic relief.” The DMA

concluded that the proposed surgery “is not medically indicated, and is not causally related to the 

work injury of [September 12, 2015].”

By decision dated August 8, 2018, OWCP exercised its discretion and denied appellant’s 

request for authorization of right foot surgery. It found that the weight of the medical evidence 

with respect to this matter rested with the well-rationalized opinion of the DMA. OWCP further 

noted that Dr. Zboinski had not provided a rationalized medical opinion regarding causal 

relationship between the September 12, 2015 employment injury and the proposed surgery.

LEGAL PRECEDENT

Section 8103(a) of FECA states in pertinent part: “The United States shall furnish to an 

employee who is injured while in the performance of duty, the services, appliances, and supplies 

prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely 

to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of 

the monthly compensation.”

6

 

 

6 5 U.S.C. § 8103. 
5

The Board has found that OWCP has great discretion in determining whether a particular 

type of treatment is likely to cure or give relief.7 The only limitation on OWCP’s authority is that 

of reasonableness.8 Abuse of discretion is generally shown through proof of manifest error, clearly 

unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable 

deductions from established facts. It is not enough to merely show that the evidence could be 

construed so as to produce a contrary factual conclusion.9 In order to be entitled to reimbursement 

of medical expenses, it must be shown that the expenditures were incurred for treatment of the 

effects of an employment-related injury or condition.10 Proof of causal relationship in a case such 

as this must include supporting rationalized medical evidence.11

ANALYSIS

The Board finds that OWCP has not abused its discretion by denying appellant’s request 

for authorization of right foot surgery.

On June 4, 2018 Dr. Zboinski recommended surgical excision of the metatarsal 

bossing/exostosis of appellant’s right foot and requested that OWCP provide authorization for such 

surgery. The Board finds that OWCP correctly exercised its discretion and denied appellant’s 

request for authorization of such right foot surgery. OWCP properly found that the weight of the 

medical evidence with respect to this matter rested with the well-rationalized opinion of the DMA. 

In an August 6, 2018 report, the DMA found that the proposed surgery was not necessitated by the 

September 12, 2015 employment injury.12

In his August 6, 2018 report, the DMA noted that although Dr. Zboinski opined that 

appellant’s right foot pain was due to midfoot osteophytes occurring over time due to the 

September 12, 2015 employment incident, diagnostic studies from October and November 2015 

showed that TMT arthritis was already present by the time of the September 12, 2015 employment 

injury. He further explained that, although Dr. Zboinski indicated that appellant’s right foot 

problem was degenerative in nature, an April 20, 2018 MRI scan made no mention of a 

degenerative process. The DMA maintained that, if the right foot spurring was due to a 

degenerative process significant enough to cause pain severe enough to warrant surgical 

intervention, one would expect marrow edema or some other evidence of arthritis in the diagnostic 

studies. However, there was no evidence of record supporting the existence of marrow edema or 

arthritis in appellant’s right foot. The DMA concluded that the medical evidence of record did not 

support that the surgical intervention proposed by Dr. Zboinski was necessitated by the accepted 

 

7 R.C., Docket No. 18-0612 (issued October 19, 2018); Vicky C. Randall, 51 ECAB 357 (2000).

8 B.L., Docket No. 17-1813 (issued May 23, 2018); Lecil E. Stevens, 49 ECAB 673, 675 (1998).

9 S.W., Docket No. 18-1529 (issued April 19, 2019); Rosa Lee Jones, 36 ECAB 679 (1985).

10 J.R., Docket No. 17-1523 (issued April 3, 2018); Bertha L. Arnold, 38 ECAB 282, 284 (1986).

11 Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. Benton, 15 ECAB 48, 49 (1963).

12 It is noted that OWCP accepted appellant’s claim for sprain of an unspecified ligament of the right ankle and 

unspecified sprain of the right foot.
6

September 15, 2015 employment injury.13 The Board notes that the weight of the medical 

evidence with respect to the proposed right foot surgery rests with the opinion of the DMA because 

his opinion is supported by adequate medical rationale.14

The Board further notes that Dr. Zboinski’s reports merely contain conclusory opinions of 

an employment-related need for right foot surgery without the necessary rationale explaining how 

the accepted September 12, 2015 employment injury, a soft-tissue injury, was sufficient to 

necessitate the proposed surgery. Dr. Zboinski’s reports are of limited probative value on the 

underlying issue of this case as the Board has held that such conclusory opinions are insufficient to 

meet a claimant’s burden of proof to establish a claim.15 Although Dr. Zboinski indicated in his 

July 25, 2018 report that appellant had no right foot problems prior to September 12, 2015, he did

not explain how this opinion was supported by the evidence of record, including the diagnostic 

studies of appellant’s right foot. He posited that appellant developed some type of degenerative

condition due to the accepted September 12, 2015 employment injury which necessitated right foot 

surgery, but his comments in this regard are vague and lack a rationalized medical explanation of 

how such a process could have occurred due to the employment injury. On appeal, counsel argues 

that Dr. Zboinski’s reports show that the proposed right foot surgery was necessitated by the 

September 12, 2015 injury, but the Board has explained the deficiencies of these reports.

As noted above, abuse of discretion is generally shown through proof of manifest error, 

clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and 

probable deductions from established facts.16 For the above-noted reasons, the Board finds that 

OWCP’s denial of appellant’s request for authorization of right foot surgery was reasonable and 

did not constitute an abuse of discretion.

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 has not abused its discretion by denying appellant’s request 

for authorization of right foot surgery.

 

13 As previously noted, appellant’s claim has only been accepted for right foot and ankle sprains. It has not been 

accepted for any bone or degenerative condition.

14 See W.C., Docket No. 18-1386 (issued January 22, 2019) (regarding the importance, when assessing medical 

evidence, of such factors as a physician’s knowledge of the facts and medical history, and the care of analysis 

manifested and the medical rationale expressed in support of the physician’s opinion).

15 J.D., Docket No. 14-2061 (issued February 27, 2015).

16 See supra note 9.
7

ORDER

IT IS HEREBY ORDERED THAT the August 8, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 16, 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