United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.M., Appellant

and

DEPARTMENT OF THE NAVY, MILITARY 

SEALIFT COMMAND, NAVAL STATION,

Norfolk, VA, Employer

__________________________________________

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Docket No. 18-0817

Issued: May 17, 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 March 7, 2018 appellant, through counsel, filed a timely appeal from a January 29, 

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, following the January 29, 2018 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

ISSUE

The issue is whether appellant has met his burden of proof to establish total disability for 

the period June 1, 2016 to June 1, 2017, causally related to his accepted January 29, 2010 

employment injury.

FACTUAL HISTORY

On January 30, 2010 appellant, then a 29-year-old utility mechanic, filed a traumatic injury 

claim (Form CA-1) alleging that, on January 29, 2010, he sustained a soft tissue injury to his left 

foot and a fracture of his second toe on the left side when the roller ran over his foot while he 

walked up the ship’s gangway in the performance of duty. He stopped work on that date.

OWCP accepted his claim for fracture of one or more phalanges of the left foot, first and 

second digits, and left foot joint pain. It paid wage-loss compensation beginning March 16, 2010. 

On August 9, 2010 appellant returned to his date-of-injury position at the employing establishment. 

Subsequently OWCP accepted that on March 23, 2011 appellant sustained a recurrence of his 

January 29, 2010 employment injury.

On May 10, 2011 appellant underwent surgery on his left foot and stopped work. OWCP 

paid wage-loss compensation for total disability until November 30, 2011 when appellant returned 

to full duty.

On October 29, 2015 appellant filed a notice of recurrence (Form CA-2a) alleging that he 

sustained a recurrence of his accepted January 29, 2010 injury. He indicated that he returned to 

work, but could not wear steel toe shoes and could not stay on his feet for long periods of time. 

Appellant noted that he stopped work on August 30, 2015. 

On November 17, 2015 appellant underwent a second authorized left foot surgery. 

OWCP denied appellant’s recurrence claim by decision dated December 22, 2015. It found

that the medical evidence of record was insufficient to establish that he sustained a change or 

worsening of his accepted January 29, 2010 injury such that he was totally disabled from work

beginning August 30, 2015.

On January 8, 2016 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. A hearing was held on 

September 14, 2016. 

OWCP received a May 16, 2016 report by Dr. Blake E. Moore, a Board-certified 

orthopedic surgeon. He related that appellant was six months status postsurgery, had finished his 

work hardening program, and was doing excellent. Upon physical examination of appellant’s left 

foot, Dr. Moore observed healed plantar and dorsal incisions from his two left foot surgeries. He 

reported no pain and indicated that appellant was able to single stance weight-bear. Dr. Moore 

diagnosed status post neuroma revision excision. He reported that appellant could return to 

regular-duty work without restrictions. 

In a report dated August 5, 2016, Dr. Moore indicated that appellant complained of 

recurrent pain in his left foot and noted difficulties with his job because of the pain. He related 
3

that the employing establishment was unable to release appellant to full duty because of his

restrictions regarding what tasks he could perform. Upon physical examination of appellant’s left 

foot, Dr. Moore observed no areas of swelling or tenderness and good pulses to both the dorsalis 

pedis and posterior rib. Neurological and sensation examination were intact. Dr. Moore related 

that plain films of the left foot showed unchanged alignment with no osseous or ligamentous 

pathology. He provided an assessment of continued left lower extremity pain despite primary and 

revision second interspace neuroma excision. Dr. Moore indicated that he did not have any 

diagnostic possibilities and he was unsure of the cause of appellant’s continued pain. He noted: 

“I do not see any reason why [appellant] should not be able to do all of the capacities of his job at 

this point based off his physical exam[ination] findings.”

Appellant was also treated by Dr. Michael G. Charles, a Board-certified family physician, 

who indicated in an August 19, 2016 report that appellant continued to complain of bilateral leg 

pain. Dr. Charles referred appellant to a physical medicine specialist for evaluation. He

recommended that appellant work a desk job off the ship until he got a proper diagnosis and 

treatment for his leg pains.

In a September 23, 2016 report, Dr. Joshua B. Macht, a Board-certified internist, described 

appellant’s history of injury and noted that he currently complained of severe left foot and ankle 

pain. Upon physical examination of appellant’s left foot, he observed tenderness upon palpation 

about the medial ankle and the region overlying his scars and mild tenderness upon palpation about 

the great toe. Dr. Macht diagnosed traumatic injury to left foot and ankle with left great toe distal 

phalanx fracture and postoperative state of left foot.

By decision dated November 29, 2016, an OWCP hearing representative affirmed the 

December 22, 2015 decision, with modification. He found that the medical evidence of record 

was sufficient to establish that appellant was totally disabled from work for the period 

November 17, 2015 through his release to full duty on May 16, 2016, but that the evidence of 

record did not support continuing disability for any period after May 16, 2016. The hearing 

representative noted that the evidence of record established that on November 17, 2015 appellant 

underwent authorized surgery for his accepted left foot condition and that he was disabled from 

work following this procedure until May 16, 2016, when Dr. Moore released him to regular duty. 

OWCP paid wage-loss compensation for the period November 17, 2015 to May 16, 2016. 

Appellant began to receive medical treatment from Dr. Sun Kwon, specializing in physical 

medicine and rehabilitation. In reports dated March 30 to April 26, 2017, Dr. Kwon related 

appellant’s complaints of chronic pain secondary to left foot neuroma and noted that appellant had 

been off work due to injury since August 2015. Upon physical examination of appellant’s left 

foot, he observed tenderness to palpation on the left foot front plantar surface and intact sensation 

to light touch. Range of motion of appellant’s left ankle was full. Dr. Kwon diagnosed plantar 

neuroma of the left foot and chronic pain syndrome. 

On May 8, 2017 appellant filed a claim for compensation (Form CA-7) for wage-loss 

compensation for the claimed period January 2 to May 1, 2017. On June 5, 2017 he filed another

Form CA-7 claiming wage-loss compensation for the period June 1, 2016 to June 1, 2017. 

OWCP issued development letters dated May 8 and June 5, 2017 to appellant informing 

him that the evidence received was insufficient to establish that he was totally disabled from work 
4

for the period June 1, 2016 to June 1, 2017. It requested that he submit additional evidence to 

establish that he was unable to work during the claimed period as a result of his accepted 

January 29, 2010 employment injury. 

In a May 31, 2017 note, Dr. Moore related that appellant had called his office because he 

noted an error in his medical records. Appellant clarified that he did not go to physical therapy or 

work hardening because OWCP had not approved it. Dr. Moore approved appellant being out of 

work until he sought a second opinion. 

By decision dated June 9, 2017, OWCP denied appellant’s claim for wage-loss 

compensation for the period January 2 to May 1, 2017. It found that the medical evidence 

submitted was insufficient to establish that he was unable to work during the claimed period due 

to his accepted January 29, 2010 employment injury.

OWCP received a May 30, 2017 report by Dr. Kwon. Dr. Kwon indicated that appellant 

sustained a left foot crush injury and neuroma at work on January 29, 2010, which required 

surgery. He related that appellant’s injury was affecting his ability to work, tolerance of activities, 

and daily function. Dr. Kwon authorized appellant to return to work with restrictions of no lifting 

over 30 pounds, no negotiation more than one flight of stairs, and no standing more than 30 minutes 

with 10-minute breaks.

On June 19, 2017 appellant, through counsel, requested a telephonic hearing before a 

representative from OWCP’s Branch of Hearings and Review.4

In a June 19, 2017 statement, appellant asserted that Dr. Moore had incorrectly noted in his 

medical records that he had gone to therapy and work hardening. He alleged that this incorrect 

assumption was why Dr. Moore noted that he could not find a reason for appellant’s continued 

pain. Appellant pointed out that Dr. Moore had acknowledged his incorrect statement in a May 31, 

2017 note.

By decision dated July 6, 2017, OWCP denied appellant’s claim for wage-loss 

compensation for the period June 1, 2016 to June 1, 2017. It found that the medical evidence 

submitted was insufficient to establish that he was unable to work during the claimed period due 

to his accepted January 29, 2010 employment injury. 

On July 12, 2017 appellant, through counsel, requested a telephonic hearing before a 

representative from OWCP’s Branch of Hearings and Review. 

In a July 13, 2017 report, Dr. Kwon related appellant’s complaints of chronic pain 

secondary to a January 29, 2010 employment injury. He provided physical examination findings 

and diagnosed chronic pain syndrome, plantar neuroma of the left foot, headaches, and peripheral 

vascular disease and also noted his chronic use of opiate drugs for therapeutic purposes. Dr. Kwon 

noted that functionally he was independent in all activities of daily living and that he ambulated 

without a cane.

 

4 Appellant also requested reconsideration of the June 9, 2017 decision. By letter dated July 22, 2017, counsel 

requested that OWCP proceed with a telephonic hearing before the Branch of Hearings and Review. 
5

Appellant received treatment from Dr. Beverly Roberts-Atwater, Board-certified in 

physical medicine and rehabilitation. In a September 8, 2017 report, Dr. Roberts-Atwater

reviewed appellant’s history of injury and related his complaints of continued left foot pain and 

difficulty walking. Upon physical examination of appellant’s left foot, she observed mild atrophy 

on the lateral top of the left foot and decreased range of motion on the cuneiform bones with pain. 

Dr. Roberts-Atwater diagnosed plantar neuroma of the left foot, chronic pain syndrome, and injury 

of the plantar nerve on the left.

A September 25, 2017 nerve conduction velocity (NCV) and electromyography (EMG) 

studies showed no evidence of a left tibial or peroneal motor mononeuropathy or of a left sural 

sensory or left superficial peroneal sensory mononeuropathy. 

On November 27, 2017 a hearing was held, which addressed OWCP’s June 9 and July 6, 

2017 denial decisions. The record was held open for 30 days.

Following the hearing, OWCP received a December 29, 2017 report by Dr. Kwon who 

noted that appellant had chronic pain secondary to left foot neuroma, status post removal of 

neuroma surgery following a January 29, 2010 work injury. Upon physical examination, 

Dr. Kwon observed tenderness to palpation of the left foot front plantar. He diagnosed chronic 

pain syndrome and plantar neuroma of the left foot. 

By decision dated January 29, 2018, an OWCP hearing representative affirmed the June 9 

and July 6, 2017 decisions. 

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.6 For each period of disability 

claimed, the employee has the burden of proof to establish that he or she was disabled from work 

as a result of the accepted employment injury.7 Whether a particular injury causes an employee to 

become disabled from work, and the duration of that disability, are medical issues that must be 

proven by a preponderance of probative and reliable medical opinion evidence.8

Under FECA the term disability means incapacity, because of an employment injury, to 

earn the wages that the employee was receiving at the time of injury.9 Disability is, thus, not 

synonymous with physical impairment which may or may not result in an incapacity to earn 

wages.10 An employee who has a physical impairment causally related to his or her federal 

employment, but who nonetheless has the capacity to earn the wages that he or she was receiving 

 

5 Supra note 2.

6 See B.K., Docket No. 18-0386 (issued September 14, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005); 

Nathaniel Milton, 37 ECAB 712 (1986).

7 See D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S. Jefferson, id.

8 See Edward H. Horton, 41 ECAB 301 (1989).

9 S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

10 Roberta L. Kaaumoana, 54 ECAB 150 (2002).
6

at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning 

capacity.11 When, however, the medical evidence of record establishes that the residuals or 

sequelae of an employment injury are such that, from a medical standpoint, they prevent the 

employee from continuing in his or her employment, he or she is entitled to compensation for any 

loss of wages.12

Causal relationship is a medical issue, and the medical evidence required to establish a 

causal relationship is rationalized medical evidence.13 The evidence submitted must be reliable, 

probative, and substantial.14 The physician’s opinion must be based on the facts of the case and 

the complete medical background of the employee, must be one of reasonable medical certainty, 

and must include objective findings in support of its conclusions.15

The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed.16 To do so would essentially allow employees to self-certify their disability and 

entitlement to compensation.17

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish disability for 

the period from June 1, 2016 to June 1, 2017, causally related to his accepted January 29, 2010 

employment injury.

The medical evidence received in support of appellant’s claim includes reports by

Dr. Moore dated May 16, 2016 to May 31, 2017. In a May 16, 2016 report, Dr. Moore noted that 

appellant was six months status postsurgery and was doing excellent. Upon physical examination 

of appellant’s left foot, he observed no pain and indicated that appellant was able to single stance 

weight-bear. Dr. Moore opined that appellant could return to full-duty work without restrictions. 

In an August 5, 2016 report, he provided additional examination findings of no areas of swelling 

or tenderness and good pulses to both the dorsalis pedis and posterior rib of the left foot. 

Neurological and sensory examinations were intact. Dr. Moore related that he was unsure of the 

cause of appellant’s continued pain. He reported: “I do not see any reason why [appellant] should 

not be able to do all of the capacities of his job at this point based off his physical exam[ination]

findings.” The Board finds that these reports do not support appellant’s claimed disability. On 

the contrary, Dr. Moore reported unremarkable examination findings and concluded that appellant 

was able to return to full-duty work.

 

11 Merle J. Marceau, 53 ECAB 197 (2001).

12 See V.G., Docket No. 18-0936 (issued February 6, 2019).

13 D.W., Docket No. 18-0644 (issued November 15, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14 Id.

15 20 C.F.R. § 10.501(a)(2).

16 See S.G., Docket No. 18-1076 (issued April 11, 2019).

17 See B.K., supra note 6; William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).
7

Appellant has alleged that Dr. Moore’s conclusion regarding his work status was based on 

the mistaken information that he had completed a work hardening program. In a May 31, 2017 

note, Dr. Moore acknowledged his error in noting that appellant had completed a work hardening 

program. He reported that he was “approving [appellant] being out of work until he sought a 

medical opinion.” Dr. Moore, however, did not provide medical rationale explaining how 

appellant’s accepted left foot injury precluded him from returning to full duty work after his second 

surgery.

18

 The Board has found that medical evidence must include rationale explaining how the 

physician reached the conclusion that he or she is supporting.19 Dr. Moore failed to explain how 

appellant’s inability to work from June 1, 2016 to June 1, 2017 was causally related to his accepted 

January 29, 2010 employment injury. 

Appellant was also treated by Dr. Charles. In an August 19, 2016 report, Dr. Charles

related appellant’s complaints of continued bilateral leg pain. He recommended that appellant 

work a desk job off the ship until he got a proper diagnosis and treatment for his leg pains. 

Dr. Charles did not opine that appellant was totally disabled from work, but that he could work 

with specific restrictions. He did not, however, provide an opinion or specify that he could only 

work light duty due to his January 29, 2010 employment injury. Accordingly, Dr. Charles’ report 

fails to establish disability from work during the claimed time period due to appellant’s accepted 

left foot injury.20 

Similarly, in a May 30, 2017 report, Dr. Kwon authorized appellant to return to work with 

restrictions of no lifting over 30 pounds, no negotiation more than one flight of stairs, and no 

standing more than 30 minutes with 10-minute breaks. He did not, however, explain how these 

restrictions were related to his accepted January 29, 2010 employment injury. Dr. Kwon did not 

provide an explanation or refer to objective examination findings to support his opinion that 

appellant could only work with specific restrictions. His opinion is, therefore, of diminished 

probative value and is insufficient to establish appellant’s claim.

21

In a September 23, 2016 report, Dr. Macht reviewed appellant’s history of injury and noted 

his current complaints of severe left foot and ankle pain. He provided examination findings and 

diagnosed traumatic injury to left foot and ankle with left great toe distal phalanx fracture and 

postoperative state of left foot. Dr. Macht did not, however, provide an opinion regarding 

appellant’s inability to work. As he did not address the relevant issue of disability from 

employment, his report is of diminished probative value and is insufficient to establish appellant’s 

claimed disability.

22

 Likewise, Dr. Kwon’s March 30 to April 26, 2017 reports also do not address 

appellant’s claimed disability. 

 

18 See K.W., 59 ECAB 271 (2008).

19 Beverly A. Spencer, 55 ECAB 501 (2004).

20 See M.C., Docket No. 16-1238 (issued January 26, 2017).

21 S.B., Docket No. 13-1162 (issued December 12, 2013).

22 See William A. Archer, 55 ECAB 674 (2004).
8

The Board finds that the medical evidence submitted is insufficient to establish that 

appellant was totally disabled for the period June 1, 2016 to June 1, 2017 as a result of his

January 29, 2010 employment injury. 

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 appellant has not met his burden of proof to establish total disability 

for the period June 1, 2016 to June 1, 2017, causally related to his accepted January 29, 2010 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the January 29, 2018 merit decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 17, 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