United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cedar Rapids, IA, Employer

__________________________________________

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Docket No. 20-0406

Issued: August 18, 2021

Appearances: Case Submitted on the Record

Thomas D. Wolle, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On December 10, 2019 appellant, through counsel, filed a timely appeal from a July 19, 

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.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 July 19, 2019 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 her burden of proof to establish total disability for 

the period July 12 through November 15, 2017 causally related to her accepted bilateral first

metatarsal phalangeal joint arthritis. 

FACTUAL HISTORY

On June 2, 2017 appellant, then a 55-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that she developed osteoarthritis in her right foot and great

toe as a result of her repetitive work duties, which included extensive walking. She indicated that 

she first became aware of her condition on March 1, 2015 and realized that it resulted from her 

federal employment on February 3, 2017. Appellant stopped work on May 15, 2017. 

In examination reports dated March 3 and May 17, 2017, Dr. Scott R. Ekroth, a Boardcertified orthopedic surgeon, related that appellant continued to complain of significant pain on 

her right first metatarsal phalangeal (MTP) joint. Examination of appellant’s right toe revealed 

pain on motion of the first MTP. Dr. Ekroth noted active problems of right foot hallux rigidus and 

right ankle and foot osteoarthritis.

In a June 6, 2017 letter, Dr. Nancy Boelter, a Board-certified family physician, related that 

she had examined appellant on February 3, and May 23 and 31, 2017 for complaints of increasing 

bilateral foot pain involving the great toe region. She indicated that x-ray examination had 

confirmed severe osteoarthritis of the right first MTP and moderate to severe on the left first MTP. 

Dr. Boelter reported that appellant had been off work since May 15, 2017. She opined that 

appellant’s severe osteoarthritis of her first MTP joint bilaterally was a result of walking long 

distances as a mail carrier.

Appellant submitted an August 9, 2017 examination report by Dr. Boelter with a majority 

of the report crossed out.

In a September 5, 2017 examination report, Dr. Ekroth related that appellant continued to 

have significant pain and limitations due to arthritis in her toe. He noted active problems of right 

foot hallux rigidus and right ankle and foot osteoarthritis. Dr. Ekroth reported that appellant was 

to undergo right first MTP fusion surgery and would likely be out of work for four months.

In a September 5, 2017 letter, Dr. Boelter reiterated that appellant suffered significant 

biomechanical deformities of her first MTP joints of both feet from years of long distance walking 

as a mail carrier. She listed her dates of treatment and opined that appellant should remain off 

work until September 21, 2017 when she underwent surgery.

On September 15, 2017 OWCP accepted appellant’s claim for aggravation of the right and 

left foot first MTP joint arthritis.

On October 25, 2017 appellant filed claims for wage-loss compensation (Form CA-7) for 

disability for the periods July 12 through October 23, 2017 and May 15 through July 11, 2017. On 

the reverse side of the claim form, she indicated that she used a combination of sick and annual 

leave from May 15 through July 11, 2017 and that she was on leave without pay (LWOP) status 

beginning July 12, 2017.
3

On November 16, 2017 appellant underwent authorized right first MTP fusion surgery. 

The operative report noted a preoperative diagnosis of right first MTP degenerative joint disease. 

In examination reports dated December 13, 2017 and January 23, 2018, Dr. Ekroth 

indicated that appellant was recovering well since her right first MTP fusion surgery. He 

conducted an examination and noted active problems of right foot hallux rigidus and right ankle 

and foot osteoarthritis. Dr. Ekroth completed a January 23, 2018 work status note, which reported 

that appellant could return to mainly sedentary work.

On January 26, 2018 appellant filed a claim for wage-loss compensation (Form CA-7) for 

disability for the period July 12 through December 1, 2017.

On January 24, 2018 appellant returned to part-time, modified duty working for two hours 

per day.

In a March 6, 2018 letter, Dr. Ekroth related that he first examined appellant on March 3, 

2017 for complaints of pain in both her first MTP joints. He noted that appellant underwent right 

first MTP joint fusion surgery on November 16, 2017. Dr. Ekroth explained that he initially placed 

appellant off work for two months after her surgery and placed her on mainly sedentary work on 

January 24, 2018.

On March 8, 2018 appellant underwent left first MTP joint fusion. The operative report 

noted a preoperative diagnosis of left first MTP degenerative joint disease.

In a March 26, 2018 letter, Dr. Boelter noted the dates she treated appellant for complaints 

of bilateral foot pain. She indicated that diagnostic testing and physical examination findings were 

consistent with advance osteoarthritis of appellant’s bilateral first MTP joints. Dr. Boelter reported 

that appellant failed conservative therapy and was referred to Dr. Ekroth in February 2017. She 

noted that appellant was placed off work due to ongoing pain and inability to complete her job 

duties as of May 15, 2017.

By decision dated May 9, 2018, OWCP denied appellant’s claim for wage-loss 

compensation for the period July 12 through November 15, 2017. It found that the medical 

evidence of record was insufficient to establish that she was unable to work during the claimed 

period due to her accepted bilateral first MTP joint conditions.4

In a separate decision of even date, OWCP also denied appellant’s claim for disability for 

the period May 15 through July 11, 2017. It found that the medical evidence of record was 

insufficient to establish that she was totally disabled from work during the claimed period due to 

her accepted conditions. 

On August 29, 2018 appellant returned to full-duty work.

On May 3, 2019 appellant, through counsel, requested reconsideration of the May 9, 2018 

decision concerning appellant’s claim for disability for the period July 12 through

 

4 OWCP also determined that since appellant underwent authorized surgery on November 16, 2017 for her right 

first MTP joint, she was entitled to wage-loss compensation beginning November 16, 2017.
4

November 15, 2017.

5

 Counsel indicated that an April 15, 2019 letter from Dr. Boelter supported 

that appellant was unable to perform her job duties from May 15 to November 16, 2017. Counsel

also noted that appellant was providing Dr. Boelter’s August 9, 2017 report that did not have 

sections crossed out. He also included a footnote, which indicated that appellant sought disability

from May 15 through July 11, 2017.

Appellant submitted an August 21, 2017 narrative report by Dr. Boelter who indicated that 

appellant presented with right foot pain with an onset of two years ago. Dr. Boelter related that 

appellant injured her foot at work related to arthritis. She provided examination findings and 

diagnosed bilateral foot pain and right foot osteoarthritis. Dr. Boelter reported that appellant’s 

condition was ongoing and recommended that she remain out of work until September 21, 2017. 

In an April 15, 2019 letter, Dr. Boelter related that it was her opinion that appellant could 

not have reasonably performed her required job duties from May 15 to November 16, 2017. She 

indicated that appellant was not able to stand or walk for 8 to 10 hours a day, squat, or perform

bending/lifting of mailbags due to severe foot pain and swelling of her first MTP joints of her feet. 

Dr. Boelter reported that appellant’s examination findings supported this as there was evidence of 

joint swelling and reduced range of motion.

By decision dated July 19, 2019, OWCP denied modification of the May 9, 2018 decision

concerning the period July 12 through November 15, 2017. 

LEGAL PRECEDENT

An employee seeking benefits under FECA6has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence.7 The term disability is defined as the incapacity, because of an employment injury, to 

earn the wages the employee was receiving at the time of the injury.8 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.9

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 the 

reliable, probative, and substantial medical evidence.10 The medical evidence required to establish 

causal relationship between a claimed period of disability and an employment injury is rationalized 

medical opinion evidence. The opinion of the physician must be based on a complete factual and 

 

5 Counsel indicated that OWCP failed to address appellant’s claim for disability for the period May 15 through 

July 11, 2017. However, as noted above, that period was addressed in a separate May 9, 2018 decision which was 

mailed to both appellant and counsel at their addresses of record.

6 Supra note 2.

7 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).

8 20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB 

397 (1999).

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

10 Amelia S. Jefferson, id.; William A. Archer, 55 ECAB 674 (2004).
5

medical background of the claimant, must be one of reasonable medical certainty, and must be 

supported by medical rationale explaining the nature of the relationship between the claimed 

disability and the specific employment factors identified by the claimant.11

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. To do so would essentially allow an employee to self-certify his or her disability and 

entitlement to compensation.12

ANALYSIS

The Board finds that this case is not in posture for decision.

Appellant requested wage-loss compensation for disability for the periods May 15 through 

July 11, 2017 and July 12 through November 15, 2017. In separate decisions dated May 9, 2018, 

OWCP denied appellant’s claim for wage-loss compensation. Appellant, through counsel,

subsequently requested reconsideration of the May 9, 2018 decision concerning the period July 12 

through November 15, 2017. He indicated that new medical evidence supported that appellant 

was unable to perform her job duties from May 15 to November 16, 2017. In its July 19, 2019 

decision, OWCP denied modification of the May 9, 2018 decision, which denied wage-loss 

compensation for the period July 12 through November 15, 2017.

In support of her wage-loss compensation claim, appellant submitted various reports and 

letters by Dr. Boelter. In a June 6, 2017 letter, Dr. Boelter recounted appellant’s complaints of 

bilateral foot pain involving the great toe region and indicated that x-ray examination had 

confirmed osteoarthritis of the right and left first MTP. She noted that appellant had been off work 

since May 15, 2017. In a March 26, 2018 letter, Dr. Boelter further explained that appellant was 

placed off work due to ongoing pain and inability to complete her job duties as of May 15, 2017. 

In an April 15, 2019 letter, she opined that appellant could not reasonably perform her required 

job duties from May 15 to November 16, 2017. Dr. Boelter reported that appellant was not able 

to stand or walk for 8 to 10 hours a day, squat, or perform bending/lifting of mailbags due to severe 

foot pain, reduced range of motion, and swelling of her first MTP joints.

The Board finds that, while the reports from Dr. Boelter are not completely rationalized, 

they are consistent in indicating that appellant was disabled from work due to her accepted 

osteoarthritis of the bilateral first MTP joints.

13

 Although the reports are insufficient to meet 

appellant’s burden of proof to establish the claim, they raise an uncontroverted inference between 

appellant’s accepted condition and resultant inability to work from July 12 through November 15, 

2017 and, thus, they are sufficient to require OWCP to further develop the medical evidence.14 

 

11 V.A., Docket No. 19-1123 (issued October 29, 2019).

12 See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, supra note 10; Fereidoon Kharabi, 52 

ECAB 291 (2001).

13 See D.G., Docket No. 18-0043 (issued May 7, 2019); see also E.J., Docket No. 09-1481 (issued 

February 19, 2010).

14 Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, 41 ECAB 354, 360 (1989).
6

It is well established that proceedings under FECA are not adversarial in nature and OWCP 

is not a disinterested arbiter.15 While the claimant has the responsibility to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence. It has the 

obligation to see that justice is done.16

The case should, therefore, be remanded for further development. On remand OWCP shall 

refer appellant to a physician in the appropriate field of medicine, along with the case record and 

a statement of accepted facts for a rationalized medical opinion as to whether appellant’s inability 

to work from July 12 through November 15, 2017 is causally related to her accepted employment 

conditions. If the second opinion physician disagrees with the explanations provided by

Dr. Boelter, he or she must provide a fully-rationalized explanation explaining why the accepted 

employment factors were insufficient to have caused appellant’s claimed disability. After this and 

other such further development of the case record as deemed necessary, OWCP shall issue a 

de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

 

15 M.T., Docket No. 19-0373 (issued August 22, 2019); B.A., Docket No. 17-1360 (issued January 10, 2018).

16 Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).
7

ORDER

IT IS HEREBY ORDERED THAT the July 19, 2019 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: August 18, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board