United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

JAMES G. RANDAN, Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Huntington, WV, Employer

__________________________________________

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Docket No. 19-1563

Issued: March 12, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On July 2, 2019 appellant filed a timely appeal from a June 20, 2019 merit decision of the 

Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.2

ISSUE

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

authorization for left lower extremity surgery.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the June 20, 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

FACTUAL HISTORY

On June 30, 2017 appellant, then a 44-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on June 29, 2017 he stepped out of his truck onto a grass-covered hole 

and sprained his left ankle while in the performance of duty. OWCP accepted the claim for sprain 

of other ligament of the left ankle (initial encounter), sprain of the left foot, and sprain of 

calcaneofibular ligament of the left ankle. Appellant stopped work on June 29, 2017 and did not 

return. He was placed on the supplemental rolls from August 14 to December 9, 2017 and on the 

periodic rolls commencing December 10, 2017.

On August 2, 2017 appellant underwent a magnetic resonance imaging (MRI) scan of the 

left ankle which revealed sprains of the deltoid ligament and calcaneofibular ligament.

Appellant treated with Dr. Kevin Brown, a podiatrist specializing in foot and ankle surgery, 

from August 17 to November 13, 2017. Dr. Brown diagnosed sprain of the calcaneofibular 

ligament of the left ankle and disorder of ligament left ankle, noting that he was totally disabled. 

He recommended an elastic bandage, a controlled ankle movement boot, and physical therapy.

Dr. Brown continued conservative treatment from December 28, 2017 to June 18, 2018 and noted 

minimal change in his condition. Appellant reported lumbar radiculopathy due to over 

compensation and gait abnormality due to the accepted left knee injury. On June 18, 2018

Dr. Brown continued to hold appellant off work pending examination of his back pain.

A left ankle MRI scan dated January 3, 2018 revealed no evidence of internal derangement 

and improvement of the tibiotalar joint effusion and subcutaneous edema.

Thereafter, OWCP referred appellant to a second opinion physician. In a July 27, 2018 

report, Dr. Syed A. Zahir, a Board-certified orthopedic surgeon, recounted the history of injury of 

the left foot and diagnosed left ankle with a sprain of the left ankle calcaneofibular ligament. He 

opined that appellant’s foot had healed almost completely and his accepted left foot and ankle 

injury required only local treatment, noting that he could perform full-time, light-duty work.

In reports dated July 17 to October 3, 2018, Dr. Brown diagnosed capsulitis, sprain of the 

calcaneofibular ligament of the left ankle, and disorder of the ligament of the left ankle and noted 

that appellant remained totally disabled from work.

OWCP determined that there was a conflict in medical opinion between Dr. Brown and

Dr. Zahir, regarding level of disability and work restrictions. It referred appellant to Dr. E. 

Gregory Fisher, a Board-certified orthopedic surgeon, to resolve the conflict of opinion as the 

impartial medical examiner (IME).

In a January 17, 2019 report, Dr. Fisher diagnosed sprained ligament of the left ankle, 

sprain of the left foot, sprained calcaneofibular ligament of the left ankle, all resolved without 

residuals. He also diagnosed nonwork-related extreme obesity, irritable bowel syndrome, and acid 

reflux. Dr. Fisher noted that examination of the back, and neurologic examination of the lower 

extremities were normal. He found no objective findings of residuals of the accepted conditions. 

However, because of dull tension-like pain over the left foot and ankle on prolonged walking and 

standing, appellant was unable to perform the duties of his job as a letter carrier. In response to 
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OWCP’s question as to whether the accepted conditions require continued medical treatment,

Dr. Fisher opined that, appellant “does not require any further definitive treatment, except 

supportive care of over-the-counter anti-inflammatory medications as needed and slip-on athletic 

ankle support as needed.” He noted that appellant could return to full-time, light-duty work.

In reports dated December 10, 2018 to February 7, 2019, Dr. Brown diagnosed Achilles 

tendinitis of the left lower extremity, capsulitis, sprain of the calcaneofibular ligament of the left 

ankle, and disorder of the ligament of the left ankle. He performed a subtalar injection and noted

that appellant remained totally disabled from work. On February 7, 2019 Dr. Brown treated 

appellant for complaints of worsening left ankle pain. He diagnosed Achilles tendinitis of the left 

lower extremity, capsulitis, sprain of the calcaneofibular ligament of the left ankle, and disorder 

of the ligament of the left ankle. Dr. Brown advised that appellant remained totally disabled from 

work.

In a letter received on March 17, 2019, appellant requested surgical authorization for 

release of the lower leg tendon and repair of the ankle ligament.

By decision dated March 18, 2019, OWCP denied authorization for surgical release of the 

lower leg tendon and repair of the ankle ligament. It accorded the weight of the medical opinion 

of Dr. Fisher, the referee physician, who opined that appellant required no further definitive 

treatment except supportive care.3

On March 28, 2019 appellant requested reconsideration. In support of his request, he 

submitted an April 4, 2019 report from Dr. Jeffrey K. Wu, a Board-certified orthopedist, who 

noted a two-year history of a work-related left ankle/foot injury for which conservative treatment 

failed. Dr. Wu diagnosed chronic left ankle pain and peroneal tendinitis/tendinopathy after 

previous sprain and recommended an updated MRI scan. He noted that surgical treatment was an 

option.

Dr. Brown treated appellant in follow up on April 10, 2019 and diagnosed Achilles 

tendinitis of the left lower extremity, capsulitis, sprain of the calcaneofibular ligament of the left 

ankle, and disorder of the ligament. He noted pain and swelling with instability of the left anterior 

talofibular ligament and calcaneofibular ligament. Dr. Brown recommended Brostrom repair for 

long-term stability and pain relief. 

On April 16, 2019 Dr. Wu treated appellant in follow up for chronic left ankle pain. 

Findings on examination revealed no demonstrated laxity with stress of the left ankle and 

tenderness at the tip of the lateral malleolus and inframalleolar portion. Dr. Wu reviewed a left 

ankle MRI scan performed April 11, 2019, which revealed no evidence of instability or internal 

derangement, nonspecific edema along the medial ankle, but no significant tear tendinopathy. He

diagnosed chronic left ankle pain, previous ankle sprain, and possible underlying peroneal 

tendinitis. Dr. Wu reviewed the April 10, 2019 report from Dr. Brown who recommended a lateral 

ligament reconstruction. He noted that appellant had not described symptoms consistent with 

chronic instability and his examination was not consistent with significant laxity. Dr. Wu opined 

 

3

Id.
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that appellant’s situation was difficult and a surgery would be considered exploratory with 

unpredictable results.

On April 17, 2019 the employing establishment offered appellant a full-time, modifiedduty assignment, effective April 18, 2019. On April 17, 2019 appellant accepted the position 

“under protest.”

In medical and surgical authorization request dated April 26 and 30, 2019, Dr. Wu again 

requested authorization to perform release of the lower left leg tendon and repair of the left ankle 

ligament.

On May 24, 2019 Dr. Wu performed a left peroneus longus tendon repair, left peroneus 

brevis tenolysis/debridement, and excision of accessory muscle belly. He diagnosed peroneal 

tendinitis on the left and chronic pain of the left ankle. In a progress note dated May 30, 2019,

Dr. Wu noted mild swelling and recommended that appellant remain nonweight bearing.

By decision dated June 20, 2019, OWCP denied modification of the March 18, 2019

decision. 

LEGAL PRECEDENT

Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies 

prescribed or recommended by a qualified physician which OWCP, under authority delegated by 

the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or 

aid in lessening the amount of monthly compensation.4 In interpreting section 8103(a), the Board 

has recognized that OWCP has broad discretion in approving services provided under FECA to 

ensure that an employee recovers from his or her injury to the fullest extent possible in the shortest 

amount of time.5 OWCP has administrative discretion in choosing the means to achieve this goal 

and the only limitation on OWCP’s authority is that of reasonableness.6

While OWCP is obligated to pay for treatment of employment-related conditions, appellant 

has the burden of proof to establish that the expenditure is incurred for treatment of the effects of 

an employment-related injury or condition.7 Proof of causal relationship in a case such as this 

must include supporting rationalized medical evidence.8 Therefore, in order to prove that the 

procedure is warranted, appellant must establish that the procedure was for a condition causally 

 

4 5 U.S.C. § 8103(a).

5 G.M., Docket No. 18-1710 (issued June 3, 2019); Dale E. Jones, 48 ECAB 648-49 (1997).

6 G.M., id.; Daniel J. Perea, 42 ECAB 214, 221 (1990) (abuse of discretion by OWCP is generally shown through 

proof of manifest error, clearly unreasonable exercise of judgment, or administrative actions, which are contrary to 

both logic, and probable deductions from established facts).

7 G.M., id.; Debra S. King, 44 ECAB 203, 209 (1992).

8

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986).
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related to the employment injury and that the procedure was medically necessary. Both of these 

criteria must be met in order for OWCP to authorize payment.9

ANALYSIS

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

By decision dated March 18, 2019, OWCP denied appellant’s authorization for surgical 

release of the lower leg tendon and repair of the ankle ligament. It accorded the special weight of 

the medical evidence opinion of Dr. Fisher, the referee physician. By decision dated June 20, 

2019, OWCP denied modification of the March 18, 2019 decision. 

The Board notes that Dr. Fisher’s January 17, 2019 report predates appellant’s March 17, 

2019 request for authorization for surgery. As no true conflict existed in the medical evidence at 

the time of the referral to Dr. Fisher on the issue of authorization for surgery, the Board finds that 

his report may not be accorded the special weight of an IME and should instead be considered for 

its own intrinsic value.10 The referral to Dr. Fisher is, therefore, considered to be that of a second 

opinion evaluation.11 While, at the time, Dr. Fisher opined that appellant did not require “any 

further definitive treatment, except supportive care,” he has not specifically addressed whether the 

requested surgical release of the lower leg tendon and repair of the ankle ligament is for treatment 

of a condition causally related to the employment injury or whether the procedure was medically 

necessary. 

The Board notes that proceedings under FECA are not adversarial in nature and OWCP is 

not a disinterested arbiter. The claimant has the burden of proof to establish entitlement to 

compensation. However, OWCP shares responsibility in the development of the evidence to see 

that justice is done.12 Once it undertakes development of the record, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues in the case.13 

Because further clarification is required with regard to Dr. Fisher’s opinion, the case must 

be remanded to OWCP.14 On remand, OWCP shall request a supplemental report from Dr. Fisher 

 

9 See Cathy B. Millin, 51 ECAB 331, 333 (2000).

10 See R.B., Docket No. 20-0109 (issued June 25, 2020); see also F.R., Docket No. 17-1711 (issued 

September 6, 2018).

11 See M.G., Docket No. 19-1627 (issued April 17, 2020); S.M., Docket No. 19-0397 (issued August 7, 2019) (the 

Board found that at the time of the referral for an impartial medical examination there was no conflict in medical 

opinion evidence; therefore, the referral was for a second opinion examination); see also Cleopatra McDougalSaddler, 47 ECAB 480 (1996) (the Board found that, as there was no conflict in medical opinion evidence, the report 

of the physician designated as the IME was not afforded the special weight of the evidence, but instead considered for 

its own intrinsic value as he was a second opinion specialist).

12 T.R., Docket No. 17-1961 (issued December 20, 2018); William J. Cantrell, 34 ECAB 1223 (1983).

13 Id.; Richard F. Williams, 55 ECAB 343, 346 (2004).

14 See F.V., Docket No. 18-0230 (issued May 8, 2020).
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to obtain a rationalized medical opinion as to whether appellant’s request for authorization for 

release of the lower leg tendon and repair of the ankle ligament is medically necessary due to the 

accepted employment injury. Following this and other such further development as deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the June 20, 2019 decision of the Office of Workers’

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

this decision of the Board.15

Issued: March 12, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

15 Christopher J. Godfrey, Deputy Chief Judge, was no longer a member of the Board effective January 20, 2021.