United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Phoenix, AZ, Employer

__________________________________________

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Docket No. 21-1266

Issued: May 13, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 19, 20201 appellant, through counsel, filed a timely appeal from a July 19, 2021 

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.

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

ISSUE

The issue is whether OWCP properly treated appellant’s request for work shoes as a 

recurrence of the need for medical treatment.

FACTUAL HISTORY

On December 14, 2018 appellant, then a 37-year-old city carrier, filed an occupational 

disease claim Form CA-2) alleging that he developed a bilateral toe condition due to factors of his 

federal employment, including excessive walking. He indicated that he first became aware of his 

condition and related it to his federal employment on December 11, 2018.

In a December 12, 2018 report, Dr. Richard Jacoby, a podiatrist, reported that appellant 

had worked as a mail carrier for four years and had developed blistering of both feet over the prior

three weeks. He noted that he had examined appellant’s employing establishment certified shoes, 

which appeared to be fairly new and adequate. Dr. Jacoby noted that x-rays were taken of 

appellant’s feet which revealed hyperostosis, mainly of the 3rd and 4th toes that had caused 

blistering and clavus formation of the interphalangeal joints of the 3rd through 5th toes. He related 

that debridement was undertaken. Dr. Jacoby diagnosed “hyperostosis, bilateral toes with acute 

inflammation secondary to excessive walking at the [employing establishment]. ” In a 

December 14, 2018 report, he diagnosed blistering and cellulitis of the feet with hammertoes.

In a January 21, 2019 report, Dr. Jacoby noted that appellant had chronic and recurring 

blisters for three days after appellant’s route was changed necessitating seven hours of walking. 

He related that appellant’s shoe gear was a problem. Dr. Jacoby recommended wider shoes and 

provided a prescription for a wide shoe. 

On January 30, 2019 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), a copy of the case record, and a series of questions, to Dr. Michael A. Steingart, an

osteopathic sports medicine specialist, for a second opinion evaluation regarding the causal 

relationship between his claimed conditions and the factors of appellant’s federal employment. 

In a March 1, 2019 report, Dr. Steingart noted appellant’s factual and medical history, and 

his physical examination findings. He related that appellant recently had a job change which 

“triggered this.” Dr. Steingart related that appellant’s shoes were too narrow for appellant’s feet 

and he needed much wider shoes, but that the shoe company recommended by the employing 

establishment only had medium-sized shoes. He did not diagnose appellant with hammertoes. 

Dr. Steingart diagnosed bilateral foot pain secondary to use of narrow shoes. He explained that 

appellant’s subjective complaints represented a footwear issue as appellant was having excessive 

rubbing along the inner and outer aspects of the foot. Dr. Steingart noted that appellant had a 

preexisting condition of a long second toe. He further explained that appellant’s job required 

walking and standing, and appellant needed appropriate shoe wear, including a wider and longer

shoe. Dr. Steingart noted that appellant had a size 11 service shoe, but appellant’s nonservice shoe

size was 11.5. He further noted that he did not find that appellant had cellulitis, and that there 

were no excessive calluses and no blistering. Dr. Steingart opined, “[t]he problem is strictly 

related to [appellant’s] shoe wear.” He further opined that appellant “wearing a soft shoe does not 
3

suffer residuals of the injury. The medical examination and radiographs do not show whether the 

claimant has a treatable actual injury at this time other than change in his shoe wear.”

On March 15, 2019 OWCP accepted the claim for cellulitis of the right and left toe, 

resolved. 

In a March 27, 2019 memorandum of telephone call (Form CA-110), appellant indicated 

that he was having problems with shoes from the shoe vendor that the employing establishment 

recommended and explained that his shoes did not fit. He inquired whether he would be authorized 

to obtain shoes from a medical shoe shop and noted that he did not want his case to be closed 

because he would need new shoes every year.

On November 15, 2020 appellant filed a notice of recurrence (Form CA-2a) and noted that 

his shoe insoles were worn out and that he needed to replace them. 

In a November 24, 2020 development letter, OWCP informed appellant of the deficiencies 

of his claim for a recurrence, advised him of the type of factual and medical evidence needed, and 

provided a questionnaire for his completion. It afforded him 30 days to respond. Appellant did 

not respond.

By decision dated February 19, 2021, OWCP denied appellant’s claim for a recurrence. It 

found that the evidence did not establish that the requested medical treatment was due to a 

worsening of the accepted work-related conditions. OWCP explained that the second opinion 

physician had determined that his accepted condition of cellulitis of right and left toe had resolved 

and no medical evidence was received since that time. It further explained that appellant had not 

established a recurrence of the work-related conditions without an intervening cause, and his claim 

for medical care remained closed. 

On March 2, 2021 counsel for appellant requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on May 26, 2021. 

During the hearing, appellant explained that the shoes from the employing establishment vendor 

were too hard and did not fit and he had to return them. He noted that he found a vendor that 

accepted the “work card” from the employing establishment and they measured his feet and that 

the shoes had obtained were a perfect fit. However, appellant explained that, a year had passed, 

the shoes were worn out, and the vendor no longer accepted the employing establishment work 

allowance. He indicated that he was willing to pay for the shoes and be reimbursed. 

By decision dated July 19, 2021, an OWCP hearing representative affirmed the May 20, 

2019 decision. 

LEGAL PRECEDENT

Section 8103(a) of FECA3 provides that 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 OWCP considers likely to cure, give relief, reduce 

3

Id.
4

the degree, or the period of disability, or aid in lessening the amount of monthly compensation. 4 

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

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

an employment-related injury or condition.5

Section 10.310(a) of OWCP’s implementing regulations provide that an employee is 

entitled to receive all medical services, appliances, or supplies which a qualified physician 

prescribes or recommends and which OWCP considers necessary to treat the work-related injury.6

In interpreting section 8103(a), the Board has recognized that OWCP has broad discretion 

in approving services provided under section 8103, with the only limitation on OWCP’s authority 

is that of reasonableness.7 OWCP has the general objective of ensuring that an employee recovers 

from his or her injury to the fullest extent possible, in the shortest amount of time. It therefore has 

broad administrative discretion in choosing means to achieve this goal. The only limitation on 

OWCP’s authority is that of reasonableness.8 In order to be entitled to reimbursement for medical 

expenses, a claimant must establish that the expenditures were incurred for treatment of the effects 

of an employment-related injury by submitting rationalized medical evidence that supports such a 

connection and demonstrates that the treatment is necessary and reasonable. 9

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.10

ANALYSIS

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

The Board notes that, in a March 1, 2019 report, the second opinion physician,

Dr. Steingart, discussed appellant’s factual and medical history. After examining appellant,

Dr. Steingart opined that “[t]he problem is strictly related to his shoe wear.” He explained that 

appellant needed a wider, better fitting, and longer shoe, and that the shoe vendor recommended 

4

5 U.S.C. § 8103; see O.M., Docket No. 20-0640 (issued April 19, 2021); N.G., Docket No. 18-1340 (issued 

March 6, 2019); G.A., Docket No. 18-0872 (issued October 5, 2018); see Thomas W. Stevens, 50 ECAB 288 (1999).

5

See D.K., Docket No. 20-0002 (issued August 25, 2020); R.M., Docket No. 19-1319 (issued December 10, 2019); 

Debra S. King, 44 ECAB 203, 209 (1992).

6

20 C.F.R. § 10.310(a); Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, 

Chapter 3.400.3.d(5) (October 1995); id. at Chapter 2.810.17.h (June 2014); J.M., Docket No. 20-0457 (issued 

July 16, 2020); D.W., Docket No. 19-0402 (issued November 13, 2019).

7 D.K., supra note 5; M.B., Docket No. 17-1679 (issued February 8, 2018); see D.K., 59 ECAB 141 (2007).

8

See D.K., supra note 5; A.W., Docket No. 16-1812 (issued March 15, 2017).

9 M.G., Docket No. 18-0099 (issued April26, 2018); see DebraS. King, supra note 5.

10 M.G., id.; see Minnie B. Lewis, 53 ECAB 606 (2002).
5

by the employing establishment only had medium shoes while appellant needed a wider shoe. 

Dr. Steingart noted that appellant did not suffer residuals when wearing the required shoes. 

However, as appellant explained at the hearing that, after wearing the proper shoes for a year, the 

shoes had worn out and he needed to replace them. He also explained that the employerrecommended vendor did not offer wide shoes and that the vendor from whom appellant had 

obtained the proper shoes no longer accepted a payment voucher from the employer.

OWCP has the discretion to authorize medical services, appliances and supplies pursuant 

to section 8103 and the only limitation on its authority is that of reasonableness.11 It has discretion 

to authorize medical supplies which it considers likely to cure, give relief, reduce the degree, or 

the period of disability, or aid in lessening the amount of monthly compensation.12 In denying 

appellant’s request for shoe reimbursement, OWCP evaluated the request as a request for 

recurrence of disability, rather than a request for medical supplies. Its second opinion physician 

opined that appellant’s employment factors required wider, better fitting, and longer shoes, than 

those available through the employing establishment’s vendor.

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement 

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

justice is done.13 Accordingly, once OWCP undertakes to develop the medical evidence further, 

it has the responsibility to do so in a manner that will resolve the relevant issues in the case.14 In 

this case, OWCP found that the evidence of record did not establish that appellant continued to 

require wider and longer shoes due to a worsening of his accepted condition. However, it did not 

develop and make findings as to whether he required authorization for wider and longer shoes to 

give relief from his accepted employment injury. 

On remand OWCP shall request a supplemental report from Dr. Steingart to obtain a 

rationalized medical opinion on whether or not appellant has a continuing need for periodic 

replacement of the shoes prescribed by Dr. Steingart, causally related to the accepted 

December 11, 2018 employment injury. If Dr. Steingart is unavailable or unwilling to provide a 

supplemental opinion, OWCP shall refer appellant, together with a SOAF and a list of specific 

questions, to another second opinion physician in the appropriate field of medicine to resolve the 

issue. Following this and other such further development as deemed necessary, OWCP shall issue 

a de novo decision.

11 See D.K., supra note 5; A.W., Docket No. 16-1812 (issued March 15, 2017).

12 5 U.S.C. § 8103; see O.M., Docket No. 20-0640 (issued April19, 2021); N.G., Docket No. 18-1340 (issued 

March 6, 2019); G.A., Docket No. 18-0872 (issued October 5, 2018); see Thomas W. Stevens, 50 ECAB 288 (1999).

13 W.H., Docket No. 21-0139 (issued October 26, 2021); C.R., Docket No. 20-1102 (issued January 8, 2021); K.P., 

Docket No. 18-0041 (issued May 24, 2019).

14 M.T., Docket No. 20-0321 (issued April26, 2021); T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket 

No. 17-1906 (issued January 10, 2018).
6

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the July 19, 2021 decision of the Office of Workers’

Compensation Programs is set aside and remanded for further proceedings consistent with this 

decision of the Board.

Issued: May 13, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board