United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.P., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, FEDERAL

CORRECTIONAL COMPLEX, PETERSBURG, 

Petersburg, VA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 23-0810

Issued: November 27, 2023

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 May 18, 2023 appellant, through counsel, filed a timely appeal from a May 1, 2023 

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 to consider 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 May 1, 2023 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 disability from work 

for the period December 6, 2020 through October 9, 2021 causally related to his accepted 

January 25, 2019 employment injury.

FACTUAL HISTORY

On February 6, 2019 appellant, then a 44-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that on January 25, 2019 whensprinting to respond to an alarm, 

he heard a pop and experienced pain in his left leg, injuring his Achilles tendon while in the 

performance of duty.

4

 He stopped work on January 25, 2019. OWCP accepted the claim for strain 

of the left Achilles tendon. Appellant returned to light-duty work on September 10, 2019

performing sitting, simple grasping, and fine manipulation for eight hours each, lifting up to 25 

pounds, standing and walking for one hour each, reaching over the shoulder for two hours, driving 

a vehicle for one hour, but was prohibited from climbing, kneeling, twisting, pushing or pulling.

In a July 10, 2020 report, appellant’s attending physician, Dr. Robert N. Pica, a podiatrist, 

diagnosed contracture of the gastrocnemius and compensatory tarsal tunnel syndrome as sequela 

from the accepted left Achilles tendon injury. He advised that appellant could perform light duty.

Dr. Pica prescribed a foot and ankle orthosis for minimal ambulation and nonweight-bearing usage 

for 8 to 12 weeks. On July 14, 2020 the employing establishment offered appellant a light-duty 

position within the same restrictions as his September 10, 2019 job offer.

Dr. Karanvir Prakash, a Board-certified orthopedic surgeon, examined appellant on 

November 3, 2020, described his January 25, 2019 employment injury, diagnosed left Achilles 

tendinitis, and gastrocnemius contracture. He recommended that appellant continue with

unspecified limited-duty work as he could not run. Dr. Prakash also recommended surgery 

consisting of gastrocnemius release, Achilles tendon debridement, and tarsal tunnel release. 

The employing establishment reported that appellant stopped work on December 6, 2020 

due to a nonemployment-related right hip surgery.

On December 15, 2020 Dr. Prakash examined appellant due to left ankle pain and noted 

that he was using crutches. He diagnosed Achilles tendinitis left leg with gastrocnemius 

contracture. Dr. Prakash also found tenderness in the tarsal tunnel and a positive Tinel’s sign. He

requested left ankle magnetic resonance imaging (MRI) scan. Dr. Prakash noted that appellant 

had recently undergone a nonwork-related procedure of hardware removal in the right hip and was 

scheduled to undergo a right total hip replacement surgery.

In a March 31, 2021 note, Dr. Prakash related that appellant had recently undergone a right 

hip replacement. He diagnosed left Achilles tendinitis, tarsal tunnel syndrome left ankle, forefoot 

varus with midfoot sag and dorsal bunion, and knee pain with possible exacerbation of arthritis.

Dr. Prakash again recommended a left ankle MRI scan and found that appellant could continue his 

4 Appellant subsequently filed a separate occupational disease claim (Form CA-2) alleging that as a result of his 

accepted January 25, 2019employment injury his preexisting hip condition was aggravated resulting in capital femoral 

epiphysis and in the need for full hip replacement surgery under OWCP File No. xxxxxx905. OWCP denied this 

claim by decision dated October 19, 2021. It has administratively combined that, claim with the current claim, OWCP 

File No. xxxxxx356, with the latter serving as the master file.
3

unspecified limited activity schedule. He also examined him on April 21, 2021 and diagnosed 

patellar tendinitis of the left knee finding that he could continue his unspecified limited activity 

schedule. 

On May 11, 2021 Dr. Prakash diagnosed left Achilles tendinitis, peroneal tendinitis, and 

retrocalcaneal bursitis of the left foot based on MRI scan. He completed a duty status report (Form 

CA-17) of even date and found that appellant should remain on light duty sitting for eight hours a 

day, standing and walking for one hour each. Dr. Prakash restricted all other activities.

In a May 27, 2021 memorandum, the employing establishment determined that

Dr. Prakash’s restrictions were insufficient to form the basis for a light-duty job and requested 

clarification. On June 22, 2021 it further related that it was not allowing appellant to return to 

work.

On June 23, 2021 OWCP referred appellant, a statement of accepted facts (SOAF), and a 

series of questions to Dr. James J. Schwartz, a Board-certified orthopedic surgeon, for a second 

opinion examination. In a July 24 2021 report, Dr. Schwartz reviewed the SOAF, described the 

January 25, 2019 employment injury, and provided findings on physical examination. He found a 

contracture of the gastrocnemius/solus complex and tarsal tunnel syndrome possibly as the result 

of the contracted Achilles tendon. Dr. Schwartz opined that appellant’s work-related conditions 

had not resolved and advised that his ongoing work restrictions were appropriate. He related that 

additional medical recovery should be expected following successful surgery . Dr. Schwartz 

completed a work capacity evaluation (Form OWCP-5c) and indicated that appellant could 

perform sedentary and light level work with restrictions on standing and walking of less than one

hour each and pushing, pulling, and lifting up to 20 pounds for three hours each.

In August 3 and September 3, 2021 notes, Dr. Prakash diagnosed left Achilles tendinosis 

with retrocalcaneal bursitis, forefoot driven hindfoot varus with dorsal bunion, right foot, tarsal 

tunnel syndrome left ankle. He found that appellant’s Achilles strain had progressed to significant 

problems with his foot and ankle and with difficult weight bearing as a direct consequence of the 

accepted employment injury. Dr. Prakash recommended surgery. He also completed a Form 

OWCP-5c on September 7, 2021 and agreed with Dr. Schwartz’ restrictions that appellant could 

perform sedentary and light levels work walking and standing less than one hour each.

On August 20, 2021 the employing establishment offered appellant a light-duty position 

within the work restrictions established by Dr. Schwartz. He did not respond.

On October 17, 2021 appellant filed a series of claims for compensation (Form CA-7) for 

the period January 25, 2019 through October 9, 2021.

5

 OWCP paid wage-loss compensation on 

the supplemental rolls from March 12 through September 9, 2019. Appellant used leave from 

December 7 through 26, 2020 and worked from December 27, 2020 through January 2, 2021. He

again used paid leave on January 4, 2021 and began using leave without pay on January 5, 2021. 

In an October 25, 2021 development letter, OWCP informed appellant of the deficiencies 

in his claim and requested that he submit medical evidence to support his reported disability during 

the claimed period causally related to the accepted January 25, 2019 employment injury. It 

afforded him 30 days to respond.

5 Appellant received continuation of pay from February 2 through March 11, 2019.
4

Dr. Prakash provided reports dated October 18 and 20, 2021 diagnosing Achilles tendinosis 

with retrocalcaneal bursitis, left ankle, forefoot driven hindfoot varus with dorsal bunion, right 

foot, and tarsal tunnel syndrome, left ankle. He found that appellant had a combination of injuries 

and an upgraded diagnoses because of failure of conservative management. Dr. Prakash opined 

that the accepted Achilles strain had progressed to significant problems with the foot and ankle 

including difficulty bearing weight. He opined that these conditions were a direct consequence of 

the accepted January 25, 2019 employment injury. Dr. Prakash recommended surgeries including 

gastrocnemius release, tarsal tunnel release, first tarsometatarsal joint arthrodesis, and Achilles 

tendoscopy with retrocalcaneal bursectomy. He suggested that the surgeries be performed in 

stages and related that appellant was likely to be out of work for six to nine months for the 

surgeries.

In a November 8, 2021 report, Dr. Prakash described the January 25, 2019 employment 

injury of Achilles tendinitis required the use of a walking boot for approximately nine months. He 

reviewed diagnostic studies which revealed an Achilles tendon tear as a result of the accepted 

employment injury. Dr. Prakash related that appellant had a preexisting right hip slipped capital 

femoral epiphysis with a prior surgery. He opined that altered gait biomechanics resulting from 

the use of a walking boot aggravated this preexisting condition and required further right hip 

surgery. Dr. Prakash also opined that the same altered biomechanics resulted in tarsal tunnel 

syndrome of the left foot. He concluded that these conditions were impacted by the January 25, 

2019 employment injury and requested that the acceptance of appellant’s claim be expanded to 

include the additional conditions of Achilles tendon tear of the left ankle, tarsal tunnel syndrome 

of the left foot, aggravation of right hip slipped epiphysis, bilateral primary osteoarthritis of the 

hips, total right hip replacement, and subchondral sclerosis. 

On November 24, 2021 Dr. Prakash opined that appellant had failed conservative 

management resulting in his upgrading appellant’s diagnoses to include Achilles tendinosis with 

retrocalcaneal bursitis, left ankle, forefoot driven hindfoot varus with dorsal bunion, right foot, 

dorsal bunion, right, and tarsal tunnel syndrome, left ankle. He found that he was unable to 

perform his regular work as a direct consequence of his accepted employment injuries. 

Dr. Prakash again recommended a series of surgeries. He completed a Form OWCP-5c of even 

date listing restrictions of walking and standing less than one hour and sedentary strength level 

work. Dr. Prakash completed duplicative forms on January 5 and February 16, 2022.

On March 16, 2022 OWCP expanded its acceptance of the claim to include Achilles 

tendinitis, left leg, and tarsal tunnel syndrome, left leg.

By decision dated March 22, 2022, OWCP denied appellant’s claims for disability from 

work for the period December 6, 2020 through October 9, 2021. It found that the medical evidence 

of record was insufficient to establish disability. On March 30, 2022 appellant requested an oral 

hearing before a representative of OWCP’s Branch of Hearings and Review.

Following a preliminary review, by decision dated May 27, 2022, OWCP’s hearing 

representative vacated the March 22, 2022 OWCP decision and remanded the case for 

development of the evidence to identify the periods of claimed wage loss versusthe dates appellant 

received payment, “in the form of leave and [appellant’s] return to work,” the availability of the 

offered position, and whether the position was available for him following his use of leave to 

recover from his hip surgeries for the period January 5 through August 20, 2021.
5

On March 30 and May 11, 2022 Dr. Prakash completed OWCP-5c forms and indicated that 

appellant could perform sedentary strength level work with less than one hour each of walking and 

standing. He completed narrative notes repeating his previous diagnoses of Achilles tendinosis 

with retrocalcaneal bursitis, left ankle, forefoot driven hindfoot varus with dorsal bunion, right 

foot, dorsal bunion, right, and tarsal tunnel syndrome, left ankle with the addition of chronic pain 

of both knees. Dr. Prakash opined that the way that appellant was walking with altered gait 

mechanics was causing undue strain to his knees and hips and exacerbating his symptoms. He 

found that appellant’s altered gait probably led to his need for a total hip replacement.

In a June 22, 2022 report, Dr. Prakash described the January 25, 2019 employment injury 

and appellant’s medical history including nine months in a walking boot. He indicated that 

appellant was capable of light-duty work during this period. Dr. Prakash attributed the additional 

condition of Achilles tendon tear to the accepted January 25, 2019 employment injury. He noted

appellant’s preexisting right hip slipped capital femoral epiphysis and opined that the accepted 

employment injury coupled with altered gait biomechanics and prolonged immobilization due to 

prolonged use of a walking boot aggravated this condition resulting in the need for total hip 

replacements in December 2020 and January 2021. Dr. Prakash further recommended surgeries 

to repair the gastrocnemius, tarsal tunnel, and dorsal bunion and forefoot varus. He found that 

appellant could not walk or stand for prolonged periods of time exceeding more than two hours to 

avoid further damage to his foot, ankle, knee, and hip. Dr. Prakash concluded that appellant should 

not work prior to his recommended surgeries.

On August 3, 2022 the employing establishment indicated that appellant stopped work on 

January 25, 2019, returned to light-duty work on September 10, 2019 and stopped work on 

December 4, 2020 due to his nonemployment-related hip surgery. It reported that he was not 

allowed to return to work from December 4, 2020 through August 19, 2021 when it provided a 

light-duty job offer which appellant refused.

In an e-mail dated September 27, 2022, the employing establishment indicated that the 

light-duty job offer was never withdrawn and that if appellant had not undergone hip surgery on 

December 4, 2020 he would have been allowed to continue in the light-duty work assignment. 

By decision dated September 29, 2022, OWCP denied appellant’s claim for disability from 

work for the period December 6 2020 through October 9, 2021. It found that the medical evidence 

of record was insufficient to establish disability. 

On October 3, 2022 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. The oral hearing took place on February 14, 2023.

The employing establishment resubmitted appellant’s September 9, 2019 and July 14, 

2020 light-duty job offers.

On December 20, 2022 Dr. Prakash repeated his diagnoses of Achilles tendinosis of the 

left lower extremity, chronic pain of both knees, retrocalcaneal bursitis of the left heel, acquired 

left hindfoot varus, tarsal tunnel syndrome, left, and left foot bunion. He continued to opine that 

appellant’s symptoms were progressing to appellant’s knees and hips due to appellant’s altered 

gait as a result of the failure of conservative treatment for his accepted employment injuries and 

the failure to approve requested surgeries. Dr. Prakash concluded that the additional conditions 

were a direct consequence of the accepted employment injury. He also completed an OWCP-5c 
6

form diagnosing Achilles tendinitis and indicated that appellant could perform sedentary strength 

level work with less than one hour each of walking and standing. 6 

In April 5, 2023 form reports, Dr. Prakash diagnosed Achilles injury and found that 

appellant could stand and walk for less than one hour a day each, should not perform self-defense 

moves, run, climb stairs, or lift. He indicated that appellant’s condition would improve following 

surgery.

On January 24, 2023 the employing establishment offered appellant a light-duty work 

assignment walking and standing less than one hour each.

By decision dated May 1, 2023, OWCP’s hearing representative affirmed OWCP’s

September 29, 2022 decision. She found that appellant had not submitted sufficient rationalized 

medical evidence to support that the claimed period of disability was causally related to the 

accepted work injury.

LEGAL PRECEDENT

An employee seeking benefits under FECA7 has the burden of proof to establish the 

essential elements of his or her claim, including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury. 8

Under FECA, the term disability means the 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 a federal employment 

injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time 

of injury, has no disability as that term is used in FECA.11 When, however, the medical evidence 

establishes that the residuals or sequelae of an employment injury are such that, from a medical 

stand point, they prevent the employee from continuing in his or her employment, he or she is 

entitled to compensation for loss of wages.12

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 

6 On April 13, 2023 appellant, through counsel, requested that OWCP expand the acceptance of his claim to include 

the additional conditions. OWCP has not issued a final decision on this issue and the Board will not consider it for 

the first time on appeal. 20 C.F.R. § 501.2(c)(2).

7

Supra note 2.

8 A.R., Docket No. 20-0583 (issued May 21, 2021); S.W., Docket No. 18-1529 (issued April19, 2019); Kathryn 

Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

9

20 C.F.R. § 10.5(f); see J.M., Docket No. 18-0763 (issued April 29, 2020); Bobbie F. Cowart, 55 ECAB 

746 (2004).

10 D.W., Docket No. 20-1363 (issued September 14, 2021); L.W., Docket No. 17-1685 (issued October 9, 2018).

11 See M.W., Docket No. 20-0722 (issued April26, 2021); D.G., Docket No. 18-0597 (issued October 3, 2018).

12 See A.R., Docket No. 20-0583 (issued May 21, 2021); D.R., Docket No. 18-0323 (issued October 2, 2018).
7

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

entitlement to compensation.13

ANALYSIS

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

Appellant was evaluated by OWCP’s second opinion physician, Dr. Schwartz, on July 24 

2021. Dr. Schwartz found additional conditions due to the January 25, 2019 employment injury 

of contracture of the gastrocnemius/solus complex and tarsal tunnel syndrome. OWCP accepted 

these conditions based on his opinion. Dr. Schwartz also provided additional work restrictions 

beyond those of the July 14, 2020 limited-duty position including performing sedentary and light 

work levels while standing and walking less than one hour each, and limiting pushing, pulling and 

lifting to 20 pounds for three hours each rather than 25 pounds with no time restriction. As his

report was based on a proper factual history and provided findings and medical reasoning 

supporting his conclusions, this report establishes that appellant’s work restrictions had changed 

between his December 2020 work stoppage and the July 24, 2021 examination such that the 

July 14, 2020 light-duty position was no longer within his work capacity.

14

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

OWCP a disinterested arbiter.15 While the claimant has the burden of proof to establish entitlement 

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

is done.16 Accordingly, once OWCP starts to procure medical opinion, it must do a complete job 

in securing from its referral physician an opinion which adequately addresses the relevant issues.17

Thus, the Board will remand the case for OWCP to obtain a rationalized supplemental 

opinion from Dr. Schwartz regarding when appellant could no longer perform the duties of the 

July 14, 2020 limited-duty position causally related to his accepted January 25, 2019 employment 

injuries. 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.

13 See M.J., Docket No. 19-1287 (issued January 13, 2020); C.S., Docket No. 17-1686 (issued February 5, 2019); 

William A. Archer, 55 ECAB 674 (2004).

14 See M.H., Docket No. 22-1178 (issued April 25, 2023); V.A., Docket No. 21-1023 (issued March 6, 2023).

15 See R.H., Docket No. 22-1379 (issued May 19, 2023); C.F., Docket No. 20-1572 (issued November 10, 2021); 

Vanessa Young, 56 ECAB 575 (2004).

16 Id.

17 M.T., Docket No. 21-0819 (issued March 2, 2023); T.B., Docket No. 20-0182 (issued April23, 2021); L.V., 

Docket No. 17-1260 (issued August 1, 2018); Mae Z. Hackett, 34 ECAB 1421, 1426 (1983).
8

ORDER

IT IS HEREBY ORDERED THAT the May 1, 2023 decision of the Office of Workers’

Compensation Programsis set aside and the case is remanded to OWCP for proceedings consistent 

with this decision of the Board.

Issued: November 27, 2023

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