United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Duluth, GA, Employer

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Docket No. 21-1260

Issued: September 9, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

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 18, 2021 appellant filed a timely appeal from an April 30, 2021 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

ISSUES

The issues are: (1) whether appellant has met her burden of proof to expand the acceptance 

of her claim to include a right tibial tendon condition causally related to the accepted factors of her 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the April30, 2021 decision, appellant submitted additional evidence to OWCP.

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

federal employment; and (2) whether OWCP has abused its discretion by denying appellant’s 

request for authorization for right tibial tendon surgery.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. 

On January 31, 2017 appellant, then a 51-year-old postal supervisor, filed an occupational 

disease claim (Form CA-2) alleging that she developed plantar fasciitis due to factors of her federal 

employment, including walking 8 to 12 miles six days per week on concrete floors. On June 14, 

2017 she underwent surgery for plantar fasciitis and stopped work. OWCP paid appellant wageloss compensation on the supplemental rolls from June 15 through July 28, 2017.

By decision dated January 4, 2018, OWCP accepted the claim for plantar fascial 

fibromatosis.

Appellant continued to receive medical treatment. In a February 22, 2018 report,

Dr. Phillip Walton, a Board-certified orthopedic surgeon, noted that a right ankle magnetic 

resonance imaging (MRI) scan revealed significant tendinitis and suspected intrasubstance 

tearing.4 On physical examination he observed less tenderness to palpation along the plantar 

fascia. Dr. Walton diagnosed plantar fasciitis and right posterior-tibial tendon (PTT) tendinitis.

On May 1, 2018 Dr. Walton requested authorization for surgery to perform a revision of 

the lower right leg tendon and repair of right foot tendon.

In an August 21, 2018 report, Dr. Kevin Kuhn, a Board-certified orthopedic surgeon 

serving as OWCP’s district medical adviser (DMA), indicated that the medical evidence of record 

was insufficient to substantiate appellant’s alleged PTT symptoms and need for the requested 

surgery. He further noted that MRI scans of record failed to support objective findings consistent 

with PTT tendinitis.

By decision dated August 29, 2018, OWCP denied expansion of the acceptance of 

appellant’s claim to include right PTT tendinitis based on the DMA’s opinion in his August 21, 

2018 report. By separate decision of even date, it also denied authorization for revision of the right 

lower leg and repair of the right foot tendon, finding that the medical evidence of record did not 

establish that she had right PTT tendinitis.

On September 18, 2018 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review. By decision dated April 25, 2019, OWCP’s hearing 

representative affirmed OWCP’s August 29, 2018 decisions.

3 Docket No. 19-1347 (issued December 5, 2019).

4 A February 16, 2018 right ankle MRI scan showed tendinosis of the peroneus longus at the level of the malleolar 

tip and insertional plantar fasciitis, but no tear.
3

Appellant appealed to the Board. By decision dated December 5, 2019, the Board set aside 

OWCP’s April 25, 2019 decision, finding that a conflict in the medical opinion evidence existed 

between Dr. Walton, appellant’s treating physician, and Dr. Kuhn, the DMA, regarding whether 

she sustained right PTT tendinitis as a consequence of her work-related injury and, accordingly, 

whether right ankle surgery was medically necessary to treat her right PTT tendinitis. 

Consequently, the Board remanded the case to OWCP for referral to an impartial medical examiner 

(IME) in order to resolve the conflict in medical evidence, pursuant to 5 U.S.C. § 8123(a).

On remand OWCP referred appellant, the medical record along with a statement of 

accepted facts (SOAF) and a series of question to Dr. Jayendrakumar Shah, a Board-certified 

orthopedic surgeon, for an impartial medical examination and opinion regarding whether appellant 

sustained right PTT tendinitis as a consequence of her work-related injury and, accordingly, 

whether right ankle surgery was medically necessary to treat her right PTT.

In a March 17, 2020 report, Dr. Shah recounted appellant’s history of work-related right 

foot pain that started on May 12, 2015 and noted that her claim was accepted for plantar fascial 

fibromatosis. He indicated that she previously underwent right foot surgery on June 15, 2017 and 

June 11, 2019. Dr. Shah noted that appellant complained of right foot pain that developed as a 

result of walking 10 to 12 miles daily at the employing establishment. On physical examination 

he reported mild tenderness and small ulceration on the medial side of the right foot. Neurological 

examination demonstrated full strength in the foot flexors and extensors with symmetric sensation 

to light touch. Dr. Shah assessed plantar fascial fibromatosis.

In response to OWCP’s questions, Dr. Shah indicated that there were no current objective 

findings of medical conditions connected to appellant’s accepted employment injury. He opined 

that none of the conditions connected to PTT, flexor digitorum tendon, and possible osteomyelitis 

were causally related to her accepted plantar fasciitis injury. Dr. Shah opined that appellant had 

fully recovered from her accepted plantar fascial fibromatosis injury and that she had no residuals 

of her accepted employment-related condition. He reported that he disagreed with Dr. Walton’s 

request to expand the acceptance of her claim to include a right tibial tendon injury and concluded 

that no additional surgery or treatment was necessary. Dr. Shah completed a work capacity 

evaluation (Form OWCP-5c) dated April 15, 2020, indicating that appellant was capable of 

performing her usual job without restrictions. 

On March 27, 2020 appellant underwent a right ankle MRI scan, which demonstrated 

internal fixation screw in the medial navicular, likely to repair the PTT, likely torn flexor digitorum

longus tendon, and small tibiotalar and subtalar joint effusion.

By de novo decision dated May 29, 2020, OWCP denied expansion of the acceptance of 

appellant’s claim to include a right leg tibial posterior tendinitis injury as causally related to her 

accepted right foot injury and denied authorization for right lower extremity surgery. It found that 

the special weight of the medical evidence rested with the March 17, 2020 report of Dr. Shah, the 

IME.

On June 29, 2020 appellant requested reconsideration.
4

In reports dated May 4 through July 27, 2020, Dr. Walton indicated that appellant was seen

for follow up of her right foot status post flexor digitorum longus (FDL) tendon transfer and 

endoscopic gastrocnemius recession. On physical examination of her right lower extremity he 

reported no signs of infection and a mostly healed wound. Dr. Walton assessed status post right 

FDL transfer and endoscopic gastrocnemius recession and posterior tibial tendon tendinitis.

In a June 19, 2020 statement, appellant noted her disagreement with Dr. Shah’s opinion. 

She indicated that Dr. Walton had diagnosed her with right TPP tendinitis in November 2017 and 

agreed that walking 10 to 12 miles daily had contributed to her persistent right foot pain. Appellant 

further noted that in Dr. Walton’s review of the February 2018 right ankle MRI scan he suspected 

instar-substance tearing.

By decision dated September 17, 2020, OWCP denied modification of the May 29, 2020 

decision.

On October 22, 2020 appellant requested reconsideration.

In a September 30, 2020 report, Dr. Walton indicated that appellant was seen for follow up 

after right ankle surgery on September 8, 2020. He reported healed incisions and no signs of 

infection on physical examination. Dr. Walton assessed status post right FDL transfer and 

endoscopic gastrocnemius recession and status post removal of hardware. He opined that the 

significant amount of standing for appellant’s job directly contributed to her work-related foot

conditions and was associated with PTT and plantar fasciitis symptoms.

By decision dated January 20, 2021, OWCP denied modification of the September 17, 

2020 decision.

On March 9, 2021 appellant requested reconsideration. She asserted that her right foot was 

still very painful and requested that OWCP expand the acceptance of her claim to include PTT

tendinitis. Appellant indicated that, after her plantar fasciitis diagnosis, she continued to work on 

hard concrete floors and walk 8 to 12 miles per day.

Appellant submitted operative reports. A June 25, 2020 operative report noted that she

underwent right foot irrigation and debridement and removal of orthopedic hardware by

Dr. Walton. A September 8, 2020 operative report indicated that appellant underwent a revision 

of right FDL transfer by Dr. Walton. 

In reports dated November 19, 2020 through March 29, 2021, Dr. Walton continued to 

record appellant’s improvement after right ankle surgery in September 2020. He provided 

examination findings and assessed status post right FDL transfer and endoscopic gastrocnemius 

recession.

By decision dated April 30, 2021, OWCP denied modification of the January 20, 2021 

decision.
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LEGAL PRECEDENT -- ISSUE 1

Where an employee claims that a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.5

The medical evidence required to establish causal relationship between a specific 

condition, as well as any attendant disability claimed, and the employment injury, is rationalized 

medical opinion evidence.6 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.7 Additionally, the opinion of the physician must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition and the 

specific employment factor(s) identified by the claimant.8

Section 8123(a) of FECA provides that, if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or IME) who shall make an examination. 9 

This is called an impartial medical examination and OWCP will select a physician who is qualified 

in the appropriate specialty and who has no prior connection with the case. 10 When a case is 

referred to an IME for the purpose of resolving the conflict, the opinion of such specialist, if 

sufficiently well rationalized and based upon a proper factual background, must be given special 

weight.11

ANALYSIS -- ISSUE 1

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

In the prior appeal, the Board remanded the case to OWCP to obtain a report from an IME 

in order to resolve the conflict in medical opinion evidence regarding whether appellant sustained 

5 R.J., Docket No. 17-1365 (issued May 8, 2019); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., 

Docket No. 12-0599 (issued October 2, 2012); JajaK. Asaramo, 55 ECAB 200, 204 (2004).

6 T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006); JohnD. Jackson, 55 ECAB 

465 (2004).

7 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

8 M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 

345 (1989).

9

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

10 20 C.F.R. § 10.321.

11 K.D., Docket No. 19-0281 (issued June 30, 2020); J.W., Docket No. 19-1271 (issued February 14, 2020); 

Darlene R. Kennedy, 57 ECAB 414 (2006); GloriaJ. Godfrey, 52 ECAB 486(2001); James P. Roberts, 31 ECAB 

1010 (1980).
6

right PTT tendinitis and, accordingly, whether right ankle surgery was medically necessary to treat 

her right PTT.

As noted, when a case is referred to an IME for the purpose of resolving the conflict, the 

opinion of such specialist, if sufficiently well rationalized and based upon a proper factual 

background, must be given special weight.12 In his March 17, 2020 report, Dr. Shah noted his 

disagreement with Dr. Walton’s request to expand the acceptance of appellant’s claim to include 

a right tibial tendon injury. He opined that appellant’s PTT, flexor digitorum tendon, and possible 

osteomyelitis were not related to her accepted plantar fasciitis injury. Dr. Shah, however, did not 

discuss whether appellant developed PTT due to the accepted factors of her federal employment, 

including walking 8 to 12 miles six days per week on concrete floors. As Dr. Shah did not opine 

on whether appellant’s diagnosed PTT was causally related to her employment, his opinion 

requires clarification.13 In a situation where OWCP secures an opinion from an IME for the 

purpose of resolving a conflict in the medical evidence and the opinion from such examiner 

requires clarification and/or elaboration, OWCP has the responsibility to secure a supplemental 

report from the examiner for the purpose of correcting the defect in the original opinion.14

For the above-described reasons, the opinion of Dr. Shah requires clarification. Therefore, 

in order to address the unresolved conflict in the medical opinion evidence, the Board will remand 

this case to OWCP for a supplemental opinion regarding whether appellant sustained a right tibial 

tendon condition, causally related to the accepted factors of her federal employment. If Dr. Shah 

is unable to clarify his opinion or if his requested supplemental report is insufficiently rationalized, 

OWCP must submit the case record and a detailed SOAF to a new IME for the purpose of obtaining 

a rationalized medical opinion on the issue.15 Following this and any other such further 

development as may be deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.16

12 Id. 

13 S.M., Docket No. 20-1527 (issued March 29, 2022); A.G., Docket No. 21-0315 (issued December 29, 2021).

14 T.C., Docket No. 20-1170 (Issued January 29, 2021); S.R., Docket No. 17-1118 (issued April5, 2018); Nancy 

Lackner (JackD. Lackner), 40 ECAB 232 (1988).

15 T.C., id. M.D., Docket No. 19-0510 (issued August6, 2019); Harold Travis, 30 ECAB 1071 (1979).

16 Given the disposition of Issue 1, Issue 2 is rendered moot.
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ORDER

IT IS HEREBY ORDERED THAT the April 30, 2021 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: September 9, 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