United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.W., Appellant

and

U.S. POSTAL SERVICE, NORTHPOINTE 

POST OFFICE, Spokane, WA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 22-0995

Issued: October 11, 2023

Appearances: Case Submitted on the Record

Andrew Douglas, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 16, 2022 appellant, through counsel,fileda timely appealfrom a February 1, 2022

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 February1, 2022 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 a left lower

extremity condition causally related to the accepted factors of his federal employment. 

FACTUAL HISTORY

On August 31, 2020 appellant, then a 45-year-old sales and services/distribution associate, 

filed an occupational disease claim (Form CA-2) alleging that he developed left ankle pain due to 

factors of his federal employment. He indicated that the pain began after his ankle popped at work 

and worsened over the proceeding months requiring him to seek a doctor’s care. Appellant noted 

that he first became aware of his condition on January 12, 2020, and realized its relationship to his

federal employment on July 15, 2020. He did not stop work.

In a July 15, 2020 medical report, Dr. Brian Padrta, a Board-certified orthopedic surgeon, 

noted that appellant related complaints of progressively worsening left lateral foot pain for the past 

year, which he indicated was “somewhat activity related.” He performed a physical examination

of the left foot, which revealed a definite mild varus with a cavus midfoot, tenderness along the 

peroneal tendons distal to the fibula, hypertrophy of the peroneal tubercle, mild tightness of the 

gastrocnemius, and mild clawing of the lesser toes in the forefoot. Dr. Padrta reviewed x-rays, 

which revealed increased calcaneal pinch with no other bony abnormalities in the hindfoot. He

diagnosed possible peroneus longus tendon tear, acquired cavus deformity, and pain in the left foot

and recommended a magnetic resonance imaging (MRI) scan.

In an August 3, 2020 follow-up report, Dr. Padrta recommended surgery, including

peroneal tendon repair and calcaneal osteotomy. He noted that appellant had significant chronic 

varus of the hindfoot. 

In an August 7, 2020 statement, appellant related that, in November 2019, he was pushing 

flats and heard a pop in his left ankle, followed by a small amount of pain. He did not initially 

believe he was injured, but over the next several months his ankle was “acting up” and felt bruised, 

so he eventually sought medical care. 

In an August 28, 2020 statement, P.V., an employing establishment supervisor, indicated 

that none of appellant’s supervisors at or around November 2019 recalled him reporting an injury 

to his ankle. 

In a September 24, 2020 development letter, OWCP informed appellant that the evidence 

of record was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30 

days to submit the necessary evidence.

In an October 5, 2020 response to OWCP’s questionnaire, appellant indicated that in 

November 2019 he moved a flat cart to the flats and injured his left ankle. He related that he 

sought medical care in January 2020 and that his work duties included turning, twisting, and 

pushing heavy items and carts. Appellant indicated that his activities outside of work included 

family dinners, fishing, hunting, and going to the movies.
3

OWCP also received a form report signed by Dr. Craig R. Barrow, a Board-certified 

orthopedic surgeon. 

By decision dated November 5, 2020, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish causal relationship between the diagnosed medical 

conditions and the accepted employment factors.

On November 20, 2020 appellant requested reconsideration of OWCP’s November 5, 2020 

decision. In support of his request, he submitted an undated medical status profile, which was 

printed on November 5, 2020 and contained diagnoses of cavovarus deformity of foot, peroneal 

tendon tear, and repetitive motion injury. 

By decision dated December 2, 2020, OWCP denied appellant’s request for 

reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), finding that his request 

for reconsideration neither raised substantial legal questions, nor included new or relevant 

evidence.

On November 4, 2021 appellant, through counsel, again requested reconsideration.

In support thereof, appellant submitted a July 23, 2020 MRI scan of the left ankle revealed 

a longitudinal split tear of the peroneus brevis tendon and tendinopathy and tenosynovitis of the 

peroneus longus tendon distally with some reactive changes in the cuboid bone.

In a September 28, 2020 medical report, Dr. Barrow noted that appellant related complaints 

of left foot and ankle pain, which he attributed to an injury at work two years prior and followed

by ongoing repetitive motion work activities. He performed a physical examination of the left 

lower extremity, which revealed pain and reduced strength with eversion, moderate swelling over 

the foot and ankle, significant swelling and pain on palpation over the peroneal tendons, significant 

cavovarus malalignment, a peekaboo heel sign, and a limp favoring the left side. Dr. Barrow 

reviewed the MRI scan, which revealed the peroneal tendon tear and “old” x-rays, which revealed 

evidence of a cavovarus malalignment of the left foot and fracture of the base o f the fifth 

metatarsal. He diagnosed cavovarus deformity of the left foot, tear of the left peroneal tendon, and 

a repetitive motion injury. Dr. Barrow opined that appellant’s cavovarus malalignment was 

preexisting, but that his “repetitive motion at his work certainly contributed to his peroneal tendon 

tears and pain that he is having at this time and aggravated his cavovarus deformity. ” He

recommended surgery, including left foot cavovarus reconstruction.

In an October 29, 2020 medical report, Dr. Barrow noted that he performed surgery on 

appellant’s left foot and ankle on October 21, 2020, including left foot cavovarus reconstruction 

surgery with repair of the peroneal tendon tear and osteotomies of the first metatarsal and 

calcaneus. Follow-up notes dated November 5, 2020 through April 1, 2021 by Dr. Barrow,Brad J. 

Bachmeier, a physician assistant, and Donna Henry, a nurse practitioner, documented appellant’s 

postoperative care. 

A report of x-rays of the left foot dated April 1, 2021 revealed well-healed calcaneal and 

first metatarsal osteotomies with improvement of alignment of previous cavovarus deformity.

In a follow-up report dated July 29, 2021, Dr. Barrow noted that appellant related ongoing 

complaints of pain, swelling, and stiffness in the left foot and that he had been unable to run, jog, 
4

or play basketball. He corrected his September 28, 2020 medical note to reflect that appellant 

injured his left foot at work in November 2019 when he was pushing flats and heard a pop. 

Dr. Barrow noted that he continued to turn, twist, and push heavy carts and flats of mail at work

thereafter, and noticed a feeling of a bruise by his left ankle. He indicated that the injury was 

caused by repetitive motions due to his work and that the cavovarus foot deformity predisposed 

appellant to injury to the peroneal tendon because the malalignment caused him to walk on the 

outside of his foot. Dr. Barrow further explained that twisting, moving, pushing, and pulling at 

work placed increased strain and pressure on the tendons. He opined that “the pop in 

November 2019 was a tear of the peroneal tendon and this continued to get worse as he performed 

his job duties.”

By decision dated February 1, 2022, OWCP denied modification.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim, including that the individual is an employee of the United 

States within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation of FECA,5that an injury was sustained in the performance of duty as alleged, and that 

any disability or medical condition for which compensation is claimed is causally related to the 

employment injury.6 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of the 

disease or condition; (2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed; and (3) medical evidence establishing that the 

diagnosed condition is causally related to the identified employment factors.8 The medical 

evidence required to establish causal relationship between a claimed specific condition and 

employment factors is rationalized medical opinion evidence.9 The opinion of the physician must 

be based on a complete factual and medical background of the employee, must be one of 

reasonable medical certainty, and must be supported by medical rationale explaining the nature of 

4

Supra note 2.

5 F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); JoeD. 

Cameron, 41 ECAB 153 (1989). 

6 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

7 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

Delores C. Ellyett, 41 ECAB 992 (1990). 

8

See T.L., Docket No. 18-0778 (issued January 22, 2020); RoyL. Humphrey, 57 ECAB 238, 241 (2005);Victor J. 

Woodhams, 41 ECAB 345, 352 (1989).

9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April24, 2019); RobertG. 

Morris, 48 ECAB 238 (1996).
5

the relationship between the diagnosed condition and specific employment factors identified by 

the employee.10

In any case where a preexisting condition involving the same part of the body is present 

and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.11

ANALYSIS

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

In his July 29, 2021 report, Dr. Barrow discussed appellant’s medical history, reviewed 

diagnostic reports, and provided findings on physical examination of his left lower extremity. He 

discussed the mechanism of injury for this occupational disease claim. 12 Dr. Barrow explained 

that appellant’s underlying cavovarus malalignment made him more likely to sustain a peroneal 

tendon injury. He further explained that the repetitive duties of twisting, moving, pushing, and 

pulling at work placed increased strain and pressure on the tendons, which eventually led to the 

peroneal tendon tear. Dr. Barrow opined that “the pop in November 2019 was a tear of the 

peroneal tendon and this continued to get worse as he performed his job duties.”

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

appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility for the development of the evidence.13 OWCP has an obligation to see that justice 

is done.14

While Dr. Barrow’s opinion is not fully rationalized, it is sufficient to require further 

development of the medical evidence.15 On remand, OWCP shall refer appellant to a specialist in 

the appropriate field of medicine, along with the case record and a statement of accepted facts, for 

an examination and a rationalized medical opinion as to whether the accepted factors of federal 

employment either caused or aggravated his diagnosed conditions.16 If the second opinion 

physician disagrees with the opinion of Dr. Barrow, he or she must provide a fully-rationalized 

10 T.L., supra note 8; Y.S., Docket No. 18-0366 (issued January 22, 2020); Victor J. Woodhams, supra note 8.

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (May2023). See 

R.D., Docket No. 18-1551 (issued March 1, 2019).

12 See S.B., Docket No. 20-1458 (issued March 5, 2021); L.H., Docket No. 17-0947 (issued March 8, 2018).

13 See id.; see also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy Hammons, 51 ECAB 219, 223 (1999).

14 See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010); 

John J. Carlone, 41 ECAB 354 (1989).

15 Id., see also J.H., supra note 6; D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 

(issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); WilliamJ. Cantrell, 34 ECAB 

1223 (1983).

16 Federal (FECA) Procedure Manual, supra note 11; C.C., Docket No. 19-1631 (issued February 12, 2020).
6

explanation as to why the accepted employment factors were insufficient to have caused or 

aggravated appellant’s diagnosed conditions. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the February 1, 2022 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: October 11, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board