United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.B., Appellant

and

U.S. POSTAL SERVICE, KIRKWOOD POST 

OFFICE, St. Louis, MO, Employer

__________________________________________

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Docket No. 20-0255

Issued: March 11, 2022

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, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 14, 2019 appellant, through counsel, filed a timely appeal from an 

October 24, 2019 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 October 24, 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

ISSUE

The issue is whether appellant has met her burden of proof to establish a re currence of 

disability from work for the period September 25, 2014 through July 14, 2015 causally related to 

the accepted employment conditions.

FACTUAL HISTORY

On April 19, 2004 appellant, then a 34-year-old city mail carrier, filed an occupational 

disease claim (Form CA-2) alleging that she developed metatarsalgia and chondromalacia of the 

patella due to factors of her federal employment, including continuous walking, standing, stair 

climbing, and carrying a mail satchel. She noted that she first became aware of her condition and 

its relation to her federal employment on February 6, 2004. On the reverse side of the claim form, 

appellant’s supervisor noted that she was placed on limited duty on February 7, 2014 with 

restrictions of three hours of continuous walking. On October 5, 2007 OWCP accepted her claim 

for bilateral plantar fibromatosis and bilateral tarsal tunnel syndrome.

On August 19, 2014 Dr. Shari L. Kaminsky, a podiatrist, provided permanent work 

restrictions for an eight-hour day consisting of intermittent walking for one hour, intermittent 

standing for two hours, and operating a motor vehicle for one hour. She also provided lifting 

restrictions of no more than 10 pounds.

In a December 16, 2014 form report, Dr. Kaminsky diagnosed plantar fasciitis as well as 

tarsal tunnel syndrome and opined that appellant was totally disabled from work from 

September 25, 2014 through January 9, 2015. She indicated that appellant could resume regular 

work on January 9, 2015.

On December 28, 2014 and January 9, 2015 appellant filed claims for compensation (Form 

CA-7) for total disability beginning September 25, 2014 through January 9, 2015.

In a January 16, 2015 development letter, OWCP advised appellant of the deficiencies of 

her claim. It requested that she submit additional factual and medical evidence supporting her 

claim for total disability beginning September 25, 2014. OWCP further provided appellant with a 

questionnaire for completion and requested a report from her physician addressing the relationship 

between her disability and her employment injury. It afforded her 30 days to submit the necessary 

evidence. No response was received.

By decision dated March 6, 2015, OWCP denied appellant’s claim for a recurrence of total 

disability commencing September 25, 2014.

On February 29, 2016 appellant requested reconsideration of the March 6, 2015 decision

and submitted additional evidence in support of her claim.

An August 20, 2014 electromyogram and nerve conduction velocity (EMG/NCV) study 

demonstrated bilateral tarsal tunnel syndrome, mild on the right, and moderate on the left. 

In notes dated October 16 and November 18, 2014, Dr. Kaminsky found appellant totally 

disabled and released her to work without restrictions on November 3, 2014 and December 12, 

2014, respectively. On January 29, 2015 she found appellant disabled from work for the period 

September 25, 2014 through March 2, 2015.
3

In a January 29, 2015 treatment note, Dr. Kaminsky diagnosed tarsal tunnel syndrome. She 

related that appellant felt her foot pain was extreme, but that she was spending very little time on 

her feet at work. Dr. Kaminsky noted pain with palpation of the base of the right second toe and 

the second metatarsal head as well as the right second intermetatarsal space. She also reported a 

positive Tinel’s sign at the tarsal tunnel bilaterally, as well as pain upon palpation of the medial 

tarsal area, the flexor halluces brevis, and the arch. Dr. Kaminsky found that she was experiencing 

chronic changes from her long-term tarsal tunnel syndrome and recommended a tarsal tunnel 

decompression. She noted that appellant was no longer taking prescribed pain medication, which 

had relieved some of her foot pain.

On February 13, 2015 Dr. Kaminsky completed a form report diagnosing tarsal tunnel 

syndrome and indicating that appellant was totally disabled from work through June 25, 2015. On 

March 2, 2015 she again found that appellant was totally disabled from work for the period 

September 25, 2014 through June 25, 2015.

On February 13, 2015 appellant responded to OWCP’s development questionnaire and 

submitted additional medical evidence. She attributed her recurrence of total disability on 

September 25, 2014 to chronic changes from tarsal tunnel syndrome. 

On May 6, 2015 Dr. Kaminsky performed a surgical right tarsal tunnel decompression.

Appellant provided notes beginning June 11, 2015 from Brian Harthill, a physical therapist.

On June 24, 2015 Dr. Kaminsky found that appellant was totally disabled from work for 

the period September 25, 2014 through September 1, 2015. In a follow-up note dated July 13, 

2015, she indicated that appellant could return to light-duty work. Dr. Kaminsky found that 

appellant was totally disabled from work for the period September 25, 2014 through July 13, 2015. 

Through a separate July 13, 2015 form report, she found that she could returned to light-duty work 

with her prior restrictions.

On July 15, 2015 the employing establishment offered appellant a permanent light-duty 

position as an accounting support technician. Appellant accepted the position on that date.

In a February 22, 2016 attending physician’s report (Form CA-20), Dr. Kaminsky 

diagnosed chronic changes from long-term tarsal tunnel syndrome, including EMG findings, a 

positive Tinel’s sign, and musculoskeletal swelling. She checked a box marked “Yes” indicating 

that appellant’s condition was caused or aggravated by employment activities and listed walking, 

standing, and weight-bearing of postal equipment. Dr. Kaminsky found that appellant was totally 

disabled for the period September 25, 2014 through July 13, 2015.

By decision dated May 27, 2016, OWCP denied modification of the March 6, 2015 

decision.

On May 23, 2017 appellant resubmitted her August 20, 2014 EMG study. She also 

provided a January 22, 2015 right foot magnetic resonance imaging (MRI) scan which 

demonstrated mild intermetatarsal bursitis situated between the heads of the second and third 

metatarsals.

On December 9, 2016 appellant provided additional physical therapy notes from

Mr. Harthill.
4

In a note dated April 13, 2017, Dr. Kaminsky reviewed appellant’s medical treatment for 

tarsal tunnel syndrome. She opined that tarsal tunnel syndrome was caused by overuse from 

walking, standing, or pedaling of an automobile for long periods of time. Dr. Kaminsky reviewed 

her MRI scan and noted that her symptoms of pain in the right second and third intermetatarsal 

spaces was consistent with pain that could radiate from tarsal tunnel syndrome. She noted that 

appellant did not have a neuroma or mass on MRI scan. Dr. Kaminsky provided her findings on 

physical examination including positive Tinel’s sign of the tarsal tunnel, bilaterally, and pain upon 

palpation of the medial tarsal tunnel, flexor hallucis brevis, and the arch. She opined that appellant 

was having chronic changes from the long-term tarsal tunnel syndrome and that she believed that 

she had a neurological origin for her pain, which was why she recommended tarsal tunnel 

decompression. Dr. Kaminsky noted that during the period of disability from September 25, 2014 

through July 13, 2015 that she was unable to alleviate her foot pain and felt that keeping her off 

work with rest and pain medication would help her functionally.

On May 24, 2017 appellant requested reconsideration of the May 27, 2016 decision.

By decision dated November 16, 2017, OWCP denied modification.

In an undated report, Dr. Kaminsky opined that appellant had experienced a spontaneous 

worsening of her work-related tarsal tunnel syndrome due to chronic changes that rendered her 

unable to work from September 25, 2014 until July 13, 2015. She noted that appellant had pain in 

the right intermetatarsal space and the right third intermetatarsal space that was consistent with 

radiating pain from tarsal tunnel syndrome. Dr. Kaminsky reported that on physical examination 

she had symptoms consistent with chronic worsening of her tarsal tunnel syndrome including pain 

upon palpation of the right second intermetatarsal space, and slightly to the right of the of the third 

intermetatarsal space, positive Tinel’s sign of the tarsal tunnel, bilaterally, and pain upon palpation 

of the tarsal tunnel, flexor hallucis brevis, and the arch.

On September 27, 2018 appellant, through counsel, requested reconsideration.

By decision dated February 25, 2019, OWCP denied modification.

OWCP continued to receive medical evidence. In a report dated April 16, 2019,

Dr. Kaminsky detailed appellant’s medical history, including her surgery on March 25, 2015. She 

noted that appellant had persistent and worsening pain in her right foot. Dr. Kaminsky diagnosed 

unspecified mononeuropathy of the right lower limb.

On August 26, 2019 appellant, through counsel, requested reconsideration of the 

February 25, 2019 decision. She provided additional treatment notes from Dr. Kaminsky and

Dr. Jerry M. Liddell, a podiatrist and associate of Dr. Kaminsky, dated July 14 through 

December 16, 2014. Counsel contended that Dr. Kaminsky’s notes were sufficient to meet 

appellant’s burden of proof to establish a recurrence of total disability on September 25, 2014.

On July 24, 2014 Dr. Kaminsky noted appellant’s report of bilateral foot pain and that she 

had not sought treatment for several years. She recounted that appellant reported throbbing, 

shooting, radiating, burning, tingling, numbness, and stiffness in her feet, worse on the right. 

Appellant’s pain continued to increase and was aggravated by walking and weight-bearing, but 

noted that she continued performing light-duty work. On physical examination Dr. Kaminsky 

noted no overt deformities and normal arch structure. She found pain upon compression of the 

common peroneal nerve bilaterally, tarsal tunnel bilaterally, and under the metatarsal heads one 
5

through five, bilaterally. Dr. Kaminsky also found pain upon palpation of the heels plantarly 

bilaterally. She diagnosed chronic tarsal tunnel syndrome, chronic plantar fasciitis, and chronic 

ankle and foot pain. Dr. Kaminsky noted that appellant’s physical examination was normal except 

for reports of pain, that her foot structure was good, and that she did not exhibit fat pad atrophy. 

She also reported that her neurological examination was normal, but recommended an EMG study.

On August 5, 2014 Dr. Liddell noted that appellant had been unable to work lately because 

of increased symptoms. On physical examination he found a positive Tinel’s sign on the dorsal of 

her feet bilaterally which may be intermediate dorsal cutaneous nerve or deep peroneal nerve 

distribution. Dr. Liddell found a negative Tinel’s sign over the tarsal tunnel bilaterally. He 

reported tenderness with palpation in the intermetatarsal spaces centrally with the most intense 

area being the second intermetatarsal space bilaterally.

In an October 16, 2014 treatment note, Dr. Kaminsky again recounted appellant’s 

description of her foot pain. On physical examination, she found the same pain pattern as 

demonstrated on July 24, 2014. Dr. Kaminsky noted that appellant’s EMG study showed tarsal 

tunnel syndrome bilaterally. She again reported that, other than pain, appellant’s physical 

examination seemed to be very normal. Dr. Kaminsky found that compression around the tarsal 

tunnel was giving appellant pain at the ankle, heel, arch, and on the entire plantar service of the 

feet bilaterally. She concluded that appellant had failed conservative care and needed to consider 

surgical correction.

On November 18, 2014 Dr. Kaminsky reported that appellant had injured her right second 

toe on a hard object one month earlier. She found that appellant had torn the dorsal ligament of 

the distal interphalangeal joint of the right second toe. Dr. Kaminsky examined appellant on 

December 16, 2014 and noted that she had traumatically torn a ligament in the dorsal capsule of 

her right second toe. She opined that appellant’s problem was not caused by the injury to the right 

second toe. Dr. Kaminsky recommended further electrodiagnostic testing to ensure that she was 

not overlooking secondary signs of tarsal tunnel syndrome or capsular injury the right second 

metatarsal phalangeal joint.

By decision dated October 24, 2019, OWCP denied modification of its prior decisions.

LEGAL PRECEDENT

A recurrence of disability means an inability to work after an employee has returned to 

work, caused by a spontaneous change in a medical condition which resulted from a previous 

compensable injury or illness and without an intervening injury or new exposure in the work 

environment.4 This term also means an inability to work when a light-duty assignment, made 

specifically to accommodate an employee’s physical limitations due to work-related injury or 

illness, is withdrawn or altered so that the assignment exceeds the employee’s physical limitations. 

A recurrence does not occur when such withdrawal occurs for reasons of misconduct, 

nonperformance of job duties, or a reduction-in-force.5

4

20 C.F.R. § 10.5(x); T.J., Docket No. 18-0831 (issued March23, 2020).

5

Id.
6

When an employee who is disabled from the job he or she held when injured on account 

of employment-related residuals returns to a limited-duty position or the medical evidence of 

record establishes that he or she can perform the limited-duty position, the employee has the burden 

of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence 

of total disability and to show that he or she cannot perform such limited-duty work. As part of 

this burden, the employee must show a change in the nature and extent of the injury -related 

condition or a change in the nature and extent of the limited-duty job requirements.

6

 This burden 

includes the necessity of furnishing evidence from a qualified physician who concludes, on the 

basis of a complete and accurate factual and medical history, that for each period of disability 

claimed, the disabling condition is causally related to the employment injury, and supports that 

conclusion with medical reasoning.7 Where no such rationale is present, the medical evidence is 

of diminished probative value.8

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a recurrence of 

disability from work for the period September 25, 2014 through July 14, 2015 causally related to 

the accepted employment conditions.

First, the Board notes that appellant did not allege, and the evidence does not establish, a 

change in the nature and extent of appellant’s light-duty work requirements. Additionally, there 

is no indication in the record that the employing establishment withdrew a light-duty work 

assignment. The remaining issue is whether the medical evidence demonstrated a worsening of 

appellant’s accepted bilateral foot conditions such that she could not perform limited-duty work.

After returning to part-time limited-duty work on May 22, 2010, appellant again sought 

medical treatment from Dr. Kaminsky beginning on July 24, 2014. Thereafter, Dr. Kaminsky

diagnosed chronic tarsal tunnel syndrome, chronic plantar fasciitis, and chronic ankle and foot 

pain. On August 19, 2014 she provided permanent work restrictions. Appellant also sought 

treatment October through December 2014. In a December 16, 2014 form report, Dr. Kaminsky 

diagnosed plantar fasciitis as well as tarsal tunnel syndrome and found that appellant was totally 

disabled from September 25, 2014 through January 9, 2015. She did not, however, offer an 

opinion on causal relationship between appellant’s claimed disability and factors of her federal 

employment. The Board has held that medical evidence that does not offer an opinion regarding

the cause of an employee’s condition or disability is of no probative value.9 As such, these reports 

are of no probative value and do not establish appellant’s disability claim.

In a series of reports, she attributed appellant’s disability from work to chronic changes 

from her long-term tarsal tunnel syndrome. Dr. Kaminsky noted that appellant’s symptoms of 

pain in the right second and third intermetatarsal spaces were consistent with pain that could radiate 

from tarsal tunnel syndrome. She also listed appellant’s findings on physical examination 

6

S.D., Docket No. 19-0955 (issued February 3, 2020); Terry R. Hedman, 38 ECAB 222 (1986).

7

J.M., Docket No. 19-1517 (issued January 29, 2020); RonaldA. Eldridge, 53 ECAB 218 (2001); MaryA. Ceglia, 

Docket No. 04-0113 (issued July 22, 2004).

8

Id.

9

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
7

including positive Tinel’s sign of the tarsal tunnel bilaterally and pain upon palpation of the medial 

tarsal tunnel, flexor hallucis brevis, and the arch. The Board notes that pain is a symptom, not a 

compensable medical diagnosis.10 Dr. Kaminsky did not provide medical rationale supporting an 

objective worsening of the accepted conditions between September 25, 2014 and July 14, 2015 

such that appellant could no longer perform her modified-duty position. The Board has held that 

reports are of limited probative value regarding causal relationship if they do not contain medical 

rationale explaining how a given medical condition/disability was related to the accepted 

employment injuries.11

In a February 22, 2016 attending form report, Dr. Kaminsky diagnosed chronic changes 

from long-term tarsal tunnel syndrome, including EMG findings, a positive Tinel’s sign, and 

musculoskeletal swelling. She checked a box marked “Yes” indicating that appellant’s condition 

was caused or aggravated by employment activities and listed walking, standing and weightbearing of postal equipment. Dr. Kaminsky found that she was totally disabled from 

September 25, 2014 through July 13, 2015. The Board has held that a report that addresses causal 

relationship with an affirmative checkmark, without medical rationale explaining how the 

employment injuries resulted in the period of disability, is of diminished probative value and 

insufficient to establish causal relationship.12

On August 5, 2014 Dr. Liddell noted that appellant had been unable to work because of 

increased symptoms. On physical examination he found a positive Tinel’s sign on the dorsal of 

her feet bilaterally which may be intermediate dorsal cutaneous nerve or deep peroneal nerve 

distribution. Dr. Liddell also found a negative Tinel’s sign over the tarsal tunnel bilaterally. 

However, he did not address whether appellant was disabled from work duringthe claimed period. 

As Dr. Liddell did not address the claimed dates of disability, his opinion is insufficient to establish 

her claim.13

Appellant also submitted diagnostic studies. The Board has held, however, that diagnostic 

studies, standing alone, lack probative value as they do not address whether the employment injury 

caused any period of disability.14 These reports are therefore insufficient to establish the claim.

10 R.S., Docket No. 19-1131 (issued April2, 2020).

11 G.R., Docket No. 19-0940 (issued December 20, 2019); D.L., Docket No. 19-0900 (issued October 28, 2019); 

Y.D., Docket No. 16-1896 (issued February 10, 2017); C.M., Docket No. 14-0088 (issued April18, 2014).

12 J.B., Docket No. 18-1751, 19-0793 (issued May 6, 2019); S.C., Docket No. 18-1242 (issued March 13, 2019); 

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

13 M.L., Docket Nos. 18-1058, 18-1224 (issued November 21, 2019); T.L., Docket No. 18-0934 (issued May 8, 

2019); SandraD. Pruitt, 57 ECAB 126 (2005).

14 M.J., Docket No. 19-1287 (issued January 13, 2020); see J.S., Docket No. 17-1039 (issued October 6, 2017).
8

Appellant also submitted notes from Mr. Harthill, a physical therapist. As physical 

therapists are not considered physicians under FECA, his reports are insufficient to establish 

entitlement to compensation benefits.15

As the medical evidence of record is insufficient to establish a recurrence of disability from 

work for the period September 25, 2014 through July 14, 2015 causally related to the accepted 

employment conditions, the Board finds that appellant has not met her burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish a recurrence of 

disability from work for the period September 25, 2014 through July 14, 2015 causally related to 

the accepted employment conditions.

15 Section 8101(2) of FECA provides that a physician includes: “surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See alsoFederal (FECA) Procedure Manual, Part 2 --Claims, 

Causal Relationship, Chapter 2.805.3a(1) (January 2013); J.B., supra note 12; T.K., Docket No. 19-0055 (issued 

May 2, 2019); DavidP. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician assistants, 

and physical therapists are not competent to render a medical opinion under FECA).
9

ORDER

IT IS HEREBY ORDERED THAT the October 24, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 11, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board