K.M. and Department of Veterans Affairs, North Texas Health Care System, Dallas VA Medical Center, Dallas, TX (Board decision, January 11, 2024)

ECAB remand decision. The Board set aside OWCP's denial of additional right foot and ankle conditions because conflicting medical opinions required further proceedings. It affirmed the denial of intermittent wage-loss compensation for March 5 through July 12, 2019. OWCP must still decide whether the claim covers the additional conditions. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A VA nurse manager injured her right foot and ankle when a patient's bed rolled over her foot during a code blue. She later asked OWCP to recognize additional foot and ankle conditions and pay for intermittent time away from work. The Board found an unresolved conflict between her treating physician and OWCP's medical adviser about whether the additional conditions resulted from the accepted injury. It sent that question back for further proceedings. The Board separately found that she had not proved the claimed intermittent work disability was caused by the accepted injury, so it upheld that denial.

Decision snapshot

• Authority: FECA medical opinion conflict rule, 5 U.S.C. § 8123(a); disability causation.
• Outcome: January 6, 2022 OWCP decision set aside in part and affirmed in part; additional-condition issue remanded.
• Key point: Conflicting supported medical views require further review of claim expansion, while the separate wage-loss claim was unproved.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board
________
)
K.M., Appellant
)
)
and ) Docket No. 22-0638
)
Issued: January 11, 2024
DEPARTMENT OF VETERANS AFFAIRS,
)
NORTH TEXAS HEALTH CARE SYSTEM,
)
DALLAS VA MEDICAL CENTER, Dallas, TX, )
Employer
)
__________ )

Appearances: Case Submitted on the Record
Brett Elliot Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 25, 2022 appellant, through counsel, filed a timely appeal from a January 6, 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

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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.
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The Board notes that, following the January 6, 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.

ISSUES

The issues are: (1) whether appellant has met her burden of proof to expand the acceptance of her claim to include additional right ankle and foot conditions as causally related to the accepted June 12, 2013 employment injury; and (2) whether appellant met her burden of proof to establish intermittent disability from work for the period March 5 through July 12, 2019 causally related to her accepted June 12, 2013 employment injury.

FACTUAL HISTORY

On June 12, 2013 appellant, then a 42-year-old nurse manager, filed a traumatic injury claim (Form CA-1) alleging that on that date she sustained right foot, toes, and ankle injuries in the performance of duty. She explained that she was assisting with a code blue on a heavy patient when the team accidently rolled the bed carrying the patient over appellant’s right foot. OWCP accepted the claim for right foot and ankle contusion, right leg peroneal tendinitis, and right ankle ligament sprain. It paid appellant wage-loss compensation on the supplemental rolls from August 30, 2013 through November 5, 2021.

In a report dated February 12, 2019, Dr. J.D. Fajardo, a podiatrist, noted appellant’s history of injury and medical treatment. He also related her physical examination findings. As a result of chronic spraining, Dr. Fajardo opined that appellant had sequela from her injury of anterior talofibular, ankle, and calcaneof ibular sprain. He diagnosed right ankle and foot osteoarthritis, right ankle instability, peroneal tendinitis, right ankle pain, right subtalar joint pain, right ankle ligamentous injury, and right foot and ankle contusion.

In a March 6, 2019 disability note, Dr. Ronnie D. Shade, a Board-certified orthopedic surgeon, advised that appellant would be totally disabled from work from March 6 through May 1, 2019 as her right foot and ankle required immobilization for the next six weeks.

Appellant filed a claim for compensation (Form CA-7) for the period March 5 through 29, 2019.

In a report dated April 11, 2019, Dr. Shade noted appellant’s accepted conditions. He reported her physical examination findings of moderate right ankle lateral malleolus and dorsum swelling, right mid and fore foot tenderness and muscle soreness, and zero-degree right foot inversion and eversion. Dr. Shade further related that review of appellant’s February 18, 2019 right foot and ankle x-ray revealed great toe degenerative changes in an otherwise unremarkable right ankle and foot impression. He also reviewed right foot and ankle magnetic resonance imaging (MRI) scans of even date and reported first right foot metatarsophalangeal (MTP) joint and first interphalangeal joint degenerative change, chronic sclerosis of the medial and lateral sesamoids adjacent to the first metatarsal head, with mild joint space narrow, likely degenerative in nature. An MRI scan of appellant’s right ankle demonstrated minimal ankle joint effusion and mild soft tissue edema. Dr. Shade found her totally disabled from work for the period March 6 to May 1, 2019, noting that her right foot and ankle would be immobilized for the next six weeks.

Appellant thereafter filed additional Form CA-7 claims for compensation for intermittent disability from work during the period April 1 through May 24, 2019.

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In a development letter dated May 10, 2019, OWCP noted receipt of appellant’s claim for a recurrence of disability. It informed appellant of the definition of a recurrence and advised her of the evidence required to support her claim. OWCP afforded her 30 days to submit the requested evidence.

In an undated report, Dr. Shade requested expansion of the acceptance of appellant’s claim to include right ankle instability, right ankle ligament sprain, right ankle and foot secondary osteoarthritis, chronic pain syndrome, and right ankle subtalar joint pain. He reviewed diagnostic tests and noted his findings on examination, which were unchanged from his prior report. Dr. Shade opined, based on his review of the diagnostic testing, and the June 12, 2013 mechanism of injury, that appellant’s claim should be upgraded to include additional ankle/foot conditions.

In a May 1, 2019 report, Dr. Shade noted appellant’s accepted conditions as right foot and ankle contusion, right ankle ligament sprain, and right leg peroneal tendinitis. He related her physical examination and diagnostic test findings, and concluded that she was totally disabled from work from March 5 through May 29, 2019. Dr. Shade noted that appellant was currently using a surgical boot which immobilized her for the next six weeks. He also related that she had depression due to her persistent pain and physical limitations.

In a report dated May 17, 2019, Dr. Shade reiterated findings from previous reports. He requested expansion of the acceptance of appellant’s claim to include right ankle instability, right ankle and foot osteoarthritis, right ankle subtalar joint pain, chronic pain , and right ankle other ligament sprain.

Dr. Shade, in a work capacity evaluation (Form OWCP-5b) dated May 20, 2019, found appellant totally disabled from work from May 1 through 29, 2020. He noted that she was currently using a surgical boot, which resulted in her immobilization for six weeks.

In a report dated May 23, 2019, Dr. Shade diagnosed right ankle and foot osteoarthritis, right ankle instability, peroneal tendinitis, right ankle and subtalar joint pain, right ankle ligamentous injury, right ankle and foot contusion, right peroneal neuropathy, and chronic pain syndrome. He opined that appellant was unable to perform her work duties. In support of this conclusion, Dr. Shade found that she had difficulty with prolonged standing, bending, stooping, walking, pulling, and pushing. He explained that appellant’s disability was due to the progression and worsening of her condition. Dr. Shade noted that she had complained of increasing ankle and foot pain since the June 12, 2013 injury including lack of ankle and foot strength and motion.

In a July 2, 2019 report, Dr. Ari Kaz, a Board-certified orthopedic surgeon, serving as an OWCP district medical adviser (DMA), reviewed the evidence and concluded that the medical record did not support expansion of the acceptance of appellant’s claim to include right foot and ankle arthritis and right ankle instability. With respect to her right ankle and subtalar pain, he explained that those conditions were based on subjective complaints and were not grounds for upgrading or expanding her claim. Dr. Kaz explained that there was no mention of a first MTP joint injury in the August 17, 2013 MRI scan, that the first mention of first MTP joint arthritis was in an April 10, 2015 MRI scan, which was more than two years after appellant had stopped working and that many people develop idiopathic first MTP joint arthritis. Thus, he concluded that it was difficult to establish causal relationship between the accepted June 12, 2013 employment injury and the development of first MTP joint arthritis. Moreover, the objective evidence did not support a causal relationship between the development of first MTP joint arthritis

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and the accepted June 12, 2013 employment injury. Next, Dr. Kaz found that the diagnosis of right ankle instability was not supported by the objective evidence as none of the MRI scans documented lateral ankle ligaments damage and there was no evidence of ankle instability in examination findings. Additionally, he explained that, with respect to the diagnosis of chronic pain, he noted that, while there were subjective complaints, appellant did not meet any of the objective criteria for a complex regional pain syndrome (CRPS) type I or II diagnosis.

Appellant continued to file Form CA-7 claims for disability from work for the period May 27 through July 12, 2019.

On July 15, 2019 appellant accepted a modified job offer based on Dr. Shade’s work restrictions.

By decision dated July 23, 2019, OWCP denied appellant’s claim for a recurrence of disability and her request for expansion of her claim to include additional conditions as causally related to the accepted employment injury.

In a report dated August 1, 2019, Dr. Shade released appellant to return-to-modified work, effective July 15, 2019. He noted accepted conditions of right ankle and foot contusions, right leg peroneal tendinitis, and right ankle ligament sprain. Dr. Shade also related that appellant was awaiting acceptance of additional right foot and ankle conditions and authorization of a pending right foot/ankle surgery.

By decision dated September 4, 2019, OWCP denied appellant’s claim for disability from work for the period March 5 through July 12, 2019. It also denied her request for expansion of the acceptance of her claim.

On September 5, 2019 OWCP vacated the September 4, 2019 decision with respect to her claim for a recurrence of disability for the period March 5 through July 12, 2019. It advised that additional development was being untaken.

On September 5, 2019 OWCP requested clarification from Dr. Kaz, the DMA, regarding the issue of expansion.

OWCP subsequently received an August 19, 2019 report from Dr. Shade responding to the denial of expansion of appellant’s claim. Dr. Shade, referencing Dr. Fajardo’s February 12, 2019 report and opinion regarding her right ankle and foot, explained that it was well known that traumatic ankle sprains sequelae, including recurrent episodes of the ankle giving way leading to ankle osteoarthritis. According to Dr. Shade, this process usually takes a long period of time to develop, and appellant was currently undergoing the process. He related that her diagnoses included right ankle and foot osteoarthritis, right ankle instability, peroneal tend initis, right subtalar joint pain, right ankle ligamentous injury, and right ankle and foot contusion. Dr. Shade opined that appellant’s condition resulted from the June 12, 2013 right foot and ankle injury. He explained that her recurrent episodes of ankle giving way increased the torsional ankle stress sustaining a biomechanical cartilaginous joint injury and weaking of the lateral aspect of the ankle ligamentous structures. Dr. Shade indicated that, with this type of injury, it was expected that there would be significant inflammation, synovitis, recurrent ankle swelling, and persistent pain. Thus, he concluded that appellant sustained a consequential injury resulting in recurrent disability.

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In a report dated September 11, 2019, Dr. Shade opined that appellant was totally disabled from March 5 through July 24, 2019. In a disability note of even date, he requested that she be excused from work with a release to return to limited-duty work on September 11, 2019. Dr. Shade, in a duty status report (Form CA-17) of even date, indicated that appellant could work full time with work restrictions.

On September 13, 2019 appellant requested reconsideration of the July 23, 2019 decision denying her recurrence claim.

In an addendum dated September 24, 2019, Dr. Kaz reviewed Dr. Shade’s reports from 2013, 2014, and 2015 and Dr. Fajardo’s February 12, 2019 report. He found that many of appellant’s additional conditions were diagnosed based on her subjective complaints, rather than the objective evidence. Thus, Dr. Kaz again opined that expansion to include additional conditions was not supported by the medical record.

By decision dated November 19, 2019, OWCP denied appellant’s request for expansion of the acceptance of her claim to include a consequential injury and for disability from work for the period March 5 to July 12, 2019.

On November 16, 2020 appellant, through counsel, requested reconsideration and submitted additional evidence.

In a November 11, 2020 letter of dispute, Dr. Shade noted his disagreement with Dr. Kaz’ opinion. He explained that pain was a subjective phenomenon and that the psychological aspects to pain and reactions were more complex and less easily identifiable than physiologic responses Dr. Shade discussed psychological factors that should be considered when assessing pain. With respect to the diagnosis of first MTP joint osteoarthritis, he opined that these findings were present two years after the initial injury and that appellant had preexisting degenerative changes, which were accelerated and aggravated by the injury. Additionally, the loss of ankle and subtalar joint range of motion was clear evidence of a large degree of arthralgia and early epitalar and subtalar joint degenerative changes. Dr. Shade concluded that appellant’s diagnosed conditions were, more probably than not, caused or aggravated by her employment injury.

By decision dated December 9, 2020, OWCP denied modification of OWCP’s November 19, 2019 decision.

In progress notes dated April 26, May 24, and August 10, 2021. Dr. Fajardo noted appellant’s right foot and ankle swelling on physical examination. He also noted her pain complaints. Dr. Fajardo diagnosed right ankle and foot contusion, right ankle ligament sprain, and right peroneal tendinitis.

In a progress note dated August 3, 2021, Dr. Fajardo diagnosed bilateral plantar fasciitis, right calcaneal spur at the posterior aspect, bilateral plantar and heels stage I ulcer, bilateral feet hypertrophied skin, right second and third interspace neuroma, right tarsal tunnel, right Achilles tendinitis and insertional pain, dry skin xerosis to the soles of the feet, and hyperhidrosis to the soles of the feet. He provided neurological, dermatological, and musculoskeletal findings.

In a December 8, 2020 report, Dr. Shade noted appellant’s accepted conditions. He indicated that she was placed in a short leg cast brace on March 6, 2019 for six weeks and noted dates she was off work. Based on a review of an April 10, 2015 MRI scan, Dr. Shade reported

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arthropathic joint process of the first MTP joint and osteophyte formation along the dorsum of the first metatarsal head. He explained that degenerative joint changes take several years before showing up on x-rays. Dr. Shade again opined that appellant’s MTP joint problems had been aggravated and accelerated by the June 12, 2013 employment injury. In support of this conclusion, he explained that it was well known that instability and ankle giving way can persist without a definite ligamentous injury. Dr. Shade recommended expansion of the acceptance of appellant’s claim, and payment of wage-loss compensation for total disability during the period she wore the short leg brace cast.

Dr. Shade, in an October 14, 2021 report, noted that appellant was currently working eight hours per day in a sedentary job. He noted she continued to have intermittent lateral ankle swelling and giving way of the ankle. Appellant’s diagnostic tests and medical history were reviewed. On examination, Dr. Shade reported tenderness and moderate swelling of the right lateral malleolus, subtalar joint and over the right ankle dorsum, mid and fore foot tenderness and muscle soreness, decreased dorsi and plantar flexion, and zero degrees bilateral inversion and eversion. He diagnosed right ankle and foot contusion and requested expansion of the acceptance of the claim to include right ankle instability, right ankle ligament sprain, right ankle and foot secondary osteoarthritis, right ankle, foot and subtalar pain, and chronic pain syndrome.

On December 9, 2021 appellant, through counsel, requested reconsideration.

By decision dated January 6, 2022, OWCP denied modification of OWCP’s December 9, 2020 decision.

LEGAL PRECEDENT -- ISSUE 1

When 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. 4

Causal relationship is a medical question that requires rationalized medical opinion evidence to resolve the issue. 5 A physician’s opinion on whether there is a causal relationship between the diagnosed condition and the accepted employment injury must be based on a complete factual and medical background.6 Additionally, the physician’s opinion 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 appellant’s employment injury.7

4
R.K., Docket No. 21-0387 (issued May 20, 2022); J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004). 5 B.T., Docket No. 21-0388 (issued October 14, 2021); E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996). 6 B.T., id.; M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
7
Id.

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ANALYSIS -- ISSUE 1

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

In an August 19, 2019 report, Dr. Shade explained that it is well known that traumatic ankle sprain sequelae, including recurrent episodes of the ankle giving way , lead to ankle osteoarthritis. In a December 8, 2020 report, he explained that degenerative joint changes take several years before being visualized on x-ray. According to Dr. Shade, the process usually takes a long period of time to develop, and that appellant was currently undergoing the process. He diagnosed right ankle and foot osteoarthritis, right ankle instability, peroneal tendinitis, right subtalar joint pain, right ankle ligamentous injury, and right ankle and foot contusion , which he attributed to the June 12, 2013 employment injury. In support of this opinion, Dr. Shade explained that appellant’s recurrent episodes of ankle giving way increased the torsional ankle stress sustaining a biomechanical cartilaginous joint injury and weaking of the lateral aspect of the ankle ligamentous structures. Thus, he opined that her MTP joint problems had been aggravated and accelerated by the June 12, 2013 injury. Dr. Shade explained that it was well known that instability and ankle giving way can persist without a definite ligamentous injury. In a November 11, 2020 letter of dispute, he again noted that appellant’s findings of first MTP joint osteoarthritis were present two years following initial injury. Dr. Shade opined that her preexisting degenerative changes had been accelerated and aggravated by the injury. Moreover, he indicated that the loss of ankle and subtalar joint range of motion were clear evidence of a large degree of arthralgia and early epitalar and subtalar joint degenerative changes. Thus, Dr. Shade concluded that appellant’s additional conditions were, more probably than not, caused or aggravated by her employment injury and the acceptance of her claim should be expanded to include additional conditions.

In contrast, Dr. Kaz, OWCP’s DMA, indicated in his July 2, 2019 report that the medical evidence did not support expansion of the acceptance of appellant’s claim. He advised that the diagnosed conditions were based on subjective complaints. In addition, Dr. Kaz noted that there was no mention of a first MTP joint injury in the August 17, 2013 MRI scan and the first mention of this condition, in an April 10, 2014 MRI scan, was more than two years after appellant had stopped working. He advised that many people develop idiopathic first joint MTP joint arthritis. Dr. Kaz further found that the diagnosis of right ankle instability was not supported by objective evidence due to the lack of diagnostic tests documenting lateral ankle ligament damage. With respect to the diagnosis of chronic pain, he explained it was based on subjective complaints and appellant met none of the criteria for a diagnosis of CRPS. Dr. Kaz, in an addendum dated September 24, 2019, advised that his opinion remained unchanged.

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 impartial medical specialist) who shall make an examination.8 For a conflict to arise, the opposing physicians’ opinions must be of virtually equal weight and rationale.9 In situations where the case is properly referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist,

8
5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007). 9 R.K., supra note 4; P.R., Docket No. 18-0022 (issued April 9, 2018).

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if sufficiently rationalized and based upon a proper factual background, must be given special weight.10

The Board finds that there is an unresolved conflict in the medical opinion evidence between appellant’s attending physician, Dr. Shade, and OWCP’s DMA, Dr. Kaz, regarding whether the acceptance of her claim should be expanded to include additional conditions caused or causally related or consequential to the accepted June 12, 2013 employment injury.

LEGAL PRECEDENT -- ISSUE 2

An employee seeking benefits under FECA 11 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. 12 Under FECA, the term disability means an incapacity because of an employment injury, to earn the wages the employee was receiving at the time of the injury. 13 When, however, the medical evidence establishes that the residuals or sequelae of an employment injury are such that, from a medical standpoint, prevent the employee from continuing in his or her employment and he or she is entitled to compensation for any loss of wages. 14

To establish causal relationship between the disability claimed and the employment injury, an employee must submit rationalized medical evidence, based on a complete factual and medical background, supporting such causal relationship. 15 The opinion of the physician must be one of reasonable medical certainty and must be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific employment factors identified by the employee. 16

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met her burden of proof to establish intermittent disability from work for the period March 5 through July 12, 2019 causally related to her accepted June 12, 2013 employment injury.

10
See R.K., id.; D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P.
Roberts, 31 ECAB 1010 (1980).
11
Supra note 2.
12
See S.F., Docket No. 20-0347 (issued March 31, 2023); D.S., Docket No. 20-0638 (issued November 17, 2020);
F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 13 20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).
14
P.C., Docket No. 22-1242 (issued May 23, 2023); see G.T., Docket No. 18-1369 (issued March 13, 2019);
Merle J. Marceau, 53 ECAB 197 (2001).
15
See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).
16
C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

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In a report dated May 23, 2019, Dr. Shade explained the basis of appellant’s disability. He noted appellant’s diagnoses of right ankle and foot osteoarthritis, right ankle instability, peroneal tendinitis, right ankle and subtalar joint pain, right ankle ligamentous injury, right ankle and foot contusion, right peroneal neuropathy, and CRPS, and he opined that she was unable to perform her work duties. In support of this conclusion, Dr. Shade found that appellant had difficulty with prolonged standing, bending, stooping, walking, pulling, and pushing. He explained that her disability was due to the progression and worsening of her condition since the June 12, 2013 employment injury as she had lack of ankle and foot strength and motion. However, while Dr. Shade provided an opinion on causal relationship, he did not explain with rationale how or why her accepted conditions caused her to be disabled from work during the claimed period. The Board has held that a report is of limited probative value regarding causal relationship if it does not contain medical rationale explaining how the claimed disability was causally related to the accepted employment injury. 17 This evidence is, therefore, insufficient to establish the claim.

In the remaining reports from Dr. Shade dated beginning March 6, 2019, Dr. Shade advised that appellant would be totally disabled from work commencing March 5, 2019 as her right foot and ankle required immobilization in a short leg brace boot. He released appellant to return to modified work as of July 15, 2019. However, Dr. Shade did not provide an opinion on causal relationship. The Board has held that medical evidence that does not offer an opinion regarding the cause of an employee’s disability is of no probative value on the issue of causal relationship. 18 These reports, therefore, are insufficient to establish appellant’s claim.

As the medical evidence of record is insufficient to establish causal relationship between the claimed disability and the accepted employment injury, 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 this case is not in posture for decision with regard to whether appellant has met her burden of proof to establish additional right foot and ankle conditions as causally related to the accepted June 12, 2013 employment injury. The Board further finds that appellant has not met her burden of proof to establish intermittent disability from work for the period March 5 through July 12, 2019 causally related to her accepted June 12, 2013 employment injury.

17
See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value regarding causal relationship if it does not contain medical rationale describing the relation between work factors and a diagnosed condition/disability). 18 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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ORDER

IT IS HEREBY ORDERED THAT the January 6, 2022 decision of the Office of Workers’ Compensation Programs is set aside in part and affirmed in part. The case is remanded to OWCP for further proceedings consistent with this decision of the Board.

Issued: January 11, 2024
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

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