United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.J., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DELIVERY CENTER, Tacoma, WA, Employer 

__________________________________________ 

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Docket No. 15-1329 

Issued: December 18, 2015 

Appearances: Case Submitted on the Record

Howard L. Graham, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 26, 2015 appellant, through counsel, filed a timely appeal of a February 5, 2015 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Appeals Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, 

the Board has jurisdiction over the merits of the case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish disability, 

commencing November 3, 2012, causally related to his employment injuries. 

On appeal, appellant’s counsel alleges that OWCP’s decision was not well rationalized 

and that appellant’s physician established that appellant could not work due to the accepted 

employment injuries. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 11, 2012 appellant, then a 48-year-old custodial laborer, filed an 

occupational disease claim alleging that he exacerbated his chronic back pain while performing 

his federal duties. OWCP assigned this case File No. xxxxxx353. The employing establishment 

controverted this claim. 

Appellant also filed a separate traumatic injury claim on October 11, 2012 stating that on 

September 21, 2012, while picking up trash with the grabber, he heard a popping sound coming 

from his back and it started to burn and ache. This claim was assigned File No. xxxxxx638. The 

employing establishment also controverted this claim. 

In support of his claim, appellant submitted July 18, 2012 work restrictions by Michael 

Erskine, a physician assistant, a duty status report from the employing establishment dated 

August 6, 2013, progress notes from Mr. Erkskine dated August 30 and September 14, 2012, and 

a report by Pamela Asadi, a physician assistant, discussing appellant’s hospital visit on 

September 21, 2012. Appellant later submitted an October 18, 2012 duty status report from 

Mr. Erkshine based on the September 21, 2012 examination. Appellant submitted an 

October 11, 2012 statement wherein he discussed his duties, which included mopping the floor, 

stripping and waxing the floor, climbing a ladder, lifting various weights, picking up trash, and 

operating high impact machinery. He listed his symptoms as severe lower back pain which 

radiated down his buttock and legs. 

By decision dated November 19, 2012, OWCP denied appellant’s occupational disease 

claim as appellant had not submitted any sufficient medical evidence containing a diagnosis. 

OWCP further noted that appellant had not submitted medical evidence establishing a causal 

relationship between a diagnosed condition and the accepted factors of his federal employment. 

By decision dated December 6, 2012, OWCP denied appellant’s traumatic injury claim in 

File No. xxxxxx638. 

In an October 29, 2012 letter, Mr. Erskine indicated that appellant was still not cleared to 

return to work due to a chronic low back condition which was aggravated by working with the 

Department of Veterans Affairs.2

On December 14, 2012 appellant, through his counsel, requested a hearing in OWCP File 

No. xxxxxx353, appellant’s occupational disease claim, by telephone. Counsel also requested 

that the case be doubled with No. xxxxxx638, the traumatic injury claim, as they both concerned 

injuries to appellant’s lumbar region. 

At a hearing held on March 4, 2013, the hearing representative considered appellant’s 

appeal of both the November 19 and December 6, 2012 decisions. Appellant testified and 

described his employment duties, described the onset of his back pain with regard to both cases, 

and discussed his medical care. 

 2

 Appellant did not work for the Department of Veterans Affairs. 
3

By decision dated April 26, 2013, the hearing representative affirmed both the 

November 19 and December 6, 2012 decisions, 

In a May 2, 2013 report, Dr. Jaime A. Foland, a Board-certified physiatrist, stated that he 

initially evaluated appellant on April 18, 2012. He discussed appellant’s job duties, including 

mopping and stripping floors, pushing, pulling, and lifting heavy objects, pushing and pulling 

carts, and climbing ladders. Dr. Foland noted that appellant first injured his low back in 1992 

and that this date precede the time he began working at the employing establishment. He 

indicated that he saw appellant for low back pain and neck pain on April 18 and June 6, 2012 and 

January 24, 2013. Dr. Foland also noted that he spoke with appellant on the telephone on 

March 11, 2013. He diagnosed lumbar spondylosis manifested by a desiccated disc at L4-5 and 

also a right herniated disc at L5-S1 that as causing lumbago and sciatica. Dr. Foland listed 

appellant’s physical limitations as lifting not greater than 20 pounds but he noted that appellant 

had no sitting, standing or walking restrictions. He stated that appellant was precluded from 

crawling, kneeling, squatting, and should avoid frequent neck extension. Dr. Foland noted that 

his restrictions were currently temporary. He concluded that the repetitive job duties that 

appellant performed for the last 15 years and at the time of his latest injury of September 21 

contributed to a reasonable medical certainty to appellant’s condition. 

On February 14, 2014 appellant requested reconsideration of the April 26, 2013 decision. 

By decision dated July 1, 2014, OWCP vacated in part and affirmed in part the April 26, 

2013 decision. 

OWCP determined that the evidence was sufficient to establish the claim for an 

occupational disease in File No. xxxxxx353 as he explained that appellant’s back condition was 

due to work conditions over a period of time. It determined, however, that the traumatic injury 

claim remained denied because the evidence had not attributed a medical diagnosis to any 

specific event. 

In a separate decision of the same date, OWCP accepted appellant’s occupational disease 

claim for displacement of lumbar intervertebral disc without myelopathy and lumbosacral 

spondylosis without myelopathy. 

On August 5, 2014 appellant filed CA-17 claim forms for compensation from 

November 3, 2012 through July 31, 2014. He later filed claims for subsequent periods of 

disability. Appellant retired on June 11, 2014. 

In support of his claims for compensation, appellant submitted a December 11, 2013 

progress note by Dr. Foland noting that appellant had significant spondylosis of the cervical 

spine and chronic low back pain. He diagnosed chondromalacia patella, plantar fasciitis, chronic 

back pain, and hyperlipidemia. Dr. Fong noted that appellant appeared to have radiculopathy 

from C6, but more than likely from C7 radiculopathy due to foraminal stenosis at C6-7. He felt 

that appellant would benefit from an epidural steroid injection and definitely felt he would 

benefit from surgery, but that appellant was resistant. In a December 18, 2013 note, Dr. Foland 

diagnosed subacute chronic neck pain, currently with significantly high pain levels, decrease of 

cervical range of motion, left upper extremity numbness, and decrease of left upper extremity 
4

strength. The progress notes also contain progress notes by Mr. Erskine and Deborah Grogean, 

as well as notes discussing appellant’s treatment with the mental health group. 

By letters dated October 21 and 29, 2014, OWCP requested that appellant submit medical 

reports in support of his requests for compensation. 

In a November 18, 2014 brief letter, Dr. Foland noted that he had been treating appellant 

since April 18, 2012 and that he was last seen by him on November 12, 2014. He noted that 

appellant’s diagnoses are lumbar spondylosis as well as cervical spondylosis. Dr. Foland opined 

that appellant had been unable to work since “September 12” because of his accepted work 

injuries. He noted that appellant was unable to push, pull or lift over 20 pounds; cannot bend, 

twist or squat; and was unable to sit or stand for more than 20 minutes without a break of at least 

10 minutes. Dr. Foland noted that appellant’s last MRI of the lumbar spine revealed continued 

severe degeneration of the L4-5 and L5-S1 discs. 

By decision dated February 5, 2015, OWCP denied appellant’s claim for compensation 

for the period November 3, 2012 and continuing. 

LEGAL PRECEDENT 

Section 8102(a) of FECA3 sets forth the basis upon which an employee is eligible for 

compensation benefits. That section provides: 

“The United States Shall pay compensation as specified by this subchapter for the 

disability or death of an employee resulting from personal injury sustained while 

in the performance of his or her duty.” 

In general the term disability under FECA means incapacity, because of an employment 

injury, to earn the wages the employee was receiving at the time of the injury.4 This meaning, 

for brevity, is expressed as disability from work.5 For each period of disability claimed, the 

employee has the burden of proving that he was disabled for work as a result of the accepted 

employment injury.6

 Whether a particular injury caused an employee to be disabled for 

employment and the duration of that disability are medical issues which must be proved by the 

preponderance of the reliable probative and substantial medical evidence.7

Disability is not synonymous with physical impairment, which may or may not result in 

an incapacity to earn wages. An employee who has a physical impairment causally related to his 

or her federal employment, but who nonetheless has the capacity to earn the wages he or she was 

 3

 5 U.S.C. § 8102(a). 

4

 20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548 

(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984). 

5 See Roberta L. Kaaumoana, 54 ECAB 150 (2002). 

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

7 See Fereidoon Kharabi, 52 ECAB 291 (2001). 
5

receiving at the time of injury, has no disability as that term is used under FECA and is not 

entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to 

pay compensation for disability in the absence of any medical evidence directly addressing the 

particular period of disability for which compensation is claimed. To do so would essentially 

allow employees to self-certify their disability and entitlement to compensation.8

ANALYSIS 

OWCP accepted appellant’s occupational disease claim for displacement of lumbar 

intervertebral disc without myelopathy and lumbosacral spondylosis without myelopathy. 

Appellant filed claims for compensation for periods commencing November 3, 2012. Appellant 

retired effective June 11, 2014. 

The Board finds that the medical evidence fails to establish that appellant was disabled 

commencing November 3, 2012 due to his accepted injuries. 

Dr. Foland submitted medical reports addressing appellant’s employment-related injuries. 

However, Dr. Foland did not provide a rationalized medical opinion finding appellant disabled at 

any point after November 3, 2012. Initially, the Board notes that Dr. Foland opined in his 

November 18, 2014 letter that appellant was disabled after “September 12” because of his 

accepted work injuries. Dr. Foland did not specify the year, and as the letter was written on 

November 18, 2014, one would assume that the letter indicated disability after 

September 12, 2014. Appellant had already retired from federal employment at this point. 

Furthermore, Dr. Foland’s opinion is conclusory in nature, and fails to explain in detail how the 

accepted medical conditions were responsible for appellant’s disability and why he could not 

perform his federal employment. His earlier reports also do not provide any rationalized 

explanation that appellant was disabled after November 3, 2012. In his May 2, 2013 report, 

Dr. Foland listed appellant’s temporary restrictions, but never specifically linked any specific 

periods of disability to the accepted conditions of displacement of lumbar intervertebral disc or 

lumbosacral spondylosis. Notes of the physician assistants and nurses have no probative medical 

value as they are not considered physicians as defined under FECA.9 The remaining medical 

evidence addresses emotional conditions that are not a part of this claim. 

Appellant has not submitted any rationalized medical evidence establishing that he was 

disabled for periods after November 3, 2012. Thus, he has not met his burden of proof to 

establish that he is entitled to compensation for any disability. 

 8 Id. 

9

 The term 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. § 8102(2); A.C., 

Docket No. 08-1453 (issued November 18, 2008) (records from a physical therapist do not constitute competent 

medical opinion in support of causal relation, as physical therapists are not physicians as defined under FECA; L.D., 

59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA); Roy L. Humphrey, 57 ECAB 

238 (2005). See also J.G., Docket No. 15-251 (issued April 13, 2015). 
6

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 did not meet his burden of proof to establish disability for 

periods commencing November 3, 2012 causally related to his employment injuries. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated February 5, 2015 is affirmed. 

Issued: December 18, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board