United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 13-2034 

Issued: May 8, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 4, 2013 appellant, through his attorney, filed a timely appeal from an 

August 1, 2013 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. 

ISSUE 

The issue is whether appellant met his burden of proof to establish that he was disabled 

from March 4, 2011 to July 13, 2012. 

FACTUAL HISTORY 

On April 6, 2011 appellant, a 49-year-old clerk, filed a Form CA-2 claim for 

occupational disease alleging that he developed pinched nerve and degenerative spine conditions 

 1

 5 U.S.C. § 8101 et seq. 
2

causally related to his employment. He first became aware of his condition on March 21, 2011 

and first realized that it was work related on March 22, 2011.2

 Appellant did not stop work. 

In a May 22, 2011 report, Dr. Kenneth Williams, a chiropractor, stated that he examined 

appellant on March 29, 2011 for complaint of lumbar spine pain stemming from a work-related 

injury of March 21, 2011. He related a history that appellant had been lifting heavy mail 

containers, which required bending, lifting and twisting. Appellant experienced lumbar pain and 

tightness at L4-5, which radiated into his buttocks. Dr. Williams advised that appellant’s pain 

became so severe that he was unable to move the following morning. Appellant had two days 

off from work but called in sick on March 24, 2011. While he returned to work the following 

week, he was only able to perform light duty. Dr. Williams advised that appellant had daily 

complaints of tingling, stabbing and lower back pain, which increased with bending and lifting 

and was alleviated by rest. He opined that appellant’s history, subjective complaints and 

objective findings were consistent with an acute sprain/strain of his lumbar spine as a direct and 

proximate result of the lifting/bending incident on March 21, 2011. 

In an April 4, 2011 form report, Dr. Williams stated that he treated appellant from 

March 29 to April 1, 2011 for a work-related musculoskeletal injury to his lumbar spine. He 

scheduled appellant for treatment for three to four weeks, three times per week. Dr. Williams 

indicated that the condition would cause possible flare ups one to two times a month for at least 

three months and the treatment was necessitated by appellant’s medical condition. 

By decision dated July 5, 2011, OWCP denied appellant’s claim, finding that he failed to 

submit sufficient medical evidence to establish that he had sustained a low back condition in the 

performance of duty. 

On July 19, 2011 appellant, through his attorney, requested a hearing, which was held on 

October 24, 2011. 

In an October 6, 2011 report, Dr. Todd S. Hochman, a specialist in internal medicine, 

stated that appellant’s work activities required him to lift tubs of mail and sort through them for 

eight hours a day, five days per week. He advised that the job duties of clerk required that 

appellant lift, bend and twist at the waist on a regular basis. In early 2011, appellant developed 

lumbar symptomatology which required chiropractic treatment. Dr. Hochman recommended 

follow up and diagnostic evaluation. Appellant underwent x-rays on March 31, 2011 which 

showed objective documentation of degenerative disc disease and anterolisthesis at the L4-5 

level. Based on his history, a review of the medical records and physical examination, 

Dr. Hochman opined within a reasonable degree of medical probability that appellant had 

developed clinically symptomatic lumbar degenerative disc disease and anterolisthesis at the L4-

5 level as a result of his work activities over the past 13 years. 

By decision dated December 28, 2011, an OWCP hearing representative vacated and 

remanded the July 5, 2011 decision. He found that Dr. Hochman’s October 6, 2011 report was 

sufficient to require further development of the medical evidence. 

 2

 On March 31, 2011 appellant underwent diagnostic testing that showed mild discogenic degenerative changes a 

L4-5 and a slight anterolisthesis of L4 on L5, degenerative; and of no significant change with flexion or extension. 
3

In order to determine whether appellant’s pinched nerve or degenerative spine conditions 

were causally related to his work, OWCP referred him for a second opinion examination by 

Dr. Manhal A. Ghanma, a specialist in orthopedic surgery. In a January 18, 2012 report, 

Dr. Ghanma diagnosed lumbar degenerative disc disease and anterolisthesis at L4-5 but opined 

that these conditions were not related to appellant’s employment. The degenerative changes 

documented on appellant’s lumbar x-rays developed with age, were normal and not attributable 

to any specific work factor or work injury. Dr. Ghanma found that appellant was not totally 

disabled for work and had no restrictions or need for additional care. 

OWCP determined that a conflict in medical opinion arose between Dr. Hochman and 

Dr. Ghanma regarding whether appellant’s lumbar condition was causally related to his 

employment. In order to resolve the conflict, it referred appellant for a referee examination by 

Dr. Robert Corn, a Board-certified orthopedic surgeon. In a March 26, 2012 report, Dr. Corn 

stated that appellant sustained a subacute strain/sprain of the lumbar spine on March 31, 2011, 

which permanently aggravated his preexisting, asymptomatic L4-5 lumbar disc disease. He 

opined that, although the x-ray abnormalities were associated with the aging process, appellant 

was able to perform repetitive work without restrictions prior to the incident. Dr. Corn stated 

that the repetitive lifting, bending, pushing and pulling, especially at higher weight limits, had 

aggravated appellant’s low back condition. He found that appellant’s symptoms were directly 

and causally related to his work as described in the statement of facts. Dr. Corn advised that 

appellant was not totally disabled for all work but could continue to do his regular job with a 

weight restriction of 20 pounds. He stated that appellant’s current condition was not attributable 

to the aging process, but to the repetitive work he had performed for decades. Dr. Corn 

recommended that appellant be referred for a lumbar magnetic resonance imaging (MRI) scan. 

On April 17, 2012 OWCP accepted the claim for lumbar sprain and aggravation of 

lumbar degenerative disc disease. 

In a January 23, 2012 report, received by OWCP on May 29, 2013, Dr. Hochman stated 

that appellant continued to have low back pain that radiated towards the left buttock. He noted 

that appellant would undergo further diagnostic study. 

On March 29, 2012 appellant filed a Form CA-7, claiming compensation for wage loss 

from March 21, 2011 to April 17, 2012. 

In a July 16, 2012 report, Dr. Hochman noted that appellant was undergoing physical 

therapy, which appeared to be improving his condition. Appellant was currently working light 

duty and missed work intermittently. Dr. Hochman advised that appellant had a list of days off 

work. He stated that it was likely that the days missed were for the work injury sustained on 

March 21, 2011. Dr. Hochman submitted numerous disability and treatment slips dated 

July 2011. Appellant received chiropractic treatment and physical therapy for his back. He also 

submitted numerous reports from physical therapists. 

On August 8, 2012 appellant filed a Form CA-7, claiming compensation for wage loss 

from March 21, 2011 to July 13, 2012. He attached several CA-7a time analysis forms, which 

listed the dates he missed work. Appellant claimed reimbursement for 76.99 hours of leave 

without pay between March 4 and July 15, 2011; 74.10 hours of leave without pay between 
4

July 27, 2011 and May 14, 2012; and 24 hours of leave without pay between June 8 and 

July 13, 2012. On each date, he indicated that he missed work due to “flare up.” 

On September 20, 2012 OWCP asked appellant to submit additional evidence in support 

of his claim. It advised him that the medical evidence of record was not sufficient to support 

total disability from work on any of the claimed dates. OWCP required a report from a treating 

physician explaining why appellant was unable to work on the claimed dates, with reference to 

objective examination findings supporting total disability from work. It informed him that the 

reports from his chiropractor were not probative as his claim was not accepted for a subluxation 

of the spine. Therefore, Dr. Williams did not qualify as a physician under FECA. OWCP 

further advised appellant that physical therapy reports not signed by a physician did not 

constitute medical evidence under FECA. Dr. Hochman’s progress reports did not provide any 

explanation as to why he was unable to work on any of the claimed dates. 

In an October 24, 2012 report, Dr. Hochman stated that appellant underwent a lumbar 

MRI scan, which showed persistent degenerative disease at the L4-5 level. He suggested having 

appellant undergo a pain management program, with injections being considered as a last option. 

Dr. Hochman found that there were no neurological deficits and opined that appellant would not 

benefit from back surgery. Appellant was able to function reasonably well, although he 

intermittently missed days from work due to low back pain. On October 29, 2012 Dr. Hochman 

noted that appellant experienced an exacerbation of symptoms on October 24, 2012 which 

caused him to miss work on that date. He stated that appellant’s pain had started to subside. On 

January 3, 2013 Dr. Hochman stated that appellant’s back condition remained unchanged and 

that he had reached maximum medical improvement. 

By decision dated January 30, 2013, OWCP denied appellant’s claim for wage loss from 

March 4, 2011 to July 13, 2012, finding that he failed to provide sufficient medical evidence to 

support total disability. It found that the progress notes of Dr. Hochman did not contain any 

reasoned medical opinion based on objective examination findings explaining why appellant was 

unable to work during the claimed period. 

By letter dated February 4, 2013, appellant’s attorney requested an oral hearing, which 

was held on May 16, 2013. The hearing representative noted that appellant had received wageloss compensation for time missed from work for medical appointments and questioned whether 

the issue was therefore wage loss for total disability. Appellant’s representative responded that 

the issue pertained to intermittent dates of total disability. Appellant testified that the first time 

he missed time from work due to his injury was March 21, 2011, when Dr. Williams took him 

off work. He told his immediate supervisor that he was treated with Dr. Williams, who took 

x-rays and told him he was being treated for a subluxation as indicated by x-ray. Appellant was 

reassigned to another work area where he lifted heavy tubs of mail from the floor to an overhead 

equipment area. Although the job was outside his bid position, he was assigned to it because the 

employing establishment was understaffed. Appellant stated that Dr. Williams placed him on 

restricted duty with no lifting exceeding 25 pounds. Dr. Hochman also took him off work 

intermittently. Counsel argued that the off-work slips from Dr. Williams, the chiropractor, 

supported intermittent disability. Although appellant was being treated for a subluxation, a 

nonaccepted condition, he sought compensation for his off days because the subluxation was 

related to the degeneration of his lumbar discs. 
5

In a report dated June 3, 2013, Dr. Hochman stated that appellant had complaints of low 

back pain radiating into the lower extremities. He recently underwent an EMG and nerve 

conduction studies but had yet to receive the test results. Dr. Hochman stated that appellant was 

trying to remain productive but continued to intermittently miss work due to his low back 

symptoms caused by aggravation of the L4-5 degenerative disc disease. 

By decision dated August 1, 2013, an OWCP hearing representative affirmed the 

January 30, 2013 decision, finding that appellant did not provide sufficient medical evidence to 

support his claim of intermittent disability. 

LEGAL PRECEDENT 

It is the employee’s burden of proof to establish disability during the period of time for 

which wage-loss compensation is claimed. The term “disability” is defined by implementing 

regulations as “the incapacity, because of an employment injury, to earn the wages the employee 

was receiving at the time of injury. It may be partial or total.”3 The Board has long held that 

whether a particular injury causes an employee disability for employment is a medical question 

which must be resolved by competent medical evidence.4 

ANALYSIS 

OWCP accepted the conditions of lumbar sprain and lumbar degenerative disc disease, 

based upon the report of Dr. Corn, the impartial medical examiner, who, however, did not opine 

that appellant was totally disabled during the time period in question. Rather, Dr. Corn stated 

that appellant could return to light work. The record indicates that light work was offered to 

appellant and he did perform such work during the time period in question. 

The Board finds that the record does not establish that appellant was totally disabled 

during the claimed time period. Dr. Williams, appellant’s treating chiropractor, stated that 

appellant had complaints of lumbar pain on March 29, 2011 due to a March 21, 2011 work 

injury. He related that the pain became so severe that appellant was unable to move the 

following morning and called in sick on March 24, 2011. Dr. Williams opined that appellant 

sustained an acute sprain/strain of his lumbar spine as a direct and proximate result of his 

claimed lifting/bending injury on March 21, 2011. He also submitted the April 4, 2011 form 

report on which he indicated that he had treated appellant on March 29, 30 and 31 and April 1, 

2011 for a work-related musculoskeletal injury to his lumbar spine and that he had scheduled 

appellant for treatment for three to four weeks, three times per week. Dr. Williams advised that 

appellant’s lumbar spine condition would cause possible flare ups one to two times per month for 

at least three months and that the treatments were necessitated by appellant’s medical condition. 

However, his reports do not constitute medical evidence pursuant to section 8101(2) because 

they do not provide a diagnosis of subluxation based on x-ray results. The term “physician” 

includes chiropractors only to the extent that their reimbursable services are limited to treatment 

 3

 20 C.F.R. § 10.5(f). 

4 See Donald E. Ewals, 51 ECAB 428 (2000). 
6

consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray 

to exist and subject to regulation by the Secretary.5

 

Dr. Hochman stated in his July 16, 2012 report that appellant had complaints of low back 

pain radiating into the left buttock and advised that he was undergoing physical therapy, which 

appeared to be improving his condition. He asserted that appellant had provided a list of days off 

from work, which he missed due to his accepted lower back condition. In his October 24 and 29, 

2012 reports, Dr. Hochman stated that appellant underwent a lumbar MRI scan, which showed 

persistent disease at the L4-5 level. He reiterated that, although appellant was functioning 

reasonably well at work, he continued to intermittently miss days from work due to low back 

pain; however, it is not clear whether he took himself out of work on the days he missed work or 

if he did so at the recommendation of a physician. 

As noted above, to establish entitlement to compensation, an employee must establish 

through competent medical evidence that disability from work resulted from the employment 

injury.6 The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed. To do so would essentially allow an employee to self-certify their disability and 

entitlement to compensation.7 Appellant has the burden to demonstrate his disability for work 

based on rationalized medical opinion evidence. The issue of whether a claimant’s disability is 

related to an accepted condition is a medical question which must be established by a physician 

who, on the basis of a complete and accurate factual and medical history, concludes that the 

disability is causally related to employment factors and supports that conclusion with sound 

medical reasoning.8 There is no such evidence in this case. As stated above, appellant is entitled 

to compensation for wage loss for whatever periods are attributable to his work-related 

condition, in accordance with a “current narrative medical report indicating disability for the 

period in question or projecting disability through the period of claimed compensation.” 

However, Dr. Hochman’s reports did not provide a probative, rationalized medical opinion 

establishing that appellant was disabled for work due to the accepted lumbar strain and lumbar 

degenerative disc conditions for the period March 4, 2011 to July 13, 2012.9 His reports failed to 

establish that appellant was disabled for work during this period. Dr. Hochman did not offer any 

opinion or supporting medical rationale regarding the date that appellant’s disability began or his 

 5

 5 U.S.C. § 8101(2); see also Paul Foster, 56 ECAB 208 (2004). 

6 Donald E. Ewals, supra note 3. 

7 Paul E. Thams, 56 ECAB 503 (2005). 

8 Howard A. Williams, 45 ECAB 853 (1994). 

9 William C. Thomas, 45 ECAB 591 (1994). 
7

disability for work for the period claimed.10 His opinion does not contain any medical rationale 

explaining how or why appellant’s accepted lumbar strain and lumbar degenerative disc 

conditions were affected by or related to factors of employment during the period March 4, 2011 

to July 13, 2012.11 The reports from Dr. Hochman failed to establish that appellant was disabled 

for work during this period. 

Finally, appellant also submitted several reports from a physical therapist. These reports, 

however, do not constitute medical evidence under section 8101(2). Because healthcare 

providers such as nurses, acupuncturists, physicians’ assistants and physical therapists are not 

considered “physicians” under FECA, their reports and opinions do not constitute competent 

medical evidence to establish a medical condition, disability or causal relationship.12 

That Board notes that appellant would be entitled to compensation for any time missed 

from work due to medical treatment for his employment-related condition. The Federal (FECA) 

Procedure Manual, Part 5 -- Benefit Payments, Authorizing Medical Payments, Chapter 

5.201.18b (October 1990) provides: “If an [appellant] has returned to work following an 

accepted injury or the onset of an occupational disease and must leave work and lose pay or uses 

leave to undergo treatment, examination or testing, compensation should be paid for wage loss 

under 5 U.S.C. § 8105 while undergoing the medical services and for a reasonable time spent 

traveling to and from the location where services were rendered.” The record indicates that 

appellant was paid wage-loss compensation for two separate medical treatments. The time 

analysis forms appellant submitted listing his dates of disability due to a “flare up” do not match 

the dates of medical treatment. When questioned by the hearing representative regarding 

disability due to medical treatment, appellant’s representative acknowledged that appellant had 

received wage-loss compensation for medical treatment and that the remaining issue was 

intermittent dates of total disability. 

Appellant has failed to submit sufficient evidence to establish that his lumbar strain on 

lumbar degenerative disc conditions caused wage loss. Because he has not provided a 

rationalized opinion supporting his disability for work for the period in question, OWCP 

properly denied his claim for wage-loss compensation. 

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. 

 10 Appellant is entitled to compensation for any time missed from work due to medical treatment for an 

employment-related condition. OWCP’s procedures at Federal (FECA) Procedure Manual, Part 5 -- Benefit 

Payments, Authorizing Medical Payments, Chapter 5.201.18b (October 1990) provides “If a [appellant] has returned 

to work following an accepted injury or the onset of an occupational disease and must leave work and lose pay or 

uses leave to undergo treatment, examination or testing, compensation should be paid for wage loss under 5 U.S.C. 

§ 8105 while undergoing the medical services and for a reasonable time spent traveling to and from the location 

where services were rendered.” 

11 Id.

12 5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. 

Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983). 
8

CONCLUSION 

The Board finds that appellant has not met his burden to establish that he was entitled to 

compensation for wage loss from March 4, 2011 to July 13, 2012. 

ORDER 

IT IS HEREBY ORDERED THAT the August 1, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 8, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board