United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.S., Appellant 

and 

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Alexandria, VA, Employer 

__________________________________________ 

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Docket No. 14-1925 

Issued: April 20, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 2, 2014 appellant, through counsel, filed a timely application for review 

from an August 6, 2014 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 OWCP properly denied appellant’s claim for wage-loss 

compensation for the period November 7, 2013 through January 3, 2014. 

FACTUAL HISTORY 

On December 2, 2013 appellant, then a 41-year-old law enforcement officer, filed an 

occupational disease claim (Form CA-2) alleging that he sustained spondylolisthesis, 

spondylosis, severe degenerative disc disease, torn discs, and severe foraminal stenosis as a 

 1

 5 U.S.C. § 8101 et seq. 
2

result of duties of his federal employment. His duties included wearing body armor weighing 

over 50 pounds and extreme physical exertion while pursuing and apprehending fugitives and 

conducting tactical operations. Appellant first became aware of his claimed conditions on 

October 26, 2001 and of their relationship to his employment on September 17, 2013. His 

regular work shift was Monday through Friday. 

In an operative report dated November 7, 2013, Dr. Edward J. Goldberg, a Boardcertified orthopedic surgeon, reviewed the procedures performed on that date of a Gill 

laminectomy at L3; a left L1-2 hemilaminotomy and discectomy; a posterolateral spinal fusion at 

L3-4; and a cancellous allograft. He noted that appellant’s pre and postoperative diagnoses were 

isthmic spondylolisthesis at L3-4 and a left L1-2 herniated nucleus pulposus. There were no 

complications. 

In a report dated February 28, 2014, Dr. Syed M. Quadri, a Board-certified osteopath, 

stated: 

“[Appellant’s] MRI [magnetic resonance imaging] scans of the neck and back are 

clearly suggestive of acquired spondylosis. Further, he has spondylolysis at L3-4, 

which is a pars defect. This defect is suggestive of high impact stress to the spine, 

which results in fracture. It is presumable that, as a consequence of the defect, 

[appellant] has developed spondylolisthesis (slippage of vertebral body) at this 

level. The amalgam of spondylosis, uncovertebral hypertrophy in the cervical 

spine, degenerative disc disease in the cervical and lumbar spine, and disc 

herniation at L1 are all suggestive of acquired degeneration as a result of high 

impact activities to the axial skeleton. Disc herniations at L1 are not at all typical 

in the general population, although observed. One would not suspect such severe 

degeneration of the spine at [appellant’s] relatively young age. Even if he were to 

suffer from a genetic condition which predisposes him to accelerated arthritis, it 

does not explain findings like the pars defect which are typically acquired as 

stated previously through impact or trauma. To be clear, [appellant] does not 

demonstrate any constellation of symptoms consistent with a congenital 

condition. Reviewing [appellant’s] work activities, it is clear that high impact, 

shear and rotational forces to the axial spine are inherent to his line of work. 

“Now, [appellant’s] symptoms are and always have been concordant with MRI 

[scan] findings. He has to the best of his ability, taken professional advice and 

engaged in core strengthening and has avoided obesity. [Appellant] also does not 

engage in activities like smoking, which is a known risk factor for degenerative 

disc disease. Therefore, in my opinion, [appellant’s] current condition like 

arthritis of the spine, degeneration of discs, impingement of nerve roots by bony, 

and disc elements, pars defects, are a direct result of employment activities like 

hiking with heavy gear for several miles, jumping from heights in pursuit of 

criminals, swinging a ram to breach doors, etc.” 

OWCP accepted appellant’s claim for occupational disease on April 28, 2014 for 

aggravation of cervical spondylosis without myelopathy; aggravation of lumbosacral spondylosis 

without myelopathy; aggravation of unspecified arthropathy; aggravation of degeneration of the 
3

lumbar or lumbosacral intervertebral disc; thoracic or lumbosacral neuritis or radiculitis; 

aggravated-acquired spondylolisthesis; and displacement of the lumbar intervertebral disc 

without myelopathy. 

On May 9, 2014 appellant filed a claim for leave buyback from November 7, 2013 

through January 3, 2014. An OWCP specialist for the employing establishment noted that the 

type of leave used was sick leave, and that appellant returned to work on January 6, 2014. 

By letter dated May 23, 2014, OWCP requested additional information regarding 

appellant’s claim for compensation for the period November 7, 2013 through January 3, 2014. It 

noted that OWCP had not received any medical evidence regarding his disability status during 

the claimed period. OWCP requested that appellant submit an additional report from Dr. Quadri 

addressing the dates of disability along with a discussion as to why he was totally disabled for 

work for the relevant period. 

In a May 21, 2014 report, Dr. Goldberg stated that appellant underwent a lumbar 

laminectomy at L3, discectomy at L1-2, and a posterolateral spinal fusion at L3-4. He stated that 

appellant reported no continuing symptoms other than an occasional altered sensation on his left 

lateral thigh. 

On June 2, 2014 Dr. Goldberg stated that appellant underwent spinal surgery on 

November 7, 2013. He noted that, due to the extensive procedure, appellant was incapacitated 

from November 7, 2013 through January 5, 2014. Dr. Goldberg stated that appellant was 

released to limited duty on January 6, 2014 and full duty on February 20, 2014. 

By decision dated August 6, 2014, OWCP denied appellant’s claim for compensation for 

the period November 7, 2013 through January 3, 2014. It noted that it had not received a request 

for authorization for this surgery. OWCP found that the evidence of record failed to support 

disability during the claimed period. 

LEGAL PRECEDENT 

Under FECA, the term disability means the incapacity, because of an employment injury, 

to earn the wages that the employee was receiving at the time of injury.2

 Disability is thus not 

synonymous with physical impairment, which may or may not result in incapacity to earn wages. 

An employee who has a physical impairment causally related to a federal employment injury, but 

who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury, 

has no disability as that term is used in FECA.3

 Whether a particular injury causes an employee 

disability for employment is a medical issue which must be resolved by competent medical 

evidence.4

 Whether a particular injury causes an employee to be disabled for work and the 

 2 William Nimitz, Jr., 30 ECAB 567, 570 (1979). 

3 Cheryl L. Decavitch, 50 ECAB 397, 401 (1999). 

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

duration of that disability, are medical issues that must be proved by a preponderance of the 

reliable, probative, and substantial medical evidence.5

For each period of disability claimed, the employee has the burden of establishing that he 

or she was disabled for work as a result of the accepted 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 her disability and entitlement to compensation.7

The medical evidence required to establish a causal relationship, generally, is rationalized 

medical opinion evidence.8

 The opinion of the physician must be based on a complete factual 

and medical background of the employee, must be one of reasonable 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.9

ANALYSIS 

OWCP accepted appellant’s claim for occupational disease on April 28, 2014 for 

aggravation of cervical spondylosis without myelopathy; aggravation of lumbosacral spondylosis 

without myelopathy; aggravation of unspecified arthropathy; aggravation of degeneration of the 

lumbar or lumbosacral intervertebral disc; thoracic or lumbosacral neuritis or radiculitis; 

aggravated acquired spondylolisthesis; and displacement of the lumbar intervertebral disc 

without myelopathy. Appellant filed a claim for leave buyback on May 9, 2014 for the period 

November 7, 2013 through January 3, 2014 due to his accepted occupational conditions. OWCP 

denied his claim on August 6, 2014, finding that the medical evidence failed to support disability 

during the claimed period. 

In a report dated February 28, 2014, Dr. Quadri explained the causal relationship between 

appellant’s spinal conditions at L1-2 and L3-4 and factors of his federal employment. The 

conditions accepted by OWCP as work related included aggravation of cervical spondylosis 

without myelopathy; aggravation of lumbosacral spondylosis without myelopathy; aggravation 

of unspecified arthropathy; aggravation of degeneration of the lumbar or lumbosacral 

intervertebral disc; thoracic or lumbosacral neuritis or radiculitis; aggravated acquired 

spondylolisthesis; and displacement of the lumbar intervertebral disc without myelopathy. The 

procedures performed on November 7, 2013 included a Gill laminectomy at L3; a left L1-2 

hemilaminotomy and discectomy; a posterolateral spinal fusion at L3-4; and a cancellous 

allograft. Dr. Quadri did not address specific dates of disability in his reports. OWCP advised 

 5 Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id. 

6 See Amelia S. Jefferson, 57 ECAB 183 (2005). See also David H. Goss, 32 ECAB 24, 27 (1980). 

7 See William A. Archer, 55 ECAB 674, 679 (2004); Fereidoon Kharabi, 52 ECAB 291, 293 (2001). 

8 See Viola Stanko (Charles Stanko), 56 ECAB 436, 443 (2005); see also Naomi A. Lilly, 10 ECAB 560, 572-

73 (1959). 

9 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (2005). 
5

appellant by letter dated May 23, 2014 of the evidence needed to establish his claim and 

requested an additional report from Dr. Quadri addressing specific dates of disability and 

explaining why appellant was totally disabled for these dates. Appellant did not submit such a 

report. 

While appellant did submit a note from Dr. Goldberg dated June 2, 2014 which stated 

that he was incapacitated from November 7, 2013 through January 5, 2014 due to his extensive 

surgical procedures,10 Dr. Goldberg’s note did not contain a discussion as to why appellant was 

totally disabled for these dates. Instead, the June 2, 2014 note generally stated that the disability 

was due to his surgery, with no further discussion as to why appellant was totally disabled rather 

than capable of working within restrictions, and why such disability was causally related to 

appellant’s accepted employment-related conditions. As such, these reports are of diminished 

probative value on the issue of whether appellant was totally disabled between November 7, 

2013 and January 3, 2014.11 Therefore, OWCP’s August 6, 2014 decision denying appellant’s 

claim for wage-loss compensation for the period November 7, 2013 and January 3, 2014 was 

proper under the law and facts of the case. 

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 OWCP properly denied appellant’s claim for wage-loss 

compensation for the period November 7, 2013 through January 3, 2014. 

 10 The Board notes that January 4 and 5, 2014 were a Saturday and a Sunday, respectively, and that appellant was 

off work on these days of the week under his regular schedule. 

11 See Deborah L. Beatty, 54 ECAB 340 (2003). 
6

ORDER 

IT IS HEREBY ORDERED THAT the August 6, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 20, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board