United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.G., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 14-1822 

Issued: January 27, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 19, 2014 appellant, through his attorney, filed a timely appeal from a July 29, 

2014 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 has established that he is entitled to disability 

compensation for the period July 15 to November 30, 2011 due to his accepted condition or other 

conditions arising from his accepted injuries. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On November 16, 2009 appellant, then a 47-year-old carpenter, sustained lower back, 

right shoulder, right leg and left hand injuries when he slipped on water and fell down stairs. 

OWCP accepted the claim on July 6, 2010 for contusion and sprain of left hand, left shoulder 

and upper arm sprain acromioclavicular, contusion of right hip and thigh, right knee, leg, neck, 

and lumbar sprain. Appellant stopped work on November 16, 2009 and received wage-loss 

compensation through July 14, 2011. 

This case has previously been before the Board. In an October 29, 2013 decision, the 

Board affirmed OWCP’s January 7, 2013 merit decision finding that appellant failed to establish 

that he was disabled for the period July 15 to November 30, 2011.2

 The Board found that the 

opinion of Dr. Andrew J. Gelman, Board-certified in orthopedic surgery, was entitled to special 

weight as the impartial medical examiner and established that appellant was not entitled to 

disability compensation from July 15 to November 30, 2011 because his November 16, 2009 

injuries had resolved. The findings and facts as set forth in the prior decisions are hereby 

incorporated by reference. 

On May 1, 2014 appellant, through counsel, requested reconsideration. Counsel 

submitted a new report from Dr. Gerald Dworkin, Board-certified in physical medicine and 

rehabilitation, in support of appellant’s claim. 

In the April 24, 2014 medical report, Dr. Dworkin reported that a December 16, 2009 

electromyogram (EMG) and nerve conduction velocity study revealed right L5-S1 lumbosacral 

radiculopathy. A December 20, 2010 magnetic resonance imaging (MRI) scan revealed 

significant disc herniation at L4-5 and L5-S1. Dr. Dworkin stated that appellant’s injuries were 

severe and caused significant long-standing physical capacity limitations. He referenced his 

September 15, 2011 report which commented on Dr. Gelman’s opinion that the MRI scan 

findings were degenerative in nature. Dr. Dworkin disagreed and found the L5-S1 disc 

herniation was post-traumatic in nature with significant narrowing of appellant’s bilateral, lateral 

recess region of the spine, causing him significant back pain with sitting, standing, and walking. 

As a result, appellant was incapable of working and unable to return to work. 

Dr. Dworkin further stated that, due to the severe nature of back, buttock, and leg pain, he 

had ordered appellant’s physical therapy treatment from July 15 to November 30, 2011. He 

diagnosed traumatic low back pain with persistent and recurrent right greater than left sciatica 

secondary to traumatic disc herniation at L4-5 and L5-S1 as seen on MRI scan, and associated 

radiculopathies including L5-S1 radiculopathy as seen on EMG. Dr. Dworkin opined with a 

reasonable degree of medical certainty that appellant’s listed diagnoses were a result of the 

November 16, 2009 work-related fall. 

Dr. Dworkin further opined that appellant continued to have severe back and leg pain and 

was unable to work between July 15 and November 11, 2011 while he was attending physical 

therapy. He stated that appellant’s inability to work was secondary to the work-related injury, 

including back pain with severe sciatica and traumatic disc herniation at L4-5 and L5-S1, 

 2

 Docket No. 13-737 (issued October 29, 2013). 
3

complicated by bilateral L5-S1 radiculopathy. Dr. Dworkin noted that appellant was followed 

closely and had not had sufficient rehabilitation to return to employment prior to his discharge 

from therapy on November 30, 2011. This was because returning to work would have been 

hazardous and would lead to a high likelihood of recurrent and severe back and leg pain, as well 

as the possible need for surgical intervention. Dr. Dworkin noted that there was 

miscommunication from his prior note which indicated that he had released appellant to full duty 

on July 15, 2011. He stated that this was a clerical error and should have read as scheduled for 

continued aggressive therapy on July 15, 2011. 

By decision dated July 29, 2014, OWCP affirmed the October 29, 2013 decision finding 

that appellant failed to establish that he was disabled due to his November 16, 2009 injury for the 

period July 15 to November 30, 2011. 

LEGAL PRECEDENT 

Under FECA,3

 the term disability is defined as incapacity, because of employment injury, 

to earn the wages that the employee was receiving at the time of injury.4 Disability is not 

synonymous with a physical impairment which may or may not result in an incapacity to earn the 

wages. An employee who has a physical impairment causally related to a federal employment 

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

injury has no disability as that term is used in FECA.5

Whether a particular injury causes an employee to be disabled and the duration of that 

disability are medical issues which must be proved by a preponderance of the reliable, probative, 

and substantial medical evidence.6 Findings on examination are generally needed to support a 

physician’s opinion that an employee is disabled for work. When a physician’s statements 

consist only of a repetition of the employee’s complaints that excessive pain caused an inability 

to work, without making an objective finding of disability, the physician has not presented a 

medical opinion on the issue of disability or a basis for payment of compensation.7

 

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint 

a third physician who shall make an examination.8

 In situations where there are opposing 

medical reports of virtually equal weight and rationale and the case is referred to an impartial 

medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if 

 3

 5 U.S.C. §§ 8101-8193. 

4 See Prince E. Wallace, 52 ECAB 357 (2001). 

5 Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995). 

6 See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989). 

7 G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180,182 (1948). 

8

 5 U.S.C. § 8123(a). 
4

sufficiently well rationalized and based on a proper factual background, must be given special 

weight.9

ANALYSIS 

OWCP accepted that appellant sustained a contusion of left hand, sprain of left hand, left 

shoulder and upper arm sprain acromioclavicular, contusion of right hip and thigh, right knee and 

leg sprain, neck sprain, and lumbar sprain due to the November 16, 2009 employment incident. 

Appellant has the burden of proving by the weight of the substantial, reliable and probative 

evidence a causal relationship between his claimed disability from July 15 to November 30, 2011 

and the accepted November 16, 2009 injuries.10 Dr. Dworkin’s additional April 24, 2014 report 

does not provide a fully-rationalized medical opinion finding him disabled for work for the 

claimed period due to his accepted injuries. Therefore, the medical evidence submitted is 

insufficient to meet appellant’s burden of proof.11

By decision dated October 29, 2013, the Board found appellant failed to establish 

entitlement to disability compensation for the period July 15 to November 30, 2011 as a result of 

his November 16, 2009 injuries. The Board noted that Dr. Gelman’s reports established that 

appellant’s November 16, 2009 injuries had resolved and found that his opinion was sufficiently 

well rationalized, based upon a proper and factual background, and thus entitled to special 

weight as an impartial medical examiner. 

On appeal, the only medical evidence received in support of appellant’s claim was the 

new April 24, 2014 medical report from Dr. Dworkin. The Board finds that the additional 

medical evidence is insufficient to establish entitlement to disability compensation for the period 

July 15 to November 30, 2011. 

In the April 24, 2014 medical report, Dr. Dworkin reiterated his opinion that appellant’s 

traumatic low back pain with persistent and recurrent right greater than left sciatica secondary to 

traumatic disc herniation at L4-5 and L5-S1 as seen on MRI scan, and associated radiculopathies 

including L5-S1 radiculopathy as seen on EMG, were a result of the November 16, 2009 workrelated fall. He referenced his September 15, 2011 report and disagreed with Dr. Gelman’s 

opinion that the MRI scan findings were degenerative in nature. Dr. Dworkin further argued that 

the L5-S1 disc herniation was post-traumatic in nature with significant narrowing of appellant’s 

bilateral, lateral recess region of the spine, causing him significant back pain with sitting, 

standing, and walking. As a result, appellant was incapable of working and unable to return to 

work. 

The Board notes that Dr. Dworkin’s medical report repeats the findings and opinions 

expressed in his prior reports that gave rise to the conflict in medical opinion. His opinion that 

appellant’s sciatica, disc herniation, and radiculopathy were caused by the November 16, 2009 

 9 Nathan L. Harrell, 41 ECAB 402 (1990). 

10 See Amelia S. Jefferson, 57 ECAB 183 (2005). 

11 Alfredo Rodriguez, 47 ECAB 437 (1996). 
5

employment incident was previously addressed by the Board and found to be conclusory without 

explanation as to how the conditions caused disability or remained symptomatic.12 

Dr. Dworkin opined that appellant was unable to work while attending physical therapy 

from July 15 to November 30, 2011 due to severe back, buttock, and leg pain. He stated that 

appellant’s inability to work was secondary to the work-related injury, including back pain with 

severe sciatica and traumatic disc herniation at L4-5 and L5-S1, complicated by bilateral L5-S1 

radiculopathy. Dr. Dworkin is not attributing appellant’s disability during the period in question 

to his accepted conditions of left hand, sprain of left hand, left shoulder and upper arm sprain 

acromioclavicular, contusion of right hip and thigh, right knee and leg sprain, neck sprain, and 

lumbar sprain. As noted above, the diagnoses of lumbar sciatica, disc herniation at L4-5 and L5-

S1, and bilateral L5-S1 radiculopathy have not been accepted as compensable conditions. 

Dr. Dworkin also failed to specifically address appellant’s capacity for work or the why he was 

unable to continue to work. His previous July 14, 2011 note indicated that appellant’s workrelated back injury had significantly improved and he was released to full-duty work. While 

Dr. Dworkin stated that this was a clerical error and should have been read as having scheduled 

appellant for continued aggressive therapy on July 15, 2011, this explanation fails to support 

total disability for the period in question. Furthermore, his report dated November 27, 2012 does 

not provide support for a clerical error which also noted that appellant was placed out of work 

until his most recent visit of July 14, 2011. Dr. Dworkin’s additional explanation that appellant 

could not return to work until he was discharged from therapy due to a likelihood of recurrent 

and severe back pain is also insufficient to establish work-related disability. He did not profess 

sufficient knowledge of appellant’s specific job duties or provide a rationalized explanation as to 

why he could not work for the claimed periods.13 

As Dr. Dworkin fails to attribute disability to the accepted November 16, 2009 conditions 

for the period July 15 to November 30, 2011, his reports are insufficient to meet appellant’s 

burden of proof.14 The Board further notes that Dr. Dworkin was on one side of the conflict that 

gave rise to the referral to Dr. Gelman.15 Dr. Dworkin’s supplemental report is insufficient to 

overcome the opinion of Dr. Gelman or to create a new medical conflict.16 

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.17 The issue of 

whether a claimant’s disability is related to an accepted condition is a medical question. The 

 12 See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not 

fortified by medical rationale is of little probative value). 

13 A.J., Docket No. 13-614 (issued July 9, 2013). 

14 L.J., Docket No. 14-523 (issued August 7, 2014). 

15 C.B., Docket No. 12-1572 (issued February 21, 2013). 

16 See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy 

Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Dworkin’s report did not contain new findings or rationale 

on causal relationship upon which a new conflict might be based. 

17 See Amelia S. Jefferson, 57 ECAB 183 (2005). 
6

answer 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.18 The Board finds that he failed to meet 

his burden of proof.19 

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. 

§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607. 

CONCLUSION 

The Board finds that appellant failed to establish that he was disabled due to his 

November 16, 2009 injuries for the period July 15 to November 30, 2011. 

ORDER 

IT IS HEREBY ORDERED THAT the July 29, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 27, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 18 See Sandra D. Pruitt, 57 ECAB 126 (2005). 

19 S.S., Docket No. 10-621 (issued November 23, 2010).