United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.P., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

JERRY L. PETTIS MEMORIAL MEDICAL 

CENTER, Loma Linda, CA, Employer 

__________________________________________ 

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Docket No. 14-1879 

Issued: February 19, 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 HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 26, 2014 appellant, through her attorney, filed an appeal from a June 27, 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 met her burden of proof to establish that she had any 

employment-related disability from June 24 to July 26, 2013 due to the accepted lumbar 

condition. 

On appeal, appellant’s attorney asserts that the June 27, 2014 decision is contrary to law 

and fact. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On June 4, 2010 appellant, then a 47-year-old nurse practitioner, filed a traumatic injury 

claim alleging that she injured her thoracic and lumbar spine while administering intravenous 

medication to an anxious patient that day. On June 20, 2012 OWCP accepted that she sustained 

an employment-related lumbar sprain.2

 

An August 21, 2012 computerized tomography scan of the lumbar spine demonstrated 

retrolisthesis of L5 on S1 and disc bulges at the L3-4 and L4-5 levels. A March 11, 2013 

magnetic resonance imaging (MRI) scan study of the lumbar spine demonstrated a disc bulge at 

L5-S1. In an April 29, 2013 report, Dr. Darren L. Bergey, an orthopedic surgeon, noted a 

complaint of thoracolumbar and low back pain. Examination was deferred. He reviewed the 

MRI scan study and diagnosed intermittent right leg radiculopathy, lumbar spondylosis, L5-S1 

spondylolisthesis/disc degeneration, moderate foraminal stenosis at L4-5 with foraminal 

compromise, and facet arthropathy at T12-L2. Dr. Bergey found that appellant was temporarily 

partially disabled and could perform modified duty three days a weeks with no repetitive lifting, 

pushing, or pulling greater than five pounds, and limited bending and stooping with sitting and 

standing at will. He recommended radiofrequency ablation, physical therapy, a trial of 

acupuncture, and a pain management consultation. 

On May 15, 2013 an OWCP medical adviser opined that the therapy recommended by 

Dr. Bergey was not medically necessary. On May 6, 2013 appellant accepted a modified job 

within Dr. Bergey’s restrictions. The duties were described as making telephone calls and triage 

consults for various specialties within the surgical department, stocking rooms, performing vital 

signs for each new patient visit, checking the crash cart, escorting patients to rooms, and 

assisting physicians with passing of instruments. 

On May 22, 2013 Dr. Bergey advised that appellant should be excused from work that 

day due to recent flare-ups. In a June 3, 2013 report, he reiterated his conclusions, again noting 

that physical examination was deferred. Dr. Bergey indicated that appellant could continue to 

work modified duty, three days a week. On June 5, 2013 he indicated that she was totally 

disabled that day. 

On June 17, 2013 appellant filed a (Form CA-7) claim for compensation for the period 

June 17 to 21, 2013. The employing establishment indicated that she had used leave for the 

period May 20 through June 14, 2013. On June 26, 2013 OWCP indicated that the additional 

condition “other symptoms referable to back” had been accepted. In a telephone query dated 

July 12, 2013, it asked the employing establishment if modified duty was available for appellant 

for the claimed period of disability. 

In a July 8, 2013 report, Dr. Bergey reiterated his diagnoses and conclusions, again 

noting that physical examination was deferred. He indicated that appellant was totally disabled 

until August 19, 2013, stating that she had continued pain that had not resolved. 

 2

 OWCP noted that, when appellant’s claim was initially received, it appeared to be a minor injury with no lost 

time from work but that the claim had been reopened because her medical bills had exceeded $1,500.00 and would 

now be formally adjudicated. 
3

In correspondence dated July 15, 2013, Don Grenier, workers’ compensation coordinator 

with the employing establishment, indicated that appellant worked modified duty three days a 

week from May 6 to 20, 2013, when she stopped and had not returned. He indicated that 

modified duty was always available. Appellant’s supervisor, also indicated that modified duty 

was always available. By letter dated July 16, 2013, OWCP informed appellant of the type of 

medical evidence needed to support her disability claim. 

In a July 18, 2013 letter of medical necessity, Dr. Bergey indicated that appellant had a 

flare-up of pain that kept her from working June 4 to July 8, 2013. He stated that the pain was 

“very likely” treatable, but OWCP would not approve recommended treatment and therefore she 

was kept off even modified work. 

On July 24, 2013 appellant filed a Form CA-7 claim for compensation for the period 

June 24 to July 26, 2013. 

By decision dated August 20, 2013, OWCP denied appellant’s claim for disability 

compensation for the period June 17 to 21, 2013 because the medical evidence was insufficient 

to establish entitlement. In correspondence also dated August 20, 2013, it informed appellant of 

the medical evidence needed to support her claim for compensation for the period June 24 to 

July 26, 2013. 

Appellant, through her attorney, timely requested a hearing from the August 20, 2013 

decision. In an August 19, 2013 report, Dr. Bergey again indicated that physical examination 

was deferred and reiterated his diagnoses and treatment recommendations. He stated that 

appellant could not work as even the most sedentary and minimal movements caused severe pain 

after a full day of work and indicated that she remained totally disabled until 

September 30, 2013. In a September 23, 2013 report, Dr. Bergey noted her complaints that 

sitting, standing, and walking worsened her pain. Physical examination of the lumbar spine 

demonstrated tenderness to palpation and decreased range of motion with pain. Sensory 

examination of the lower extremities was intact to light touch and pinprick. Motor power was 

5/5 in all modalities. Dr. Bergey reiterated his treatment recommendations and advised that 

appellant remained totally disabled until November 4, 2013. The record also contains disability 

slips dated June 3, July 8, and August 19, 2013, signed by Jame Lanier, a physician’s assistant. 

In an October 2, 2013 decision, OWCP found the medical evidence insufficient and 

denied appellant’s claim for disability compensation for the period June 24 to July 26, 2013. On 

October 8, 2013 appellant, through her attorney, requested a hearing from the October 2, 2013 

decision. 

By report dated October 12, 2013, an OWCP medical adviser indicated that he had 

reviewed the medical evidence of record. He recommended that the accepted conditions be 

expanded to include aggravation of lumbar spondylosis with disc bulge at L5-S1 and suspected 

facet arthropathy at multiple levels. The medical adviser recommended that a series of facet 

injections or radiofrequency ablations be authorized. 

In October 2013, OWCP referred appellant to Dr. John C. Steinmann, a Board-certified 

osteopath specializing in orthopedic surgery, for a second opinion. 
4

On November 4, 2013 Dr. Bergey noted appellant’s continued complaint of pain. He 

provided examination findings and reiterated his diagnoses and treatment recommendations. 

Dr. Bergey indicated that appellant would be totally disabled until December 16, 2013, stating 

that she was unable to work because standing, walking, and sitting aggravated her symptoms. 

A December 2, 2013 MRI scan study of the lumbar spine demonstrated an annular fissure 

at L1-2 and a disc protrusion at L5-S1 with foraminal narrowing and bilateral facet joint 

hypertrophy. 

In a report dated November 15, 2013 with a December 12, 2013 addendum, 

Dr. Steinmann noted the history of injury, his review of medical records, and appellant’s 

complaint of low back pain. He provided physical examination findings which included 

decreased lumbar lordosis, lumbosacral tenderness, and significantly decreased lumbar range of 

motion. Sensory, motor, and reflex examinations were normal. Dr. Steinmann diagnosed severe 

mechanical low back pain emanating from L5-S1, related to the 2010 employment injury, which 

caused a permanent aggravation of preexisting degenerative disc disease. He indicated that 

appellant’s condition had deteriorated over three years, and that she met all appropriate criteria 

for fusion surgery. Dr. Steinmann advised that she could not perform her regular duties for the 

period June 17 through September 23, 2013 but could perform modified work with restrictions of 

no prolonged standing, bending, and stooping with lifting restricted to less than 20 pounds. He 

reviewed the December 2, 2013 MRI scan study, advising that it did not change his opinion. On 

an attached work capacity evaluation Dr. Steinmann indicated that appellant could work eight 

hours a day with temporary restrictions of sitting, standing, bending, and stooping limited to two 

to four hours, and a 20-pound weight restriction. 

Appellant was seen in pain management consultation on December 10, 2013 by 

Dr. Jiensup Kim, a Board-certified physiatrist, who recommended lumbar facet blocks. On 

December 16, 2013 Dr. Bergey reported that she had been seen for a pain management 

consultation and was scheduled for a facet block. He noted his review of Dr. Steinmann’s report, 

stating that their restrictions were in agreement but that appellant had been unable to tolerate 

working sedentary duties for three days a week and was made totally disabled beginning in 

June 2013, continuing to December 22, 2013. Dr. Bergey indicated that beginning January 2, 

2014 she could work with restrictions of no pushing, pulling, or lifting greater than 20 pounds 

with sedentary duties where she could sit or stand at will, with limited bending and stooping. On 

December 23, 2013 Dr. Kim performed lumbar facet blocks. 

In a December 26, 2013 correspondence, Mr. Grenier indicated that appellant’s sedentary 

work remained available from the time she stopped work. He noted that she worked modified 

duty on December 17, 18, and 19, 2013 but had not returned since that time. On January 10, 

2014 Dr. Bergey reported that appellant was unsuccessful in completing a five-day workweek 

performing modified duties, indicating that she stated that the position was mainly sitting that 

exacerbated her symptoms and she stopped work due to pain. He advised that she could work 

three days of modified duty weekly. On January 14, 2014 Dr. Bergey requested surgical 

authorization, that was authorized by OWCP on January 24, 2014. Throughout the period of her 

absence from work, appellant submitted additional claims for disability compensation. 
5

On February 12, 2014 a hearing was held regarding the claimed disability compensation 

for the period June 17 to June 21, 2013. Appellant testified that after the June 4, 2010 

employment injury she returned to regular duty after a few days and continued until June 2013 

when repetitive bending aggravated her low back pain, and that she could not work modified 

duty because it required too much sitting such that Dr. Bergey took her off work. 

On February 24, 2014 Dr. Kim performed lumbar radiofrequency ablation. He and 

Dr. Bergey continued to submit reports describing appellant’s condition and treatment. On 

March 13, 2014 Dr. Bergey performed a spinal fusion at L5-S1. He submitted follow-up 

treatment notes. Appellant began receiving disability compensation, effective 

February 24, 2014. 

By decision dated April 23, 2014, an OWCP hearing representative affirmed the 

August 20, 2013 decision denying appellant’s claim for disability compensation for the period 

June 17 to 21, 2013. 

On April 15, 2014 a hearing was held regarding the claimed disability period of June 24 

to July 26, 2013. Appellant testified that the limited-duty position required her to sit too long, 

which became painful. On June 9, 2014 she, through her attorney, requested reconsideration of 

the April 23, 2014 decision. 

In a June 27, 2014 decision, an OWCP hearing representative affirmed the October 2, 

2013 decision, finding that appellant was not entitled to disability compensation for the period 

June 24 to July 26, 2013.3

 

LEGAL PRECEDENT 

Under FECA, 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 

thus not synonymous with physical impairment which may or may not result in 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

 The test of “disability” 

under FECA is whether an employment-related impairment prevents the employee from engaging 

in the kind of work he or she was doing when injured.6

 Whether a particular injury causes an 

employee to be disabled for work and the duration of that disability, are medical issues that must 

be proved by a preponderance of the reliable, probative, and substantial medical evidence.7

 

 3

 The June 27, 2014 decision contains typographical errors in that it misidentifies the issue on page one and 

indicates that OWCP’s decision being affirmed is dated October 8, 2013 rather than October 2, 2013. 

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 Corlisia Sims, 46 ECAB 963 (1995). 

7 Tammy L. Medley, 55 ECAB 182 (2003). 
6

Monetary compensation benefits are payable to an employee who has sustained wage loss 

due to disability for employment resulting from the employment injury.8 The Board will not 

require OWCP to pay compensation for disability in the absence of any medical evidence 

directly addressing the specific dates of disability for which compensation is claimed. To do so 

would essentially allow employees to self-certify their disability and entitlement to 

compensation.9

 Causal relationship is a medical issue. The opinion of the physician must be 

based on a complete factual and medical background of the claimant, 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 claimant.10 

ANALYSIS 

The Board finds that appellant did not meet her burden of proof to establish that she was 

entitled to wage-loss compensation for total disability for the period June 24 to July 26, 2013 due 

to a June 4, 2010 employment injury. 

When appellant stopped work in June 2013, she was performing modified duties for eight 

hours a day, three days a week. The job duties consisted of making telephone calls and triage 

consults for various specialties within the surgical department, stocking rooms, performing vital 

signs for each new patient visit, checking the crash cart, escorting patients to rooms, and 

assisting physicians with passing of instruments. The physical restrictions required no pushing, 

pulling, or lifting over five pounds, sitting and standing at will, and limited bending and 

stooping. These were based on restrictions provided by her orthopedic surgeon, Dr. Bergey, who 

advised on April 29, 2013 that she could work three days a week with the specific restrictions 

listed. 

Dr. Bergey submitted a number of treatment notes. On April 29, 2013 he noted a 

complaint of thoracolumbar and low back pain. Examination was deferred. Dr. Bergey 

reviewed a March 11, 2013 MRI scan study and diagnosed intermittent right leg radiculopathy, 

lumbar spondylosis, L5-S1 spondylolisthesis/disc degeneration, moderate foraminal stenosis at 

L4-5 with foraminal compromise, and facet arthropathy at T12-L2. As noted above, he indicated 

that appellant was partially disabled and could perform modified duty three days a weeks with no 

repetitive lifting, pushing, pulling greater than five pounds, and limited bending and stooping 

with sitting and standing at will. On May 22, 2013 Dr. Bergey advised that she should be 

excused from work that day due to recent flare-ups, and on June 3, 2013 reiterated his 

conclusions, again noting that physical examination was deferred. He indicated that appellant 

could continue to work modified duty, three days a week. In a July 8, 2013 report, Dr. Bergey 

reiterated his diagnoses and conclusions, again noting that physical examination was deferred. 

He indicated that appellant was totally disabled until August 19, 2013, as she had pain that had 

not resolved. In a July 18, 2013 letter of medical necessity, Dr. Bergey indicated that appellant 

 8 Laurie S. Swanson, 53 ECAB 517 (2002). 

9 William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001). 

10 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 
7

had a flare-up of pain that kept her from working June 4 to July 8, 2013. He stated that the pain 

was “very likely” treatable, but OWCP would not approve recommended treatment and therefore 

she was kept off even modified work. 

In an August 19, 2013 report, Dr. Bergey again indicated that examination was deferred 

and reiterated his diagnoses and recommendations. He stated that appellant could not work as 

even the most sedentary and minimal movements caused severe pain after a full day of work and 

indicated that she was totally disabled until September 30, 2013. In a September 23, 2013 report, 

Dr. Bergey noted appellant’s complaints that sitting, standing, and walking worsened her pain. 

At that time he reported examination findings of tenderness to palpation and decreased range of 

motion with pain. Sensory examination of the lower extremities was intact to light touch and 

pinprick. Motor power was 5/5 in all modalities. Dr. Bergey reiterated his treatment 

recommendations and advised that appellant remained totally disabled until November 4, 2013. 

In his later reports, he merely generally advised that she was totally disabled beginning in 

June 2013. 

The Board initially notes that the reports from Ms. Lanier are not considered medical 

evidence as a physician assistant is not a physician as defined under FECA and therefore any 

report from such individual does not constitute competent medical evidence which, in general, 

can only be given by a qualified physician.11 

The Board finds Dr. Bergey’s reports insufficient to meet appellant’s burden of proof. 

There is no indication that the physician performed a physical examination until September 23, 

2013, several months after the period of claimed disability. The Board has long held that 

findings on examination are needed to justify a physician’s opinion that an employee is disabled 

from work.12 Moreover, the accepted conditions are lumbar sprain and other symptoms referable 

to the back. Dr. Bergey diagnosed intermittent right leg radiculopathy, lumbar spondylosis, L5-

S1 spondylolisthesis/disc degeneration, moderate foraminal stenosis at L4-5 with foraminal 

compromise, and facet arthropathy at T12-L2, none of which have been accepted as employment 

related. 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.13 

While Dr. Bergey indicated that appellant’s modified work duties caused severe pain 

such that she could not work, he did not display knowledge of her specific modified job duties or 

specifically explain why she was precluded from performing her modified position beginning in 

June 2013. He merely indicated that she had flare-ups of pain and stated that he kept her from 

performing even sedentary duty until OWCP approved recommended treatment. A physician’s 

opinion on causal relationship between a claimant’s disability and an employment injury is not 

dispositive simply because it is rendered by a physician. To be of probative value, Dr. Bergey 

 11 George H. Clark, 56 ECAB 162 (2004). See 5 U.S.C. § 8101(2). 

12 Supra note 8. 

13 Sandra D. Pruitt, 57 ECAB 126 (2005). 
8

must provide rationale for the opinion reached. Where no such rationale is present, the medical 

opinion is of diminished probative value.14 Dr. Bergey did not indicate an objective worsening 

of appellant’s condition, and his statements regarding her ability consisted primarily of a 

repetition of her complaints that she hurt too much to work. This is not a basis for payment of 

compensation.15 

In a report dated November 15, 2013 with a December 12, 2013 addendum, 

Dr. Steinmann, OWCP referral physician, noted the history of injury, his review of medical 

records, and appellant’s complaint of low back pain. He provided physical examination findings 

and diagnosed severe mechanical low back pain emanating from L5-S1, related to the 2010 

employment injury, which caused a permanent aggravation of preexisting degenerative disc 

disease. Although Dr. Steinmann advised that appellant could not perform her regular duties for 

the period June 17 through September 23, 2013, he indicated that she could perform modified 

work for eight hours a day with temporary restrictions of no prolonged standing, bending, and 

stooping, with lifting restricted to less than 20 pounds. The Board notes that these restrictions 

comported with those of the modified position she was performing when she stopped work in 

June 2013. Thus, Dr. Steinmann did not support that appellant was disabled from her modified 

position for the period at issue. 

Appellant did not submit sufficient rationalized medical opinion evidence to establish 

that she was unable to work from June 24 to July 26, 2013 due to the accepted lumbar condition. 

As she failed to establish that she was disabled, she is not entitled to wage-loss compensation for 

claimed periods.16

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 establish that she was entitled to any employmentrelated disability from June 24 to July 26, 2013 due to her accepted employment injury. 

 14 See S.B., Docket No. 13-1162 (issued December 12, 2013). 

15 Supra note 8. 

16 N.R., Docket No. 14-114 (issued April 28, 2014). 
9

ORDER 

IT IS HEREBY ORDERED THAT the June 27, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 19, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board