United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.H., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

SURFACE WAR CENTER, Port Hueneme, CA, 

Employer 

__________________________________________ 

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Docket No. 15-0770 

Issued: October 8, 2015 

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 27, 2015 appellant, through counsel, filed a timely appeal of a 

November 14, 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 met her burden of proof to establish disability on and 

after July 19, 2010, causally related to her employment injury. 

On appeal counsel argues that the evidence of record establishes appellant’s disability on 

and after July 19, 2010. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On July 15, 2010 appellant, then a 46-year-old systems accountant, filed an occupational 

disease claim (Form CA-2) alleging that on October 13, 2008 she first became aware of her mild 

degenerative neck condition, but did not realize its connection to her employment until 

June 22, 2010. She stopped work on July 15, 2010 and resigned from the employing 

establishment effective July 16, 2010.2

 

In an August 31, 2010 attending physician’s report (Form CA-20), Dr. Brigitta HufnagelPinney, a treating Board-certified family medicine physician, diagnosed cervical joint 

spondylosis without myelopathy. She noted that appellant had just relocated to San Diego, 

California from Woodland Hills, California. Dr. Hufnagel-Pinney advised appellant that she 

could return to work on August 31, 2010. 

On April 29, 2011 appellant submitted a July 7, 2010 report of Dr. Kien Ta, a 

chiropractor, who diagnosed upper thoracic ribs subluxation, thoracic and cervical myofascial 

pain syndrome due to upper thoracic ribs subluxation, cervical spine degenerative disc disease, 

and cervical disc syndrome, which he attributed to appellant’s employment duties. A review of 

an October 13, 2008 x-ray interpretation of the shoulders revealed no significant abnormality. 

Dr. Ta also reviewed a June 18, 2010 x-ray and an August 23, 2010 magnetic resonance imaging 

(MRI) scan of the cervical spine and found cervical degenerative changes. With respect to work 

restrictions and disability, appellant related that she was unable to perform her normal job duties 

due to functional limitation and pain as the result of an October 13, 2008 accident. Dr. Ta noted 

that appellant has not worked since July 16, 2010. 

On August 3, 2011 OWCP referred appellant to Dr. William P. Curran, a Board-certified 

orthopedic surgeon, for a second opinion examination. In an August 22, 2011 report, Dr. Curran 

reviewed the medical evidence, her employment history, and provided physical examination 

findings. He noted that appellant was currently not working and that July 15, 2010 was her last 

workday. Dr. Curran diagnosed myofascial pain syndrome, cervical spine central and neural 

forminal spinal neurosis, cervical spine degenerative disc disease, and cervical spine 

degenerative osteoarthritis, which he attributed to appellant working at a computer typing for 

eight hours per day. He noted that appellant was totally disabled from working for the period 

July 25, 2010 through August 23, 2011. On an attached OWCP work capacity evaluation form 

(OWCP-5c), Dr. Curran provided permanent work restrictions and recommended an ergonomic 

evaluation of her work space. 

By decision dated September 15, 2011, OWCP accepted appellant’s claim for right 

shoulder joint pain and cervical intervertebral disc degeneration based on the August 22, 2011 

report by Dr. Curran. 

In a September 26, 2011 report, Dr. James R. McClurg, an examining Board-certified 

orthopedic sports medicine specialist, based upon a review of the medical evidence, job 

description, and physical examination diagnosed cervical sprain/strain and right impingement 

 2

 No reason was given for her resignation from the employing establishment on her notification of personnel 

action (Form SF-50). 
3

syndrome, which he attributed to her employment duties. He indicated that it was too early to 

consider vocational rehabilitation, but that she was capable of working with restrictions. 

The record also contains progress notes from Dr. McClurg for the period October 10, 

2011 through July 2012, noting that appellant was seen for complaints of upper extremity 

symptoms and pain. Dr. McClurg provided physical examination findings, reviewed objective 

tests, and diagnosed cervical sprain/strain and right impingement syndrome. He indicated that 

appellant was capable of working with restrictions in the progress and disability notes. The 

restrictions included limited right upper extremity use, no repetitive overhead reaching or lifting, 

no repetitive pulling or pushing, lifting up to 10 pounds, and rotating job tasks. 

On October 13, 2011 appellant filed a claim for wage-loss compensation (Form CA-7) 

claiming wage-loss compensation commencing July 19, 2010 to the date of the claim. 

By letter dated October 18, 2011, OWCP informed appellant that the evidence submitted 

was insufficient to establish her claim of disability beginning July 19, 2010. It noted that she had 

resigned from the employing establishment on July 15, 2010 and the record was unclear as to 

how her disability beginning July 19, 2010 was causally related to her accepted employment 

condition. Clarification was requested and appellant was given 30 days to provide medical and 

factual evidence. 

On December 12, 2011 appellant filed a CA-7 form claiming wage-loss compensation for 

the period July 24, 2010 to the present. 

On January 17, 2012 appellant filed a CA-7 form claiming wage-loss compensation for 

the period July 17, 2010 to January 30, 2012. 

On February 10, 2012 OWCP received an April 14, 2011 report from Dr. Ta diagnosing 

upper thoracic ribs subluxation, thoracic and cervical myofascial pain syndrome due to upper 

thoracic ribs subluxation, cervical spine degenerative disc disease, and cervical disc syndrome, 

which he attributed to appellant’s employment duties. Dr. Ta reiterated the findings contained in 

his July 7, 2010 report and noted that appellant’s condition had gradually improved with the 

chiropractic therapy he provided. 

By letter dated February 13, 2012, OWCP informed appellant that the evidence of record 

was insufficient to establish her claim for wage-loss compensation for the period July 17, 2010 to 

January 30, 2012. It advised her that additional medical and factual evidence was required and 

gave her 30 days to provide the requested information. 

In a letter dated March 5, 2012, appellant explained that the reason she resigned from the 

employing establishment was due to her increased symptoms and chronic pain. At the time of 

her resignation she was working without restriction. Appellant further explained that she 

resigned because she had exhausted all her sick and annual leave to cover her medical treatment 

and she had no other option as her supervisor would not approve any request for leave without 

pay. She also stated that she had verbally discussed with her supervisor regarding her chronic 

pain and its impact and that she might not be able to continue performing her job duties. 
4

By letter dated April 26, 2012, OWCP requested additional information from the 

employing establishment regarding appellant’s resignation on July 16, 2010. 

In a May 2, 2012 letter, the employing establishment stated that the first time appellant’s 

supervisor became aware of her medical condition was on July 15, 2010 when her claim was 

given to the supervisor. Neither the supervisor nor command safety office stated that they had 

been aware of appellant’s problems or symptoms or that it was employment related. 

By decision dated August 28, 2012, OWCP denied appellant’s claim for disability on and 

after July 15, 2010, causally related to the accepted employment injury. 

Following the denial of her claim, OWCP continued to receive progress notes from 

Dr. McClurg reiterating that appellant was capable of performing modified work. 

In a September 17, 2012 note, Raul Estrada, a certified physician assistant, noted that 

appellant was under the doctor’s care for her orthopedic problems. Appellant was placed on 

work restrictions at the initial September 26, 2011 evaluation, which were not available at that 

time. 

In a September 25, 2012 letter, appellant’s counsel requested an oral hearing before an 

OWCP hearing representative. A telephonic hearing was held on February 13, 2013. 

In March 5, 2012 and February 8, 2013 medical treatment notes, Dr. McClurg indicated 

that appellant was capable of returning to modified work. 

By decision dated April 22, 2013, an OWCP hearing representative set aside the 

August 28, 2012 decision and remanded for further development of the medical evidence. 

Specifically, OWCP found that a supplemental report was required from Dr. Curran, an OWCP 

referral physician. The hearing representative explained that while the claim was accepted based 

on this report, Dr. Curran provided no rationale explaining why appellant was totally disabled 

from working for the period July 16, 2010 to August 23, 2011 due to the accepted employment 

injury. 

OWCP continued to receive progress notes from Dr. McClurg following the April 22, 

2013 OWCP hearing representative’s decision reiterating physical examination findings and that 

appellant was capable of performing modified work. 

On May 28, 2013 OWCP requested a supplemental report from Dr. Curran based on an 

updated statement of accepted facts and requested an opinion as to whether appellant was totally 

disabled from her job for the period July 25, 2010 to August 23, 2011 due to her accepted 

employment conditions. 

In May 31 and July 23, 2013 medical treatment notes, Dr. McClurg indicated that 

appellant was capable of returning to modified work. 

In a July 9, 2013 report, Dr. Lokesh S. Tantuwaya, an examining Board-certified 

neurological surgeon, reviewed the medical evidence and performed a physical examination. He 

diagnosed C5-6 cervical spondylosis with bilateral neural foramen compression. Appellant 
5

advised Dr. Tantuwaya that she resigned from the employing establishment on July 16, 2010 and 

that she has been off work since then as her employer could not provide her with an 

accommodation. 

On July 26, 2013 OWCP received Dr. Curran’s June 26, 2013 supplemental report. 

Dr. Curran diagnosed cervical sprain/strain due to appellant’s employment and multilevel 

degenerative joint disc central and foraminal stenosis which had been permanently aggravated by 

her employment. In response to OWCP’s request for clarification on appellant’s period of 

disability, he opined that it was reasonable to conclude that appellant had a period of temporary 

total disability for the period May 15 to July 15, 2010. Dr. Curran noted that appellant stopped 

working on July 15, 2010 and that on September 26, 2011 Dr. McClurg concluded that she was 

capable of working with restrictions. Appellant related that the employing establishment was 

unable to provide her with a modified job based on her work restrictions. In concluding, 

Dr. Curran opined that appellant was capable of working with restrictions. 

By decision dated October 23, 2013, OWCP denied appellant’s claim for wage-loss 

compensation on and after July 15, 2010 as the evidence failed to establish an employmentrelated disability. It found that there was no evidence supporting that work was unavailable in 

keeping with her accommodations as reported by Drs. McClurg and Curran. Also, OWCP found 

that appellant resigned prior to filing her claim, that she neither apprised the employing 

establishment of a work stoppage due to an employment-related injury, nor submitted supporting 

medical evidence of an employment-related work stoppage or a need for accommodations. It 

further found that she provided no reason for her resignation and that the employing 

establishment would have accommodated her work restrictions had she not resigned. 

On November 19, 2013 appellant’s counsel requested an oral hearing before an OWCP 

hearing representative. A telephonic hearing was held on May 9, 2014.3

In medical treatment notes dated November 1, 2013 and progress notes for the period 

January 10 to March 7, 2014, Dr. McClurg indicated that appellant was capable of returning to 

modified work. 

In an April 23, 2014 report, Dr. William W. Winternitz, Jr., an examining Board-certified 

orthopedic surgeon, reported that appellant sustained an injury on October 13, 2008 as the result 

of doing a lot of computer work involving typing and using the mouse. Appellant described her 

job duties and that she had not worked since July 15, 2010. Physical examination findings were 

provided and Dr. Winternitz diagnosed cervical degenerative disc disease. Dr. Winternitz wrote 

“no” to the question of whether there were work restrictions. 

OWCP subsequently received progress notes from Dr. Winternitz for the period May 6 to 

July 14, 2014, in which he provided physical findings and a review of diagnostic tests. 

Diagnoses included right shoulder rotator cuff tendinitis and C6 right cervical radiculopathy and 

 3

 On January 13, 2014 appellant filed a claim for a recurrence of disability (Form CA-2a) for the period 

December 11, 2013 to January 13, 2014 due to the employing establishment’s inability to provide job restrictions 

and for wage loss. This claim is not before the Board. 
6

subacrominal impingement. Dr. Winternitz indicated that appellant was capable of working with 

restrictions and wrote “yes” to the question of whether there were work restrictions. 

In a July 10, 2014 report, Dr. Choll W. Kim, an examining Board-certified orthopedic 

surgeon, provided physical examination findings and diagnosed C5-6 disc herniation and right 

shoulder rotator cuff tendinitis. He noted appellant’s employment history and that she had not 

worked since July 15, 2010. With respect to her disability status Dr. Kim deferred to 

Dr. Winternitz. 

By decision dated August 6, 2014, an OWCP hearing representative affirmed the 

October 23, 2013 decision denying appellant’s claim for an employment-related disability on or 

after July 19, 2010. 

In a letter dated August 18, 2014, appellant’s counsel requested reconsideration. He 

argued that the medical evidence in the record was sufficient to establish appellant’s entitlement 

to wage-loss compensation as medical reports clearly found that she was disabled from 

performing her date-of-injury job. 

Following the August 14, 2014 OWCP hearing representative’s decision, OWCP 

received additional progress notes from Dr. Winternitz indicating that appellant was capable of 

working with restrictions. 

On September 9, 2014 OWCP received a July 9, 2014 functional capacity evaluation test 

which stated that according to appellant’s description of her job that her physical capacities were 

inconsistent with those duties. 

In a September 16, 2014 report, Dr. Winternitz noted that appellant was injured on 

October 13, 2008, provided a description of her job duties and noted that she has not worked 

since July 16, 2010. He diagnosed left C5-6 cervical radiculopathy. Dr. Winternitz opined that 

appellant was disabled from performing her date-of-injury position, but was capable of working 

with restrictions. The restrictions included up to one hour of overhead work, up to five pounds 

of lifting, pushing, and pulling on the right, and up to 10 pounds of lifting, pushing, and pulling 

on the left. 

By decision dated November 14, 2014, OWCP denied modification of the August 6, 2014 

decision, finding that appellant had no employment-related disability on and after July 19, 2010, 

the date she filed a Form CA-7 claiming wage-loss compensation. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.5 For each period of 

disability claimed, the employee has the burden of establishing that she was disabled for work as 

 4

 5 U.S.C. §§ 8101-8193 

5 See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. 

Whelan, 20 ECAB 55 (1968). 
7

a result of the accepted employment injury.6 Whether a particular injury causes an employee to 

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

proved by a preponderance of probative and reliable medical opinion evidence.7

 

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

earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not 

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

wages.9

 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 receiving at 

the time of injury, has no disability and is not entitled to compensation for loss of wage-earning 

capacity.10 When, however, the medical evidence establishes that the residuals or sequelae of an 

employment injury are such that, from a medical standpoint, they prevent the employee from 

continuing in her employment, she is entitled to compensation for any loss of wages. 

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.11

ANALYSIS 

Appellant claims that she is entitled to wage-loss compensation on and after 

July 19, 2010. The record establishes that appellant resigned from the employing establishment 

on July 16, 2010. No reason was given for the resignation. After the acceptance of her claim by 

decision dated September 15, 2011 appellant filed several claims for wage-loss compensation on 

and after July 19, 2010. The issue on appeal is whether appellant has established that her 

disability for the period she claimed was due to her accepted employment injury. 

OWCP accepted appellant’s claim based on Dr. Curran’s second opinion evaluation. On 

April 22, 2013 an OWCP hearing representative set aside an August 28, 2012 decision denying 

appellant’s wage-loss compensation claim. The hearing representative found that clarification 

was needed from Dr. Curran regarding the period of appellant’s disability. In his June 26, 2013 

supplemental report, Dr. Curran stated that it was reasonable to conclude that appellant had a 

period of temporary total disability for the period May 15 to July 15, 2010. He noted that 

appellant stopped working on July 15, 2010 and that on September 26, 2011 Dr. McClurg 

concluded that she was capable of working with restrictions. Dr. Curran noted that according to 

 6 See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980). 

7 See Edward H. Horton, 41 ECAB 301 (1989). 

8 S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796 

(2003); 20 C.F.R. § 10.5(f). 

9 Roberta L. Kaaumoana, 54 ECAB 150 (2002). 

10 Merle J. Marceau, 53 ECAB 197 (2001). 

11 See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001). 
8

the employing establishment appellant was unable to provide her with a modified job based on 

her work restrictions and that she was capable of working with restrictions. The Board notes, 

however, that he failed to adequately address the question he was asked to address.12 OWCP 

properly requested that Dr. Curran provide an opinion regarding appellant’s ability to work 

during the period of disability he found in his original report.13 Dr. Curran, however, reported 

that appellant could return to work without restrictions based on Dr. McClurg’s report that she 

was probably disabled for the period May 15 to July 15, 2010, when she was working, but 

Dr. Curran failed to address her disability status beginning on July 15, 2010. He did not explain 

whether appellant’s inability to work beginning July 16, 2010, the date she resigned from the 

employing establishment, was causally related to her accepted right shoulder joint pain and 

cervical intervertebral disc degeneration. 

Once OWCP undertakes development of the record, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues in the case.14 When it selects a 

physician for an opinion on causal relationship, it has an obligation to secure, if necessary, 

clarification of the physician’s report and to have a proper evaluation made.15 

Dr. Curran failed to address appellant’s period of disability in his June 26, 2013 report. 

OWCP was obligated to request clarification on whether appellant was disabled beginning 

July 19, 2010 as a result of her accepted conditions. The case is remanded to OWCP for a 

resolution of this issue. Following any further development, as is deemed necessary, it shall 

issue a de novo decision on appellant’s claim. 

CONCLUSION 

The Board finds that the case is not in posture for decision as to whether appellant was 

disabled from work for the period July 19, 2010 and continuing as a result of her accepted 

employment conditions. 

 12 See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 

3.500.3 (July 2011). 

13 As OWCP referred appellant to Dr. Curran, it had the responsibility to obtain an evaluation which will resolve 

the issue involved in the case. See Mae Z. Hackett, 34 ECAB 1421 (1983). 

14 Phillip L. Barnes, 55 ECAB 426, 441 (2004); see also Virginia Richard (Lionel F. Richard), 53 ECAB 430, 

433 (2002); William J. Cantrell, 34 ECAB 1233, 1237 (1993); Dorothy L. Sidwell, 36 ECAB 699, 707 (1985). 

15 Peter C. Belkind, 56 ECAB 580 (2005). 
9

ORDER 

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

Compensation Programs dated November 14, 2014 is set aside and the case remanded for further 

proceeding consistent with the above opinion. 

Issued: October 8, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board