United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Perry Point, MD, Employer 

__________________________________________ 

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Docket No. 15-1583 

Issued: February 12, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 16, 2015 appellant, through counsel, filed a timely appeal from an April 7, 2015 

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 established disability for the period July 26 to 

December 17, 2011 causally related to her March 23, 2009 employment injury. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been before the Board.2 In a December 23, 2014 decision, the 

Board set aside a January 9, 2014 OWCP decision and remanded the case for further 

development of the medical evidence. The Board found that a conflict existed in the medical 

evidence as to whether lumbar surgery was medically necessary to treat the effects of her 

March 23, 2009 employment injury. OWCP also determined that the medical evidence required 

further development as to whether appellant was unable to work modified duty from July 26 to 

December 17, 2011 as a result of her accepted injury. The facts and circumstances as set forth in 

the Board’s prior decision are incorporated herein by reference. The relevant facts are 

summarized below. 

OWCP accepted that on March 23, 2009 appellant, then a 44-year-old part-time, 

intermittent licensed practical nurse, slipped and fell on a wet floor at work. Her claim was 

accepted for left side herniated disc at L4-L5 and associated radiculopathy. Appellant received 

disability wage-loss compensation on March 24, 2009 and from May 12 to 20, 2009.3 She began 

to work part-time modified duty on May 21, 2009. 

In a February 8, 2011 work status note, Dr. Hugo Benalcazar, a Board-certified 

neurological surgeon, indicated that appellant had been under his professional care for lumbar 

degenerative disc disease. He noted that appellant could work with restrictions of no pushing, 

pulling, or lifting over 10 pounds and no pushing, pulling, lifting, standing, stooping, or bending 

for more than 45 minutes. 

On February 21, 2011 appellant returned to full-time work with restrictions. On July 25, 

2011 she was separated from federal employment. Appellant filed various disability 

compensation claims for the period July 26 to December 17, 2011.4

Appellant continued to be treated by Dr. Benalcazar. In an August 22, 2011 report, he 

related appellant’s complaints of persistent pain in the lower back and gluteal area since a 

March 23, 2009 injury when she fell down at work. Dr. Benalcazar noted that appellant’s pain 

initially improved with physical therapy but had now worsened. Upon examination, he observed 

normal lumbar spine evaluation and diagnosed lumbar degenerative disc disease, lumbar disc 

displacement, and cervical degenerative disc disease with myelopathy. In a November 17, 2011 

work status note, Dr. Benalcazar indicated that appellant was unable to work from November 17 

to December 17, 2011. 

In a December 15, 2011 narrative report, Dr. Henry A. Spindler, Board-certified in 

physical medicine and rehabilitation, related that appellant complained of neck and low back 

 2

 Docket No. 14-1148 (issued December 23, 2014). 

3

 Appellant also worked several other part-time jobs in addition to working for the employing establishment. 

4

 The record reveals that appellant also filed a September 30, 2011 disability claim for the period January 1 to 

June 28, 2011. Appellant indicated that she worked light duty at a school. As OWCP has not issued a formal 

decision regarding disability compensation during this period, this claim for disability for the period January 1 to 

June 28, 2011 is not before the Board. See 5 U.S.C. § 501.2(c). 
3

pain as a result of a March 23, 2009 slip-and-fall injury at work. Upon examination, he reported 

that appellant complained of pain on the left at 45 degrees in the sciatic distribution with straight 

leg raising test. Sensation appeared intact and strength was normal. Dr. Spindler noted that 

diagnostic findings were compatible with a left L5 radiculopathy. In a medical status form, he 

noted that appellant was unable to work from December 14, 2011. 

In a decision dated January 20, 2012, OWCP denied appellant’s claim for disability 

compensation for the period July 26 to December 17, 2011. It determined that the evidence 

failed to provide medical rationale sufficient to explain that any disability was due to the 

March 23, 2009 employment injury. 

By letter dated January 27, 2012 appellant, through counsel, requested a telephone 

hearing, before an OWCP hearing representative, which was held on April 9, 2012. She asserted 

that she had been unable to work since July 28, 2011 as a result of her accepted work injury. 

On March 13, 2012 OWCP referred appellant’s claim to Dr. Willie Thompson, a Boardcertified orthopedic surgeon, for a second-opinion examination to determine the nature and 

extent of appellant’s disability. In an April 13, 2012 report, he reviewed the medical record, 

including the statement of accepted facts (SOAF), and noted that appellant’s claim was accepted 

for herniated lumbar disc on the left side at L4-L5. Dr. Thompson provided findings on 

examination and opined that based on the medical records and his evaluation, appellant suffered 

soft tissue injuries to the lower back in the hip region. He explained that there were no findings 

on physical examination to support that appellant had a herniated disc and no objective evidence 

to indicate the need to place any physical limitations on appellant. Dr. Thompson found no 

continued effects of the March 2009 work injury and opined that she could return to work 

without restrictions immediately. 

By decision dated July 9, 2012, an OWCP hearing representative affirmed the 

January 20, 2012 denial decision. 

On August 10, 2012 OWCP determined that a conflict in medical opinion existed 

regarding appellant’s current condition and the extent of her work-related disability. It referred 

her to Dr. Raymond D. Drapkin, a Board-certified orthopedic surgeon, as an impartial medical 

examiner to resolve the conflict. In a September 24, 2012 report, Dr. Drapkin reviewed 

appellant’s history and diagnosed lumbar disc protrusion at L4-L5. He opined that appellant’s 

disc protrusion resulted from the March 23, 2009 employment injury. Dr. Drapkin reported that 

appellant was able to work and was not a capable candidate for surgery. 

In a February 26, 2013 report, Dr. Benalcazar related appellant’s continued complaints of 

low back and leg pain since a March 23, 2009 work injury. He reported that the low back pain 

caused her to lose days at work and eventually stop work completely in 2011. Dr. Benalcazar 

opined that appellant’s fall at work was the cause of her low back and leg pain. He noted that 

appellant would require a lumbar fusion surgery at L4-L5, including discectomy and 

decompression in order to have any meaningful recovery. On March 5, 2013 Dr. Benalcazar 

requested authorization for lumbar spine fusion surgery. 
4

On July 9, 2013 OWCP received appellant’s request, through counsel, for 

reconsideration. Counsel requested that OWCP accept as timely his reconsideration request by 

enclosing a March 5, 2013 reconsideration request OWCP had not received. 

OWCP referred appellant’s claim to Dr. Arnold T. Berman, a Board-certified orthopedic 

surgeon and district medical adviser (DMA), to determine whether surgery was medically 

appropriate and causally related to the March 23, 2009 work injury. In an August 10, 2013 

report, he reviewed appellant’s medical records and opined that there were no objective clinical 

findings to establish that low back surgery would improve appellant’s condition. 

In a decision dated August 19, 2013, OWCP denied modification of the July 9, 2012 

decision. It determined that the weight of the medical evidence rested with Dr. Drapkin’s 

impartial medical report. 

On October 11, 2013 OWCP received appellant’s request for reconsideration. 

By decision dated January 9, 2014, OWCP denied modification of its August 19, 2013 

decision. 

Appellant filed an appeal before the Board, which it docketed as No. 14-1148. By 

decision dated December 23, 2014, the Board remanded appellant’s disability claim for further 

development of the medical evidence. The Board found that OWCP’s referral physicians, 

Drs. Thompson, Drapkin, and Berman failed to address the issue of whether appellant was 

disabled from work beginning July 2011 as a result of her March 23, 2009 employment injury. 

The Board further noted that a conflict in medical opinion existed between Dr. Berman, OWCP’s 

referral physician, and Drs. Benalcazar and Valentino, appellant’s treating physicians, regarding 

whether lumbar surgery was medically necessary to treat the effects of appellant’s accepted work 

injury.5

Following the Board’s decision, OWCP referred appellant to Dr. Chad Rutter, a Boardcertified orthopedic surgeon, for an impartial medical examination to opine as to whether 

appellant continued to suffer residuals of her March 23, 2009 employment injury and whether 

the recommended lumbar surgery was necessary to treat the effects of her work injury.6

In a March 2, 2015 referee medical report, Dr. Rutter reviewed appellant’s medical 

records and accurately described the March 23, 2009 employment injury. He related that 

appellant currently complained of pain in the low back and right buttocks and numbness in both 

feet. Upon examination of appellant’s lumbar spine, Dr. Rutter observed pain across the lower 

lumbar area with palpation, both in the midline and sacroiliac (SI) regions bilaterally, and pain 

into the trochanteric region as well. He noted that appellant was able to forward flex reaching 

down just past the knee level before experiencing increased back pain. Sagittal alignment of the 

cervical, thoracic, and lumbar areas was normal. Straight leg raise testing on the left 

demonstrated left buttocks, thigh, and calf pain and testing on the right revealed reproduced 

 5

 Docket No. 14-1148 (issued December 23, 2014). 

6

 The record contains a ME023 printout and a bypass history report. 
5

minimal right-sided calf pain. Dr. Rutter observed no pain to palpation throughout the lower 

extremities and no asymmetries from the right to the left leg. 

Dr. Rutter diagnosed foraminal disc herniation L4-L5 on the left, degenerative disc 

changes of the L4-L5 level, and left leg radiculopathy. He reported that based on his review of 

appellant’s medical records, the disc herniation in the foraminal position at the L4-L5 on the left 

was related to appellant’s March 23, 2009 employment injury. Dr. Rutter also noted that 

appellant’s left leg radiculopathy was caused by the disc herniation. He indicated that appellant 

had some minor improvement through treatment and epidural injections, but she could not 

tolerate activities without medication. Dr. Rutter reported that despite the pain, appellant would 

be able to function in the workplace. He explained that he completed a work capacities 

evaluation of appellant’s musculoskeletal conditions and determined that appellant could sit up 

to three hours, walk up to two hours, and stand up to one hour a day. Dr. Rutter also limited 

appellant to twisting, bending, stooping, operating a motor vehicle, and pushing, pulling, and 

lifting up to 10 pounds for 2 hours a day. He opined that the recommended discectomy at the 

L4-L5 level was necessary to treat the effects of appellant’s March 23, 2009 employment injury 

and would be an appropriate type of treatment. 

By letter dated March 9, 2015, OWCP advised Dr. Rutter to provide a supplemental 

report addressing whether appellant was totally or partially disabled as a result of her accepted 

lumbar herniated disc during the period July 26 to December 17, 2011. It informed Dr. Rutter 

that at the time appellant stopped work on July 26, 2011 she was working modified duty with 

restrictions of lifting, pushing, and pulling up to 10 pounds. 

On March 23, 2015 OWCP authorized L4-L5 discectomy and fusion surgery for 

appellant. 

In a supplemental report dated March 19, 2015, Dr. Rutter opined that, based on a review 

of appellant’s medical records and the March 2, 2015 examination, appellant would have been 

able to work between July 26 to December 17, 2011 with restrictions against lifting, pushing, or 

pulling over 10 pounds. 

In a decision dated April 7, 2015, OWCP affirmed, but modified the August 19, 2013 

decision. It determined that lumbar surgery was medically necessary to treat the effects of 

appellant’s March 23, 2009 employment injury, but denied appellant’s claim for disability 

compensation for the period July 26 to December 17, 2011 finding that the medical evidence 

failed to establish that appellant was unable to work light duty during that time period. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA bears the burden of proof to establish the 

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

claimed, the employee must establish that she was disabled for work as a result of the accepted 

employment injury. 

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 reliable, 
6

probative, and substantial medical opinion evidence.7

 Findings on examination and a physician’s 

opinion, supported by medical rationale, are needed to show how the injury caused the employee 

disability for her particular work.8

 For each period of disability claimed, the employee must 

establish that she was disabled for work as a result of the accepted employment injury. 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.9

ANALYSIS 

OWCP accepted appellant’s claim for left side herniated disc at L4-L5 and associated 

radiculopathy as a result of the March 23, 2009 employment injury. Appellant received 

disability compensation for short periods of time. On February 9, 2011 she began modified 

work, pursuant to Dr. Benalcazar’s restrictions. On July 25, 2011 appellant stopped work. She 

filed various disability compensation claims for the period July 26 to December 17, 2011. 

OWCP denied appellant’s claims finding insufficient medical evidence to establish that she was 

unable to work light duty for the period July 26 to December 17, 2011 as a result of the 

March 23, 2009 employment injury. The Board finds that appellant failed to meet her burden of 

proof to establish total disability for the claimed period due to the accepted lumbar injury. 

Appellant was treated by Dr. Benalcazar. In his February 8, 2011 work status note, 

Dr. Benalcazar opined that appellant could work with restrictions of no pushing, pulling, or 

lifting over 10 pounds and no pushing, pulling, lifting, standing, stooping, or bending for more 

than 45 minutes. In an August 22, 2011 report, he related appellant’s complaints of persistent 

pain in the lower back and gluteal area since a March 23, 2009 work injury when she fell down 

at work. Upon examination, Dr. Benalcazar observed normal lumbar spine evaluation and 

diagnosed lumbar degenerative disc disease, lumbar disc displacement, and cervical degenerative 

disc disease with myelopathy. In a November 17, 2011 work status note, he indicated that 

appellant was unable to work from November 17 to December 17, 2011. The Board notes that, 

although Dr. Benalcazar recommended that appellant not work from November 17 to 

December 17, 2011, he failed to provide any rationale as to why she could not work during that 

period nor did he opine that any disability was due to her accepted lumbar injury. Because 

Dr. Benalcazar failed to provide any medical rationale for his conclusion, his opinion is of 

diminished probative value.10 Furthermore, the Board notes that Dr. Benalcazar did not address 

disability beginning July 26, 2011. Because Dr. Benalcazar’s reports fail to explain, based on 

medical rationale, how appellant was unable to work modified duty from July 26 to 

December 17, 2011 as a result of her accepted injury, his opinion is insufficient to establish 

appellant’s claim. 

 7 Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004). 

8 Dean E. Pierce, 40 ECAB 1249 (1989). 

9 Amelia S. Jefferson, supra note 7. 

10 S.B., Docket No. 13-1162 (issued December 12, 2013). 
7

In the December 15, 2011 narrative report, Dr. Spindler noted appellant’s March 23, 

2009 slip-and-fall injury at work. Upon examination, he reported that appellant complained of 

pain on the left at 45 degrees in the sciatic distribution with straight leg raising test. Sensation 

appeared intact and strength was normal. Dr. Spindler noted that diagnostic findings were 

compatible with left L5 radiculopathy. In a medical status form, he noted that appellant was 

unable to work from December 14, 2011, but he did not address the relevant issue of disability 

from employment for the period July 26 to December 17, 2011. Thus, Dr. Spindler’s reports are 

of diminished probative value.11

The Board finds that the evidence fails to establish that appellant was disabled for the 

claimed period because of her accepted lumbar injury. Moreover, the March 19, 2015 report of 

Dr. Rutter noted that appellant was able to work modified duty from July 26 to 

December 17, 2011.12 Appellant failed to submit any medical reports from a physician who, on 

the basis of a complete and accurate factual and medical history, concluded that she was disabled 

for the period July 26 to December 17, 2011 due to her March 23, 2009 employment injury. 

Accordingly, she has failed to meet her burden of proof to establish an employment-related 

disability and has not proven wage-loss compensation for the claimed period. 

On appeal, appellant’s counsel alleges that Dr. Rutter’s opinion was of diminished 

probative value because it was based on an inaccurate history. Specifically, he asserted that 

appellant stopped working as of January 2011, and not July 26, 2011. The record, however, 

contains a form from the employing establishment to OWCP which noted that on July 25, 2011 

appellant was voluntarily terminated from employment. In addition, during the April 9, 2012 

telephone conference she asserted that she was unable to work since July 28, 2011 as a result of 

her accepted work injury. Appellant, therefore, has failed to demonstrate that Dr. Rutter’s 

opinion was based on an inaccurate background. 

Counsel further asserts on appeal that OWCP abused its discretion by not issuing a 

de novo decision as required by the Board’s December 23, 2014 decision.13 The Board notes, 

however, that OWCP properly evaluated the evidence on record and reviewed the merits of 

appellant’s claim. Accordingly, the Board does not find that OWCP abused its discretion. 

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. 

 11 Sandra D. Pruitt, 57 ECAB 126 (2005). 

12 The Board notes that Dr. Rutter was selected as an impartial medical specialist to resolve the conflict in 

medical opinion regarding authorization for low back surgery. As no conflict in medical opinion existed about 

appellant’s claim for disability for the period July 26 to December 17, 2011, Dr. Rutter’s opinion regarding the 

disability issue is one of a second-opinion examiner. 

13 Counsel also alleged that OWCP never adjudicated appellant’s claims for wage-loss compensation claim for the 

period January 1 to June 28, 2011. As OWCP has not issued a final decision regarding this issue, the Board does not 

have jurisdiction over appellant’s alleged disability from January 1 to June 28, 2011. 
8

CONCLUSION 

The Board finds that appellant has failed to establish disability for the period July 26 to 

December 17, 2011 causally related to her March 23, 2009 employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the April 7, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 12, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board