United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.K., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, 

Colorado Springs, CO, Employer 

__________________________________________ 

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Docket No. 15-0996 

Issued: October 21, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 25, 2015 appellant filed a timely appeal from a December 18, 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 was disabled and entitled to 

wage-loss compensation for the period November 18 to 21, 2011. 

FACTUAL HISTORY 

On October 4, 2012 appellant, then a 51-year-old clerk/mail processor, filed an 

occupational disease claim (Form CA-2) alleging that he first became aware of his cervical spine 

 1

 5 U.S.C. § 8101 et seq. 
2

and upper back conditions and its relationship to his employment on November 18, 2011.2

 By 

decision dated May 24, 2013, OWCP vacated a January 24, 2013 decision denying his claim and 

accepted the conditions of C3-4, C4-5, and C5-6 cervical spine degenerative disc disease 

aggravation and C3-4 and C4-5 cervical spine arthropathy aggravation, which was subsequently 

expanded to include other psychogenic pain. In the May 24, 2013 decision, it noted that a 

January 13, 2009 loss of wage-earning capacity decision had been issued under OWCP File 

No. xxxxxx509 which remained in effect and that claims for disability benefits could be 

considered3 relevant to appellant’s claim for wage-loss compensation for the period 

November 18 to 21, 2011, which was initially submitted under OWCP File No. xxxxxxx509, is 

set forth below. 

In a December 6, 2011 report, Dr. Jack L. Rook, a treating Board-certified physiatrist, 

noted that appellant was seen for a three-month follow-up evaluation and that he was working 

full-time on the night shift including overtime work. Appellant related that his neck and 

shoulder/back pain was progressively worsening which resulted in missing work. 

In a December 6, 2011 disability note, Dr. Rook indicated that appellant was disabled 

from working on November 18 and 19, 2011 due to shoulder, neck, and back pain which the 

doctor attributed to OWCP File No. xxxxxx509. 

Following the acceptance of his claim on May 31, 2013, appellant submitted medical 

evidence including diagnostic testing, injection notes, and reports from Dr. Rook and Dr. Jeffrey 

Bruce Kleiner, an examining Board-certified orthopedic surgeon, covering the period 

December 16, 2011 through June 19, 2013. In progress reports for the period February 15, 2012 

to June 19, 2013, Dr. Rook reviewed magnetic resonance imaging (MRI) scans, provided 

physical examination findings and diagnoses of multiple level cervical degenerative disc disease 

and facet degeneration. 

Dr. Kleiner, in a February 15, 2012 report, provided physical examination findings and 

attributed appellant’s symptoms to cervical facet arthropathy and possibly internal cervical disc 

disruption. 

In a letter dated January 25, 2014, appellant requested that he be paid for the time 

itemized on the Form CA-7 he submitted under OWCP File No. xxxxxxx509 under the current 

 2

 Appellant noted November 15, 2011 as the date he first became aware of the relationship of his condition to his 

employment duties. OWCP used November 18, 2011 as the date-of-injury as that is the date he identified as first 

being aware of his condition. On July 24, 2012 appellant filed a claim for a recurrence of disability for the period 

November 18 to 21, 2011 under OWCP File No. xxxxxx509. He also stated that due to the neck strain from his 

work, he was forced to remove his name from the overtime list. By decision dated March 9, 2012, OWCP denied 

appellant’s claim for a recurrence of disability for the period November 18 to 21, 2011 under OWCP File 

No. xxxxxx509. By decision dated January 25, 2013, it denied modification. 

3

 On May 31, 2013 OWCP combined the current claim under OWCP File No. xxxxxx697 with OWCP File 

No. xxxxxx509, with the latter number listed as the Master File No. Under OWCP File No. xxxxxx509 the accepted 

conditions were right shoulder and upper arm rotator cuff sprain, right rotator cuff tear, and closed dislocation 

thoracic vertebra with November 13, 2005 noted as the date of injury. 
3

claim. He stated that the disability for the period in question was due to his cervical condition 

which OWCP accepted under the current claim. 

In the current claim, on February 25, 2014 appellant filed a claim for wage-loss 

compensation (Form CA-7) for the period November 18 to 21, 2011. He also submitted a leave 

analysis for this period. 

Appellant submitted medical evidence in the form of physical therapy notes and doctors 

reports. 

By letter dated March 28, 2014, OWCP informed appellant that it was unable to process 

his claim for wage-loss compensation starting November 18, 2011 due to the lack of any 

contemporaneous medical evidence supporting disability for the period claimed due to the 

accepted employment conditions. 

In response to OWCP’s request, appellant submitted additional reports from Drs. Rook 

and Kleiner and diagnostic testing from December 6, 2011 to May 29, 2014. Dr. Rook, in 

progress reports dated March 13 and June 10, 2014, provided physical examination findings and 

related that appellant stated that his neck was progressively worsening. In a May 29, 2014 

report, Dr. Kleiner noted that appellant returned for an updated evaluation with his last visit 

several years ago. A physical examination revealed limited cervical range of motion. 

By decision dated June 30, 2014, OWCP denied appellant’s claim for wage-loss 

compensation for the period November 18 to 21, 2011 due to the lack of any supporting medical 

evidence. 

Subsequent to the June 30, 2014 decision, OWCP received additional medical evidence 

including diagnostic testing for the period December 6, 2011 to May 29, 2014, physical therapy 

reports for the period August 27 to November 3, 2014, and other medical reports. 

In reports dated April 4, 2012, August 22, 2013, September 10, October 21 and 

November 10, 2014, Dr. Rook provided physical examination findings and noted the treatment 

appellant was receiving. On September 10 and October 21, 2014 he provided work restrictions 

in duty status reports (Form CA-17). 

In a letter dated December 12, 2014, appellant’s then-counsel requested reconsideration 

and submitted a reconsideration request from appellant dated December 10, 2014.4

 Appellant 

related that he was taken off work for the period November 18 to 21, 2011 by Dr. Rook due to 

exacerbation of neck pain which was documented by magnetic resonance imaging scans. In 

concluding, he stated that the evidence he submitted supports his claim for wage-loss 

compensation due to his accepted neck injury for the period in question. 

By decision dated December 18, 2014, OWCP denied modification. 

 4

 Appellant’s prior counsel withdrew his representation on April 16, 2015. 
4

LEGAL PRECEDENT 

An employee seeking benefits under FECA5 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.6

 For each period of 

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

a result of the accepted employment injury.7

 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.8

 

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.9 Disability is, thus, not 

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

wages.10 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.11 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 his employment, he 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.12

ANALYSIS 

OWCP accepted appellant’s claim for C3-4, C4-5, and C5-6 spine degenerative disc 

disease aggravation and C3-4 and C4-5 spine arthropathy aggravation. Appellant filed a 

Form CA-7 claiming wage-loss compensation for the period November 18 to 21, 2011. OWCP 

denied his claims for wage-loss compensation for the period in question as it found the medical 

evidence of record insufficient to establish any disability causally related to the accepted 

conditions. It informed appellant that pain was a symptom, not a diagnosed medical condition. 

 5

 5 U.S.C. §§ 8101-8193. 

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

Whelan, 20 ECAB 55 (1968). 

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

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

9 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). 

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

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

12 See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001). 
5

The Board finds that appellant failed to meet his burden of proof to establish entitlement 

to compensation for the period November 18 to 21, 2011. The record is devoid of any medical 

evidence supporting appellant’s contention that he was disabled from working for this period. 

OWCP advised him regarding the need to submit medical evidence supporting his disability. 

The relevant evidence submitted by appellant was a December 6, 2011 report and December 6, 

2011 disability note from Dr. Rook. In the report, he related to Dr. Rook that he was missing 

work due to progressively worsening neck, shoulder, and back pain. Dr. Rook, in the disability 

note reported that appellant was disabled from working on November 18 and 19, 2011 due to 

shoulder, neck, and back pain. He did not, however, explain how or why residuals of the 

employment injury caused appellant’s disability for the period November 18 to 21, 2011 other 

than to note that he was disabled due to neck, shoulder, and back pain. Additionally, findings on 

examination are needed to justify a physician’s opinion that an employee is disabled for work.13

The record also contains medical evidence from 2013 and 2014 including reports from 

Dr. Rook for the period February 15, 2012 to November 10, 2014 and reports for the period 

February 15, 2012 to May 29, 2014 from Dr. Kleiner. These reports are irrelevant to the issue at 

hand as they postdate the period in question and do not contain any information to support 

disability for the claimed period.14

In summary, the medical evidence of record is unsupported by sufficient medical 

rationale or reasoning which explains why the claimed disability for the period November 18 

to 21, 2011 was caused or aggravated by the accepted C3-4, C4-5, and C5-6 cervical spine 

degenerative disc disease aggravation and C3-4 and C4-5cervical spine arthropathy aggravation. 

The Board finds that the evidence submitted was insufficient to establish entitlement to 

wage-loss compensation for the period claimed and OWCP properly denied appellant’s claim. 

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 failed to establish he is entitled to wage-loss compensation 

for the period November 18 to 21, 2014. 

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

14 See James W. Scott, 55 ECAB 606 (2004).
6

ORDER 

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

Compensation Programs dated March 24, 2015 and December 18, 2014 are affirmed. 

Issued: October 21, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board