United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.R., Appellant 

and 

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF INVESTIGATION, Las Vegas, NV, 

Employer 

__________________________________________ 

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Docket No. 15-1617 

Issued: March 1, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 24, 2015 appellant filed a timely appeal from a July 6, 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 the claim. 

ISSUE 

The issue is whether appellant established entitlement to compensation for wage loss 

commencing as of July 7, 2014 causally related to her accepted employment injuries. 

FACTUAL HISTORY 

OWCP has accepted that appellant, then a 30-year-old special agent, sustained a 

traumatic injury while engaged in a defensive tactics exercise on September 17, 1999. It 

assigned this OWCP file number xxxxxx978 and accepted a lumbar strain and displacement of 

the L4-5 lumbar intervertebral disc without myelopathy. Appellant’s ongoing back symptoms 

caused her to be reassigned from the Quantico Testing Center in Virginia to the Las Vegas field 

 1

 5 U.S.C. § 8101 et seq. 
2

office for light-duty work as a support services clerk. While in the course of her light duty on 

January 20, 2000 she lifted some boxes and experienced an increase in her back pain. On 

February 5, 2000 appellant filed a new traumatic injury claim (Form CA-1), which was assigned 

OWCP file number xxxxxx849. OWCP accepted this claim for an aggravation of the lumbar 

strain, displacement of the L4-5 lumbar intervertebral disc without myelopathy, and 

complications of bone marrow transplant. Appellant resigned from the clerk positon on June 16, 

2000 and started working as a teacher effective August 28, 2000. 

Appellant underwent back surgery on June 6, 2003, which was not authorized by OWCP. 

Following this surgery, she returned to work as a teacher. By decision dated September 8, 2004, 

OWCP terminated appellant’s wage-loss compensation effective September 10, 2004. 

On June 23, 2014 appellant filed a claim for compensation (Form CA-7), claiming wage 

loss from work due to a change or worsening of her accepted work-related conditions effective 

July 7, 2014. In a June 23, 2014 supplemental statement, she explained that her initial injury 

occurred on September 17, 1999 at the employing establishment academy. Appellant’s second 

injury occurred on January 20, 2000 and was essentially a recurrence of the initial injury. 

OWCP received a May 29, 2014 magnetic resonance imaging (MRI) scan which was 

interpreted by Dr. David Haas, a Board-certified diagnostic radiologist, as revealing L5-S1 disc 

space narrowing with degenerated desiccated disc, L4-5 dehydrated disc with small annular tear 

and disc bulge, and scoliosis. 

In a June 5, 2014 report, Dr. Luis L. Diaz, a Board-certified neurologist, noted the history 

of injury and that appellant recently developed a new onset of low back pain radiating down to 

the right leg. He noted examination findings and provided an impression of lumbosacral 

radiculopathy. Dr. Diaz advised that authorization of diagnostic testing was needed to confirm 

the diagnosis. 

By report dated June 19, 2014, Dr. Thomas Dunn, a Board-certified orthopedic surgeon, 

noted examination findings and provided, an impression of lumbar disc disease, and lumbar back 

pain. He opined that appellant was unable to return to work and would be on temporary total 

disability status for four weeks. Dr. Dunn advised that on a more likely than not basis, surgical 

reconstruction would be required. 

By letter to appellant dated July 10, 2014, OWCP noted that it had reopened her claim for 

medical treatment. Appellant was advised that her claim for temporary total disability payments 

was a separate issue and that the evidence received was insufficient to establish her recurrence 

claim as the medical reports provided no rationalized explanation as to why she could not work. 

OWCP requested additional factual and medical evidence to show disability from work, 

including medical documentation to establish medical treatment or that she was unable to work 

as a result of her work injury for the dates claimed. Appellant was afforded 30 days to submit 

the requested information. 

In a July 21, 2014 statement, appellant noted that her back condition worsened over time. 

She further indicated that the mechanical back pain was from sitting for prolonged periods of 

time and turning. 
3

Several progress reports and medical reports from Dr. Dunn were received. In a 

February 13, 2014 report, Dr. Dunn noted the history of injury and that appellant’s low back pain 

had progressed and worsened. A diagnosis of lumbar disc disease and lumbar back pain were 

provided and treatment options were discussed. In a March 27, 2014 report, Dr. Dunn noted that 

appellant’s symptoms were unchanged from her last visit. He diagnosed lumbago and 

degenerative lumbar/lumbosacral intervertebral disc and ordered diagnostic testing. In a July 21, 

2014 report, Dr. Dunn noted that prolonged sitting results in a flare up of appellant’s low back 

pain that radiates down the right leg. He noted that she had been off work over the past three 

weeks and had some improvement. Dr. Dunn reported that appellant’s radiographic studies and 

MRI scan study both document accelerated degenerative collapse with retrolisthesis L5 on S1 

aggravated by bending, stooping, and prolonged sitting and that her duties consist of sitting at a 

desk for up to nine hours a day which caused pain that worsened over time and became 

unmanageable. He provided an impression of lumbar disc disease, lumbar back pain, and 

sciatica. Dr. Dunn ordered further diagnostic studies and indicated that, due to worsening pain 

and notable low back spasms, appellant would remain off work on temporary total disability. He 

noted that, if her symptoms did not improve with physical therapy, she would be a surgical 

candidate. On July 21, 2014 Dr. Dunn also referred appellant for physical therapy. 

Other reports from Dr. Dunn dated July 7 and 28, 2014 were provided along with 

physical therapy reports. 

By decision dated August 19, 2014, OWCP denied appellant’s claim for recurrence of 

disability as she had not established that she was disabled due to a material change/worsening of 

her accepted work-related conditions without an intervening work factor. As such, appellant’s 

claim for compensation effective July 7, 2014 and continuing was denied. 

On September 3, 2014 appellant requested reconsideration. 

Additional medical reports from Dr. Dunn were received. In an August 20, 2014 report, 

Dr. Dunn noted the history of injury and that, since appellant was unable to return to the 

employing establishment academy to complete her training, she returned to work as a teacher 

and has continued in that occupation. He reported that she developed progressively worsening 

symptoms of axial mechanical back pain and presented on February 13, 2014 for further 

evaluation and treatment. Radiographs demonstrated severe collapse at L5-S1 due to the initial 

injury and subsequent required surgery. Dr. Dunn advised that this resulted in severe, 

accelerated facet joint arthritis and that appellant was a candidate for further treatment, to include 

physical therapy, injection therapy, and ultimately surgical reconstruction at L5-S1. A diagnosis 

of accelerated degenerative disc disease, lumbar spine, and herniated nucleus pulpous was 

proved. Dr. Dunn further reported that there have been no additional events of trauma 

responsible for the progression of appellant’s lumbar spine condition. The initial work-related 

trauma and surgery remained the only cause of her current condition involving L5-S1 and 

associated symptoms. Dr. Dunn noted that there appeared to be some confusion regarding the 

sitting activity that aggravated appellant’s low back pain. He advised that sitting was an activity 

that causes more pain, but had nothing to do with the underlying pathology seen on radiographic 

studies at L5-S1. Dr. Dunn noted that appellant expressed increasing difficulty enduring 

symptoms of mechanical low back pain and associated lumbar radiculitis and that she would like 

to pursue definitive surgical treatment in an attempt to improve her pain, function, and quality of 

life. He provided an impression of lumbar disc disease L5-S1, lumbar back pain and radiculitis. 
4

Dr. Dunn ordered physical therapy and pain control modalities as needed. He noted that 

appellant agreed to proceed with the planned surgical procedures. 

Progress reports dated September 18 and October 16, 2014 from Dr. Dunn were also 

received. These reports indicated that appellant was experiencing the same or increased 

symptoms from her last visits and discuss the surgery which would be required. 

In a November 4, 2014 report, Dr. Gary J. La Tourette, a Board-certified orthopedic 

surgeon and second opinion physician, reviewed the case record and examined appellant. He 

opined that her current back condition was associated with her work injuries by aggravation and 

that she qualified for an L5-S1 reconstruction as her disc disease had worsened since her 

microdiscectomy in June 2003. Appellant had unrelenting lumbar spine pain with an absent 

Achilles reflex in the right lower extremity. 

By decision dated December 2, 2014, OWCP denied modification of its prior decision as 

the evidence of record was not sufficient to support that appellant’s work stoppage was the result 

of her accepted medical conditions with no intervening factors. The decision noted that the 

second opinion physician supported that an L5-S1 reconstruction should be authorized. 

On December 12, 2014 appellant again requested reconsideration, which included a 

December 8, 2014 letter from appellant in which she argued that she was disabled by a material 

worsening of her accepted work injury and that the injury was spontaneous and not caused by 

sitting, but aggravated by sitting. She further contended that the medical evidence demonstrated 

causal relationship between her disabling back condition and that OWCP authorized spinal 

fusion surgery. Appellant continued to file CA-7 forms for wage-loss compensation through 

December 26, 2014. 

In progress reports dated December 4, 2014 and January 5 and February 5, 2015, 

Dr. Dunn noted that appellant continued to have pain, that there were no objective changes since 

her last visit, and that she was to remain on temporary total disability work status for an 

additional four weeks. 

By decision dated March 6, 2015, OWCP denied modification of its prior decision. 

Appellant was advised that the issue at hand was the claim for compensation effective July 7, 

2014, not the surgery authorization. 

On April 7, 2015 appellant again requested reconsideration. She included an April 2, 

2015 letter in which she provided a history of her back injuries and discussed why she disagreed 

with OWCP’s prior decisions. 

Additional reports from Dr. Dunn dated March 5 and 30, April 2, and May 5, 2015 were 

received. In his March 5, April 2, and May 5, 2015 reports, Dr. Dunn described appellant’s 

current condition, her past surgical history, the pending authorization from OWCP regarding her 

spinal surgery, and advised that she remained off work until her next visits. In his March 30, 

2015 report, Dr. Dunn provided a history of her work injuries and clarified that she injured the 

most terminal segment of her lumbosacral spine which at times had been identified as either the 

L4-5 disc or as the L5-S1 disc. He explained that the L4-5 and L5-S1 discs represented the same 

disc as the terminal motion segment. Dr. Dunn indicated that appellant’s actual L5-S1 disc was a 

vestigial disc and had no motion. He reported that she returned to him in early 2014 with 
5

progressively worsening symptoms of axial mechanical back pain. Dr. Dunn noted radiographic 

studies demonstrated accelerated progression of degenerative collapse of the injured disc in the 

terminal segment of her lumbosacral spine which was due to the initial injury and the 

necessitated surgery that was performed as result of that work-related injury. He advised that the 

reconstructive surgery which was recommended for the accelerated degenerative segment was 

due to the initial work-related injury. Dr. Dunn indicated that appellant was placed on temporary 

total disability as any prolonged sitting, bending, stooping, or prolonged standing resulted in 

intractable, intolerable, axial mechanical back pain. He indicated that she remained on 

temporary total disability while awaiting authorization for spinal surgery. Dr. Dunn indicated 

that objective evidence had been provided and that appellant had no other intervening trauma or 

accidents that contributed to her condition. 

By decision dated July 6, 2015, OWCP denied modification of its prior decision. 

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 he or 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 proven by a 

preponderance of reliable, probative, and substantial medical opinion evidence.2

 Such medical 

evidence must include findings on examination and the physician’s opinion, supported by 

medical rationale, showing how the injury caused the employee disability for his or her particular 

work.3 

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

due to disability for employment resulting from the employment injury.4 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 his or her disability and entitlement to 

compensation.5

 

ANALYSIS 

OWCP accepted appellant’s claim for lumbar sprain, lumbar intervertebral disc 

displacement without myelopathy, and complications of a bone marrow transplant. Appellant 

resigned from the employing establishment June 16, 2000 and started working as a teacher on 

August 28, 2000. She underwent back surgery on June 6, 2003, which was not authorized by 

OWCP and eventually returned to work in her teaching position. Effective September 10, 2004, 

OWCP terminated appellant’s wage-loss compensation and medical benefits. Appellant 

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

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

4 Laurie S. Swanson, 53 ECAB 517, 520 (2002). See also Debra A. Kirk-Littleton, 41 ECAB 703 (1990). 

5 Amelia S. Jefferson, supra note 2. 
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subsequently claimed wage loss beginning July 7, 2014. By letter to appellant dated July 10, 

2014, OWCP advised her that the claim for temporary total disability payments was a separate 

issue from her request for further lumbar surgery and that the factual and medical evidence must 

show that she was unable to work as a result of her work injury for the dates claimed. Appellant, 

however, did not provide a probative rationalized medical opinion in support of her claim that 

she was disabled for work because of her accepted conditions for the period July 7, 2014 until 

OWCP authorized her back surgery.6

 

In numerous reports and treatment notes, Dr. Dunn noted appellant’s work injuries and 

described her current back condition and her past surgical history. He also placed her on 

temporary total disability as her pain had progressed and worsened and while awaiting 

authorization for spinal surgery. Dr. Dunn noted in his July 21, 2014 report that appellant’s pain 

was aggravated by bending, stooping, and prolonged sitting and that her duties consisted of 

sitting at a desk for up to nine hours a day, which caused pain that worsened over time and 

became unmanageable. However, he did not provide a medical opinion explaining how her 

accepted back condition caused disability during the period claimed.7 Dr. Dunn made no 

mention of any total disability beginning on July 7, 2014 and did not provide a rationalized 

opinion explaining why appellant was totally disabled or incapable of working beginning July 7, 

2014 due to her previously accepted lumbar conditions, for which benefits had been previously 

terminated. His other reports which also placed her on total disability offered no medical 

rationale explaining why she was totally disabled beginning July 7, 2014. 

While Dr. Haas noted appellant’s diagnoses and Dr. Diaz noted a history of her injury, 

they did not address whether she was disabled as result of her employment injury during the 

period in question. 

Appellant’s statements and her belief that her employment injury caused her disability 

during the period in question are irrelevant as the question whether her disability is related to an 

accepted condition is a medical question. 

The treatment notes from the physical therapist are of no probative value as physical 

therapists are not considered physicians as defined under FECA.8

 

The medical opinion evidence of record does not provide an explanation as to how 

appellant’s accepted back condition caused disability during the period claimed. Thus, she has 

failed to submit evidence which would indicate that her accepted conditions caused any wage 

loss for the period claimed.9

 6 See S.M., Docket No. 15-1118 (issued August 4, 2015). 

7 Id. 

8 See e.g., David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses 

and physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this 

subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, 

and osteopathic practitioners within the scope of their practice as defined by State law). 

9 See supra note 6. 
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On appeal, appellant relates the history of her injury and provides a procedural history of 

OWCP’s decisions. She contends that the medial evidence of record supports why she was 

placed on total disability status. Appellant also expressed her dissatisfaction with OWCP’s 

decisions and her belief that they have been acting in an adversarial role in her case. However, 

for the reasons set forth above, she has failed to provide any medical opinion evidence which 

indicated that her accepted conditions caused any wage loss for the period claim. There is no 

mention of any total disability beginning on July 7, 2014 or a rationalized medical opinion 

explaining why appellant was totally disabled or incapable of working beginning July 7, 2014. 

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 entitlement to compensation for wage 

loss as of July 7, 2014 causally related to her accepted employment injuries. 

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decision dated July 6, 2015 is affirmed. 

Issued: March 1, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board