United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Norfolk, VA, Employer 

__________________________________________ 

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Docket No. 15-1308 

Issued: September 17, 2015 

Appearances: Case Submitted on the Record

William H. Brawner, Esq., for the appellant 

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 May 22, 2015 appellant, through counsel, filed a timely appeal from a May 14, 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 met his burden of proof to establish disability on or after 

September 28, 1979 due to his accepted work injuries. 

FACTUAL HISTORY 

OWCP accepted that on November 4, 1978 appellant, then a 40-year-old letter carrier, 

sustained cervical and low back strains when his postal vehicle was struck from behind by 

 1

 5 U.S.C. §§ 8101-8193. 
2

another vehicle.2

 In a November 20, 1978 report, Dr. Leopold Garbutt, an attending 

Board-certified orthopedic surgeon, referenced the November 4, 1978 vehicular accident and 

stated that a review of appellant’s systems was “benign except for musculoskeletal where he has 

a compliant of low back pain.” He diagnosed lumbosacral strain. 

Appellant received continuation of pay from November 7 to December 25, 1978 and 

disability compensation for intermittent periods between December 26, 1978 and 

August 29, 1979. He returned to limited-duty work on a full-time basis on August 30, 1979 

without any wage loss. Appellant resigned from the employing establishment effective 

September 28, 1979. He filed a claim alleging that he was entitled to disability compensation 

beginning September 28, 1979 due to his accepted work injuries. 

In support of his claim, appellant submitted reports of Dr. Roger L. Weir, an attending 

Board-certified neurologist. Dr. Weir began treating appellant in 1981. On February 22, 1984 

he opined that appellant’s problems with his back and neck were “caused by processes which 

were induced by his injuries in 1972 and 1978.” Dr. Weir noted that appellant’s work limitations 

were “due to these injuries.” In a May 8, 1984 report, he noted that appellant was first seen in 

January 1981 when he presented with pain in his back, neck, and legs. Appellant reported that 

“his back had been going out” since the fall of 1981 and that he would fall to the ground and be 

unable to get up. 

By decision dated January 9, 1986, OWCP denied appellant’s claim. It found that he 

failed to submit sufficient medical evidence to establish that he was disabled on or after 

September 28, 1979 due to his accepted work injuries. 

On August 15, 2011 appellant requested reconsideration of his claim and submitted 

additional reports of Dr. Weir. On August 13, 1987 Dr. Weir indicated that appellant’s 

symptoms seemed to fluctuate and opined, “[Appellant’s] symptoms may be exacerbated by 

returning to a job with sustained physical activities.” He diagnosed back pain, neck pain, and 

muscle spasms. In a January 9, 1991 report, Dr. Weir indicated that appellant’s symptoms were 

markedly exacerbated by his prior work. He diagnosed back pain, neck pain, muscle spasm, 

hypertension, and hypercholesterolemia. 

In an April 8, 2013 decision, OWCP affirmed the denial of appellant’s claim. It found 

that he had not submitted sufficient medical evidence to establish disability on or after 

September 28, 1979 due to his accepted work injuries. 

In an April 9, 2014 decision,3

 the Board affirmed OWCP’s April 8, 2013 decision finding 

that appellant had not met his burden of proof to establish disability on or after September 28, 

1979 due to his accepted work injuries. The Board determined that the medical evidence 

submitted by appellant, including the reports of Dr. Weir, did not contain a rationalized opinion 

 2

 OWCP previously accepted that appellant sustained a lumbar strain on January 8, 1972 due to lifting 

encyclopedias at work. 

3

 Docket No. 13-1910 (issued April 9, 2014). 
3

that he sustained any disability due to his January 8, 1972 or November 4, 1978 work injuries for 

any specific period. 

Appellant submitted a number of new medical reports after OWCP issued its April 8, 

2013 decision. The new evidence was not available to the Board on his prior appeal. In a 

June 13, 2013 report, Dr. Allen H. Macht, an attending Board-certified general surgeon, 

discussed appellant’s January 8, 1972 work injury, which affected his low back, and his 

November 4, 1978 work injury, which affected his neck and low back.4

 He detailed the 

treatment of appellant’s neck and low back problems after his November 4, 1978 work injury 

and noted that he presently continued to complain of severe constant pain in his neck and back.5

 

Dr. Macht indicated that on physical examination appellant exhibited tenderness upon palpation 

of his posterior neck and low back and noted that he had limited range of motion in his neck and 

back. He determined that appellant was unable to perform his prior position of letter carrier. 

Dr. Macht noted that appellant was totally and permanently disabled from work and opined: 

“It appears that this disability is causally related to the November 4, 1978 accident 

at work. There is no evidence of any other accidents or injuries in [appellant’s] 

medical records. His arthritic changes due to his aging as documented in his 

medical records does [sic] not seem sufficient to be approximate [sic] cause of his 

disability. [Appellant] only has a mild-to-moderate degree of arthritis of the left 

wrist and the back region.” 

In a June 27, 2013 report, Dr. Macht reported that appellant “continued to suffer residual 

industrial loss from injuries sustained in the accidents of January 8, 1972 and 

November 4, 1978.” He indicated that these “residual impairments” were permanent. 

In a May 16, 2014 report, Dr. Macht discussed appellant’s January 8, 1972 and 

November 4, 1978 work injuries and his treatment for neck and low back problems. He noted 

that appellant continued to exhibit tenderness upon palpation of his posterior neck and low back 

and had limited range of motion in his neck and back. Dr. Macht discussed diagnostic testing of 

appellant’s neck and back obtained in 1984 and 1991 and diagnosed musculoligamentous sprain 

of his neck and back with mild-to-moderate spondylosis and left carpal tunnel syndrome with 

moderate arthritic changes of his left wrist. He noted that appellant was totally and permanently 

disabled from work due to his November 4, 1978 work injury and opined: 

“It appears that this disability is causally related to the November 4, 1978 accident 

at work. There is no evidence of any other accidents or injuries in [appellant’s] 

medical records. His arthritic changes due to his aging as documented in his 

medical records does [sic] not seem sufficient to be approximate [sic] cause of his 

disability. [Appellant] only has a mild-to-moderate degree of arthritis of the left 

wrist and the back region. 

 4

 Dr. Macht indicated that on November 4, 1978 appellant’s vehicle was struck from behind by another vehicle 

while he was at a stop and his vehicle was forced into another vehicle in front of him. He noted that appellant was 

“thrown about injuring his neck.” 

5

 Dr. Macht discussed diagnostic testing of appellant’s back obtained in 1991 and 1993. 
4

“[Appellant’s] injuries are not trivial. His November 4, 1978 accident required a 

nearly two-week hospitalization. Even though no fractures or dislocations have 

been noted, [appellant] has significant disc disease, especially in the neck region. 

He also has left carpal tunnel syndrome. Based on medical probability, these 

conditions are due to the January 8, 1972 and November 4, 1978 accidents. At 

the time of [appellant’s] 1978 accident he was only 40 years old. The significant 

changes noted on the studies presented above are more likely accidental than age 

related considering his age at the time. These injuries have not ‘healed on their 

own.’ I would not use the term ‘healed’ to describe [appellant’s] current 

condition.” 

By letter dated May 28, 2014, counsel, on behalf of appellant, requested reconsideration 

of OWCP’s denial of appellant’s claim for disability compensation beginning 

September 28, 1979. He argued that the reports of Dr. Macht established that appellant had 

disability beginning September 28, 1979 due to his accepted work injuries. 

In an August 25, 2014 decision, OWCP denied appellant’s request for further review of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a) noting that the evidence that he submitted 

was “cumulative and thus substantially similar to evidence or documentation that is already 

contained in the case file and was previously considered.” 

In a January 9, 2015 decision,6

 the Board set aside OWCP’s August 25, 2014 decision 

and remanded the case to OWCP for further development. The Board found that the evidence 

appellant submitted in support of his May 2014 reconsideration request, including reports of 

Dr. Macht, constituted relevant and pertinent evidence which had not previously been considered 

by OWCP. Therefore, the submission of this new and relevant evidence required reopening of 

appellant’s claim for merit review. The Board directed that the case be remanded to OWCP for 

it to conduct a merit review of appellant’s claim, pursuant to 5 U.S.C. § 8128(a), and to issue an 

appropriate merit decision regarding his claim for disability compensation.7

By decision dated May 14, 2015, OWCP found that appellant did not meet his burden of 

proof to establish disability on or after September 28, 1979 due to his accepted work injuries. It 

determined that the medical evidence submitted by him, including the reports of Dr. Macht, did 

not contain a rationalized medical opinion relating his disability on or after September 28, 1979 

to residuals of his January 8, 1972 or November 4, 1978 work injuries. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of establishing the essential 

elements of his or her claim including the fact that the individual is an “employee of the United 

States” within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation period of FECA, that an injury was sustained in the performance of duty as alleged 

 6

 Docket No. 14-1939 (issued January 9, 2015). 

7

 In a January 15, 2015 letter, counsel referenced the Board’s January 9, 2015 decision and again requested 

reconsideration on behalf of appellant. A copy of Dr. Macht’s May 16, 2014 report was resubmitted. 
5

and that any disability and/or specific condition for which compensation is claimed are causally 

related to the employment injury.8 The medical evidence required to establish a causal 

relationship between a claimed period of disability and an employment injury is rationalized 

medical opinion evidence. 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.9 Whether a particular 

employment injury causes disability for employment and the duration of that disability are 

medical issues, which must be proved by a preponderance of reliable, probative, and substantial 

medical evidence.10

ANALYSIS 

OWCP accepted that on November 4, 1978 appellant sustained cervical and low back 

strains when his postal vehicle was struck from behind by another vehicle.11 Appellant received 

continuation of pay from November 4 to December 25, 1978 and disability compensation for 

intermittent periods between December 26, 1978 and August 29, 1979. He returned to 

limited-duty work on a full-time basis on August 30, 1979 without any wage loss. Appellant 

resigned from the employing establishment effective September 28, 1979 and claimed that he 

was entitled to receive disability compensation beginning September 28, 1979 due to his 

accepted work injuries. In January 9, 1986 and April 8, 2013 decisions, OWCP denied his claim 

for work-related disability on and after September 28, 1979 because he did not submit sufficient 

medical evidence to establish such a claim. 

In an April 9, 2014 decision, the Board affirmed OWCP’s April 8, 2013 decision finding 

that appellant had not met his burden of proof to establish disability on or after September 28, 

1979 due to his accepted work injuries. On January 9, 2015 the Board remanded the case to 

OWCP to conduct a merit review and consider the new and relevant evidence appellant 

submitted after OWCP issued its April 8, 2013 decision. 

The Board now finds that appellant did not submit sufficient medical evidence to meet 

his burden of proof to establish that he had disability on or after September 28, 1979 due to his 

accepted work injuries. Appellant submitted several reports from Dr. Macht, an attending 

Board-certified general surgeon, but these reports do not contain the requisite rationalized 

medical evidence to establish his disability claim.12

 8 J.F., Docket No. 09-1061 (issued November 17, 2009). 

9 See E.J., Docket No. 09-1481 (issued February 19, 2010). 

10 W.D., Docket No. 09-658 (issued October 22, 2009). 

11 OWCP previously accepted that appellant sustained a lumbar strain on January 8, 1972 due to lifting 

encyclopedias at work. 

12 Appellant previously submitted reports of Dr. Weir, an attending Board-certified neurologist. In its April 9, 

2014 decision, the Board explained that these reports did not establish his claim because they lacked medical 

rationale showing that he had disability on or after September 28, 1979 due to his accepted work injuries. 
6

In a June 13, 2013 report, Dr. Macht noted that appellant was totally and permanently 

disabled from work and stated, “It appears that this disability is causally related to the 

November 4, 1978 accident at work.” He noted that there was no evidence of any other 

accidents or injuries in appellant’s medical records. Dr. Macht indicated that appellant only had 

mild-to-moderate arthritis of his wrist and back and stated, “[Appellant’s] arthritic changes due 

to his aging as documented in his medical records does [sic] not seem sufficient to be 

approximate [sic] cause of his disability.” 

The Board finds, however, that this report is of limited probative value with respect to 

appellant’s claim that he had work-related disability on or after September 28, 1979 because it 

does not contain adequate medical rationale in support of its opinion on causal relationship.13 

Dr. Macht did not explain how appellant’s January 8, 1972 or November 4, 1978 work injuries, 

which were only accepted for soft tissue injuries to his neck and low back, would be competent 

to cause disability on or after September 28, 1979. He indicated that appellant was totally 

disabled at the time he produced his June 13, 2013 report, but he did not identify any specific 

period of disability or explain how the limited objective findings he observed on that date caused 

total disability. 

In a June 27, 2013 report, Dr. Macht noted that appellant “continued to suffer residual 

industrial loss from injuries sustained in the accidents of January 8, 1972 and 

November 4, 1978.” He indicated that these “residual impairments” were permanent. However, 

this report is of limited probative value because Dr. Macht did not provide any explanation for 

this conclusory statement on causal relationship. The Board has found that a report is of limited 

probative value on the issue of causal relationship if it presents a conclusion on causal relationship 

without an explanation for that conclusion.14

In a May 16, 2014 report, Dr. Macht also concluded that appellant was totally and 

permanently disabled from work due to his November 4, 1978 work injury. He repeated his 

earlier statement that appellant only had mild-to-moderate arthritis of his wrist and back and that 

his “arthritic changes due to his aging as documented in his medical records does [sic] not seem 

sufficient to be approximate [sic] cause of his disability.” Dr. Macht again failed to provide 

sufficient discussion, highlighting specific medical evidence including diagnostic testing, to 

support this argument. Moreover, he contradicted himself later in the same report when he 

suggested that appellant’s disc disease was due to the November 4, 1978 accident rather than due 

to aging. OWCP has not accepted any condition other than soft tissue injuries, i.e., neck and 

lumbar strains, and Dr. Macht did not explain how such a condition could have been caused or 

aggravated by the January 8, 1972 or November 4, 1978 injury. Dr. Macht also suggested that 

appellant had left carpal tunnel syndrome which was related to the November 4, 1978 accident, 

but no such condition has been accepted by OWCP or established by the medical evidence of 

record. He indicated that appellant’s November 4, 1978 injury was not “trivial” and required 

 13 See George Randolph Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical 

rationale is of little probative value). 

14 See Leon Harris Ford, 31 ECAB 514, 518 (1980) (finding that a medical report is of limited probative value on 

the issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by 

medical rationale). 
7

hospitalization in 1978, but such general comments would not serve as a substitute for medical 

rationale explaining how his accepted injuries caused disability on or after September 28, 1979. 

On appeal counsel argues that the May 16, 2014 report of Dr. Macht contained adequate 

medical rationale to establish that appellant had disability on or after September 28, 1979 due to 

his accepted work injuries. However, he has not provided sufficient support for his argument 

that Dr. Macht’s report contained such probative weight. Counsel argues that appellant’s 

nonwork-related degenerative disc disease had been “ruled out” as a cause of appellant’s 

continuing residuals and disability. However, Dr. Macht also did not explain why appellant’s 

disability on or after September 28, 1979 was not due to some nonwork-related condition, such 

as the natural progression of underlying degenerative disc disease. Although he posited that 

appellant’s degenerative disc condition was not responsible for his continuing neck and back 

problems, he did not provide any specific discussion of the medical evidence, including the 

findings of diagnostic testing, to support this argument. 

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 meet his burden of proof to establish disability on 

or after September 28, 1979 due to his accepted work injuries. 
8

ORDER 

IT IS HEREBY ORDERED THAT the May 14, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 17, 2015 

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