United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

New Bern, NC, Employer

__________________________________________

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Docket No. 17-1296

Issued: February 15, 2018

Appearances: Case Submitted on the Record

Joanne Marie Wright, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 25, 2017 appellant, through his representative, filed a timely appeal from a

December 22, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction to consider the merits of the case.

On appeal appellant, through his representative, asserts that he has established total 

disability for the period November 22, 2012 through August 6, 2013 or that, in the alternative, a 

conflict in medical evidence has been created.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant met his burden of proof to establish total disability for 

work from November 22, 2012 through August 6, 2013.

FACTUAL HISTORY

On July 2, 2012 appellant, then a 52-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed a herniated cervical disc due to factors of 

his federal employment. He first became aware of his condition on December 3, 2003 and first 

attributed his condition to factors of his federal employment on May 10, 2008. Appellant

reported that in late 2003 he was diagnosed with bulging discs at C5-6 and C6-7 and attributed 

this condition to his federal employment. He noted an employment-related motor vehicle 

accident on May 10, 2008 and thereafter alleged his work duties caused increased pain.3 

Appellant described his duties as twisting, lifting, pushing, standing, sitting, bending, raising his 

arms above his head, driving, and entering and exiting vehicles. He stopped work on 

June 14, 2012.

By decision dated January 14, 2014, OWCP accepted appellant’s claim for temporary 

aggravation of degeneration of cervical intervertebral disc.

On February 5, 2014 appellant filed a wage-loss compensation claim (Form CA-7) from 

November 23, 2012 through September 5, 2013 and also a claim for a schedule award.

In letters dated February 10, 2014, OWCP requested additional medical evidence from 

appellant supporting his claims for permanent impairment and wage-loss compensation. It

afforded him 30 days to respond.

Dr. Anthony Capobianco, an osteopath, completed a note on March 3, 2014 and opined 

that appellant was totally disabled from November 23, 2012 through September 5, 2013 due to 

aggravation of his cervical disc condition by his daily work duties.

Dr. Angelo Tellis, a Board-certified physiatrist, noted on March 3, 2014 that he treated 

appellant from August 7, 2012 through May 13, 2013. He diagnosed bulging discs and opined 

that appellant was totally disabled.

On March 5, 2014 appellant filed a second Form CA-7 on which he requested wage-loss 

compensation from November 23, 2012 through September 15, 2013. The employing 

establishment indicated that appellant worked two hours a day commencing August 7, 2013.

On March 12, 2014 OWCP authorized compensation payment for 129.99 hours of lost 

wages from August 7 through September 5, 2013.

 

3 Appellant has four prior claims. OWCP accepted a lumbar strain in 2001 in File No. xxxxxx488. It accepted 

first dorsal compartment tenosynovitis in 2004 in File No. xxxxxx940. OWCP accepted a right medial meniscal tear 

in 2006 in File No. xxxxxx302. On June 3, 2008 it accepted closed dislocation of cervical and thoracic vertebra due 

to a motor vehicle accident; File No. xxxxxx260. These claims are not before the Board on the present appeal.
3

In a letter dated March 14, 2014, OWCP requested additional medical evidence from 

appellant supporting his claimed period of total disability from November 22, 2012 through 

August 6, 2013. It afforded him 30 days to respond.

In a note dated April 5, 2013, Dr. Tellis indicated that he had treated appellant monthly 

since August 7, 2012. He reported that appellant’s incapacity for work was unknown.

Dr. Capobianco completed a note on April 14, 2014 and asserted that appellant was 

totally disabled from June 15, 2012 through September 5, 2013 to prevent further injury to his 

cervical condition.

By decision dated April 25, 2014, OWCP denied appellant’s claim for compensation for 

the period November 22, 2012 through August 6, 2013 finding that the medical evidence did not 

contain a rationalized medical opinion establishing that appellant was totally disabled for the 

period claimed. Appellant requested a review of the written record from OWCP’s Branch of 

Hearings and Review on May 13, 2014.

Appellant submitted his treatment records from August 7, 2012 through June 5, 2013 

establishing that he sought treatment on August 7, 9, 17, and 21, 2012. He also sought medical 

treatment on September 5, 10, 18, and 24, 2012 as well as October 23, November 19, and 

December 20, 2012. In 2013 appellant sought treatment on January 23, February 19, March 15, 

May 13, and June 5, 2013. 

On June 10, 2014 Dr. Capobianco opined that from June 15, 2012 through September 5, 

2013 appellant was totally disabled for his position as a city letter carrier.

By decision dated December 17, 2014, OWCP’s hearing representative vacated the

April 25, 2014 decision and remanded the case for further medical development. She found that

Dr. Capobianco and Dr. Tellis did not provide medical reasoning in support of their conclusions 

that appellant was totally disabled. The hearing representative also noted that Dr. Robert M. 

Moore, a Board-certified orthopedic surgeon who acted as a second opinion physician prior to 

acceptance of this claim, had failed to opine when a temporary aggravation had ceased and 

whether appellant had disability prior to the date of his examination or the date he returned to 

full duty. She remanded the case for an additional opinion by Dr. Moore addressing disability.

OWCP requested a supplemental report from Dr. Moore on December 30, 2014.

Dr. Moore provided a January 8, 2015 report in which he opined that appellant’s temporary 

aggravation of cervical degenerative disc disease had ceased by the date of appellant’s return to 

full duty on August 9, 2013. He was unable to determine the extent of appellant’s disability 

from November 22, 2012 through August 8, 2013 due to the lack of medical records.

In a letter dated January 21, 2015, OWCP requested that appellant provide all physical 

examination notes and tests results for the period November 22, 2012 through August 6, 2013. It

afforded him 30 days to respond.

Appellant provided additional treatment notes from Dr. Tellis. On August 7, 2012

Dr. Tellis had examined appellant due to chronic neck pain that increased over the past two to 

three months with numbness in his left arm and dropping things. He recommended a cervical 
4

epidural injection. Dr. Tellis performed the cervical epidural steroid injection on 

August 9, 2012. On August 21, 2012 appellant saw Dr. Tellis for increased pain in his neck and 

left arm. He reported that following the cervical epidural steroid injection on August 9, 2012 he 

developed a stiff neck and increased pain down his left arm. Appellant sought emergency room 

treatment and continued to have intense pain interfering with his sleeping. Dr. Tellis noted that 

appellant’s pain was not under good control. In a note dated September 18, 2012, appellant 

reported increased pain in his neck and left upper extremity over the last two weeks. On 

October 23, 2012 he reported improvement compared to August and September. On 

December 20, 2012 a note indicated that appellant had to be careful in his activity as he had a 

more severe exacerbation pulling a vine off a tree at his home. On February 19, 2013 appellant 

felt his pain was improving. In a May 13, 2013 note, appellant reported right arm pain, while his 

left arm pain was improved.

Dr. Tellis completed a note on February 9, 2015 and indicated that he treated appellant 

from August 7, 2012 through May 13, 2013. During that period of treatment he diagnosed 

bulging discs at C5-6 and C6-7 with cervical radiculopathy. Dr. Tellis noted that appellant 

received an epidural injection on August 9, 2012 which exacerbated his pain causing 

incapacitation. He opined that appellant was totally disabled from August 7, 2012 through 

May 13, 2013 due to numbness, weakness, and dropping things with his left arm.

On March 5, 2015 OWCP requested that Dr. Moore review the additional medical 

evidence and address appellant’s disability for work from November 22, 2012 through 

August 8, 2013. In a report dated March 12, 2015, Dr. Moore reviewed the physical findings 

listed on Dr. Tellis’ December 20, 2012, February 19, and May 13, 2013 notes. He found that 

based on these records there was no objective evidence to support disability for work due to 

aggravation of degenerative disc disease from November 22, 2012 through August 8, 2013.

By decision dated March 18, 2015, OWCP denied appellant’s claim for compensation for 

the period November 22, 2012 through August 6, 2013 finding that Dr. Moore’s report was 

entitled to the weight of the medical evidence. Appellant requested an oral hearing on 

March 30, 2015.

Appellant testified at the oral hearing on November 17, 2015 and asserted that he 

experienced horrendous pain, severe constipation, and seizures due to the prescribed pain 

medication. He testified that his daily activities were severely limited.

By decision dated January 29, 2016, OWCP’s hearing representative vacated OWCP’s 

March 18, 2015 decision and remanded the case for further development of the medical evidence 

by referral to Dr. Moore. She found that it was not evident that Dr. Moore considered medical 

evidence other than the three reports from Dr. Tellis that he had noted.

On February 12, 2016 OWCP requested a supplemental report from Dr. Moore 

addressing appellant’s disability from November 22, 2012 through August 6, 2013. It provided 

additional medical documentation included in the record of evidence from Drs. Tellis and 

Capobianco.
5

In a report dated February 26, 2016, Dr. Moore reviewed the medical records and found 

that there were no objective findings of total disability for the period November 22, 2012 through 

August 6, 2013. He noted that he had not examined appellant during the period in question.

By decision dated March 17, 2016, OWCP denied appellant’s claim for compensation for 

the period November 22, 2012 through August 6, 2013. Appellant requested an oral hearing on 

April 1, 2016.

Appellant appeared at the oral hearing on November 8, 2016 and asserted that his 

attending physicians represented the weight of the medical evidence as Dr. Moore did not have 

an opportunity to examine him during the period November 22, 2012 through August 6, 2013.

By decision dated December 22, 2016, OWCP’s hearing representative found that 

appellant had not established disability for work from November 22, 2012 through August 6, 

2013 as the medical evidence of record did not establish that appellant was totally disabled 

during the period in question.

LEGAL PRECEDENT

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

essential elements of his or her claim, including that any disability or specific condition for 

which compensation is claimed is causally related to the employment injury.5 The term 

disability is defined as the incapacity because of an employment injury to earn the wages the 

employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of 

wage-earning capacity.6 

Whether a particular injury causes an employee to be disabled for employment and the 

duration of that disability are medical issues which must be proved by a preponderance of the 

reliable, probative, and substantial medical evidence.7 Findings on examination are generally 

needed to support a physician’s opinion that an employee is disabled for work. When a 

physician’s statements regarding an employee’s ability to work consist only of repetition of the 

employee’s complaints that he hurts too much to work, without objective findings of disability 

being shown, the physician has not presented a medical opinion on the issue of disability or a 

basis for payment of compensation.8 The Board will not require OWCP to pay compensation for 

disability in the absence of any medical evidence directly addressing the specific dates of 

 

4 5 U.S.C. §§ 8101-8193.

5 G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

6 20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no 

loss of wage-earning capacity).

7 See Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Id.
6

disability for which compensation is claimed. To do so would essentially allow employees to 

self-certify their disability and entitlement to compensation.9

Causal relationship is a medical issue and the medical evidence required to establish 

causal relationship is rationalized medical evidence.10 Rationalized medical evidence is medical 

evidence which includes a physician’s detailed medical opinion on the issue of whether there is a 

causal relationship between the claimant’s diagnosed condition and the implicated employment 

factors. 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.11 Neither the fact that a disease 

or condition manifests itself during a period of employment nor the belief that the disease or 

condition was caused or aggravated by employment factors or incidents is sufficient to establish 

causal relationship.12

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish total disability 

for work from November 22, 2012 through August 6, 2013.

OWCP accepted appellant’s claim for temporary aggravation of degeneration of cervical 

intervertebral disc. Appellant filed a series of CA-7 forms requesting wage-loss compensation 

for total disability for the period November 22, 2012 through August 6, 2013.

In support his claimed period of disability, appellant submitted a series of notes and 

reports from Drs. Capobianco and Tellis. On December 20, 2012 Dr. Capobianco noted that 

appellant had periods of acute incapacitation, but did not provide any dates of disability. In a 

note dated April 4, 2013, he indicated that appellant was disabled, but again failed to provide a 

period of disability. On June 22, 2013 Dr. Capobianco released appellant to work two hours a 

day. In notes dated September 2, 2013, March 3, and April 14, 2014, he opined that appellant 

was totally disabled from November 23, 2012 through September 5, 2013 due to aggravation of 

his cervical disc condition by his daily work duties. Dr. Capobianco indicated that appellant’s 

disability from work was to prevent further injury to his cervical condition. None of these 

reports provide any specific findings on examination or medical reasoning to support his opinion 

that appellant was disabled for work. As Dr. Capobianco provided no objective findings in 

support of appellant’s total disability for work and no medical reasoning supporting his opinions 

on disability his reports are insufficient to meet appellant’s burden of proof to establish total 

disability for the period November 22, 2012 through August 6, 2013.13 A medical report must 

 

9

Id.

10 Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11 Leslie C. Moore, 52 ECAB 132 (2000).

12 Dennis M. Mascarenas, 49 ECAB 215 (1997).

13 P.W., Docket No. 17-0154 (issued June 9, 2017).
7

include rationale explaining how the physician reached his conclusion regarding disability.14 As 

these reports lack the requisite medical rationale, they are insufficient to meet appellant’s burden 

of proof.

Dr. Tellis also provided a series of notes and reports addressing appellant’s disability for 

work. On March 3, 2014 he noted that he treated appellant from August 7, 2012 through 

May 13, 2013 and found that appellant was totally disabled. In a note dated April 5, 2013,

Dr. Tellis reported that appellant’s incapacity for work was unknown. On August 21, 2012 he

noted that appellant’s pain was not under good control. On December 20, 2012 Dr. Tellis

indicated that appellant had to be careful in his activity and experienced a more severe 

exacerbation pulling a vine off a tree at his home. In a note dated February 9, 2015, he opined 

that appellant was totally disabled from August 7, 2012 through May 13, 2013 due to numbness, 

weakness, and dropping things with his left arm. For each period of disability claimed, the 

employee has the burden of proof to establish that he or she was disabled for work as a result of 

the accepted work injury.15 Dr. Tellis did not provide clear physical findings supporting 

appellant’s disability for work during the period in question and did not provide any rationale 

explaining how or why appellant’s limitations resulted from his accepted injury.16 The issue of 

whether a claimant’s disability is related to an accepted condition is a medical question which 

must be established by a physician who, on the basis of a complete and accurate factual and 

medical history, concludes that the disability is causally related to the employment injury and 

supports that conclusion with sound medical reasoning.17

OWCP referred appellant for a second opinion evaluation, with Dr. Moore and requested 

two supplemental reports from him addressing appellant’s claimed period of disability for work. 

Dr. Moore provided a report dated January 8, 2015 and opined that appellant’s temporary 

aggravation of cervical degenerative disc disease had ceased by the date of his return to full duty 

on August 9, 2013. He reviewed the physical findings listed in the medical records from 

Drs. Capobianco and Tellis. Dr. Moore found that there were no objective findings for the 

period November 22, 2012 through August 6, 2013 to support appellant’s claim for total 

disability for this period. The Board finds that the reports of Dr. Moore are sufficiently 

rationalized on the issue of total disability as he had a correct history of injury, has fully 

reviewed the physical findings which were contemporaneous with the dates of alleged total 

disability, and provided a detailed explanation of why he opines that appellant was not totally 

disabled as alleged. Therefore the weight of the medical evidence is found to be with Dr. Moore 

who opined that appellant did not have total disability for work during the claimed period. It is 

appellant’s burden of proof to establish a specific period of work-related disability. The Board 

has long held that medical conclusions unsupported by rationale are of diminished probative 

value.18 None of the medical reports explain, with sufficient rationale, how his accepted 

 

14 J.I., Docket No. 17-0485 (issued June 22, 2017).

15 Id.

16 Supra note 13.

17 Supra note 14.

18 Supra note 13.
8

conditions caused him to be disabled for work from November 22, 2012 through August 6, 2013. 

The Board finds that appellant did not meet his burden of proof in this case.

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 has not met his burden of proof to establish total disability 

for work from November 22, 2012 through August 6, 2013.

ORDER

IT IS HEREBY ORDERED THAT the December 22, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 15, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board