United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.P., Appellant 

and 

DEPARTMENT OF THE TREASURY, U.S. 

MINT, Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 16-1869 

Issued: September 25, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

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 September 21, 2016 appellant, through counsel, filed a timely appeal from an 

April 27, 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 over the merits of this case.3

 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. 

3

 The Board notes that appellant submitted additional evidence to OWCP after the April 27, 2016 decision was 

issued. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1). 
2

ISSUE 

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

beginning February 22, 2015, causally related to her accepted lumbar condition. 

FACTUAL HISTORY 

On November 20, 2014 appellant, then a 54-year-old tools and parts attendant, filed an 

occupational disease claim (Form CA-2) alleging lumbar and left lower extremity conditions due 

to performing her employment duties. She identified July 21, 2014 as the date she first realized 

her claimed conditions were employment related. Appellant stopped work on 

November 18, 2014. On February 20, 2015 OWCP accepted appellant’s claim for left L5-S1 

radiculopathy. 

In March and April 2015, appellant filed several claims for compensation (Form CA-7) 

for temporary total disability beginning February 22, 2015.4

 She submitted reports dated 

February 26, 2015, including an attending physician’s report (Form CA-20) and a duty status 

report (Form CA-17), from Dr. Gabriel Rosales, a Board-certified general surgeon. Dr. Rosales 

diagnosed lumbar strain with radiculopathy and advised that appellant was unable to work. 

In a March 30, 2015 letter, OWCP requested additional medical evidence establishing 

appellant’s disability for work during the period claimed and afforded her 30 days to respond to 

its inquiries. 

Subsequently, appellant submitted physical therapy reports dated March 11 through 

April 1, 2015. 

In an April 14, 2015 report, Dr. Zach Broyer, a Board-certified physiatrist, noted that 

appellant had been in physical therapy since November 2014 and had been out of work since 

November 18, 2014 as ordered by her primary care physician. In another April 14, 2015 report, 

he checked a box indicating that she was temporarily totally disabled from employment 

activities. On April 22, 2015 Dr. Broyer opined that appellant was unable to work due to 

exacerbation of a herniated nucleus pulposus (HNP) and associated radiculopathy at L5-S1. 

OWCP referred appellant for a second opinion evaluation with Dr. Willie Thompson, a 

Board-certified orthopedic surgeon. In his May 15, 2015 report, Dr. Thompson found that her 

accepted condition had resolved and he released her to full-duty work without restrictions. He 

explained that appellant’s diagnosis was that of a soft-tissue-type sprain to the lower back, but 

nothing more serious. Dr. Thompson further noted that her physical examination was 

completely within normal limits. 

Effective May 15, 2015, Dr. Broyer released appellant to resume work with a 20-pound 

lifting limitation. 

 4

 Although both appellant and the employing establishment acknowledged that she stopped work on 

November 18, 2014, appellant did not claim wage-loss compensation dating back to her November 18, 2014 work 

stoppage. 
3

On June 2, 2015 appellant returned to work in a limited-duty capacity with a 20-pound 

lifting restriction. 

By decision dated June 9, 2015, OWCP denied appellant’s claim for temporary total 

disability beginning February 22, 2015 as the medical evidence submitted was insufficient to 

support disability due to the employment injury. 

On July 7, 2015 counsel requested a hearing before a representative of OWCP’s Branch 

of Hearings and Review. Appellant submitted additional medical evidence, including an 

April 28, 2015 report from Dr. Delana Wardlaw, a Board-certified family practitioner, who noted 

that appellant had been under her care since September 5, 2014 for lumbar radiculopathy. 

Dr. Wardlaw reported that appellant was treated with medication and physical therapy and her 

symptoms improved temporarily, but that she could not participate in her daily activities. 

Appellant’s last visit was March 27, 2015 at which time she was referred to orthopedic surgery 

for ongoing care. 

Effective September 4, 2015, the employing establishment was unable to accommodate 

appellant’s work restrictions. Accordingly, OWCP accepted the claim for recurrence of 

disability, and later placed her on the periodic compensation rolls. 

The hearing regarding the June 9, 2015 decision was held before an OWCP hearing 

representative on September 16, 2015. Appellant provided testimony and the hearing 

representative held the case record open for 30 days to allow for the submission of additional 

evidence. 

After the hearing, appellant submitted reports dated October 9, 2015 from Dr. Broyer 

reiterating his opinion that she was capable of working with restrictions. His diagnoses included 

lumbosacral intervertebral disc disorder with radiculopathy, and lumbosacral intervertebral disc 

degeneration and displacement. Dr. Broyer also noted: “L4-5 and L5-S1 disc degeneration with 

disc fusion and bilateral S1 radiculopathy, improving.” 

By decision dated November 4, 2015, OWCP’s hearing representative affirmed the 

June 9, 2015 decision. 

On February 2, 2016 counsel requested reconsideration and appellant submitted progress 

reports dated October 27 and December 8, 2015 from Dr. Broyer. Appellant also submitted a 

March 1, 2016 report from a physician assistant. 

By decision dated April 27, 2016, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT 

Section 8102(a) of FECA5

 sets forth the basis upon which an employee is eligible for 

compensation benefits. That section provides: “The United States shall pay compensation as 

specified by this subchapter for the disability or death of an employee resulting from personal 

 5

 5 U.S.C. § 8102(a). 
4

injury sustained while in the performance of his duty....” In general the term “disability” under 

FECA means “incapacity, because of an employment injury, to earn the wages the employee was 

receiving at the time of injury.”6 This meaning, for brevity, is expressed as disability for work.7 

For each period of disability claimed, an employee has the burden of proving that he or she was 

disabled for work as a result of the accepted employment injury.8 Whether a particular injury 

caused an employee to be disabled for employment and the duration of that disability are medical 

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

medical evidence.9

Disability is not synonymous with physical impairment, which may or may not result in 

an incapacity to earn wages. 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 as that term is used under FECA, and is not 

entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to 

pay compensation for disability in the absence of any medical evidence directly addressing the 

particular period of disability for which compensation is claimed. To do so would essentially 

allow employees to self-certify their disability and entitlement to compensation.10

ANALYSIS 

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

beginning February 22, 2015 causally related to her accepted lumbar condition. While OWCP 

accepted that appellant sustained a left L5-S1 radiculopathy, she bears the burden of proof to 

establish through medical evidence that she was disabled during the claimed time period and that 

her disability was causally related to the accepted injury.11 The Board finds that she submitted 

no rationalized medical evidence explaining how her accepted left L5-S1 radiculopathy disabled 

her from all work on or after February 22, 2015. 

In his reports, Dr. Broyer opined that appellant was temporarily totally disabled from 

employment activities and was “unable to work due to exacerbation of HNP and radiculopathy at 

L5-S1.” Although Dr. Broyer opined that appellant was totally disabled for work, his opinion is 

conclusory in nature, and fails to explain in detail how the accepted medical condition was 

responsible for appellant’s disability and why she could not perform her federal employment.12 

Consequently, the Board finds that Dr. Broyer’s reports are insufficient to establish appellant’s 

claim for wage-loss compensation for temporary total disability beginning February 22, 2015. 

 6

 20 C.F.R. § 10.5(f); see also William H. Kong, 53 ECAB 394 (2002). 

7 See Roberta L. Kaaumoana, 54 ECAB 150 (2002). 

8 See William A. Archer, 55 ECAB 674 (2004). 

9 See Fereidoon Kharabi, 52 ECAB 291, 292 (2001). 

10 Id. 

11 See supra notes 7 and 8. See also V.P., Docket No. 09-337 (issued August 4, 2009). 

12 See J.J., Docket No. 15-1329 (issued December 18, 2015). 
5

In reports dated February 26, 2015, Dr. Rosales advised that appellant was unable to 

work due to her lumbar radiculopathy. The Board finds that, although Dr. Rosales provided an 

opinion of appellant’s disability, he failed to provide a probative medical opinion explaining how 

appellant’s accepted condition caused her to be disabled for employment on the dates at issue.13 

Thus, the report of Dr. Rosales is insufficient for appellant to meet her burden of proof to 

establish that she was totally disabled for work due to the employment injuries for the period 

claimed. 

Appellant also submitted an April 28, 2015 report from Dr. Wardlaw indicating that she 

could not participate in her daily activities. The Board finds that this medical report also failed 

to provide a probative medical opinion on whether appellant was disabled on the dates at issue 

due to her accepted conditions. Therefore, the report of Dr. Wardlaw is insufficient to establish 

appellant’s claim.14

Appellant also submitted evidence from physician assistants and physical therapists. 

These documents do not constitute competent medical evidence because neither a physician 

assistant nor a physical therapist is considered a “physician” as defined under FECA.15 As such, 

the reports from the physician assistants and physical therapist are insufficient to meet 

appellant’s burden of proof. 

The Board finds that appellant has not submitted sufficiently rationalized medical opinion 

evidence to establish total disability beginning February 22, 2015 causally related to the 

employment injuries. Thus, appellant has not met her burden of proof to establish that she is 

entitled to compensation for total disability for the claimed period. 

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 her burden of proof to establish total disability 

beginning February 22, 2015 causally related to her accepted lumbar condition. 

 13 See J.G., Docket No. 12-1348 (issued February 25, 2013). 

14 Id.

15 5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants); Jennifer L. Sharp, 48 ECAB 

209 (1996) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 

ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of 

probative medical evidence from a physician). 
6

ORDER 

IT IS HEREBY ORDERED THAT the April 27, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 25, 2017 

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