United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Macon, GA, Employer

__________________________________________

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Docket No. 17-1160

Issued: December 19, 2018

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 6, 2017 appellant filed a timely appeal from an April 21, 2017 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 to 

consider the merits of this case.

2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the April 21, 2017 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for 

the first time on appeal. Id.
2

ISSUE

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

the periods May 17, 2014 to March 29, 2015; May 16 to September 18, 2015; and June 23, 2016

and continuing causally related to her accepted February 13, 2014 employment injury.

FACTUAL HISTORY

On February 15, 2014 appellant, then a 40-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on February 13, 2014 she sustained neck, back, lumbar 

spine, left hip, and right knee injuries when she was involved in a motor vehicle accident while 

delivering mail. She stopped work on February 13, 2014. OWCP initially accepted the claim for 

a head contusion.

Appellant filed numerous forms requesting wage-loss compensation (CA-7 forms) for 

periods of disability commencing February 13, 2014. The record indicates that appellant was paid 

wage-loss compensation on the supplemental rolls for the period February 14 to May 16, 2014

In a May 16, 2014 report, Melissa Cooper, a nurse practitioner, related that appellant had 

completed physical therapy and had been released to return to work, without restrictions. On 

October 3, 2014 she related that appellant had work restrictions due to her February 13, 2014 

employment injury.

In an August 26, 2014 memorandum to file, OWCP reported that appellant had been 

employed less than one year and that the employing establishment terminated her employment

during her probationary period. It noted that she had been released to full-duty work in a medical 

report dated May 16, 2014.

On March 30, 2015 appellant was examined by Dr. Kathleen Warner, a Board-certified 

internist, who diagnosed lumbosacral, right knee, and left hip sprains and lumbar radiculopathy. 

Dr. Warner noted that appellant had been involved in a motor vehicle accident while delivering 

mail on February 13, 2014 and that the claim had only been accepted for the condition of head 

contusion. She provided a medical history and details of the February 13, 2014 motor vehicle 

accident. Dr. Warner noted that appellant had been disabled from work since February 13, 2014 

and that the employing establishment terminated her employment on March 8, 2014 based on her 

failure to report to work. She related that the mechanism of injury was consistent with the

diagnosed low back conditions.

In a March 30, 2015 duty status report (Form CA-17), Dr. Warner noted a February 13, 

2014 injury and provided work restrictions

In reports dated June 1 and 16, 2015, Dr. Rhett Krone, an emergency medicine physician,

provided examination findings. He opined that appellant’s motor vehicle accident aggravated a 

chronic underlying lumbosacral condition as she had no pain prior to the accident, but was 

currently experiencing chronic lumbosacral pain. Dr. Krone observed that appellant’s symptoms 

were suggestive of L4-5 radiculopathy. 
3

Dr. Krone, in a July 6, 2015 report, opined that appellant sustained injuries due to the 

February 13, 2014 employment-related motor vehicle accident and he provided examination 

findings.

By decisions dated July 29 and August 7, 2015, OWCP advised appellant that acceptance 

of her claim had been expanded to include the additional conditions of sprain of right knee lateral 

collateral ligament; and sprain of the hip and thigh; and sprain of the lumbar region of the back.

In an August 10, 2015 report, Dr. Krone provided examination findings and opined that 

appellant might have a compressed spine fracture based on her continued pain complaints. On 

September 14, 2015 he related that review of appellant’s lumbosacral magnetic resonance imaging 

(MRI) scan revealed some mild L4-5 and L5-S1 disc bulging.

In a report dated June 8, 2016, Dr. Jeff Summers, Board-certified in pain medicine,

diagnosed lumbar spondylosis and hip pain, with resolved lumbar radiculopathy. He noted that 

appellant was neurologically intact and that she had reported no symptoms in her lower extremities 

following her last epidural steroid injection.

In another report dated June 8, 2016, Dr. Michael Winklemann, a Board-certified 

physiatrist, related that appellant was seen for refill of her medications, and that she still had 

complaints of pain in the distribution of the left greater trochanteric bursa.

On August 18, 2016 OWCP received appellant’s CA-7 form claiming wage-loss 

compensation for the period May 17, 2014 to September 18, 2015.

By development letter dated August 26, 2016, OWCP informed appellant that additional

evidence was needed to establish her wage-loss claim for the period May 17, 2014 to 

September 18, 2015. It afforded her 30 days to provide the requested information.

In a letter dated September 1, 2016, appellant noted her disagreement with her termination

from employment by the employing establishment as well as the denial of her claim for wage-loss 

compensation by OWCP.

By decision dated October 19, 2016, OWCP denied appellant’s claim for wage-loss 

compensation for the period May 17, 2014 to September 18, 2015. It found that none of the

medical evidence she submitted addressed disability for the period in question.

By separate decision also dated October 19, 2016, OWCP denied appellant’s claim for 

wage-loss compensation for June 23, 2016 and continuing as none of the medical evidence she

submitted addressed disability for the period in question.

On October 24, 2016 OWCP received a report and office notes dated October 13, 2016 

from Dr. Samuel J. Chmell, Board-certified in orthopedic surgery. Dr. Chmell detailed the history 

of appellant’s accepted February 13, 2014 employment injury and her medical history. He

provided appellant’s physical examination findings. Dr. Chmell indicated that appellant’s medical 

records had been reviewed, including MRI scans, and that the records were consistent with her 

history. He diagnosed L4-5 and L5-S1 disc protrusions with facet arthropathy and radiculopathy, 

right knee torn posterior medial horn meniscus with coccydynia and chondromalacia, and left hip 
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greater trochanteric bursitis with sprain and aggravation of osteoarthritis, which he attributed to 

the accepted February 13, 2014 employment injury. Dr. Chmell observed that appellant continued 

to have pain in the lower back, left hip, and right knee and that physical examination findings 

showed objective deficits. He recommended that appellant’s claim be expanded to include the 

above-listed conditions.

Appellant, in a letter dated November 2, 2016, requested a review of the written record by 

an OWCP hearing representative of the October 19, 2016 decisions denying her wage-loss 

compensation claims for the periods May 17, 2014 to September 18, 2015 and June 23 and 

continuing. She argued that the October 13, 2016 report by Dr. Chmell supported her disability 

from work for the periods in question.

In a December 8, 2016 report, Dr. Chmell noted that appellant was evaluated on 

October 13, 2016 for multiple injuries sustained as the result of a February 13, 2014 employmentrelated motor vehicle accident. He concluded that as a result of the employment injury, appellant 

had sustained lumbar sprain, right torn medial meniscus, left hip traumatic arthritis, L4-5 and L5-

S1 disc herniations with radiculopathy, and coccydynia. Dr. Chmell opined that appellant required 

further medical treatment for her work injuries and that she was currently totally disabled from 

work due to her employment injury.

A March 22, 2017 report from Dr. Winklemann noted examination findings, medication, 

and treatment provided.

By decision dated April 21, 2017, an OWCP hearing representative affirmed the 

October 19, 2016 decision denying appellant’s claim for disability compensation for the period 

May 17, 2014 to September 18, 20153and June 23, 2016 and continuing. She found that appellant 

failed to submit rationalized medical evidence attributing her disability for the periods in question 

to her accepted February 13, 2014 employment injury.

LEGAL PRECEDENT

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

essential elements of his or her claim by the weight of the evidence.5 For each period of disability 

claimed, the employee has the burden of establishing that she was disabled for work as a result of 

the accepted employment injury.6 Whether a particular injury causes an employee to become 

 

3 The Board, in Docket No. 17-0875 (issued December 13, 2018) affirmed the denial of total disability for the 

period March 30 to May 15, 2015. Findings made in prior Board decisions are res judicata absent any further review 

by OWCP under section 8128 of FECA. See B.R., Docket No. 17-0294 (issued May 11, 2018).

4 Supra note 1. 

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

Whelan, 20 ECAB 55 (1968).

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

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.8 Disability is, thus, not 

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

wages.9 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 her employment, she is entitled to compensation for any loss of wages.10

ANALYSIS 

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

for the periods May 17, 2014 to March 29, 2015; May 16 to September 18, 2015; and June 23, 

2016 and continuing.

In support of her claims for wage-loss compensation for the period May 17, 2014 to 

March 29, 2015, and from May 16 to September 18, 2015, appellant submitted reports from a 

nurse practitioner, Ms. Cooper, as well as Drs. Warner and Krone. For period the June 23, 2016 

and continuing, she submitted reports from Drs. Chmell and Winkelmann. 

Appellant was initially treated during the time periods in question by Ms. Cooper. The 

Board has held that treatment notes signed by nurse practitioners have no probative value as these 

providers are not considered physicians as defined under FECA.11 Therefore, the treatment notes 

of record from Ms. Cooper are of no probative medical value in establishing appellant’s claim.12

The reports from Dr. Warner and reports from Dr. Krone do not directly address 

appellant’s disability claim for the periods in question. Dr. Warner provided examination findings 

and diagnoses including low back pain, lumbosacral, strain, right hip and knee sprains, and lumbar 

radiculopathy while Dr. Krone provided examination findings. Both doctors reported that 

appellant had been involved in a work-related motor vehicle accident on February 13, 2014. 

However, none of their reports addressed specific dates of disability or provided medical rationale 

explaining why appellant was totally disabled from work. An award of compensation may not be 

 

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

8 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).

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

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

11 See David P. Sawchuk, 57 ECAB 316, 320n.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); A.L., Docket No. 16-1707 (issued 

August 17, 2017) (nurse practitioners are not considered physicians as defined under FECA).

12 See N.W., Docket No. 17-1415 (issued November 7, 2017). 
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based on surmise, conjecture, speculation, or on the employee’s own belief of disability from 

work.13 For this reason, the reports of Drs. Warner and Krone are insufficient to support 

appellant’s claim for wage-loss compensation for the period May 17, 2014 to March 29, 2015 and 

May 16 to September 18, 2015. 

In support of her claims for wage-loss compensation for the period June 23, 2016 and 

continuing, appellant submitted June 8, 2016 reports from Drs. Summers and Winkleman. These

reports from Dr. Summers and Dr. Winklemann do not directly address appellant’s disability claim 

for the period in question. Dr. Summers diagnosed lumbar spondylolysis, resolved lumbar 

radiculopathy, and hip pain and provided examination findings. Dr. Winklemann noted 

appellant’s complaints of persistent left greater trochanteric bursa distribution pain and lower back 

pain. Neither physician noted any specific dates of disability. Thus, these reports from

Drs. Summers and Winklemann are insufficient to support appellant’s claim for wage-loss 

compensation for June 23, 2016 and continuing.14

Dr. Chmell, in a December 28, 2016 report, diagnosed lumbar sprain, right torn medial 

meniscus, left hip traumatic arthritis, L4-5 and L5-S1 disc herniations with radiculopathy, and 

coccydynia. However, his opinion was based on diagnoses not accepted by OWCP as part of this 

claim. Dr. Chmell attributed the diagnosed conditions to the accepted February 13, 2014

employment injury, but no supporting rationale was provided as to how or why the additional 

diagnoses were related to the accepted employment injury. A medical opinion should reflect a 

correct history and offer a medically sound explanation by the physician of how the specific 

employment incident physiologically caused or aggravated the diagnosed conditions.15 The Board 

therefore finds that Dr. Chmell’s opinion is of limited probative value on the issue of whether 

appellant’s disability on and after June 23, 2016 is causally related to her February 13, 2014 work 

injury.16 

It is appellant’s burden of proof to establish that she was disabled from work during the 

claimed periods due to her accepted conditions. The record does not contain rationalized medical 

opinion evidence, based on a complete factual and medical background, supporting causal 

relationship between the accepted February 13, 2014 conditions and disability for the periods 

May 17, 2014 to March 29, 2015; May 16 to September 18, 2015; and June 23, 2016 and 

continuing.17 The Board therefore finds that the evidence of record is insufficient to meet 

appellant’s burden of proof.

 

13 See S.H., Docket No. 17-1447 (issued January 11, 2018).

14 Id.

15 See J.M., Docket No. 17-1002 (issued August 22, 2017).

16 Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

17 C.S., Docket No. 08-2218 (issued August 7, 2009); see also R.M., Docket No. 16-0807 (issued August 26, 2016).
7

As appellant failed to submit such rationalized evidence, she has failed to establish her 

claim for wage-loss compensation for the periods May 17, 2014 to March 29, 2015, from May 16 

to September 18, 2015, and from June 23, 2016 and continuing.

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

for the periods May 17, 2014 to March 29, 2015; May 16 to September 18, 2015; and June 23, 

2016 and continuing causally related to her February 13, 2014 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the April 21, 2017 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: December 19, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board