United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Mobile, AL, Employer

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Docket No. 17-0748

Issued: July 20, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 16, 2017 appellant filed a timely appeal from a November 22, 2016 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.2

ISSUE

The issue is whether appellant has met his burden of proof to establish that he was disabled 

for the period September 8 through October 4, 2016 due to his accepted December 1, 2014 

employment injury. 

 

1 5 U.S.C. § 8101 et seq.

2 Appellant submitted additional evidence with his appeal to the Board. The Board’s jurisdiction is limited to the 

review of evidence which was before OWCP at the time of its merit decision. Therefore, the Board is precluded from 

reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1); P.W. Docket No. 12-1262 

(issued December 5, 2012).
2

FACTUAL HISTORY

On December 5, 2014 appellant, then a 44-year-old sales and services distribution 

associate, filed a traumatic injury claim (Form CA-1) alleging that on December 1, 2014, he was 

lifting something out of a cardboard box and strained his lower back while in the performance of 

duty. J.G., a customer supervisor, submitted a statement indicating that he saw appellant walking 

and picking up items without complaints on the date of the claimed injury. Based on the statement, 

the employing establishment controverted the claim and also noted that he had a negative sick 

leave balance and zero annual balance. Appellant stopped work on December 2, 2014 and returned 

on December 5, 2014. 

Dr. Andre J. Fontana, a Board-certified orthopedic surgeon, initially treated appellant. In 

a January 12, 2015 report, he noted that he saw appellant on December 4, 11, 29, 30, and 31, 2014

and January 6, 8, 9, 12, and 20, 2015. Dr. Fontana advised that appellant sustained a back injury 

on December 1, 2014 after lifting something out of a box. He examined appellant and noted that 

x-rays were taken which revealed a degenerative disc of the lumbar spine. Dr. Fontana diagnosed 

degenerative disc of the lumbar spine, lumbar pain, as well as lumbar strain. He opined that it was 

his professional medical opinion that appellant suffered a work-related injury on December 1, 

2014 after lifting something out of a box. 

On February 10, 2015 OWCP accepted the claim for sprain of the back, lumbar region. By 

decision dated August 19, 2015, it expanded the acceptance of the claim to include aggravation of 

preexisting lumbar degenerative disc disease.3 

On June 14, 2016 appellant was sent for a second opinion examination with Dr. John 

McMillin, a Board certified orthopedic surgeon, to determine appellant’s current disability status 

and ability to work. Dr. McMillin noted appellant’s history of injury and treatment and reviewed 

the SOAF. He examined appellant, provided his findings, and diagnosed degenerative disc disease 

of the lumbar spine, lumbar radiculitis/radiculopathy, hypertension, and obesity. Dr. McMillin 

determined that the accepted lumbar strain had resolved. However, the work aggravation of 

degenerative disc disease had not returned to baseline, as appellant had increased back pain and 

left lower extremity pain with an increase in activity level, lifting, or prolonged sitting or standing. 

Dr. McMillin based this finding on a functional capacity evaluation. He indicated that the primary 

objective findings were electrodiagnostic testing which confirmed appellant’s radicular 

complaints, which he believed were related to the accepted work aggravation of a preexisting 

lumbar degenerative spine. Dr. McMillin explained that the rapid onset of symptoms after the 

injury would favor a causal relationship rather than a natural progression of the preexisting lumbar 

condition. He acknowledged that appellant had continual pain after 18 months which represented 

a permanent condition. Dr. McMillin opined that appellant was capable of performing his job as 

 

3

In June 18, 2015 and March 9, 2016 statement of accepted facts (SOAF), OWCP noted that appellant’s preexisting 

or concurrent medical conditions included: degenerative disc disease of the lumbar spine; hypertension; sleep apnea;

Graves’ disease; and keratosis, lumbar radiculopathy. It noted that he stopped work on January 16, 2015 and returned 

to work on April 17, 2015 in a light-duty capacity. OWCP noted that, as a sales/service distribution associate, 

appellant was responsible for lifting/carrying 10 pounds three hours per day, sitting five hours per day, standing three 

hours per day, and walking two hours per day. In a July 22, 2016 decision, it denied his claim for disability 

compensation for the period June 7 to 8, 2016.
3

a sales/distribution associate with the listed description and added that he could reasonably lift up 

to 25 pounds floor to waist, if infrequent, and 25 pounds from waist to eye level. He indicated the 

limitations or restrictions resulted from the accepted aggravation of lumbar degenerative disease 

and nonconcurrent nonwork-related conditions. Dr. McMillin explained that there was no 

documentation to show an inability of appellant to perform his preinjury job. 

By letter dated August 30. 2016, OWCP provided Dr. Fontana with a copy of

Dr. McMillin’s report and requested his opinion with regard to whether he concurred with the 

work restrictions. 

In a report dated August 22, 2016, Dr. Fontana advised that appellant was seen for follow 

up on his lumbar spine as he stated that he was still having pain, “about 6/10.” He examined 

appellant and noted that appellant had forward flexion of 25 degrees, extension of 5 degrees and 

neurovascularly had no change. Dr. Fontana diagnosed lumbar radiculopathy and recommended 

therapy, three times a week for the next two weeks. He also provided return to work restrictions, 

which included sitting five hours; walking two hours; standing two hours; reaching two hours; no 

bending or pushing; no pulling; no lifting more than three hours; no squatting, kneeling, climbing;

and no lifting more than 10 pounds.

In a September 6, 2016 duty status report (Form CA-17), Dr. Fontana4 diagnosed lumbar 

radiculopathy. He also noted a bulging disc at L2-3 and L3-4. Dr. Fontana placed appellant off 

work for two weeks and provided restrictions of no lifting for more than three hours or more than 

10 pounds. 

In a September 21, 2016 report, Dr. Fontana diagnosed lumbar radiculopathy as the workrelated injury. He prescribed light-duty work commencing September 26, 2016 and provided

restrictions including sitting five hours; walking two hours; standing two hours; reaching two

hours; no bending or pushing; no pulling; no lifting more than three hours; no squatting, kneeling, 

climbing; and no lifting more than 25 pounds. OWCP received an additional copy of the report 

on November 11, 2016 and the light-duty work date was filled in as October 5, 2016. 

In an October 4, 2016 report, Dr. Fontana opined that appellant was off work for treatment 

of his lumbar back. He advised that appellant was unable to work as he could not do any bending, 

lifting, or squatting. Dr. Fontana noted that appellant was presently attempting a regimen physical 

therapy with some improvement and opined that appellant might be able to return to work on 

October 5, 2016 per his previous light-duty status. 

On October 6, 2016 appellant submitted a Form CA-7 requesting wage-loss compensation 

for leave without pay for disability for the period September 8 through October 4, 2016. He filled 

in “off work per doctor’s orders.” 

By development letter dated October 17, 2016, OWCP informed appellant of the type of 

evidence needed to support his disability claim for the period September 8 through 

October 4, 2016. It explained that additional evidence was needed to establish disability for work 

during the entire period claimed. OWCP explained that appellant’s physician merely advised that 

 

4 The signature is unclear; however, it appears to be from Dr. Fontana.
4

appellant was unable to work due to treatment of his lumbar back and he was attempting physical 

therapy. It explained that this explanation was insufficient to establish total disability from work. 

OWCP further explained to appellant the additional evidence that was required and afforded him 

an additional 30 days to submit such evidence. 

In an October 21, 2016 duty status report and treatment note, Dr. Fontana diagnosed 

lumbar radiculopathy.5 He noted that appellant was able to perform light-duty work. In the duty 

status report, Dr. Fontana added no lifting more than three hours or more than 10 pounds. 

On October 31, 2016 Dr. Fontana provided a September 6, 2016 response to OWCP’s 

August 30, 2016 letter requesting an opinion regarding the findings of the second opinion 

physician, Dr. McMillin. He also checked the space provided that he concurred with the findings 

of Dr. McMillin. However, Dr. Fontana also circled the space provided on the letter that he did 

not concur with his findings. On that same date, OWCP received a September 6, 2016 report in 

which Dr. Fontana noted that he had reviewed Dr. McMillin’s report and findings advising of the 

type of work appellant could perform. Dr. Fontana indicated that he agreed with the report. 

In an October 28, 2016 report, Dr. Fontana advised that appellant had lumbar radiculopathy 

and a history of a work-related injury. He explained that appellant was under medical care between 

September 6 and October 24, 2016 for a lumbar injury and could not work due to being treated for 

the lumbar injury. 

By decision dated November 22, 2016, OWCP denied appellant’s claim for compensation 

for the period September 8 through October 4, 2016. It advised him that the medical evidence 

submitted did not establish disability for the claimed period. 

LEGAL PRECEDENT

The term disability as used in FECA6 means the incapacity because of an employment 

injury to earn the wages that the employee was receiving at the time of injury.7 Whether a 

particular injury caused an employee disability for employment is a medical issue which must be 

resolved by competent medical evidence.8 When the medical evidence establishes that the 

residuals of an employment injury are such that, from a medical standpoint, they prevent the 

employee from continuing in the employment held when injured, the employee is entitled to 

compensation for any loss of wage-earning capacity resulting from such incapacity.9 The Board 

will not require OWCP to pay compensation for disability in the absence of any medical evidence 

directly addressing the specific dates of disability for which compensation is claimed. To do so 

 

5 Dr. Fontana also provided an impairment rating of eight percent to the person as a whole. 

6 Supra note 1; 20 C.F.R. § 10.5(f).

7 Paul E. Thams, 56 ECAB 503 (2005).

8 W.D., Docket No. 09-0658 (issued October 22, 2009); id.

9

Id.
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would essentially allow employee’s to self-certify their disability and entitlement to 

compensation.10

The term disability as used in FECA11 means the incapacity because of an employment 

injury to earn the wages that the employee was receiving at the time of injury.12 Whether a 

particular injury caused an employee disability for employment is a medical issue which must be 

resolved by competent medical evidence.13 When the medical evidence establishes that the 

residuals of an employment injury are such that, from a medical standpoint, they prevent the 

employee from continuing in the employment held when injured, the employee is entitled to 

compensation for any loss of wage-earning capacity resulting from such incapacity.14 The Board 

will not require OWCP to pay compensation for disability in the absence of any medical evidence 

directly addressing the specific dates of disability for which compensation is claimed. To do so 

would essentially allow employee’s to self-certify their disability and entitlement to 

compensation.15

Generally, findings on examination are needed to justify a physician’s opinion that an 

employee is disabled for work.16 The Board has held that, when a physician’s statements regarding 

an employee’s ability to work consists only of a repetition of the employee’s complaints that he 

hurt too much to work, without objective signs of disability being shown, the physician has not 

presented a medical opinion on the issue of disability or a basis for payment of compensation.17 

The Board has held that a medical opinion not fortified by medical rationale is of little probative 

value.

18

Certain healthcare providers such as physician assistants, nurse practitioners, physical 

therapists, and social workers are not considered “physician[s]” as defined under FECA.19 

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing 

entitlement to FECA benefits.20

 

10 William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

11 Supra note 6. 

12 Supra note 7.

13 Supra note 8. 

14 Id.

15 Supra note 10.

16 See Dean E. Pierce, 40 ECAB 1249 (1989); Paul D. Weiss, 36 ECAB 720 (1985). 

17 John L. Clark, 32 ECAB 1618 (1981). 

18 See D.Q., Docket No. 17-1220 (issued May 18, 2018); George Randolph Taylor, 6 ECAB 986, 988 (1954).

19 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

20 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
6

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish that he was 

disabled for the period September 8 through October 4, 2016 due to his accepted December 1, 

2014 employment injury. 

OWCP accepted the claim for sprain of the back, lumbar region, and later expanded the 

acceptance of the claim to include aggravation of preexisting lumbar degenerative disc disease.

In support of his claim for disability for the period September 8 through October 4, 2016, 

appellant provided several reports from his treating physician, Dr. Fontana. Dr. Fontana provided 

appellant’s initial medical treatment and he authored reports dated December 4, 11, 29, 30, and 

31, 2014 and January 6, 8, 9, 12, and 20, 2015. These notes advised that appellant sustained a 

back injury on December 1, 2014 after lifting something out of a box, but provided no opinion as 

to whether he was disabled from work or the cause of any such disability. These reports are thus 

of no probative value on the issue of disability for the claimed period.21

In an October 4, 2016 report, Dr. Fontana opined that appellant was off work for treatment 

of his lumbar back and was unable to work as he could not do any bending, lifting, or squatting. 

He noted that appellant was presently attempting physical therapy with some improvement and 

opined that appellant might be able to return to work on October 5, 2016 per his previous lightduty status. In his subsequent reports Dr. Fontana noted that appellant was able to return to work

with restrictions. The Board finds that, although Dr. Fontana restricted appellant from work, his 

reports do not provide any specific findings on examination or medical reasoning to support his 

opinion that appellant was disabled from work for the claimed period resulting from the 

December 1, 2014 employment injury. As Dr. Fontana 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 September 8 through October 4, 2016.22 A medical report must include rationale 

explaining how the physician reached his conclusion regarding disability.23 As these reports lack 

the requisite medical rationale, they are insufficient to meet appellant’s burden of proof.

Appellant was examined by a second opinion physician, Dr. McMillin, on June 14, 2016,

to determine appellant’s status and ability to work. Dr. McMillin acknowledged that appellant had 

continual pain after 18 months which represented a permanent condition. However, he determined 

that appellant was capable of performing his job as a sales/distribution associate with the listed 

description and added that appellant could reasonably lift up to 25 pounds from the floor to waist

level, if infrequent and 25 pounds from waist to eye level. Dr. McMillin indicated that he believed 

any of the limitations or restrictions resulted from the accepted aggravation of lumbar degenerative 

disease and nonconcurrent, nonwork-related conditions. He explained that there was no 

documentation to show an inability to perform his job prior to the work injury. As Dr. McMillin 

 

21 See A.C., Docket No. 17-1296 (issued February 15, 2018).

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

23 J.I., Docket No. 17-0485 (issued June 22, 2017).
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provided an opinion that appellant was not disabled from work due to his accepted employment 

injury, his report is insufficient to establish appellant’s claim.

Following the receipt of Dr. McMillin’s report, on August 30, 2016, OWCP requested

Dr. Fontana’s opinion with regard to appellant’s ability to work in light of the opinion of

Dr. McMillin. On October 31, 2016 Dr. Fontana provided a September 6, 2016 response. He 

provided conflicting responses as he circled that he did not concur with his findings, but also added 

a checkmark next to the statement that he concurred with the findings of Dr. McMillin regarding 

disability. On that same date, OWCP received a September 6, 2016 report in which Dr. Fontana 

noted that he had reviewed Dr. McMillin’s report and findings advising the type of work appellant 

could perform. Dr. Fontana indicated that he agreed with the report. As these reports both provide 

opinions that appellant was not disabled from work due to his accepted work injury, these reports 

are insufficient to establish appellant’s claim.

Appellant also submitted a September 6, 2016 duty status report from Dr. Fontana in which 

lumbar radiculopathy was diagnosed. Dr. Fontana noted the radiculopathy due to a bulging disc 

at L2-3 and L3-4 and placed appellant off work for two weeks. The Board notes that bulging discs 

at L2-3 and L3-4 were not accepted by OWCP. Where an employee claims disability from a 

condition that was not accepted or approved by OWCP due to an employment injury, he or she 

bears the burden of proof to establish that the condition is causally related to the employment 

injury.24 Herein, appellant has provided no rationalized medical opinion evidence to support that 

he sustained bulging discs at L2-3 and L3-4 due to his accepted December 1, 2014 employment 

injury.

Other reports submitted by appellant, did not address whether his accepted condition 

caused disability on September 8 through October 4, 2016. Although he alleged that he was 

disabled for the period September 8 through October 4, 2016, due to his accepted employment 

injury, the medical evidence of record does not establish that his claimed disability or the period 

September 8 through October 4, 2016, was causally related to his accepted employment injury, 

and thus, he has not met his burden of proof.

For each period of disability claimed, an employee must establish that he or she was 

disabled from work as a result of the accepted employment injury. The Board will not require 

OWCP to pay compensation for disability without sufficient medical evidence to support the 

claim. To do so would essentially allow an employee to self-certify his or her disability and 

entitlement to compensation.25

On appeal, appellant argues that it was during rehabilitation due to a setback in his lower 

back that his physician provided documentation that he could not work. He also explained that 

the employing establishment advised that there was no work, even light duty. Appellant argues

that his claim was denied because he could not do light duty. However, as found above the medical 

 

24 Jaja K. Asaramo, 55 ECAB 200 (2004).

25 See C.Y., Docket No. 17-0605 (issued January 11, 2018).
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evidence of record does not establish that his claimed disability for the period September 8 through 

October 4, 2016, was causally related to his accepted employment injury.

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 that he was disabled for the period 

September 8 through October 4, 2016 due to his accepted December 1, 2014 employment injury. 

ORDER

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

Workers’ Compensation Programs is affirmed.

Issued: July 20, 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