United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.T., Appellant

and

U.S. POSTAL SERVICE, TAMPA 

PROCESSING & DISTRIBUTION CENTER, 

Tampa, FL, Employer

__________________________________________

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Docket No. 19-0410

Issued: August 13, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 18, 2018 appellant, through counsel, filed a timely appeal from a

November 14, 2018 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 following the November 14, 2018 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 

additional evidence for the first time on appeal. Id.
2

ISSUE

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

periods March 7 through 21, April 28 through May 12, and May 13 through June 9, 2017, causally 

related to her accepted October 31, 2016 employment injuries.

FACTUAL HISTORY

On October 31, 2016 appellant, then a 50-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on that date a machine door struck her on the side of her 

face while in the performance of duty. Her attending physician, Dr. Kathleen Jenkins, Boardcertified in occupational medicine, found that she was totally disabled from work for the period 

November 1 through 8, 2016. Dr. Jenkins released appellant to return to light-duty work on 

November 9, 2016 with a lifting restriction of 15 pounds.

On January 4, 2017 OWCP accepted appellant’s claim for head contusion, benign 

paroxysmal vertigo, and cervical spine sprain. On January 19, 2017 Dr. Jenkins released appellant 

to return to full-duty work. On February 17, 2017 appellant accepted a light-duty position with 

restrictions of kneeling, bending, and stooping for 4 hours, twisting, pulling, pushing, and simple 

grasping from 10 to 15 pounds 8 hours a day, and fine manipulation up to 15 pounds 8 hours a 

day.

On March 2, 2017 Dr. Jenkins examined appellant due to headache and neck strain. She

reported that appellant had returned to work and had experienced neck spasms, headaches, and 

dizziness after working 12-hour shifts 5 to 6 days a week. Dr. Jenkins found increased muscle 

spasms on the right side with intermittent headaches. She also found spasms in the left flank and 

lower back. Dr. Jenkins restricted appellant to lifting and carrying no more than 10 pounds 

beginning March 2, 2017. In a note dated March 7, 2017, Dr. Joanna Ramirez, a Board-certified 

internist, reported that appellant was experiencing acute right-sided low back pain. She found that 

appellant was totally disabled from work through March 21, 2017.

On March 23, 2017 Dr. Jenkins noted appellant’s history of injury and removal from work 

for two weeks due to lower back pain. She reported that appellant had returned to light-duty work, 

but still experienced slight spasms in her neck. Dr. Jenkins opined that the cause of appellant’s 

problems was related to work activities.

On April 5, 2017 appellant underwent a cervical magnetic resonance imaging (MRI) scan 

which demonstrated disc herniations at C3-4, C4-5, C5-6, and C6-7 with diffuse canal stenosis and 

moderate bilateral foraminal stenosis at the C6 nerve roots.

On April 17, 2017 appellant filed a claim for compensation (Form CA-7) for leave without 

pay (LWOP) for the period March 4 through 27, 2017. The employing establishment indicated 

that appellant used LWOP from March 7 through 21, 2017.

In an April 25, 2017 development letter, OWCP informed appellant that it had not received 

evidence to support her claimed wage-loss for the period March 4 through 27, 2017. It advised 

her of the type of evidence needed to establish her disability claim and afforded her 30 days to 

submit the necessary evidence.
3

On April 17, 2017 Dr. Jenkins completed a duty status report (Form CA-17) and opined 

that appellant had a lifting restriction of 10 pounds due to multiple level cervical disc herniations 

and radiculopathy. In an April 17, 2017 note, she described appellant’s history of injury and 

diagnosed contusion of the head, benign paroxysmal vertigo, cervical sprain, and cervical disc 

disorder with radiculopathy. Dr. Jenkins attributed these conditions to appellant’s work activities 

and found that she should perform restricted duty. On April 25, 2017 appellant accepted a lightduty job within Dr. Jenkins’ lifting restrictions.

On April 28, 2017 Dr. Jenkins completed a Form CA-17 and opined that appellant was 

totally disabled due to cervical herniated discs. She noted that appellant was injured on 

October 31, 2016 when she was hit in the face with a door.

On May 12, 2017 appellant filed a Form CA-7 and requested LWOP from April 28 through 

May 12, 2017. In a May 22, 2017 development letter, OWCP informed her that it had not received 

evidence to support her claimed wage loss for the period April 28 through May 12, 2017. It 

advised appellant of the type of evidence needed to establish her disability claim and afforded her 

30 days to submit the necessary evidence.

In an April 28, 2017 note, Dr. Jenkins provided a history of injury and repeated her 

diagnoses. She attributed appellant’s conditions to her employment. Dr. Jenkins found that 

appellant was totally disabled and noted that appellant felt that her condition was worsening.

On June 20, 2017 appellant filed a Form CA-7 requesting LWOP from May 13 through 

June 9, 2017.4 In a June 28, 2017 development letter, OWCP informed her that it had not received 

evidence to support her claimed wage loss for the period May 13 through June 9, 2017. It advised 

appellant of the type of evidence needed to establish her disability claim and afforded her 30 days 

to submit the necessary evidence. 

On June 23, 2017 Dr. Jenkins completed a Form CA-17 and indicated that appellant could 

return to work on that date lifting and carrying no more than five pounds. She provided a treatment 

note of the same date finding that appellant’s neurological examination, sensation, and reflexes 

were normal. Dr. Jenkins found that appellant had improved since she stopped work with fewer

muscle spasms. She repeated her diagnoses of head contusion, benign paroxysmal vertigo, 

cervical sprain, and cervical disc disorder with radiculopathy. Dr. Jenkins concluded that 

appellant’s conditions were work related and released her to return to restricted duty on 

June 23, 2017.

By decision dated August 10, 2017, OWCP denied appellant’s claim for wage-loss 

compensation for the period March 7 through 21, 2017. It found that no medical evidence was 

received to establish that her claim was causally related to the accepted work-related medical 

conditions.

By decision dated August 11, 2017, OWCP denied appellant’s claim for wage-loss 

compensation for the period April 28 through May 12, 2017, finding that no medical evidence was 

 

4 The Board notes that appellant subsequently filed Form CA-7s requesting wage-loss compensation for the period 

January 16 through September 30, 2017 and April 28, 2018 and continuing. These periods of claimed disability, 

however, are not presently before the Board.
4

received to establish that her claim was causally related to the accepted work-related medical 

conditions.

On August 25, 2017 appellant requested a review of the written record from OWCP’s 

Branch of Hearings and Review of the August 10 and 11, 2017 OWCP decisions.

By decision dated August 28, 2017, OWCP denied appellant’s claim for LWOP for the 

period May 13 through June 9, 2017. It found no medical evidence was received to support that 

her claim for LWOP was causally related to the accepted work-related medical conditions. 

OWCP subsequently received an August 17, 2017 Form CA-17 from Dr. Mark A. Seldes, 

a Board-certified family practitioner, who found that appellant could perform light-duty work on 

August 18, 2018 lifting no more than two pounds. Dr. Seldes diagnosed cervical disc injury with 

radiculopathy secondary to trauma.

On September 4, 2017 appellant accepted a light-duty mail processing clerk position at the 

employing establishment.

In a report dated September 27, 2017, Dr. Seldes examined appellant due to her cervical 

spine and head contusions. He diagnosed contusion of the right side of the face and head, benign 

paroxysmal vertigo, cervical sprain, herniated cervical disc with radiculopathy, and cervical spinal 

stenosis at C3-4, C4-5, C5-6, and C6-7.

In an October 16, 2017 development letter, OWCP noted that appellant had requested that 

her claim be expanded to include additional conditions. It requested supporting medical evidence 

and afforded her 30 days for a response.

In a November 6, 2017 note, Dr. Seldes described appellant’s history of injury, initial 

medical treatment, and diagnoses. He explained that when she was struck by the machine door, 

she was hit on the right side of her face causing her head to quickly move to the left and flex back 

which caused significant pressure and injury to her cervical spine. Dr. Seldes opined that the 

injuries to appellant’s cervical spine including cervical radiculopathy, cervical spine stenosis, and 

right carpal tunnel syndrome were caused by the machine door striking her face and eye moving 

her neck quickly laterally on October 31, 2016. In a December 14, 2017 report, he examined her

due to increased neck pain after working 60 hours a week. Dr. Seldes recommended that appellant 

work only 40 hours a week.

By decision dated January 11, 2018, OWCP’s hearing representative found that appellant 

had not met her burden of proof to establish wage loss for the periods March 7 through 21, 2017 

and April 28 through May 12, 2017. She found that appellant had not submitted probative medical 

evidence based on specific examination findings which clearly concluded that she was disabled 

for the claimed periods as a result of her work-related injuries.

In a note dated January 2, 2018, Dr. Theodore P. Vlahos, a Board-certified orthopedic 

surgeon, described appellant’s history of injury on October 31, 2016. He found that as a result of 

this injury she sustained chronic unresolved cervical strain/sprain with disc herniations C3-4, C4-

5, C5-6 and C6-7 resulting in cervical radiculitis. Dr. Vlahos found that the mechanism of the 

blow to the head was consistent with the formation of disc herniations or the activation of disc 

herniations, making previously asymptomatic degenerative conditions into symptomatic 

herniations. 
5

On February 12, 2018 OWCP expanded acceptance of appellant’s claim to include cervical 

disc disorder with radiculopathy at C3-4, C4-5, C5-6, and C6-7.

In a February 12, 2018 note, Dr. Seldes found that appellant could continue to work full

time with restrictions. On February 28, 2018 he again found that she could continue to work full

time with restrictions.

On March 22, 2018 appellant requested reconsideration of the August 10, 11, and 28, 2017 

OWCP decisions denying wage-loss compensation. She provided Dr. Seldes’ February 12 and 28, 

2018 Form CA-17s which included restrictions for lifting and for using the left arm only to reach 

above the shoulder up to three hours a day. Dr. Seldes noted that appellant could not work 

overtime.

In a March 28, 2018 note, Dr. Seldes reported that appellant was working six days a week 

and requested to be limited to five days a week. He limited her work to eight hours a day, five 

days a week.

On May 1, 2018 Dr. Robert C. Nucci, a Board-certified orthopedic surgeon, examined 

appellant and recommended cervical endoscopic discectomy. On May 8, 2018 he opined that she

was totally disabled until after her surgery. On May 30, 3018 Dr. Nucci performed a percutaneous 

anterior cervical discectomy at C5-6.

By decision dated June 21, 2018, OWCP denied modification of its August 10, 11, and 28, 

2017 decisions. It found that there was no medical evidence received to support that appellant’s

claim for LWOP was causally related to the accepted work-related medical conditions.

On August 17, 2018 appellant requested reconsideration of the June 21, 2018 OWCP 

decision. In support of this request, she contended that she was totally disabled from March 7 

through 31, 2017 based on Dr. Ramirez’s findings. Appellant alleged that Dr. Jenkins found that 

she was totally disabled from April 28 through June 23, 2017. She also contended that Dr. Seldes 

supported her disability for work from August 17 through November 17, 2017. Appellant 

resubmitted Dr. Ramirez’ March 7, 2017 note, Dr. Jenkins’ April 28 and October 30, 2017 notes

as well as her April 28, 2017 Form CA-17, and Dr. Seldes’ August 17, 2017 Form CA-17.

On September 6, 2018 Dr. Nucci released appellant to light-duty work on 

September 10, 2018. Appellant reported to work and the employing establishment had no work 

available for her within her restrictions. On September 19, 2018 she accepted a light-duty position 

at the employing establishment.

By decision dated November 14, 2018, OWCP denied modification of its June 21, 2018 

decision.
6

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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.6

Under FECA, the term disability means “the incapacity, because of an employment injury, 

to earn the wages the employee was receiving at the time of injury.”

7

 The question of whether an 

employee is disabled from work is an issue that must be resolved by competent medical evidence.8 

The employee is responsible for providing sufficient medical evidence to justify payment of any 

compensation sought.9

For each period of disability claimed, the employee has the burden of proof to establish 

that he or she was disabled from work as a result of the accepted employment injury.10 The Board 

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

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

would essentially allow an employee to self-certify his or her disability and entitlement to 

compensation.11

ANALYSIS

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

the periods March 7 through 21, April 28 through May 12, and May 13 through June 9, 2017, 

causally related to her accepted October 31, 2016 employment injuries. 

On March 2, 2017 Dr. Jenkins determined that appellant could perform restricted duty of

lifting and carrying to 10 pounds. On March 7, 2017 Dr. Ramirez reported that appellant was 

experiencing acute right-sided low back pain. She found that appellant was totally disabled 

through March 21, 2017. On March 23, 2017 Dr. Jenkins noted appellant’s history of injury and 

removal from work for two weeks due to lower back pain. These reports did not attribute 

appellant’s disability for work to her accepted injuries. Instead, Drs. Jenkins and Ramirez 

indicated that appellant was disabled beginning March 7, 2017 due to low back pain. The Board 

has held that the mere diagnosis of “pain” does not constitute the basis for payment of 

 

5 Supra note 2.

6 See C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton,

40 ECAB 1143 (1989).

7 20 C.F.R. § 10.5(f).

8 S.A., Docket No. 18-0399 (issued October 16, 2018); see also R.C., 59 ECAB 546, 551 (2008).

9

Id.; see T.A., Docket No. 18-0431 (issued November 7, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005).

10 See S.M., Docket No. 17-1557 (issued September 4, 2018); William A. Archer, 55 ECAB 674, 679 (2004); 

Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

11 T.L., Docket No. 18-0934 (issued May 8, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).
7

compensation.12 Furthermore, the Board has held that a medical report is of no probative value if 

it does not provide a firm diagnosis of a particular medical condition or offer a specific opinion as 

to whether the accepted employment incident caused or aggravated the claimed condition.13 These 

notes do not provide a firm diagnosis or an opinion on the causal relationship between appellant’s 

accepted injuries and her disability from work. Thus these notes are insufficient to establish 

appellant’s claim for disability due to LWOP from March 4 through 27, 2017.

On April 28, 2017 Dr. Jenkins found that appellant was totally disabled due to cervical 

herniated discs. She noted that appellant was hit in the face with a door and attributed appellant’s 

current condition to her accepted employment injuries. Dr. Jenkins noted that appellant felt that 

her condition was worsening. When a physician’s statements regarding an employee’s ability to 

work consist only of recitation of the employee’s complaints that he or she was in too much pain 

to work, without objective findings of disability being shown, the physician has not presented a 

medical opinion on the issue of disability.14 A mere conclusion without the necessary rationale is 

insufficient to meet a claimant’s burden of proof.15 Without medical rationale supporting 

disability, Dr. Jenkins’ notes are insufficient to meet appellant’s burden of proof.16 Her reports, 

therefore, do not establish that appellant was disabled from work during the claimed period due to 

her accepted cervical conditions.

In support of her March 22, 2018 request for reconsideration, appellant provided

Dr. Seldes’ February 12 and 28, 2018 Form CA-17s which included restrictions for lifting and for 

using the left arm only to reach above the shoulder up to three hours a day. However, these reports 

are of limited probative value in addressing appellant’s claimed period of disability from March 7 

through June 9, 2017 as they occur after the alleged period and do not specifically address or 

attribute the period of claimed disability to the accepted conditions.17 Evidence that does not 

address appellant’s accepted conditions and dates of disability is insufficient to establish her 

claim.18

None of the other medical evidence of record addresses appellant’s claimed period of 

intermittent total disability for work from March 7 through June 9, 2017.

As the medical evidence of record is insufficient to establish that appellant was disabled 

from work for the period March 7 through June 9, 2017 due to her accepted cervical conditions, 

the Board finds that appellant has not met her burden of proof. 

 

12 T.G., Docket No. 18-1064 (issued April 26, 2019); Robert Broome, 55 ECAB 339 (2004).

13 C.R., supra note 6; J.M., Docket No. 16-0306 (issued May 5, 2016).

14 B.F., Docket No. 19-0123 (issued May 13, 2019); P.D., Docket No. 14-0744 (issued August 6, 2014); G.T., 59 

ECAB 447 (2008).

15 B.F., id.; E.L., Docket No. 17-1632 (issued January 3, 2018).

16 B.F., supra note 14; S.H., Docket No. l8-1398 (issued March 12, 2019).

17 R.G., Docket No. 18-0027 (issued May 13, 2019).

18 T.L., Docket No. 18-0934 (issued May 8, 2019).
8

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 disability for 

the periods March 7 through 21, April 28 through May 12, and May 13 through June 9, 2017, 

causally related to her accepted October 31, 2016 employment injuries.

ORDER

IT IS HEREBY ORDERED THAT the November 14, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 13, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board