United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Rockford, IL, Employer 

__________________________________________ 

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Docket No. 16-0343 

Issued: September 19, 2017 

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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On December 16, 2015 appellant filed a timely appeal from a November 3, 2015 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 established entitlement to wage-loss compensation for the 

disability commencing September 5, 2015 due to a January 10, 2002 employment injury. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated April 14, 

2016, the Board denied the request, finding that the arguments on appeal could adequately be addressed based on the 

case record. Order Denying Request for Oral Argument, Docket No. 16-0343 (issued April 14, 2016). The Board’s 

Rules of Procedure provide that any appeal in which a request for oral argument is not granted by the Board will 

proceed to a decision based on the case record and any pleadings submitted. 20 C.F.R. § 501.5(b). 
2

On appeal appellant asserts that he is entitled to disability compensation because he hurts 

too much to work. 

FACTUAL HISTORY 

OWCP accepted that appellant, a letter carrier, sustained an annular tear at L5-S1 on 

January 10, 2002 when he slipped and fell on ice while delivering mail. Appellant returned to 

modified letter carrier duties in February 2002. By decision dated December 23, 2003, OWCP 

determined that his actual earnings as a modified letter carrier fairly and reasonably represented 

his wage-earning capacity with zero loss. 

Appellant missed work intermittently and received wage-loss compensation benefits. 

OWCP expanded the claim to include closed dislocation of lumbar vertebra, thoracic or 

lumbosacral neuritis or radiculitis, not otherwise specified, degeneration of lumbar or 

lumbosacral disc, and postherpetic polyneuropathy. Appellant had authorized back surgeries in 

August 2010 and August 2012. After each procedure he returned to modified duties. In 

December 2013 appellant had left femoral nerve decompression surgery not authorized by 

OWCP. 

Appellant related that, in 2014, he was hired as a supervisor of customer service and no 

longer performed modified letter carrier duties. He then moved from Illinois to Florida, where 

he accepted a similar customer service supervisor position. 

In March 2015 appellant transferred his medical care to Dr. Keith B. Banton, Boardcertified in family medicine. 

On September 21, 2015 appellant filed claims for compensation (Form CA-7s) for wage 

loss from May 15 to September 4, 2015.3

 On September 22, 2015 he filed a Form CA-7 for 

wage loss from September 5 to 18, 2015. By letter dated September 22, 2015, OWCP informed 

appellant of the evidence needed to support a recurrence of disability claim. 

In an undated statement, appellant related that he began work as a supervisor of customer 

service in Florida in March 2015, but was made to work as a craft employee delivering mail, 

unloading trucks, and scanning and throwing heavy packages. He indicated that his radiating 

lower back pain then became more severe. The record does not indicate that appellant returned 

to work. 

Medical evidence submitted included a May 7, 2015 report in which Dr. Banton noted 

appellant’s complaint of low back pain with bilateral leg numbness. Dr. Banton provided 

examination findings and noted that appellant would follow-up in one month. On July 9, 2015 

he noted that appellant was seen for complaints of congestion, headache, and productive cough. 

Dr. Banton described examination findings and noted active problems of backache, pain 

involving the lower leg, spondylosis without myelopathy, osteoarthrosis, allergic rhinitis, gout, 

 3

 The Board notes that the record contains a Form CA-7 submitted by appellant on September 21, 2015 claiming 

wage-loss compensation from May 15 to September 4, 2015. OWCP did not adjudicate that period of disability in 

the decision before the Board in the present appeal. The Board’s jurisdiction extends only to the review of final 

decisions by OWCP. 20 C.F.R. § 501.2(c); E.L., 59 ECAB 405 (2008). 
3

tobacco use, obesity, essential hypertension, acute respiratory infection, lumbago, and low back 

pain. 

An August 18, 2015 computerized tomography (CT) scan of the right lower extremity 

demonstrated chondrocalcinosis, no acute fractures, joint effusion, and intact anterior/posterior 

cruciate ligament on limited view. 

William Wright, a physician assistant in Dr. Banton’s office, provided treatment notes 

dated May 20 to September 10, 2015 in which he recorded a history of back injury in 2002 and 

appellant’s complaint of radiating back pain. He described tenderness to examination at L4-5 

and L5-S1. On August 11, 2015 Mr. Wright described appellant’s respiratory complaints and 

right knee pain. On disability slips dated June 17, July 23, and September 10, 2015 he advised 

that appellant had been incapacitated from performing any work since May 15, 2015. 

In an October 9, 2015 report, Dr. Charles Wingo, a Board-certified orthopedic surgeon, 

noted a history that appellant had been off work for four months due to lower back and left 

buttock pain associated with left great toe numbness. He reported that appellant had been injured 

many years previously and had stopped work because the postmaster wanted him to do heavy 

work in addition to his supervisory duties. Dr. Wingo described appellant’s medical and surgical 

history, noting prior spinal surgery at C6-7 and L5-S1. Physical examination demonstrated a 

normal gait and full range of cervical and lumbar mobility. Straight leg raising was positive for a 

root tension sign on the left, with no spasm, mass, or tenderness present in the lumbar or thoracic 

region. Upper and lower sensibility was normal. Dr. Wingo diagnosed lumbar radiculopathy 

and released him to return to work on Monday, October 12, 2015 with no restrictions. 

On October 12, 2015 Dr. Banton noted that appellant was seen for check-up and 

medication refills. He described physical examination findings and diagnosed low back pain, 

essential hypertension, pain in right knee, and obesity. Dr. Banton recommended follow-up in 

one month or as needed. 

In a merit decision dated November 3, 2015, OWCP denied appellant’s claim for 

compensation, finding that he had not established that he was totally disabled September 5 to 

November 3, 2015 due to the January 10, 2002 employment injury. It also noted that the claimed 

factors that occurred in appellant’s new employment in Florida constituted new or different work 

factors and were not due to his 2002 injury. 

LEGAL PRECEDENT 

A wage-earning capacity decision is a determination that a specific amount of earnings, 

either actual earnings or earnings from a selected position, represents a claimant’s ability to earn 

wages. Compensation payments are based on the wage-earning capacity determination and it 

remains undisturbed until properly modified.4 Board precedent and OWCP procedures provide, 

“If a formal loss of wage-earning capacity (LWEC) decision has been issued, and the claim is for 

recurrent disability, it should be processed in accordance with procedures for modifying a formal 

 4 See Sharon C. Clement, 55 EAB 552 (2004). 
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LWEC.”5

 Once the wage-earning capacity of an injured employee is determined, a modification 

of such determination is not warranted unless there is a material change in the nature and extent 

of the injury-related condition, the employee has been retrained or otherwise vocationally 

rehabilitated, or the original determination was, in fact, erroneous. The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.6 

OWCP, however, is not precluded from adjudicating a limited period of employmentrelated disability when a formal wage-earning capacity determination has been issued.7

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

injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus 

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 a federal employment 

injury, but who nevertheless 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 in FECA.8 Furthermore, whether a particular 

injury causes an employee to be disabled from 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.9 

ANALYSIS 

OWCP accepted that a January 10, 2002 employment injury caused an annular tear at L5-

S1, closed dislocation of lumbar vertebra, thoracic or lumbosacral neuritis or radiculitis, not 

otherwise specified, degeneration of lumbar or lumbosacral disc, and postherpetic 

polyneuropathy. By decision dated December 23, 2003, OWCP determined that appellant’s 

actual earnings as a modified letter carrier fairly and reasonably represented his wage-earning 

capacity with zero loss. 

On September 22, 2015 appellant filed a Form CA-7 claim for compensation for the 

period September 5 to September 18, 2015. In adjudicating this claim in its November 3, 2015 

decision, OWCP determined that appellant was not entitled to disability compensation for the 

period commencing September 5, 2015. Thus, in the case at hand, appellant is claiming a limited 

period of disability, and OWCP properly determined that this claim should not be developed as a 

request for modification of wage-earning capacity determination. Rather, appellant has the 

burden of establishing that his disability for the limited period in question was causally related to 

the accepted January 10, 2002 employment injury.10

 5 T.W., Docket No. 12-1162 (issued December 19, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Disallowances, Chapter 2.1400.12 (February 2013). 

6 Sue A. Sedgwick, 45 ECAB 211 (1993). 

7 J.B., Docket No. 15-1817 (issued April 1, 2016); Sandra D. Pruitt, 57 ECAB 126 (2005). 

8 See 20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999). 

9 Fereidoon Kharabi, 52 ECAB 291 (2001). 

10 J.B., supra note 7. 
5

The Board finds that the medical evidence of record is insufficient to establish disability 

for the period claimed. 

The issue of disability from work can only be resolved by competent medical evidence.11 

Whether a claimant’s disability is causally 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 employment factors and 

supports that conclusion with sound medical reasoning.12 A physician’s opinion on causal 

relationship between a claimant’s disability and an employment injury is not dispositive simply 

because it is rendered by a physician. To be of probative value, the physician must provide 

rationale for the opinion reached. Where no such rationale is present, the medical opinion is of 

diminished probative value.13 

Appellant submitted several reports and disability slips from Mr. Wright, a physician 

assistant. The Board has long held that physician assistants are not considered “physicians” as 

defined under FECA, and their opinions are of no probative value.14 Thus, Mr. Wright’s reports 

are insufficient to meet appellant’s burden of proof. 

While Dr. Banton noted appellant’s complaints of low back pain, he did not reference the 

January 2002 employment injury and accepted conditions, or offer an opinion on disability. 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.15

As to Dr. Wingo’s October 9, 2015 report, while he indicated that appellant had been 

injured many years prior and noted appellant’s report that he was required to do heavy work in 

addition to supervisor duties, Dr. Wingo also advised that appellant could return to work with no 

restrictions. 

As appellant has not submitted rationalized medical opinion evidence sufficient to 

establish that he was unable to work for the period September 5 to November 3, 2015 due to the 

accepted conditions, he failed to establish that the claimed disability was employment related. 

He was thus not entitled to wage-loss compensation for this period.16

 11 R.C., 59 ECAB 546 (2008). 

12 See Sandra D. Pruitt, supra note 7. 

13 Thaddeus J. Spevack, 53 ECAB 474 (2002). 

14 Roy L. Humphrey, 57 ECAB 238 (2005). Section 8101(2) of the FECA provides that “physician” includes 

surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners 

within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2). 

15 Amelia S. Jefferson, 57 ECAB 183 (2005). 

16 N.R., Docket No. 14-114 (issued April 28, 2014). 
6

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 entitlement to wage-loss compensation 

for disability commencing September 5, 2015 due to his January 10, 2002 employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the November 3, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 19, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees' Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees' Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board