United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.W., Appellant

and

SMALL BUSINESS ADMINISTRATION, 

LOAN DIVISION, El Paso, TX, Employer

__________________________________________

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Docket No. 18-0890

Issued: October 26, 2018

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

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 March 20, 2018 appellant, through counsel, filed a timely appeal from October 12 and 

24, 2017 merit decisions 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.

ISSUE

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

December 1, 2013 to August 9, 2014, on June 4 and 16, 2015, and for intermittent periods 

 

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.
2

commencing November 6, 2015, causally related to her accepted October 25, 2012 employment 

injury.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

as presented in the prior Board decision are incorporated herein by reference. The relevant facts 

are as follows.

On October 29, 2012 appellant, then a 45-year-old loan servicing assistant, filed a 

traumatic injury claim (Form CA-1) alleging that she sustained injuries to multiple parts of her 

body when she slipped and fell on a wet floor while at work on October 25, 2012. OWCP accepted 

that appellant sustained a cervical strain, left hip and thigh sprains, lumbar sprain, disorder of the 

coccyx, left hip and thigh contusions, unspecific disorder of the cervical discs, and chronic pain 

syndrome.4

Appellant stopped work on December 1, 2013. Beginning on December 17, 2013, she filed 

several claims for compensation (Form CA-7) alleging disability from December 1, 2013 to 

February 8, 2014 due to her accepted work conditions. In support of her disability claim, appellant 

submitted a December 5, 2013 report in which Dr. John Dickason, a Board-certified orthopedic 

surgeon, indicated that she could not perform her usual job as she needed to take 10-minute breaks 

every 2 hours.

In a January 9, 2014 report, Dr. Mahe T. Nadeem, an attending Board-certified physical 

medicine and rehabilitation physician, indicated that appellant could perform her regular work 

“with rest breaks.” In January 17 and February 19, 2014 reports, Dr. Nadeem diagnosed neck 

sprain, hip and thigh sprains, and hip and thigh contusions, and noted that appellant could return 

to work “with restrictions.”

By decisions dated February 13 and March 28, 2014, OWCP found that appellant had not 

met her burden of proof to establish disability from December 1, 2013 to February 8, 2014 because 

she had not submitted rationalized medical evidence in support of her claim.

Appellant filed additional claims for compensation alleging disability between February 9 

and August 9, 2014 due to her accepted work conditions.

In a May 14, 2014 report, Dr. Nadeem indicated that, upon physical examination on that 

date, appellant exhibited limitation of cervical and lumbar range of motion. He noted that, based 

on this physical examination, appellant had restrictions of no lifting, carrying, pushing, and 

pulling; no sustained grasping/gripping activity; no constant/repetitive wrist and hand activity; no 

constant bending, squatting, and twisting; and no prolonged sitting/standing posture.

 

3 Docket No. 16-0527 (issued July 26, 2016).

4 Appellant stopped work on October 25, 2012 and returned to work on November 7, 2012 in her usual job.
3

In a form report (Form CA-20) dated June 19, 2014, Dr. Mike Shah, an attending Boardcertified physical medicine and rehabilitation physician, listed the date of injury as October 25, 

2012 and indicated that appellant was totally disabled from June 19 to August 19, 2014 and 

partially disabled thereafter. 

Dr. Shah noted in a report dated August 4, 2014, that appellant reported pain in her neck 

which radiated into her upper extremities. He listed her accepted conditions in the present case, 

indicated that her “injuries are work related,” and noted that she had been totally incapacitated 

since June 19, 2014. Dr. Shah recommended keeping appellant off work “to allow her to get 

stronger and complete her therapy program.”

Appellant requested reconsideration of her disability claim and, by decisions dated 

October 2 and 14, 2014, OWCP found that she had not met her burden of proof to establish 

disability from December 1, 2013 to August 9, 2014 because she had not submitted sufficient 

medical evidence in support of her claim.5

On January 26, 2015 appellant returned to work for the employing establishment in a 

position which allowed her to lie down for 5 to 10 minutes every 2 hours. 

Appellant filed a claim for compensation alleging four hours of disability on June 4, 2015 

and two hours of disability on June 16, 2015 due to attending doctor’s appointments on those dates 

in order to treat her work-related conditions.

By decision dated December 15, 2015, OWCP found that appellant had not met her burden 

of proof to establish disability from December 1, 2013 to August 9, 2014 because she had not 

submitted sufficient medical evidence in support of her claim. It indicated that the medical 

evidence submitted by appellant did not contain adequate medical rationale.

By separate decision also dated December 15, 2015, OWCP found that appellant had not 

met her burden of proof to establish disability on June 4 and 16, 2015 because she had not 

submitted sufficient medical evidence in support of her claim. It indicated that appellant did not 

show that she was treated for an accepted work injury on these dates.

The Board notes that, while OWCP was adjudicating appellant’s initial claims for disability 

(December 1, 2013 to August 9, 2014, and on June 4 and 16, 2015), appellant filed additional 

claims for compensation for intermittent periods of work stoppage commencing 

November 6, 2015.6 By decision dated February 22, 2016, OWCP denied appellant’s claim for 

intermittent periods of disability commencing November 6, 2015 due to her October 25, 2012

 

5 OWCP denied modification of its February 13 and March 28, 2014 decisions.

6 OWCP paid compensation for 1.5 hours due to appellant’s attendance at a November 6, 2015 medical appointment 

related to her October 25, 2012 employment injury. Therefore, with respect to November 6, 2015, appellant has 

effectively claimed compensation for the remainder of the day. 
4

employment injury. It found that she failed to submit medical evidence sufficient to establish her 

claim.7

Appellant appealed both of OWCP’s December 15, 2015 decisions to the Board and, by 

decision dated July 26, 2016,8the Board affirmed both OWCP December 15, 2015 decisions. The 

Board found that OWCP properly denied appellant’s claim for employment-related disability from 

December 1, 2013 to August 9, 2014, and on June 4 and 16, 2015. 

On July 17, 2017 appellant, through counsel, requested reconsideration of the decisions 

which served to deny all her claimed periods of disability due to the October 25, 2012 employment 

injury, i.e., December 1, 2013 to August 9, 2014, on June 4 and 16, 2015, and intermittent periods 

commencing November 6, 2015. 

In support of her disability claim, appellant submitted an October 29, 2015 report from

Dr. Shah who indicated that appellant presented complaining that she was “having pain all over”

and that she had anxiety attacks. She reported that she had neck pain which radiated into both 

arms down to the wrists, occasional numbness/tingling in her hands, lower back pain which 

radiated into both legs, and occasional numbness/tingling and weakness in her hips. Dr. Shah 

indicated that the employing establishment had not addressed some of his recommendations 

regarding an ergonomic workstation and work restrictions, noting that this was a circumstance 

“which may very well worsen her symptoms as well as increase the frequency of unscheduled 

medical leaves.”

In a November 6, 2015 report, Dr. Sat Katar S. Khalsa, an attending clinical psychologist, 

reported the findings of the psychological evaluation he performed on that date. He summarized 

the medical evidence of record and noted that appellant presented for the evaluation with 

complaints of severe pain in her neck, low/mid back, shoulders, arms, and hands. Dr. Khalsa

detailed the findings of various psychological tests he conducted, including the behavioral 

assessment of pain/medical quick screen. He advised that the results of his evaluation suggested 

that appellant was experiencing symptoms of anxiety, depression, fear and avoidance of activity, 

self-perceptions of disability, and preoccupation with persistent, debilitating pain.9 Appellant 

complained of average pain levels of 7 on a scale of 0 to10 and she expressed her belief in the need 

for additional medical treatment and narcotic medication to manage her pain. Dr. Khalsa indicated 

that, therefore, it appeared prudent to provide a course of health and behavior interventions to 

improve appellant’s pain coping, self-relaxation, and problem solving skills. He noted that 

appellant should be allowed to telework from home as a reasonable accommodation for chronic 

pain syndrome which clearly had been aggravated by her return to work in January 2015. 

Dr. Khalsa felt that telework would facilitate reduction of appellant’s pain and emotional 

 

7 On February 13, 2017 appellant, through counsel, requested reconsideration of OWCP’s February 22, 2016 

decision and, by decision dated May 12, 2017, OWCP denied modification of its February 22, 2016 decision.

8 See supra note 3.

9 Dr. Khalsa indicated that appellant had the diagnoses of neck pain, hip/thigh sprain, hip/thigh contusion, coccyx 

disorder, cervical disc disease, lumbar region sprain, and chronic pain syndrome.
5

symptoms from the severe range down to the moderate or mild range, improve productivity and 

optimal functioning, and prevent further worsening of her medical condition.

In a January 19, 2016 report, Dr. Khalsa indicated that he was responding to a request from

an OWCP claims examiner and listed results from several psychological tests, including the brief 

psychiatric rating scale, global assessment of functioning test, and psychiatric impairment rating 

scale.10 He noted that chronic pain syndrome constituted an accepted emotional condition and 

opined that appellant’s present condition was not due to exposure to new employment factors.

In a duty status report (Form CA-17) dated February 15, 2016, Dr. Shah listed the 

diagnoses due to the October 25, 2012 employment injury as cervical strain, left hip and thigh 

sprains, disorder of the coccyx, left hip and thigh contusions, and unspecific disorder of the cervical 

discs. He indicated that appellant had work restrictions of lifting up to five pounds for four hours 

per day, sitting for six hours, standing for a half hours, walking for a half hour, pushing/pulling for 

a half hour, simple grasping for four hours, fine manipulation for four hours, and reaching above 

the shoulders for a half hour.11 In an attending physician’s report (Form CA-20) dated June 30, 

2016, Dr. Shah listed the diagnoses due to the October 25, 2012 employment injury as cervical 

strain, left hip and thigh sprains, disorder of the coccyx, left hip and thigh contusions, unspecific 

disorder of the cervical discs, and lumbar sprain. He indicated that appellant had been totally 

disabled on June 30, 2016, but could return to regular work on July 1, 2016. 

In a November 10, 2016 initial visit report, Dr. Juan L. Zamora, a Board-certified family 

practitioner, noted that appellant had been referred to him by Dr. Shah. He provided physical 

examination findings and diagnosed chronic pain syndrome, unspecified disorder of the cervical 

discs, sacrococcygeal disorder, cervical sprain, lumbar sprain, thigh contusion, and hip contusion.

In a December 16, 2016 report, Dr. Shah detailed physical examination findings, including 

cervical, paraspinal, and lumbar spine muscle spasms, and diagnosed neck sprain, left hip/thigh 

sprain, left hip/thigh contusion, disorder of coccyx, cervical disc disorder, and lumbar sprain. He 

indicated that, when her symptoms were stable, appellant could work with restrictions outlined in 

a functional capacity evaluation.12 Dr. Shah advised that appellant was presently going through a 

flare-up of symptoms as evinced by the observed cervical, paraspinal, and lumbar spine muscle 

spasms and, therefore, he recommended that appellant undergo myofascial release therapy.13 On 

January 4, 2017 he calculated that appellant had 10 percent permanent impairment of her left lower 

 

10 In a December 21, 2015 informational letter, OWCP advised appellant that Dr. Khalsa’s November 6, 2015 report 

was insufficient to establish her disability claim. 

11 Appellant also submitted pain counseling reports dated between March and July 2016 from Michael Perez, a 

licensed master social worker.

12 Dr. Shah did not specify the date of the functional capacity evaluation and the record does not contain one that 

was produced around the time of his December 16, 2016 report.

13 Myofascial release therapy includes applying deep pressure to areas of muscle spasm in order to decrease pain. 

Dr. Shah also produced follow-up notes dated December 6, 2016 and March 2, 2017.
6

extremity under the standards of the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (A.M.A., Guides).14

In an August 10, 2017 disability note, Dr. Shah found that appellant was incapacitated from 

work for the period August 10 to 13, 2017 and indicated that she could return to work on 

August 14, 2017.

By decision dated October 12, 2017, OWCP denied modification of its May 22, 2017 

decision denying appellant’s claim for intermittent periods of employment-related disability 

commencing November 6, 2015. It found that appellant failed to submit medical evidence 

sufficient to establish her disability claim for this period. 

By decision dated October 24, 2017, OWCP denied modification of its prior decisions 

denying appellant’s claim for employment-related disability from December 1, 2013 to August 9, 

2014, and on June 4 and 16, 2015. It determined that she failed to submit medical evidence 

sufficient to establish her disability claim for this period.

LEGAL PRECEDENT

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

essential elements of his or her claim including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA, that an injury was sustained in the performance of duty as alleged, 

and that any disability and/or specific condition for which compensation is claimed are causally 

related to the employment injury.15 In general the term disability under FECA means incapacity 

because of injury in employment to earn the wages which the employee was receiving at the time 

of such injury.16 This meaning, for brevity, is expressed as disability for work.17

The medical evidence required to establish a causal relationship between a claimed period 

of disability and an employment injury is rationalized medical opinion evidence. The opinion of 

the physician must be based on a complete factual and medical background of the claimant, must 

be one of reasonable medical certainty, and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the claimant.18

 

14 A.M.A., Guides (6th ed. 2009).

15 J.F., Docket No. 09-1061 (issued November 17, 2009).

16 See 20 C.F.R. § 10.5(f).

17 Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

18 See E.J., Docket No. 09-1481 (issued February 19, 2010).
7

Whether a particular employment injury causes disability for employment and the duration 

of that disability are medical issues, which must be proved by a preponderance of reliable, 

probative, and substantial medical evidence.19

ANALYSIS

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

December 1, 2013 to August 9, 2014, on June 4 and 16, 2015, and for intermittent periods 

commencing November 6, 2015, causally related to her accepted October 25, 2012 employment 

injury.

OWCP accepted that, due to an October 25, 2012 fall at work, appellant sustained a 

cervical strain, left hip and thigh sprains, lumbar sprain, disorder of the coccyx, left hip and thigh 

contusions, unspecific disorder of the cervical discs, and chronic pain syndrome. Appellant 

initially filed several claims for compensation alleging disability from December 1, 2013 to 

August 9, 2014, and on June 4 and 16, 2015, causally related to her October 25, 2012 employment 

injury. The Board addressed this portion of appellant’s disability claim in a July 26, 2016 decision 

which affirmed OWCP’s denial of disability for these periods. Appellant also filed a claim for 

compensation forms claiming disability for intermittent periods commencing November 6, 2015, 

causally related to her October 25, 2012 employment injury. OWCP’s October 12 and 24, 2017 

decisions collectively denied all the above-noted periods of claimed disability, i.e., December 1, 

2013 to August 9, 2014, on June 4 and 16, 2015, and intermittent periods commencing 

November 6, 2015.

Preliminarily, the Board notes that it is unnecessary to reconsider the medical evidence 

submitted prior to the issuance of OWCP’s December 15, 2015 decisions because the Board has 

already considered this evidence in its July 26, 2016 decision and found it was insufficient to 

establish appellant’s claim for disability from December 1, 2013 to August 9, 2014, and on June 4 

and 16, 2015, causally related to her October 25, 2012 employment injury.

The Board further finds that the evidence appellant submitted after the issuance of OWCP’s 

December 15, 2015 decisions fails to establish employment-related disability from December 1, 

2013 to August 9, 2014, and on June 4 and 16, 2015. In addition, the evidence of record fails to 

establish employment-related disability for intermittent periods commencing November 6, 2015.

In an October 29, 2015 report, Dr. Shah indicated that appellant presented complaining that 

she was “having pain all over” and that she had anxiety attacks. Appellant reported that she had 

neck pain which radiated into both arms down to the wrists, occasional numbness/tingling in her 

hands, lower back pain which radiated into both legs, and occasional numbness/tingling and 

weakness in her hips. Dr. Shah indicated that the employing establishment had not addressed some 

of his recommendations regarding an ergonomic workstation and work restrictions, noting that this 

was a circumstance “which may very well worsen her symptoms as well as increase the frequency 

of unscheduled medical leaves.”

 

19 W.D., Docket No. 09-658 (issued October 22, 2009).
8

The Board finds that the submission of this report does not establish appellant’s claim for 

employment-related disability from December 1, 2013 to August 9, 2014, on June 4 and 16, 2015, 

and for intermittent periods commencing November 6, 2015 because the report is of no probative 

value on this matter due to its lack of an opinion on disability. Although Dr. Shah mentioned 

potential future work stoppages, he did not provide any opinion that appellant stopped work during 

the periods of claimed disability due to the October 25, 2012 employment injury. The Board has 

held that medical evidence which does not offer an opinion regarding the cause of an employee’s 

condition is of no probative value on the issue of causal relationship.20

In a November 6, 2015, Dr. Khalsa, an attending clinical psychologist, reported the 

findings of the psychological evaluation, he performed on that date. He advised that the results of 

his evaluation suggested that appellant was experiencing symptoms of anxiety, depression, fear 

and avoidance of activity, self-perceptions of disability, and preoccupation with persistent, 

debilitating pain. Dr. Khalsa recommended a course of health and behavior interventions to 

improve appellant’s pain coping, self-relaxation, and problem solving skills. He noted that 

appellant should be allowed to telework from home as a reasonable accommodation for chronic 

pain syndrome.

21

 In a January 19, 2016 report, Dr. Khalsa provided additional discussion of 

results of the November 6, 2015 psychological evaluation.

The Board notes that, although Dr. Khalsa noted that appellant should engage in telework, 

he did not provide a clear opinion that appellant was disabled by the October 25, 2012 employment 

incident during the claimed periods of disability, i.e., December 1, 2013 to August 9, 2014, on 

June 4 and 16, 2015, and intermittent periods commencing November 6, 2015. Given this lack of 

an opinion on specific periods of disability, his report is of no probative value regarding appellant’s 

disability claim.22 The Board notes that Dr. Khalsa’s recommendation that appellant telework 

from home appears to be essentially prophylactic in nature, i.e., designed to prevent future injury. 

It is well established that the possibility of future injury constitutes no basis for the payment of 

compensation.23

In a February 15, 2015 duty status report, Dr. Shah listed the diagnoses due to the 

October 25, 2012 employment injury as cervical strain, left hip and thigh sprains, disorder of the 

coccyx, left hip and thigh contusions, and unspecific disorder of the cervical discs. He indicated 

that appellant had various work restrictions, including lifting up to five pounds for four hours per 

day, sitting for six hours, standing for a half hour, walking for a half hour, and pushing/pulling for 

a half hour. In a June 30, 2016 attending physician’s report, Dr. Shah again listed diagnoses due 

 

20 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

21 Dr. Khalsa felt that telework would facilitate reduction of appellant’s pain and emotional symptoms from the 

severe range down to the moderate or mild range, improve productivity and optimal functioning, and prevent further 

worsening of her medical condition.

22 See supra note 20.

23 Gaeten F. Valenza, 39 ECAB 1349, 1356 (1988).
9

to the October 25, 2012 employment injury.24 He indicated that appellant had been totally disabled 

on June 30, 2016, but could return to regular work on July 1, 2016.

Although Dr. Shah denoted periods of partial and total disability in these reports, the Board 

notes that the reports are of limited probative value because he did not provide adequate medical 

rationale in support of his opinion on disability. Dr. Shah mentioned some of the conditions 

accepted as due to the October 25, 2012 employment injury, but he did not provide any explanation 

of why they caused disability for the specified dates. He did not explain how objective findings 

on physical examination and diagnostic testing supported his opinion on disability. The Board has 

held that a report is of limited probative value regarding causal relationship if it does not contain

medical rationale explaining how an employment activity could have caused or aggravated a 

medical condition.25

In a December 16, 2016 report, Dr. Shah detailed physical examination findings, including 

cervical, paraspinal, and lumbar spine muscle spasms, and diagnosed neck sprain, left hip/thigh 

sprain, left hip/thigh contusion, disorder of coccyx, cervical disc disorder, and lumbar sprain. He 

advised that appellant was presently going through a flare-up of symptoms as evinced by the 

observed cervical, paraspinal, and lumbar spine muscle spasms and, therefore, he recommended 

that appellant undergo myofascial release therapy. Although he mentioned a worsening of 

symptoms, Dr. Shah did not provide an opinion on disability and this report is of no probative 

value with respect to appellant’s disability claim.26

Appellant also submitted pain counseling reports dated between March and July 2016 from

Mr. Perez, a licensed master social worker. However, these reports have no probative value with 

respect to appellant’s disability claim because the Board has held that the report of a nonphysician, 

such as a social worker, does not constitute probative medical evidence under FECA.

27

 

On appeal counsel argues that the medical evidence submitted by appellant supports her 

claim for employment-related disability from December 1, 2013 to August 9, 2014, on June 4 

and 16, 2015, and for intermittent periods commencing November 6, 2015. However, the Board 

finds the submitted evidence fails to establish appellant’s disability claim.

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. 

 

24 Dr. Shah added the diagnosis of lumbar sprain to the above-noted diagnoses.

25 See Y.D., Docket No. 16-1896 (issued February 10, 2017).

26 See supra note 20. Dr. Shah also produced follow-up notes dated December 6, 2016 and March 2, 2017, and a 

permanent impairment rating report dated January 4, 2017. In a November 20, 2016 report, Dr. Zamora diagnosed 

chronic pain syndrome, unspecified disorder of the cervical discs, sacrococcygeal disorder, cervical sprain, lumbar 

sprain, thigh contusion, and hip contusion. The Board notes that these reports are of no probative value on the 

underlying issue of this case because they do not contain an opinion on disability. See id.

27 R.S., Docket No. 16-1303 (issued December 2, 2016); L.L., Docket No. 13-829 (issued August 20, 2013). See 5 

U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 
10

CONCLUSION

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

December 1, 2013 to August 9, 2014, on June 4 and 16, 2015, and for intermittent periods 

commencing November 6, 2015, causally related to her accepted October 25, 2012 employment 

injury.

ORDER

IT IS HEREBY ORDERED THAT the October 24 and 12, 2017 decisions of the Office 

of Workers’ Compensation Programs are affirmed.

Issued: October 26, 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