United States Department of Labor

Employees’ Compensation Appeals Board

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R.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Longview, TX, Employer

__________________________________________

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Docket No. 18-1812

Issued: June 14, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 27, 2018 appellant filed a timely appeal from a September 10, 2018 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

 

1 5 U.S.C. § 8101 et seq. 

2 The Board notes that, following the September 10, 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 total disability 

during the period October 25, 2017 to May 22, 2018 causally related to her accepted September 9, 

2017 employment injury.

FACTUAL HISTORY

On September 11, 2017 appellant, then a 53-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she was injured on September 9, 2017 when the postal vehicle 

she was driving was struck by another vehicle while in the performance of duty. She related that 

she immediately called 911 and was taken by ambulance to a hospital. Appellant stopped work 

on September 9, 2017. 

Appellant was treated by Dr. Rory L. Allen, an osteopath, on September 12, 2017. 

Dr. Allen described the employment incident, noted her complaints of neck, low back, and left 

shoulder pain, nausea, and headaches. Following physical examination, he diagnosed: concussion 

without loss of consciousness; cervical, lumbar, sacroiliac, and thoracic sprains; and laceration of 

the chin. Dr. Allen advised that appellant was totally disabled. In a report dated September 19, 

2017, he advised that appellant continued to be totally disabled.

On September 28, 2017 OWCP accepted the claim for abrasions of the head and left upper 

arm, a cervical sprain, and laceration of the head.3 Appellant received continuation of pay from 

September 10 through October 24, 2017. She thereafter filed claims for compensation 

(Form CA-7).

On October 19, 2017 Dr. Allen advised that appellant could not return to her regular duties 

and provided work restrictions.

Dr. Voranart Kukai Sunakapakdee, a chiropractor, completed a physical examination on

November 8, 2017. He advised that appellant could work at a sedentary demand level.

In a November 13, 2017 report, Dr. Allen noted reduced painful range of motion in 

appellant’s cervical and lumbar spines, and a painful left shoulder. He recommended magnetic 

resonance imaging (MRI) scans. 

MRI scans were performed on December 5, 2017. The cervical spine MRI scan 

demonstrated minimal bulging at multiple levels, but no significant canal or foraminal narrowing. 

The lumbar spine MRI scan demonstrated degenerative findings, worst at the L5-S1 level. The 

left shoulder MRI scan showed moderate acromioclavicular changes, and tendinopathy. 

On December 11, 2017 Dr. Allen described appellant’s November 8, 2017 physical 

evaluation findings, which demonstrated deficits in her cervical, thoracic, and lumbar spine range 

of motion with accompanying pain, as well as further physical restrictions. He indicated that 

 

3 Discharge instructions dated September 9, 2017 noted diagnoses of abrasions to the chin and left upper extremity, 

cervical strain, myofascial pain, and laceration of the chin.
3

appellant’s left shoulder pain was increasing and noted her left shoulder MRI scan findings, 

advising that the tendinopathy found was indicative of ongoing inflammatory changes which 

would very likely result from trauma. Dr. Allen concluded that appellant continued to be totally 

disabled from her usual employment.

By decision dated December 21, 2017, OWCP denied appellant claim for wage-loss 

compensation as the medical evidence did not establish employment-related disability.

On January 18, 2018 appellant requested reconsideration and submitted December 21, 

2017 reports in which Dr. Allen noted cervical and lumbar spine pain. Dr. Allen reviewed the 

MRI scan findings and advised that appellant could not return to her regular employment.

By decision dated February 12, 2018, OWCP denied modification of its prior decision.

In a January 22, 2018 report, Dr. Francisco J. Batlle, a neurosurgeon, noted seeing 

appellant following an employment-related motor vehicle accident (MVA) for a complaint of 

radiating low back pain. He also noted that her left lower extremity pain caused her to fall in 

December. Dr. Batlle described physical examination findings including diminished motor 

strength of the left gastrocnemius and extensor hallucis longus muscles, and noted that appellant 

had difficulty with toe walking. Tandem walking was limited secondary to pain and dizziness. 

Straight leg raising was positive on the left and negative on the right. Sensory examination 

revealed a hypoesthetic region to pin prick and light touch in the L5 and S1 distributions on the 

left and was otherwise intact. Dr. Batlle indicated that he had reviewed appellant’s actual

December 5, 2017 lumbar spine MRI scan, which demonstrated a significant herniated nucleus 

pulposus at L5-S1 which had resulted in significant foraminal stenosis, left side greater than right, 

and impingement on the exiting L5 nerve roots and the descending S1 nerve root on the left. He

diagnosed lumbar radiculitis, herniated nucleus pulposus at L5-S1, and lumbago, and 

recommended a lumbar epidural steroid injection. 

In a February 27, 2018 report, Dr. Brittany Potter, Board-certified in family and sports 

medicine, noted seeing appellant for a complaints of low back, left leg, neck, and left arm pain that 

began as the result of an employment-related MVA. She described appellant’s MRI scan findings 

and advised that she was able to heel and toe walk. Neck range of motion was normal with cervical 

and trapezius tenderness on the left, and subacromial tenderness of the left shoulder. Examination 

of the thoracic spine showed normal curvature and no tenderness to palpation. Examination of the 

low back showed decreased range of motion, lower paraspinal tenderness, and a positive straight 

leg raising on the left. Sensation was normal in right upper and lower extremities. Left upper 

extremity sensation was decreased in the C5-7 distribution and in the L4-5 distribution in the left 

lower extremity. Dr. Potter diagnosed: other intervertebral disc displacement, lumbosacral region; 

panniculitis affecting regions of neck and back, cervical region; radiculopathy, lumbosacral region; 

muscle spasm of back; impingement syndrome, left shoulder; myalgia; sprain of ligaments of 

cervical spine; and sprain of ligaments of lumbar spine. She advised that appellant had signs and 

symptoms suggestive of lumbar radiculopathy, and recommended a lumbar steroid injection. 

Dr. Potter further noted that appellant had signs and symptoms consistent with left shoulder 

impingement syndrome and recommended exercise rehabilitation. She noted that appellant’s neck 

pain was consistent with cervical facet syndrome, status post whiplash injury. Dr. Potter 

performed a lumbar epidural steroid injection on March 14, 2018. 
4

On March 19, 2018 Dr. Batlle described examination findings, reiterated his diagnoses, 

and recommended lumbar surgery at L5-S1 on the left. 

Dr. Allen reported an evaluation on March 20, 2018. On March 29, 2018 he requested that 

additional conditions of intervertebral disc disorders with radiculopathy, lumbosacral region, and 

strain of the muscles and tendons of the left shoulder rotator cuff be accepted as causally related 

to the September 9, 2017 employment injury. 

In an April 3, 2018 report, Dr. Potter noted that appellant reported that her symptoms and 

pain were worsening. She described examination findings, noting that appellant continued to have 

lumbar radicular pain to the left lower extremity, helped temporarily by the steroid injection. 

Dr. Potter performed a left subacromial bursa injection. 

On April 16, 2018 Dr. Batlle requested authorization for lumbar surgery.

An April 17, 2018 left upper extremity EMG/NCV study was normal with no evidence 

suggestive of left ulnar or median neuropathy, and no evidence of cervical radiculopathy.

On April 25, 2018 OWCP requested its district medical adviser (DMA) to provide an 

opinion regarding the necessity of the requested surgery and expansion of the acceptance of the 

claim to include additional conditions. In an April 30, 2018 report, Dr. Kenechukwu Ugokwe, a 

Board-certified neurosurgeon and DMA, opined that the records, including appellant’s lumbar 

MRI scan, supported that the condition of lumbar herniated disc was a result of the employment 

injury. He agreed with Dr. Allen’s request that acceptance of the claim should be expanded to 

include lumbar herniated disc and also agreed with Dr. Batlle’s opinion that the recommended 

lumbar spine surgery was medically necessary and was causally related to the employment injury. 

The DMA noted that appellant continued to be symptomatic with pain and weakness despite 

conservative therapy, and that there was radiographic evidence of neural element compression.

On May 3, 2018 OWCP expanded acceptance of the claim to include: sprain of ligaments 

of lumbar spine; unspecified sprain of left shoulder joint; intervertebral disc disorders with 

radiculopathy, lumbosacral region; strain of muscles and tendons of the rotator cuff, left shoulder; 

other intervertebral disc displacement, lumbosacral region; panniculitis affecting regions of neck 

and back, cervical region; radiculopathy, lumbosacral region; and impingement syndrome of left 

shoulder sprain of thyroid region. On May 7, 2018 it authorized low back disc surgery. 

In a May 8, 2018 progress note, Dr. Potter described examination findings and noted that 

appellant would have lumbar surgery. On a May 16, 2018 report Dr. Allen described appellant’s 

ongoing condition and noted that surgery was scheduled for May 23, 2018.

On May 23, 2018 Dr. Batlle performed lumbar microdiscectomy laminectomy at L5-S1 on 

the left. OWCP placed appellant on the periodic compensation rolls effective May 22, 2018.

On June 19, 2018 appellant requested reconsideration of the February 12, 2018 decision 

denying her disability claim. In support, she submitted a May 18, 2018 letter in which Dr. Allen

maintained that she was entitled to disability compensation, advising that she had shown good 

progress since the employment-related MVA on September 9, 2017, but that, due to the 

employment injury, she could not return to her regular job duties. Dr. Allen indicated that 
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appellant could only stand 10 minutes at a time for a total 2 hours per day, sit for 20 minutes for a 

total of 2 hours per day, walk for 5 minutes for a total of 1 hour per day, and could not climb, 

kneel, bend, stoop, reach above her shoulder, or perform any repetitive biomechanical movement. 

Lifting was restricted to 10 pounds, and pushing and pulling to less than 40 pounds. In June 13, 

and July 18, 2018 reports, Dr. Allen described appellant’s current condition and advised that she 

could not work.

On August 9, 2018 Dr. Terry D. Madsen, a Board-certified orthopedic surgeon, noted 

appellant’s report of left shoulder pain following a September 9, 2017 MVA. He described 

examination findings, diagnosed disorder of rotator cuff, and recommended surgery. On 

August 21, 2018 OWCP authorized left shoulder surgery. 

By decision dated September 10, 2018, OWCP denied modification of its prior decisions, 

finding that appellant had not established entitlement to wage-loss compensation for the period 

October 25, 2017 to May 22, 2018. 

LEGAL PRECEDENT

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

essential elements of his or her claim by the weight of the evidence.4 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.5 Whether a particular injury causes an employee to 

become disabled from work, and the duration of that disability, are medical issues that must be 

proven by a preponderance of probative and reliable medical opinion evidence.6

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.7 Disability is, thus, not 

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

wages.8 An employee who has a physical impairment causally related to his or her federal 

employment, but who nonetheless has the capacity to earn the wages that he or she was receiving 

at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning 

capacity.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 his or her employment, he or she is entitled to compensation for any loss of wages.10

 

4 B.B., Docket No. 18-1321 (issued April 5, 2019).

5

Id.

6 S.G., Docket No. 18-1076 (issued April 11, 2019).

7 V.H., Docket No. 18-1282 (issued April 2, 2019).

8

Id.

9 Supra note 6.

10 V.G., Docket No. 18-0936 (issued February 6, 2019).
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Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility to see that justice is done.11 The nonadversarial policy of proceedings 

under FECA is reflected in OWCP’s regulations at section 10.121.12 Additionally, once OWCP 

undertakes to develop the medical evidence further, it must do a complete job in procuring medical 

evidence that will resolve the relevant issues in the case.13

ANALYSIS

The Board finds that this case is not in posture for decision.

Appellant’s treating physician Dr. Allen was consistent in his opinion that, due to the 

employment-related injury, appellant was totally disabled from performing the duties of her 

regular job as a rural carrier. On December 11, 2017 Dr. Allen advised that appellant had deficits 

in cervical, thoracic, and lumbar spine range of motion with accompanying pain, and that her left 

shoulder pain was increasing. He noted that left shoulder MRI scan findings of tendinopathy were 

indicative of ongoing inflammatory changes which would very likely result from trauma. 

Dr. Allen continued to advise that appellant was disabled from her usual job. 

Dr. Batlle and Dr. Potter also noted seeing appellant for treatment following the MVA and 

described positive examination findings. Dr. Potter performed a series of epidural steroid 

injections, and Dr. Batlle performed authorized lumbar spine surgery on May 23, 2018.

The issue in this case is whether appellant has met her burden of proof to establish total 

disability from October 25, 2017 to May 22, 2018 causally related to the accepted conditions 

sustained during a September 9, 2017 MVA. OWCP asked its DMA for an opinion regarding 

expansion of the acceptance of the claim and whether surgery should be authorized. Based on his 

opinion, it accepted additional conditions and authorized lumbar spine surgery. The recommended 

surgery was performed on May 23, 2018, and OWCP placed appellant’s claim on the periodic 

compensation rolls.

In its September 10, 2018 decision, OWCP found that the medical evidence 

contemporaneous with the period October 25, 2017 to May 22, 2018 did not provide sufficient 

objective evidence to establish that appellant was totally disabled from all work due to the accepted 

September 9, 2017 employment injury.

Proceedings under FECA are not adversarial in nature, and OWCP is not a disinterested 

arbiter. Once OWCP undertakes to develop the medical evidence further, it must do a complete 

job in procuring medical evidence that will resolve the relevant issues in the case.14

 

11 X.V., Docket No. 18-1360 (issued April 12, 2019).

12 20 C.F.R. § 10.121; see B.B., supra note 4.

13 V.H., Docket No. 18-0848 (issued February 24, 2019).

14 Supra note 4.
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Section 10.400(b) of OWCP’s regulations defines temporary total disability as the inability 

to return to the position held at the time of injury or to earn equivalent wages, or to perform other 

gainful employment, due to the work-related injury.15 OWCP procedures provide that to be 

eligible for compensation, the medical evidence should support that the claimant is disabled as a 

result of the accepted work injury and should either establish that the claimant is precluded from 

performing any type of work, or that the claimant has work restrictions due to the injury that the 

employing establishment is not able to accommodate.16 OWCP did not request that the DMA 

address the issue of whether appellant was disabled during the period October 25, 2017 to May 22, 

2018 even though OWCP expanded acceptance of appellant’s claim and authorized lumbar surgery 

based upon his opinion.

Accordingly, the Board will set aside the September 10, 2018 decision. On remand OWCP 

shall refer appellant, along with a statement of accepted of facts and the case record, to a second

opinion specialist to provide an opinion as to whether the accepted conditions rendered appellant 

totally disabled from her rural letter carrier duties from October 25, 2017 until May 22, 2018 when 

she was placed on the periodic compensation rolls. After this and such further development 

deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision. 

 

15 20 C.F.R. § 10.400.

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.5a(2)(a) 

(February 2013).
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ORDER

IT IS HEREBY ORDERED THAT the September 10, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for proceedings 

consistent with this opinion of the Board.

Issued: June 14, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board