United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Sedona, AZ, Employer

__________________________________________

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Docket No. 18-1273

Issued: March 4, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 14, 2018 appellant filed a timely appeal from a March 8, 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

ISSUE

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

the period March 5 through June 20, 2017 causally related to her accepted employment conditions.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the March 8, 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

FACTUAL HISTORY

On April 18, 2017 appellant, then a 58-year-old rural letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that repetitive and cumulative work activities resulted in

lumbar disc herniation and calcific tendinitis of the right shoulder. In a supplemental statement,

she alleged that while in the performance of her rural carrier duties she had to lift up to 70 pounds, 

over 100 times a day. Appellant stopped work on February 16, 2017. On July 18, 2017 OWCP 

accepted the claim for calcific tendinitis of the right shoulder. It subsequently expanded 

acceptance of the claim on November 13, 2017 to include aggravation of lumbar degenerative disc 

disease with radiculopathy.

On January 23, 2018 appellant filed a claim for compensation (Form CA-7) for temporary 

total disability from work for the period March 5 through July 13, 2017.

In a March 3, 2017 report, Dr. Kevin O’Donnell, an orthopedic surgeon specialist, 

provided examination findings regarding appellant’s right shoulder, noting a slight reduction in 

range of motion with moderate reduction in internal rotation and positive Hawkins and Neer 

impingement tests. He provided an assessment of right shoulder pain, worsened, right shoulder 

rotator cuff impingement, right shoulder subacromial bursitis, and right shoulder calcific tendinitis. 

In a March 3, 2017 work status note, Dr. O’Donnell provided restrictions of no repetitive reaching 

or lifting above head.

In a March 14, 2017 report, Dr. Marshall Meier, a physiatrist, noted that appellant had 

ongoing low back and right lower extremity symptoms, which has worsened since onset three 

years prior. He provided an assessment of lumbar radiculopathy, lumbar disc degeneration, lumbar 

disc displacement, lumbar spondylosis with radiculopathy, and lumbar paraspinal myositis.

In an April 4, 2017 report, Paul Knott, a certified physician assistant, provided an 

assessment of lumbar radiculopathy, lumbar disc degeneration, lumbar disc displacement, lumbar 

paraspinal myositis, and lumbar spondylosis with radiculopathy. He indicated that appellant 

wished to proceed with surgery. Mr. Knott opined that she was unable to work secondary to her 

symptoms. Specifically, appellant could not tolerate lifting packages greater than 15 pounds.3 On 

April 6, 2017 Dr. John F. Hall, a Board-certified orthopedic surgeon, cosigned Mr. Knott’s 

April 4, 2017 report.

In a May 30, 2017 report, Dr. Hall provided an assessment of lumbar radiculopathy, lumbar 

disc degeneration, lumbar disc displacement and lumbar paraspinal/myositis. He noted that 

appellant has exhausted conservative therapy. Dr. Hall indicated that a posterior decompression 

would be the most appropriate surgery for her symptoms, which began three years ago. He opined 

that the changes associated with degenerative process and appellant’s symptoms “could be 

attributable to her occupation,” which required lengthy hours and tasks involving lifting weight 

greater than 50 pounds. Dr. Hall also opined that she was unable to work secondary to her 

symptoms.

 

3

In an April 4, 2017 duty status report (Form CA-17), Mr. Knott indicated that appellant was totally disabled and 

that surgery was pending. The duty status report was not cosigned by a physician.
3

On June 21, 2017 appellant underwent an L4-5 laminectomy with decompression, which 

OWCP retroactively approved. On August 1, 2017 she resigned from the employing 

establishment.

In a September 27, 2017 report, Dr. Michael Steingart, a Board-certified orthopedic 

surgeon and an OWCP second opinion physician, reviewed the statement of accepted facts, 

appellant’s medical record, and provided examination findings. He noted that she had a history of 

a degenerative lumbar condition that was eventually surgically treated for spinal stenosis. 

Dr. Steingart opined that appellant’s work, which involved heavy lifting, carrying loads, and 

flexion and extension on a routine basis, was the source of her back complaints. Due to the fact 

that a two-level laminectomy had been performed on June 21, 2017, he opined that she would be 

unable to revert to her previous level. Dr. Steingart indicated, however, that there was no evidence 

to support total disability beginning on February 16, 2017 for either appellant’s back or right 

shoulder conditions as she would have been able to work, at least a light-duty job, up until the date 

of surgery on June 21, 2017. In an attached work capacity evaluation (Form OWCP-5b), he 

provided that appellant was unable to perform her usual job without restrictions, however, she was 

capable of working a light and sedentary position.

In a January 30, 2018 letter, OWCP authorized wage-loss compensation benefits for the 

period June 21 through July 13, 2017. However, it related that disability compensation could not 

be authorized for the remainder of appellant’s claim as the evidence received did not contain a

medical opinion supported by objective findings that the accepted conditions had worsened such 

that she was disabled from work from March 5 through June 20, 2017. OWCP advised appellant 

to submit medical evidence which contained a well-rationalized medical explanation with 

objective findings which supported disability for the remaining dates. It afforded her 30 days to 

submit the requested information. No additional evidence was received.

By decision dated March 8, 2018, OWCP denied appellant’s claim for disability 

compensation for the period March 5 through June 20, 2017. It found that Dr. Steingart had 

determined that she would have been able to work at least a light-duty position until her surgical 

procedure on June 21, 2017. Therefore, OWCP concluded that the medical evidence of record 

was insufficient to support that appellant was disabled as a result of her accepted work-related 

medical conditions from March 5 to June 20, 2017.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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.5

 

4 Supra note 1.

5 S.J., Docket No. 17-0828 (issued December 20, 2017); G.T., Docket No. 07-1345 (issued April 11, 2008); Kathryn 

Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
4

Disability means “the incapacity, because of an employment injury, to earn the wages the 

employee was receiving at the time of injury.”

6

 The question of whether an employee is disabled 

for work is an issue that must be resolved by competent medical evidence.7 The employee is 

responsible for providing sufficient medical evidence to justify payment of any compensation 

sought.8

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.9 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.10

ANALYSIS

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

Appellant’s treating physicians opined that appellant could only work with restrictions for 

the period March 5 through June 20, 2017. In his March 3, 2017 report, Dr. O’Donnell reported 

objective findings and provided assessments of right shoulder pain worsened, right shoulder rotator 

cuff impingement, right shoulder subacromial bursitis, and right shoulder calcific tendinitis. He 

provided temporary restrictions of no repetitive reaching or lifting above head.

Dr. Hall, in a report dated April 4, 2017, provided an assessment of lumbar radiculopathy, 

lumbar disc degeneration, lumbar disc displacement, and lumbar paraspinal/myositis. In the 

April 4, 2017 report, he related that appellant could not lift packages greater than 15 pounds. 

Appellant was seen by Dr. Steingart, OWCP’s second opinion physician, on 

September 27, 2017. Dr. Steingart opined that her work duties, which required heavy lifting, 

carrying loads, and flexion/extension on a routine basis, were the source of her back complaints. 

 

6 20 C.F.R. § 10.5(f).

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

8 20 C.F.R. § 10.501(a).

9

Id. at § 10.501(a); 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).
5

He concluded that appellant “would be able to have worked up until the date of surgery, at least a 

light[-]duty job.”

11

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

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

OWCP shares responsibility in the development of the evidence to see that justice is done.

12

 Once 

OWCP undertakes development of the record, it must do a complete job in procuring medical 

evidence that will resolve the relevant issues in the case.13 Dr. Steingart’s statement that appellant 

“would be able to have worked up until the date of surgery, at least a light duty job” is unclear as 

to her precise capabilities within the referenced time period. Therefore, further development is

necessary. 

On remand OWCP shall request clarification from Dr. Steingart supported by rationale

regarding her precise capabilities during the period March 5 through June 20, 2017. After such 

further development as deemed necessary, it shall issue a de novo decision. 

CONCLUSION

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

 

11 The Board notes that there is no evidence that the employing establishment offered appellant a light-duty 

assignment during this period. 20 C.F.R. §10.500(a) provides that, in an accepted claim, an employee is not entitled 

to compensation for any wage loss claimed on a Form CA-7 to the extent that evidence contemporaneous with the 

period claimed on a Form CA-7 establishes that an employee had medical work restrictions in place, that light duty 

within those work restrictions was available, and that the employee was previously notified in writing that such duty 

was available. Here, OWCP did not accept appellant’s occupational disease claim until July 18, 2017, which was 

after the period of disability claimed.

12 See R.C., Docket No. 15-0581 (issued June 8, 2016). 

13 Richard F. Williams, 55 ECAB 343, 346 (2004).
6

ORDER

IT IS HEREBY ORDERED THAT the March 8, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this opinion. 

Issued: March 4, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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