United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Allen, TX, Employer

__________________________________________

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Docket No. 18-1537

Issued: June 20, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 8, 2018 appellant, through counsel, filed a timely appeal from an April 30, 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 April 30, 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 for 

the period February 13 through March 31, 2017 causally related to her accepted employment 

injuries.

FACTUAL HISTORY

On February 13, 2017 appellant, then a 40-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that she developed right shoulder pain and right neck pain due 

to factors of her federal employment, including using her “right side for doing [her] job every day.” 

She indicated that she first became aware of her condition on January 15, 2017 and first realized 

that it had been caused or aggravated by her federal employment on February 8, 2017. Appellant 

stopped work on February 13, 2017. 

In a duty status report (Form CA-17) dated February 13, 2017, Dr. Mallapur S. Rao, a 

family medicine specialist, diagnosed right shoulder sprain due to a January 30, 2017 work injury 

and indicated that appellant had injured her right shoulder three weeks prior while carrying mail,

and she continued working thereafter. He advised that she was not capable of returning to work. 

In an initial medical narrative report dated February 13, 2017, Dr. Rao noted that appellant

continued to perform her normal job duties through February 13, 2017 with a great amount of 

difficulty and discomfort. He diagnosed cervical disc disorder with radiculopathy, right rotator 

cuff sprain and strain, and cervical sprain and strain. Dr. Rao advised that appellant was to remain 

off work in order to avoid the possibility of reinjury or reaggravation until further notice. 

In a note dated February 27, 2017, Dr. Rao advised that appellant was to remain off work 

until March 27, 2017. 

By decision dated April 7, 2017, OWCP accepted the claim for cervical disc disorder with 

radiculopathy (mid-cervical region), sprain of right rotator cuff capsule, strain of muscle(s) and 

tendon(s) of the rotator cuff of right shoulder, sprain of ligaments of cervical spine, and strain of 

muscle, fascia, and tendon at neck level. 

Appellant subsequently submitted a note dated March 27, 2017 from Dr. Rao who advised 

that she was to remain off work until April 24, 2017. 

In two duty status reports (Form CA-17) dated February 23 and March 27, 2017, Dr. Rao 

reiterated his opinion that appellant was not capable of returning to work. 

In a note dated May 22, 2017, Dr. Rao advised that appellant was to remain off work until 

June 19, 2017. 

Appellant filed a claim for wage-loss compensation (Form CA-7) for the period

February 13 through March 31, 2017. 

In a development letter dated July 3, 2017, OWCP advised appellant of the deficiencies of 

her claim. It specifically requested a comprehensive narrative report from her physician, which 

included a history of the injury and a thorough examination with objective findings, as to how her 
3

condition(s) had worsened such that she was no longer able to perform the duties of her position 

when she stopped work on February 13, 2017. OWCP afforded appellant 30 days to respond. 

In response, appellant submitted a note and a duty status report (Form CA-17) dated 

July 17, 2017 from Dr. Kent Zieser, a Board-certified internist, who diagnosed cervical disc 

disease with radiculopathy and opined that she was not capable of returning to work. 

By decision dated August 8, 2017, OWCP denied appellant’s claim for compensation 

finding that the medical evidence of record had not established total disability for the period 

February 13 through March 31, 2017 causally related to her accepted employment injuries. 

On September 5, 2017 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

Appellant submitted reports dated May 22 and June 13, 2017 from Dr. Christopher Chun, 

a Board-certified anesthesiologist and pain medicine specialist, who diagnosed radiculopathy, 

cervical region, and other cervical disc displacement, mid-cervical region. Dr. Chun reported that 

she had been involved in a work-related accident on January 15, 2017 and her pain had been 

worsening since the date of the incident due to repetitive motion. He related that appellant was 

currently dependent on analgesics for pain relief and her activities of daily living were limited. 

On February 10, 2017 Dr. Rao related that appellant’s initial onset of pain began on 

February 10, 2017 and reported increased pain with range of motion of the cervical spine and any 

type of lifting. He also reported that her symptoms were aggravated while at work and trying to 

sleep. Dr. Rao later indicated that appellant reported being injured on January 30, 2017 while at 

work. He advised that she was to remain off work in order to avoid the possibility of reinjury or 

reaggravation until further notice. 

In a report dated August 15, 2017, Dr. Zieser indicated that appellant’s initial onset of pain 

began on January 30, 2017 while at work and diagnosed cervical disc disorder with radiculopathy, 

right rotator cuff sprain and strain, and cervical sprain and strain. He advised that she was to 

remain off work in order to avoid the possibility of reinjury or reaggravation until further notice. 

A telephonic hearing was held before an OWCP hearing representative on 

February 14, 2018. Appellant provided testimony and the hearing representative held the case 

record open for 30 days for the submission of additional evidence. 

In a note and a duty status report (Form CA-17) dated March 26, 2018, Dr. Zieser 

diagnosed cervical degenerative disc disease and radiculopathy and advised that appellant was not 

capable of returning to work.

4

 

By decision dated April 30, 2018, an OWCP hearing representative affirmed the April 8, 

2017 decision finding that the medical evidence of record was insufficient to establish that 

appellant was totally disabled for the period claimed due to her accepted work-related conditions. 

 

4 The record also contains two reports dated September 11, 2017 from Dr. Rajesh G. Arakal, a Board-certified 

orthopedic surgeon, who recommended surgery for appellant’s cervical conditions. On April 2, 2018 Dr. Andrew R. 

Block, a Ph.D. in psychology, cleared appellant for an OWCP-approved cervical surgery. 
4

She found that appellant’s physicians provided no reasoning, other than a prophylactic one, for 

taking her off work, stating that they wanted to avoid “reinjury or reaggravation.” 

LEGAL PRECEDENT

Section 8102(a) of FECA5sets forth the basis upon which an employee is eligible for 

compensation benefits. That section provides: “The United States shall pay compensation as 

specified by this subchapter for the disability or death of an employee resulting from personal 

injury sustained while in the performance of his duty....” In general the term “disability” under 

FECA means “incapacity, because of an employment injury, to earn the wages the employee was 

receiving at the time of injury.”

6

 This meaning, for brevity, is expressed as disability for work.7 

For each period of disability claimed, the employee has the burden of proving that he was disabled 

for work as a result of the accepted employment injury.8 Whether a particular injury caused an 

employee to be disabled for employment and the duration of that disability are medical issues 

which must be proven by the preponderance of the reliable, probative, and substantial medical 

evidence.9

Disability is 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 his or 

her federal employment, but who nonetheless 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 under FECA, and is not entitled 

to compensation for loss of wage-earning capacity. The Board will not require OWCP to pay 

compensation for disability in the absence of any medical evidence directly addressing the 

particular period of disability for which compensation is claimed. To do so would essentially 

allow employees to self-certify their disability and entitlement to compensation.10

ANALYSIS

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

for the period February 13 through March 31, 2017 causally related to her employment injuries. 

While OWCP accepted that appellant sustained cervical disc disorder with radiculopathy 

(mid-cervical region), sprain of right rotator cuff capsule, strain of muscle(s) and tendon(s) of the 

rotator cuff of right shoulder, sprain of ligaments of cervical spine, and strain of muscle, fascia, 

and tendon at neck level due to factors of her federal employment, she bears the burden of proof

to establish, through rationalized medical evidence, that she was totally disabled during the 

 

5 5 U.S.C. § 8102(a).

6 20 C.F.R. § 10.5(f); see also N.M., Docket No. 18-0939 (issued December 6, 2018); William H. Kong, 53 ECAB 

394 (2002).

7 See T.O., Docket No. 17-1177 (issued November 2, 2018); Roberta L. Kaaumoana, 54 ECAB 150 (2002).

8 See T.O., id.; William A. Archer, 55 ECAB 674 (2004).

9 See T.O., id.; Fereidoon Kharabi, 52 ECAB 291-92 (2001).

10 J.R., Docket No. 17-0926 (issued July 12, 2018); Fereidoon Kharabi, id.
5

claimed period and that her disability was causally related to the accepted injuries.

11

 Appellant 

stopped work on February 13, 2017. The Board finds that she has not submitted rationalized 

medical evidence explaining how the accepted employment injury caused her to be disabled for 

work for the period February 13 through March 31, 2017.

In his reports, Dr. Chun diagnosed radiculopathy, cervical region, and other cervical disc 

displacement, mid-cervical region. He reported that appellant had been involved in a work-related 

accident on January 15, 2017 and her pain had been worsening since the date of the incident due 

to repetitive motion. Dr. Chun related that she was currently dependent on analgesics for pain 

relief and her activities of daily living were limited. The Board finds that this evidence failed to 

provide a probative medical opinion on whether appellant was disabled on the dates at issue due 

to her accepted right shoulder and cervical conditions.12 Consequently, the above-noted evidence 

is insufficient to satisfy her burden of proof.

In response to OWCP’s July 3, 2017 development letter, appellant submitted numerous 

form reports from her physicians, Drs. Rao and Zieser, indicating that she was not capable of 

working and advising her to remain off work in order to avoid the possibility of reinjury or 

reaggravation until further notice. Although Drs. Rao and Zieser opined that she was totally 

disabled for work, their opinions are conclusory in nature and fail to explain how the accepted

cervical and right shoulder conditions were responsible for her disability and why she could not 

perform her federal employment during the period claimed.13 Furthermore, they failed to explain 

how appellant’s work-related conditions had worsened such that she was no longer able to perform 

her federal duties when she stopped working on February 13, 2017. Consequently, the Board finds 

that the reports from Drs. Rao and Zieser are insufficient to establish her claim that she was totally 

disabled for the period February 13 through March 31, 2017, causally related to her accepted 

employment injuries.

The Board finds that appellant’s physicians have not provided sufficiently rationalized 

medical opinion evidence establishing that she was disabled for the period February 13 through

March 31, 2017 causally related to her accepted right shoulder and cervical conditions. Thus, 

appellant has not met her burden of proof to establish that she is entitled to compensation for total 

disability.

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 total disability 

for the period February 13 through March 31, 2017 causally related to her accepted employment 

injuries.

 

11 See supra notes 8 and 9. See also V.P., Docket No. 09-0337 (issued August 4, 2009).

12 See Amelia S. Jefferson, 57 ECAB 183 (2005).

13 See J.J., Docket No. 15-1329 (issued December 18, 2015).
6

ORDER

IT IS HEREBY ORDERED THAT the April 30, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 20, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board