United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.D., Appellant

and

U.S. POSTAL SERVICE, MOUNTAIN 

STATION, Killeen, TX, Employer

__________________________________________

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Docket No. 18-0255

Issued: July 2, 2018

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 16, 2017 appellant, through counsel, filed a timely appeal from a 

September 14, 2017 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.

 

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

ISSUE

The issue is whether appellant met her burden of proof to establish total disability for the 

period September 19, 2015 through January 8, 2016 causally related to a September 16, 2015 

employment injury.

On appeal counsel asserts that OWCP’s decision ignored clinical findings.

FACTUAL HISTORY

On September 17, 2015 appellant, then a 39-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her head on a mailbox while delivering mail on 

September 16, 2015. She stopped work on the date of injury. On January 5, 2016 OWCP accepted 

appellant’s claim for concussion with loss of consciousness of 30 minutes or less. 

An emergency responder report dated September 16, 2015 noted a history that appellant 

hit the back of her head on a mailbox when she rose from picking up something she had dropped, 

that she had a short loss of consciousness, and that she complained of continued dizziness and 

nausea. A small laceration was noted on the posterior side of her head. Neurological status was 

assessed as normal. Appellant was transported to Seton Medical Center emergency department. 

On a September 16, 2015 emergency department report, Dr. Jared R. Kennedy, an 

emergency medicine physician, reported a history that appellant hit her head on a mailbox. He 

described physical examination findings and advised that a computerized tomography (CT) scan 

of the head was normal. Dr. Kennedy diagnosed minor closed head injury. Appellant was 

discharged home in stable condition with pain medication. She was again seen in the emergency 

department on September 17, 2015. Dr. Kennedy noted a complaint of an intense headache. 

Medication was administered. Appellant was discharged with a diagnosis of headache. 

In a treatment note dated September 25, 2015, Dr. Don Michael Thompson, a Boardcertified internist, reported a history of closed head injury and appellant’s continued complaint of 

pressure to the base of her skull, difficulty with thought processes, insomnia, and occasional 

dizziness, worsened by exertion. Neurological examination demonstrated intact cranial nerves, no 

sensory-motor dysfunction, and no dysmetria. Dr. Thompson recommended evaluation by a 

neurologist. He also submitted an attending physician’s report (Form CA-20) and a duty status 

report (Form CA-17) dated September 25, 2015 indicating that appellant could not work due to a 

diagnosed concussion.

In a September 30, 2015 statement, L.B., an employing establishment supervisor, noted 

that she went to the incident location, after appellant reported her injury. She related that appellant 

was sitting in the postal vehicle when she arrived. L.B. indicated that she called 911 because 

appellant felt she would pass out, and that another supervisor, A.F., came to prepare an accident 

report.

On October 1, 2015 Dr. Thompson reported that appellant was on daily medication and 

continued to experience functional deficits including difficulty with thought processes, occasional 
3

dizziness, and insomnia, and a feeling of pressure at the base of her skull. He advised that she 

could not return to work. 

In an undated statement received by OWCP on November 9, 2015, appellant reported that 

she hit her head when she stood up after picking up a piece of dropped mail. She indicated that 

she felt sharp pain, her head was bleeding, and she believed she passed out. Appellant called her 

husband and L.B., who came and moved her to her vehicle. Emergency responders arrived, and

she was transported to the hospital. Appellant related that she continued to have headaches, 

nausea, difficulty with thought processes, and insomnia, and had not returned to work. Appellant’s 

husband also submitted a statement describing the event that occurred on September 16, 2015.

In reports dated October 23 and 27, 2015, Dr. Thompson advised that appellant was unable 

to work. He diagnosed concussion with loss of consciousness of 30 minutes or less. On a duty 

status report dated December 8, 2015, Dr. Thompson advised that appellant could return to 

modified duty for six hours daily. On a duty status report dated December 15, 2015, he advised 

that she could not work. 

On January 8, 2016 appellant filed a claim for compensation (Form CA-7) for the period

November 3 to December 29, 2015. The employing establishment indicated that she had been on 

leave without pay (LWOP) status for this period and had returned to work for six hours daily on 

December 12, 2015. 

By report dated January 14, 2016, Dr. Thompson indicated that since the injury appellant 

had been treated with medication, physical rehabilitation, and had undergone diagnostic studies. 

He noted that she reported that her concussion symptoms had resolved and that she denied nausea, 

insomnia, dizziness, or any additional symptom other than pain at the base of her cervical spine 

which had become worse. Dr. Thompson related that appellant had an appointment with a 

neurologist on December 13, 2015 and with an orthopedic surgeon on January 4, 2016. He 

reported that a cervical spine magnetic resonance imaging (MRI) scan had been performed on 

December 14, 2015 and requested that an additional condition of osseous and subluxation stenosis 

of intervertebral foramina of cervical region also be accepted, based on the MRI scan findings.

3

 

Dr. Thompson maintained that the September 16, 2015 employment injury aggravated appellant’s 

cervical spine causing consequential stenosis. 

By development letter dated January 25, 2016, OWCP informed appellant that additional 

medical evidence was needed to support her disability claim. Appellant was afforded 30 days to 

submit the necessary evidence. 

In a February 1, 2016 report, Dr. Thompson indicated that appellant had documented 

measurable physical disability which resulted in incapacitation from September 25 through 

December 7, 2015. Appellant’s findings included decreased muscle strength, decreased range of 

motion, decreased overall function, and significant increase of pain. Dr. Thompson opined that 

appellant continued to have ongoing physical findings related to progressive degeneration of her 

head and neck caused by the employment injury which impacted her work and activities of daily 

living. He noted that appellant required the daily use of pain medication, that she was not 

 

3 A copy of a December 14, 2015 cervical spine MRI scan is not found in the record before the Board.
4

improving, and that she could not return to full duty due to the nature and severity of the 

September 16, 2015 employment injury. Dr. Thompson recommended orthopedic evaluation. In 

a letter dated February 17, 2016, he reiterated his conclusions.

On February 17, 2016 appellant filed a CA-7 claim for the period September 19, 2015 to 

January 8, 2016. The employing establishment indicated that appellant had received continuation 

of pay for the period September 19 to October 31, 2015. An accompanying time analysis form 

(Form CA-7a) indicated that she worked eight hours each day from December 26, 2015 through 

January 2, 2016 with the exception of 16 hours LWOP on December 30 and 31, 2015, indicating 

that this was “per her doctor.”

4

A July 15, 2016 MRI scan of the brain was negative.

By decision dated December 28, 2016, OWCP denied appellant’s claim for disability 

compensation for the period September 19, 2015 to January 8, 2016. It found the medical evidence 

insufficient to establish that she was disabled due to the accepted condition. 

On January 3, 2017 counsel requested a hearing before an OWCP hearing representative. 

In a January 4, 2017 report, Dr. Alina Sholar, a Board-certified plastic surgeon and an 

associate of Dr. Thompson, noted the history of injury. She indicated that appellant had 

documented measurable physical disability which resulted in incapacitation from September 25 

through December 8, 2015 and was again taken off work from December 15, 2015 through 

January 28, 2016. Dr. Sholar noted appellant’s complaints of ongoing memory loss, headaches,

and lack of balance related to the progressive degeneration of her head that was a result of the 

employment injury and reiterated Dr. Thompson’s findings and conclusions.

At the hearing, held on July 11, 2017, it was determined that the dates of claimed disability 

were September 19, 2015 to January 8, 2016. Appellant described the employment injury. She 

testified that she had not seen a neurologist and had progressively improved over time. Counsel 

argued that Dr. Thompson’s reports were sufficient to establish total disability for the period 

claimed due to the accepted concussion. 

By decision dated September 14, 2017, an OWCP hearing representative found that 

appellant failed to provide sufficient medical evidence to support the claimed period of disability 

and affirmed the December 28, 2016 decision.5 

 

4 Appellant also noted that she did not work on January 1, 2016, a federal holiday. On March 11, 2016 OWCP 

asked that its medical adviser, Dr. Morley Slutsky, Board-certified in occupational medicine, provide an opinion to 

determine if the consequential injury of osseous and subluxation stenosis of intervertebral foramina of cervical region 

should be accepted as a result of the September 16, 2015 employment injury. In a March 18, 2016 report, Dr. Slutsky 

indicated that he had only been furnished a statement of accepted facts and one report by Dr. Thompson. OWCP’s

medical adviser requested that additional medical reports, including diagnostic studies be forwarded. No further 

development is found in the case record.

5 The Board notes that the hearing representative indicated that the claimed period of disability was for the period 

from September 19, 2015 through January 7, 2016.
5

LEGAL PRECEDENT

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.6 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.7

Causal relationship is a medical issue and the medical evidence required to establish a 

causal relationship is rationalized medical evidence.8 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 employee.9 

Neither the mere fact that a disease or condition manifests itself during a period of employment,

nor the belief that the disease or condition was caused or aggravated by employment factors or 

incidents is sufficient to establish causal relationship.10

ANALYSIS

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

for the period September 19, 2015 through January 8, 2016. The accepted condition is concussion 

with loss of consciousness of 30 minutes or less. 

The Board initially notes that appellant received continuation of pay for the period 

September 19 to October 31, 2015. Section 8118(c) of FECA provides that compensation for 

disability does not begin until termination of continuation of pay or the use of annual or sick leave 

ends.11 As appellant received continuation of pay for a portion of her claimed disability, the Board 

finds that the period of claimed disability would thus be November 1, 2015 through 

January 8, 2016. 

Regarding the period of claimed disability beginning on November 1, 2015, in his reports 

dated February 1 and 17, 2016, Dr. Thompson advised that appellant was totally disabled from

September 25 through December 7, 2015 due to decreased muscle strength, decreased range of 

 

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

7 Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10 Dennis M. Mascarenas, 49 ECAB 215 (1997).

11 5 U.S.C. § 8118(c); see L.C., 59 ECAB 569 (2008).
6

motion, decreased overall function, and significant increase of pain. As noted, the accepted 

condition is concussion, and Dr. Thompson did not explain how these findings were caused by this 

condition other than generally opining that her physical findings were related to progressive 

degeneration of her head and neck due to the employment injury. Dr. Thompson expressed no 

specific knowledge of appellant’s job duties. He did not specifically address whether appellant 

had any employment-related disability beginning November 1, 2015 causally related to her 

accepted condition.12 Dr. Thompson did not fully address why appellant required work restrictions 

or how these restrictions were attributable to the September 16, 2015 employment injury. The 

Board has found that vague medical opinions which do not explain causal relationship are of 

diminished probative value.13 In his report dated January 14, 2016, Dr. Thompson indicated that 

appellant reported that her concussion symptoms had resolved. While he noted that appellant had 

a December 18, 2015 appointment with a neurologist on December 18, 2015, appellant testified 

that she had not seen a neurologist, and there is no evidence of record to indicate that she was 

examined by a neurologist. Dr. Thompson also indicated that appellant had an appointment with 

an orthopedic surgeon on January 4, 2016. Again, there is no evidence that appellant was seen by 

an orthopedic surgeon. 

In her January 4, 2017 report, Dr. Sholas, who expressed agreement with Dr. Thompson’s 

findings and conclusion, reported that appellant had functional deficits in addition to physical 

symptomatology that caused her total disability from September 25 through January 8, 2015. The 

record, however, does not contain any test results that demonstrate specific functional deficits. 

The issue of disability from work can only be resolved by competent medical evidence.14 

Whether a claimant’s disability is 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.15 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.16 In the absence of sufficient medical evidence, the Board finds that 

the medical evidence of record is insufficient to establish that appellant was totally disabled from 

work during the claimed period. Neither Dr. Thompson nor Dr. Sholar explained with sufficient 

rationale why she could not perform her job duties due to the accepted concussion.26

Thus, contrary to counsel’s assertion on appeal, appellant did not submit sufficient 

rationalized medical opinion evidence to establish that she was unable to work for the period 

November 1, 2015 through January 8, 2016 due to accepted condition. She, therefore, failed to 

 

12 See K.C., Docket No. 17-0379 (issued November 9, 2017). 

13 See A.D., 58 ECAB 149 (2006); Mary E. Marshall, 56 ECAB 420 (2005).

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

15 See Sandra D. Pruitt, 57 ECAB 126 (2005).

16 Thaddeus J. Spevack, 53 ECAB 474 (2002).
7

establish that the claimed disability was employment related and was thus not entitled to wageloss compensation for this period.17

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 that she was 

totally disabled for the period November 1, 2015 through January 8, 2016 causally related to the 

accepted concussion with loss of consciousness of 30 minutes or less.

ORDER

IT IS HEREBY ORDERED THAT the September 14, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 2, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

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