United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.I., Appellant

and

INSTITUTE OF AMERICAN INDIAN ARTS, 

HUMAN RESOURCES OFFICE, Santa Fe, NM, 

Employer

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Docket No. 18-1582

Issued: June 20, 2019

Appearances: Case Submitted on the Record

Gregory A. Hall, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On August 13, 2018 appellant, through counsel, filed a timely appeal from a February 21, 

2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

 

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

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

ISSUE

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

work for the period June 28 to October 30, 2015 causally related to his accepted April 1, 2014 

employment injury.

FACTUAL HISTORY

On April 1, 2014 appellant, then a 55-year-old driver, filed a traumatic injury claim (Form 

CA-1), alleging that on that date he sustained head, neck, and back injuries as a result of a motor 

vehicle accident while in the performance of duty. OWCP accepted the claim for neck sprain and 

lumbar sprain4 The two claims were administratively combined and appellant returned to fulltime, modified-duty work on September 10, 2014.

In reports dated July 9, August 12, and September 24, 2015, Dr. Belyn Schwartz, a Boardcertified physiatrist and pain medicine specialist, diagnosed neck pain on left side, low back pain, 

anxiety and depression, and post-concussive syndrome. On August 12, 2015 she advised that 

appellant should “[c]ontinue total work restrictions. The reason for the total work restrictions is

multifactorial with pain and worsening pain and function with activity, worsening ability to 

organized cognitive which would make work unsafe, complicated by anxiety and depression.” On 

September 24, 2015 Dr. Schwartz advised that given his neck pain appellant could consider 

gradual return to work. She indicated that appellant underwent neuropsychological testing which 

revealed variable attention, but overall he did not meet the threshold for post-concussive syndrome, 

depression, or anxiety. 

Appellant filed a claim for wage-loss compensation (Form CA-7) for the period June 28 to 

October 30, 2015. 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the February 21, 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.

4 The present claim was assigned File No. xxxxxx768. Appellant had a previous claim involving a June 17, 2011 

traumatic injury, which was accepted for open wound of scalp, neck sprain, cervical degenerative disc disease (DDD), 

and post-concussion syndrome, under File No. xxxxxx687. By decision dated December 10, 2015, OWCP denied 

appellant’s claim for wage-loss compensation under File No. xxxxxx687, finding that the medical evidence of record 

failed to establish disability from work for the period April 1 to June 27, 2015 causally related to his accepted 

employment injury. File Nos. xxxxxx687 and xxxxxx768 have been administratively combined, with File No. 

xxxxxx768 serving as the master file. 
3

By development letter dated November 13, 2015, OWCP notified appellant of the 

deficiencies of his claim for wage-loss compensation. It requested that he provide additional 

medical evidence in support of his claim and afforded him 30 days to respond.

OWCP subsequently received an October 29, 2015 report from Dr. Manuel Guillen, a 

Board-certified psychiatrist, who diagnosed anxiety disorder, unspecified. 

In a second opinion report, under File No. xxxxxx687 dated September 9, 2015,

Dr. Keith W. Harvie, a Board-certified orthopedic surgeon, concluded that there were no objective 

findings that supported continuing residuals. He advised that appellant was capable of lifting up 

to 20 pounds, bending and stooping for one hour, and had no restrictions on sitting, walking, 

standing, reaching above shoulder, twisting, or operating a motor vehicle as long as he was off 

narcotic medications. Dr. Harvie asserted that once appellant was weaned off of all narcotic

medications he would be ready for full-duty work. 

By decision dated February 5, 2016, OWCP denied appellant’s claim for wage-loss 

compensation, finding that the medical evidence of record was insufficient to establish disability 

from work for the period June 28 to October 30, 2015 causally related to his accepted April 1, 

2014 employment injury.

On March 2, 2016 appellant, through counsel, requested an oral hearing before a 

representative of the Branch of Hearings and Review. 

In an addendum report dated March 9, 2016, Dr. Harvie clarified that appellant’s 

restrictions were temporary until he was weaned off narcotic medications. He submitted a work 

capacity evaluation form (Form OWCP-5c) indicating that appellant had reached maximum 

medical improvement (MMI) on June 28, 2015 and was capable of working with restrictions of 

lifting up to 20 pounds for four hours per day and bending and stooping up to four hours per day. 

On March 17, 2016 Dr. Schwartz indicated that appellant continued to use Oxycodone and 

was stable on pain medicines.

In an August 25, 2016 report, Dr. Leslie S. Harrington, a Board-certified physiatrist, 

diagnosed chronic left neck pain post work-related injury 2011, anxiety and depression, insomnia, 

post-concussive syndrome, and low back pain. 

A telephonic hearing was held before an OWCP hearing representative on October 3, 2016. 

Appellant provided testimony and the hearing representative held the case record open for 30 days 

for the submission of additional evidence. No additional evidence was received.

By decision dated November 29, 2016, OWCP’s hearing representative affirmed the

February 5, 2016 OWCP decision, finding that the medical evidence of record was insufficient to 

establish that appellant was disabled from work for the period June 28 to October 30, 2015 causally 

related to his accepted April 1, 2014 employment injury.

Appellant subsequently submitted a December 1, 2015 report from Dr. Guillen diagnosing 

anxiety and mood disorder. 
4

Appellant further submitted reports dated December 15 and 20, 2016 and February 14, 

April 11, June 6, July 11, and August 3, 2017 from Dr. Harrington who reiterated her diagnoses 

and indicated that appellant’s current medications included narcotic medications. 

In a letter dated June 2, 2016, the employing establishment notified appellant that his 

employment had been terminated due to job abandonment as of June 10, 2016. The employing 

establishment indicated that his treating physician had opined that he could not continue in his 

position as a transportation officer, so it offered him a modified student life aide position, which 

was within his work restrictions. It stated that appellant was unable to complete the duties of the 

modified position and left the job pending the outcome of his workers’ compensation claim for

permanent disability. Appellant requested leave without pay (LWOP) status and his last day of 

work was May 15, 2015. On November 13, 2015 the employing establishment received notice 

that his permanent disability claim had been denied, but he did not return to work. However, as 

appellant informed the employing establishment that he was still involved in an appeal, it 

continued to hold his position and pay his health insurance premiums in expectation that he might 

return once the entire process was complete. On May 23, 2016 he notified the employing 

establishment that he had left the state and relocated to Denver, Colorado. 

Appellant submitted a work capacity evaluation form (Form OWCP-5c) dated May 6, 2015 

from Dr. Schwartz who opined that appellant had reached MMI, “except for concussion,” and was 

capable of working part-time with the following restrictions for two months with the anticipation 

of achieving an eight-hour workday after the two-month period expired: sitting for three hours per 

day; walking and standing for one hour per day; reaching, reaching above shoulder, twisting, 

bending, stooping, squatting, kneeling, and climbing for four hours per day; lifting up to 20 pounds 

for four hours per day; and no operating a motor vehicle.

On November 27, 2017 appellant, through counsel, requested reconsideration. 

By decision dated February 21, 2018, OWCP denied modification of its prior decision. 

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.5 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.6 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.7

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 

 

5 See D.W., Docket No. 18-0644 (issued November 15, 2018).

6

Id.

7 See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).
5

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.8 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 proven by a preponderance of the reliable, probative, and substantial medical 

evidence.9

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

relationship is rationalized medical evidence.10 Rationalized medical evidence is medical evidence 

which includes a physician’s detailed medical opinion on the issue of whether there is a causal 

relationship between the claimant’s diagnosed condition and the implicated employment incident. 

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.11 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.12

The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability from work for which 

compensation is claimed. To do so, would essentially allow an employee to self-certify their 

disability and entitlement to compensation.13

ANALYSIS

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

from work for the period June 28 to October 30, 2015 causally related to his accepted April 1, 

2014 employment injury. 

While OWCP accepted that appellant sustained neck and lumbar sprains on April 1, 2014, 

he bears the burden to establish through medical evidence that he was disabled during the claimed 

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

14

 The Board finds that 

he has not submitted rationalized medical evidence explaining how the accepted employment 

injuries caused him to be disabled from work for the period June 28 to October 30, 2015.

 

8

Id.

9 T.O., Docket No. 17-1177 (issued November 2, 2018).

10 D.W., Docket No. 18-0644 (issued November 15, 2018).

11 C.B., Docket No. 18-0633 (issued November 16, 2018).

12 Supra note 8.

13 See B.K., Docket No. 18-0386 (issued September 14, 2018).

14 See supra notes 9 and 13. See also V.P., Docket No. 09-0337 (issued August 4, 2009).
6

In a work capacity evaluation form (Form OWCP-5c) dated May 6, 2015, Dr. Schwartz 

opined that appellant was capable of working part time in that he could sit for three hours per day, 

walk and stand for one hour per day, reach above shoulder, twist, bend, stoop, squat, kneel, and 

climb for four hours per day, lift up to 20 pounds for four hours per day, and he could not operate

a motor vehicle. She further opined that she anticipated that appellant would be capable of 

returning to full-time work after two months. 

Similarly, in a September 9, 2015 second opinion report, Dr. Harvie opined that appellant 

was capable of working with restrictions of lifting up to 20 pounds for four hours per day and 

bending and stooping up to four hours per day. Appellant returned to modified duty as a student 

life aide, a position created for him by the employing establishment which did not require him to 

operate a motor vehicle, based on Dr. Schwartz’s and Dr. Harvie’s restrictions. However, 

appellant stopped work on May 15, 2015 and on May 23, 2016, notified the employing 

establishment that he had relocated out of state. The Board has held that, when a claimant stops 

work for reasons unrelated to his accepted employment injury, he has no disability within the 

meaning of FECA.15 Further, Dr. Schwartz’s May 6, 2015 and Dr. Harvie’s September 9, 2015 

reports do not establish total disability from work for the period June 28 to October 30, 2015. 

Rather, the reports provide appellant with work restrictions and did not indicate he was totally 

disabled from work for the claimed period due to his April 1, 2014 employment injury. Thus, the 

Board finds that this evidence is insufficient to establish appellant’s claim that he was totally 

disabled for the period June 28 to October 30, 2015 causally related to his accepted April 1, 2014 

employment injury.

In her August 12, 2015 report, Dr. Schwartz advised that appellant should continue total 

work restrictions indicating that the basis for the work restrictions was in part due to worsening 

pain and function with activity and worsening ability to organize cognitively, complicated by 

anxiety and depression. The Board finds that her opinion that appellant was totally disabled from

work is conclusory in nature, and fails to explain in detail how the accepted medical conditions of 

neck and lumbar sprains were responsible for appellant’s disability and why he could not perform 

his federal employment as a student life aide during the period claimed.16 Moreover, Dr. Schwartz 

later opined in a report dated September 24, 2015 that appellant did not meet the threshold for 

post-concussive syndrome, depression or anxiety and could consider gradual return to work. 

Consequently, the Board finds that Dr. Schwartz’s August 12 and September 24, 2015 reports are 

insufficient to establish appellant’s claim that he was totally disabled for the period June 28 to 

October 30, 2015 causally related to his accepted April 1, 2014 employment injury.

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

medical opinion evidence establishing that he was disabled during the period June 28 to 

October 30, 2015 causally related to his accepted neck and lumbar sprain conditions. Thus, 

appellant has not met his burden of proof to establish that he is entitled to compensation for total 

disability.

 

15 V.M., Docket No. 16-0062 (issued May 18, 2016); V.B., Docket No. 12-0114 (issued June 13, 2012); E.S., Docket 

No. 11-0657 (issued February 9, 2012); see John W. Normand, 39 ECAB 1378 (1988).

16 See J.J., Docket No. 15-1329 (issued December 18, 2015).
7

On appeal counsel contends that the medical evidence of record is sufficient to establish 

that appellant was totally disabled fromr work for the period June 28, 2015 to October 30, 2015 

due to the accepted April 1, 2014 employment injury. As noted above, the medical evidence of 

record does not establish that appellant was totally disabled from work during the claimed period. 

Appellant has, therefore, not met his burden of proof. 

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 his burden of proof to establish that he was 

totally disabled from work for the period June 28 to October 30, 2015 causally related to his 

accepted April 1, 2014 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the February 21, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 20, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board