United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.B., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

LAKEWOOD SOCIAL SECURITY OFFICE, 

Lakewood, CA, Employer

__________________________________________

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Docket No. 19-1775

Issued: December 18, 2019

Appearances: Case Submitted on the Record

Brett Elliot Blumstein, 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

JANICE B. ASKIN, Judge

JURISDICTION

On August 21, 2019 appellant, through counsel, filed a timely appeal from a June 17, 2019 

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 has met his burden of proof to establish disability from work 

for the periods September 8 to 22, and November 8 to December 11, 2017, and commencing 

December 25, 2017.

FACTUAL HISTORY

On August 3, 2014 appellant, then a 37-year-old service representative, filed a traumatic 

injury claim (Form CA-1) alleging that on July 7, 2014 he injured his lower extremities, back, and 

neck when he backed into a coworker causing him to twist and fall while in the performance of 

duty. He was off work and the employing establishment provided continuation of pay from July 8 

through August 21, 2014. 

In reports dated July 23 through September 17, 2014, Dr. William H. Warden, III, Boardcertified in orthopedic sports medicine, noted findings on physical examination and diagnosed 

polytrauma including cervical strain, lumbar strain, bilateral knee pain secondary to sprain, and 

left ankle sprain. He reviewed a magnetic resonance imaging (MRI) scan of his right knee and 

noted a bone contusion.3 Dr. Warden also noted that there was a question of a possible new onset 

of a meniscal tear as well as a sprain of the medial collateral ligament. He opined that the 

employment incident in July 2014 was the cause of his diagnosed conditions.

By decision dated October 24, 2014, OWCP accepted the claim for the conditions of right 

neck strain, lumbar back sprain, and an aggravation of a tear of the medial meniscus of the right 

knee.4 Appellant was retroactively placed on the supplemental rolls commencing 

August 24, 2014. He received wage-loss compensation through March 20, 2015.

OWCP referred appellant, a copy of the medical record, and a statement of accepted facts

(SOAF) to Dr. Kevin J. Pelton, an orthopedic specialist serving as a second opinion physician, for 

an examination on January 7, 2015. In a report dated January 17, 2015, Dr. Pelton noted his 

review of the SOAF and medical record, the history of injury and treatment, and findings on 

physical examination. Based upon his physical examination findings, he indicated that appellant 

should return to modified-duty work with “no very heavy lifting” for the cervical and lumbar spine; 

no prolonged walking, climbing, or descending stairs; and no bending or stooping. Dr. Pelton 

noted that if appellant were to undergo a partial medical meniscectomy that he would be 

temporarily totally disabled for six to eight weeks followed by a period of modified-duty 

employment.

In a series of medical reports by Dr. Warden, appellant was found to be unable to return to 

work. Thereafter, in a note dated March 11, 2015, Dr. Warden noted his review of the second 

opinion report of Dr. Pelton and opined that appellant was at maximum medical improvement and

 

3 An August 8, 2014 MRI scan of the right knee was submitted to OWCP on June 6, 2016 which noted, amongst 

other findings, a retear of the posterior horn of the medial meniscus.

4 The record establishes that appellant had a prior right knee injury which required surgery in April 2013.
3

could return to modified employment with restrictions of no lifting greater than 50 pounds; no 

prolonged walking, climbing, or descending stairs; and no squatting or kneeling.

Appellant returned to work with the employing establishment in a modified position on 

March 23, 2015. He explained that he had been provided a foam prop to use in his chair and was 

allowed to self-modify his duties to alleviate his pain.

In a report and accompanying state workers’ compensation claim form dated April 2, 2015,

Dr. Philip Yuan, a Board-certified orthopedic surgeon, noted that he examined appellant for 

cervical and lumbar spine conditions. He reported physical examination findings and noted that 

he complained that his symptoms had worsened over the prior week and half after he had returned 

to work. Dr. Yuan also noted that appellant complained of pain that radiated to the bilateral upper 

extremities, his shoulder blades, and down the entire posterior of his upper extremity into his hands 

with accompanying numbness and tingling. He reported that he walked with a non-ataxic, nonantalgic gait and ambulated well, but that he could not toe walk due to complaints of knee 

problems. Dr. Yuan reviewed x-rays performed that day, which showed that the lumbar spine 

maintained disc heights, well-aligned vertebral bodies, no acute fractures, and no instability and 

that the cervical spine showed some loss of lordosis, but otherwise demonstrated well-aligned 

vertebral bodies and maintained disc heights. He recommended physical therapy for a likely 

cervical and lumbar strain/sprain. Dr. Yuan opined that appellant was capable of a return to fullduty employment.

In a report dated September 23, 2015, Dr. Warden noted that appellant had returned with a 

complaint that his right knee pain was “killing” him and that he had medial pain, popping, and 

catching of the knee which was aggravated by twisting. He requested authorization for right knee 

medial meniscectomy given worsening medial pain and mechanical symptoms. Dr. Warden 

maintained his prior restrictions. The request for surgical authorization and restrictions were also 

reiterated in his March 16, June 1, and December 16, 2016 reports.

In a report and accompanying state workers’ compensation claim form dated 

September 24, 2015, Dr. Yuan noted that appellant reported persistent back and neck pain with a 

pain level as high as 8 out of 10, which was dull and throbbing at times. He recommended that 

due to persistent pain that he be scheduled for both cervical and lumbar MRI scans to rule out an

unusual cause of his pain. Dr. Yuan noted that it was well over a year since the employment injury 

and that it was unusual for back pain to persist for this long, but appellant remained very 

symptomatic and had limited mobility. He opined that he could continue full-duty employment 

with no limitations or restrictions.

In notes dated August 9 to September 22, 2017, Dr. Warden continued to request 

authorization for a right knee medial meniscectomy. In a note dated August 9, 2017, he continued 

appellant on his prior restrictions. In a note dated September 7, 2017, Dr. Warden noted that he

was temporarily totally disabled for the period from September 8 through 22, 2017 with an 

anticipated return to work on September 23, 2017. In a note dated September 22, 2017, he returned 

appellant to work with restrictions of no lifting greater than 50 pounds, no prolonged walking of 

longer than 20 minutes continuously, no climbing or descending stairs, no squatting past 90 

degrees with knee flexion, no kneeling, and the need for ergonomic adjustments including allowing 

a printer to be at his desk to avoid walking.
4

On September 27, 2017 appellant filed a wage-loss compensation claim (Form CA-7) for 

the period from September 8 to 22, 2017.

In a note dated November 9, 2017, Dr. Warden restricted appellant from work until 

December 11, 2017 and in a note dated December 12, 2017 he restricted appellant from work until 

January 15, 2018.

On December 15, 2017 appellant filed a wage-loss compensation claim (Form CA-7) for 

the period from November 8 to December 11, 2017.

In a note dated December 16, 2018, Dr. Warden restricted appellant from work from 

December 12, 2017 through January 15, 2018 and in a note dated January 16, 2018 he restricted 

appellant from work from January 16 through February 16, 2018 and continued to request surgical 

authorization.

On January 16, 2017 appellant filed a Form CA-7 for wage-loss compensation for the 

period from December 25, 2017 to January 19, 2018.

In a development letter dated January 20, 2018, OWCP informed appellant that the medical 

evidence of record was insufficient to develop his wage-loss compensation claims and requested 

that he submit contemporaneous medical evidence which provided an explanation as to why he 

was unable to work based on objective findings related to his right knee, neck, or lower back 

conditions. It afforded appellant 30 days to respond.

On February 7 and 20, 2018 appellant filed additional Form CA-7’s, claiming 

compensation for the periods from January 22 to February 2 and from February 5 to 8, 2018.

In a note dated February 19, 2018, Dr. Warden restricted appellant from work from 

February 19 through April 8, 2018.

On March 12, 2018 appellant filed an additional Form CA-7, claiming compensation for 

the period from February 19 to March 2, 2018.

By decision dated March 19, 2018, OWCP denied appellant’s wage-loss compensation 

claims for the period from September 8 to 22, November 8 to December 11, 2017, and 

commencing December 25, 2017. It found that appellant had not submitted rationalized medical 

evidence to support that he was removed from work by Dr. Warden causally related to an accepted 

medical condition.

On April 3, 2018 appellant filed a Form CA-7 claiming compensation for the period from 

March 19 to 30, 2018.

In a report dated April 6, 2018, Dr. Warden restricted appellant from work until 

May 6, 2018. He noted that he presented with continued low back pain, right lower extremity 

pain, and left knee pain. Appellant also reported that he had pain throughout the right side of his 

neck and the right lower back into the lower extremity. Dr. Warden diagnosed chronic pain of the 

right knee, other tear of the medial meniscus of the right knee, status post ACL reconstruction, and 

acute right-sided low back pain with right-sided sciatica.
5

On April 27, 2018 appellant filed Form CA-7’s, claiming compensation for the periods 

from April 2 to 13, and 20 to 27, 2018.

In a report dated May 4, 2018, Dr. Warden noted that appellant returned with continued 

right knee pain which limited his function and his ability to climb stairs. He also noted that he had 

difficulty sleeping secondary to pain. Dr. Warden explained that appellant was unable to endure 

the demands placed on him at work secondary to right knee symptoms and lumbar pathology. He

restricted appellant from work for six weeks commencing May 4, 2018. In a report dated May 17, 

2018, Dr. Warden noted that appellant returned with progressive worsening of low back symptoms 

along with bilateral lower extremity numbness and tingling that was right-side dominant. He noted 

his complaint of physical therapy making his back pain worse such that he had to abruptly stop 

therapy.5 Dr. Warden noted that appellant was taking anti-inflammatories and muscle relaxants to 

help with pain. He noted that he had tenderness to palpation over the right greater trochanteric 

region, a positive straight leg raise test bilaterally, right-sided antalgic gait, was unable to ambulate 

on tiptoes and heels, and had tenderness to palpation over the paraspinal musculature of the low 

back. Dr. Warden diagnosed low back pain, unspecified back pain laterality, unspecified 

chronicity with sciatica present, and retrolisthesis of vertebrae. For lumbar stenosis, he

recommended a lumbar MRI scan.

On June 13, 2018 appellant requested a review of the written record.

In support thereof, appellant submitted a May 4, 2018 letter from Dr. Warden responding 

to the denial of his claims for wage-loss compensation. He responded to the decision’s contention 

that the medical records failed to provide physical findings or objective evidence of his disability 

for the time that he was off work by noting that he had made sufficient physical and objective 

findings upon examination. Dr. Warden noted that he had consistently reported the activities from 

which he was precluded from performing or subjectively claimed he was unable to perform. He 

reiterated that appellant had significant difficulty in performing those activities due to his pain. 

Dr. Warden noted that in the objective findings of each visit he attended, there was documentation 

of a physical examination pertinent to the areas in question showing his limitations on examination

that would correlate with his functional limitations, which were noted to incapacitate him in his

ability, at the time, to work given the requirements set forth in his position description. He 

explained that appellant was placed off work for an extended period of time and the end date had

not been determined due to his limited ability to obtain medical treatment. Dr. Warden reported 

that he had tried referring him to an appropriate specialist to obtain a complete work up of his 

limitations, all of which had been denied by OWCP.

In a report and accompanying restriction note dated June 15, 2018, Dr. Warden noted that 

appellant presented with continued right knee pain which limited his function and resulted in 

difficulty with sleeping. He indicated that he complained that his knee felt that it wanted to give 

way and that he had intermittent episodes of swelling at the knee. Dr. Warden noted physical 

examination findings and restricted appellant from work for six weeks commencing June 15, 2018.

 

5

In support of his claim, appellant submitted numerous physical therapy notes.
6

On June 29, 2018 appellant filed a series of Form CA-7’s, claiming compensation for the 

periods from April 30 to July 6, 2018.

Appellant submitted a lumbar spine MRI scan report dated June 21, 2018, which noted a 

disk desiccation at L5-S1 and a broad-based asymmetric posterior disk protrusion, which was at 

its maximum on the left side measured approximately three mm and made contact with the left S1 

nerve root and encroached into the left neural foramen with mild narrowing of the left neural 

foramen.

On June 26, 2018 appellant filed a Form CA-7, claiming compensation for the period from 

June 9 to 20, 2018.

In a note dated July 27, 2018, Dr. Warden examined appellant and restricted him from 

work for six weeks commencing that date. He provided diagnoses of ongoing right knee and 

lumbar spine conditions. Dr. Warden made a referral to Dr. Yuan for further lumbar spine 

examination and treatment.

In a report dated August 27, 2018, Dr. Yuan noted that he examined appellant for the chief 

complaint of low back pain with bilateral lower extremity pain, numbness, and tingling. He noted 

the September 24, 2015 employment injury and described appellant’s ongoing low back 

complaints with radiculopathy. Dr. Yuan noted that during physical therapy his pain had been 

made worse. He reviewed the imaging studies and diagnosed bilateral sciatica, lumbar 

radiculopathy, and spinal stenosis of the lumbar region without neurogenic claudication. Dr. Yuan 

requested additional MRI scans and suggested epidural injections. He restricted appellant from 

work for two weeks. On August 30, 2018 Dr. Yuan noted that he complained of ongoing back 

pain and radiculopathy. He reviewed a recent MRI scan and noted that his lumbar MRI scan was 

fairly normal so appellant was not a surgical candidate, but that he would like to obtain 

electrodiagnostic studies. Dr. Yuan found he could return to work with modified duties of no 

lifting greater than 30 pounds and no prolonged sitting for more than 30 minutes.

In a note dated August 30 and September 17, 2018, Dr. Warden noted chronic right knee 

pain and low back pain with radiculopathy. He restricted appellant from work for six weeks 

starting on September 7, 2017.

In a report dated October 17, 2018, Dr. Fred H. Batkin, Board-certified in physical 

medicine and rehabilitation, performed an electromyography and a nerve conduction velocity 

(EMG/NCV) study and found a normal EMG of the bilateral lower extremities without evidence 

of acute or chronic lumbar or S1 nerve root involvement, normal bilateral lower extremity NCV 

studies without evidence of lower extremity peripheral polyneuropathy, and no electrodiagnostic 

evidence of tibial or peroneal neuropathy across the knees or ankles.

On November 2, 2018 Dr. Warden noted that appellant was under the care of Dr. Yuan for 

his lumbar conditions. He opined that appellant could return to modified work on November 5, 

2018 with no continuous standing for longer than 10 minutes and no kneeling, squatting, or 

pivoting.

On March 18, 2019 appellant filed a request for reconsideration. In support of his request, 

he submitted a March 12, 2019 report and accompanying work status and restriction forms (CA-
7

17 forms and OWCP-5c) by John W. Ellis, Board-certified in family and environmental medicine, 

noted his review of the medical record and examination of appellant on even date as well as the 

history of injury and physical examination findings. Dr. Ellis diagnosed right neck sprain, lumbar 

region sprain, and right tear of the medial meniscus with other tear of the medial meniscus as 

caused directly by the accepted employment injury. He also diagnosed consequential conditions 

of aggravation of deranged lumbar discs, aggravation of right L5-S1 spinal nerve impingement, 

aggravation of left L5-S1 spinal nerve impingement, left knee contusion, and left chondromalacia 

patella. Dr. Ellis noted that appellant was no longer interested in right knee surgery, but needed 

continued use of medications. He opined that appellant was totally disabled from September 2017, 

but that he had been terminated on December 7, 2018. Dr. Ellis explained that the absences 

causing his termination were due to his acute injury on July 7, 2014, and that the employing 

establishment would need to provide a modified job assignment or retraining to end his period of 

disability.

By decision dated June 17, 2019, OWCP denied modification of the March 19, 2018 

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.6 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.7 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.8

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.9 Disability is, thus, not 

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

wages.10 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.11 

To establish causal relationship between the condition, as well as any attendant disability 

claimed and the employment event or incident, the employee must submit rationalized medical 

 

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

7

Id. 

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

9

Id.

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

11 T.K., Docket No. 18-1239 (issued May 29, 2019); Merle J. Marceau, 53 ECAB 197 (2001).
8

opinion evidence supporting such causal relationship.12 Causal relationship is a medical issue, and 

the medical evidence required to establish causal relationship is rationalized medical evidence.13 

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 accepted employment injury and the claimed

attendant disability.

14

 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.15

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.16

ANALYSIS

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

As OWCP accepted an employment injury and resultant medical conditions, its procedures 

provide that it is responsible for requesting evidence necessary to adjudicate the claim.

17

 Its

procedures further provide that the claims examiner should contact a claimant, in writing, to obtain 

evidence and should specifically request the information needed, tailored to the specifics of the 

individual case.18 

OWCP’s regulations provide, in pertinent part, that compensation for wage loss due to 

disability is available only for periods during which an employee’s work-related medical condition 

prevents him or her from earning the wages earned before the work-related injury. For example, 

an employee is not entitled to compensation for wage loss claimed on a CA-7 to the extent that 

evidence contemporaneous with the period claimed on a CA-7 establishes that an employee had 

medical work restrictions in place, that light duty within those work restrictions was available, and 

 

12 J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 

465 (2005).

13 L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14 L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

15 T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

16 C.J., Docket No. 18-1181 (issued May 20, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 

52 ECAB 291 (2001).

17 FECA Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4.c(2) (June 2011).

18 Id. at Chapter 2.800.5. See also V.R., Docket No. 16-1167 (issued December 22, 2016).
9

that the employee was previously notified in writing that such duty was available.19 These

procedures thus require that a claims examiner properly develop the claim before payment of 

wage-loss compensation can be considered, that development may also be needed to obtain the 

information necessary to make a payment, and that this information should be requested 

simultaneously with the evidence needed to support the claim so that payment can be made quickly 

if the compensation claim is ultimately approved.20 

The Board finds that appellant has presented medical evidence which establishes work 

restrictions causally related to the accepted conditions and based upon physical findings by 

appellant’s examining physicians which would require physical accommodations by the 

employing establishment. However, despite the submission of this medical evidence by appellant, 

there is no indication that OWCP contacted the employment establishment to determine whether 

it could accommodate appellant’s restrictions for the claimed periods. Also, to the extent that it 

disagreed with the restrictions set forth by the physicians, it did not inquire of appellant’s need for 

work restrictions from a second opinion physician. 

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence to see that justice 

is done.21 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.22

For these reasons, the case will be remanded to OWCP to obtain additional information 

from the employing establishment necessary to determine appellant’s entitlement to wage-loss 

compensation benefits for the claimed period. After carrying out this and other 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.

 

19 S.T., Docket No. 18-0412 (issued October 22, 2018); 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).

20 Federal (FECA) Procedure Manual, Part 2 -- Claims, Payment of Compensation and Schedule Awards, Chapter 

2.901.5.a(4) (December 1995).

21 See D.B., Docket No. 19-0443 (issued November 15, 2019); Richard E. Simpson, 55 ECAB 490 (2004).

22 Id.; C.S., Docket No. 18-1733 (issued May 24, 2019).
10

ORDER

IT IS HEREBY ORDERED THAT the June 17, 2019 decision of the Office of Workers’

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

with this decision of the Board.

Issued: December 18, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board