United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Syosset, NY, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-0937

Issued: October 2, 2019

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 31, 2019 appellant, through her representative, filed a timely appeal from an 

October 9, 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 October 9, 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 disability 

commencing on or after December 10, 2007 causally related to her accepted October 24, 2007 

employment injury.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts 

are as follows.

On October 26, 2007 appellant, then a 48-year-old distribution clerk, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained injury to her low back and left leg on 

October 24, 2007 when bending and lifting/handling mail while in the performance of duty. She 

stopped work on October 24, 2007.

By decision dated February 20, 2008, OWCP denied appellant’s traumatic injury claim. 

Appellant appealed to the Board and, by decision dated January 27, 2009,5the Board remanded 

the case for further development of the evidence. On remand, OWCP accepted that she sustained 

a lumbar sprain and temporary aggravation of preexisting degenerative disc disease of the lumbar 

spine (resolved) based on the March 26, 2009 report of Dr. Sanford R. Wert, a Board-certified 

orthopedic surgeon who served as an OWCP referral physician.6 Appellant then filed claims for 

compensation (Forms CA-7) alleging that she had been disabled from work due to her accepted 

October 24, 2007 employment injury commencing December 10, 2007 and continuing.

Appellant submitted a May 13, 2009 report from Dr. Jamie P. Skurka, a chiropractor, who

opined that, due to the October 24, 2007 employment incident, appellant had lumbar spine 

subluxations as demonstrated by x-rays which had caused disability since January 8, 2008.

In July 2009, OWCP requested that Dr. Wert provide a supplemental report on the question 

of whether appellant had any disability following her accepted October 24, 2007 employment

injury. In an August 5, 2009 report, Dr. Wert advised that he was unable to comment on whether 

or not appellant was disabled at any time following her employment injury.7

By decision dated October 16, 2009, OWCP denied appellant’s claim, finding that she did 

not submit medical evidence sufficient to establish disability commencing on or after 

 

4 Docket No. 08-1879 (issued January27, 2009); Docket No. 12-1348 (issued February 25, 2013); Docket No. 16-

1318 (issued February 15, 2017).

5

Id.

6

In his March 26, 2009 report, Dr. Wert noted that the temporary aggravation of appellant’s preexisting 

degenerative disease should have ceased following herfour-month course of physical therapy. He found no objective 

evidence of any ongoing disability and indicated that she was capable of resuming the regular duties of a distribution 

clerk.

7

In an apparent typographical error, Dr. Wert inadvertently listed the date of appellant’s employment injury as 

March 24, 2007, rather than October 24, 2007.
3

December 10, 2007 due to her accepted October 24, 2007 employment injury. By decisions dated 

January 5, 2011 and January 11, 2012, it denied modification of its denial of her disability claim. 8

Appellant appealed her claim to the Board and, by decision dated February 25, 2013,9the 

Board affirmed OWCP’s January 11, 2012 decision.

Appellant, through her representative, requested reconsideration of OWCP’s denial of her

disability claim on three more occasions and OWCP again denied her claim in decisions dated 

February 28 and September 14, 2014, and February 9, 2016.

10

 Appellant appealed to the Board 

and, by decision dated February 15, 2017,11 the Board affirmed OWCP’s February 9, 2016 

decision.

On February 5, 2018 appellant, through her representative, again requested reconsideration 

of OWCP’s denial of her disability claim.

Appellant submitted numerous reports of Dr. Sharma dated between December 31, 2015 

and September 4, 2018. The reports memorialize Dr. Sharma’s periodic examinations of appellant 

and contain such diagnoses as right L5 radiculopathy, lumbar spondylosis, lumbar spinal stenosis, 

lumbar spondylolisthesis, and lumbar herniated disc. In the history portion of a March 14, 2016 

report, Dr. Sharma indicated that appellant reported experiencing back and right lower extremity 

symptoms since suffering an injury at work in 2007.

Appellant also submitted reports of a November 21, 2015 magnetic resonance imaging 

(MRI) scan of her lumbar spine, September 14, 2017 x-rays of her left elbow and hand, and a 

September 15, 2017 computerized tomography (CT) scan of her lumbar spine.

By decision dated October 9, 2018, OWCP denied appellant’s claim because she had not 

submitted medical evidence sufficient to establish disability commencing on or after December 10, 

2007 causally related to her accepted October 24, 2007 employment injury. 

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of establishing the essential 

elements of his or her claim including the fact that the individual is an employee of the United 

States within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation period of FECA, that an injury was sustained in the performance of duty as alleged, and 

that any disability and/or specific condition for which compensation is claimed are causally related 

to the employment injury.12 In general the term disability under FECA means incapacity because 

 

8

In these decisions, OWCP found that the submitted evidence, including a June 7, 2010 report from Dr. Erlinda D. 

Austria, a Board-certified orthopedic surgeon, and a January 14, 2011 report from Dr. Skurka did not contain a 

rationalized opinion on disability.

9

Supra note 4.

10 In these decisions, OWCP found that the medical evidence submitted by appellant, including October 2, 2013 

and March 11, 2014 and reports fromDr. Deborah Eisen, a Board-certified family practitioner, and a November 11, 

2015 report fromDr. Amit Sharma, a Board-certified internist, were not sufficient to establish appellant’s disability 

claim.

11 Supra note 4.

12 S.W., Docket No. 18-1529 (issued April19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).
4

of injury in employment to earn the wages which the employee was receiving at the time of such 

injury.13 This meaning, for brevity, is expressed as disability for work.14 

The medical evidence required to establish a causal relationship between a claimed period 

of disability and an employment injury is rationalized medical opinion evidence. 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 claimant.15

ANALYSIS

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

commencing on or after December 10, 2007 causally related to her accepted October 24, 2007 

employment injury.

Preliminarily, the Board notes that it is unnecessary for it to consider the evidence appellant 

submitted prior to the issuance of OWCP’s February 9, 2016 decision because the Board 

considered that evidence in its February 25, 2013 and February 15, 2017 decisions and found it 

insufficient to establish causal relationship between appellant’s claimed period of disability and 

the accepted October 24, 2007 employment injury. Findings made in prior Board decisions are 

res judicata absent any further review by OWCP under section 8128 of FECA.16

Appellant submitted numerous reports of Dr. Sharma dated between December 31, 2015 

and September 4, 2018 which contain diagnoses as right L5 radiculopathy, lumbar spondylosis , 

lumbar spinal stenosis, lumbar spondylolisthesis, and lumbar herniated disc. However, these 

reports do not contain an opinion relative to appellant’s disability from work.17 The Board has 

held that medical evidence that does not offer an opinion regarding the cause of an employee’s 

disability is of no probative value on the issue of causal relationship.18 The reports submitted by 

appellant do not provide an opinion on the causal relationship between the accepted October 24, 

2007 employment injury and the claimed period of disability, i.e., December 10, 2007 and 

continuing. As such, they are of no probative value on the underlying issue of this case.19

 

13 See 20 C.F.R. § 10.5(f).

14 See S.W., supra note 12. See also A.M., Docket No. 09-1895 (issued April23, 2010); RobertaL. Kaaumoana, 

54 ECAB 150 (2002).

15 E.J., Docket No. 09-1481 (issued February 19, 2010).

16 See B.B., Docket No. 17-0294 (issued May 11, 2018). On appeal her representative argues that appellant’s 

disability claim is established by some of the medical reports submitted prior to the issuance of OWCP’s February 9, 

2016 decision. However, as noted, the Board has already reviewed these reports and deemed them insufficient to 

establish appellant’s claim.

17 Appellant also submitted reports of diagnostic testing obtained between November 21, 2015 and 

September 15, 2017. However, these reports are of no probative value on the underlying issue of this case because 

they do not contain an opinion on causal relationship. See R.G., Docket No. 18-1045 (issued February 1, 2019).

18 See L.B., Docket No. 18-0533 (issued August27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

19 Id.
5

On appeal the representative argues that OWCP should have begun paying appellant wageloss compensation commencing December 10, 2007 based on the reports of Dr. Wert, an OWCP 

referral physician. However, in his August 5, 2009 report, Dr. Wert advised that he was unable to 

comment on whether or not appellant was disabled at any time following her accepted employment 

injury.

As the record does not contain a rationalized opinion on causal relationship between 

appellant’s October 24, 2007 employment injury and the claimed period of disability, the Board finds 

that she has not met her 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 her burden of proof to establish disability 

commencing on or after December 10, 2007 causally related to her accepted October 24, 2007 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the October 9, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 2, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board