United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Blaine, WA, Employer 

__________________________________________ 

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Docket No. 16-1199 

Issued: March 9, 2017 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 19, 2016 appellant, through counsel, filed a timely appeal from a March 30, 

2016 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 claim.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 has jurisdiction over OWCP’s March 7, 2016 termination of medical benefits decision. However, as 

counsel has not appealed this decision, it will not be reviewed on appeal. 
2

ISSUE 

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

commencing December 13, 2014, causally related to a February 22, 2012 employment injury. 

FACTUAL HISTORY 

On February 23, 2012 appellant, then a 49-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she had injured her back on February 22, 2012 when she 

crawled into an over-the-road container to retrieve a package that was at the bottom. She 

stopped work on February 24, 2012. OWCP assigned the claim File No. xxxxxx003 and 

accepted it for closed dislocation lumbar vertebra and closed dislocation thoracic vertebra. 

Appellant accepted a modified job on March 5, 2012 and worked full time with restrictions. 

OWCP paid benefits for wage loss due to medical care or when modified work was unavailable. 

Under File No. xxxxxx699, date of injury November 13, 2012, appellant reported that she 

had injured her left knee, both arms, both shoulders, and her upper back when she fell off a wet 

porch while delivering a package. By decision dated February 9, 2015, the Board modified 

OWCP’s July 21, 2014 decision to reflect that the November 13, 2012 incident had occurred at 

the time, place, and in the manner alleged, but denied the claim as she had not established that 

she had sustained an injury on November 13, 2012 in the performance of duty.4

 

Under File No. xxxxxx491, appellant claimed that she had injured her back on 

December 7, 2013 when she fell while delivering a package. She stopped work on 

December 14, 2013. OWCP accepted the claim for lumbar sprain, resolved and contusions of 

multiple sites, resolved. File Nos. xxxxxx699 and xxxxxx491 have been administratively 

combined with the present case, File No. xxxxxx003, with File No. xxxxxx003 serving as the 

master file. 

Relevant medical evidence of record shows that Dr. Frederick John Gunningham, Boardcertified in family medicine, examined appellant on December 10, 2013, three days after her 

December 7, 2013 work injury. In his December 10, 2013 report, he noted that she was working 

at light-duty capacity and opined that she could continue to work light duty with her mechanical 

low back pain. Dr. Gunningham noted that appellant’s lumbar strain had improved and that she 

did not need surgery for her bilateral sciatica. 

On December 15, 2013 appellant was treated at the emergency room for back pain that 

began eight days prior. Her work duties for the employment establishment were noted. X-rays 

showed no acute finding, but degenerative changes were noted. Appellant was advised not to 

work for two days or until she felt better. 

In a December 19, 2013 report, Dr. Gunningham reported that appellant had collapsed at 

work last Friday and that she had gone to the emergency room on Sunday. He noted that she had 

experienced episodes of urinary incontinence. Dr. Gunningham also noted that appellant 

 4

 Docket No. 14-1816 (issued February 9, 2015). 
3

reported having been asked to do more than her recommended limits during the Christmas rush, 

and consequently she had a setback. He diagnosed bilateral sciatica and took her off work. 

In a January 7, 2014 report, Dr. Gunningham noted that appellant requested that he open 

a new claim for injuries sustained on December 7, 2013. He diagnosed new conditions of left 

shoulder strain and right foot strain. Dr. Gunningham indicated that appellant’s lumbar strain 

had deteriorated and opined that the December 7, 2013 employment injury had exacerbated her 

condition. 

In a January 27, 2014 report, Dr. Gunningham noted that appellant’s chronic pain 

syndrome was evolving into failed back syndrome. He continued to treat her for chronic pain. 

In a November 8, 2014 report, Dr. Aleksandar Curcin, a Board-certified orthopedic 

surgeon and OWCP referral physician, noted appellant’s December 7, 2013 history of injury and 

reviewed the medical record. He opined that, taking her report of the injury on a factual basis, 

the December 7, 2013 work injury resulted in lumbar sprain/strain and multiple contusions -- 

resolved. Dr. Gunningham noted that there appeared to be a discrepancy in that the emergency 

room records from December 15, 2013 made no mention of the reported trauma. He found that 

there were no objective findings of the effects of the work injuries and opined that appellant was 

not restricted from work based on her work injuries. 

In a March 14, 2015 report, Dr. Gunningham noted that the December 7, 2013 fall was 

not mentioned in his December 10, 2013 report because appellant had not mentioned it to him. 

He noted that she went to the emergency room on December 15, 2013 and reported the injury 

then. On December 19, 2013 appellant had reported to Dr. Gunningham that she had collapsed 

at work on December 7, 2013. Dr. Gunningham opined that her condition had progressed from a 

strain to fibromyalgia. He also opined that appellant had residuals of her work injuries because 

of her chronic pain. 

On March 25, 2015 appellant filed a claim for wage-loss compensation (Form CA-7) 

commencing December 13, 2014. As previously noted, prior to her work injury of December 7, 

2013, she was working full time with restrictions. 

In a March 27, 2015 letter, OWCP requested that appellant submit evidence to support 

that her claim for compensation, beginning December 13, 2014 and continuing, was related to 

her February 22, 2012 work injury and afforded her 30 days to submit such evidence. It 

specifically requested medical evidence from her physician establishing that her inability to work 

was related to the accepted conditions in this claim. OWCP noted that it had previously denied 

appellant’s claims for compensation for the period of May 28 to October 31, 2014, in part, 

because she had sustained an injury on December 7, 2013 (File No. xxxxxx491) that was 

accepted for a resolved lumbar sprain and that she had not appealed that decision or filed any 

Form CA-7’s under that claim. It further noted that the Board had affirmed the denial of her 

claim for a November 12, 2012 injury under File No. xxxxxx699. OWCP lastly noted that 

appellant had recently been referred for a second opinion examination to determine if there were 

any residuals present from her work injury of February 22, 2012. 
4

OWCP later received several reports from Dr. Gunningham dated October 13 and 

December 15, 2014, and March 24, 2015, which diagnosed and advised on the status of 

appellant’s fibromyalgia condition and chronic pain syndrome. 

In an April 21, 2015 report, Dr. William Dinenberg, a Board-certified orthopedic 

surgeon, discussed appellant’s history, the medical records, the statement of accepted facts, and 

presented examination findings. He concurred that the lumbar sprain had resolved, although 

there were objective findings of preexisting degenerative disc disease and facet disease. 

Dr. Dinenberg opined that the residuals presented on examination were not causally related to 

the February 22, 2012 work injury, but were most likely due to her fibromyalgia. However, he 

indicated that fibromyalgia was outside of his medical expertise. Dr. Dinenberg advised that 

appellant had reached maximum medical improvement for the conditions accepted in her claim. 

As Dr. Dinenberg indicated that, fibromyalgia was outside of his medial expertise, 

OWCP referred appellant’s medical file to its medical adviser to determine if a relationship 

existed between the accepted conditions and the diagnosed fibromyalgia. In a May 12, 2016 

report, OWCP’s medical adviser opined that, based on the mechanism of injury and the now 

resolved lumbar sprain, it was highly unlikely that the accepted conditions resulted in 

fibromyalgia or chronic pain syndrome. 

By decision dated May 18, 2015, OWCP denied appellant’s claim for wage-loss 

compensation for the period commencing December 13, 2014. It found that the medical 

evidence of record did not establish that she was disabled as a result of her accepted work-related 

medical conditions and that she had an intervening work injury on December 7, 2013. 

On May 27, 2015 counsel requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review, which was held January 14, 2016. Appellant testified 

that she last worked for the employing establishment on December 13, 2013, one week after she 

fell. Prior to the December 7, 2013 employment injury, she had been working light duty since 

the February 22, 2012 employment injury. Appellant stated that, because of her work injuries, 

she had developed fibromyalgia and herniated discs. 

Progress reports from Dr. Gunningham were received, in which he indicated that he 

continued to treat appellant for chronic pain syndrome. In a February 23, 2016 report, he opined 

that her chronic pain syndrome resulted from the industrial injuries. Dr. Gunningham 

additionally provided that he was not aware of any physicians who could prove the origins of a 

chronic pain syndrome with the available objective tests. 

By decision dated March 7, 2016, OWCP terminated appellant’s medical benefits 

effective the same date.5

 It found that the residuals of her accepted work-related medical 

conditions resulting from the February 22, 2012 employment injury had ceased. 

By decision dated March 30, 2016, an OWCP hearing representative affirmed the denial 

of appellant’s claim for wage-loss compensation for the period commencing December 13, 2014. 

She found that the medical evidence of record did not show any objective findings related to the 

 5 See supra note 3. 
5

lumbar strains and there was no rationalized medical opinion to establish that, beginning in 

December 2014, appellant was unable to work her modified position due to the effects of her 

work injuries. 

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 establishing that he or she was disabled for 

work as a result of the accepted employment injury.7

 Whether a particular injury causes an 

employee to become disabled for work, and the duration of that disability, are medical issues that 

must be proved 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 wageearning capacity.11 When, however, the medical evidence establishes that the residuals or 

sequelae of an employment injury are such that, from a medical standpoint, they prevent the 

employee from continuing in his or her employment, he or she is entitled to compensation for 

any loss of wages. 

The claimant must submit medical evidence showing that the condition claimed is 

disabling.12 The evidence submitted must be reliable, probative, and substantial.13 

The physician’s opinion must be based on the facts of the case and the complete medical 

background of the employee, must be one of reasonable medical certainty and must include 

objective findings in support of its conclusions.14 Subjective complaints of pain are not 

sufficient, in and of themselves, to support payment of continuing compensation.15 Likewise, 

 6 See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986). 

7 See Amelia S. Jefferson, id.

8 See Edward H. Horton, 41 ECAB 301 (1989). 

9 S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f). 

10 Roberta L. Kaaumoana, 54 ECAB 150 (2002). 

11 Merle J. Marceau, 53 ECAB 197 (2001). 

12 20 C.F.R. § 10.115(f). 

13 Id. at § 10.115. 

14 Id. at § 10.501(a)(2). 

15 Id. 
6

medical limitations based solely on the fear of a possible future injury are also insufficient to 

support payment of continuing compensation.16 

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 disability and 

entitlement to compensation.17 

ANALYSIS 

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

disabled from work for the period commencing December 13, 2014 causally related to the 

February 22, 2012 employment injury. 

OWCP accepted that on February 22, 2012 appellant sustained closed dislocation lumbar 

vertebra and closed dislocation thoracic vertebra. The condition of lumbar sprain was 

subsequently added. Appellant accepted a modified job on March 5, 2012 and worked full time 

with restrictions until she sustained an injury on December 7, 2013, which OWCP accepted 

under file number xxxxxx491 for a resolved lumbar strain. OWCP also denied wage-loss 

compensation for the period May 28 to October 31, 2014. Appellant also claimed wage-loss 

compensation beginning December 13, 2014 as a result of her February 22, 2012 work injury, 

which OWCP denied.18

In support of her claim for wage-loss compensation beginning December 13, 2014, 

appellant submitted medical evidence from Dr. Gunningham, who opined that the work injuries 

led to chronic pain. However, Dr. Gunningham has not provided a well-rationalized medical 

report to establish that beginning December 13, 2014 she was unable to work her modified 

position due to the effects of her work injuries.19 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.20 

The record further reflects that Dr. Dinenberg, an OWCP-referral physician, found in his 

April 21, 2015 report that the lumbar sprain had resolved, although there were objective findings 

of preexisting degenerative disc disease and facet disease. He opined that the residuals presented 

on examination were not causally related to the accepted February 22, 2012 work injury, but 

were most likely due to appellant’s fibromyalgia. As the fibromyalgia condition was outside of 

 16 Id. 

17 See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001). 

18 The Board notes that, in the instant case, appellant stopped work one week after the December 7, 2013 

employment injury, which OWCP accepted under File No. xxxxxx491, for a resolved lumbar strain. The record 

indicates that appellant has not appealed the March 7, 2016 termination decision or filed any Form CA-7 under 

claims for compensation, File No. xxxxxx491. Additionally, the Board upheld the denial of that claim. 

19 See Vanessa Young, 55 ECAB 575 (2004). 

20 See supra note 17. 
7

Dr. Dinenberg’s medical expertise, an OWCP medical adviser reviewed the record and opined 

that, in a May 12, 2015 report, it was highly unlikely that the accepted conditions had resulted in 

fibromyalgia or chronic pain syndrome based on the mechanism of injury and her now resolved 

lumbar sprain. 

Appellant failed to submit any medical reports from a physician who, on the basis of a 

complete and accurate factual and medical history, established that she was totally disabled from 

work beginning December 13, 2014, and continuing due to residuals of her accepted injury. As 

the medical evidence of record does not establish that she was disabled as a result of her 

accepted work-related medical conditions for the period beginning December 13, 2014 and 

continuing, the Board will affirm the denial of the claim for compensation. 

On appeal, counsel argues that OWCP’s decision is contrary to fact and law. However, 

as discussed above, the medical evidence of record does not support appellant’s disability claim. 

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 failed to meet her burden of proof to establish total 

disability commencing December 13, 2014, causally related to her February 22, 2012 

employment injury. 
8

ORDER 

IT IS HEREBY ORDERED THAT the March 30, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 9, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board