United States Department of Labor

Employees’ Compensation Appeals Board

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O.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Urbana, IL, Employer

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Docket No. 19-0316

Issued: June 25, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 26, 2018 appellant filed a timely appeal from a November 7, 2018 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish continuing 

employment-related residuals or disability after December 1, 2016.

 

1 The Board notes that appellant submitted additional evidence on appeal and to OWCP following the November 7, 

2018 decision. 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 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

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

follows.

On March 2, 1993 appellant, then a 32-year-old janitor, filed a traumatic injury claim 

(Form CA-1) alleging that on February 25, 1993 he experienced back pain after he fell carrying a 

bag of salt while in the performance of duty. OWCP accepted the claim for low back strain, an 

aggravation of preexisting spinal stenosis at L3-4 and L4-5, and an aggravation of degenerative 

disc disease at L5-S1. In June 1995, appellant underwent a lumbar laminectomy at L3-4, L4-5, 

and L5-S1 and a discectomy at L5-S1. He stopped work in 1997 and did not return. OWCP paid 

appellant wage-loss compensation for total disability on the periodic rolls.

By decision dated June 8, 2004, OWCP terminated appellant’s wage-loss compensation 

and entitlement to schedule award compensation, effective May 16, 2004, as he had refused an 

offer of suitable work under 5 U.S.C. § 8106(c)(2). Appellant subsequently requested 

reconsideration and by decisions dated November 5, 2004 and June 22, 2006, it denied 

modification of its June 8, 2004 decision. 

Appellant appealed to the Board. By decision dated February 2, 2007, the Board reversed 

the June 22, 2006 decision.4 The Board found that OWCP had not met its burden of proof to 

establish that the modified position offered by the employing establishment was suitable.

OWCP reinstated appellant’s wage-loss compensation benefits on the periodic rolls,

retroactive to May 16, 2004. 

In a report dated April 3, 2015, Dr. Timothy A. VanFleet, a Board-certified orthopedic 

surgeon and OWCP referral physician, found that appellant’s current condition was unrelated to 

his accepted employment injury.5 In a supplemental report dated April 21, 2015, he advised that 

his temporary aggravation of lumbar degenerative disc disease had resolved and that he was 

disabled due to obesity, diabetes, and lumbar degenerative disc disease unrelated to the 

February 25, 1993 employment injury. 

On April 1, 2016 Dr. Allan Brecher, a Board-certified orthopedic surgeon and OWCP 

referral physician, discussed appellant’s history of a 1993 employment injury. He indicated that 

the findings on diagnostic studies were insignificant and that the neurological examination 

revealed no abnormalities. Dr. Brecher opined that appellant had sustained a temporary 

aggravation of spondylosis due to his employment injury that had resolved by July 1993. He found 

 

3 Docket No. 17-1881 (issued May 1, 2018); Docket No. 06-1607 (issued February 2, 2007); Order Dismissing 

Appeal, Docket No. 05-1414 (issued November 1, 2005).

4

Id.

5 OWCP erroneously referred to Dr. VanFleet as a referee rather than a referral physician. 
3

that appellant could return to his regular employment without limitations and required no further 

medical treatment.

By decision dated December 1, 2016, OWCP terminated appellant’s wage-loss 

compensation and entitlement to medical benefits, effective that date. It found that Dr. Brecher’s 

report constituted the weight of the evidence and established that he had no further residuals or 

disability due to his accepted employment injury. 

On January 23, 2017 appellant requested reconsideration, arguing that Dr. Brecher 

inaccurately provided a history of a February 1993 motor vehicle accident, indicated that he had 

denied back pain, and maintained that he was dizzy due to his employment injury. 

By decision dated April 7, 2017, OWCP denied modification of its December 1, 2016 

decision. It found that appellant had not submitted sufficient evidence to overcome the weight 

afforded Dr. Brecher’s report, which was based on a recent physical examination and review of 

the case record.

On June 1, 2017 appellant again requested reconsideration.6 

By decision dated August 16, 2017, OWCP denied modification of its April 7, 2017 

decision. It found that appellant had not submitted medical evidence sufficient to show that he 

had continuing disability due to his February 25, 1993 employment injury.

Appellant appealed to the Board. By decision dated May 1, 2018, the Board affirmed the 

August 16, 2017 decision.7 The Board found that OWCP had properly terminated appellant’s 

wage-loss compensation and medical benefits based on the opinion of Dr. Brecher that appellant

had no further disability or need for medical treatment due to his employment injury. The Board 

determined that Dr. VanFleet’s opinion as a referral physician bolstered the opinion of

Dr. Brecher. The Board further found that appellant had not submitted sufficient evidence to 

establish continuing employment-related disability after December 1, 2016.

In a June 11, 2018 progress report, Dr. Victoria J. Johnson, a Board-certified physiatrist, 

obtained a history from appellant who indicated that he experienced back pain for 18 years after a 

fall at work. She noted that he had undergone a lumbar decompression surgery at L3-5. 

Dr. Johnson advised that an April 16, 2017 magnetic resonance imaging (MRI) scan showed 

possible scar tissue around the L3 through S1 thecal sac. She indicated that appellant was not 

working and wanted an examination to support disability. Dr. Johnson diagnosed lumbar 

spondylosis and attributed some of his pain to scar tissue and obesity. 

On September 5, 2018 appellant requested reconsideration. He argued that Dr. Brecher

made inaccurate statements regarding his claim. Appellant submitted an October 26, 2016 work 

capacity evaluation (Form OWCP-5c) from a physical therapist and resubmitted an October 26, 

 

6 Appellant submitted a May 25, 2017 report from Dr. Jesse P. Butler, a Board-certified orthopedic surgeon. 

Dr. Butler diagnosed chronic low back pain after a laminectomy for congenital stenosis. He related that he had no 

opinion regarding whether the condition was employment related.

7 Supra note 3.
4

2016 physical therapy evaluation. He further submitted the results of an April 16, 2017 MRI scan 

showing possible scar tissue around the operative levels. 

By decision dated November 7, 2018, OWCP denied modification of its August 16, 2017 

decision. 

LEGAL PRECEDENT

Once OWCP properly terminates a claimant’s compensation benefits, he or she has the 

burden of proof to establish continuing disability after that date related to the accepted injury.8 To 

establish a causal relationship between the condition as well as any attendant disability claimed 

and the employment injury, an employee must submit rationalized medical evidence based on a 

complete medical and factual background, supporting such a causal relationship.9 A claimant must 

establish by the weight of the reliable, probative, and substantial evidence that he or she had an 

employment-related disability which continued after termination of compensation benefits.10

ANALYSIS

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

employment-related residuals or disability after December 1, 2016.

On prior appeal the Board found that OWCP had met its burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits based on the opinion of Dr. Brecher, 

who found that appellant had no further disability or residuals of the accepted employment injury.

As the Board had previously affirmed the termination of appellant’s wage-loss 

compensation and medical benefits on December 1, 2016 absent further merit review of this issue 

by OWCP pursuant to section 8128 of FECA, this issue is res judicata.

11

 The only issue before 

the Board is whether he has established continuing employment-related disability or residuals after 

December 1, 2016, causally related to the accepted February 25, 1993 employment injury. The 

Board finds that appellant has failed to meet his burden of proof to establish continuing 

employment-related disability or residuals.

Following the Board’s May 1, 2018 decision, appellant requested reconsideration and 

raised arguments regarding Dr. Brecher’s opinion. As noted, the Board’s previous review of the 

evidence regarding the termination of his wage-loss compensation and medical benefits is res 

judicata.

12

 

 

8 V.G., Docket No. 17-0583 (issued July 23, 2018).

9 C.L., Docket No. 18-1379 (issued February 3, 2019).

10 S.F., Docket No. 17-1427 (issued May 16, 2018);

11 V.G., supra note 8.

12 D.M., Docket No. 18-0746 (issued November 26, 2018).
5

In a report dated June 11, 2018, Dr. Johnson discussed appellant’s history of back pain 

after a fall at work and lumbar decompression surgery at L3-5. She reviewed the results of an 

April 16, 2017 MRI scan. Dr. Johnson diagnosed lumbar spondylosis and attributed some of his 

pain to scar tissue and obesity. She did not, however, address the relevant issue of whether 

appellant was disabled from employment or required further medical treatment due to his accepted 

employment injuries, and thus her opinion is of little probative value.13

Appellant further submitted evidence from a physical therapist. However, these documents 

do not constitute competent medical evidence because a physical therapist is not considered a 

“physician” as defined under FECA.14 Additionally, the MRI scan interpreted by Dr. Johnson is 

insufficient to discharge his burden of proof regarding continuing disability as it failed to offer a 

physician’s opinion regarding disability or causal relationship.15 The Board, therefore, finds that 

appellant has not submitted sufficient medical evidence to demonstrate continuing disability or 

residuals causally related to his accepted employment injury.16 

On appeal, appellant argues that Dr. Brecher’s report was misleading and that OWCP had 

not considered appellant’s October 26, 2016 physical therapy evaluation. As discussed, however, 

he has the burden of proof to establish continuing disability or residuals due to his accepted 

employment injury through the submission of rationalized medical evidence.17 As appellant has 

not submitted such evidence, he has not met his burden of proof.18

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 continuing 

employment-related residuals or disability after December 1, 2016.

 

13 R.R., Docket No. 19-0173 (issued May 2, 2019).

14 See M.M., Docket No. 17-1641 (issued February 15, 2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) 

(lay individuals such as physician assistants, nurses and physical therapists are not competent to render a medical 

opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, 

clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as 

defined by state law).

15 J.F., Docket No. 17-1716 (issued March 1, 2018).

16 See supra note 12.

17 See supra note 13.

18 M.C., Docket No. 18-1374 (issued April 23, 2019).
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ORDER

IT IS HEREBY ORDERED THAT the November 7, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 25, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board