United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

San Bernadino, CA, Employer

__________________________________________

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Docket No. 19-0285

Issued: September 24, 2019

Appearances: Case Submitted on the Record

Sally F. LaMacchia, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 19, 2018 appellant, through counsel, filed a timely appeal from an 

October 12, 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 12, 2018 decision, OWCP received additional evidence. Appellant 

also submitted new evidence accompanying her request for appeal to the Board. 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 his burden of proof to establish total disability from 

work for the period May 21, 2014 to June 25, 2016, causally related to his accepted cervical and 

lumbar conditions.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

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

below.

On September 24, 1997 appellant, then a 35-year-old custodian, filed a traumatic injury 

claim (Form CA-1) alleging that, while in the performance of duty on September 23, 1997, he 

twisted his upper body when dismounting a riding lawnmower, causing a low back injury.

5

 OWCP 

accepted the claim for lumbar sprain and aggravation of a preexisting L5-S1 disc herniation.

Appellant underwent a repeat L5-S1 laminectomy and discectomy on November 10, 1997, 

and a posterior L5-S1 interbody fusion with interdiscal prosthesis on June 14, 1999. He returned 

to full-time, light-duty work. Following his return to duty, OWCP accepted that appellant 

sustained a cervical disc herniation on March 3, 2003 under File No. xxxxxx673, and a second 

cervical disc herniation on January 5, 2004 under File No. xxxxxx680.6

On September 12, 2006 appellant accepted a full-time modified position as a laborer/

custodian. The position required standing, walking, pushing, and pulling for up to four hours, 

twisting up to two hours, and lifting up to 30 pounds. Appellant continued to perform the position,

with intermittent absences.

Commencing March 26, 2008, appellant was incarcerated, during which time his wageloss compensation was not payable.7

 While incarcerated, on April 1, 2008, he underwent removal 

of the L5-S1 fixation devices, complete bilateral L5 laminectomy, partial L4 laminectomies, 

bilateral L4-5 nerve root decompression, L4-5 discectomy, and an interbody fusion with screw 

fixation. Appellant also underwent surgical revision/replacement of an indwelling neurostimulator 

in the right posterior hip region on April 1, 2011, June 29, 2012, and January 29, 2013. His

incarceration ended on May 21, 2014. 

OWCP subsequently received a report dated January 12, 2015 from Dr. Joel R. Finman, a

Board-certified family practitioner. Dr. Finman noted that appellant’s lumbar pain remained 

unchanged and that appellant used a wheelchair most of the time.

 

4 Docket No. 17-0806 (issued September 15, 2017).

5 Appellant had undergone an L5-S1 laminectomy and discectomy on December 27, 1996. Following a course of 

physical therapy, he returned to full-duty work in February 1997.

6 OWCP administratively combined OWCP File Nos. xxxxxx673, xxxxxx680, and xxxxxx845, with File No. 

xxxxxx845 designated as the master file.

7 5 U.S.C. § 8148. Appellant was separated from the employing establishment on October 23, 2008. 
3

In an October 15, 2015 report, Dr. Marc Suffis, Board-certified in emergency medicine, 

diagnosed cervical and lumbar disc herniations with chronic pain.

On May 31, 2016 appellant filed a claim for compensation (Form CA-7) for wage loss 

during the period May 21, 2014 through June 25, 2016 and submitted additional evidence.

Dr. Swastik Sinha, an attending Board-certified orthopedic surgeon, provided April 22 and 

June 30, 2016 reports noting a history of injury and treatment. He diagnosed a lumbar sprain, 

displaced lumbar disc, cervical stenosis, cervical radiculopathy, and cervical disc degeneration.

In May 6 and June 30, 2016 reports, Dr. Yong Zhu, a rheumatologist, related that 

appellant’s low back pain had begun “in 1997 during a work accident while driving a forklift.” He 

diagnosed a lumbar sprain, chronic pain, low back pain, and a displaced lumbar intervertebral disc.

Dr. Zhu administered a series of sacral branch block injections.

By decision dated February 6, 2017, OWCP denied appellant’s claim for wage-loss 

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

accepted cervical and lumbar conditions had disabled him from work for the period May 21, 2014 

to June 25, 2016.

On February 28, 2017 appellant appealed to the Board. While on appeal, appellant, 

through counsel, submitted additional medical evidence. In a report dated February 23, 2017,

Dr. Sinha noted that appellant’s lumbar pain “started in 1997 when he was ejected from a spring 

loaded seat while driving large heavy machinery.” He diagnosed a bulging lumbar disc.

By decision dated September 15, 2017,8the Board affirmed the February 6, 2017 decision, 

finding that none of appellant’s physicians had specifically addressed any of the accepted cervical 

or lumbar injuries, or whether they would have disabled appellant from performing the modified 

position he held as of October 23, 2008, when he was separated from the employing establishment. 

Subsequent to the Board’s decision, OWCP received additional medical evidence. In a

November 16, 2017 report from Dr. Douglas Burns, a Board-certified physiatrist, noting that an 

October 31, 2017 computerized tomography (CT) scan demonstrated changes at the right L3 

inferior articular facet.

Dr. Burns noted on January 31, 2018 that “[n]o comment is being made on previous work 

injuries which were acquired prior to initial consultation here,” but recommended that appellant

not work in his previous job as a custodian. He administered additional lumbar branch block and 

sacroiliac injections.

In a report dated April 18, 2018, Dr. Shiveindra B. Jeyamohan, a neurosurgeon, noted that 

in 1998 while at work, appellant “sustained an accident where a large object fell against an[d] 

requiring him to undergo an L5-S1 fusion.” In 2017, appellant “was walking with his mother and 

fell on the ice and since then has had severe low back pain.” He diagnosed a severe right L3 facet 

abnormality. 

 

8 Supra note 4.
4

On September 11, 2018 appellant, through counsel, requested reconsideration. In support 

of the reconsideration request, appellant submitted additional medical evidence. 

In an August 28, 2017 report, Dr. Frank S. Bishop, a Board-certified neurosurgeon, noted 

a history of a 1997 occupational injury “where he was ejected from a spring seat while driving 

heavy machinery.” He diagnosed L4-S1 fusion with evidence of arthrodesis, and lumbar pain due 

to “lumbar spondylosis (degeneration/arthritis).” Dr. Bishop recommended “appropriate light 

activities as tolerated, avoid bending, twisting, and heavy lifting when symptomatic.”

In an August 3, 2018 report, Dr. Michael Gillespie, a Board-certified orthopedic surgeon 

retained by counsel, reviewed medical records. He opined that imaging studies demonstrated a 

progressive worsening of appellant’s cervical and lumbar conditions, such that he could no longer 

perform the modified labor/custodian position. Dr. Gillespie noted that appellant could walk only 

a few steps due to back pain, and “needs to avoid bending, twisting, and heavy lifting.”

By decision dated October 12, 2018, OWCP denied modification.

9

 

LEGAL PRECEDENT

An employee seeking benefits under FECA10 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence.11 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.12 Whether a 

particular injury causes an employee to become disabled from work, and the duration of that 

disability, are medical issues that must be proved by a preponderance of probative and reliable 

medical opinion evidence.13

Under FECA, the term disability means an incapacity, because of an employment injury, 

to earn the wages the employee was receiving at the time of the injury.14 Disability is, thus, not 

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

wages.15 When, however, the medical evidence establishes that the residuals or sequelae of an 

 

9 OWCP denied modification of the Board’s September 15, 2017 decision. The Board notes that OWCP is not 

authorized to review Board decisions. Board decisions are not subject to review except by the Board and they become 

final after 30 days. Although the September 15, 2017 Board decision was the last merit decision of record, OWCP’s 

February 6, 2017 merit decision is the appropriate subject of possible modification by OWCP. See 20 C.F.R. 

§ 501.6(d).

10 Supra note 2.

11 J.J., Docket No. 18-1692 (issued July 16, 2019); J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 

58 (1968).

12 J.J., id.; see also Dominic M. Descaled, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-

09 (1982).

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

Whelan, 20 ECAB 55 (1968).

14 20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999).

15 Roberta L. Kaaumoana, 54 ECAB 150 (2002).
5

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.16

ANALYSIS

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

for the period May 21, 2014 to June 25, 2016, causally related to his accepted cervical and lumbar 

conditions.

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

appellant submitted prior to the issuance of OWCP’s February 6, 2017 decision because the Board 

considered that evidence in its September 15, 2017 decision and found that it was insufficient to 

establish his claim. Findings made in prior Board decisions are res judicata absent any further 

review by OWCP under section 8128 of FECA.

17

Appellant submitted reports from several physicians following OWCP’s February 6, 2017 

merit decision. In a February 23, 2017 report, Dr. Sinha alluded to the accepted September 1997 

employment injury, but did not address whether appellant was disabled from his light-duty 

laborer/custodian position as of May 21, 2014. Similarly, Dr. Bishop noted the September 1997 

employment injury and recommended activity restrictions, but did not address whether the 

accepted conditions disabled appellant from the modified laborer/custodian position for the 

claimed period. In his January 31, 2018 report, Dr. Burns specified that, while he could not 

comment on the employment injuries sustained prior to his initial consultation, he recommended 

against appellant working in his previous job as a custodian. In an April 18, 2018 report,

Dr. Jeyamohan neither addressed the September 23, 1997 employment injury, nor the claimed 

period of disability. The Board finds that as none of these physicians provided an opinion 

regarding whether appellant was totally disabled from work during the claimed period due to the 

accepted conditions, their reports are of no probative value and are insufficient to establish the 

claim,18

Dr. Gillespie reviewed medical records on August 3, 2018 and opined that the accepted 

conditions had worsened such that appellant could no longer perform the modified labor/custodian 

position. He noted that appellant could walk only a few steps due to back pain, and “needs to 

avoid bending, twisting, and heavy lifting.” While Dr. Gillespie opined that appellant was totally 

disabled from work due to the accepted conditions, he did not provide rationale explaining how 

the accepted employment conditions resulted in disability. Therefore his August 3, 2018 report is 

of limited probative value. 

On appeal counsel contends that Dr. Gillespie’s August 3, 2018 report established workrelated disability from May 21, 2014 through June 25, 2016. As explained above, Dr. Gillespie’s 

report is insufficient to meet appellant’s burden of proof.

 

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

17 See B.R., Docket No. 17-0294 (issued May 11, 2018).

18 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., No. 17-1549 (issued July 6, 2018).
6

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 had not met his burden of proof to establish total disability 

from work for the period May 21, 2014 to June 25, 2016, causally related to accepted cervical and 

lumbar conditions.

ORDER

IT IS HEREBY ORDERED THAT the October 12, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 24, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board