United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.R., Appellant

and

DEPARTMENT OF STATE, BUREAU OF 

DIPLOMATIC SECURITY, Washington, DC, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 17-0926

Issued: July 12, 2018

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 March 23, 2017 appellant, through counsel, filed a timely appeal from a December 13, 

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 the 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 record provided to the Board includes evidence received after OWCP issued its December 13, 2016 decision. 

The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, 

the Board lacks jurisdiction to review this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

ISSUE

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

of disability commencing September 3, 2013 causally related to his November 16, 2011 

employment injury.

FACTUAL HISTORY

On November 21, 2011 appellant, then a 35-year-old Diplomatic Security Special Agent, 

filed a traumatic injury claim (Form CA-1) alleging that he sustained injury to his left wrist, left 

lower leg, and bilateral ankles when he was struck by a U.S. embassy vehicle on November 16, 

2011 at Malacagnan Palace in Manila, Philippines while in the performance of his federal 

employment duties. He returned to the United States the next day and first received medical care 

on November 18, 2011.

The claim was administratively handled to allow for a limited amount of medical expenses, 

as it appeared to be a minor injury that resulted in minimal or no lost time from work. Once the 

medical bills exceeded $1,500.00, OWCP formally adjudicated the claim. On July 21, 2015 it

accepted the claim for left bone bruise medial and lateral malleolus, resolved. 

In July 1 and 8, 2015 letters, counsel requested that the acceptance of the claim be expanded 

to include impingement syndrome and intra-articular injury to the right ankle. 

On September 29, 2015 OWCP received a claim for compensation (Form CA-7) for the 

periods September 3 to 13, 2013 and November 1, 2013 to August 24, 2014, and continuing. 

Medical evidence from 2011 consisted of magnetic resonance imaging (MRI) scans of the 

bilateral ankles dated December 9, 2011. The right ankle MRI scan indicated moderate 

degenerative changes of the tibiotalar joint, mild degenerative changes of the posterior facet of the 

subtalar joint, and thickening of the anterior talofibular and calcaneofibular ligaments consistent 

with old sprain. The left ankle MRI scan showed bone bruise in the medial and lateral malleolus 

and the posterior aspect of the calcaneus with a possible subacute fracture of posterior process of 

talus, and an os trigone with degenerative changes. A complete tear of the anterior talofibular 

ligament and calcaneofibular ligaments was also noted. 

In a January 13, 2012 report, Dr. John Cohen, a Board-certified orthopedic surgeon related 

that appellant was seen for bilateral leg pain or stiffness at both ankles, left worse than right. He 

noted that appellant was hit by a car as a pedestrian in Manila, Philippines on November 16, 2011. 

Dr. Cohen reported the results of the left ankle MRI scan and noted x-ray of the ankle was normal. 

He indicated that appellant may have posterior tendinitis of his left ankle. 

In a February 6, 2013 report, Dr. Cohen noted that appellant had bilateral ankle pain as a 

result of his November 16, 2011 work injury. He reported that appellant was last seen in July 2012 

and that his left ankle condition had resolved. Dr. Cohen noted that appellant had recurrent, 

intermittent right ankle pain which occurred while standing and walking. He advised that appellant 

may have impingement syndrome and intraarticular injury to the right ankle.
3

In a February 21, 2013 report, Dr. Evan Argintar, a Board-certified orthopedic surgeon, 

reported that appellant had chronic bilateral ankle pain, right greater than left, stemming from an 

accident in the Philippines about a year ago. He noted that appellant’s medial joint tenderness 

correlated to his MRI scan, which showed a large osteochondral injury to the medial distal tibia 

articular surface. Dr. Argintar recommended a right ankle arthroscopy as appellant had failed 

conservative treatment. In March 8 and June 10, 2013 reports, he diagnosed an osteochondritis 

dissecans (OCD) distal talus and a subtalar cyst. Dr. Argintar discussed the injections which had 

been administered. 

On September 2, 2013 appellant underwent a right ankle arthroscopy, micro fracture with 

open drilling of the medial malleolus. This procedure was not authorized by OWCP. 

In a September 9, 2013 report, Dr. Argintar related that he had taken appellant off work the 

entire month of September 2013 to recover from his right ankle arthroscopy. In a September 16, 

2013 report, he indicated that appellant was to remain nonweight bearing for two more weeks. On 

October 14, 2013 Dr. Argintar released appellant to weight bearing as tolerated. 

OWCP received July 31, 2014 MRI scans of appellant’s thoracic and lumbar sacral spine. 

These studies indicated no significant thoracic disc disease. Degenerative changes in the lumbar 

spine and a mild L5-S1 retrolisthesis with multilevel foraminal narrowing, most marked at L5-S1 

with compromise of the bilateral existing L5 nerve root, were noted. 

There are no treatment records on file from October 14, 2013 until May 26, 2015. 

In a May 26, 2015 report, Dr. Zacharia Isaac, an internist and physiatrist, indicated that 

appellant had several lumbar spine conditions, including bilateral foraminal stenosis at L5-S1, 

which caused lumbar radiculopathy bilaterally. He also indicated that appellant had spinal 

stenosis, a degenerative condition, which could be exacerbated with abrupt movement or trauma. 

Dr. Isaac discussed appellant’s job responsibilities and opined that appellant was no longer capable 

of performing the essential duties of a special agent. 

On May 26, 2015 appellant also underwent a bilateral L5 lumbar selective nerve root block. 

A May 27, 2015 MRI scan of the lumbar spine showed similar findings to the July 31, 2014 report. 

In an October 28, 2015 development letter, OWCP reviewed the evidence received in 

support of the claimed periods of disability from September 3, 2013. It indicated that the medical 

evidence submitted did not substantiate that the disability was caused by the accepted 

November 16, 2011 employment injury. OWCP requested that appellant submit a complete and 

comprehensive narrative report from his physician as to how he had a worsening of his accepted 

work-related condition during the period of compensation claimed. Appellant was afforded 30 

days to submit the requested information.

In a November 17, 2015 report, Dr. Edmond J. Zaccaria, a family practitioner, noted that 

he was appellant’s primary care physician. He indicated that he had read the initial accident report 

prepared by appellant regarding the November 16, 2011 employment injury, reviewed MRI scans 

and electromyogram (EMG) reports, reviewed medical records and reports from several 

physicians, and reviewed appellant’s work requirements. Dr. Zaccaria noted that on November 16, 

2011, appellant was on a protective detail in Manila, Philippines. He indicated that appellant was 
4

standing with his back to the vehicle and that the front of the vehicle made contact with appellant 

at a low rate of speed, which caused him to bend backwards. The vehicle continued moving 

forward and appellant fell forward and under the vehicle, running over his right leg. Dr. Zaccaria 

noted that appellant returned to the United States the next day. He noted that during the 20-hour 

transit, appellant experienced pain and stiffness in his back and both legs. Dr. Zaccaria indicated 

that appellant was diagnosed with bilateral ankle sprain and lumbosacral spine sprain/strain. He 

noted appellant’s course of conservative treatment and discussed MRI scan findings of 

December 9, 2011. Dr. Zaccaria indicated that appellant was given an orthopedic referral and 

continued to see a chiropractor for his back soreness and tightness. 

Dr. Zaccaria discussed appellant’s care under Dr. Cohen from January 12, 2012 through 

February 6, 2013. He noted that appellant’s pain was constant and it made it difficult for him to 

do some of his work duties and that the pain worsened during travel. Dr. Zaccaria noted that 

appellant was placed on a “no running” restriction until further notice. He reported that the left 

ankle responded well to treatment, but the right ankle did not. Dr. Zaccaria discussed the results 

of the right ankle MRI scan and that appellant was under the care of Dr. Argintar for bilateral ankle 

sprain from February 19 through October 20, 2013. He discussed appellant’s treatment, including 

injections and the September 2, 2013 right ankle arthroscopy. Dr. Zaccaria indicated that appellant 

had weight bearing restrictions as part of his recovery and was on a knee walker for six weeks. 

Appellant began physical therapy on October 7, 2013 and began full weight bearing on 

October 24, 2013.

Dr. Zaccaria reported that appellant’s lumbosacral symptoms began again and his condition 

rapidly deteriorated once he started weight bearing on his right leg. He reported that on 

October 30, 2013 appellant was in transit to Washington, DC and began experiencing pain and 

paralysis. On October 31, 2013 appellant was taken to the George Washington University Hospital 

Emergency Room and was diagnosed with right lumbar radiculopathy. He was sent home and 

flew back to Boston, MA with medical assistance. On November 6, 2013 appellant was 

hospitalized at Framingham Union Hospital because he was unable to stand or sit. He was 

transferred to Massachusetts General Hospital on November 10, 2013 and on November 20, 2013, 

right L5-S1 nerve root impingement was diagnosed. 

Dr. Zaccaria discussed appellant’s care from Dr. Isaac since December 10, 2013. He noted 

that appellant required a walker for support while walking. An EMG conducted on August 20, 

2015 revealed nerve damage to the nerves in question and one on the right calf. Dr. Zaccaria 

discussed the claimant’s limitations and that he was a candidate for surgery.

Dr. Zaccaria opined that appellant’s bilateral ankle sprain was causally related to the 

November 16, 2011 employment injury. He explained that the traumatic nature of the injury, 

complicated by subsequent exposure to extended periods of standing as required by appellant’s 

job worsened and aggravated the injury. The osteochondritis dissecans (OCD) and subtalar cyst, 

which were not present in the December 9, 2011 MRI scan, were direct progressions of this injury. 

Regarding the lumbosacral spine sprain/strain, Dr. Zaccaria also opined that the 

mechanism of injury and point of contact being the lumbar spine, established that the 

November 16, 2011 employment injury was the proximate cause of this injury. He explained that 

while the initial injury responded well to a regimen of conservative care, appellant’s subsequent 
5

exposure to extended periods of standing, and extensive seated travel time led to the worsening.

Further, the extended use of a knee walker that maintained his leg suspended and bent at the same 

time, was the proximate cause of the L5-S1 nerve root impingement that has led to appellant’s 

incapacitated state. 

In an October 20, 2015 report, Dr. Isaac provided an impression of bilateral L5 radiculitis 

due to foraminal narrowing, history of work-related injury, physically demanding occupation, 

lumbar degenerative changes at L5-S1, facet arthropathy at L5-S1, balance issues with weakness 

in the leg and foot swelling, soft tissue tightness. In an October 20, 2015 progress note, he

diagnosed bilateral L5 radiculitis. 

A May 27, 2015 MRI scan of the lumbosacral spine was noted to be similar to the prior 

study of July 31, 2014. 

By decision dated December 1, 2015, OWCP denied appellant’s claim for compensation 

for the claimed periods of wage loss. It noted that appellant had not claimed a back injury on his 

CA-1 form and that the medical evidence of record did not establish a causal relationship between 

the lumbar spine sprain/strain diagnosis and the accepted November 16, 2011 employment injury. 

Appellant was advised that he could file a new injury claim if a new injury had occurred.

On December 9, 2015 counsel requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review, which was held on August 9, 2016. During the hearing

and in a February 25, 2016 letter, counsel requested that the acceptance of the claim be expanded 

to include other medical conditions concerning the right ankle and back. The hearing 

representative advised counsel that the only issue to be decided from the hearing was appellant’s 

entitlement to wage-loss compensation for the period claimed. 

In an October 12, 2016 progress report, Dr. Isaac noted that appellant was last seen in 

December 2015 and was looking for work in a modified capacity as he could not work as a federal 

agent due to his standing and sitting intolerance, chronic back, and sciatic symptoms. He provided 

an impression of bilateral L5 radiculitis due to foraminal narrowing, history of work-related injury, 

physically demanding occupation, lumbar degenerative changes at L5-S1, facet arthropathy at L5-

S1.

By decision dated December 13, 2016, an OWCP hearing representative affirmed OWCP’s 

December 1, 2015 decision. She found that there was no medical evidence which supported 

appellant’s claims for compensation for leave buy back or wage-loss compensation for the claimed 

periods causally related to the accepted November 16, 2011 employment injury. The hearing 

representative indicated that no action had been taken on counsel’s July 1, 2015 and February 25, 

2016 requests to expand the acceptance of the claim to include additional conditions, and that on 

return of the case record appellant should be provided due process regarding this issue. She further 

advised appellant that he could file a claim for an occupational disease (Form CA-2), if he believed 

that his current conditions were related to work activities associated with his occupation.
6

LEGAL PRECEDENT

Section 8102(a) of FECA4sets forth the basis upon which an employee is eligible for 

compensation benefits. That section provides: “The United States shall pay compensation as 

specified by this subchapter for the disability or death of an employee resulting from personal 

injury sustained while in the performance of his duty....” In general the term “disability” under 

FECA means “incapacity, because of an employment injury, to earn the wages the employee was 

receiving at the time of injury.”

5

 This meaning, for brevity, is expressed as disability from work.6

For each period of disability claimed, the employee has the burden of proving that he or 

she was disabled from work as a result of the accepted employment injury.7 Whether a particular 

injury caused an employee to be disabled from employment and the duration of that disability are 

medical issues which must be proven by the preponderance of the reliable, probative, and 

substantial medical evidence.8

Disability is not synonymous with physical impairment, which may or may not result in an 

incapacity to earn wages. 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 he or she was 

receiving at the time of injury, has no disability as that term is used under FECA and is not entitled 

to compensation for loss of wage-earning capacity. The Board will not require OWCP to pay 

compensation for disability in the absence of any medical evidence directly addressing the 

particular period of disability for which compensation is claimed. To do so would essentially 

allow employees to self-certify their disability and entitlement to compensation.9

ANALYSIS

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

intermittent periods commencing September 3, 2013.

While OWCP accepted that appellant sustained left bone bruise medial and lateral 

malleolus, resolved, on November 16, 2011, appellant bears the burden of proof to establish,

through rationalized medical evidence, that he was disabled from work during the claimed time 

periods and that his disability was causally related to his accepted conditions.

10

 

4 5 U.S.C. § 8102(a).

5 20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548 

(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).

6 See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

7 See William A. Archer, 55 ECAB 674 (2004).

8 See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

9

Id.

10 See supra notes 7 and 8. See also V.P., Docket No. 09-0337 (issued August 4, 2009).
7

For the period commencing September 3, 2013, the evidence reflects that appellant 

underwent a right ankle arthroscopic surgery on September 2, 2013, which OWCP did not 

authorize. The accepted condition was of the left ankle, not the right. Where an employee claims 

that a condition not accepted or approved by OWCP was due to an employment injury, he or she 

bears the burden of proof to establish that the condition was causally related to the employment 

injury.11 

While appellant claimed injury to both ankles on his CA-1 form, there is no examination 

records for treatment of record contemporaneous to the work injury. In his February 6, 2013 

report, Dr. Cohen indicated that appellant had bilateral ankle pain as a result of the employment 

injury. However, it is not possible to establish the cause of a medical condition if the physician 

has not provided a diagnosis, but only notes pain.12 The Board has consistently held that pain is a 

symptom and not a compensable medical diagnosis.13 While Dr. Cohen ultimately opined that 

appellant may have impingement syndrome and intraarticular injury to the right ankle, he did not

provide a rationalized opinion explaining whether and how those diagnoses were related to the 

November 16, 2011 employment injury. The Board has found that medical opinions unsupported 

by rationale are of little probative value.14 

Medical notes from Dr. Argintar dated February 21 to October 14, 2013 fail to provide an 

opinion regarding the causality of the right ankle conditions. Reports lacking such an opinion are 

of diminished probative value.15 In his February 21, 2013 report, Dr. Argintar reported that 

appellant had chronic bilateral ankle pain, right greater than left, stemming from the employment 

injury. While he indicated that appellant’s clinical picture correlated to his MRI scan, which 

showed a large osteochondral injury to the medial distal tibia articular surface, Dr. Argintar did 

not provide any rationale supporting this conclusion or identify which MRI scan he was referring

to when providing his opinion.

16

 He provided no rationale as to why this condition was not seen 

on the December 9, 2011 right ankle MRI scan, which indicated moderate degenerative changes 

of the tibiotalar joint, mild degenerative changes of the posterior facet of the subtalar joint, and 

thickening of the anterior talofibular and calcaneofibular ligaments consistent with old sprain. 

Dr. Argintar’s opinion is insufficiently rationalized and therefore his opinion is insufficient to 

support that appellant’s right ankle condition arose from the accepted November 11, 2015 

employment injury.17 In a September 9, 2013 report, Dr. Argintar related that he had taken 

appellant off work for the entire month of September due to his right ankle surgery. As appellant’s 

 

11 G.M., Docket No. 15-1645 (issued December 7, 2015).

12 See A.C., Docket No. 16-1587 (issued December 27, 2016).

13 B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).

14 M.P., Docket No. 14-1289 (issued September 26, 2014); F.T., Docket No. 09-0919 (issued December 7, 2009); 

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

15 See Mary E. Marshall, 56 ECAB 420 (2005).

16 Supra note 14.

17 See V.M., Docket No. 15-0601 (issued May 19, 2015).
8

right ankle condition was not an accepted, appellant has not established that he was disabled to the 

accepted employment injury.18

Dr. Zaccaria related in his November 17, 2015 report that appellant’s right leg had been 

run over by the vehicle during the November 16, 2011 incident. However, there is no accident 

report or initial examination report which notes this mechanism of injury. While Dr. Zaccaria 

related that appellant had been placed on a “no running” restriction he did not explain whether this 

was related to appellant’s accepted left ankle injury and whether it caused appellant to be disabled 

for work for any specific period of time. As previously noted, whether a particular injury caused 

an employee to be disabled for employment and the duration of that disability are medical issues 

which must be proven by the preponderance of the reliable, probative, and substantial medical 

evidence.19

The remaining evidence of record, which include multiple treatment notes from Dr. Isaac 

and diagnostic testing, are insufficient to establish appellant’s burden of proof as none of these 

reports contain an opinion regarding a specific date of disability due to the accepted left ankle 

condition. Reports lacking such an opinion are of diminished probative value.20

In so far as the evidence pertains to conditions which have not been accepted by OWCP, 

but for which counsel has requested expansion of the acceptance of the claim, the Board notes that 

OWCP’s hearing representative found in the December 13, 2016 decision that OWCP had not 

taken any action on counsel’s request to expand the acceptance of the claim. As OWCP has not 

adjudicated this issue, the Board does not have jurisdiction. Issues in an interlocutory status are 

not before the Board.21 

Appellant has not met his burden of proof because the medical opinion evidence in this 

case is insufficient to establish that he was disabled from work commencing September 3, 2013 

causally related to the accepted condition which arose from the November 16, 2011 employment 

injury.

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 intermittent 

disability commencing September 3, 2013 causally related to his November 16, 2011 employment 

injury.

 

18 Supra note 7. 

19 Supra note 8. 

20 Id.

21 See 20 C.F.R. § 501.2(c)(2). See also R.O., Docket No. 17-0894 (issued January 26, 2018). 
9

ORDER

IT IS HEREBY ORDERED THAT the December 13, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 12, 2018

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