United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

U.S. POSTAL SERVICE, BRIDGE CREEK 

POST OFFICE, Wichita Falls, TX, Employer

__________________________________________

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Docket No. 19-1849

Issued: November 17, 2020

Appearances: Case Submitted on the Record

Erik B. Blowers, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 4, 2019 appellant, through counsel, filed a timely appeal from an August 12, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

 

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 The Board notes that, during the pendency of this appeal, OWCP issued a June 5, 2020 decision which denied 

appellant’s claim for compensation for the period February 23, 2017 through July 31, 2019. The Board and OWCP 

may not simultaneously exercise jurisdiction over the same issue(s). 20 C.F.R. §§ 501.2(c)(3), 10.626; see 

J.W., Docket No. 19-1688, n.1 (issued March 18, 2020); J.A., Docket No. 19-0981, n.2 (issued December 30, 2019);

Arlonia B. Taylor, 44 ECAB 591 (1993); Douglas E. Billings, 41 ECAB 880 (1990). Consequently, OWCP’s June 5, 

2020 decision is set aside as null and void as to the period February 5 through May 21, 2018.
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.4

ISSUE

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

work for the period February 5 through May 21, 2018 causally related to his accepted February 10, 

2017 employment injury.

FACTUAL HISTORY

On February 10, 2017 appellant, then a 32-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on that date he injured his right arm and shoulder when his 

postal vehicle was struck on the passenger side by another vehicle while in the performance of 

duty. He stopped work on February 10, 2017. On March 22, 2017 OWCP accepted the claim for 

cervical, thoracic, and lumbar sprains; left elbow contusion; and traumatic arthropathy of the right 

shoulder. Appellant initially received continuation of pay from the employing establishment and 

then OWCP paid him intermittent wage-loss compensation on the supplemental rolls from April 1 

until August 4, 2017.

On March 7, 2017 appellant accepted a modified job offer (limited duty), but added a note 

that he disagreed with what the doctor said he could do versus what he felt he could do. The work 

hours and days off were as scheduled, and the duties were defined as customer service for two 

hours, lobby assistant for one hour, and distribution of mail for one hour. The physical 

requirements provided were lifting mail and parcels weighing up to 20 pounds, walking to assist 

customers in lobby and distribution and bending and stooping for distribution of mail and to assist 

customers for two hours intermittently each; pushing and pulling containers with 20 pounds of 

force for distribution, standing to distribute mail, and reaching above shoulder distribution, for one

hour intermittently each, with four hours of simple grasping to perform customer service duties 

and distribution.5

In a January 16, 2018 duty status report (Form CA-17), Dr. Danny R. Bartel, a Boardcertified neurologist, described appellant’s clinical findings of neck and back pain, and extremity 

weakness. He diagnosed back and neck pain and advised that appellant could return to modifiedduty work that day. 

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that following the August 12, 2019 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.

5 The instant claim, date-of-injury February 10, 2017, was adjudicated under OWCP File No. xxxxxx774. The 

record indicates that appellant also has a claim for an October 13, 2017 traumatic injury under OWCP File No. 

xxxxxx599 which was accepted for a laceration to his right lower extremity. 
3

In a January 30, 2018 treatment note, Dr. Bartel noted a gradual onset of middle and lower 

back pain that radiated into appellant’s right lower extremity. He noted a history that appellant 

worked full time, with some restrictions, at the employing establishment and carried mailbags that 

weighed more than 40 pounds. Dr. Bartel described examination findings and diagnosed 

intervertebral disc disorder of the lumbar region and cervical disc disorder at C5-6, both with 

radiculopathy. He prescribed medication and performed a lumbar epidural steroid injection.6

In support thereof, appellant submitted a February 5, 2018 report, wherein

Dr. Karen Dickerson, an anesthesiologist who practices pain medicine, described appellant’s 

history of injury and his complaints of C5-6 neck pain and L4-5 lumbar pain. She reported normal 

sensation to all fingers and toes, and tenderness over the cervical and lumbar spine with decreased 

range of motion. Dr. Dickerson diagnosed cervical disc disease, lumbar disc disease, and right 

lower leg laceration and reiterated his restrictions. She indicated that appellant cased all classes 

of mail for delivery on an established route. Dr. Dickerson provided a five-pound weight limit on 

casing, delivering, and collecting mail and two hours standing, one hour intermittent walking, and 

no kneeling, bending, stooping, or pulling. Driving was restricted to one hour. Dr. Dickerson

completed a February 5, 2018 Form CA-17 wherein she advised that appellant was unable to work. 

In a March 5, 2018 Form CA-17, she noted that appellant had cervical and lumbar clinical findings 

and advised that he could return to modified-duty work on March 6, 2018 with a five-pound weight 

restriction. 

A March 5, 2018 magnetic resonance imaging (MRI) scan of the lumbar spine 

demonstrated a disc bulge at L4-5 with no disc protrusion. The lumbar spine was otherwise 

normal. 

In a record of telephone conversation (Form CA-110) dated April 2, 2018, appellant 

maintained that he was off work because the employing establishment would not meet his current 

restrictions. In Form CA-110 notes of telephone conversation dated April 11, 2018, OWCP 

informed him that the medical evidence did not support total disability because it was not for 

accepted conditions. 

On an April 9, 2018 Form CA-17 Dr. Dickerson reiterated appellant’s restrictions.

By letter dated April 12, 2018, G.N., a health and resource management specialist at the 

employing establishment, noted her review of Dr. Dickerson’s report. She advised that appellant 

had not performed regular duties since his employment injury on February 10, 2017 and had since 

worked an average of 21.96 hours per week with duties mainly consisting of customer services 

duties, working in the lobby, and sorting and casing mail within a 20-pound weight limitation,

 

6 On March 14, 2018 appellant filed a claim for compensation (Form CA-7) for the period February 10 to 

March 16, 2018. By decision dated June 12, 2018, OWCP denied his claim for compensation, finding that he had not 

established disability from work during the period February 10, 2017 through March 16, 2018 due to his accepted 

conditions. 
4

based upon his acceptance of the March 7, modified job offer. G.N. furnished a copy of the 

March 7, 2017 job offer.7

On a Form CA-17 dated May 7, 2018, Dr. Dickerson reiterated her restrictions and advised 

that appellant could return to modified duty on May 8, 2018. 

On May 31, 2018 appellant filed a Form CA-7 for disability during the period February 5 

to May 31, 2018. 

On June 1, 2018 based on Dr. Dickerson’s restrictions the employing establishment offered 

appellant a modified position with duties of one hour of casing mail, one to two hours of working 

undeliverable bulk business mail, and one hour of administrative duties, with no climbing, 

kneeling, bending, stooping, pushing, pulling, operating a vehicle, or operating machinery, and a 

five-pound lifting restriction. Appellant refused the job offer on June 8, 2018. 

In Form CA-17 reports dated June 4 and July 9, 2018, Dr. Dickerson reiterated her 

previous findings and conclusions.

On May 15, 2018 OWCP referred appellant to Dr. John A. Sklar, a Board-certified 

physiatrist. Dr. Sklar was provided with a statement of accepted facts (SOAF) and a list of 

questions. He was asked to address all current diagnoses causally related to the accepted 

employment injury, whether appellant’s accepted conditions had resolved, and whether appellant 

was currently able to return to his date-of-injury position. In a June 21, 2018 report, Dr. Sklar 

noted appellant’s history of injury, his review of the medical record, and appellant’s complaint of 

neck pain radiating to the right shoulder and back pain radiating to the right hip. He indicated that 

he had been asked to determine whether appellant was able to return to work and whether 

appellant’s accepted conditions had resolved. On examination Dr. Sklar noted decreased cervical 

and lumbar range of motion secondary to pain, no extremity atrophy, and moderate tenderness 

over the right trapezius and right lumbar region. He advised that appellant’s examination was 

consistent with a diagnosis of chronic nonspecific lower back pain, not reasonably considered to 

be associated with the employment injury. Dr. Sklar noted that appellant would have been 

expected to have fully recovered from the accepted strain/sprain injuries, and that his findings on 

examination were subjective. He advised that the lumbar MRI scan showed minor degenerative 

changes, and reiterated that appellant’s current complaints were not work related. Dr. Sklar 

indicated that appellant could return to full duty without restrictions. He also provided a work 

capacity evaluation (Form OWCP-5c) in which he advised that appellant could perform his usual 

job without restrictions. 

Appellant accepted a June 1, 2018 job offer on July 25, 2018. 

On July 20, 2018 OWCP determined that a conflict in medical evidence had been created

regarding the status of appellant’s accepted conditions and his period of total disability. It referred 

 

7 Supra note 4. Counsel submitted a January 8, 2018 report in which Dr. Dickerson described this injury and 

diagnosed laceration of the lower leg. In an April 9, 2018 report, she reported a history that appellant carried mail and 

packages eight hours daily that weighed up to 70 pounds and had worked for the employing establishment for 28 

years.
5

appellant, along with a SOAF and a list of questions to Dr. John Milani, a Board-certified 

orthopedic surgeon.

8

 Dr. Milani was specifically asked to provide an opinion regarding appellant’s 

period of total disability due to work-related conditions and when any period of total disability 

ceased.

By decision dated August 30, 2018, OWCP denied appellant’s claim for compensation for 

disability from work during the period February 5 through May 21, 2018.9

In a September 28, 2018 report with addendum, Dr. Milani noted appellant’s history of 

injury and described appellant’s complaints of radiating neck pain and right forearm and hand 

numbness and weakness, and radiating back pain with right leg weakness. He described his review 

of the medical record including diagnostic studies, and the accepted conditions of cervical, 

thoracic, and lumbar sprains, contusion of the left elbow, and traumatic arthropathy of the right 

shoulder. Cervical spine examination demonstrated right paracervical and medial scapular 

tenderness to palpation, severely decreased range of motion in each direction. Muscle strength 

within each muscle group was within normal limits, but triggered back pain. Spurling’s and 

Hoffman’s tests were negative, and Tinel’s test was positive for right median nerve. Sensation 

was decreased in right long finger, and left upper extremity sensation was normal. Lumbosacral 

examination demonstrated right parathoracic and paralumbar tenderness to palpation, and severely

restricted range of motion in each direction. Straight leg test and Faber tests were negative 

bilaterally. Sensation was slightly decreased in the right calf near the laceration scar, and left lower 

extremity sensation was normal. Dr. Milani noted that appellant had a slow, mildly antalgic gait. 

Cervical spine x-ray that day was consistent with some loss of the normal lordosis and mild midcervical spondylosis. Thoracic and lumbosacral spine x-rays were consistent with mild 

spondylosis.

Dr. Milani diagnosed cervical, thoracic, and lumbar sprains. He advised that appellant 

admitted his neck and low back pain had improved and that he confirmed that his real continued 

complaint was thoracic pain, which was related to the employment injury. Dr. Milani noted that 

an October 15, 2018 thoracic spine MRI scan showed only a small bulge,10 but it was possible to 

have chronic thoracic pain with a normal study. With regard to disability, he indicated that 

appellant had partial disability with the ability to perform only light or sedentary duty since his 

injury and noted that appellant reported that he had not worked since August 18, 2018 because the 

employing establishment could not honor his restriction on no bending. Dr. Milani recommended 

that appellant enroll in a pain management program. 

Dr. Milani completed an OWCP-5c on November 6, 2018. He advised that appellant could 

not perform his regular job duties due to a chronic thoracic strain with continued pain, and could 

not work an eight-hour day due to chronic pain, but could work four hours of modified duty daily 

and could increase his work hours upon completion of a pain program. Dr. Milani indicated:

 

8 A copy of the Form OWCP ME023 and a bypass log are found in the record. 

9 The Board notes that although the claimant flied a CA-7 for the period February 5 through May 31, 2018, OWCP 

did not adjudicate the period May 22 through 31, 2018.

10 The October 15, 2015 MRI scan demonstrated a disc bulge at T3-4 with no stenosis, and no vertebral compression 

deformities, no fracture, soft tissue abnormality, or other traumatic injury seen. 
6

appellant could sit, walk, and stand for two hours with occasional reaching; could perform one

hour intermittent reaching above shoulder, and twisting, and one hour bending, stooping, squatting, 

and kneeling; push and pull up to 20 pounds for two hours; lift 10 pounds for one hour; and could 

not climb ladders.

Dr. Dickerson continued to provide reports describing appellant’s current condition and 

pain management. 

On May6, 2019 appellant, through counsel, requested reconsideration of the August 30, 

2018 decision. Counsel asserted that the employing establishment did not accommodate 

appellant’s restrictions and, therefore, pursuant to section 2.901.5(a)(2) of OWCP’s procedures, 

appellant was entitled to wage-loss compensation for the period February 5 to May 21, 2018.

By decision dated August 12, 2019, OWCP denied modification of the August 30, 2018 

decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA11 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.12 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.13 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.14 Under FECA,

the term “disability” means the incapacity, because of an employment injury, to earn the wages 

that the employee was receiving at the time of injury.15 Disability is thus 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 a federal employment injury, but who 

nevertheless 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 in FECA.16

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.17 Whether a 

 

11 Supra note 3.

12 A.B., Docket No. 19-0185 (issued July 24, 2020); T.A., Docket No. 18-0431 (issued November 7, 2018);

Amelia S. Jefferson, 57 ECAB 183 (2005).

13 A.B., id.; D.R., Docket No. 18-0232 (issued October 2, 2018).

14 S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

15 20 C.F.R. § 10.5(f); see J.M., Docket No. 18-0763 (issued April 29, 2020); B.K., Docket No. 18-0386 (issued 

September 14, 2018).

16 See B.C., Docket No. 18-0692 (issued June 5, 2020).

17 See C.E., Docket No. 19-1617 (issued June 3, 2020).
7

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

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

substantial medical opinion evidence.18

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 their disability and 

entitlement to compensation.19

Section 8123(a) of FECA provides, in pertinent part: “If there is disagreement between 

the physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.”

20

 This is called a referee 

examination, and OWCP will select a physician who is qualified in the appropriate specialty and 

who has no prior connection with the case.21 Where a case is referred to an impartial medical 

specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently 

well rationalized and based on a proper factual background, must be given special weight.22

ANALYSIS

The Board finds that this case is not in posture for decision.

On July 20, 2018 OWCP found that a conflict in medical opinion evidence had been created

between appellant’s treating physician Dr. Dickerson and OWCP’s second opinion physician

Dr. Sklar regarding appellant’s disability status and referred appellant to Dr. Milani for an 

impartial medical examination. While Dr. Milani advised that appellant could perform modified 

duties from the date of injury, the physical restrictions he provided do not comport with those in 

effect on February 5, 2018, when the period of claimed disability began. The physical 

requirements of the March 17, 2017 job description, in effect on February 5, 2018 when appellant 

stopped work, provided a lifting requirement of up to 20 pounds for two hours intermittently, 

whereas Dr. Milani advised that appellant could only lift 10 pounds for one hour. The job 

description also indicated two hours of intermittent stooping, squatting, and kneeling, whereas

Dr. Milani limited appellant to one hour for these activities. OWCP did not ask Dr. Milani to 

provide specific restrictions to begin on February 5, 2018, nor did he specifically address 

appellant’s physical restrictions for the period February 5 through May 21, 2018. Thus, an 

unresolved conflict in medical opinion evidence remains regarding whether appellant was totally 

disabled for the claimed period. 

 

18 20 C.F.R. § 10.5(f); see W.C., Docket No. 19-1740 (issued June 4, 2020); Fereidoon Kharabi, supra note 14.

19 J.K., Docket No. 19-0488 (issued June 5, 2020); Sandra D. Pruitt, 57 ECAB 126 (2005).

20 5 U.S.C. § 8123(a).

21 D.H., Docket No. 19-0809 (issued August 24, 2020).

22 Id.
8

Therefore, the Board will remand the case to OWCP for further medical development.23 

OWCP shall request that Dr. Milani review the entire case record including the March 17, 2017 

job offer, and provide an opinion regarding appellant’s disability, with specific physical 

restrictions, for the period February 5 through May 21, 2018. If Dr. Milani is unable or unwilling 

to provide a supplemental report, OWCP shall refer appellant and the case file to another impartial 

medical examiner to properly determine whether appellant could perform the job requirements 

listed in the March 17, 2017 job offer during the period February 5 through May 21, 2018.24 After 

such further development as necessary, OWCP shall issue a de novo decision. 

CONCLUSION

The Board finds that this case is not in posture for decision. 

ORDER

IT IS HEREBY ORDERED THAT the August 12, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

proceedings consistent with this opinion of the Board.

Issued: November 17, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

23 L.S., Docket No. 19-1730 (issued August 26, 2020).

24 Id.