United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Beachwood, OH, Employer

__________________________________________

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Docket No. 20-0050

Issued: March 4, 2021

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, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 7, 2019 appellant, through counsel, filed a timely appeal from an August 13, 

2019 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 August 13, 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.
2

ISSUE

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

work for the period September 9, 2016 to February 3, 2017 causally related to his accepted 

February 25, 2015 employment injury.

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 as 

follows.

On February 25, 2015 appellant, then a 48-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on that date, he injured his low back and knee when he slipped 

when walking on snow while in the performance of duty. He stopped work on the date of injury. 

OWCP accepted the claim for lumbar sprain/strain. It paid appellant wage-loss compensation on 

the supplemental rolls as of April 12, 2015 and on the periodic rolls as of June 28, 2015. Appellant 

returned to limited-duty work on July 19, 2016. However, during the period July 19 to 25, 2016 

full-time work was not available within his restrictions. Effective August 12, 2016, appellant 

accepted a written limited-duty job offer. He stopped work on September 9, 2016.

On November 18, 2016 appellant filed claims for compensation (Form CA-7) claiming

intermittent disability from work from July 9 through 22, July 23 through August 5, and 

September 3 through 16, 2016. 

In December 2016 appellant filed Form CA-7 claims for compensation for the periods 

September 17 through 30, October 1 through 14, October 29 through November 11, November 12 

through 25, November 26 through December 9, and December 10 through 23, 2016. On 

January 10, 2017 appellant filed Form CA-7 claims for compensation for the periods October 15 

through 28, 2016 and December 24, 2016 through January 6, 2017.

By development letter dated January 17, 2017, OWCP informed appellant that it had 

received his claims for wage-loss compensation. It requested additional evidence to establish that 

he was unable to work during the claimed periods due to his accepted February 25, 2015 

employment injury.5 OWCP afforded appellant 30 days to submit the requested evidence. 

On January 23, 2017 appellant filed a Form CA-7 claim for compensation for the period 

January 7 through 20, 2017. On February 6, 2017 he filed a Form CA-7 claim for compensation 

for the period January 21 through February 3, 2017. Appellant returned to work on 

February 7, 2017.

By decision dated July 24, 2017, OWCP found that appellant was entitled to wage-loss 

compensation for total disability from work from July 11 through 25, 2016. However, it denied 

his claims for wage-loss compensation for the period September 9, 2016 through February 3, 2017, 

 

4 Docket No. 18-0339 (issued January 24, 2019).

5 OWCP noted that a limited-duty assignment was available within his medical restrictions for the period of claimed 

lost time and therefore he was to provide evidence to support why he did not work the light-/limited-duty assignment. 
3

as the medical evidence of record was insufficient to establish that he was disabled from work 

during the claimed period due to the accepted February 25, 2015 employment injury.6

Appellant appealed to the Board. By decision dated January 24, 2019, the Board affirmed 

OWCP’s July 24, 2017 decision. The Board found that appellant had not met his burden of proof 

to establish total disability for the period September 9, 2016 to February 3, 2017 causally related 

to his accepted February 25, 2015 employment injury.7 

OWCP continued to receive medical evidence. Dr. Kimberly Togliatti-Trickett, Boardcertified in physical medicine and rehabilitation, in reports dated August 17 and 24, 2017 and 

May 24, 2019, noted that appellant was totally disabled from work from September 9, 2016 to 

February 3, 2017 due to underlying low back, radicular, and left lower extremity pain. During this 

period he was unable to bend, lift, and carry more than 10 pounds for more than one hour. In a 

May 24, 2019 report, Dr. Togliatti-Trickett advised that appellant was instructed to remain off 

work from September 9, 2016 through February 7, 2017 based on his physical limitation and his 

inability to perform his job due to the February 25, 2015 employment injury.

On May 29, 2019 appellant, through counsel, requested reconsideration. 

By decision dated August 13, 2019, OWCP denied modification. It found that the medical 

evidence of record was insufficient to establish total disability from work for the period 

September 9, 2016 to February 3, 2017 causally related to his accepted February 25, 2015 

employment injury.

LEGAL PRECEDENT

An employee seeking benefits under FECA8has the burden of proof to establish the 

essential elements of his or her claim, including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury.9 The term disability is 

 

6 On August 8, 2017 appellant filed a Form CA-2a claiming wage loss from work due to a change or worsening of 

his accepted work-related conditions on July 29, 2017. By decision dated October 31, 2018, an OWCP hearing 

representative affirmed the February 28, 2018 denial of the recurrence claim. This issue is not before the Board.

7 The Board also found that OWCP had properly determined that appellant received an overpayment of 

compensation in the amount of $11,235.14 for the period July 26 through November 12, 2016. The Board found that 

he was without fault in the creation of the overpayment for the period July 26 to August 20, 2016, but was at fault in 

the creation of the overpayment for the period August 21 through November 12, 2016. The Board remanded the case 

for OWCP to consider waiver of recovery of the overpayment for the period July 26 to August 20, 2016. The Board 

notes that, to date, OWCP has not issued a de novo decision regarding waiver of recovery of the overpayment for the 

period July 26 to August 20, 2016. As such, that issue is not presently before the Board.

8 Supra note 2.

9 C.R., Docket No. 18-1805 (issued May 10, 2019); S.J., Docket No. 17-0828 (issued December 20, 2017); G.T.,

Docket No. 07-1345 (issued April 11, 2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 

1143 (1989).
4

defined as the incapacity because of an employment injury to earn the wages the employee was 

receiving at the time of the injury.10

Whether a particular injury causes an employee to be disabled from employment and the 

duration of that disability are medical issues which must be proven by a preponderance of the 

reliable, probative, and substantial medical evidence.11 Findings on examination are generally 

needed to support a physician’s opinion that an employee is disabled from work.12 When the 

physician’s statements regarding an employee’s ability to work consist only of repetition of the 

employee’s complaints that he or she was unable to work, without objective findings of disability 

being shown, the physician has not presented a medical opinion, supported by medical rationale, 

on the issue of disability or a basis for payment of compensation.13

When an employee, who is disabled from the job he or she held when injured due to 

employment-related residuals, returns to a light-duty position or the medical evidence establishes 

that, light duty can be performed, the employee has the burden of proof to establish by the weight 

of reliable, probative, and substantial evidence a recurrence of total disability. As part of this 

burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.14

 OWCP’s 

procedures require that where recurrent disability from work is claimed within 90 days of the first 

return to duty, the focus is on disability rather than causal relationship.15 The attending physician 

should describe the duties which the employee cannot perform and the demonstrated objective 

medical findings that form the basis for the renewed disability from work.16

The Board will not require OWCP to pay compensation for disability in the absence of any 

medical evidence addressing the specific dates of disability for which compensation is claimed. 

To do so would essentially allow an employee to self-certify his or her disability and entitlement 

to compensation.

ANALYSIS

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

from work for the period September 9, 2016 to February 3, 2017 causally related to his accepted 

February 25, 2015 employment injury. 

 

10 20 C.F.R. § 10.5(f); see S.M., Docket No. 19-0658 (issued March 17, 200); Cheryl L. Decavitch, 50 ECAB 

397 (1999).

11 B.K., Docket No. 18-0386 (issued September 14, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005); William A. 

Archer, 55 ECAB 674 (2004).

12 B.R., Docket No. 18-0339 (issued January 24, 2019); Dean E. Pierce, 40 ECAB 1249 (1989).

13 See B.R., id.; Fereidoon Kharabi, 52 ECAB 291 (2001).

14 C.G., Docket No. 16-1503 (issued May 17, 2017).

15 Id.

16 Id.
5

Preliminarily, the Board notes that findings made in prior Board decisions are res judicata

absent any further review by OWCP under section 8128 of FECA.17 It is therefore unnecessary 

for the Board to consider the evidence appellant submitted prior to the issuance of OWCP’s 

July 24, 2017 decision because the Board considered that evidence in its January 24, 2019 

decision.18

The medical evidence of record submitted after OWCP’s July 24, 2017 decision consists 

of reports from Dr. Togliatti-Trickett who opined in her August 17 and 24, 2017 reports that 

appellant was totally disabled from work from September 9, 2016 to February 3, 2017 due to 

underlying low back, radicular, and left lower extremity pain. She also noted appellant’s work 

restrictions. In her May 24, 2019 report, Dr. Togliatti-Trickett noted that appellant was held off 

work from September 9, 2016 through February 7, 2017 based on his physical limitations and his 

inability to perform his job due to the February 25, 2015 employment injury. Although she opined 

that appellant was totally disabled from work, her opinion was conclusory in nature and failed to 

explain how the accepted back conditions were responsible for appellant’s claimed disability and 

why he could not perform his limited-duty assignment during the period claimed.19 As previously 

noted, if inability to work is claimed within 90 days after the initial return to work the focus is on 

disability, rather than causal relationship. However, the treating physician must describe the duties 

which the employee cannot perform and demonstrate objective medical findings that form the 

basis for the renewed disability for work.20 As Dr. Togliatti-Trickett did not provide objective 

medical findings that formed her opinion regarding appellant’s disability for work, her reports are 

insufficient to establish that appellant was disabled during the period September 9, 2016 through 

February 7, 2017 causally related to his accepted employment injury. The Board thus finds that 

appellant has not met his burden of proof. 

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.

 

17 See E.H., Docket No. 19-1569 (issued April 2, 2020); J T., Docket No. 18-1757 (issued April 19, 2019); S.S., 

Docket No. 17-1106 (issued June 5, 2018); H.G., Docket No. 16-1191 (issued November 25, 2016).

18 Supra note 4.

19 See S.K., Docket No. 18-1537 (issued June 20, 2019).

20 See K.D., Docket No. 19-0628 (issued November 5, 2019); A.B., Docket No. 18-0978 (issued September 6, 

2019); J.W., Docket No. 17-0715 (issued May 29, 2018); G.P., Docket No. 14-1150 (issued September 15, 2014); 

J.F., 58 ECAB 124 (2006).
6

CONCLUSION

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

from work for the period September 9, 2016 to February 3, 2017 causally related to his accepted 

February 25, 2015 employment injury. 

ORDER

IT IS HEREBY ORDERED THAT the August 13, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

21

Issued: March 4, 2021

Washington, DC

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

21 Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer 

a member of the Board after January 20, 2021.