United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Santa Clarita, CA, Employer

__________________________________________

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Docket No. 17-1344

Issued: March 19, 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 June 2, 2017 appellant, through counsel, filed a timely appeal from a March 28, 2017 

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.

ISSUES

The issues are: (1) whether appellant met his burden of proof to establish total and 

intermittent periods of disability beginning February 5, 2016 due to his December 21, 2015 

 

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.
2

employment injury; and (2) whether appellant established that his claim should be expanded to 

include the additional conditions of lumbar disc herniation with radiculopathy, lumbar 

spondylosis, and muscle spasm.

FACTUAL HISTORY

On December 30, 2015 appellant, then a 39-year-old carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that, on December 21, 2015, he sustained a lumbar strain and 

right hip contusion when he slipped and fell in a customer’s driveway while in the performance of 

duty. He stopped work on December 21, 2015. OWCP accepted appellant’s claim for a low back 

strain and contusion of the right hip. Appellant received continuation of pay (COP) benefits 

through February 4, 2016. 

Appellant was initially treated by Dr. Katayoon Shahrokh, Board-certified in physical 

medicine and rehabilitation, who related in a January 7, 2016 report that he complained of rightsided low back pain and discomfort and occasional right lower extremity pain. Dr. Shahrokh 

diagnosed lumbar muscle strain. In a work status report, she indicated that appellant could work 

modified duty from January 7 through 21, 2016. 

In a January 7, 2016 lumbar spine magnetic resonance imaging (MRI) scan report,

Dr. Geoffrey Sigmund, a Board-certified diagnostic radiologist, noted a 3 millimeter (mm)

asymmetric disc bulge to the right foraminal region at L4-5, with mild-to-moderate narrowing, but 

otherwise normal alignment of the lumbar spine. 

On January 28, 2016 the employing establishment provided appellant with a modified job 

offer. Appellant refused the modified job offer on February 2, 2016 and indicated that the reason 

was “per doctor’s instruction.” 

In a February 1, 2016 progress note and work status report, Dr. Shahrokh described the 

December 21, 2015 employment injury and noted examination findings of tenderness of the right 

hip and decreased range of motion and tenderness of the lumbar spine. She diagnosed lumbar 

radiculopathy. Dr. Shahrokh noted that appellant was placed off work from February 1 

through 15, 2016. 

On February 4, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for 

total disability from February 5 to 19, 2016. On the reverse side of the claim form, the employing 

establishment confirmed that he had used COP from December 22, 2015 to February 4, 2016 and 

leave without pay (LWOP) from February 5 to 19, 2016. In an attached time analysis form (Form 

CA-7a), appellant indicated that he was totally disabled during the claimed period of disability. 

The employing establishment indicated that eight hours of work was available for him daily. 

Dr. Shahrokh continued to treat appellant. In progress notes and supplemental attending 

physician’s reports dated February 10, 12, and 16, 2016, she noted a date of injury of 

December 21, 2015. Dr. Shahrokh provided examination findings and reported diagnoses of 

lumbar radiculopathy, lumbar disc herniation, lumbar muscle strain, and lumbar disc herniation 

with radiculopathy. In a February 16, 2016 report, she requested that OWCP add lumbar 

radiculopathy and disc herniation to appellant’s claim. Dr. Shahrokh explained that the herniated 
3

disc was compressing a lumbar nerve and causing radiculopathy. She related that the diagnosis 

was supported by MRI scan findings of a 3 mm disc herniation and physical examination findings 

of asymmetric weakness, impaired sensation, and positive straight leg raise testing. Dr. Shahrokh 

noted that appellant was totally disabled from February 15 through 29, 2016. She explained that 

the reason for being off work was “incapacitating injury or pain.” 

By letter dated February 17, 2016, the employing establishment requested that OWCP deny 

appellant’s claim for wage-loss compensation for the period February 5 through 19, 2016. It

explained that he had been placed on work restrictions by his physician after the injury. However,

work was not available within these restrictions until January 28, 2016. A job offer was mailed to 

appellant on January 29, 2016, within the physician’s restrictions, but then on February 1, 2016 

appellant’s physician related that appellant was totally disabled from work. The employing 

establishment noted that work had been available since January 29, 2016 within the restrictions 

previously provided by appellant’s physician. 

In a February 18, 2016 letter, OWCP noted that Dr. Shahrokh added a new diagnosis of 

lumbar radiculopathy. It requested that appellant submit a detailed narrative report with medical 

rationale explaining how the diagnosed condition resulted from the December 21, 2015 

employment injury. 

By letter dated February 22, 2016, OWCP informed appellant that it received his claim for 

wage-loss compensation beginning February 5, 2016. It requested additional evidence to establish 

that he was unable to work effective February 5, 2016 as a result of his December 21, 2015 

employment injury. Appellant was afforded 30 days to submit this evidence. 

On February 10, 2016 appellant submitted another claim for wage-loss compensation 

(Form CA-7) for the period February 22 to March 4, 2016. On the reverse side of the claim form, 

the employing establishment noted that eight hours of work was available. It attached an OWCP 

time loss record which indicated that work was available for appellant from February 22 to 

March 4, 2016. 

OWCP received a neurology consultation report dated March 1, 2016 by Dr. Rollin ChenChi Hu, a Board-certified neurosurgeon, who described the December 21, 2015 employment 

injury. Dr. Hu related appellant’s complaints of persistent low back pain and right leg pain and 

numbness. Upon physical examination, he reported minimal tenderness to palpation over the 

lumbar spine. Dr. Hu noted diminished sensation to light touch over the entire right leg. He

indicated that after reviewing appellant’s lumbar spine MRI scan he found no evidence of 

significant degenerative changes or disc herniation, foraminal stenosis, or root impingement. 

Dr. Hu related that appellant’s symptoms were also inconsistent with a lumbar radiculopathy as 

appellant complained of numbness and weakness of the entire right leg in no particular radicular 

distribution. He recommended an electromyography (EMG) study to rule out a peripheral nerve 

or plexus issue. 

Dr. Shahrokh continued to treat appellant. In attending physician’s reports dated 

February 29 and March 1, 2016, she described the December 21, 2015 employment injury and 

conducted an examination. Dr. Shahrokh reported diagnoses of lumbar muscle strain, lumbar 
4

radiculopathy, and lumbar disc herniation. In work status notes dated from February 29 to 

March 8, 2016, she authorized appellant to work modified duty. 

Appellant submitted a March 4, 2016 EMG and nerve conduction velocity (NCV) study by

Dr. Radha Peram, a physical medicine and rehabilitation specialist. Dr. Peram noted diagnoses of 

chronic low back pain, lumbosacral radiculitis, and paresthesia. He reported a normal study with 

no electrodiagnostic evidence for neuropathy or nerve entrapment in the right lower extremity. 

By letter dated March 10, 2016, the employing establishment requested that OWCP 

disallow appellant’s claim for wage-loss compensation for the period February 22 through 

March 4, 2016. It confirmed that there was and continued to be eight hours of work available. 

On March 11, 2016 the employing establishment provided appellant with a job offer as a 

modified city carrier assistant (CCA). It noted that the work hours were from 8:00 a.m. to 2:00 

p.m. with scheduled days off of Saturday and Sunday. 

Appellant returned to modified duty on March 18, 2016. 

In reports and work status notes dated March 29 and April 19, 2016, Dr. Shahrokh

conducted an examination and noted a diagnosis of chronic low back pain and lumbar muscle 

strain. She indicated that appellant could work modified duty for the period March 22 to May 10, 

2016 with restrictions.

Appellant filed additional claims for wage-loss compensation (CA-7 forms) for 

intermittent periods of disability from March 7 through April 1, 2016.3 In the attached Form CA7a, he indicated that he was totally disabled from March 7 to 17, 2016. He claimed disability 

compensation on March 18, 21, 23, and 25, 2016 for “therapy.”

4

 Appellant also claimed disability 

compensation on March 22 and 24, 2016 and from March 28 through April 1, 2016 for “no work 

available.” On the reverse side of the claim forms, the employing establishment confirmed that 

eight hours of work was available. It provided a time-loss record, which detailed the hours that 

appellant worked and the hours he requested LWOP for the months of March and April, 2016.

5

 

 

3 On April 4, 2016 appellant filed a Form CA-7 claiming wage-loss compensation for the period March 7 

to 18, 2016. On April 5, 2016 he filed a Form CA-7 claiming wage-loss compensation for the period March 21 

to April 1, 2016. 

4 Appellant requested six hours of disability compensation on March 18, 2016 and seven hours of disability 

compensation on March 21, 23, and 25, 2016. He requested six hours of disability compensation on March 22, 2016 

and eight hours of disability compensation on March 24, 2016 and from March 28 through April 1, 2016. 

5 The timesheet also revealed that appellant worked 1.87 hours on March 18; .97 hours on March 21; 1.5 hours on 

March 22; .96 hours on March 23; .97 hours on March 24; and 87 hours on March 25, 2016. In time-loss sheets for 

April 2016, the employing establishment indicated that work was available on April 1, 2016; appellant worked 5.81 

hours on April 4; 5.78 hours on April 5; 5.55 hours on April 6; 4.66 hours on April 7; 8.72 hours on April 11; 4.52 

hours on April 12; 6.63 hours on April 15, 2016; 4.90 hours on April 20; 5.03 hours on April 21; 2.02 hours on 

April 22; 3.34 hours on April 25; 1.98 hours on April 26; 2.00 hours on April 27; 1.87 hours on April 28; and 1.92 

hours on April 29, 2016. 
5

By letter dated April 5, 2016, counsel noted his disagreement with OWCP’s February 18, 

2016 letter. He alleged that lumbar radiculopathy was a valid, compensable diagnosis. 

According to an April 14, 2016 Form CA-110, the employing establishment again 

explained that there was no work available for appellant until January 28, 2016. It noted that he

declined a modified duty offer on February 2, 2016, so it provided another modified-duty position

offer on February 29, 2016. The employing establishment related that appellant worked from 

March 21 to 25, 2016 and then stopped work again. It confirmed that the limited-duty position

was still available. 

Appellant provided various physical therapy treatment notes dated March 16, 18, 20, 21, 

23, and 25, and April 8, 2016. 

On April 15, 2016 the employing establishment provided appellant with another modified 

job offer. It noted work hours of “8:00 a.m. – up to 8 hours” with rotating scheduled days off. 

Appellant accepted the modified job offer. 

On April 28, 2016 appellant filed CA-7 forms claiming wage-loss compensation for 

intermittent periods of partial disability for the period April 4 to 28, 2016. In attached forms 

CA-7a, he indicated that the reason for using leave during that period was: “no work available.”

6

 

On the reverse side of the claim form, the employing establishment checked a box marked 

“No” indicating that appellant did not return to the predate-of-injury job. It also noted that it was 

unable to identify adequate work that was available within his medical restrictions. The employing 

establishment provided a time-loss record for April 2016, which indicated that, for the week of 

April 4 through 8, 2016, appellant worked a total of 21.78 hours and was owed 16.67 hours. It 

further related that, from April 11 through 15, 2016, he worked 19.87 hours and was owed 18.58 

hours. The employing establishment noted that, from April 18 through 22, 2016, appellant worked 

11.95 hours and was owed 26.50 LWOP hours. It indicated that, from April 25 through 29, 2016, 

he worked 11.17 hours and was owed 27.28 LWOP hours. 

By letter dated May 3, 2016, counsel indicated that he was submitting medical 

documentation to support that appellant’s claim be expanded to include the following conditions: 

lumbar disc herniation with radiculopathy, lumbar spondylosis, and muscle spasm. 

By decision dated May 12, 2016, OWCP denied appellant’s claim for wage-loss 

compensation beginning February 17, 2016. It found that the medical evidence of record failed to 

establish that he was disabled from work during the claimed period as a result of his accepted 

injury. By separate decision of the same date, OWCP also denied appellant’s request to expand 

his claim to include lumbar disc herniation with radiculopathy, lumbar spondylosis, and muscle 

spasm. It found that the medical evidence of record was insufficient to establish any additional 

conditions causally related to the December 21, 2015 employment injury. 

 

6 Appellant claimed eight hours on April 13, 14,18, and 19, 2016, six hours on April 7, 15, 22, 25, 26, 27, and 28, 

2016, five hours on April 12, 2016, four hours on April 4, 5, 7, 8, and 11, 2016, and three hours on April 6 

and 21, 2016. 
6

Appellant submitted additional CA-7 forms requesting wage-loss compensation for 

intermittent disability during the period May 2 to June 24, 2016. In the CA-7a forms he indicated 

that he was partially disabled on May 3, 5, 11, 16, 18, 20, 24, 25, 27, 30, and 31, 2016 and June 6, 

7, 8, 9, and 10, 2016 because there was “no work available.”

7

 Appellant also claimed disability 

on May 2, 4, 6, 9, 10 11, 13, 17, 19, 23, 26 and 31, 2016 and June 21, 2016 related the reason was 

for “therapy” or the “doctor.” On the reverse side of the Form CA-7a, the employing establishment 

indicated that work was available and referred to the job offer on file. It also provided a time-loss 

logging sheet for May and June 2016.

8

 

In May 10 and 31, 2016 attending physician’s report, Dr. Shahrokh reviewed appellant’s 

history and conducted an examination. She diagnosed chronic low back pain and lumbar muscle 

strain. Dr. Shahrokh related that appellant could work modified duty from May 10 through 

June 21, 2016 with restrictions of standing and walking no more than 45 cumulative minutes, 

bending at the wait, squatting, kneeling, and knee bending no more than 15 cumulative minutes, 

and lifting, carrying, pushing, or pulling up to 15 pounds. 

On May 18, 2016 the employing establishment provided appellant with a modified job 

offer. It noted that the work hours were “8:00 [a.m.] – up to 6 hours” with rotating scheduled days 

off. Appellant accepted the modified job offer. 

OWCP received appellant’s request, through counsel, for a telephone hearing, held before 

an OWCP hearing representative on May 23, 2016. Appellant submitted physical therapy notes 

dated May 9, 11, 13, 17, 19, 23, and 26, 2016. 

On June 7, 2016 the employing establishment provided appellant with another modified 

job offer. It noted that the work hours were from “8:00 a.m. – up to 8 hours” with rotating 

scheduled days off. Appellant accepted the modified job offer. 

Dr. Shahrokh provided a June 21, 2016 report and noted that appellant’s symptoms had 

improved from the previous visit. She related that he wanted to try to work full duty. Dr. Shahrokh 

conducted an examination and diagnosed lumbar muscle strain. She released appellant to work 

full duty. 

By decision dated August 25, 2016, OWCP denied appellant’s claim for wage-loss 

compensation benefits beginning May 16, 2016. It found that the medical evidence of record 

failed to establish that he was disabled from work or entitled to wage-loss compensation during 

 

7 Appellant claimed eight hours of LWOP on May 5, and June 8 and 9, 2016; approximately six hours of LWOP 

on May 3, 2016; four hours on May 11, 2016; and two hours of LWOP on May 16, 18, 20, 24, 25, 27, and 30, and 

June 6, 7, and 10, 2016. He also requested eight hours of LWOP on May 4, 6, 10 11, 17, and 31, 2016; six hours of 

LWOP on May 2, 9, and 13, and June 21, 2016, and four hours of LWOP on May 19, 23, and 26, 2016 for “doctor” 

or “therapy.” 

8

In a time-loss sheet for the month of May 2016, the employing establishment noted that appellant requested 

approximately 30 minutes of LWOP on May 28, 2016. A time-loss sheet for the month of June 2016, demonstrated 

that he used approximately 30 minutes of LWOP on June 21 and 24, 2016; approximately two hours of LWOP on 

June 4, 6, 7, 10, 14, 18, 20, 23, and 26; approximately four hours on June 19 and 21, 2016; and approximately seven 

hours on June 9 and 16, 2016. 
7

the claimed period as a result of his work injury. On September 6, 2016 OWCP received 

appellant’s request, through counsel, for a telephone hearing before an OWCP hearing 

representative. 

In an October 28, 2016 letter, appellant noted a date of injury of December 21, 2015. He

related that he received his job offer on January 31, 2016. Appellant explained that he took a copy 

of the job offer to his physician, but she informed him that he was not ready to go back to work 

yet. He asserted that he had no choice, but to follow his physician’s instructions. 

Appellant indicated in a December 8, 2016 letter that he had asked his union representative 

to obtain proof of no work available and was given a memorandum of a request for a copy of 

appellant’s leave slip. He requested that OWCP let him know if more evidence was needed. 

Appellant submitted a memorandum dated November 15, 2016 from his union representative to 

his postmaster requesting a copy of appellant’s leave slips for various dates from March 7 to 

June 10, 2016. He also submitted various employee earnings statements for January through 

June 2016 and resubmitted CA-7a forms, which covered the period March 21 to June 24, 2016. 

A hearing was held on January 11, 2017.9 Counsel alleged that, although OWCP denied 

appellant’s request to expand his claim because of a negative EMG/NCV study, other medical 

records showed a clinical presentation of radicular complaints. He requested that, on the issue of 

additional claims, OWCP send the claim back for additional medical review. Regarding the issue 

of wage-loss compensation benefits, appellant explained that, following his December 21, 2015 

employment injury, he missed about six months of work. He related that he received COP for the 

first 45 days and began to claim compensation for disability beginning February 5, 2016. 

Appellant indicated that his physician took him off work from February 5 to 29, 2016. He reported 

that he later received a job offer from the employing establishment on March 17, 2016 and returned 

to light duty on March 18, 2016. Appellant explained that some days he worked one and two 

hours, or three and four hours because the employing establishment did not have eight hours of 

work available for him. He indicated that he returned to full duty in June 2016. 

On February 10, 2017 OWCP received the employing establishment’s response to a 

transcript of the January 11, 2017 hearing. It related that it mailed appellant a modified job offer 

on January 29, 2016. The employing establishment noted that he went to his treating physician on 

February 1, 2016 and was placed on total disability. It reported that on March 10, 2016 it received 

two medical documents dated February 29 and March 3, 2016, which placed appellant on modified 

duty, so the employing establishment prepared a modified job offer dated March 11, 2016. The 

employing establishment related that he accepted the job offer on March 17, 2016. It explained 

that this job had been available since January 29, 2016. The employing establishment submitted 

appellant’s previous modified job offers and medical reports. 

In a March 13, 2017 statement, appellant explained that, when he showed his treating 

physician a copy of the January 28, 2016 job offer, his physician decided to place him on total 

 

9 The hearing representative indicated that the hearing was to address OWCP’s decisions dated May 12 and

August 25, 2016, which denied appellant’s claim for wage-loss compensation benefits beginning February 17, 2016 

and his request to expand his claim to include a lumbar herniated disc with radiculopathy, lumbar spondylosis, and 

muscle spasms. 
8

disability so as not to jeopardize his condition. He alleged that he later accepted the March 11, 

2016 modified job offer, but was working less than eight hours. Appellant further alleged that he 

submitted all medical proof and work status reports to his supervisor as instructed, but due to 

misinformation and improper filing by his employing establishment, his COP and wage-loss 

compensation benefits were being delayed by OWCP. He noted that his union had filed a 

grievance and that he had attached a copy of the grievance. 

By decision dated March 28, 2017, an OWCP hearing representative affirmed the 

May 12 and August 25, 2016 OWCP decisions. She found that the medical evidence of record 

was insufficient to establish that appellant was disabled from work beginning February 5, 2016 as 

a result of the December 21, 2015 employment injury. The hearing representative further 

determined that there was no medical evidence of record sufficient to establish an additional 

lumbar condition causally related to the December 21, 2015 employment injury. 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA10 has 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.11 The term disability is 

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

receiving at the time of the injury.12

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

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

reliable, probative, and substantial medical evidence.13 Findings on examination are generally 

needed to support a physician’s opinion that an employee is disabled for work.14 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 hurt too much to work, without objective findings or 

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.15

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 

 

10 Supra note 2.

11 Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

12 20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999).

13 Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

14 Dean E. Pierce, 40 ECAB 1249 (1989).

15 See Fereidoon Kharabi, 52 ECAB 291 (2001).
9

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.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.17

ANALYSIS -- ISSUE 1

OWCP accepted that appellant sustained a lumbar strain and right hip contusion as a result 

of the December 21, 2015 employment injury. Appellant stopped work and returned to modified 

duty on March 18, 2016. He filed claims for wage-loss compensation for total disability for the 

period February 5 to March 17, 2016 and for intermittent periods of partial disability beginning 

March 18, 2016, including dates he did not work due to medical appointments or because work 

was unavailable. By decision dated March 28, 2017, an OWCP hearing representative affirmed 

May 12 and August 25, 2016 decisions denying appellant’s claim for wage-loss compensation 

beginning February 5, 2016.

The Board finds that appellant has failed to establish total disability for the period 

February 5 to March 17, 2016 due to his December 21, 2015 employment injury.

During appellant’s alleged period of total disability, he received medical treatment from

Dr. Shahrokh. In reports and work status notes dated February 1 to March 1, 2016, Dr. Shahrokh 

accurately described the December 21, 2015 employment injury. She reviewed appellant’s history 

and provided findings on examination. Dr. Shahrokh diagnosed lumbar muscle strain, lumbar 

radiculopathy, and lumbar disc herniation. She noted that appellant was totally disabled from 

February 1 through 29, 2016 due to “incapacitating injury or pain.” The Board has found, 

however, that when a physician’s statements regarding an employee’s ability to work consist only 

of repetition of the employee’s complaints that he or she hurt too much to work, without objective 

findings of disability being shown, the physician has not presented a medical opinion on the issue 

of disability.18 Dr. Shahrokh did not discuss any objective findings to support appellant’s inability 

to work, nor did she explain why he was unable to work as a result of his accepted lumbar and 

right hip injury.19 

In a March 3, 2016 work status note, Dr. Shahrokh placed appellant on modified duty 

beginning February 29, 2016. She continued to provide various work status notes dated March 3 

and 8, 2016, which released appellant to modified duty beginning February 29, 2016. 

 

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

17 Amelia S. Jefferson, supra note 13.

18 P.D., Docket No. 14-0744 (issued August 6, 2014); G.T., 59 ECAB 447 (2008).

19 See M.M., Docket No. 16-0541 (issued April 27, 2010).
10

The Board finds that Dr. Shahrokh’s additional reports also fail to establish that he was 

totally disabled from work from February 5 to March 17, 2016. On the contrary, Dr. Shahrokh 

released appellant to work modified duty beginning February 29, 2016. 

The Board further finds that appellant has failed to establish intermittent periods of 

disability for the period March 18 to April 1, 2016, as he has not submitted evidence sufficient to 

establish that the employing establishment was unable to accommodate his work restrictions 

during that claimed period. The record reflects that appellant accepted a modified job offer as a 

modified CCA. On the reverse side of the CA-7 claim forms, which covered the periods March 18

to April 1, 2016, the employing establishment indicated that eight hours of work had been made 

available to him. As such, appellant has failed to establish that he was entitled to wage-loss 

compensation for intermittent periods of disability from March 18 to April 1, 2016 because there 

was no work available for him within his medical restrictions.

The Board also finds, however, that the case is not in posture for a decision regarding 

appellant’s wage-loss compensation for intermittent disability for the period April 4 to 29, 2016.

On April 28, 2016 appellant filed CA-7 forms claiming total disability for the period 

April 4 to 29, 2016 because no work was available. On the reverse side of the CA-7 forms covering 

the period April 4 to 29, 2016, the employing establishment indicated that it was “unable to identify 

adequate work that is available within medical restrictions.” It provided a time-loss document for 

the month of April 2016 and detailed how many LWOP hours that appellant was owed. The Board 

finds, therefore, that the evidence of record establishes that the employing establishment was 

unable to accommodate appellant’s work restrictions from April 4 to 29, 2016. OWCP regulations 

provide that an employee is not entitled to compensation for any wage loss to the extent that 

evidence establishes that an employee had medical restrictions in place, that light duty within those 

work restrictions was available, and that the employee was previously notified in writing that such 

duty was available.20 In this case, the evidence of record has demonstrated that appellant was 

authorized to work with restrictions, but the employing establishment did not have adequate work 

within his medical restrictions. OWCP continued to deny his wage-loss compensation claim for 

the period April 4 to 29, 2016 in light of the fact that the employing establishment indicated on the 

CA-7 forms that it did not have work available within appellant’s work restrictions. Accordingly, 

the Board must remand the case for OWCP to issue appropriate wage-loss compensation for the 

period April 4 to 29, 2016.

The Board further finds that, for the remaining claimed periods of disability after April 29, 

2016, the evidence of record lacks sufficient information to determine whether there was 

appropriate modified-duty work available for appellant such that he was not entitled to intermittent 

periods of partial disability. Appellant claimed approximately eight hours of wage-loss 

compensation on May 5 and June 8 and 9, 2016, six hours of LWOP on May 3, 2016, four hours 

on May 11, 2016, and two hours of LWOP on May 16, 18, 20, 24, 25, 27, and 30 and June 6, 

7, and 10, 2016 because no work was available. On the reverse side of the CA-7 claim forms, 

which covered the periods after April 29, 2016, the employing establishment indicated that work 

was available. It noted that the job offer was on file. The evidence of record reflects that appellant 

 

20 20 C.F.R. § 10.500(a).
11

accepted an April 25, 2016 modified job offer, which noted work hours from “8:00 a.m. – up to 

2 hours.” He also accepted a modified job offer on May 18, 2016, which noted work hours of 

“8:00 a.m. – up to 6 hours” with rotating scheduled days off. On June 7, 2016 the employing 

establishment provided appellant with another modified job offer, which reported work hours of 

“8:00 a.m. – up to 8 hours.” 

Although the employing establishment asserted on the CA-7 forms that there was work 

available, the evidence of record also demonstrates that a modified job offer for up to eight hours 

was not available until June 7, 2016. The current record before the Board does not clearly establish 

that the employing establishment was able to accommodate appellant’s work restrictions full time, 

such that his claim for intermittent periods of partial wage-loss compensation should be denied.21 

Appellant has asserted that the employing establishment was not always available to provide eight 

hours of modified duty to him. The modified job offers dated April 25 and May 18, 2016 appear 

to support his assertion as they demonstrate that his modified duty was available for up to two or 

six hours. On remand, OWCP must develop the case and make factual findings on the status of 

appellant’s employment at the time he requested wage-loss compensation for partial disability 

from May 2 to June 6, 2016 because there was no work available within his work restrictions.

In addition, the Board also finds that the case is not in posture for decision regarding 

whether appellant is entitled to compensation for medical treatment on the following 

dates: February 10, 12, 16, and 29, 2016; March 1, 3, 4, 7, 8, 16, 18, 21, 23, 25, and 29, 2016; 

April 8 and 19, 2016; May 9, 10, 11, 13, 17, 19, 23, 26, and 31, 2016; and June 21, 2016. The 

record contains evidence that appellant was examined by Dr. Shahrokh or underwent physical 

therapy treatments on these dates. OWCP’s procedures provide that wages lost for compensable 

medical examination or treatment may be reimbursed.22 It notes that a claimant who has returned 

to work following an accepted injury or illness may need to undergo examination or treatment and 

such employee may be paid compensation for wage loss while obtaining medical services and for 

a reasonable time spent traveling to and from the medical provider’s location.23 As a rule, no more 

than four hours of compensation or COP should be allowed for routine medical appointments. 

Longer periods of time may be allowed when required by the nature of the medical procedure 

and/or the need to travel a substantial distance to obtain the medical care.24 

Accordingly, the case will also be remanded for consideration of payment of up to four 

hours of wage-loss compensation for each of these medical appointments and travel time.

 

21 See J.G., Docket No. 17-0910 (issued August 28, 2017) (the Board remanded the case for OWCP to determine 

whether there was modified work available for appellant on November 25, 2016 when the employing establishment 

initially noted that he only worked 15.54 hours for the period September 17 through November 30, 2016, but later 

claimed that there was always work available for the claimant); see also J.T., Docket No. 15-1133 (issued 

December 21, 2015).

22 Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19 

(February 2013).

23 Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

24 Supra note 22 at Chapter 2.901.19(c) (February 2013).
12

LEGAL PRECEDENT -- ISSUE 2

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 is 

causally related to the employment injury.25 To establish 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 causal relationship.26 Causal relationship is a medical issue and the medical evidence 

generally required to establish causal relationship is rationalized medical opinion evidence.27 The 

opinion of the physician must be based on a complete factual and medical background of the 

employee, must be one of reasonable medical certainty, and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the specific 

employment factors identified by the employee.28 

In discussing the range of compensable consequences, once the primary injury is causally 

connected with the employment, Larson notes that, when the question is whether compensability 

should be extended to a subsequent injury or aggravation related in some way to the primary injury, 

the rules that come into play are essentially based upon the concepts of direct and natural results 

and of the claimant’s own conduct as an independent intervening cause. The basic rule is that a 

subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is 

compensable if it is the direct and natural result of a compensable primary injury.29

ANALYSIS -- ISSUE 2

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

conditions of lumbar disc herniation with radiculopathy, lumbar spondylosis, and muscle spasm 

causally related to the accepted December 21, 2015 employment injury.

OWCP accepted that appellant sustained a low back strain and contusion of the right hip 

as a result of the December 21, 2015 employment injury. In a February 16, 2016 report,

Dr. Shahrokh reviewed his history and provided physical examination findings. She diagnosed 

lumbar radiculopathy, lumbar disc herniation, and lumbar disc herniation with radiculopathy and 

requested that OWCP expand the acceptance of his claim to include those conditions. 

Dr. Shahrokh explained that the herniated disc was compressing a lumbar nerve and causing 

radiculopathy. She related that the diagnosis was supported by MRI scan findings of a 3 mm disc 

herniation and physical examination findings of asymmetric weakness, impaired sensation, and 

positive straight leg raise testing. 

 

25 Jaja K. Asaramo, 55 ECAB 200 (2004).

26 M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004). 

27 I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

28 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

29 Larson, The Law of Workers’ Compensation § 1300; K.S., Docket No. 16-0404 (issued April 11, 2016).
13

Although Dr. Shahrokh opined that appellant’s claim should be expanded to include 

lumbar disc herniation and radiculopathy, she did not provide sufficient medical rationale 

explaining how the accepted December 21, 2015 employment injury caused, aggravated, or 

contributed to his lumbar disc herniation and radiculopathy.30 The Board has found that medical 

evidence is of limited probative value if it contains a conclusion regarding causal relationship, but 

does not offer any rationalized medical explanation on the issue of causal relationship.31 

Accordingly, Dr. Shahrokh’s report is insufficient to establish that appellant sustained lumbar disc 

herniation and radiculopathy as a result of his December 21, 2015 employment injury.

The Board finds that there is no medical evidence in the record to establish that appellant 

sustained lumbar disc herniation and radiculopathy as a consequence of his accepted December 21, 

2015 employment injury. On the contrary, the evidence of record contains a March 1, 2016 report 

by Dr. Hu, who indicated that diagnostic testing did not show any evidence of significant 

degenerative changes or disc herniation. He also reported that appellant’s symptoms were not 

consistent with lumbar radiculopathy. Accordingly, the Board finds that Dr. Hu’s report fails to 

establish that appellant sustained any consequential lumbar disc herniation or radiculopathy as a 

result of the accepted December 21, 2015 employment injury. 

The Board finds that appellant has failed to meet his burden of proof to expand the accepted 

conditions of his claim to include lumbar disc herniation with radiculopathy, lumbar spondylosis, 

and muscle spasm. The mere fact that a condition manifests itself or is worsened during an 

employment period does not raise an inference of causal relationship between the two. Such a 

relationship must be shown by rationalized medical evidence of a causal relation based upon a 

specific and accurate history of employment conditions which are alleged to have caused or 

exacerbated a disabling condition.32 The Board finds that appellant did not meet his burden of 

proof to expand the accepted conditions of his claim.

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 that he was 

totally disabled for the period February 5 to March 17, 2016 and partially disabled on intermittent 

dates for the period March 17 to April 1, 2016 as a result of his accepted December 21, 2015 

employment injury. The Board also finds that this case is not in posture for decision regarding 

whether he was entitled to compensation for partial disability on intermittent dates beginning 

April 24, 2016 because no work was available within his restrictions and regarding his claimed 

reimbursement for medical appointments on specific dates. The Board finds that appellant has not 

 

30 K.W., Docket No. 10-0098 (issued September 10, 2010).

31 J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

32 Patricia J. Bolleter, 40 ECAB 373 (1988).
14

meet his burden of proof to expand his claim to include the additional conditions of lumbar disc 

herniation with radiculopathy, lumbar spondylosis, and muscle spasm.

ORDER

IT IS HEREBY ORDERED THAT the March 28, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for further development consistent with this decision of the Board.

Issued: March 19, 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