United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.O., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

FRESNO VA MEDICAL CENTER-VA 

CENTRAL CALIFORNIA, Fresno, CA, 

Employer

__________________________________________

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Docket No. 20-0170

Issued: August 13, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On October 29, 2019 appellant, through counsel, filed a timely appeal from a 

September 30, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 

 

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, following the September 30, 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

Pursuant to the 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.

ISSUE

The issue is whether appellant has met her burden of proof to establish disability from work 

for the period August 1 through October 3, 2018, causally related to her accepted June 15, 2018 

employment injury.

FACTUAL HISTORY

This case has previously been before the Board on a different issue.

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 June 28, 2018 appellant then a 43-year-old nursing assistant filed a Form CA-1 alleging 

that on June 15, 2018 she slipped on spilled coffee and fell while in the performance of duty. She 

contended that she reinjured her left knee, left hip, left elbow, left shoulder, neck, and back. 

OWCP assigned the claim OWCP File No. xxxxxx131.5

In a June 19, 2018 report, Dr. Daniel B. Brubaker, an osteopath, noted that appellant had 

experienced a second fall at work.

In a July 9, 2018 report, Dr. Brubaker described appellant’s history of injury on June 15, 

2018 and noted that she was on modified sedentary duty due to her accepted left meniscal tear and 

lumbosacral radiculopathy when the second incident occurred.6 He diagnosed cervical spine 

strain/sprain, cervical muscle spasm, cervicalgia, possible annular disc tears, thoracic spine strain, 

spasm, and pain, and possible annular disc tear of the thoracic spine. Dr. Brubaker recommended 

magnetic resonance imaging (MRI) scans to confirm whether appellant had annular disc tears in 

her cervical and thoracic region. He indicated that she was totally disabled until July 31, 2018. In 

a July 30, 2018 note, Dr. Brubaker opined that appellant was totally disabled from July 30 through 

August 30, 2018 due to her cervical and thoracic back pain and possible disc tears. In a report of 

even date, he indicated that appellant was continuing to work in her sedentary job.

 

3 5 U.S.C. § 8101 et seq.

4 Docket No. 19-0953 (issued October 7, 2019).

5 Appellant has two prior claims. On November 3, 2014 appellant filed a Form CA-1 alleging that she sustained a 

right wrist sprain on October 30, 2014 when a patient kicked her in the right wrist while she was in the performance 

of duty. That claim was administratively closed. On May 26, 2016 appellant filed a traumatic injury claim (Form 

CA-1) alleging that on May 12, 2016 she sustained a left knee injury when her left knee struck a stairway wall during 

an evacuation drill while in the performance of duty. OWCP assigned that claim OWCP File No. xxxxxx726 and, on 

August 18, 2016, accepted it for lumbosacral radiculopathy and left knee cystic meniscus. Beginning July 10, 2016, 

it paid her wage-loss compensation on the supplemental rolls and, effective December 10, 2016, placed her on the 

periodic compensation rolls. On September 5, 2017 appellant returned to full-time, limited-duty work.

6 Dr. Brubaker recommended both lumbar and left knee surgeries for the previously accepted conditions.
3

On August 15, 2018 OWCP accepted the June 15, 2018 traumatic injury claim for cervical 

sprain, thoracic sprain, and muscle spasm.

On August 27, 2018 appellant filed a claim for compensation (Form CA-7) requesting 

leave without pay compensation for disability from work from August 1 through August 27, 2018.

In a September 12, 2018 development letter, OWCP informed appellant of the deficiencies 

of her claim. It advised her of the type of additional evidence required and afforded her 30 days 

to respond.

On August 23, 2018 Dr. Brubaker reviewed appellant’s history of injury on June 15, 2018, 

conducted an examination and repeated his diagnoses. He recounted that appellant reported that 

she was physically unable to continue her modified duties. Dr. Brubaker found that appellant was 

totally disabled from work August 30 through December 31, 2018. 

On October 3, 2018 appellant filed a Form CA-7 claim for wage-loss compensation for 

disability from work for the period August 23 through October 3, 2018. 

In an October 4, 2018 report, Dr. Brubaker reviewed appellant’s left knee and back MRI

scans and reported no significant findings. He recounted that appellant reported frequent falling 

and a high pain level, which did not correlate with her diagnostic studies. Dr. Brubaker continued 

to support appellant’s total disability through November 5, 2018.

In an October 10, 2018 report, Dr. Robert R. McIvor, Board-certified orthopedic surgeon,

7

reviewed appellant’s medical history and recommended left knee surgery. He completed a work 

capacity evaluation and provided restrictions including walking two hours, standing three hours,

and one hour of bending and stooping. Dr. McIvor found appellant could not squat, kneel, or 

climb. He limited appellant’s pushing, pulling, and lifting to 15 pounds, no more than one hour 

per day.

On November 5, 2018 Dr. Brubaker found that appellant had no evidence of disc pathology 

in her cervical or thoracic spine. He opined that appellant either exaggerated her pain or had an 

extremely low pain tolerance. Dr. Brubaker concluded that appellant’s cervical and thoracic 

conditions had resolved and that she could return to her sedentary job due to her accepted lumbar 

and left knee conditions.

By decision dated March 13, 2019, OWCP denied appellant’s claim for disability for the 

period August 1 through October 3, 2018. On March 19, 2019 appellant, through counsel, 

requested an oral hearing from a representative of OWCP’s Branch of Hearings and Review.

During the hearing held on July 17, 2019, appellant testified that when she returned to work 

in January 2019, following the June 15, 2018 employment injury, the employing establishment 

 

7 Dr. McIvor was designated as an impartial medical adviser to resolve a conflict of medical opinion regarding 

appellant’s need for surgical treatment of her back and left knee due to the accepted May 12, 2016 employment 

injuries.
4

required additional work duties including making beds. Appellant asserted that she had been 

totally disabled from work since August 1, 2018.

By decision dated September 30, 2019, OWCP’s hearing representative affirmed the 

March 13, 2019 denial of appellant’s claim for disability compensation, finding that she had not 

met her burden of proof to establish that she was totally disabled from work beginning August 1, 

2018 due to her accepted cervical and thoracic sprains.

LEGAL PRECEDENT

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

essential elements of his or her claim by the weight of the evidence.8 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.9 Whether a 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 probative and reliable medical opinion evidence.10

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.11 The question of whether 

an employee is disabled from work is an issue that must be resolved by competent medical 

evidence.12 The employee is responsible for providing sufficient medical evidence to justify 

payment of any compensation sought. 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.13

To establish causal relationship between the disability claimed and the employment injury, 

an employee must submit rationalized medical evidence, based on a complete factual and medical 

background, supporting such causal relationship.14 The opinion of the physician must be one of 

reasonable medical certainty and must be supported by medical rationale explaining the nature of 

 

8 Supra note 3.

9 B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018); 

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

10 20 C.F.R. § 10.5(f); B.O., id.; N.M., Docket No. 18-0939 (issued December 6, 2018); R.C., 59 ECAB 546, 

551 (2008).

11 Id.; T.A., Docket No. 18-0431 (issued November 7, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005).

12 S.A., Docket No. 18-0399 (issued October 16, 2018); R.C., 59 ECAB 546, 551 (2008).

13 S.M., Docket No. 17-1557 (issued September 4, 2018); William A. Archer, 55 ECAB 674, 679 (2004); Fereidoon 

Kharabi, 52 ECAB 291, 293 (2001).

14 S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).
5

the relationship between the diagnosed condition and the specific employment factors identified 

by the employee.15

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 his or her disability and 

entitlement to compensation.16

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish disability from 

work for the period August 1 through October 3, 2018, causally related to her accepted June 15, 

2018 employment injury.

In support of her claims for compensation, appellant submitted reports from Dr. Brubaker 

beginning July 9 through August 23, 2018 describing her history of injury on June 15, 2018. 

Dr. Brubaker diagnosed cervical spine strain/sprain, cervical muscle spasm, cervicalgia, possible 

annular disc tears, thoracic spine strain, spasm, and pain, and possible annular disc tear of the 

thoracic spine. He determined that appellant was totally disabled through December 31, 2018 due 

to the diagnosed cervical and thoracic conditions. The Board finds that these reports lack sufficient 

probative value to establish employment-related disability during the period claimed. 

Dr. Brubaker did not discuss how the accepted employment injury was competent to cause 

disability during the claimed periods. The Board has held that a medical report is of limited 

probative value on the issue of causal relationship if it contains a conclusion regarding causal 

relationship which is unsupported by medical rationale.17 As such, these reports are insufficient 

to establish appellant’s claim for compensation. 

On August 23, 2018 Dr. Brubaker recounted that appellant continued to report that she was 

physically unable to continue her modified duties. This note is insufficient to meet appellant’s 

burden of proof to establish a period of disability as Dr. Brubaker did not provide an opinion that 

appellant was totally disabled, instead he relied on appellant’s assessment of her condition. The 

Board has held that medical evidence that does not offer an opinion regarding the cause of an 

employee’s condition or disability is of no probative value on the issue of causal relationship.

18

 

Therefore, this note is also insufficient to establish appellant’s claim for compensation.

Likewise, in his October 4 and November 5, 2018 reports, Dr. Brubaker did not provide an 

opinion on the causal relationship between appellant’s claimed disability and her accepted June 15, 

 

15 C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 

45 ECAB 365 (1994).

16 T.L., Docket No. 18-0934 (issued May 8, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).

17 M.N., Docket No. 18-0741 (issued April 2, 2020); L.G., Docket No. 19-0142 (issued August 8, 2019); C.M., 

Docket No. 14-0088 (issued April 18, 2014).

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

2018 employment injury. Accordingly, these reports are also of no probative value and are 

insufficient to establish appellant’s claim for compensation.19

For each period of disability claimed, the employee has the burden of proof to establish 

that he or she was disabled from work during the claimed period as a result of the accepted 

employment injury.20 Because the medical opinion evidence of record is insufficient to establish 

employment-related disability during the period August 1 through October 3, 2018 as a result of 

her accepted cervical and thoracic conditions, the Board finds that she has not met her burden of 

proof to establish her claim for disability compensation.

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 her burden of proof to establish disability from 

work for the period August 1 through October 3, 2018, causally related to her accepted June 15, 

2018 employment injury.

 

19 Id.; see also J.T., Docket No. 19-1813 (issued April 14, 2020); M.J., Docket No. 19-1287 (issued January 13, 

2020); M.M., Docket No. 18-0817 (issued May 17, 2019); M.C., Docket No. 16-1238 (issued January 26, 2017).

20 Supra note 15.
7

ORDER

IT IS HEREBY ORDERED THAT the September 30, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 13, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board