United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.P., Appellant

and

U.S. POSTAL SERVICE, BULK MAIL 

CENTER, Jersey City, NJ, Employer

__________________________________________

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Docket No. 19-1295

Issued: March 16, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

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 May 22, 2019 appellant filed a timely appeal from an April 4, 2019 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.2

ISSUE

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

disability commencing June 12, 2018 due to his accepted March 12, 2014 employment injury.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the April 4, 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

FACTUAL HISTORY

On March 26, 2014 appellant, then a 30-year-old mail handler assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on March 12, 2014 he sustained swelling in his upper spine 

and neck area as a result of tossing a heavy pallet while in the performance of duty. He stopped 

work on March 19, 2014 and returned to limited-duty work on May 16, 2014. By decision dated 

May 5, 2014, OWCP accepted the claim for cervical sprain. Appellant stopped work again on 

May 17, 2014. 

On June 10, 2014 appellant filed a notice of recurrence (Form CA-2a) alleging that he was 

disabled from work and required further medical treatment as of May 17, 2014 due to his accepted 

condition.

By decision dated November 21, 2014, OWCP denied appellant’s recurrence claim. 

On September 8, 2015 appellant requested reconsideration. 

By decision dated December 2, 2015, OWCP denied modification of the November 21,

2014 decision. 

On May 29, 2018 Dr. Nathaniel Sutain, Board-certified in physical medicine and 

rehabilitation, reported that appellant’s symptoms had worsened since the most recent visit, and 

had progressed from the upper back and neck area to the shoulders and head, with numbness in 

the hands and fingers. He noted that he had referred appellant for a functional capacity evaluation

(FCE) that was never completed. Appellant related to Dr. Sutain that he had been working light 

duty. Dr. Sutain recommended that appellant be off work for a week and to attend physical 

therapy. He diagnosed cervicalgia and noted exacerbation of neck pain and other symptoms. In 

an accompanying duty status report (Form CA-17), Dr. Sutain recommended that appellant remain 

off work until June 12, 2018. 

On June 12, 2018 Dr. Sutain reported that appellant’s symptoms were improving, noting

that a magnetic resonance imaging (MRI) scan did not demonstrate any pathology. On 

examination, he observed exquisite tenderness to palpation of appellant’s cervical spine, inability 

to heel walk or toe walk secondary to pain, ability to bend to touch his thighs, but with full strength 

and full range of motion (ROM) of the neck and shoulders. Dr. Sutain diagnosed cervicalgia. 

In a report dated July 3, 2018, Dr. Sutain noted that appellant’s condition had not improved 

since the most recent visit, and that he had a recent exacerbation of his cervical pain. Results on 

examination were the same as those provided on June 12, 2018. Dr. Sutain again diagnosed 

cervicalgia. 

In a patient evaluation form dated July 3, 2018, Dr. Sutain recommended that appellant 

return to work with restrictions. 

On September 4, 2018 Dr. Sutain reported that appellant had improved since his most 

recent visit. He noted that appellant had completed physical therapy, but still complained of 

symptoms from an exacerbation of his work-related injury. Dr. Sutain diagnosed cervicalgia and 

referred appellant for a cervical spine MRI scan. In a patient evaluation form of the same date, he
3

recommended that appellant return to work with restrictions of no lifting over 10 pounds, no 

repetitive motion, no use of vibratory tools, and no work above shoulder level. 

The cervical spine MRI scan taken on September 20, 2018 was limited due to motion, but 

there was a suggestion of slight undulating margins of the posterior disc margins without a discrete 

annular bulge or disc herniation. 

In a patient evaluation form dated October 19, 2018, Dr. Sutain diagnosed cervicalgia and 

recommended that appellant return to work with restrictions. 

On October 24, 2018 Dr. Sutain reviewed appellant’s September 20, 2018 MRI scan, 

noting that he was “not really seeing a lot on the MRI [scan].” On examination of the cervical 

spine, Dr. Sutain observed an inability to heel walk or toe walk secondary to pain, ability to bend 

to touch his thighs, exquisite tenderness to palpation of the cervical spine, but with full strength 

and full ROM of the neck and shoulders. He again diagnosed cervicalgia and recommended an

FCE. 

In a report dated December 5, 2018, Dr. Kumar Sinha, a Board-certified orthopedic 

surgeon, noted that appellant had been performing light-duty work. On physical examination, he 

noted that appellant experienced severe pain with ROM of the cervical spine with flexion, 

extension, and side rotation. He observed tenderness to light touch in that area. Dr. Sinha related 

that appellant’s cervical spine MRI scan demonstrated no evidence of a muscle tear, injury, or 

diffuse inflammation in the C7-T1 area. He noted that the pathology of appellant’s pain was 

unclear, but that it appeared to be myofascial in nature. Dr. Sinha recommended that appellant 

stay off work for three weeks and take anti-inflammatories. 

In progress notes dated December 27, 2018, Dr. Sinha reported that appellant continued to 

have neck pain and had not started physical therapy. He opined that the etiology of appellant’s 

neck pain was unclear, and that the pain was clearly myofascial in nature as the MRI scan did not 

reveal significant findings. Dr. Sinha recommended that appellant stay off work due to the severity 

of his pain. 

On January 10, 2019 appellant filed claims for compensation (Form CA-7) for intermittent 

leave without pay (LWOP) from June 12, 2018 through January 4, 2019. An accompanying time 

analysis (Form CA-7a) noted that he claimed compensation for LWOP from June 12 to 19, 2018 

for an unknown absence, as work was available. Appellant claimed compensation for July 9, 2018, 

on which date he was absent without leave. He claimed compensation on July 13, 19, 23, and 27 

to 31, 2018 on which dates the reason for leave use and remarks were “no call-no show.” He also 

claimed compensation on the following dates in 2018: August 3, 6, 7, 8, 10 to 16, 17 to 21, 24, 

27, and 29; September 3, 4, 6, 10, 14, 17, 18, 20 to 27; October 1 , 2, 8, 9, 11, 15, 18 to 22, 26 to 

31; November 2, 5, 6, 12 to 14, 16 to 26; and November 29 to December 21, 2018. An employing 

establishment official noted that work was available within appellant’s restrictions, that appellant 

had not provided disabling medical documentation for these dates, and that he had not been sent 

home by the employing establishment. 

On January 22, 2019 appellant filed a claim for compensation (Form CA-7) for LWOP for 

the period January 5 through 10, 2019. 
4

In a development letter dated January 22, 2019, OWCP informed appellant that the medical 

evidence of record was insufficient to establish disability for intermittent periods June 12, 2018 

through January 4, 2019. It advised him to submit a comprehensive narrative report from his 

treating physician that included a history of his injury and a thorough explanation, with objective 

findings, as to how his condition had worsened such that he was no longer able to perform the 

duties of his position when he stopped work on June 12, 2018. OWCP afforded appellant 30 days 

to submit the necessary evidence. 

OWCP thereafter received a series of physical therapy reports dated December 28, 2018

through March 6, 2019. 

By decision dated April 4, 2019, OWCP denied appellant’s claim for intermittent disability 

commencing June 12, 2018 finding that the medical evidence of record was insufficient to establish 

that the claimed disability was causally related to the accepted March 12, 2014 employment injury. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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.4

A recurrence of disability means an inability to work after an employee has returned to 

work, caused by a spontaneous change in a medical condition which has resulted from a previous 

injury or illness without an intervening injury or new exposure to the work environment that caused 

the illness.5 This term also means an inability to work that takes place when a light-duty 

assignment made specifically to accommodate an employee’s physical limitations due to his or her 

work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of 

misconduct, nonperformance of job duties, or a reduction-in-force) or when the physical 

requirements of such an assignment are altered so that they exceed the established physical 

limitations.6

When an employee who is disabled from the job he or she held when injured on account 

of employment-related residuals returns to a limited-duty position, or the medical evidence of 

record establishes that he or she can perform the limited-duty position, the employee has the burden 

of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence 

of total disability and to show that he or she cannot perform such limited-duty work. As part of 

this burden, the employee must show a change in the nature and extent of the injury-related 

 

3 Supra note 1.

4 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).

5 20 C.F.R. § 10.5(x); S.W., Docket No. 18-1489 (issued June 25, 2019).

6

Id.
5

condition or a change in the nature and extent of the limited-duty job requirements.7 This burden 

includes the necessity of furnishing evidence from a qualified physician who concludes, on the 

basis of a complete and accurate factual and medical history, that for each period of disability 

claimed, the disabling condition is causally related to the employment injury, and supports that 

conclusion with medical reasoning.8 Where no such rationale is present, the medical evidence is 

of diminished probative value.9

ANALYSIS

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

disability commencing June 12, 2018 causally related to his accepted March 12, 2014 employment 

injury.

The evidence of record establishes that appellant was performing limited-duty work prior 

to the alleged periods of disability and that light duty remained available during the alleged periods 

of disability. 

On May 29, 2018 Dr. Sutain recommended that appellant remain off work until 

June 12, 2018. This report addressed appellant’s disability status immediately predating the 

alleged period of disability, but did not address his disability status on or after June 12, 2018.10 As 

this report fails to address the specific period of disability alleged, it is of no probative value and 

is insufficient to establish his recurrence claim.11

OWCP continued to receive progress reports from Dr. Sutain. In his progress reports dated 

June 12, July 3, and October 24, 2018, Dr. Sutain did not address appellant’s disability from work, 

but related that appellant had subjective symptoms, with no objective findings on the cervical spine 

MRI scan. As these reports do not support a finding that appellant sustained a worsening of his 

accepted cervical sprain condition, causing intermittent disability from work, they are insufficient 

to establish his recurrence claim.12 

In a patient evaluation form dated July 3, 2018, Dr. Sutain recommended that appellant 

return to work with restrictions. Likewise, on September 4 and October 19, 2018, he recommended 

that appellant return to work with restrictions. As previously noted, the employing establishment 

reported that limited-duty work remained available to appellant. Since Dr. Sutain failed to provide 

an opinion that appellant could not return to work due to the accepted employment injury, these 

reports fail to establish disability from work during the claimed period.13 As Dr. Sutain’s reports

 

7

J.S., Docket No. 19-1035 (issued January 24, 2020).

8 H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

9 E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

10 See T.A., Docket No. 18-0431 (issued November 7, 2018).

11 See S.M., Docket No. 17-1557 (issued September 4, 2018).

12 Supra note 7. 

13 F.H., Docket No. 18-0160 (issued August 23, 2019).
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contradicted appellant’s claim that he was disabled from work, these reports are insufficient to 

establish appellant’s claim of a recurrence of disability.

In a report dated December 5, 2018, Dr. Sinha noted that appellant’s MRI scan 

demonstrated no evidence of any muscle tear, injury, or diffuse inflammation in the C7-T1 area. 

He reported that the pathology of appellant’s pain was unclear, but that it appeared to be 

myofascial. Dr. Sinha recommended that appellant stay out of work for three weeks. In progress 

notes dated December 27, 2018, he noted that appellant continued to have neck pain. Dr. Sinha

opined that the etiology of appellant’s neck pain was unclear, and that the pain was clearly 

myofascial in nature as the MRI scan did not reveal any significant findings. He recommended 

that appellant stay off work due to the severity of the pain. In these reports, Dr. Sinha did not 

provide clear objective physical findings supporting appellant’s disability from work due to the 

accepted condition instead, he noted that the etiology of appellant’s neck pain was unclear and that 

an objective study revealed no findings. He did not specifically address whether appellant had a 

recurrence of disability causally related to his accepted employment condition of cervical sprain 

or otherwise provide medical reasoning explaining why any current disability was due to the 

accepted March 12, 2014 employment injury. Dr. Sinha’s report is insufficient to meet appellant’s 

burden of proof as it does not provide a rationalized explanation as to how appellant’s accepted 

cervical sprain resulted in disability from work during the claimed period.

14

 As such, his

contemporaneous reports are insufficient to establish appellant’s claim.15

OWCP received a September 20, 2018 MRI scan of appellant’s cervical spine. The Board 

has held that reports of diagnostic testing lack probative value, as they do not provide an opinion 

on the issue of causal relationship between the accepted condition and the alleged period of 

disability.16 As this report did not contain an opinion on causal relationship, it is insufficient to 

establish the claim.17

OWCP also received physical therapy notes. Certain healthcare providers such as 

physician assistants, nurse practitioners, physical therapists, and social workers are not considered 

“physician[s]” as defined under FECA.18 Consequently, their medical findings and/or opinions 

will not suffice for purposes of establishing entitlement to FECA benefits.19

 

14 J.M., Docket No. 19-1517 (issued January 29, 2020).

15 See C.R., Docket No. 18-1805 (issued May 10, 2019); J.M., Docket No. 16-0306 (issued May 5, 2016).

16 See J.M., Docket No. 17-1688 (issued December 13, 2018).

17 Id.; see L.S., Docket No. 19-0135 (issued April 25, 2019).

18 5 U.S.C. § 8101(2) provides that under FECA the term physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by the applicable state law.

19 G.S., Docket No. 18-1696 (issued March 26, 2019); see M.M., Docket No. 17-1641 (issued February 15, 2018); 

K.J., Docket No. 16-1805 (issued February 23, 2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay 

individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion 

under FECA).
7

As appellant has not submitted rationalized medical opinion evidence establishing that he 

was intermittently disabled from work commencing June 12, 2018 causally related to his accepted 

March 12, 2014 employment injury, the Board finds that he has not met his burden of proof.20

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 and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

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

disability commencing June 12, 2018 due to his accepted March 12, 2014 employment injury

ORDER

IT IS HEREBY ORDERED THAT the April 4, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 16, 2020

Washington, DC

Christopher J. Godfrey, Deputy 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

 

20 Supra note 9.