United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.A., Appellant

and

DEPARTMENT OF COMMERCE, U.S. 

PATENT & TRADEMARK OFFICE, 

Alexandria, VA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-1765

Issued: March 13, 2020

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

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On August 10, 2019 appellant, through counsel, filed a timely appeal from a May 9, 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 issuance of the May 9, 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 disability,

commencing April 12, 2018, causally related to his accepted October 14, 2015 employment injury.

FACTUAL HISTORY

On November 6, 2015 appellant, then a 50-year-old patent examiner, filed a traumatic 

injury claim (Form CA-1) alleging that on October 14, 2015 he sustained a left foot sprain of the 

calcaneofibular ligament of the ankle, right rotator cuff capsule sprain, and neck sprain when he 

lost his balance and fell while in the performance of duty. On the reverse side of the claim form 

the employing establishment indicated that appellant stopped work on the date of injury.

On November 13, 2015 OWCP accepted appellant’s claim for unspecified sprain of the 

right shoulder joint, sprain of ligaments of the cervical spine, and sprain of an unspecified ligament 

of the left ankle. It paid him wage-loss compensation on the supplemental rolls commencing 

November 29, 2015.

Appellant returned to part-time work without restrictions on January 11, 2016. OWCP 

paid him wage-loss compensation benefits on the supplemental rolls for partial disability

commencing January 12, 2016.

Thereafter, appellant filed several wage-loss compensation claims (Form CA-7) seeking 

compensation for leave without pay (LWOP) from April 6 through August 5, 2016 and August 26 

through November 18, 2016. By decisions dated November 2, 2016 and February 15 and April 3, 

2017, OWCP denied appellant’s wage-loss compensation claims.

OWCP subsequently received a May 4, 2018 progress note from Dr. Kenneth R. Zaslav, 

an attending Board-certified orthopedic surgeon. Dr. Zaslav indicated that appellant presented as 

a former patient with a recurrent chief complaint of atraumatic onset of right shoulder pain that 

began about two and one-half years ago. He noted that appellant sustained work-related neck and 

right shoulder injuries in October 2015. Dr. Zaslav reported examination findings and reviewed 

diagnostic test results. He diagnosed primary osteoarthritis of the right shoulder, incomplete tear 

of the right rotator cuff, and cervical radiculopathy. Dr. Zaslav referred appellant for physical 

therapy, twice a week for six weeks.

OWCP also received an April 13, 2018 narrative report and a June 20, 2018 attending 

physician’s report (Form CA-20) from Dr. Albert M. Jones, Jr., a Board-certified physiatrist. 

Dr. Jones noted a history of appellant’s accepted October 14, 2015 work injury, reviewed his

medical records, and discussed examination findings. He provided impressions of neck, back, and 

shoulder injuries secondary to the work injury, and chronic pain syndrome secondary to these 

conditions and in association with previously confirmed persisting symptoms of depression and 

anxiety. Additionally, Dr. Jones provided an impression of specific objective abnormalities

identified on previous imaging testing that included, degenerative cervical disc and spondylitic

changes at several levels with multiple levels of foraminal narrowing and mild spinal stenosis, but

without evidence of cord compression. The imaging testing was also negative for cervical

myelopathy. A magnetic resonance imaging scan confirmed supraspinatus tendinopathy and

partial interstitial tearing of the infraspinatus in the right shoulder. Dr. Jones further provided an

impression of self-reported persisting problems with long-term memory, visual working memory,
3

distractibility, and concentration. However, he did not believe that these problems were worked

up specifically with psychometric cognitive testing. Dr. Jones advised that appellant was disabled

from work commencing April 12, 2018 and could perform sedentary light work for five hours per 

day, as of April 12, 2018.

On June 30, 2018 appellant filed an additional Form CA-7 claims requesting disability 

compensation for LWOP through June 22, 2018.

In a July 5, 2018 development letter, OWCP informed appellant that additional medical 

evidence was required to establish disability from work during the period claimed. It afforded him 

30 days to submit the necessary evidence.

Dr. Zaslav, in a July 16, 2018 progress note, indicated that appellant presented for followup conservative treatment of his right shoulder pain. He reported examination findings and 

reiterated his prior assessments of primary osteoarthritis of the right shoulder and incomplete tear 

of the right rotator cuff. Dr. Zaslav related that there was no history of new injury sustained 

between 2015 and the date of his examination. He noted that appellant had returned to work, but 

his symptoms had recurred over the prior six months. Dr. Zaslav advised that this was “the same 

problem he always had.” He was not surprised that appellant was not better since his request for 

physical therapy was denied by workers’ compensation.

Appellant filed additional Form CA-7 claims for disability compensation for LWOP 

through August 17, 2018.

OWCP, by decision dated August 28, 2018, denied appellant’s claims for LWOP

compensation for the period April 12, 2018 and continuing finding that the medical evidence of

record was insufficient to establish that he was partially disabled, during the period claimed, 

causally related to his accepted October 14, 2015 employment injuries.

OWCP thereafter received office/clinic notes dated June 26 and October 1, 2018 and

January 8, 2019 from Dr. Jones who continued to treat appellant. Dr. Jones reiterated the

impressions that appellant sustained neck, back, and shoulder injuries secondary to his October 14, 

2015 employment injury and resultant chronic pain syndrome. In addition, he diagnosed right

rotator cuff tendinitis, chronic cervical pain (neck), post-concussional syndrome with persisting

problems including short-term and visual working memory, distractibility and concentration, and

bilateral carpal tunnel syndrome. Dr. Jones referenced his previous reports indicating that

appellant was working full time, but with great difficulties. He also restated his prior finding that

appellant could perform sedentary light work five hours per day. Dr. Jones noted that appellant’s

work restrictions were related to his chronic pain and possibly a previous old concussion, which

were directly related to his work-related fall in October 2015.

OWCP also received an October 29, 2018 progress note and a December 14, 2018

evaluation from appellant’s physical therapists.

In an October 25, 2018 referral and November 12, 2018 progress note, Dr. Zaslav 

continued to diagnose primary osteoarthritis of the right shoulder and incomplete tear of the right 

rotator cuff. He referred appellant for physical therapy, twice a week for six weeks.
4

Dr. Adam C. Crowl, a Board-certified orthopedic surgeon, in a referral dated November 8, 

2018, diagnosed neck and low back pain, unspecified back pain laterality with unspecified 

chronicity, and unspecified presence of sciatica. He referred appellant for physical therapy once 

or twice per week for six weeks.

On February 20, 2019 appellant requested reconsideration regarding the August 28, 2018 

decision. He submitted an October 22, 2018 electromyogram (EMG) performed by Dr. Douglas 

Wayne, a Board-certified physiatrist. Dr. Wayne provided impressions of electrodiagnostic 

evidence of right carpal tunnel syndrome, mild left carpal tunnel syndrome, and moderate sensory

and borderline motor involvement, and no electrodiagnostic evidence of ulnar neuropathies 

bilaterally and polyneuropathy or radiculopathies involving the bilateral upper extremity motor 

axoms.

OWCP subsequently received a June 26, 2018 report from a licensed practical nurse.

By decision dated May 9, 2019, OWCP denied modification of its August 28, 2018 

decision.

LEGAL PRECEDENT

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.4 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.5

Under FECA, the term disability means an incapacity because of an employment injury, to

earn the wages the employee was receiving at the time of the injury.6 When, however, the medical

evidence establishes that the residuals or sequelae of an employment injury are such that, from a

medical standpoint, prevent the employee from continuing in his or her employment, he or she is

entitled to compensation for any loss of wages.7

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.8 The opinion of the physician must be one of

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

 

4 See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019); 

Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

5 See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

6

Id. at § 10.5(f); see e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

7 G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

8 See 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.9

ANALYSIS

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

work commencing April 12, 2018 causally related to his accepted October 14, 2015 employment 

injury.

In support of his claims for compensation, appellant submitted reports dated April 13 and 

June 20, 2018 and office/clinic notes dated June 26 and October 1, 2018 and January 8, 2019 from

Dr. Jones who diagnosed right rotator cuff tendinitis, chronic cervical pain, post-concussional 

syndrome with persisting problems regarding memory and concentration problems, and bilateral 

carpal tunnel syndrome causally related to the accepted October 14, 2015 employment injury. 

However, he did not provide medical rationale explaining why appellant’s current conditions were

due to the accepted October 14, 2015 employment injury.10 Furthermore, while Dr. Jones

indicated that appellant was disabled from work commencing April 12, 2018, he did not relate his

disability to the accepted conditions of unspecified sprain of the right shoulder joint, sprain of 

cervical spine ligaments, and unspecified sprain of a left ankle ligament.

11

 Dr. Jones did not 

explain how appellant’s accepted conditions caused disability during the periods alleged. For these

reasons, the Board finds that his reports and office/clinic notes are insufficient to establish 

appellant’s claim for compensation.12

Dr. Zaslav’s May 4, July 16, and November 12, 2018 progress notes and October 25, 2018

referral diagnosed primary osteoarthritis of the right shoulder, incomplete tear of the right rotator 

cuff, and cervical radiculopathy. However, he did not address whether appellant was disabled due

to the accepted employment conditions.13 Thus, Dr. Zaslav’s progress notes and referral report are

of no probative value and are insufficient to establish appellant’s claim for compensation.

Likewise, Dr. Crow’s November 8, 2018 referral report also offered no opinion on 

appellant’s disability from work.

14

 Thus, this evidence is insufficient to meet appellant’s burden 

of proof.

Appellant also submitted the results of an October 22, 2018 EMG study. However, the 

Board has consistently held that diagnostic test studies are of limited probative value as they do 

 

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

45 ECAB 365 (1994).

10 See L.S., Docket No. 18-0264 (issued January 28, 2020); J.M., Docket No. 18-0847 (issued December 5, 2019).

11 L.S., id.; V.G., Docket No. 18-0936 (issued February 6, 2019).

12 Id.

13 See supra note 10.

14 Id.
6

not address whether the employment injury caused disability from work during the claimed

period.

15

The progress note and physical therapy evaluation notes from appellant’s physical 

therapists and the report from a licensed practical nurse are of no probative value as neither 

physical therapists nor a licensed practical nurses are considered physicians as defined under 

FECA.

16

 Consequently, their findings or opinions will not suffice for purposes of establishing 

entitlement to compensation benefits.17

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.18 Because appellant has not submitted rationalized medical opinion evidence 

to establish employment-related partial disability commencing April 12, 2018 as a result of his 

accepted right shoulder, cervical, and left ankle conditions, the Board finds that he has not met his 

burden of proof to establish his claim for disability compensation.

On appeal counsel contends that OWCP’s May 9, 2019 decision is contrary to fact and law. 

He has not, however, provided any evidence to support his argument. As explained above, 

appellant has not submitted rationalized medical evidence to establish causal relationship between 

his claimed disability and the accepted October 14, 2015 employment injury. As such, he 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.

CONCLUSION

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

commencing April 12, 2018, causally related to his accepted October 14, 2015 employment injury.

 

15 See R.B., Docket No. 18-0048 (issued June 24, 2019); J.S., Docket No. 17-1039 (issued October 6, 2017).

16 5 U.S.C. § 8101(2); R.B., id.; Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists); O.W., Docket No. 

17-1881 (issued May 1, 2018); H.B., Docket No. 16-1711 (issued March 15, 2017) (nurse practitioners, licensed 

practical nurses). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) 

(a medical issue can only be resolved through the submission of probative medical evidence from a physician).

17 R.B., supra note 15; K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

18 Supra note 4.
7

ORDER

IT IS HEREBY ORDERED THAT the May 9, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 13, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board