United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.L., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, New Orleans, LA, 

Employer

__________________________________________

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Docket No. 20-0978

Issued: August 2, 2021

Appearances: Case Submitted on the Record

Vatroslav Jacob Garbin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 3, 2020 appellant, through counsel, filed a timely appeal from a November 26, 

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 November 26, 2019 decision, appellant submitted additional evidence to 

OWCP. 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 a recurrence of total 

disability from work for the period September 4 through 14, 2018 causally related to his accepted 

cervical conditions.

FACTUAL HISTORY

On October 26, 2013 appellant, then a 59-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that he developed neck pain due to factors of his federal 

employment, specifically repetitive twisting, bending, and standing. He noted that he first became 

aware of his claimed condition on July 6, 2012 and realized its relationship to his federal 

employment on October 26, 2013. Appellant did not stop work. OWCP accepted his claim for 

neck sprain and subsequently expanded the acceptance of his claim to include displacement of 

cervical intervertebral disc without myelopathy. On September 29, 2015 appellant underwent 

OWCP-authorized cervical discectomy and fusion at C3-4 and stopped work. OWCP paid him 

wage-loss compensation on the supplemental rolls as of September 29, 2015 and on the periodic 

rolls, as of December 13, 2015.

In a March 24, 2016 progress note, Dr. Joseph B. Boucree, Jr., a Board-certified orthopedic 

surgeon, recounted appellant’s continued improvement of neck and radicular arm pain following 

surgery. He conducted a physical examination and indicated that appellant could return to work 

with restrictions of avoiding excessive bending, twisting, lifting, and pushing greater than 15 

pounds. Dr. Boucree completed a work capacity evaluation (Form OWCP-5c), which indicated 

that appellant could work with restrictions of reaching above the shoulder for four hours and 

pushing and pulling for three hours.

Appellant returned to full-time, modified-duty work on May 24, 2016 and to full-duty work 

on August 4, 2016.

Appellant continued to receive medical treatment. A September 7, 2018 cervical spine 

magnetic resonance imaging (MRI) scan revealed increased mild-to-moderate central canal 

stenosis and moderate foraminal narrowing at C4-5, mild central canal stenosis and foraminal 

narrowing at C5-6, moderate left foraminal narrowing at C2-3, and prior instrumented anterior 

cervical fusion at C3-4 with mild left foraminal narrowing.

In a September 7, 2018 progress note, Dr. Boucree indicated that appellant was seen for 

follow up of status post anterior cervical discectomy and fusion at C3-4 surgery. He indicated that 

appellant had informed him that several weeks prior, while at work, he began to experience 

increased neck pain and recurrence of radicular pain extending into his upper extremities. Upon 

physical examination, Dr. Boucree observed moderate restriction of the cervical spine secondary 

to pain and diminished sensation to light touch and pinprick at the bilateral C5 dermatomes of the 

upper extremities. He diagnosed status post anterior cervical discectomy and fusion at C3-4 with 

transitional junctional disease with cervical instability C4-5 and C5-6, resultant cervical 

myeloradiculopathy. Dr. Boucree recommended that appellant undergo anterior cervical 

discectomy and fusion at C4-5 and C5-6.

In a September 7, 2018 work excuse note, Dr. Boucree requested that appellant be excused 

from work for one month.
3

In a separate September 7, 2018 work excuse note, Dr. Boucree indicated that appellant 

was unable to work at this time and noted that appellant was temporarily incapacitated pending 

surgical intervention.

On September 24, 2018 appellant filed a claim for compensation (Form CA-7) for 

disability from work for the period September 4 through 14, 2018. In an attached time analysis 

(Form CA-7a), he claimed that he used eight hours of leave without pay (LWOP) each on 

September 4, 5, 6, 7, 8, 11, 12, 13, and 14, 2018. Appellant noted that his reason for leave use was 

“incapacitated.”

In a September 27, 2018 report, Dr. Kenechukwu Ugokwe, a Board-certified neurological 

surgeon serving as an OWCP district medical adviser (DMA), indicated that he had reviewed

Dr. Boucree’s September 7, 2018 report and agreed that appellant’s current neck condition was 

causally related to his work injury as appellant did not have neck pain prior to the work injury. He 

also explained that the proposed anterior cervical discectomy and fusion at C4-5 and C5-6 surgery 

was causally related to appellant’s accepted condition of displacement of cervical intervertebral 

disc without myelopathy. The DMA further noted that he disagreed with Dr. Boucree’s 

recommendation that the proposed surgery was medically necessary because diagnostic testing did 

not show significant stenosis at those levels.

In an October 3, 2018 development letter, OWCP informed appellant that the evidence 

submitted was insufficient to establish a recurrence of disability commencing September 4, 2018. 

It advised him of the type of additional evidence needed and provided a questionnaire for his 

completion. OWCP afforded appellant 30 days to provide the necessary evidence.

OWCP received a September 7, 2018 office visit note and work excuse note from

Dr. Boucree. Dr. Boucree checked a box indicating that appellant was unable to return to work. 

He indicated that appellant was incapacitated pending surgical intervention and recovery from 

September 7, 2018 through February 7, 2019.

In an October 12, 2018 duty status report (Form CA-17), Dr. Boucree noted a diagnosis of 

cervical strain and checked a box marked “No” indicating that appellant was unable to resume 

work.

By decision dated November 13, 2018, OWCP denied appellant’s claim for a recurrence 

of disability September 4 through 14, 2018. It found that the medical evidence of record was 

insufficient to establish disability from work during the claimed period due to his accepted cervical 

conditions.

Appellant subsequently submitted additional medical evidence, including hospital records 

and chart notes dated October 4, 2018.

In progress notes dated October 12, November 15, and December 14, 2018, Dr. Boucree 

indicated that appellant was post-anterior cervical discectomy and fusion at C4-5 and C5-6 on 

October 1, 2018. He provided examination findings and noted that appellant’s neck and radicular 

arm pain were improving. Dr. Boucree also completed CA-17 forms dated October 12, 2018 

through July 3, 2019 and checked a box marked “No” indicating that appellant was unable to 

resume work.
4

Appellant submitted a February 1, 2019 letter from Dr. Boucree. Dr. Boucree indicated 

that he had reviewed Dr. Ugokwe’s September 27, 2018 DMA report and disagreed with his 

conclusion that the proposed cervical surgery was not medically necessary. He asserted that the 

September 7, 2018 cervical spine MRI scan had demonstrated mild-to-moderate canal stenosis and 

moderate foraminal stenosis at C4-5 and C5-6. Dr. Boucree also indicated that physical 

examination abnormalities were consistent with the MRI scan. He concluded that the proposed 

cervical discectomy and fusion at C4-5 and C5-6 were necessary to improve appellant’s neck pain 

and upper extremity radicular pain and to stop the progression of appellant’s myelopathy.

On August 13, 2019 appellant, through counsel, requested reconsideration. 

In a September 28, 2019 Form OWCP-5c, Dr. Boucree checked a box indicating that 

appellant could work full time with restrictions of pushing, pulling, and lifting up to 10 to 15 

pounds.

By decision dated November 26, 2019, OWCP denied modification of its prior decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA4has 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.5 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.6 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.7

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 

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

proof to establish by the weight of 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 of proof, the employee must show a change in the nature and extent of the injury-related 

condition or a change in the nature and extent of the limited-duty job requirements.8 This burden 

of proof 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 

 

4 Supra note 2.

5 See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019); 

C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 

ECAB 1143 (1989).

6 20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB 

397 (1999).

7 See D.G., Docket No. 18-0597 (issued October 3, 2018).

8 S.F., Docket No. 19-1735 (issued March 12, 2020); J.B., Docket Nos. 18-1752, 19-0792 (issued May 6, 2019); 

C.G., Docket No. 16-1503 (issued May 17, 2017); Terry R. Hedman, 38 ECAB 222 (1986).
5

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

supports that conclusion with medical reasoning.9 Where no such rationale is present, the medical 

evidence is of diminished probative value.10 

The medical evidence required to establish causal relationship between a claimed period 

of disability and an employment injury is rationalized medical opinion evidence. The opinion of 

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

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

nature of the relationship between the claimed disability and the specific employment factors 

identified by the claimant.11

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.12

ANALYSIS

The Board finds that this case is not in posture for decision.

In support of his disability claim, appellant submitted a series of reports, work status notes, 

and CA-17 form reports from Dr. Boucree. In a progress note and work excuse notes dated 

September 7, 2018, Dr. Boucree noted examination findings of moderate restriction of the cervical 

spine secondary to pain and diagnosed status post anterior cervical discectomy and fusion at C3-4 

with transitional junctional disease with cervical instability C4-5 and C5-6, resultant cervical 

myeloradiculopathy. He indicated that appellant was unable to work from September 7, 2018 

through February 7, 2019 and explained that appellant was incapacitated pending surgical 

intervention and recovery. Dr. Boucree continued to treat appellant and submitted progress notes, 

CA-17 form reports, and OWCP-5c forms dated October 12, 2018 through July 3, 2019 indicating 

that appellant was unable to work. 

The Board finds that, while the reports from Dr. Boucree are not completely rationalized, 

they are consistent in indicating that appellant was unable to work modified duty, beginning 

September 7, 2018, due to continued cervical symptoms and abnormal examination findings.13 

Accordingly, they are sufficient to require OWCP to further develop the medical evidence.14

 

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

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

11 V.A., Docket No. 19-1123 (issued October 29, 2019).

12 See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon 

Kharabi, 52 ECAB 291 (2001).

13 See R.R., Docket No. 20-1338 (issued April 16, 2021); D.G., Docket No. 18-0043 (issued May 7, 2019); E.J., 

Docket No. 09-1481 (issued February 19, 2010).

14 See A.R., Docket No. 20-0057 (issued April 7, 2021); J.S., Docket No. 19-0892 (issued November 4, 2020).
6

It is well established that proceedings under FECA are not adversarial in nature, and while 

appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in 

the development of the evidence.15 OWCP has an obligation to see that justice is done.16 

The case will therefore be remanded to OWCP for further development of the medical 

evidence. On remand OWCP shall prepare a statement of accepted facts (SOAF) and refer the 

matter to a specialist in the appropriate field of medicine, consistent with OWCP’s procedures, to 

determine whether appellant’s disability from work for the period September 4 through 14, 2018

was causally related to his accepted cervical conditions.17 Following this and other such further 

development as deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

 

15 See e.g., M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); 

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); Michael Gallo, 29 ECAB 159, 161 (1978); William N. Saathoff, 8 

ECAB 769, 770-71.

16 See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983); 

Gertrude E. Evans, 26 ECAB 195 (1974).

17 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluation of Medical Evidence, 

Chapter 2.810.9.b(1) (June 2015).
7

ORDER

IT IS HEREBY ORDERED THAT the November 26, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further 

proceedings consistent with this decision of the Board.

Issued: August 2, 2021

Washington, DC

Alec J. Koromilas, 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