United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Hasbrouck Heights, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 20-0583

Issued: May 18, 2021

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 17, 2020 appellant, through counsel, filed a timely appeal from a September 5, 

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.

 

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

ISSUE

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

for the period February 14, 2014 through January 4, 2017 causally related to his accepted 

January 20, 2007 employment injury.

FACTUAL HISTORY

On January 25, 2007 appellant, then a 46-year-old letter carrier, filed a traumatic injury

claim (Form CA-1) alleging that on January 20, 2007 he sustained a back injury when his postal 

vehicle was struck from behind by another vehicle while he was delivering mail in the performance 

of duty. He did not stop work. OWCP initially accepted appellant’s claim for a lumbar sprain.

On March 5, 2010 Dr. Marc A. Cohen, a Board-certified orthopedic surgeon, performed 

back surgery, including foraminal decompression, discectomy, and annular tear repair at L4-5 and 

L5-S1.

Appellant stopped work for periods in 2011 and filed notices of recurrence on CA-2a forms

alleging that he sustained recurrences of disability on July 16, 2010 and May 6, 2011 causally 

related to the accepted January 20, 2007 employment injury.

After development of the evidence, including referral to an OWCP district medical adviser

(DMA), OWCP issued a June 4, 2012 decision in which it accepted that appellant sustained an 

employment-related recurrence of disability.3 It also found that the acceptance of appellant’s claim 

should be expanded to include a lumbar disc herniation and annular tear, as well as the March 5, 

2010 back surgery, as causally related to the accepted January 20, 2007 employment injury.

Appellant submitted a March 20, 2014 report from Dr. Cohen, who indicated that he

presented on that date complaining that his lower back pain had become significant and 

unmanageable, and that he suffered a recurrence of his radiculopathy. Dr. Cohen noted that, upon 

physical examination, appellant exhibited a normal gait and difficulty on toe-heel walking. 

Appellant had a well-healed scar from his back surgery. Dr. Cohen noted that appellant reported 

pain upon forward flexion of his back to the neutral position and that he exhibited lumbar 

paravertebral spasm. Appellant had a positive straight leg raise with increasing back and leg pain, 

and exhibited decreased sensation in the S1 nerve root distribution. Dr. Cohen found that appellant 

had pain upon palpation of the mid-lumbar interspace (L4-L5, L5-S1). He diagnosed lumbar 

discogenic pain, reoccurrence of lumbosacral radiculopathy, and status post lumbar disc surgery.

On December 28, 2016 appellant filed a claim for compensation (Form CA-7) alleging 

entitlement to wage-loss compensation for disability from work for the period February 14, 2014 

through February 26, 2016 causally related to the accepted January 20, 2007 employment injury. 

On February 18, 2017 he filed a Form CA-7 alleging disability from work for the period 

February 27, 2016 through January 4, 2017.

 

3 On February 14, 2014 OWCP paid appellant wage-loss compensation for the period December 24, 2011 through 

February 13, 2012. Appellant continued to be off work after February 13, 2012.
3

In a March 1, 2017 development letter, OWCP requested that appellant submit additional 

factual and medical evidence. It asked him to submit medical evidence to bridge the gap in the 

medical treatment reports since the last medical evidence was added to the case file in early-2014.

By decision dated March 1, 2017, OWCP denied appellant’s claim for wage-loss 

compensation for the period February 14, 2014 through February 26, 2016. By decision dated 

May 10, 2017, it denied his claim for wage-loss compensation for the period February 27, 2016 

through January 4, 2017. OWCP determined that appellant had not submitted sufficient medical 

evidence in support of his disability claims.

Appellant disagreed with the March 1 and May 10, 2017 decisions and requested, through 

counsel, an oral hearing with a representative of OWCP’s Branch of Hearings and Review. A 

telephonic hearing was held on September 1, 2017 for both decisions. Appellant did not submit 

any additional medical evidence. 

By decision dated October 19, 2017, OWCP’s hearing representative affirmed the March 1 

and May 10, 2017 decisions, finding that appellant had not submitted sufficient medical evidence 

to establish employment-related disability for the period February 14, 2014 through 

January 4, 2017. 

On February 9, 2019 appellant, through counsel, requested reconsideration of the 

October 19, 2017 decision. Appellant submitted a January 31, 2018 report, addressed to counsel,

in which Dr. Cohen indicated that he would refer to his medical records, which showed that 

appellant had failed conservative care and advised that appellant had undergone definitive lumbar 

fusion surgery at L4-5 and L5-S1 on March 5, 2010. Dr. Cohen noted that appellant subsequently 

had some improvement from the surgery, but still did have functional and exertional limitations,

and noted that it was felt that appellant was permanently disabled from returning back to his job 

as a letter carrier. He indicated that appellant had presented back to his office on March 15, 2017.4 

Dr. Cohen noted that he had also seen appellant two months prior on January 23, 2017 “where 

again he had benefit from the surgery, but still did have residual complaints with his back and legs, 

and was trying to manage it on an ongoing exercise program.”

5

 He indicated that appellant 

reported during the March 15, 2017 visit that he felt better, but he still did have difficulty with dayto-day functional activities and with forward and lateral bending activities. Dr. Cohen advised that 

appellant exhibited paravertebral muscle spasm at that time. He opined that appellant exhibited 

physical findings consistent with a two-level lumbar fusion, and that he did have permanency from 

the March 5, 2010 two-level lumbar fusion with respect to residual muscle back dysfunction and 

exertional and physical limitations that were permanent in nature. Dr. Cohen indicated that 

appellant was trying to manage them with ongoing over-the-counter medication and exercises. He

noted, “[i]t is my opinion as I did state from my earlier narrative to you that this patient is 

 

4 Dr. Cohen noted that, when appellant returned to the office on March 15, 2017, he advised that he had recently 

undergone gastric bypass surgery and had lost 100 pounds.

5 The case record does not contain medical reports memorializing the denoted January 23 and March 15, 2017 visits 

to Dr. Cohen. The case record contains a gap in medical reports between March 20, 2014 and January 31, 2018.
4

permanently disabled and is unable to return back to his original job as neither [sic] a letter carrier 

nor any other type of functional work activities.”

By decision dated May 8, 2018, OWCP denied modification of the October 19, 2017 

decision.

On October 9, 2018 appellant, through counsel, requested reconsideration of the May 8, 

2018 decision. He submitted an October 5, 2018 report that Dr. Cohen addressed to counsel. In 

this report, Dr. Cohen advised that he had reviewed OWCP’s May 8, 2018 decision that indicated 

he had not closed the four-year gap in appellant’s medical records. He noted that appellant had a 

significant lumbar spinal surgical procedure on March 5, 2010 as a direct result of his motor 

vehicle accident and opined that, due to this type of surgery, there had been a permanent change 

in the biomechanics of appellant’s spine. Dr. Cohen advised that, since the spine undergoes

“significant surgery” in this type of back surgery, it was very common that patients will present 

years later with progressive worsening in their back above or below the area of the fusion. He 

posited that the lack of treatment in a four-year span was not uncommon. Dr. Cohen indicated 

OWCP’s “statement of subjective complaints of pain” was erroneous. He noted:

“The clarification would be best that it is my opinion that the patient had undergone 

a two-level lumbar fusion surgery at the L4-5, L5-S1 area and that his 

representation with respect to pain islikely related to the juxtapositional level above 

the area of the fusion which occurs years later after a two-level lumbar fusion.” 

Dr. Cohen indicated that, because of this, appellant’s condition was work related and his case 

should be opened for further conservative care. He noted, “[s]hould you require any other 

clarification with respect to the fact that I believe that the patient is sustaining symptoms at the 

level above juxtapositional related to an older fusion surgery years ago from his workers’

compensation injury, please let me know.”

By decision dated October 23, 2018, OWCP denied modification of its May 8, 2018 

decision, finding that appellant had not submitted sufficient medical evidence to establish 

employment-related disability for the period February 14, 2014 through January 4, 2017.

On June 3, 2019 appellant, through counsel, requested reconsideration of the October 23, 

2018 decision. He submitted an April 23, 2019 report from Dr. Cohen who indicated that appellant 

was last seen in his office in 2018. Dr. Cohen noted that, at that time, appellant had returned to 

the office because of recurrence of back pain from his original work injury in 2007, which 

necessitated the March 5, 2010 open anterior posterior lumbar fusion surgery. He indicated that 

appellant subsequently did go back to work, but he reported having a recurrence of lower back 

pain, and difficulties with functional activities, forward and lateral bending-type activities, lifting,

and sleeping. Dr. Cohen advised that appellant had not been able to return back to gainful 

employment. He noted that appellant reported that he had been doing home-structured exercises 

and had been taking over-the-counter medications. Dr. Cohen reported that appellant’s April 23, 

2010 physical examination showed a normal gait and difficulty on toe-heel walking. Appellant 

exhibited decreased range of motion of the lumbosacral spine, pain from flexion of the back to the 

neutral position, and lumbar paravertebral spasm. He advised that there was tenderness in the right 

and left sciatic nerve distributions, decreased sensation in the L4 nerve root bilaterally, and positive 
5

straight leg raise at 50 degrees with increased back pain. Dr. Cohen indicated that appellant 

exhibited palpation of the L3-4 interspace and diagnosed likely juxtapositional disease at L3-4 and 

status post lumbar fusion. He noted, “[a]t this point, I do not believe that the patient will be able 

to return back to gainful employment. At this point, the patient has significant lower back pains 

and, upon returning back to work, he may necessitate further surgical intervention. The patient

should be considered permanently disabled.”

By decision dated September 5, 2019, OWCP denied modification of its October 23, 2018 

decision, finding that appellant had not submitted sufficient medical evidence to establish 

employment-related disability for the period February 14, 2014 through January 4, 2017.

LEGAL PRECEDENT

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

essential elements of his or her claim including the fact that any disability or specific condition for 

which compensation is claimed is causally related to the employment injury.6 

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.7 Disability is, thus, not 

synonymous with physical impairment, which may or may not result in an incapacity to earn 

wages.8 An employee who has a physical impairment causally related to a federal employment 

injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time 

of injury, has no disability as that term is used in FECA.9 When, however, the medical evidence 

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

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

entitled to compensation for loss of wages.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 appellant, 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 accepted employment injury.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 

 

6 S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

7 20 C.F.R. § 10.5(f).

8 See L.W., Docket No. 17-1685 (issued October 9, 2018).

9 See K.H., Docket No. 19-1635 (issued March 5, 2020).

10 See D.R., Docket No. 18-0323 (issued October 2, 2018).

11 Y.S., Docket No. 19-1572 (issued March 12, 2020).
6

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 appellant has not met his burden of proof to establish disability from 

work for the period February 14, 2014 through January 4, 2017 causally related to his accepted 

January 20, 2007 employment injury.

Appellant submitted a January 31, 2018 report in which Dr. Cohen advised that appellant 

had undergone definitive lumbar fusion surgery at L4-5 and L5-S1 on March 5, 2010. Dr. Cohen

indicated that appellant subsequently had some improvement from the surgery, but still had

functional and exertional limitations, and noted that it was felt that appellant was permanently 

disabled from returning back to his job as a letter carrier. He indicated that appellant had presented 

back to his office on January 23 and March 15, 2017.13 Dr. Cohen noted that appellant reported 

during the March 15, 2017 visit that he felt better, but still did have difficulty with day-to-day 

functional activities and with forward and lateral bending activities. He advised that appellant 

exhibited paravertebral muscle spasm at that time. Dr. Cohen indicated that it was his opinion that 

appellant exhibited physical findings consistent with a two-level lumbar fusion, and that he did 

have permanent effects from the March 5, 2010 two-level lumbar fusion with respect to residual 

muscle back dysfunction and exertional and physical limitations. He noted, “[i]t is my opinion as 

I did state from my earlier narrative to you that this patient is permanently disabled and is unable 

to return back to his original job as neither [sic] a letter carrier nor any other type of functional 

work activities.”

The Board notes that, although Dr. Cohen suggested that appellant had permanent 

disabling residuals of the OWCP-authorized March 5, 2010 surgery, his report is of limited 

probative value regarding appellant’s disability claim because he did not provide a wellrationalized opinion that appellant had disability from work for the period February 14, 2014 

through January 4, 2017 causally related to his accepted January 20, 2007 employment injury. The 

Board has held that a report is of limited probative value regarding causal relationship if it does 

not contain medical rationale explaining how a given medical condition/level of disability has an 

employment-related cause.14 For this reason, Dr. Cohen’s January 31, 2018 report is insufficient 

to establish appellant’s claim.

In an October 5, 2018 report, addressed to counsel, Dr. Cohen noted that appellant had a 

significant lumbar spinal surgical procedure on March 5, 2010 as a direct result of his motor 

vehicle accident and opined that, due to this type of surgery, there had been a permanent change 

in the biomechanics of appellant’s spine. He advised that, since the spine undergoes “significant 

surgery” in this type of back surgery, it was very common that patients will present years later 

with progressive worsening in their backs above or below the area of the fusion. Dr. Cohen posited 

 

12 J.B., Docket No. 19-0715 (issued September 12, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

13 The case record does not contain medical reports memorializing the denoted January 23 and March 15, 2017 

visits to Dr. Cohen. The case record contains a gap in medical reports between March 20, 2014 and January 31, 2018.

14 See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).
7

that the lack of treatment in a four-year span was not uncommon. He noted, “The clarification 

would be best that it is my opinion that the patient had undergone a two-level lumbar fusion surgery 

at the L4-5, L5-S1 area and that his re-presentation with respect to pain is likely related to the 

juxtapositional level above the area of the fusion, which occurs years later after a two-level lumbar 

fusion.” Dr. Cohen indicated that, because of this, appellant’s condition was work related and his 

case should be opened for further conservative care. The Board finds that Dr. Cohen’s October 5, 

2018 report is of limited probative value as it lacks adequate medical rationale.15 It is, therefore, 

insufficient to establish the claim for compensation.

In a March 20, 2014 report, Dr. Cohen reported physical examination findings, noting that 

appellant reported pain upon forward flexion of his back to the neutral position and had lumbar 

paravertebral spasm, and he diagnosed lumbar discogenic pain, reoccurrence of lumbosacral 

radiculopathy, and status post lumbar disc surgery. In an April 23, 2019 report, he indicated, “[a]t 

this point, I do not believe that the patient will be able to return back to gainful employment. At 

this point, the patient has significant lower back pains and, upon returning back to work, he may 

necessitate further surgical intervention. The patient should be considered permanently disabled.”

Dr. Cohen, however, did not provide an opinion in either report that appellant was disabled from 

work for the period February 14, 2014 through January 4, 2017 causally related to his accepted 

January 20, 2007 employment injury. The Board has held that a medical report is of no probative 

value on a given medical matter if it does not contain an opinion on that matter.16 Therefore,

Dr. Cohen’s March 20, 2014 and April 23, 2019 reports are insufficient to establish appellant’s 

claim.

As appellant has not submitted rationalized medical evidence establishing causal relationship 

between his claimed period of disability and the accepted January 20, 2007 employment injury, 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 from 

work for the period February 14, 2014 through January 4, 2017 causally related to his accepted 

January 20, 2007 employment injury.

 

15 See supra note 14.

16 T.H., Docket No. 18-0704 (issued September 6, 2018); see also Charles H. Tomaszewski, 39 ECAB 461 (1988).
8

ORDER

IT IS HEREBY ORDERED THAT the September 5, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 18, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board