United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Macon, GA, Employer

__________________________________________

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Docket No. 20-0447

Issued: September 9, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

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 December 22, 2019 appellant filed a timely appeal from a September 17, 2019 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 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 Appellant also listed the Board’s August 15, 2019 order, which remanded the case to OWCP, as a decision on 

appeal. To the extent that her request on the AB-1 form can be considered a petition for reconsideration of the Board’s 

order under Docket No. 18-1742, the Board notes that it will be addressed separately under that docket number. 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that following the September 17, 2019 OWCP decision, appellant submitted additional evidence 

on appeal. 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 met her burden of proof to establish total disability for the 

period May 31 through June 22, 2016 causally related to her accepted February 13, 2014 

employment injury.

FACTUAL HISTORY

This case has previously been before the Board.

4

 The facts and circumstances set forth in 

the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

On February 15, 2014 appellant, then a 40-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained head, neck, back, left hip, and right knee 

injuries when she was involved in a motor vehicle accident while delivering mail on February 13, 

2014 in the performance of duty. She stopped work on the date of injury. OWCP initially accepted 

the claim for a head contusion. By decisions dated July 29 and August 7, 2015, it expanded the 

acceptance of the claim to include contusions of the face, scalp, and neck, as well as right lateral 

collateral knee ligament sprain, hip and thigh sprain, and lumbar sprain. The record reflects that 

OWCP paid appellant wage-loss compensation on the supplemental rolls for the period 

February 14 to May 16, 2014.

On June 22, 2016 appellant filed a claim for compensation (Form CA-7) for leave without 

pay during the period May 31 to June 22, 2016.

In a development letter dated June 27, 2016, OWCP advised appellant that additional 

medical evidence was necessary to establish disability during the period claimed. It afforded 

appellant 30 days to submit the necessary evidence. No response was received.

By decision dated August 26, 2016, OWCP denied appellant’s wage-loss compensation 

claim for disability for the period May 31 to June 22, 2016. It found that the evidence of record 

was insufficient to establish that she was totally disabled from work during the claimed period due 

to her accepted February 13, 2014 employment injury. 

Following the August 26, 2016 decision, OWCP received requests for authorization for 

physical therapy dated March 10, April 9, June 8, and August 17, 2016, and physical therapy 

reports covering the period February 11 through October 4, 2016.

In an August 17, 2016 report, Dr. Michael Winklemann, a Board-certified physiatrist, 

related that appellant was seen for a refill of her prescriptions and reported that she was doing fair 

without any significant new problems. Appellant reported a recurrence of left-sided greater tender 

bursitis.

 

4 Order Remanding Case, Docket No. 18-1742 (issued August 15, 2019); Docket No. 17-1497 (issued March 19, 

2019); Docket No. 17-1160 (issued December 19, 2018); Docket No. 17-0875 (issued December 13, 2018); Docket 

No. 16-1838 (issued October 17, 2017), petition for recon. denied, Docket No. 16-1838 (issued April9, 2018).
3

In a report and office notes dated October 13, 2016, Dr. Samuel J. Chmell, a Boardcertified orthopedic surgeon, detailed appellant’s February 13, 2014 employment injury and 

medical histories. He provided physical examination findings. Dr. Chmell diagnosed L4-5 and 

L5-S1 disc protrusions with facet arthropathy and radiculopathy, right torn posterior medial horn 

meniscus with coccydynia and chondromalacia, and left hip greater trochanteric bursitis with 

sprain and aggravated osteoarthritis, which he attributed to the accepted February 13, 2014 

employment injury. In the October 13, 2016 narrative report, he also related that appellant was 

“presently fully incapacitated for duty and disabled for any type of work.”

In a December 8, 2016 report, Dr. Chmell noted that appellant was evaluated on 

October 13, 2016 for multiple injuries sustained as the result of a February 13, 2014 employmentrelated motor vehicle accident. He concluded that, as a result of the employment injury, appellant 

sustained a lumbar sprain, right torn medial meniscus, left traumatic arthritis, L4-5 and L5-S1 disc 

herniations with radiculopathy and coccydynia. Dr. Chmell opined that appellant was currently 

totally disabled from work due to her employment injuries and required further medical treatment 

for her work injuries.

A March 22, 2017 report from Dr. Winklemann noted examination findings, medication, 

and treatment provided.

OWCP received requests for authorization for physical therapy dated August 17, 2016, 

April 10 and 11, May 2 and 3, July 12, and August 30, 2017 and physical therapy notes covering 

the period February 11, 2016 through August 30, 2017.

In a July 3, 2017 attending physician’s report (Form CA-20), Dr. Winklemann diagnosed 

lumbar spondylosis, which he attributed to the accepted February 13, 2014 employment injury.

He left the sections blank, which related to the period of disability.

Appellant appealed to the Board on September 16, 2016. By decision dated October 17, 

2017,5the Board affirmed OWCP’s August 26, 2016 decision. Following the Board’s October 17, 

2017 decision, OWCP received the following evidence.

A March 22, 2017 prescription for physical therapy, an April 2, 2018 request for 

authorization for physical therapy, and physical therapy reports covering the period June 13 to 

August 15, 2017.

In a letter dated October 18, 2017, appellant requested wage-loss compensation for the 

period May 17, 2014 through May 31, 2016 and reconsideration of the decisions denying her 

claims for wage-loss compensation.

Appellant, in an October 21, 2017 letter, requested a formal decision on why she was not 

placed on the daily, short-term or periodic rolls for her temporary disability as she had received 

benefits which exceeded 60 days.

 

5 Docket No. 16-1838 id.
4

In an October 25, 2017 letter, appellant requested a formal decision on why OWCP did not 

pay wage-loss compensation on and after May 16, 2014.

Appellant, in letters dated February 9, March 12, and July 24, 2018, requested 

reinstatement of her continuation of pay (COP) or a formal decision denying her entitlement to 

COP.

On April 17, 2018 appellant resubmitted her January 8, 2014 reconsideration request.

On July 23, 2018 appellant requested reconsideration of the August 26, 2016 decision

denying her claim for wage-loss compensation for the period May 31 to June 22, 2016. She 

asserted that OWCP improperly shifted the burden of proof as it was OWCP’s burden to prove she 

was no longer disabled due to her accepted February 13, 2014 employment injury.

In an August 17, 2018 letter, appellant asserted that it was OWCP’s burden of proof to 

establish that she no longer had any disability due to her accepted employment injuries. As OWCP 

failed to meet its burden of proof, she asserted that she was entitled to wage-loss compensation for 

the period May 16, 2014 through August 26, 2016. Appellant requested a formal decision on her 

April 17, 2018 reconsideration request.

By decision dated August 29, 2018, OWCP denied appellant’s request for reconsideration,

finding that it was untimely filed and failed to demonstrate clear evidence of error.

On September 2, 2018 appellant again wrote to OWCP and argued that she had established 

disability from May 16, 2014 through August 26, 2016 and that OWCP should not have stopped 

payment of wage-loss compensation. By letter dated September 9, 2018, she requested a decision 

regarding the termination of her compensation benefits and argued that OWCP had effectively 

reduced her entitlement to compensation to zero. OWCP received multiple letters from appellant 

dated September 10, 12, and 17, October 3 and 21, November 3 and December 7, 2018, January 28

and June 15, 2019 in which she continued to allege that OWCP had improperly denied her claim 

for wage-loss compensation.

On September 20, 2018 appellant filed an appeal with the Board. By order dated 

August 15, 2019,

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the Board set aside the August 29, 2018 OWCP decision, finding that appellant 

had filed a timely request for reconsideration. The Board remanded the case for application of the 

standard for reviewing timely requests for reconsideration.

By decision dated September 17, 2019, OWCP denied modification.

LEGAL PRECEDENT

An employee seeking benefits under FECA7 has the burden of proof to establish the 

essential elements of his or her claim, including that any disability or specific condition for which 

 

6

Supra note 4.

7 M.W., Docket No. 20-0881 (issued January 13 2021); M.C.,Docket No. 18-0919 (issued October 18, 2018); B.K.,

Docket No. 18-0386 (issued September 14, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005). 
5

compensation is claimed is causally related to the employment injury.

8

 For each period of 

disability claimed, the employee has the burden of establishing that she was disabled for work as 

a result of the accepted employment injury.9 Whether a particular injury causes an employee to 

become disabled for work and the duration of that disability, are medical issues that must be proved 

by a preponderance of probative and reliable medical opinion evidence.10 

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

earn the wages that the employee was receiving at the time of injury.11 Disability is, thus, not 

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

wages.12 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 any loss of wages.13

ANALYSIS

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

for the period May 31 through June 22, 2016 causally related to her accepted February 13, 2014 

employment injury.

Preliminarily, the Board notes that findings made in prior Board decisions are res judicata

absent any further review by OWCP under section 8128 of FECA.14 It is therefore unnecessary 

for the Board to consider the evidence appellant submitted prior to the issuance of OWCP’s 

August 26, 2016 decision because the Board considered that evidence in its October 17, 2017 

decision.15

Following the August 26, 2016 OWCP decision, appellant submitted physical therapy 

reports covering the period February 11, 2016 to August 15, 2017. The Board notes that certain 

healthcare providers such as physician assistants, nurse practitioners, physical therapists, and 

social workers are not considered “physician[s]” as defined under FECA. Consequently, their 

 

8

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August23, 2019);

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

ECAB 1143 (1989).

9

See C.E., Docket No. 19-1617 (issued June 3, 2020); see also DavidH. Goss, 32 ECAB 24 (1980).

10 20 C.F.R. § 10.5(f); see W.C., Docket No. 19-1740 (issued June4, 2020); Fereidoon Kharabi, 52 ECAB 291 

(2001); Edward H. Horton, 41 ECAB 301 (1989).

11 20 C.F.R. § 10.5(f); see J.M., Docket No. 18-0763 (issued April29, 2020); S.M., 58 ECAB 166 (2006); BobbieF. 

Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796 (2003).

12 D.S., supra note 8; RobertaL. Kaaumoana, 54 ECAB 150 (2002).

13 D.S., id.; Merle J. Marceau, 53 ECAB 197 (2001).

14 J.T., Docket No. 18-1757 (issued April19, 2019); S.S., Docket No. 17-1106 (issued June 5, 2018); H.G., Docket 

No. 16-1191 (issued November 25, 2016).

15 Supra note 5.
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medical findings and/or opinions will not suffice for purposes of establishing entitlement to FECA 

benefits.16 Thus, this evidence is insufficient to support appellant’s entitlement to wage-loss 

compensation for the period May 31 through June 22, 2016.

Dr. Winklemann, in reports dated August 16, 2016, and March 22 and July 3, 2017,

provided examination findings, treatment provided, and diagnosed lumbar spondylosis, which he 

attributed to the accepted February 13, 2014 employment injury. However, he did not address the

claimed disability. The Board has held that medical evidence that does not provide an opinion as 

to whether a period of disability is due to an accepted employment-related condition is insufficient 

to meet a claimant’s burden of proof.17 Thus, the Board finds that Dr. Winklemann’s reports are 

insufficient to establish appellant’s claim for wage-loss compensation for the period May 31 

through June 22, 2016.

Appellant also submitted reports dated October 13 and December 8, 2016 from

Dr. Chmell, who Dr. Chmell diagnosed lumbar sprain, right torn medial meniscus, left traumatic 

arthritis, L4-5 and L5-S1 disc herniations with radiculopathy and coccydynia, which he attributed 

to the accepted February 13, 2014 employment injury. He did not discuss any period of disability 

in his October 13, 2016 office notes. In his October 13, 2016 narrative report, he related that 

appellant was “presently” totally disabled from work. Dr. Chmell did not address the relevant time 

period of May 31 through June 22, 2016. 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.18 To do so, would essentially allow an employee to self-certify 

their disability and entitlement to compensation.19 Dr. Chmell’s December 8, 2016 report is also 

insufficient to establish appellant’s claim for disability during the period in question. While, he 

indicated that appellant was totally disabled from work, he did not address the specific period of 

disability claimed.20 Therefore, this report does not establish disability for work during the 

claimed period. Appellant has not submitted rationalized medical opinion evidence establishing 

that she was disabled from work for the period May 31 through June 22, 2016 causally related to 

her accepted February 13, 2014 employment injury. Thus, she has not met her burden of proof.

 

16 Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.” 

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, 

Chapter 2.805.3(a)(1) (January 2013). See F.H., supra note 8; J.L., Docket No. 17-1207 (issued December 8, 2017) 

(a physical therapist is not considered a physician under FECA); see also K.W., 59 ECAB 271, 279 (2007); David P. 

Sawchuk, 57 ECAB 316, 320 n.11 (2006).

17 R.J., Docket No. 19-0179 (issued May 26, 2020); M.A., Docket No. 19-1119 (issued November 25, 

2019); S.I., Docket No. 18-1582 (issued June 20, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., 

Docket No. 17-1549 (issued July 6, 2018).

18 Supra note 10.

19 Id.

20 L.F., Docket No. 19-0024 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019); see also 

Jaja K. Asaramo, 55 ECAB 200 (2004).
7

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 total disability 

for the period May 31 through June 22, 2016 causally related to her accepted February 13, 2014 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the September 17, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 9, 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