United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

U.S. POSTAL SERVICE, OKLAHOMA 

WESTSIDE CARRIER ANNEX, 

Oklahoma City, OK, Employer

__________________________________________

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Docket No. 21-0930

Issued: February 8, 2023

Appearances: Case Submitted on the Record

Christopher L. Kannady, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 2, 2021 appellant, through counsel, filed a timely appeal from an April 9, 2021 

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 April 9. 2021 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 from work 

commencing November 30, 2020 causally related to his accepted December 22, 2015 employment 

injury.

FACTUAL HISTORY

On January 16, 2016 appellant, then a 31-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 22, 2015 he injured his low back when lifting a 

letter tray while in the performance of duty. OWCP accepted the claim for lumbar sprain, lumbar 

intervertebral disc disorders with myelopathy, lumbar and lumbosacral radiculopathy, and cauda 

equina syndrome. Appellant stopped work on April 2, 2017 and returned to modified work on 

May 13, 2017. OWCP paid him wage-loss compensation for disability from work from April 2, 

2016 through November 23, 2018.

On June 11, 2020 appellant accepted another position as a modified rural carrier. The 

duties consisted of walking up to five hours per day, performing simple grasping up to six hours 

per day, reaching above shoulders up to two hours per day, and no climbing or twisting.

A July 29, 2020 notification of personnel action (PS Form 50) indicated that appellant 

voluntarily resigned effective July 24, 2020 during a pending action to separate him for violation 

of employment establishment’s “standards of conduct regulations.” 

On December 14, 2020 appellant filed a claim for compensation (Form CA-7) for disability 

from work for the period November 30 to December 11, 2020. 

In a development letter dated December 17, 2020, OWCP requested that appellant explain 

why he had not continued working in his limited-duty assignment and submit a reasoned medical 

report addressing how his condition worsened such that he could no longer perform his 

employment duties. It afforded him 30 days to submit the requested evidence. 

On December 2, 2020 Dr. Rico A. Guerra, a Board-certified anesthesiologist, performed a 

thoracic steroid injection. He diagnosed thoracic and thoracolumbar spondylosis without 

myelopathy and thoracic disc degeneration.

In a report dated January 4, 2021, Dr. John W. Ellis, Board-certified in family practice, 

discussed appellant’s history of a December 22, 2015 injury at work. He noted that appellant also 

experienced back pain when lifting in February 2016. Dr. Ellis noted his review of the medical 

evidence and diagnosed lumbar sprain, intervertebral disc disorders with myelopathy, lumbar and 

lumbosacral radiculopathy, and cauda equina syndrome. He noted that appellant “continues to 

work under light[-]duty restrictions” and had periodically been temporarily totally disabled “on 

numerous occasions.” Dr. Ellis attributed the diagnosed conditions and disability to appellant’s

employment.

In a duty status report (Form CA-17) dated January 4, 2021, Dr. Ellis found that appellant 

could work for six hours per day with restrictions. 

On January 11, 2021 Dr. Guerra discussed appellant’s complaints of pain in his lower and 

middle back, foot, groin, right sacroiliac joint, hip, thigh, and lower extremity. He provided 
3

findings on examination and performed another thoracic steroid injection. Dr. Guerra diagnosed 

thoracic and lumbar intervertebral disc degeneration, thoracic, and thoracolumbar, and lumbar 

spondylosis without myelopathy or radiculopathy, and lumbar radiculopathy.

In Forms CA-17 dated February 1 and March 1, 2021, Dr. Ellis again found that appellant 

could work six hours per day with restrictions. 

The record contains physical therapy reports dated January through March 2021. 

By decision dated April 9, 2021, OWCP denied appellant’s claim for disability from work 

commencing November 30, 2020 causally related to his accepted December 22, 2015 employment 

injury. 

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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.5

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.6 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.7

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.8 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.9

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 accepted employment injury.10

4 Supra note 2.

5 A.R., Docket No. 20-0583 (issued May 21, 2021); S.W., Docket No. 18-1529 (issued April 19, 2019); Kathryn 

Haggerty, 45 ECAB 383 (1994).

6

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

7 20 C.F.R. § 10.5(f); J.M., Docket No. 18-0763 (issued April 29, 2020).

8

Id. at § 10.5(f); see J.T., Docket No. 19-1813 (issued April 14, 2020); Cheryl L. Decavitch, 50 ECAB 397 (1999).

9

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

10 T.T., Docket No. 18-1054 (issued April 8, 2020).
4

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.11

ANALYSIS

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

work commencing November 30, 2020 causally related to his accepted December 22, 2015 

employment injury.

In order to be entitled to compensation for disability from employment, appellant must 

establish that he was disabled from performing the duties of his modified position due to his 

accepted work injury.

12

 

In a report dated January 4, 2021, Dr. Ellis reviewed appellant’s history of a December 22, 

2015 employment injury. He diagnosed lumbar sprain, intervertebral disc disorders with 

myelopathy, lumbar and lumbosacral radiculopathy, and cauda equina syndrome. Dr. Ellis 

indicated that appellant currently worked with restrictions and experienced intermittent episodes 

of total disability. He attributed the diagnosed conditions and need for restrictions to the accepted 

work injury. While Dr. Ellis noted that appellant had work restrictions and periodically 

experienced total disability, he did not specifically address whether appellant was disabled from 

work commencing November 30, 2020 due to the accepted employment injury his report is 

therefore of no probative value and insufficient to establish appellant’s claim for compensation.13

On December 2, 2020 Dr. Guerra diagnosed thoracic and thoracolumbar spondylosis 

without myelopathy and thoracic disc degeneration. On January 11, 2021 he additionally 

diagnosed thoracic and lumbar intervertebral disc degeneration, lumbar spondylosis without 

myelopathy, and lumbar radiculopathy. However, as Dr. Guerra failed to address disability during 

the claimed period, his opinion is of no probative value and insufficient to establish appellant’s 

disability claim.14

In Forms CA-17 dated January 4, February 1, and March 1, 2021, Dr. Ellis indicated that 

appellant could work six hours per day with restrictions. However, he did not provide an opinion 

as to whether the accepted employment injury caused disability from employment during the 

claimed period. Dr. Ellis’ opinion is, therefore, of no probative value and insufficient to establish 

appellant’s disability claim.

15

Appellant also submitted physical therapy reportsJanuary through March 2021. The Board 

has held, however, that a medical report signed solely by a physical therapist is of no probative 

value as physical therapists are not considered physicians as defined under FECA and is not 

11 J.B., Docket No. 19-0715 (issued September 12, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).

12 H.H., Docket No. 16-1213 (issued September 11, 2017).

13 See A.G., Docket No. 21-0756 (issued October 18, 2021); L.B., Docket No. 18-0533 (issued August 27, 2018).

14 Id.

15 Id.
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competent to render a medical opinion.16 Consequently, these reports are insufficient to establish 

the claim.

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 commencing November 30, 2020 causally related to his accepted December 22, 2015 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the April 9, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 8, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

16 Section 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. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, 

Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); 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); see also R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners and 

physical therapists are not considered physicians under FECA).