United States Department of Labor

Employees’ Compensation Appeals Board

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T.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Los Lunas, NM, Employer

__________________________________________

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Docket No. 22-0632

Issued: November 16, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 13, 2022 appellant filed a timely appeal from a September 23, 2021 merit

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.

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ISSUE

The issue is whether appellant has met her burden of proof to establish intermittent 

disability from work for the period September 7, 2017 through July 11, 2018 causally related to 

the accepted August 16, 2017 employment injury. 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the September 23, 2021 decision, OWCP received additional evidence. However, 

the Boards 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

FACTUAL HISTORY

This case has been previously before the Board.3 The facts and circumstances of the case 

as set forth in the Board’s prior order are incorporated herein by reference. The relevant facts are 

as follows.

On May 3, 2018 appellant, then a 50-year-old mail carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on August 16, 2017 she injured her back when she hit a pothole driving 

her postal vehicle while in the performance of duty. She did not immediately stop work.4 OWCP 

accepted appellant’s claim for aggravation of intervertebral disc displacement, thoracolumbar 

region, bilateral lumbago with sciatica, cervicalgia, and sacroiliitis, not elsewhere classified.

On April 7, 2017 the employing establishment offered appellant a position as a modified 

rural carrier associate effective April 7, 2017. On April 7, 2017 appellant accepted the position 

and returned to work.

On July 29, 2019 appellant filed claims for compensation (Form CA-7) for intermittent 

disability for the period September 7, 2017 through July 11, 2018. 

In an August 5, 2019 development letter, OWCP informed appellant of the deficiencies of 

her claims for compensation. It advised her of the type of medical evidence required and afforded 

her 30 days to submit the requested evidence.

In reports dated August 14 and 26, 2019, Dr. John H. Sloan, a Board-certified physiatrist,

related a history of appellant’s work injuries in 2015 and August 16, 2017 and diagnosed cauda 

equina syndrome, back pain with lumbar radiculopathy, T12-L1 disc protrusion with probable 

small free fragment impinging on the caudal equina, small L1-2 diffuse disc protrusion, small 

L5-S1 central disc protrusion, facet arthropathy at L4-5 and L5-S1, urinary incontinence, cervical 

spine pain, and thoracic spine pain. In CA-17 forms dated August 14 and 26, 2019, he diagnosed 

thoracic and lumbar disc herniation and aggravation of lumbar disc herniation and released her to 

work part time seven hours per day with restrictions.

By decision dated September 4, 2019, OWCP denied appellant’s claims for wage-loss 

compensation, finding that the medical evidence of record was insufficient to establish intermittent 

disability from work for the period September 7, 2017 through July 11, 2018 causally related to 

the accepted August 16, 2017 employment injury. 

OWCP subsequently received additional evidence. In a September 7, 2017 report, Bernard

Zayner, a physician of naprapathy, treated appellant on September 7, 2017 for a work-related 

3 Order Remanding Case, Docket No. 21-0049 (issued May 3, 2021).

4 OWCP assigned the claim OWCP File No. xxxxxx682. Appellant has a prior claim under OWCP File No. 

xxxxxx147, accepted for contusion of the right elbow and upper back strain. It subsequently expanded the acceptance 

of her claim to include bladder dysfunction, back contusion, sacroiliitis, myalgia, low back strain, sacroiliac 

subluxation, other intervertebral disc displacement of the thoracic region, and cervical disc degeneration, mid-cervical 

region, aggravated. 
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injury and noted that she was totally disabled. On September 21, 2017 he released her to lightduty work with the ability to stand and stretch every 30 minutes.

In reports dated January 10 and August 14 and 26, 2019, Dr. Sloan noted that he continued 

to treat appellant and held her off work. He opined that the August 16, 2017 employment injury 

exacerbated her injuries and released her to limited-duty work on March 15, 2018. 

On September 16 and October 31, 2019 Dr. Sloan diagnosed cauda equina syndrome, back 

pain with lumbar radiculopathy, T12-L1 disc protrusion with probable small free fragment 

impinging on the caudal equina, small L1-2 diffuse disc protrusion, small L5-S1 central disc 

protrusion, facet arthropathy at L4-5 and L5-S1, cervical spine pain, and thoracic spine pain. In 

Forms CA-17 dated October 31 and December 5, 2019, he diagnosed thoracic lumbar disc 

herniation and aggravation of lumbar disc herniation and returned appellant to work seven hours 

a day with restrictions. 

A magnetic resonance imaging (MRI) scan of the lumbar spine dated September 13, 2019 

revealed disc extrusions at T11 and T12, possible sequelae of compressive myelopathy, additional 

lumbar degenerative changes with moderate canal stenosis at L3-4, L4-5, and L5-S1, right 

foraminal narrowing at L5-S1, and slightly worsening canal stenosis at L3-4 and L4-5 exacerbated 

by facet arthropathy.

On September 8, 2020 appellant requested reconsideration. 

By decision dated September 10, 2020, OWCP denied appellant’s reconsideration request, 

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

OWCP subsequently received additional evidence. In an August 3, 2020 report, Dr. Sloan

diagnosed cauda equina syndrome, back pain with lumbar radiculopathy, T12-L1 disc protrusion 

with probable small free fragment impinging on the caudal equina, small L1-2 diffuse disc 

protrusion, small L5-S1 central disc protrusion, facet arthropathy at L4-5 and L5-S1, cervical spine 

pain, and thoracic spine pain. 

In a December 15, 2020 report, Dr. Sloan diagnosed other specified dorsopathies sacral 

and sacrococcygeal region, cervicalgia, cauda equina syndrome, low back pain with lumbar 

radiculopathy, T12-L1 disc protrusion with probable small free fragment impinging on the caudal 

equina, small L1-2 diffuse disc protrusion, small L5-S1 central disc protrusion, facet arthropathy 

at L4-5 and L5-S1, urinary incontinence, cervical spine pain, and thoracic spine pain. He noted 

that the work-related conditions were still active as revealed by objective findings of ongoing 

spasm in her back and pain into the left leg. Dr. Sloan advised that the work-related injury was 

not resolved and appellant continued to work subject to restrictions. He opined that the condition 

and aggravation were related to the work injuries on December 28, 2015 and August 16, 2017 and 

advised that she could not return to her regular city carrier duties and was working 35 to 40 hours 

a week in a limited-duty capacity since July 2018.
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Appellant appealed to the Board.5 By order dated May 3, 2021, the Board remanded the 

case to OWCP to administratively combine OWCP File Nos. xxxxxx682 and xxxxxx147 and issue 

a de novo merit decision on her compensation claim. 

OWCP subsequently combined OWCP File Nos. xxxxxx682 and xxxxxx147, with the 

latter serving as the master file. 

By decision dated September 23, 2021, OWCP again denied appellant’s claims for wageloss compensation, finding that the medical evidence of record was insufficient to establish

intermittent disability from work for the period September 7, 2017 through July 11, 2018 causally 

related to the accepted August 16, 2017 employment injury. 

LEGAL PRECEDENT

An employee seeking benefits under FECA6 has 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. 7 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.8 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.9

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.10 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 and he or she 

is entitled to compensation for any loss of wages.11

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.12 The opinion of the physician must be one of 

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

5

Supra note 3.

6

Supra note 1.

7

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).

8

See M.B., Docket No. 18-1455 (issued March 11, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018); 

Amelia S. Jefferson, 57 ECAB 183 (2005).

9

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

10 Id. at § 10.5(f); CherylL. Decavitch, 50 ECAB 397 (1999).

11 See G.T., Docket No. 18-1369 (issued March 13, 2019); MerleJ. Marceau, 53 ECAB 197 (2001).

12 See S.J., Docket No. 17-0828 (issued December 20, 2017); KathrynE. DeMarsh, 56 ECAB 677 (2005).
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the relationship between the diagnosed condition and the specific employment factors identified 

by the employee.13

ANALYSIS

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

disability for the period September 7, 2017 through July 11, 2018 causally related to her accepted 

August 16, 2017 employment injury.

In a January 10 and August 14 and 26, 2019 reports, Dr. Sloan held appellant off work in

reports dated, September 16 and October 31, 2019 and August 3, 2020, he related a history of her

employment injuries in 2015 and August 16, 2017 and noted diagnoses. However, none of the 

reports specifically address dates of disability or offer an opinion regarding her disability from 

work for the period commencing September 17, 2017.14 Accordingly, these reports are of no 

probative value and are insufficient to establish appellant’s claim for compensation.15

On December 15, 2020 Dr. Sloan noted that appellant’s condition and aggravation were 

related to the employment injuries on December 28, 2015 and August 16, 2017 and advised that 

she could not return to her regular carrier duties and was working 35 to 40 hours a week in a 

limited-duty capacity since July 2018. In Form CA-17 reports, he noted that he conducted a 

physical examination, provided diagnoses, and provided work restrictions. Dr. Sloan, however, 

did not otherwise provide an opinion on whether appellant was disabled from work during the 

claimed period due to her accepted employment injury. Accordingly, these reports are of no 

probative value and are insufficient to establish her claim for compensation.16

Appellant submitted reports from a physical therapist and a naprapathy. However, certain 

healthcare providers such as physician assistants,

17 nurses, or physical therapists18 are not 

considered physicians as defined by FECA19 and are not competent to render a medical opinion. 

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

13 C.B., Docket No. 18-0633 (issued November 16, 2018); LeslieC. Moore, 52 ECAB 132 (2000); GaryL. Fowler, 

45 ECAB 365 (1994).

14 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

15 See M.M., Docket No. 18-0817 (issued May 17, 2019); M.C., Docket No. 16-1238 (issued January 26, 2017).

16 Id.

17 See S.E., Docket No. 08-2214 (issued May 6, 2009) (reports of a physician assistant have no probative value as 

medical evidence).

18 V.W., Docket No. 16-1444 (issued March 14, 2017) (where the Board found that physical therapy reports do not 

constitute competent medical evidence because a physical therapist is not a “physician” as defined under FECA).

19 See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical 

therapists are not competent to render a medical opinion under the FECA); 5 U.S.C. § 8101(2) (this subsection defines 

a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic 

practitioners within the scope of their practice as defined by State law).
6

Appellant also submitted an MRI scan. The Board has held that diagnostic studies, 

standing alone, lack probative value on the issue of causal relationship as they do not provide an 

opinion as to whether the employment incident caused any of the diagnosed conditions. 20 This 

evidence is therefore insufficient to establish appellant’s claim.

As the medical evidence of record is insufficient to establish employment-related disability 

from work from July 17, 2017 through July 11, 2018 causally related to the accepted August 16, 

2017 employment injury, the Board finds that appellant has not met her burden of proof to establish 

her 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 her burden of proof to establish intermittent 

disability from work for the period September 7, 2017 through July 11, 2018 causally related to 

her accepted August 16, 2017 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the September 23, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 16, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

20 C.B., Docket No. 20-0464 (issued July 21, 2020).