United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Newark, NJ, Employer

__________________________________________

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Docket No. 20-0886

Issued: November 9, 2021

Appearances: Case Submitted on the Record

Russell T. Uliase, 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 March 16, 2020 appellant, through counsel, filed a timely appeal from a September 23, 

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 notesthat OWCP received additional evidence following the September 23, 2019 decision. 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 intermittent disability 

from work commencing May 3, 2013, causally related to the accepted May 2, 2013 employment 

injury.

FACTUAL HISTORY

This case has previously been before the Board.

4

 The facts and circumstances as set forth 

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

On May 3, 2013 appellant, then a 45-year-old letter carrier, filed a notice of recurrence 

(Form CA-2a) alleging that on May 2, 2013 she sustained a recurrence of disability causally related 

to her accepted June 9, 2000 injuries.

5

 She indicated that her reinjury occurred when she 

performed heavy lifting and reaching above her head and shoulders while delivering a full route. 

Appellant noted that her original injury was “never corrected” and her prior injury was aggravated 

by the heavy lifting and reaching. She indicated that she had herniated discs in her cervical spine 

and pinched nerves, and pain in the neck, upper back, left extremities, and lumbar area.

6

By letter dated June 14, 2013, OWCP explained that, based upon her description of the 

circumstances that prompted filing the claim, appellant was claiming a new traumatic injury 

caused by a specific event or series of events within a single workday. It advised her of the type 

of additional evidence needed to establish her claim. 

In a July 8, 2013 claim for compensation (Form CA-7), appellant requested wage-loss 

compensation for disability from work for the period May 3 through June 28, 2013. 

In support of her claim, appellant submitted a May 7, 2013 report, Dr. James M. Lee, an 

orthopedic surgeon, noted that she had returned to work and was required to perform full duty with 

no restrictions. He advised that she tried to finish work, but that, night, she had a spasm, her back 

locked up, and she had to go to the emergency room. Dr. Lee examined appellant and noted severe 

low back tenderness and positive straight-leg raising, as well as cervical spine spasm. He opined 

that she was unable to work either full or restricted duty.

In a June 25, 2013 report, Dr. Lee explained that appellant was not claiming a new injury. 

He noted that he had recommended that she either not return to work, or that she work in a 

sedentary position. Dr. Lee related that appellant was not given the option of sedentary work and 

4 Order Remanding Case, Docket No. 17-1588 (issued January 28, 2019).

5 On June 9, 2000 appellant, then a 33-year-old letter carrier, filed a traumatic injury claim (Form-CA-1) alleging 

that on that date she injured her upper back and neck. OWCP assigned that claim OWCP File No. xxxxxx626 and 

accepted it for cervical and thoracic sprains, along with displacement of intervertebral disc without myelopathy. It

paid appellantwage-loss compensation on the periodic rolls, as of August22, 2000. Appellant had returned to a fulltime modified-duty position on May 1, 2013. 

6 The employing establishment noted that appellant had accepted a limited-duty assignment with a 50-pound weight 

restriction, returned to work for two days, and stopped work on May2, 2013. A copy of the May 1, 2013 modified 

assignment was attached describing the position as a modified carrier technician with restrictions of: no walking more 

than six hours; standing and reaching above shoulder and casing mail for no more than two hours; lifting up to 50 

pounds intermittently, for no more than six hours; and pushing and pulling intermittently for no more than two hours.
3

as a result, she had returned to work for two days and could not work any longer. He opined that,

this was “not a two-day traumatic injury or a new traumatic injury, this was a reaggravation of a 

preexisting injury.”

By decision dated July 15, 2013, OWCP denied appellant’s claim under OWCP File No. 

xxxxxx614, finding that the evidence of record was insufficient to establish a diagnosed medical 

condition causally related to the accepted employment incident. 

Appellant continued to submit Form CA-7 claims for wage-loss compensation. On 

August 6, 2013 she claimed compensation for disability from work for the period June 29 through 

July 26, 2013. 

On August 6, 2013 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review, which was held on November 7, 2013. 

In a November 27, 2013 addendum to his June 25, 2013 report, Dr. Lee opined that it was

“within reasonable medical probability to state that [appellant] has permanent pathology in the 

cervical spine and lumbar spine and would not be able to return back to work.”

In a letter dated December 6, 2013, counsel argued that Dr. Lee’s June 25, 2013 report and 

November 27, 2013 addendum established causal relationship between the aggravation of 

appellant’s neck and back conditions and her work duties on May 2, 2013. 

By decision dated January 29, 2014, the hearing representative affirmed the July 15, 2013 

decision.

On April 14, 2014 appellant, through counsel, requested reconsideration. 

In an April 1, 2014 report, Dr. Lee opined that lifting and carrying mail on May 1 and 2, 

2013 aggravated appellant’s cervical radiculopathy. He noted that his examination revealed 

cervical spine tenderness and 4/5 extremity strength, as well as low back tenderness and restricted 

range of motion. Dr. Lee advised that magnetic resonance imaging (MRI) scan tests disclosed 

cervical and lumbar disc herniation and radiculopathy. He opined that appellant was totally 

disabled from work.

In a statement of accepted facts (SOAF) dated May 15, 2014, OWCPnoted that appellant’s 

claim under OWCP File No. xxxxxx626 was accepted for cervical and thoracic sprains and 

displacement of intervertebral disc. It found that she returned to work on May 1, 2013, in a full 

time, modified-duty capacity, performed heavy lifting, and reached above shoulder height. 

On May 15, 2014 OWCP referred the case records in OWCP File Nos. xxxxxx614 and 626

to a district medical adviser (DMA) for an opinion as to whether work activities on May 1 or 2, 

2013, caused or contributed to the diagnosed conditions, and whether appellant was limited to 

sedentary work. 

In a report dated May 27, 2014, the DMA, Dr. Henry Magliato, a Board-certified 

orthopedic surgeon, noted that Dr. Lee’s findings differed from those reported by Dr. Jeffrey 

Lakin, a Board-certified orthopedic surgeon serving as the second opinion examiner, who saw 

appellant on March 5, 2012, before the May 2, 2013 recurrence. He recommended a referee 

medical examination by a spinal specialist and noted that new MRI scan studies of the cervical 
4

and lumbar areas of the spine would be beneficial to determine if any change occurred from 

previous studies.

On July 28, 2014 OWCP referred appellant along with a SOAF and the medical record to

Dr. Kenneth Levitsky, a Board-certified orthopedic surgeon, serving as an impartial medical 

examiner (IME) to resolve the conflict in opinion between Dr. Lee, the treating physician, and

Dr. Magliato, the DMA, as to whether causal relationship existed between the accepted work 

injury and appellant’s conditions of post-traumatic cervical sprain with spasm, mild radiculitis, 

lumbosacral sprain with spasm, and left radiculitis. Additionally, Dr. Levitsky was asked to 

determine whether there was continuing disability due to the accepted work injury. 

In an August 12, 2014 report, Dr. Levitsky reviewed appellant’s history of injury and 

treatment. He noted that his review of the medical evidence was comprised of reports dating from 

March 12, 2013, and that she had sustained an injury on June 9, 2000 when she was lifting a tub 

of mail and had some discomfort in her lower neck and her upper thoracic region. Dr. Levitsky 

related that appellant began experiencing pain in the left arm approximately one year after the 

injury with radiation into the wrist and fingers with occasional numbness. He advised that she also

developed some pain in her left shoulder at this time. Dr. Levitsky noted that, on May 2, 2013 

while delivering mail, appellant began experiencing pain in her back, neck, upper back, lower 

back, and left lower extremity. He advised that it was “unclear to me the exact timetables of when 

[appellant] was out from the index injury of June 2000 and the alleged second injury of 

May 2, 2013.” Dr. Levitsky related appellant’s physical examination findings and diagnosed 

cervical strain and lumbar strain with subjective left lumbar radiculitis. He opined that the 

diagnosis of cervical and thoracic strain was causally related to the June 9, 2000 work injury and 

that he could “not attribute a direct cause and effect relationship between [appellant’s] lower back 

discomfort and left leg discomfort with a work injury. This is based upon [appellant’s] history of 

lower back pain and left leg pain occurring approximately one year or more after her June 9, 2000

index injury. It is my opinion that she developed this lumbar disorder independent of her work 

injury and this symptomatology has been persistent.”

Dr. Levitsky noted that he did not see any firm evidence that there was an injury to 

appellant’s neck or lower back on May 1, 2013. He advised, “This in my opinion, is most 

appropriately characterized as a temporary aggravation of [appellant’s] underlying condition.”

Dr. Levitsky further opined that “[a]gain, I am not attributing any causality to [appellant’s] lumbar 

symptomatology. This condition is independent, in my opinion, from her work injury of 

June 9, 2000.” He advised that “[i]f appropriate, a functional capacity evaluation [FCE] could be 

performed to best delineate [appellant’s] permanent work restrictions as related to her cervical 

spine, noting that her lumbar symptomatology in my opinion is not directly causally related to her 

work injury.”

On September 18, 2014 OWCP provided Dr. Levitsky with the additional records and 

requested that he clarify his opinion, if necessary. 

In a January 29, 2015 supplemental report, Dr. Levitsky noted his review of the additional 

records, including MRI scan, electromyography (EMG) and nerve conduction velocity (NCV) 

studies, and medical reports. He repeated his opinion that only cervical and thoracic strains were 

causally related to the June 9, 2000 employmentinjury, and that appellant’slumbar spine condition 

was not medically related to the work injury. Dr. Levitsky advised that he could not establish 
5

causality between the June 9, 2000 work injury, and her lower back and left leg discomfort, as the 

symptomatology occurred more than a year after the injury.

In a February 10, 2015 decision, OWCP accepted the claim for thoracic back sprain and 

neck sprain. 

On March 26, 2015 appellant filed another Form CA-7 claiming compensation for the 

period May 3 2013 through March 6, 2015. On April 27, 2015 she filed a Form CA-7 claim for 

compensation for the period June 17, 2013 through April 17, 2015. 

In a letter dated May 6, 2015, OWCP noted that Dr. Lee had not seen appellant since 

November 27, 2013. It explained that there was no evidence that she was disabled from work due 

to her accepted conditions of neck sprain and back sprain.

On May 6, 2015 appellant filed a Form CA-7 claim for compensation for the period 

April 18 through May 1, 2015. 

OWCP received Form CA-7 claims for compensation for the periods July 25 through 

August 21, 2015. 

By decision dated October 1, 2015, OWCP denied appellant’s claim for wage-loss 

compensation for the period June 27 through July 24, 2015. By decision dated October 22, 2015, 

it denied her claim for wage-loss compensation for the period July 25 through August 21, 2015. 

On November 4, 2015 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on February 17, 2016. 

In a May 12, 2015 attending physician’s report (Form CA-20), Dr. Lee diagnosed chronic 

L-5 myeloradiculopathy and chronic cervical myeloradiculopathy disclosed by EMG/NCV 

studies. He responded “Yes” to the question whether he believed that the conditions were caused 

or aggravated by an employment activity. Dr. Lee indicated “repetitive motion aggravated the 

above conditions.” He opined that appellant was permanently disabled as of May 3, 2013. In a 

November 16, 2015 report and November 30, 2015 addendum, Dr. Lee reported that objective 

findings supported total disability from May 2013,referable to a May 2, 2013 injury. He requested 

authorization for new MRI scans of the cervical and lumbar spine to compare with the previous 

MRI scan studies. In a February 23, 2016 report, Dr. Lee noted that, in May 2013, appellant 

returned to full-duty work involving lifting and carrying mail and walking. He diagnosed cervical 

radiculopathy and lumbar sprain with radiculopathy. In a March 3, 2016 Form CA-20, Dr. Lee 

diagnosed cervical and lumbar radiculopathy as revealed by MRI scan tests. He checked the box 

marked “Yes” in response to the question whether such conditions were employment related and

indicated repetitive motion aggravated the above condition. 

By decision dated March 30, 2016, the hearing representative affirmed the October 1 and 

22, 2015 decisions. The hearing representative found that appellant had not met her burden to 

establish causal relationship between the May 2, 2013 injury and total disability during the period 

June 27 through August 21, 2015. OWCP’s hearing representative recommended that OWCP 

amend the accepted conditions to temporary aggravation of underlying lumbar strain/

radiculopathy, per Dr. Levitsky’s opinion, and merge the present file with OWCP File No. 

xxxxxx626 to facilitate cross-referencing.
6

On September 12, 2016 appellant, through counsel, requested reconsideration. 

By decision dated October 19, 2016, OWCP denied appellant’s claim for disability 

compensation for the periods from May 3, 2013 through April 17, 2015 and December 12, 2015 

through January 8, 2016. By separate decision also dated October 19, 2016, itdenied modification 

of the March 30, 2016 decision.

On November 1, 2016, appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review with regard to the October 19, 2016 

decisions. The hearing was held on February 28, 2017. 

By decision dated May 15, 2017, the hearing representative, affirmed both October 19, 

2016 decisions. The hearing representative found that the medical evidence submitted did not 

support that appellant was totally disabled from work due to her May 2, 2013 injury, noting that 

she had returned to a modified position with restrictions of no lifting over 50 pounds. OWCP’s

hearing representative reiterated the prior recommendations that the accepted conditions be 

amended and that the claims be administratively combined.

On July 14, 2017 appellant, through counsel, filed a timely appeal to the Board. 

By order dated January 28, 2019, the Board set aside the May 15, 2017 merit decision, 

finding that the case was not in posture for decision. The Board remanded the case for OWCP to 

administratively combine OWCP File Nos. xxxxxx614 and xxxxxx626, and following any further 

development, OWCP was to issue a de novo decision on appellant’s claims for compensation.7 

On January 30, 2019 OWCP administratively combined the claims. It also expanded the 

acceptance of the claim in File No. xxxxxx614 to include aggravation of lumbar radiculopathy. 

By decision dated May 22, 2019, OWCP denied appellant’s claims for compensation for 

the periods commencing May 3, 2013. It found that the IME report of Dr. Levitsky was entitled 

to the special weight of the medical evidence.

On May 30, 2019, appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review, which was held on August 21, 2019. Counsel argued 

that Dr. Levitsky’s IME report was invalid because it was obtained by OWCP before the cases 

were administratively combined when the claim was only approved for lumbar radiculopathy, 

thoracic sprain, and neck sprain. Counsel further argued that Dr. Levitsky did not have all of the 

medical evidence of record for review and that the case should be referred to a physician who had 

all of the medical evidence at his disposal. 

By decision dated September 23, 2019, the hearing representative affirmed the May 22, 

2019 decision, as modified, noting that Dr. Levitsky was improperly accorded the special weight 

of the medical evidence regarding disability as he “offered no opinion regarding work capacity.” 

The hearing representative found that the medical evidence submitted by appellant was insufficient 

to establish disability during the claimed periods causally related to the accepted employment 

injury.

7

Supra note 4. 
7

LEGAL PRECEDENT

An employee seeking benefits under FECA 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.

8

 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.9 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.10

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

earn the wages the employee was receiving at the time of injury.11 When the medical evidence 

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

they prevent the employee from continuing in their employment, they are entitled to compensation 

for any loss of wage-earning capacity resulting from such incapacity.12

The Board will not require OWCP to pay compensation for disability in the absence of any 

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed. To do so would essentially allow employees to self-certify their disability and entitlement 

to compensation.13

Furthermore, FECA14 provides that if there is disagreement between the physician making 

the examination for OWCP and the employee’s physician, OWCP shall appoint a third physician 

who shall make an examination.15 In cases where OWCP has referred appellant to an IME to 

resolve a conflict in the medical evidence, the opinion of such a specialist, if sufficiently well 

rationalized and based upon a proper factual background, must be given special weight. 16

ANALYSIS

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

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

Id. 

10 20 C.F.R. § 10.5(f); B.O., Docket No. 19-0392 (issued July 12, 2019); N.M., Docket No. 18-0939 (issued 

December 6, 2018).

11 Id. at § 10.5(f); see B.K., Docket No. 18-0386 (issued September 14, 2018).

12 Id. 

13 M.W., Docket No. 20-0722 (issued April26, 2021); A.W., Docket No. 18-0589 (issued May 14, 2019).

14 5 U.S.C. § 8123(a). 

15 Id.

16 D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 

1010 (1980).
8

The hearing representative properly determined that Dr. Levitsky’s opinion was not 

entitled to the special weight accorded to an IME because there was no conflict between treating 

physician Dr. Lee and DMA Dr. Magliato. Dr. Levitsky’s opinion, therefore, is reduced to that of 

a second opinion physician.17

In his August 12, 2014 report, Dr. Levitsky noted that appellant had been off work since 

the May 2, 2013 injury and that it was “unclear to me the exact timetables of when [appellant] was 

out from the initial injury of June 2000 and the alleged second injury of May 2, 2013.” He also 

opined that she was unable to perform her previous duties as a mail carrier and recommended an 

FCE, “to best delineate [appellant’s] permanent work restrictions as related to her cervical spine, 

noting that her lumbar symptomatology in my opinion is not directly causally related to her work 

injury.” Dr. Levitsky did not offer a clear opinion as to whether appellant was disabled from work 

commencing May 2, 2013. 

On September 18, 2014 OWCP requested clarification from Dr. Levitsky and provided 

additional medical records for his review. In a supplemental report dated January 29, 2015,

Dr. Levitsky noted his review of additional medical records, and he opined that only cervical and 

thoracic strains were causally related to the June 9, 2000 employment injury, while a lumbar spine 

condition was not medically related to that injury. However, Dr. Levitsky, did not further clarify 

appellant’s disability status during the claimed periods of disability. 

The Board has held that, when OWCP obtains an opinion from a second opinion physician 

and the specialist’s opinion requires clarification or elaboration, OWCP must secure a 

supplemental report from the specialist to correct the defect in his original report.18 

The Board therefore finds that as Dr. Levitsky did not clarify his opinion with regard to 

whether appellant was disabled from work due to the accepted May 2, 2013 employment injury.

On remand OWCP shall refer appellant for clarification from a new second opinion 

physician to determine whether she was intermittently disabled from work commencing May 3, 

2013 due to the accepted employment injuries. After 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.

17 See S.M.,Docket No. 19-0397 (issued August 7, 2019); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

18 G.T., Docket No. 21-0170 (issued September 29, 2021).
9

ORDER

IT IS HEREBY ORDERED THAT the September 23, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: November 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