United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.H., Appellant

and

U.S. POSTAL SERVICE, ARLINGTON 

STATION POST OFFICE, Baltimore, MD, 

Employer

__________________________________________

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Docket No. 23-0024

Issued: July 19, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 11, 2022 appellant, through counsel, filed a timely appeal from a 

September 28, 2022 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 September 28, 2022 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 met her burden of proof to disability from work for the 

period October 28, 2019 through December 7, 2020 causally related to the accepted February 21, 

2019 employment injury.

FACTUAL HISTORY

On February 22, 2019, appellant, then a 37-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on February 21, 2019 she sustained a left leg injury when she 

slipped and fell on ice while delivering mail in the performance of duty. She stopped work on 

February 22, 2019, and then worked intermittently untilMay 11, 2019. OWCP accepted the claim 

for sprains of the left hip, lumbar ligaments, left knee, and left ankle ligament. It paid appellant 

wage-loss compensation on the supplemental rolls from May 11 through October 27, 2019, and 

again as of July 3, 2021.

On March 2, 2021 appellant filed a claim for wage-loss compensation (Form CA-7) 

claiming compensation for the period October 28, 2019 through December 7, 2020. 

In a development letter dated March 10, 2021, OWCP informed appellant of the 

deficiencies of her disability claim. It advised her of the type of medical evidence needed. In a 

separate development letter of even date, OWCP requested additional information from the 

employing establishment regarding appellant’s disability claim. It afforded both parties 30 days 

to respond. 

On March 11, 2021, OWCP referred appellant, together with a statement of accepted facts 

(SOAF) and medical record, for a second opinion evaluation with Dr. John C. Barry, a Boardcertified orthopedic surgeon, for an assessment of the nature and extent of her employment injury,

appropriate treatment, and work restrictions.

OWCP subsequently received a January 8, 2020 report from Dr. Felix Gurman, a Boardcertified anesthesiologist and pain medicine physician, who provided appellant’s physical 

examination findings and diagnosedchronic pain syndrome and left hip joint pain. It also received 

a March 6, 2020 report from Dr. Sean Sanderson, a Board-certified physiatrist, who provided 

physical examination findings, reviewed diagnostic testing, and diagnosed lumbar radiculopathy 

and chronic pain syndrome. 

OWCP also received appellant’s December 11, 2019 request for continuation of light duty, 

which the employing establishment denied on January 6, 2020 as work within her restrictions was 

not available.

In a report dated March 16, 2021, Dr. Joshua B. Macht, a Board-certified internist, found 

appellant totally disabled at the time of her evaluation on December 1, 2020. He deferred to her 

treating physicians to provide continuinginformation regarding her limitations due to the accepted 

February 21, 2019 employment injury.

In a report dated April 9, 2021, the second opinion physician, Dr. Barry, noted appellant’s 

history of injury and medical treatment. On physical examination, he reported that appellant had 

bilateral back tenderness, no palpable paraspinal muscle spasm, tenderness over the greater 

trochanter, normal hip range of motion with slightly diminished adduction, normal left knee 
3

examination, and left ankle full dorsiflexion and plantar flexion range of motion. Dr. Barry

diagnosed trochanteric left hip bursitis and sprains of the left knee, left ankle, and lumbar spine, 

which he attributed to the accepted February 21, 2019 employment injury. He concluded that 

appellant’s lumbar, left hip, left knee, and left ankle sprains should have resolved without 

residuals. Dr. Barry explained that the L5-S1 disc bulge seen on a lumbar magnetic resonance 

imaging (MRI) scan was to the contralateral side from appellant’s leg pain complaints and was 

inconsistent with a diagnosis of left lumbar radiculopathy. He concluded that appellant had no 

work restrictions and required no additional medical treatment.

In a May 17, 2021 report, Dr. Macht reiterated that he was not appellant’s treating 

physician and has not seen her since her evaluation on December 1, 2020. Thus, he did not have

knowledge of any ongoing disability or whether she continued to suffer from residuals due to her 

accepted employment injury.

On June 22, 2021 OWCPadvised appellant that additional evidence was required to clarify 

the period of claimed disability as it appeared that appellant may have worked in 2019, 2020, and 

2021 and was not totally disabled. Appellant was given 30 days to respond. 

By decision dated December 3, 2021, OWCP denied appellant’s claim for disability from 

work for the period “November 2, 2019” through December 7, 2020, noting that Dr. Barry, 

OWCP’s referral physician, found that she could perform full-duty work. It noted that the case 

record was devoid of any evidence establishing disability for the period in question.

On December 14, 2021 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review, which was held on March 23, 2022. 

By decision dated April 26, 2022, OWCP’s hearing representative affirmed the denial of 

appellant’s claim for disability from work commencingOctober 28, 2019,finding that the medical 

evidence of record was insufficient to establish disability from work during the claimed period 

casually related to the accepted February 21, 2019 employment injury.

On May 12, 2022 appellant, through counsel, requested reconsideration. In support 

thereof, counsel submitted an April 6, 2022 electrodiagnostic report from Dr. M. Ribeiro, a Boardcertified neurologist, diagnosing mild neuropathy.

By decision dated May 17, 2022, OWCP denied modification of the April 26, 2022 OWCP 

decision.

On May 19, 2022 OWCP received an undated report from Dr. Shawn Dhillon, a Boardcertified internist. He diagnosed lumbar strain, sacroiliac joint dysfunction, lumbar disc bulge, 

trochanteric bursitis, and left ankle sprain, which he attributed to the accepted February 21, 2019 

employment injury. Dr. Dhillon requested expansion of the claim to include traumatic rupture of 

lumbar intervertebral disc as directly caused by appellant’s fall on February 21, 2019. He opined 

that appellant was capable of working an eight-hour day with restrictions.

On June 10, 2022 appellant, through counsel, requested reconsideration.

By decision dated June 22, 2022, OWCP denied reconsideration of the merits of appellant’s 

disability claim, pursuant to 5 U.S.C. § 8128(a).
4

On July 12, 2022 OWCP referred appellant, together with a SOAF, medical record, and 

list of questions, to Dr. Ralph T. Salvagno, a Board-certified orthopedic surgeon, to resolve the 

conflict in the medical opinion evidence between Dr. Dhillon, appellant’s treating physician, and

Dr. Barry, an OWCP second opinion physician, regarding appellant’s diagnoses caused by the 

accepted February 21, 2019 employment injury, her work limitations, and the need for continued 

treatment. 

In a report dated August 22, 2022, Dr. Salvagno, based upon a review of the SOAF, the

medical record, and appellant’s physical examination, diagnosed lumbar sprain with L5-S1 central 

disc herniation, left hip strain with post-traumatic meralgia paresthetica, resolved left knee 

sprain/contusion, and resolved left ankle sprain/contusion. He agreed with Dr. Dhillon that the 

conditions of traumatic rupture of L5-S1 intervertebral disc and left meralgia paresthetica should 

be added to the accepted conditions as these conditions were due to the mechanism of injury. 

However, he disagreed with Dr. Dhillon regarding the expansion of the claim to include S1 joint 

dysfunction or trochanteric dysfunction. Dr. Salvagno opined that appellant could not return to 

her work as a letter carrier, but was capable of working with permanent restrictions on lifting and 

no repetitive bending or twisting.

By decision dated September 9, 2022, OWCP expanded the acceptance of appellant’s 

claim to include left lower limb meralgia paresthetica and lumbar intervertebral traumatic disc 

rupture. 

By decision dated September 28, 2022, OWCP denied modification of the June 22, 2022 

decision.

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

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.

6

 Disability is, thus, not 

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

wages.

7

 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.

8

 When, however, the medical evidence 

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

4

Supra note 2.

5 L.M., Docket No. 22-0655 (issued October 21, 2022); A.R., Docket No. 20-0583 (issued May 21, 2021); S.W., 

Docket No. 18-1529 (issued April19, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 

1143 (1989); see also Nathaniel Milton, 37 ECAB 712 (1986).

6

20 C.F.R. § 10.5(f); see J.M., Docket No. 18-0763 (issued April 29, 2020); Bobbie F. Cowart, 55 ECAB 

746 (2004).

7 D.W., Docket No. 20-1363 (issued September 14, 2021); L.W., Docket No. 17-1685 (issued October 9, 2018).

8

See M.W., Docket No. 20-0722 (issued April26, 2021); D.G., Docket No. 18-0597 (issued October 3, 2018).
5

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

entitled to compensation for loss of wages.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 The medical evidence required to establish causal 

relationship between a claimed period of disability and an accepted 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.

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 

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 this case is not in posture for decision.

On July 12, 2022 OWCP referred appellant to Dr. Salvagno for an impartial medical 

evaluation due to a conflict in medical opinion betweenDr. Dhillon, appellant’s treating physician, 

and Dr. Barry, OWCP’s second opinion physician, regarding her diagnoses, work limitations, and

need for continued treatment resulting from her February 21, 2019 employment injury. In an 

August 22, 2022 report, Dr. Salvagno agreed with Dr. Dhillon that the conditions of traumatic 

rupture of L5-S1 intervertebral disc and left meralgia paresthetica should be added to the accepted 

conditions as these condition were due to the February 21, 2019 mechanism of injury. Based upon

Dr. Salvagno’s opinion, OWCP expanded accepted of appellant’s claim to include the conditions 

of traumatic rupture of L5-S1 intervertebral disc and left meralgia paresthetica. Dr. Salvagno 

opined that appellant was not capable of working her date-of-injury job as a letter carrier but was 

capable of working with restrictions on no lifting and repetitive twisting or bending. He did not,

however, provide an opinion regarding appellant’s ability to work during the claimed period of 

disability of October 28, 2019 through December 7, 2020.13 

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. 

While the claimant has the responsibility to establish entitlement to compensation, OWCP shares 

9

See B.A., Docket No. 22-0892 (issued November 2, 2022); A.R., supra note 5; D.R., Docket No. 18-0323 (issued 

October 2, 2018).

10 LM., supra note 5; J.B.,Docket No. 19-0715 (issued September 12, 2019); WilliamA. Archer, 55 ECAB 

674 (2004).

11 B.A., supra note 9; Y.S., Docket No. 19-1572 (issued March 12, 2020).

12 B.A., id.; J.B., supra note 10.

13 See B.W., Docket No. 21-0785 (issued September 1, 2022); T.J., Docket No. 20-0819 (issued June 17, 2021);see 

also J.C., Docket No. 19-1849 (issued November 17, 2020).
6

responsibility in the development of the evidence.14 It has the obligation to see that justice is 

done.

15

 Accordingly, once OWCP undertakes to develop the medical evidence further, it has the 

responsibility to do so in a manner that will resolve the relevant issues in the case.

16

 In this case,

Dr. Salvagno, the impartial medical examiner, should have been requested to provide an opinion 

regarding appellant’s ability to work during the claimed period of disability of October 28, 2019 

through December 7, 2020. The Board notes in this regard that OWCP denied appellant’s 

December 11, 2019 request for continuation of light duty, as work within her restrictions was not 

available.

On remand OWCP should obtain a supplemental opinion from Dr. Salvagno, which based 

on objective medical evidence, explains whether appellant was disabled during the period 

October 28, 2019 through October 7, 2020 causally related to the accepted February 21, 2019 

employment injury. If Dr. Salvagno is unavailable or unwilling to provide a supplemental opinion, 

OWCP shall refer appellant, together with an updated SOAF and a list of specific questions, to 

another IME in the appropriate field of medicine to resolve the issue.

17

 It shall also request that 

the employing establishment provide information regarding whether work was available within 

appellant’s restrictions as of October 28, 2017. Once factual findings are made, OWCP shall then 

evaluate the evidence to determine whether disability was established from October 28, 2019 

through December 7, 2020.18 Following this and any other 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.

14 B.W., id.; N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 

2019); B.A., Docket No. 17-1360 (issued January 10, 2018).

15 Id.;see also DonaldR. Gervasi, 57 ECAB 281, 286 (2005); WilliamJ. Cantrell, 34 ECAB 1233, 1237 (1983).

16 B.W., supra note 13; T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued 

January 10, 2018).

17 K.E., Docket No. 21-1266 (issued May 13, 2022).

18 A.M., Docket No. 22-0664 (issued May 15, 2023); T.P., Docket No. 17-0423 (issued December 20, 2017).
7

ORDER

IT IS HEREBY ORDERED THAT the September 28, 2022 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further 

proceedings consistent with this decision of the Board.

Issued: July 19, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board