United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Anchorage, AK, Employer

__________________________________________

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Docket No. 22-0226

Issued: September 13, 2022

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 30, 2021 appellant, through counsel, filed a timely appeal from an 

October 25, 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. 

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.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish disability from work 

for the period December 1, 2019 through January 24, 2020 causally related to her accepted 

January 16, 2010 employment injury.

FACTUAL HISTORY

This case has previously been before the Board on different issues.

3

 The facts and 

circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The 

relevant facts are as follows.

On January 23, 2010 appellant, then a 49-year-old window clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on January 16, 2010 she experienced lower back pain radiating 

down both legs while in the performance of duty.4 On January 21, 2011 OWCP accepted the claim 

for temporary aggravation of intervertebral disc protrusion (disc bulge) at L4-5. Appellant stopped 

work following the injury and eventually returned to full-time light-duty work. She underwent an 

OWCP-authorized left-sided L4-5 discectomy on February 7, 2013 and placement of a permanent 

spinal cord stimulator on April 19, 2017. OWCP paid appellant intermittent wage-loss 

compensation on the supplemental rolls from March 4, 2010 through October 19, 2019. 

On December 10, 2019 Dr. James E. Rice, a Board-certified orthopedic surgeon, 

performed a right-sided L4-5 and L5-S1 discectomy with decompression.

On December 23 and 30, 2020 appellant filed claims for compensation (Form CA-7) for 

the period December 1, 2019 through January 24, 2020.

In support of her claims, appellant submitted an October 22, 2019 lumbar spine magnetic 

resonance imaging (MRI) scan, Dr. Rice’s presurgical report dated December 6, 2019 amended on 

December 12, 2019, and Dr. Rice’s December 20, 2019 report, noting postsurgical findings.

In a development letter dated January 4, 2021, OWCP advised appellant that additional 

medical evidence was needed to determine if the medical procedure related to the claimed period 

of disability was work related. It indicated that she would be referred for a second opinion 

evaluation.

On January 13, 2021 OWCP referred appellant, a July 15, 2020 SOAF, and the medical 

record, to Dr. Kate Deisseroth, a Board-certified orthopedic surgeon, for a second opinion 

evaluation to determine the nature of appellant’s condition, the extent of disability and appropriate 

3 Docket Nos. 14-1840 (issued January 20, 2015) and 17-1975 (issued August 21, 2018). 

4 OWCP assigned the present claim OWCP File No. xxxxxx825. Appellant has a prior claim for an October 11, 

2002 traumatic injury, accepted under OWCP File No. xxxxxx890 for acute lumbosacral strain, thoracic strain, and 

sciatica. It has administratively combined OWCP File Nos. xxxxxx825 and xxxxxx890,with the latter serving as the 

master file. OWCP has also administratively combined the master file with OWCP File No. xxxxxx925, an April17, 

2004 traumatic injury a ccepted for lumbar strain, and OWCP File No. xxxxxx864, a July 1, 2010 traumatic injury 

accepted for lumbago. 
3

treatment recommendations. Dr. Deisseroth was asked in part whether appellant’s accepted 

employment injury necessitated the right L4-5, L5-S1 discectomy and decompression performed 

on December 10, 2019.

In a January 29, 2021 report, Dr. Deisseroth noted her review of appellant’s medical 

records and the SOAF. She related appellant’s physical examination findings, noting objective 

findings of decreased flexion/extension of the lumbar spine, and cautious, but no antalgic gait. 

Other examination findings were noted as normal. Dr. Deisseroth opined that appellant’s work

injury of lumbar strain with left lower extremity radiculopathy and subsequent surgery had

resolved with no need for further treatment. She opined that, while appellant was retired, she was 

capable of returning to her date-of-injury position with permanent restrictions in place prior to the 

January 16, 2010 workplace injury. Dr. Deisseroth further opined that appellant’s more recent 

complaints of right lower extremity radiculopathy were not work related. She determined that the 

2010 work injury did not necessitate the right L4-5, L5-S1 disectomy/decompression performed 

on December 10, 2019, explaining that appellant’s right lower extremity radiculopathy first 

appeared in 2019, nine years after the original injury, and the 2013 work-related surgery was for a 

left-sided L4-5 discectomy without fusion. Thus, Dr. Deisseroth concluded that the accepted 

employment injury did not lead to appellant’s current symptoms and surgery in 2019.

On February 12, 2021 OWCPreferred appellant along with a SOAF and the medical record 

to Dr. James R. Schwartz, a Board-certified orthopedic surgeon serving as an impartial medical 

examiner (IME), to resolve the conflict in medical opinion between Dr. Rice, the treating 

physician, and Dr. Deisseroth, the second opinion physician, as to whether the right-sided L4-5, 

L5-S1 discectomy and decompression was required due to the January 16, 2010 employment

injury.

In an April 5, 2021 report, Dr. Schwartz noted his review of the medical record and the 

SOAF. He also related appellant’s physical examination findings. Based on a review of the 

medical record, Dr. Schwartz opined that appellant’s left-sided radiculopathy had resolved as a 

result of the 2013 surgery and spinal cord implant. Therefore, the specific aggravation of 

appellant’s preexisting multilevel lumbar degenerative disc disease from the 2010 injury had been 

adequately treated and resolved. Dr. Schwartz also opined that the January 16, 2010 employment 

injury did not necessitate the right-sided L4-5, L5-S1 discectomy and decompression performed 

on December 10, 2019 and the surgery was not related to the work injury. Rather, he opined that 

the surgery was related to the progressive nature of appellant’s underlying preexisting multilevel 

lumbar degenerative disc disease. Dr. Schwartz noted that the records indicated no onset of right 

lower extremity complaints for many years after the January 2010 employment injury, despite her

assertions that the symptomology was always there. He explained that MRI scan findings were 

not locally interpretable as acute findings and that it was not unusual for a physician to interpret a 

spinal MRI scan differently from a radiologist. Dr. Schwartz noted that the 2019 surgery, which

Dr. Rice performed, was to decompressthe right lower extremity sensory radiculopathy. He noted 

that the new right-sided back and leg pain was first reported in 2019, nine years after the date of 

injury and six years after the left-sided surgery and, thus, could not be related to the prior injury,

but was related to the progressive nature of lumbar degenerative disc disease. Dr. Schwartz also 

noted that appellant had intervening injuries in the form of an automobile accident with 

aggravation of symptoms in the back, as well as a significant period of time with an abnormal gait 

for treatment of an ankle fracture. He concluded, “Based on the medical records, findings of no 
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right-sided significant symptoms for many years following the initial onset, and intervening injury, 

I do not find any causal relationship between the 2010 incident and the need for right-sided 

surgery.”

By decision dated April 27, 2021, OWCP denied appellant’s claim for wage-loss 

compensation for the period December 1, 2019 through January 24, 2020, finding that the medical 

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

to her accepted work-related medical condition(s). It accorded the special weight of the medical 

evidence to Dr. Schwartz, the IME.

On May 3, 2021 appellant, through counsel, requested a hearing before a representative of 

OWCP’s Branch of Hearings and Review, which was held on August 9, 2021.

OWCP subsequently received medical records dated January 22, 2010 through June 12, 

2013 from Dr. John Tom Grissom, a Board-certified anesthesiologist, and Dr. Larry Stinson, a 

Board-certified anesthesiologist, regarding appellant’s diagnoses of L5-S1 disc displacement with 

recurrent lumbago and right lower extremity radiculitis. These reports related that appellant 

underwent further treatment, which included lumbar epidural injections. 

By decision dated October 25, 2021, OWCP’s hearing representative affirmed OWCP’s 

April 27, 2021 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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.

6

 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.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

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 

5

Supra note 2.

6

See C.B., Docket No. 20-0629 (issued May 26, 2021); D.S., Docket No. 20-0638 (issued November 17, 2020); 

F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn 

Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989); see also L.S., Docket No. 18-0264 (issued 

January 28, 2020); B.O., Docket No. 19-0392 (issued July 12, 2019); Nathaniel Milton, 37 ECAB 712 (1986).

7

20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).

8 T.W., Docket No. 19-1286 (issued January 13, 2020).

9

S.G., Docket No. 18-1076 (issued April11, 2019); Fereidoon Kharabi, 52 ECAB291(2001).
5

the physician must be based on a complete factual and medical background of appellant, 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

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 her burden of proof to establish disability from 

work for the period December 1, 2019 through January 24, 2020 causally related to her accepted 

January 16, 2010 employment injury.

OWCP properly determined that a conflict existed in the medical opinion evidence and

referred to Dr. Schwartz by OWCP for an impartial medical evaluation, pursuant to 5 U.S.C. 

§ 8123(a). 

In an April 5, 2021 report, Dr. Schwartz noted his review of the medical record and the 

SOAF. He also related appellant’s physical examination findings. Based on a review of the 

medical record, Dr. Schwartz opined that appellant’s left-sided radiculopathy had resolved as a

result of the 2013 surgery and spinal cord implant. Therefore, the specific aggravation of 

appellant’s preexisting multilevel lumbar degenerative disc disease from the 2010 injury had been 

adequately treated and resolved. Dr. Schwartz also opined that the January 16, 2010 employment 

injury did not necessitate the right-sided L4-5, L5-S1 discectomy and decompression performed 

on December 10, 2019 and the surgery was not related to the work injury. Rather, he opined that 

the surgery was related to the progressive nature of appellant’s underlying preexisting multilevel 

lumbar degenerative disc disease. Dr. Schwartz noted that the records indicated no onset of right 

lower extremity complaints for many years after the January 2010 employment injury, despite her 

assertions that the symptomology was always there. He explained MRI scan findings were not 

locally interpretable as acute findings and that it was not unusual for a physician to interpret a 

spinal MRI scan differently from a radiologist. Dr. Schwartz noted that the 2019 surgery, which

Dr. Rice performed was to decompress the right lower extremity sensory radiculopathy. He noted 

that the new right-sided back and leg pain was first reported in 2019, nine years after the date of 

injury and six years after the left-sided surgery and, thus, could not be related to the prior injury, 

but was related to the progressive nature of lumbar degenerative disc disease. Dr. Schwartz also 

noted that appellant had intervening injuries in the form of an automobile accident with 

aggravation of symptoms in the back, as well as a significant period of time with an abnormal gait 

for treatment of an ankle fracture. He concluded, “Based on the medical records, findings of no 

right-sided significant symptoms for many years following the initial onset, and intervening injury, 

10 See D.W., Docket No. 20-1363 (issued September 14, 2021);Y.S., Docket No. 19-1572 (issued March 12, 2020).

11 See M.J., Docket No. 19-1287 (issued January 13, 2020); WilliamA. Archer, 55 ECAB 674 (2004).
6

I do not find any causal relationship between the 2010 incident and the need for right-sided 

surgery.”

Dr. Schwartz’report establishes that appellant’s accepted condition had resolved and, thus,

any disability related to her December 10, 2019 surgical procedure was not causally related to the 

accepted employment injury. The Board therefore finds that the special weight of the evidence is 

represented by the thorough and well-rationalized opinion of Dr. Schwartz, the IME selected to 

resolve the conflict in medical opinion.12

OWCP also received medical records from Dr. Grissom and Dr. Stinson dated January 22, 

2010 through June 12, 2013. These reports related appellant’s continued treatment for her lumbar 

conditions with injections. However, they offered no opinion as to her disability status during the 

time period alleged. 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 of no 

probative value.13 For this reason, the Board finds that these reports are insufficient to establish 

appellant’s burden of proof.14

As appellant has not submitted rationalized medical opinion evidence sufficient to establish 

employment-related disability during the claimed period due to her accepted condition, the Board 

finds that she 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 disability from 

work for the period December 1, 2019 through January 24, 2020 causally related to her accepted 

January 16, 2010 employment injury. 

12 M.L., Docket No. 20-1682 (issued June 24, 2021); R.P., Docket No. 19-0057 (issued May 16, 2019).

13 C.M., Docket No. 21-0004 (issued Ma y 24, 2021); R.J., Docket No. 19-0179 (issued Ma y 26, 2020); M.A.,

Docket No. 19-1119 (issued November 25, 2019); S.I., Docket No. 18-1582 (issued June20, 2019).

14 K.E., Docket No. 19-1922 (issued July 10, 2020).
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ORDER

IT IS HEREBY ORDERED THAT the October 25, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 13, 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