United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.J., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

TIBOR RUBIN VA MEDICAL CENTER, 

Long Beach, CA, Employer

__________________________________________

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Docket No. 23-0270

Issued: September 19, 2023

Appearances: Case Submitted on the Record

Lisa Varughese, 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 December 12, 2022 appellant, through counsel, filed a timely appeal from a June 16, 

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 June 16, 2022 decision, appellant submitted additional evidence to OWCP. 

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

ISSUE

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

for the period September 14, 2020 through March 13, 2021 causally related to her accepted 

February 5, 2020 employment injury. 

FACTUAL HISTORY

On February 10, 2020 appellant, then a 48-year-old registered nurse, filed a traumatic 

injury claim (Form CA-1) alleging that on February 5, 2020 she developed back pain radiating 

down her right hip when she was assisting patients, repetitively turning and sitting without taking 

a break, while in the performance of duty. OWCP accepted the claim for strain of the muscle, 

fascia, and tendon of the lower back. Appellant stopped work on February 6, 2020 and returned 

on March 18, 2020, when she accepted a modified position with the employing establishment in 

the preoperative clinic working eight hours per day with Saturday and Sunday as her scheduled 

days off. The duties of the position were: entering information into the computer, calling patients 

with surgery dates, calling provider teams to discuss surgical plans, and attending required 

staff/team meetings. All duties could be performed in a sitting position. The physical requirements 

were: seated work only, office duties, limited walking to restroom and breaks only, and no 

lifting/pushing/pulling more than five pounds. Appellant accepted the position stating that she 

would perform duties at her desk within her provider’s restrictions, but working in the preoperative 

clinic performing patient care was outside of her restrictions. 

On July 24, 2020 OWCP referred appellant for a second opinion evaluation to determine 

the nature of her condition, the extent of disability, and whether she had residuals of the accepted 

February 5, 2020 employment injury. 

On August 4, 2020 Dr. Amandeep Bhalla, a Board-certified orthopedist, treated appellant 

for muscle strain in the low back region radiating to the right gluteal region, which began on 

February 5, 2020 while at work. He diagnosed chronic lumbar strain. In reports dated August 4 

and September 10, 2020, Dr. Bhalla diagnosed low back pain. He returned appellant to modifiedduty work on August 5, 2020 with restrictions of no lifting over 15 pounds and no repetitive 

bending at the waist. 

In a report dated August 19, 2020, Dr. G.B. Ha’Eri, an OWCP second opinion physician, 

Board-certified in orthopedic surgery, related that on February 5, 2020 appellant experienced 

radiating low back pain after repetitively turning back and forth when providing teaching and 

assessment to patients. He noted findings on examination of antalgic gait, tenderness on palpation 

of the lumbosacral region associated with paraspinal muscle spasm, and limited range of motion.

Dr. Ha’Eri diagnosed lumbar strain, lumbar discopathy with right lower radiculopathy due to fivemillimeter (mm) disc bulge at L5-S1. He opined that, as a result of the February 5, 2020

employment injury, appellant sustained lumbar strain and permanent aggravation of preexisting 

asymptomatic L5-S1 disc bulge, which resulted in lumbar discopathy, right back pain, and right 

lower extremity radiculopathy. Dr. Ha’Eri advised that her employment-related conditions had

not resolved and that she continued to have subjective complaints of lower back pain with radicular 

symptoms in the right lower extremity supported by abnormal objective findings of paraspinal 

muscle spasm and five-mm disc bulge at L5-S1 pursuant to the magnetic resonance imaging (MRI)

scan study. He noted that the prognosis was guarded, and that appellant required further medical 

treatment related to her work injury. Dr. Ha’Eri advised that she was not capable of returning to 
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her date-of-injury job, but could return to work in a sedentary position. In an accompanying work 

capacity evaluation (Form OWCP-5c), he indicated that appellant was capable of returning to work 

in a sedentary position for eight hours a day. 

On October 13, 2020 appellant filed claims for compensation (Form CA-7) for disability 

from work for the period beginning September 14, 2020. 

By decision dated October 20, 2020, OWCP expanded the acceptance of appellant’s claim 

to include radiculopathy of the lumbar region.

By decision dated October 26, 2020, OWCP denied appellant’s claims for wage-loss 

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

from work commencing April 24, 2020 causally related to the accepted February 5, 2020 

employment injury. 

In an October 26, 2020 development letter, OWCP informed appellant of the deficiencies 

of her claims for compensation beginning September 14, 2020. It advised her of the type of 

medical evidence needed and afforded her 30 days to respond.

On October 29, 2020 appellant through counsel, requested that the acceptance of her claim 

be expanded to include major depressive disorder, generalized anxiety disorder, and pain disorder. 

In support thereof, she submitted a July 29, 2020 report from Dr. Martin A. Magy, a clinical 

psychologist, who noted that appellant’s psychological symptoms began in September 2019 as a 

consequence of additional duties being assigned to her at work and alleged harassment from a 

supervisor. Appellant indicated that her symptoms worsened after she injured her back at work 

and had trouble with management accommodating her restrictions. Dr. Magy diagnosed workrelated depression and anxiety. On August 5, 2020 he indicated that appellant was unable to 

resume her regular work duties because of her psychological symptoms. On August 24, 2020

Dr. Magy noted that she was psychologically able to return to work effective September 14, 2020 

pending receipt of a light-duty assignment accommodating her restrictions.

On November 23, 2020Dr. Magy opined that appellant’s anxiety and depression prevented 

her from performing the March 18, 2020 light-duty offer and was the cause of her disability from 

work for the periods beginning April 24, 2020 and continuing. He indicated that she experienced 

stress due to physical pain of her employment-related injuries and as her symptoms increased her 

anxiety levels rose causing her to feel overwhelmed and anxious. 

On March 4, 2021 OWCP referred appellant for a second opinion evaluation to determine 

whether she developed an emotional condition as a result of the accepted February 5, 2020 

employment injury. 

In a report dated April 5, 2021, Dr. Jesse Carr, a Board-certified psychiatrist serving as the 

second opinion physician, discussed appellant’s factual and medical history and detailed the 

findings of his physical examination. He diagnosed major depressive disorder, single episode,

mild and generalized anxiety disorder. Dr. Carr noted that appellant had no preexisting psychiatric 

conditions prior to her physical injury and opined that the stress on the job, the alleged harassment 

from her supervisor, and the lack of work accommodations caused major depressive disorder and

generalized anxiety disorder. He indicated that she returned to light-duty work on March 15, 2021 

under a new supervisor and was functioning adequately with only minimal symptoms of 
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depression and resolution of anxiety. Dr. Carr noted that appellant was capable of returning to her 

preinjury job. In a work capacity evaluation for psychiatric/psychological conditions (Form 

OWCP-5a) he returned her to full-time work in her usual position.

On July 19, 2021 OWCP requested clarification from Dr. Carr regarding whether the 

February 5, 2020 employment injury caused major depressive disorder and generalized anxiety 

disorder and whether appellant was able to perform the November 24, 2020 job offer from 

September 14, 2020 through March 13, 2021. 

In a report dated July 28, 2021, Dr. Carr opined that the employment injury, alleged 

harassment by appellant’s supervisor, lack of accommodations, and job stress caused major 

depressive disorder and generalized anxiety disorder. He noted that appellant was capable of 

performing the duties in the November 24, 2020 job offer from September 14, 2020 through 

March 13, 2021. Dr. Carr advised that she reported that her symptoms began to resolve around 

August 2020 and that she was ready to return to light-duty work. 

By decision dated August 2, 2021, OWCP denied appellant’s claims for wage-loss 

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

from work for the period September 14, 2020 through March 13, 2021 causally related to the 

accepted February 5, 2020 employment injury. 

By decision dated August 2, 2021, OWCP expanded the acceptance of appellant’s claim to 

include major depressive disorder, single episode, mild and generalized anxiety disorder.

On September 10, 2021 Dr. Moshe Wilker, a Board-certified orthopedist, treated appellant 

for low back pain radiating down the legs that began February 2020 while performing repetitive 

twisting, turning, pulling, and lifting at work. He diagnosed lumbar radiculitis and recommended 

an L5-S1 intra-articular injection. Dr. Wilker returned appellant to work with restrictions of no 

bending, twisting, pushing, pulling, no lifting over 20 pounds, and no prolonged standing or 

walking over 20 minutes.

On October 11, 2021 Dr. Wilker addressed appellant’s disability status beginning 

March 19, 2020 and the light-duty job offer of March 18, 2020. He indicated that on February 5, 

2020 she was conducting preoperative teaching and assessment of patients and saw eight patients 

back to back, which required repetitive twisting and turning. Appellant noted that by the end of 

the workday she experienced low back pain radiating into her right hip. Dr. Wilker indicated that 

the pain caused by the employment injury led to her development of anxiety and depression. He 

noted that appellant’s symptoms persisted and that she continued to suffer from her accepted 

lumbar conditions. Dr. Wilker opined, to a reasonable degree of medical certainty, that she was 

totally disabled from work from September 14, 2020 through March 14, 2021. He indicated that 

performing work in any capacity during this period would further aggravate appellant’s accepted 

lumbar conditions, which were still healing. With regard to the March 18, 2020 limited-duty job 

offer, Dr. Wilker found it not suitable for her at the time the offer was made because it was outside 

her permanent work restrictions. He noted that the job offer required excessive walking outside 

of appellant’s restrictions in order to drop off completed files in different departments and pick up 

files from the facsimile (fax) and copy machines, walk from different buildings to conferences, 

work in the preoperative clinic, which required her to do repetitive turning, bending, and twisting 

at the waist, and push and pull a metal cart weighing greater than five pounds. Dr. Wilker opined 

that the symptoms of her accepted lumbar conditions rendered her physically and psychologically
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disabled and incapable of performing the duties of the limited-duty job offer of March 18, 2020 

because they were outside of her physical and psychological limits. He further opined with 

reasonable medical certainty that appellant was totally disabled and unable to work beginning 

March 19, 2020 through March 14, 2021. 

In a report dated October 21, 2021, Dr. Magy related that appellant was temporarily totally 

disabled from work from March 19 through November 1, 2020, due to the severity of her 

employment-related conditions. He noted that her conditions were ongoing and did not lessen in 

severity during the duration of the period beginning March 18, 2020. Dr. Magy indicated that the 

physical demands of the March 18, 2020 light-duty job offer violated the restrictions provided by 

appellant’s treating physician for generalized anxiety disorder and major depressive disorder.

On October 25, 2021 appellant, through counsel, requested reconsideration.

By decision dated January 18, 2022, OWCP vacated the October 26, 2020 decision. It 

found that the evidence was sufficient to support that appellant was incapable of workin g during 

the period April 24 through August 4, 2020 and granted her claim for wage loss for total disability 

for this period.

On March 18, 2022 appellant through counsel, requested reconsideration. 

By decision dated June 16, 2022, OWCP denied modification of the August 2, 2021

decision regarding appellant’s claims for wage-loss compensation for disability from work for the 

period September 14, 2020 through March 13, 2021. 

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. 4 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.5 Whether a particular injury causes an 

employee to become disabled from work, and the duration of that disability, are medical issues 

which must be proven by the preponderance of the reliable, probative, and substantial medical 

evidence.6

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.7 Disability is, thus, not 

4

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).

5

Id.; William A. Archer, 55 ECAB 674 (2004).

6

20 C.F.R. § 10.5(f); D.N.,Docket No. 19-1344 (issued November 6, 2020); B.O.,Docket No. 19-0392 (issued 

July 12, 2019); N.M.,Docket No. 18-0939 (issued December 6, 2018); Fereidoon Kharabi, 52 ECAB 291, 

292 (2001).

7

Id.
6

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

wages. 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

Causal relationship is a medical issue and the medical evidence required to establish causal 

relationship is rationalized medical evidence.9 Rationalized medical evidence is medical evidence 

which includes a physician’s detailed medical opinion on the issue of whether there is a causal 

relationship between the claimant’s claimed disability and the accepted employment injury. 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 diagnosed condition and the claimed period 

of disability.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

Section 8123(a) of FECA provides that, if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or impartial medical examiner (IME)) who 

shall make an examination.12 This is called a referee examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.13 When there exist opposing medical reports of virtually equal weight and rationale and the 

case is referred to an IME for the purpose of resolving the conflict, the opinion of such specialist, 

if sufficiently well rationalized and based upon a proper factual background, must be given special 

weight.14

ANALYSIS

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

8

Id.

9 D.N., supra note 6; J.M., Docket No. 19-0478 (issued August 9, 2019).

10 D.N., id.; R.H., Docket No. 18-1382 (issued February 14, 2019).

11 M.A., Docket No. 20-0033 (issued May 11, 2020);A.W.,Docket No. 18-0589 (issued May 14, 2019);Fereidoon 

Kharabi, supra note 6.

12 5 U.S.C. § 8123(a); K.C.,Docket No. 19-0137 (issued May 29, 2020); M.W.,Docket No. 19-1347 (issued 

December 5, 2019); C.T.,Docket No. 19-0508 (issued September 5, 2019);R.S.,Docket No. 10-1704 (issued May13, 

2011); S.T., Docket No. 08-1675 (issued May 4, 2009).

13 20 C.F.R. § 10.321.

14 K.C., supra note 12; M.W., supra note 12; C.T., supra note 12; Darlene R. Kennedy, 57 ECAB 414 (2006);

Gloria J. Godfrey, 52 ECAB 486 (2001); James P. Roberts, 31 ECAB 1010 (1980).
7

Dr. Wilker provided a report dated October 11, 2021, finding that appellant was totally 

disabled from work from September 14, 2020 through March 14, 2021. He indicated that she was 

unable to perform work in any capacity during this period as it would further aggravate her 

accepted lumbar conditions, which were still healing. Dr. Wilker opined that appellant was 

physically and psychologically incapable of performing the duties of the limited-duty job offer of 

March 18, 2020 because they were outside of her physical and psychological limits. He opined 

that the symptoms of her accepted lumbar conditions rendered her disabled from work for the 

periods March 19, 2020 through March 14, 2021. On November 23, 2020 Dr. Magy opined that 

appellant’s anxiety and depression were the cause of her inability to perform the March 18, 2020 

light-duty job offer and her disability from work for the period beginning April 24, 2020 and 

continuing. He indicated that she experienced stress due to physical pain of her employmentrelated injuries and as her symptoms increased her anxiety levels rose causing her to feel 

overwhelmed and anxious. 

Dr. Ha’Eri, an OWCP second opinion physician, opined on August 19, 2020 that appellant 

was not capable of returning to her date-of-injury job, but could return to work in a sedentary 

position for eight hours a day. On July 28, 2021 Dr. Carr, another OWCP second opinion 

physician, opined that she was capable of performing the duties in the November 24, 2020 job 

offer from September 14, 2020 through March 13, 2021. He advised that appellant reported her 

symptoms began to resolve around August 2020 and she was ready to return to light-duty work. 

The Board finds that there is an unresolved conflict of medical opinion between Drs. Magy, 

and Wilker, for appellant, and Drs. Ha’Eri and Carr, for the government, regarding the extent of 

appellant’s disability from work for the period September 14, 2020 through March 13, 2021.

OWCP’s regulations provide that, if a conflict exists between the medical opinion of the 

employee’s physician and the medical opinion of either a second opinion physician or an OWCP 

medical adviser, OWCP shall appoint a third physician to make an examination. 15 The Board will, 

thus, remand the case to OWCP for referral to an IME regarding whether appellant has met her

burden of proof to establish disability from work for the period September 14, 2020 through 

March 13, 2021.

16

 Following this and any such further development as may be deemed necessary, 

OWCP shall issue a de novo decision.

CONCLUSION

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

15 5 U.S.C. § 8123(a); K.C., id.; M.W., id.

16 Id.
8

ORDER

IT IS HEREBY ORDERED THAT the June 16, 2022 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: September 19, 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