United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.B., Appellant

and

DEPARTMENT OF THE ARMY, RED RIVER 

ARMY DEPOT, Texarkana, TX, Employer

__________________________________________

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Docket No. 21-0182

Issued: July 9, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 19, 2020 appellant filed a timely appeal from a March 11, 2020 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.2

ISSUE

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

beginning October 31, 2016, causally related to his accepted October 19, 2015 employment injury.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the March 11, 2020 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

FACTUAL HISTORY

On October 21, 2015 appellant, then a 33-year-old heavy mobile equipment mechanic, 

filed a traumatic injury claim (Form CA-1) alleging that he strained his back when removing the 

coil spring from a heavy vehicle while in the performance of duty. OWCP accepted the claim for 

a sprain of the ligaments of the lumbar spine.

In work capacity evaluations (Form OWCP-5c) dated April through October 2016,

Dr. Christopher Mann, an osteopath specializing in sports medicine, found that appellant was 

unable to perform his regular work duties, but could work 8 to 10 hours per day with restrictions

that included walking and standing for 1 to 4 hours each day varying as needed, and lifting, 

pushing, and pulling up to 10 pounds for 1 to 4 hours per day.

In a letter dated October 5, 2016, the employing establishment informed OWCP that 

appellant had “fulfilled his tenure and due to our lack of workload will not be extended.” It 

submitted a notification of personnel action Standard Form (SF)-50 indicating that, effective 

May 29, 2016, his term appointment had been extended not to exceed October 30, 2016.

On October 25, 2016 Dr. Mann indicated that appellant’s herniated discs at L4-5 and L5-

S1 had caused nerve root impingement and degenerative changes. He opined that appellant was 

permanently disabled from his usual employment as he was unable to “lift heavy weights and 

perform the type of heavy mechanic work required for this position.”

On October 26, 2016 appellant filed a claim for compensation (Form CA-7) claiming 

disability from work from October 31 to November 15, 2016. The employing establishment 

advised that he had been performing modified employment until his physician found that he should 

not work. It noted that it had not extended appellant’s term appointment.

The employing establishment, on October 26, 2016, informed OWCP that appellant had 

been hired on a term appointment not to exceed October 30, 2016, and that his term was not 

extended as the workload had decreased. It indicated that it had accommodated all of his 

restrictions until October 30, 2016, when he was “non-extended due to lack of workload and not 

due to his injury nor his inability to work.” 

In a development letter dated November 3, 2016, OWCP requested that appellant submit 

additional evidence in support of his claim for wage-loss compensation, including a report from 

his physician explaining how his condition had worsened such that he could no longer perform the 

duties of his position.

In a Form OWCP-5c dated November 17, 2016, Dr. Mann again found that appellant could 

work 8 to 10 hours per day with the same restrictions.

By decision dated February 28, 2017, OWCP denied appellant’s claim for disability from 

work for the period October 31 through November 15, 2016. It found that the employing 

establishment had accommodated him in a light-duty position until the end of his term 

appointment, when it did not extend his appointment due to a reduced workload. OWCP

concluded, therefore, that the medical evidence neither supported that appellant sustained material 

changes to his accepted employment-related condition, nor did it support a change to his light-duty 
3

job assignment. On July 26, 2017 Dr. Mann requested that OWCP expand the accepted conditions 

to include lumbar spondylosis and lumbar intervertebral disc disorder with radiculopathy. He 

advised that identifying the severity of the injury would improve appellant’s physical condition 

and give him “an opportunity to return to work.”

In a work capacity evaluation (Form OWCP-5c) dated October 31, 2017, Dr. Mann

diagnosed lumbar intervertebral disc degenerative disease and radiculopathy. He advised that 

appellant was unable to perform his usual position, but could work with the same restrictions.

Appellant submitted numerous reports from a nurse practitioner from 2017 and 2018. 

On August 24, 2018 OWCP expanded acceptance of the claim to include lumbar 

intervertebral disc disorders with radiculopathy and lumbar spondylosis.

In a report dated December 10, 2018, Dr. Francisco J. Batlle, a neurosurgery specialist, 

discussed appellant’s history of an October 19, 2015 employment injury.3 He diagnosed lumbar 

radiculitis, a herniated nucleus pulposus at L5-S1, lumbar mechanical/discogenic pain syndrome 

at L5-S1, and lumbago. Dr. Batlle recommended weight loss prior to any surgical intervention.

In a report dated March 18, 2019, Dr. Mann related that appellant had sustained a low back 

injury at work. He noted that he had been released to resume work with restrictions in April 2016,

but the employing establishment had not accommodated him. Dr. Mann advised that appellant 

also had a work-related left knee injury. He asserted that appellant “must be accommodated to a 

work position within his given restrictions or provided workers’ compensation for the time he is 

disabled....”

On December 18, 2019 appellant filed a Form CA-7 claiming disability from work for the 

period October 31, 2016 to November 15, 2019.4

Dr. Mann continued to submit OWCP-5c forms in 2018 and 2019, finding that appellant 

could work with the same restrictions.5

On January 29, 2020 the employing establishment challenged appellant’s claim for 

disability for the period October 31, 2016 to November 15, 2019. It advised that his term 

appointment had ended on October 30, 2016 and had not been extended due to a lack of work 

rather than any inability to accommodate his restrictions.

In a development letter dated February 14, 2020, OWCP requested that appellant submit a 

comprehensive medical report explaining how his condition worsened such that he was unable to 

 

3 On February 8, 2019 Dr. Melvin R. Manning, a Board-certified physiatrist, diagnosed lumbar disc syndrome and 

recommended epidural steroid injections.

4 On December 18, 2019 the employing establishment advised that the date of injury on the CA-7 forms should 

have been August 9, 2016, assigned OWCP File No. xxxxxx179. It noted that he had two injuries and that the other 

date had been used on the form.

5 On January 28, 2020 Dr. Patrick K. Stanton, an osteopath, provided pain management. On February 20 2020 he 

indicated that appellant should be excused from work that date due to a procedure.
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perform the duties of his position on October 31, 2016. It noted that the employing establishment 

advised that limited-duty employment was available during the claimed period. OWCP afforded 

appellant 30 days to submit the requested evidence. 

By decision dated March 11, 2020, OWCP denied appellant’s claim for wage-loss 

compensation from October 31 through November 15, 2016.

LEGAL PRECEDENT

An employee seeking benefits under FECA6has 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 for work, and the duration of that disability, are medical issues that 

must be proved by a preponderance of probative and reliable medical opinion evidence.9

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.10 Disability is, thus, not 

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

wages.11 An employee who has a physical impairment causally related to his or her federal 

employment, but who nonetheless has the capacity to earn the wages that he or she was receiving 

at the time of injury, has no disability as that term is used in FECA.12

The Board has held that when a claimant stops work for reasons unrelated to the accepted 

employment injury, there is no disability within the meaning of FECA.13 

OWCP’s procedures provide that a recurrence of disability does not include a work 

stoppage due to the termination of a temporary appointment if the claimant was a temporary 

employee at the time of injury.

14

 

6 Supra note 1.

7 See 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).

8 M.C., Docket No. 18-0919 (issued October 18, 2018).

9 See K.C., Docket No. 17-1612 (issued October 16, 2018).

10 20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

11 See L.W., Docket No. 17-1685 (issued October 9, 2018).

12 See M.W., Docket No. 20-0722 (issued April 26, 2021); D.G., Docket No. 18-0597 (issued October 3, 2018).

13 See O.S., Docket No. 16-1771 (issued January 23, 2018); John W. Normand, 39 ECAB 1378 (1988).

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3c(1) (June 2013).
5

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish disability from 

work beginning October 31, 2016 causally related to his accepted October 19, 2015 employment 

injury.

Following his employment injury, in OWCP-5c forms dated April through October 2016,

Dr. Mann found that appellant could work 8 to 10 hours per day with restrictions of walking and 

standing for 1 to 4 hours each day and lifting, pushing, and pulling up to 10 pounds for 1 to 4 hours 

per day. Appellant worked in a limited-duty position within his restrictions until his term position 

expired on October 30, 2016. The employing establishment advised that it had not extended his 

position due to decreased work rather than to his employment injury. 

As appellant was a temporary employee, he was not entitled to disability compensation at 

the time his appointment ended, irrespective of whether he was performing modified duty.15 As 

noted, the termination of a temporary appointment, when the employee was a temporary employee 

at the time of injury, does not in itself establish a recurrence of disability.16 Appellant must,

therefore, provide medical evidence establishing that he was disabled from his limited-duty 

position beginning October 30, 2016.

In a report dated October 25, 2016, Dr. Mann found that appellant had nerve root 

impingement and degenerative changes due to his herniated discs at L4-5 and L5-S1. He asserted 

that he was totally and permanently disabled from his regular employment as he was unable to lift 

heavy weights. The issue, however, is whether appellant could perform the duties of his modified 

position, effective October 30, 2016, and not his ability to perform the duties of his date-of-injury 

position. As Dr. Mann did not address whether he could perform his modified-duty position during 

the period claimed, his opinion is insufficient to establish appellant’s claim.17

On March 18, 2019 Dr. Mann advised that appellant could work with restrictions after 

April 2016, but that the employing establishment had not accommodated his limitations. He noted 

that he also had an employment-related left knee condition. As discussed, however, appellant was 

a temporary employee at the time of his employment injury and, thus, the termination of his 

temporary appointment is insufficient to show that he is entitled to wage-loss compensation.18

In OWCP-5c forms dated November 17, 2016 through September 12, 2019, Dr. Mann 

again found that appellant could work 8 to 10 hours per day with restrictions of walking and 

standing for 1 to 4 hours each day and lifting, pushing, and pulling up to 10 pounds for 1 to 4 hours 

per day. As these were the restrictions within which appellant was working at the time his 

 

15 O.S., supra note 13; S.E., Docket No. 15-0888 (issued September 14, 2016).

16 Id.; see also Shelly A. Paolinetti, 52 ECAB 291 (2001).

17 See M.T., Docket No. 17-1240 (issued November 14, 2017).

18 S.E., supra note 15.
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temporary appointment ended, these reports are insufficient to show disability from the modifiedduty work he was performing at the expiration of his employment contract.19

On December 10, 2018 Dr. Batlle provided a history of appellant’s October 19, 2015 

employment injury and diagnosed lumbar radiculitis, a herniated nucleus pulposus at L5-S1, 

lumbar mechanical/discogenic pain syndrome at L5-S1, and lumbago. As Dr. Batlle failed to 

address the relevant issue of whether appellant had employment-related disability after October 30, 

2016, his report is insufficient to meet his burden of proof.20 

Appellant submitted reports from a nurse practitioner; however, these reports do not 

constitute competent medical evidence because nurse practitioners are not considered 

“physician[s]” as defined under FECA.21 Consequently, the medical findings and/or opinions of 

a nurse practitioner will not suffice for purposes of establishing entitlement to compensation 

benefits.22

As appellant has not submitted any rationalized medical evidence to establish that he was 

disabled from work commencing October 31, 2016 causally related to his accepted October 19, 

2015 employment injury, he has not met his burden of proof.

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 and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish disability from 

work beginning October 31, 2016 causally related to his accepted October 19, 2015 employment 

injury.

 

19 Id.

20 K.B., Docket No. 19-0155 (issued January 10, 2020); D.B., Docket No. 19-0481 (issued August 20, 2019).

21 See R.C., Docket No. 19-0376 (issued July 15, 2019); S.J., Docket No. 17-0783, n.2 (issued April 9, 2018) (a 

nurse practitioner is not a physician under FECA). A report from a nurse practitioner will be considered medical 

evidence only if countersigned by a qualified physician. Section 8101(2) of FECA provides that the term physician 

“includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic 

practitioners within the scope of their practice as defined by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See 

also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013);

R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical therapists are not considered 

physicians under FECA); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician 

assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).

22 Id.
7

ORDER

IT IS HEREBY ORDERED THAT the March 11, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 9, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board