United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Richmond, CA, Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 07-2117
Issued: March 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 16, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated February 23, 2007. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was totally
disabled for the periods July 11 through 29 and August 21 through September 20, 2005 causally
related to her accepted employment injuries.
FACTUAL HISTORY
On April 19, 2005 appellant, then a 45-year-old technical systems technician,1 filed a
traumatic injury claim alleging that she injured her left side, back and neck when she slipped on
ice near an elevator that day. In an April 21, 2005 report, Dr. G. Queeley, an internist, noted her
1

The job duties consisted of answering the telephone and entering data into a computer.

complaint that she was unable to work secondary to pain, primarily in the neck, low back and left
upper extremity. He diagnosed cervical and lumbosacral strains and advised that she could
return to full duty on April 22, 2005. April 26, 2005 x-rays of the cervical and lumbosacral
spines demonstrated spondylotic changes with no acute abnormality. Shoulder and elbow x-rays
were normal. In a May 10, 2005 report, Dr. Kevin Maher, Board-certified in family medicine,
advised that appellant could return to work on May 13, 2005 with restrictions that she not lift
above two pounds with no repetitive hand motions. On May 13, 2005 he advised that she could
not use a keyboard or mouse. On May 16, 2005 Dr. Maher diagnosed cervical and lumbosacral
strains. He submitted additional reports in which he provided the same diagnoses and
restrictions.
Following the April 19, 2005 injury, appellant worked a total of 10.25 hours through
May 13, 2005, then stopped work and received continuation of pay through June 5, 2005. She
did not return to work. On June 9, 2005 the Office accepted that appellant sustained
employment-related cervical and lumbar strains. A June 14, 2005 lumbar spine magnetic
resonance imaging (MRI) scan demonstrated L3-S1 degenerative spondylosis with bilateral
neural foraminal narrowing. A June 15, 2005 left shoulder MRI scan demonstrated an intact
rotator cuff with a high intensity signal which could represent tendinosis or a partial tear.
On July 7, 2005 appellant submitted a Form CA-7, claim for compensation, for the period
July 11 through 29, 2005. By letter dated July 22, 2005, the Office advised her that she needed
to submit medical evidence to support her claim for temporary total disability.
In a July 18, 2006 report, Dr. James D. Fontaine, a Board-certified physiatrist, described
the employment injury and appellant’s report that she had worked modified duty for several
weeks but stopped in May. Appellant complained of tingling in the lateral thighs and calves and
left scapular pain and numbness and tingling in the second through fourth digits of her left hand.
Dr. Fontaine observed her jump off the examination table and move about the examination room
quite briskly. Sensory examination in the C5-8 and L3-S2 dermatomes was normal and motor
examination of the shoulders, elbows, wrists, fingers, hips, knees and ankles was 5/5. Cervical
flexion, extension and right rotation were full with pain. Left rotation was 80 percent of normal
with arm pain. Spurling maneuver was positive on the left with reproduction of left upper
extremity paresthesias. Dr. Fontaine noted his review of the lumbar and shoulder MRI scans and
noted cervical spine x-ray findings of mild neural foraminal narrowing bilaterally at C5-6 and
moderate disc disease at C4-7. He diagnosed left C7 radiculopathy, resolving lumbosacral strain,
and mild foraminal stenosis at L5-S1 and ordered a cervical MRI scan. A July 20, 2005 cervical
spine MRI scan demonstrated multilevel disc osteophyte complexes most prominent at C4-5 with
mild canal stenosis and mild flattening of the ventral cervical spinal cord, a small disc protrusion
at C3-4, no evidence of compressive myelomalacia, and multilevel neuroforaminal stenosis most
prominent at left C4-5.
In a July 25, 2005 report, Dr. Fontaine noted the cervical MRI scan findings and
diagnosed cervical spondylosis with stenosis and left C5-6 radicular pain. He recommended an
epidural corticosteroid injection. By report dated July 26, 2005, Dr. Maher advised that
appellant could perform modified duty with restrictions of no reaching above the shoulder,
gripping or grasping, occasional use of the right hand, no use of the left hand, no repetitive
motion and a two-pound lifting restriction.

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On July 27, 2005 the employing establishment acknowledged that it could not
accommodate appellant’s work restrictions. In a July 28, 2005 report, Dr. Maher described
appellant’s treatment and recommended that her care be transferred to Dr. Fontaine. By letter
dated August 9, 2005, the Office again explained that appellant needed to submit medical
evidence addressing whether the spondylotic changes found on the cervical spine MRI scan were
medically connected to the April 19, 2005 employment injury. On August 12, 2005 Dr. Fontaine
performed a C4-5 and C5-6 epidural injection. On August 19, 2005 Dr. Maher advised that the
questions raised in the August 9, 2005 letter would best be addressed by Dr. Fontaine.
In August 25, 2005 reports, Dr. Fontaine diagnosed cervical spondylosis with stenosis
and left C5-6 radicular pain, advising that it was probable that the pain was related to
degenerative changes, mainly at C4-5. He took appellant off work for one month. By letter
dated August 29, 2005, the Office requested that Dr. Fontaine address whether appellant’s
diagnosed cervical condition was caused or aggravated by the April 19, 2005 employment injury
and provide an opinion regarding a return to work and what restrictions would be required. On
August 30, 2005 appellant filed a claim for compensation for the period August 21 through
September 20, 2005.
On September 22, 2005 Dr. Fontaine noted appellant’s report that she continued to
experience periscapular pain but that her arm pain had resolved since the epidural injection. He
diagnosed cervical strain and cervical spondylosis with stenosis. Dr. Fontaine advised appellant
that she may have been over-focusing on what were essentially soft tissue symptoms more than
five months after a fairly mild fall. He recommended that she return to modified duty and try to
resume her normal activities. Dr. Fontaine opined that appellant’s cervical degenerative changes
were not caused by but were aggravated by the April 19, 2005 employment injury and that she
had a separate cervical strain. He advised that she could return to modified duty on
September 23, 2005 with five-minute breaks every half hour during periods of repetitive motion
of the upper extremities. Appellant returned to work on September 26, 2005. She came under
the care of Dr. Mechel M. Henry, Board-certified in physiatry. On October 24, 2005 Dr. Henry
diagnosed left cervical radiculopathy, muscle spasms, left carpal tunnel syndrome, anxiety,
depression and chronic pain.
By decision dated November 23, 2005, the Office denied appellant’s claim for wage-loss
compensation for the periods July 11 through 29 and August 21 through September 20, 2005. It
found that the medical evidence did not establish that the restrictions provided were caused by
the accepted conditions.2
On November 21, 2006 appellant requested reconsideration of the November 23, 2005
decision. She submitted evidence previously of record, and a September 29, 2006 report from

2

Appellant received wage-loss compensation for 22.5 hours from October 19, 2005 to February 7, 2006, and on
August 8, 2006 the Office accepted that she sustained a recurrence of disability on February 27, 2006. She received
wage-loss compensation for the period February 27 through March 2, 2006 and for the period October 25 through
November 6, 2006.

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Dr. Maher, who advised that the restrictions he provided on April 19, 21 and 26, 2005 of no
repetitive hand work were in relation to her cervical strain.3
In a decision dated February 23, 2007, the Office denied modification of the
November 23, 2005 decision.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act4 the term “disability” is defined as
incapacity, because of employment injury, to earn the wages that the employee was receiving at
the time of injury.5 Disability is thus not synonymous with physical impairment which may or
may not result in an incapacity to earn the wages. An employee who has a physical impairment
causally related to a federal employment injury but who nonetheless has the capacity to earn
wages he or she was receiving at the time of injury has no disability as that term is used in the
Act,6 and whether a particular injury causes an employee disability for employment is a medical
issue which must be resolved by competent medical evidence.7 Whether a particular injury
causes an employee to be disabled for work and the duration of that disability, are medical issues
that must be proved by a preponderance of the reliable, probative and substantial medical
evidence.8
The Board will not require the Office 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.9 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.10

3

Appellant also submitted a December 1, 2005 electromyographic (EMG) study consistent with C6
radiculopathy, and on December 13, 2005 and February 7, and March 7, 2006, she underwent cervical spine epidural
injections. Dr. Henry, Dr. Lee Gorton, Dr. David Wren and Dr. Alisha Wren submitted progress reports. An
August 2, 2006 MRI scan of the lumbosacral spine demonstrated mild spondyltyic change with no disc herniation.
An August 24, 2006 lower extremity EMG was normal. On October 25, 2006 appellant underwent a four-level
lumbar discogram and on October 30, 2006 a lumbar epidural patch was placed. On January 2, 2007 she underwent
a left sacroiliac joint arthrogram with injection.
4

5 U.S.C. §§ 8101-8193.

5

See Prince E. Wallace, 52 ECAB 357 (2001).

6

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

7

Donald E. Ewals, 51 ECAB 428 (2000).

8

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

9

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

10

Albert D. Brown, 52 ECAB 152 (2000).

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ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she was
totally disabled for the periods July 11 through 29 and August 21 through September 20, 2005
causally related to her accepted cervical and lumbosacral strains arising from her April 19, 2005
injury. The issue of whether a claimant’s disability is related to an accepted condition is a
medical question which must be established by a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disability is causally related to
employment factors and supports that conclusion with sound medical reasoning.11
The medical evidence contemporaneous with the periods of claimed disability includes
Dr. Maher’s reports beginning May 10, 2005. He opined that appellant could return to modified
duty but could not use her hands. In a July 28, 2005 report, Dr. Maher transferred her care to
Dr. Fontaine. On August 19, 2005 he advised that Dr. Fontaine should respond to the Office’s
questions regarding the cause of appellant’s disability.
While Dr. Maher opined on
September 29, 2006 that the restrictions provided on April 19, 21 and 26, 2005 were due to
appellant’s cervical strain, the Board finds his opinion insufficient to establish that appellant was
totally disabled from work. He did not explain how or why appellant’s cervical strain prevented
her from using her hands or support that she was totally disabled due to residuals of her accepted
condition. A July 20, 2005 cervical spine MRI scan demonstrated multilevel degenerative
changes. Medical conclusions unsupported by rationale are of diminished probative value and
are insufficient to establish causal relationship.12 Dr. Maher’s reports are therefore insufficient
to establish that appellant was totally disabled from work for the periods July 11 through 29 and
August 21 through September 20, 2005.
Similarly, Dr. Fontaine’s reports are insufficient. In his July 18 and 25, 2005 reports, he
merely diagnosed resolving lumbosacral strain, cervical spondylosis and left C5-6 radicular pain.
These reports are of diminished probative value as they provide no opinion regarding the periods
of disability at issue. On August 25, 2005 Dr. Fontaine took appellant off work for one month,
explaining that she was having pain related to degenerative changes, not due to residuals of the
accepted cervical or lumbar strains. A diagnosis of “pain” does not constitute the basis for the
payment of compensation.13 Although Dr. Fontaine advised on September 22, 2005 that the
April 19, 2005 employment injury aggravated appellant’s underlying condition and that she had
a separate cervical strain, he did not provide an opinion addressing her ability to work for the
periods in question. He advised that she could return to work with minimal restrictions on
September 23, 2005.
The Board finds that, as there is no rationalized medical evidence contemporaneous with
the periods of claimed disability, appellant did not meet her burden of proof. Neither Dr. Maher
nor Dr. Fontaine provided sufficient rationale to support that appellant was disabled from work

11

Sandra D. Pruitt, 57 ECAB ____ (Docket No. 05-739, issued October 12, 2005).

12

Albert D. Brown, supra note 10.

13

Robert Broome, 55 ECAB 339 (2004).

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for the periods July 11 through 29 and August 21 through September 20, 2005 due to residuals of
her accepted strains.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she was
entitled to wage-loss compensation for the periods July 11 through 29 and August 21 through
September 20, 2005 causally related to her accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 23, 2007 be affirmed.
Issued: March 5, 2008
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1822
Issued: January 27, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 19, 2014 appellant, through his attorney, filed a timely appeal from a July 29,
2014 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.
ISSUE
The issue is whether appellant has established that he is entitled to disability
compensation for the period July 15 to November 30, 2011 due to his accepted condition or other
conditions arising from his accepted injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 16, 2009 appellant, then a 47-year-old carpenter, sustained lower back,
right shoulder, right leg and left hand injuries when he slipped on water and fell down stairs.
OWCP accepted the claim on July 6, 2010 for contusion and sprain of left hand, left shoulder
and upper arm sprain acromioclavicular, contusion of right hip and thigh, right knee, leg, neck,
and lumbar sprain. Appellant stopped work on November 16, 2009 and received wage-loss
compensation through July 14, 2011.
This case has previously been before the Board. In an October 29, 2013 decision, the
Board affirmed OWCP’s January 7, 2013 merit decision finding that appellant failed to establish
that he was disabled for the period July 15 to November 30, 2011.2 The Board found that the
opinion of Dr. Andrew J. Gelman, Board-certified in orthopedic surgery, was entitled to special
weight as the impartial medical examiner and established that appellant was not entitled to
disability compensation from July 15 to November 30, 2011 because his November 16, 2009
injuries had resolved. The findings and facts as set forth in the prior decisions are hereby
incorporated by reference.
On May 1, 2014 appellant, through counsel, requested reconsideration. Counsel
submitted a new report from Dr. Gerald Dworkin, Board-certified in physical medicine and
rehabilitation, in support of appellant’s claim.
In the April 24, 2014 medical report, Dr. Dworkin reported that a December 16, 2009
electromyogram (EMG) and nerve conduction velocity study revealed right L5-S1 lumbosacral
radiculopathy. A December 20, 2010 magnetic resonance imaging (MRI) scan revealed
significant disc herniation at L4-5 and L5-S1. Dr. Dworkin stated that appellant’s injuries were
severe and caused significant long-standing physical capacity limitations. He referenced his
September 15, 2011 report which commented on Dr. Gelman’s opinion that the MRI scan
findings were degenerative in nature. Dr. Dworkin disagreed and found the L5-S1 disc
herniation was post-traumatic in nature with significant narrowing of appellant’s bilateral, lateral
recess region of the spine, causing him significant back pain with sitting, standing, and walking.
As a result, appellant was incapable of working and unable to return to work.
Dr. Dworkin further stated that, due to the severe nature of back, buttock, and leg pain, he
had ordered appellant’s physical therapy treatment from July 15 to November 30, 2011. He
diagnosed traumatic low back pain with persistent and recurrent right greater than left sciatica
secondary to traumatic disc herniation at L4-5 and L5-S1 as seen on MRI scan, and associated
radiculopathies including L5-S1 radiculopathy as seen on EMG. Dr. Dworkin opined with a
reasonable degree of medical certainty that appellant’s listed diagnoses were a result of the
November 16, 2009 work-related fall.
Dr. Dworkin further opined that appellant continued to have severe back and leg pain and
was unable to work between July 15 and November 11, 2011 while he was attending physical
therapy. He stated that appellant’s inability to work was secondary to the work-related injury,
including back pain with severe sciatica and traumatic disc herniation at L4-5 and L5-S1,
2

Docket No. 13-737 (issued October 29, 2013).

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complicated by bilateral L5-S1 radiculopathy. Dr. Dworkin noted that appellant was followed
closely and had not had sufficient rehabilitation to return to employment prior to his discharge
from therapy on November 30, 2011. This was because returning to work would have been
hazardous and would lead to a high likelihood of recurrent and severe back and leg pain, as well
as the possible need for surgical intervention.
Dr. Dworkin noted that there was
miscommunication from his prior note which indicated that he had released appellant to full duty
on July 15, 2011. He stated that this was a clerical error and should have read as scheduled for
continued aggressive therapy on July 15, 2011.
By decision dated July 29, 2014, OWCP affirmed the October 29, 2013 decision finding
that appellant failed to establish that he was disabled due to his November 16, 2009 injury for the
period July 15 to November 30, 2011.
LEGAL PRECEDENT
Under FECA,3 the term disability is defined as incapacity, because of employment injury,
to earn the wages that the employee was receiving at the time of injury.4 Disability is not
synonymous with a physical impairment which may or may not result in an incapacity to earn the
wages. An employee who has a physical impairment causally related to a federal employment
injury but who nonetheless has the capacity to earn wages he or she was receiving at the time of
injury has no disability as that term is used in FECA.5
Whether a particular injury causes an employee to be disabled and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative,
and substantial medical evidence.6 Findings on examination are generally needed to support a
physician’s opinion that an employee is disabled for work. When a physician’s statements
consist only of a repetition of the employee’s complaints that excessive pain caused an inability
to work, without making an objective finding of disability, the physician has not presented a
medical opinion on the issue of disability or a basis for payment of compensation.7
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.8 In situations where there are opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if

3

5 U.S.C. §§ 8101-8193.

4

See Prince E. Wallace, 52 ECAB 357 (2001).

5

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

6

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

7

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

8

5 U.S.C. § 8123(a).

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sufficiently well rationalized and based on a proper factual background, must be given special
weight.9
ANALYSIS
OWCP accepted that appellant sustained a contusion of left hand, sprain of left hand, left
shoulder and upper arm sprain acromioclavicular, contusion of right hip and thigh, right knee and
leg sprain, neck sprain, and lumbar sprain due to the November 16, 2009 employment incident.
Appellant has the burden of proving by the weight of the substantial, reliable and probative
evidence a causal relationship between his claimed disability from July 15 to November 30, 2011
and the accepted November 16, 2009 injuries.10 Dr. Dworkin’s additional April 24, 2014 report
does not provide a fully-rationalized medical opinion finding him disabled for work for the
claimed period due to his accepted injuries. Therefore, the medical evidence submitted is
insufficient to meet appellant’s burden of proof.11
By decision dated October 29, 2013, the Board found appellant failed to establish
entitlement to disability compensation for the period July 15 to November 30, 2011 as a result of
his November 16, 2009 injuries. The Board noted that Dr. Gelman’s reports established that
appellant’s November 16, 2009 injuries had resolved and found that his opinion was sufficiently
well rationalized, based upon a proper and factual background, and thus entitled to special
weight as an impartial medical examiner.
On appeal, the only medical evidence received in support of appellant’s claim was the
new April 24, 2014 medical report from Dr. Dworkin. The Board finds that the additional
medical evidence is insufficient to establish entitlement to disability compensation for the period
July 15 to November 30, 2011.
In the April 24, 2014 medical report, Dr. Dworkin reiterated his opinion that appellant’s
traumatic low back pain with persistent and recurrent right greater than left sciatica secondary to
traumatic disc herniation at L4-5 and L5-S1 as seen on MRI scan, and associated radiculopathies
including L5-S1 radiculopathy as seen on EMG, were a result of the November 16, 2009 workrelated fall. He referenced his September 15, 2011 report and disagreed with Dr. Gelman’s
opinion that the MRI scan findings were degenerative in nature. Dr. Dworkin further argued that
the L5-S1 disc herniation was post-traumatic in nature with significant narrowing of appellant’s
bilateral, lateral recess region of the spine, causing him significant back pain with sitting,
standing, and walking. As a result, appellant was incapable of working and unable to return to
work.
The Board notes that Dr. Dworkin’s medical report repeats the findings and opinions
expressed in his prior reports that gave rise to the conflict in medical opinion. His opinion that
appellant’s sciatica, disc herniation, and radiculopathy were caused by the November 16, 2009
9

Nathan L. Harrell, 41 ECAB 402 (1990).

10

See Amelia S. Jefferson, 57 ECAB 183 (2005).

11

Alfredo Rodriguez, 47 ECAB 437 (1996).

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employment incident was previously addressed by the Board and found to be conclusory without
explanation as to how the conditions caused disability or remained symptomatic.12
Dr. Dworkin opined that appellant was unable to work while attending physical therapy
from July 15 to November 30, 2011 due to severe back, buttock, and leg pain. He stated that
appellant’s inability to work was secondary to the work-related injury, including back pain with
severe sciatica and traumatic disc herniation at L4-5 and L5-S1, complicated by bilateral L5-S1
radiculopathy. Dr. Dworkin is not attributing appellant’s disability during the period in question
to his accepted conditions of left hand, sprain of left hand, left shoulder and upper arm sprain
acromioclavicular, contusion of right hip and thigh, right knee and leg sprain, neck sprain, and
lumbar sprain. As noted above, the diagnoses of lumbar sciatica, disc herniation at L4-5 and L5S1, and bilateral L5-S1 radiculopathy have not been accepted as compensable conditions.
Dr. Dworkin also failed to specifically address appellant’s capacity for work or the why he was
unable to continue to work. His previous July 14, 2011 note indicated that appellant’s workrelated back injury had significantly improved and he was released to full-duty work. While
Dr. Dworkin stated that this was a clerical error and should have been read as having scheduled
appellant for continued aggressive therapy on July 15, 2011, this explanation fails to support
total disability for the period in question. Furthermore, his report dated November 27, 2012 does
not provide support for a clerical error which also noted that appellant was placed out of work
until his most recent visit of July 14, 2011. Dr. Dworkin’s additional explanation that appellant
could not return to work until he was discharged from therapy due to a likelihood of recurrent
and severe back pain is also insufficient to establish work-related disability. He did not profess
sufficient knowledge of appellant’s specific job duties or provide a rationalized explanation as to
why he could not work for the claimed periods.13
As Dr. Dworkin fails to attribute disability to the accepted November 16, 2009 conditions
for the period July 15 to November 30, 2011, his reports are insufficient to meet appellant’s
burden of proof.14 The Board further notes that Dr. Dworkin was on one side of the conflict that
gave rise to the referral to Dr. Gelman.15 Dr. Dworkin’s supplemental report is insufficient to
overcome the opinion of Dr. Gelman or to create a new medical conflict.16
For each period of disability claimed, the employee has the burden of establishing that he
or she was disabled for work as a result of the accepted employment injury.17 The issue of
whether a claimant’s disability is related to an accepted condition is a medical question. The
12

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
13

A.J., Docket No. 13-614 (issued July 9, 2013).

14

L.J., Docket No. 14-523 (issued August 7, 2014).

15

C.B., Docket No. 12-1572 (issued February 21, 2013).

16

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Dworkin’s report did not contain new findings or rationale
on causal relationship upon which a new conflict might be based.
17

See Amelia S. Jefferson, 57 ECAB 183 (2005).

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answer must be established by a physician who, on the basis of a complete and accurate factual
and medical history, concludes that the disability is causally related to employment factors and
supports that conclusion with sound medical reasoning.18 The Board finds that he failed to meet
his burden of proof.19
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant failed to establish that he was disabled due to his
November 16, 2009 injuries for the period July 15 to November 30, 2011.
ORDER
IT IS HEREBY ORDERED THAT the July 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 27, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

18

See Sandra D. Pruitt, 57 ECAB 126 (2005).

19

S.S., Docket No. 10-621 (issued November 23, 2010).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, COVINGTON
STATION POST OFFICE, Covington, WA,
Employer
__________________________________________

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Appearances:
Coby Jones, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0905
Issued: January 26, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 22, 2019 appellant, through her representative, ﬁled a timely appeal from a
September 24, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

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

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). By order dated July 21, 2020, the Board exercised its discretion and denied the request, finding
that the arguments on appeal could adequately be addressed in a decision based on the case record. Order Denying
Request for Oral Argument, Docket No. 19-0905 (issued July 21, 2020).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period May 20 to August 15, 2017, causally related to her accepted employment injury.
FACTUAL HISTORY
On September 5, 2017 appellant, then a 64-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained severe degenerative right shoulder
arthropathy due to factors of her federal employment. She noted that she first became aware of
her claimed condition on May 2, 2016 and realized its relation to her federal employment on
August 24, 2017. On the reverse side of the claim form, appellant’s supervisor reported that
appellant had “not worked in a long time.”
In an August 18, 2017 narrative statement, appellant related that she had previously filed a
traumatic injury claim (Form CA-1) for a May 20, 2017 injury to her right shoulder under OWCP
File No. xxxxxx938, however, OWCP denied that claim.5 She explained that she had undergone
surgery to her left shoulder and since her return to work on May 2, 2016 with restrictions, she had
to rely more on her right arm to perform her job duties. Appellant noted that her right shoulder
was painful and worsening and that since she lifted a tray of mail on May 20, 2017 it was
impossible to use her arm in any functional capacity. She described in detail job duties she had
performed as a letter carrier for the past 27 years and noted that most of her work was done with
her right arm and involved reaching, grabbing, swiping, unlocking doors, pulling doors, extending
and pulling, and carrying heavy parcels.
A May 20, 2017 x-ray of appellant’s right shoulder read by Dr. Patrick Bacon, a Boardcertified diagnostic radiologist, revealed findings suggestive of rotator cuff injury and advanced
acromioclavicular and advanced glenohumeral joint suggestive of degenerative joint disease.
In a May 26, 2017 report Sharon Lemoine, an advanced registered nurse practitioner,
indicated that appellant was treated on that date in the emergency department and that appellant
should be off work from May 26 to 27, 2017. She also noted that appellant was encouraged to
seek further medical evaluation and release to work.

3

5 U.S.C. § 8101 et seq.

4
The Board notes that, following the September 24, 2018 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
evidence for the first time on appeal. Id.
5

In an August 2, 2017 decision, OWCP denied the claim in OWCP File No. xxxxxx938.

2

In a June 6, 2017 report, Dr. Kevin L. Smith, a Board-certified orthopedic surgeon, noted
that he had been treating appellant for her left shoulder. He related that on May 19, 2017 she was
at work when she pulled a door and something caught in her mail delivery vehicle and she had
immediate pain and dysfunction in her right arm. Dr. Smith noted that the next day, appellant
reinjured her right arm after lifting a tray. He related that she indicated that she felt an immediate
sharp pain in her right arm which was “searing” and “[appellant] had to drop the tray.” Dr. Smith
indicated that on May 20, 2017 appellant went to emergency room and x-rays revealed right
shoulder advanced rotator cuff tear arthropathy, rounding of the greater tuberosity, sclerosis with
cystic changes of the glenohumeral joint, high-riding humoral head, and progressive wear of the
superior glenoid. He noted that she had longstanding cuff tear arthropathy of the right shoulder
and she had exacerbated it recently with an injury at work. Dr. Smith also related that on physical
examination range of motion (ROM) of appellant’s right shoulder was limited in all directions
with moderate pain at the extremes.
A June 29, 2017 right shoulder gadolinium arthrogram read by Dr. Jim Schumacher, a
Board-certified internist, revealed glenohumeral osteoarthritis and a large full thickness rotator
cuff tear.
A June 29, 2017 MR arthrogram of the right shoulder read by Dr. Jarrod Durkee, a
radiologist, revealed supraspinatus, subscapularis, and biceps tendon tears, circumferential labral
tears, adhesive capsulitis, nonvisualization of the anterior inferior glenohumeral ligament, possibly
torn, and moderate-to-severe glenohumeral and acromioclavicular joint osteoarthritis.
In a July 11, 2017 report, Dr. Smith noted that appellant had been his patient for at least
three years and that he had treated her for a work-related left shoulder injury which required a left
total shoulder arthroplasty. He indicated that she had a recent severe injury/exacerbation of her
right shoulder while at work on May 19, 2017. Dr. Smith opined that appellant’s work left her
with severe right shoulder damage. He advised that she had severe stiffness, weakness, roughness,
and grinding, with a very painful and dysfunctional right shoulder. Dr. Smith also noted that
appellant’s magnetic resonance imaging (MRI) scan showed a right shoulder massive rotator cuff
tear, with diffuse severe degeneration of her shoulder, and he diagnosed right shoulder cuff tear
arthropathy and requested authorization for surgery.
In an August 16, 2017 disability certificate, Dr. Smith noted that appellant was seen on that
date and that she was excused from work from May 20, 2017, until further notice. He advised that
she was being treated for her right shoulder cuff tear arthropathy and due to this condition, she was
incapacitated and unable to perform any job tasks.
Dr. Smith, in an August 24, 2017 report, diagnosed right shoulder “cuff tear arthropathy”
and explained that essentially, that involved a combination of severe arthritis along with massive
rotator cuff pathology caused by cumulative trauma involving repetitive motions with the sorting
and movement of letters and packages. He also indicated that the combination of conditions was
quite debilitating and painful. Dr. Smith related that appellant had a long history of issues,
regarding both of her shoulders, as well as her neck and back to a degree, and on May 19 and 20,
2017 she had a severe increase in issues related to accidents at work. He further explained that a
postal worker endured considerable wear and tear on their entire body, particularly the upper
extremities. Appellant had worked in that capacity for over 27 years, when she constantly lifted,

3

pushed, pulled and carried trays of mail and packages weighing up to 70 pounds, which had created
an increased biomechanical stress to the tendons of the rotator cuff of the shoulder making it more
susceptible to injury, arthritis, cartilage loss and tear.
On October 19, 2017 OWCP accepted the claim for right shoulder arthropathy.
In a disability certificate dated November 1, 2017, Dr. Smith noted that appellant was seen
in his office on May 23, June 6, July 11, August 16, and November 1, 2017. He indicated that she
should be excused from work beginning May 20, 2017, until further notice. Dr. Smith explained
that the severity of appellant’s right shoulder arthropathy prevented her from performing her
regular carrier duties. He completed a December 1, 2017 work capacity evaluation (Form OWCP5c) advising that she was unable to work and needed surgery.
A November 1, 2017 duty status report (Form CA-17) from Dr. Smith, indicated that
appellant had degeneration of the right shoulder and that clinical findings included a cuff tear and
arthropathy. He indicated that she was unable to work. Dr. Smith also provided a November 1,
2017 report noting that appellant’s surgery was approved and was being scheduled.
A November 10, 2017 x-ray of appellant’s right shoulder read by Dr. Jay S. Pearson, a
chiropractor, revealed a complete rotator cuff tear. In a November 21, 2017 report, Dr. Pearson
noted that he treated her with massage therapy.
Appellant filed claims for compensation (Form CA-7) for disability from May 20, 2017 to
June 22, 2018.
In a February 9, 2018 report, Dr. Smith noted that appellant was scheduled for right
shoulder arthroplasty. Postoperative reports dated February 12, 2018, revealed that she underwent
a right shoulder cuff tear arthroplasty.
In a development letter dated May 18, 2018, OWCP informed appellant that the
documentation received to date was insufficient to establish her claim for wage-loss compensation.
It advised her of the type of medical evidence necessary to establish her disability claim and
afforded her 30 days to submit the necessary evidence.
On May 25, 2018 OWCP authorized payment of wage-loss compensation on the
supplemental rolls as of August 16, 2017 and on the periodic rolls as of May 27, 2018.
OWCP continued to receive medical evidence regarding the status of appellant’s right
shoulder condition in 2018.
By decision dated June 26, 2018, OWCP denied appellant’s claim for compensation for
disability from work for the period May 20 to August 5, 2017, finding that the medical evidence

4

of record was insufficient to establish total disability from work causally related to the accepted
employment-related condition.6
On August 21, 2018 appellant requested reconsideration and submitted additional
evidence.
In a July 11, 2018 report, Dr. Smith noted that appellant had been his patient for some time
as he was treating her bilateral shoulders and most recently the right shoulder. He explained that
he initially saw her on May 22, 2017 after an x-ray of the right shoulder in the emergency room
on May 20, 2017. Dr. Smith advised that his examination revealed considerable degenerative
changes as well as suspected soft tissue damage and that he concluded at that time that appellant
was unable to perform the essential duties of her position due to her restricted ROM, instability,
and immobility. He explained that an MRI scan could not be ordered at that time as she did not
have a case number, that the MRI scan was conducted on June 29, 2017 and confirmed the previous
objective findings of severe rotator cuff damage and considerable arthritis. Dr. Smith noted that
on July 17 and August 16, 2017 appellant continued to decline functionally and was unable to
perform any of her essential duties as a letter carrier due to the right shoulder condition of rotator
cuff tear arthropathy. He noted that she had right shoulder surgery on February 12, 2018 and that
he completed Form CA-17 reports dated July 11 and September 19, 2018, advising that she was
unable to work.
By decision dated September 24, 2018, OWCP denied modification of the June 26, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.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

OWCP described the “accepted condition(s)” as “other specific arthropathies, not elsewhere classified, right
shoulder; unspecified rotator cuff tear or rupture of right shoulder, not specified as traumatic.” The Board also notes
that the date August 5, 2017 appears to be a typographical error and August 15, 2017 is the correct date.
6

7

See supra note 3.

8

Y.D., Docket No. 20-0097 (issued August 25, 2020); D.P., Docket No. 18-1439 (issued April 30, 2020); Amelia S.
Jefferson, 57 ECAB 183 (2005).
9

Id.; Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

10

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

5

Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.11 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.12
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
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 specific employment factors
identified by the claimant.13
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.14
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her claims for wage-loss compensation, appellant submitted several reports
from Dr. Smith. In a June 6, 2017 report, Dr. Smith related that on May 19, 2017 she was at work
when she pulled a door, something caught in her mail delivery vehicle, and she experienced
immediate pain and dysfunction in her right arm. He noted that appellant went to emergency room
on May 20, 2017 and that x-rays of her right shoulder revealed advanced rotator cuff tear
arthropathy. Dr. Smith specifically noted that her ROM of the right shoulder was limited in all
directions. In a July 11, 2017 report, he noted that a right shoulder MRI scan showed a massive
rotator cuff tear, and diffuse severe degeneration of appellant’s shoulder. Dr. Smith diagnosed
right shoulder cuff tear arthropathy and requested authorization for surgery. In an August 16, 2017
disability certificate, he indicated that appellant was excused from work as of May 20, 2017, the
date she went to the emergency room after the work injury on May 19, 2017. In an August 24,
2017 report, Dr. Smith diagnosed “cuff tear arthropathy” and explained that this condition was a
combination of severe arthritis along with massive rotator cuff pathology caused by cumulative
trauma involving repetitive motions with the sorting and movement of letters and packages. He
also explained that the two together were quite debilitating and painful. Dr. Smith provided a
disability certificate also dated November 1, 2017, explaining that appellant was seen in his office
on May 23, June 6, July 11, August 16, and November 1, 2017, and that she was excused from
work beginning May 20, 2017, until further notice. In a July 11, 2018 report, he noted that he saw
11

Id. at § 10.5(f); see J.T., Docket No. 19-1813 (issued April 14, 2020); Cheryl L. Decavitch, 50 ECAB 397 (1999).

12

J.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

13

T.T., Docket No. 18-1054 (issued April 8, 2020).

14

D.P., supra note 8; Sandra D. Pruitt, 57 ECAB 126 (2005).

6

her on May 22, 2017 after an x-ray in the emergency room on May 20, 2017 that his examination
revealed considerable degenerative changes as well as suspected soft tissue damage, and that he
concluded at that time that she was unable to perform the essential duties of her position due to
her restricted right shoulder ROM, instability, and immobility. Dr. Smith noted that an MRI scan
on June 29, 2017 confirmed his previous findings that appellant was unable to perform any of her
essential duties as a letter carrier due to her right shoulder arthropathy.
It is well established that, proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.15 While Dr. Smith’s reports do not contain
sufficient rationale to discharge her burden of proof by the weight of the reliable, substantial, and
probative evidence that her claimed disability was caused or aggravated by the accepted
employment injury, these reports raise an inference of causal relationship sufficient to require
further development of the case record by OWCP.16
The Board, therefore, finds that the case must be remanded for further development of the
medical evidence. OWCP shall refer appellant to a specialist in the appropriate field of medicine
for a reasoned opinion regarding whether her claimed disability is causally related to the accepted
employment injury. If the physician opines that the claimed disability is not causally related to
the employment injury, he or she must explain with rationale how or why their opinion differs
from that of Dr. Smith. On return of the case record OWCP shall also administratively combine
the present claim with OWCP File No. xxxxxx938 with the current claim under OWCP File No.
xxxxxxx928.17 Following this and other such further development as deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

15

J.H., Docket No. 18-1637 (issued January 29, 2020). See also A.P., Docket No. 17-0813 (issued January 3,
2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999).
16
See T.K., Docket No. 20-0150 (issued July 9, 2020); John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne,
29 ECAB 820 (1978).
17

OWCP’s procedures provide that cases should be administratively combined when correct adjudication of the
issues depends on frequent cross-referencing between case files. R.R., Docket No. 19-0368 (issued November 26,
2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8c
(February 2000).

7

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2018 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: January 26, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Atlanta, GA, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2154
Issued: May 8, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 31, 2008 appellant, through his attorney, filed a timely appeal from October 4,
2007 and April 24, 2008 merit decisions of the Office of Workers’ Compensation Programs
terminating his compensation for refusing suitable work. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation under
5 U.S.C. § 8106(c) on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
On June 6, 2006 appellant, then a 45-year-old transportation security screener, filed a
claim for an injury to his right eye occurring on May 30, 2006 when a fan blew sand that had

spilled from a bag into his face. The Office accepted the claim for photophobia of the right eye.
Appellant stopped work on May 31, 2006 and received compensation for total disability.1
In a report dated May 8, 2007, Dr. Izak F. Wessels, a Board-certified ophthalmologist,
related that appellant could return to light-duty work with restrictions against use of the right eye
and the requirement that he wear an eye patch.
On May 9, 2007 the employing establishment offered appellant a light-duty position
beginning May 9, 2007 as a screener with restrictions against use of his right eye.
In a note dated May 24, 2007, Dr. Wessels asserted that appellant “cannot legally drive
due to visual field loss and severe photophobia.”
By letter dated May 31, 2007, the employing establishment noted that appellant related
that he could not drive and had submitted a physician’s note documenting his inability to drive.
The employing establishment maintained that it was his “responsibility to provide his own
transportation to work.”
On June 8, 2007 the Office informed the employing establishment that its May 9, 2007
job offer was not valid because it did not include “the salary amount and location of the job.”
In a work restriction evaluation dated June 14, 2007, Dr. Wessels found that appellant
could perform both his usual job and that, if unable to perform his usual job, he could work eight
hours per day with restrictions due to “severe disabling photophobia.” He further indicated that
he was unable to state the number of hours that appellant could work pending a diagnosis.
Dr. Wessels found that he had no limitation in performing any activity except as a result of his
severe photophobia. He determined that appellant could sit, walk and stand for six to eight hours
daily and listed no other specific limitations.
On June 26, 2007 the employing establishment offered appellant a full-time limited-duty
position in screening with restrictions on using his right eye and the requirement that he wear an
eye patch. Appellant rejected the position, citing his inability to drive.
On July 18, 2007 the Office notified appellant that the limited-duty position offered by
the employing establishment was suitable and that his reason for refusing the position was not
acceptable. It advised him of the provisions of 5 U.S.C. § 8106(c)(2) governing the refusal of
suitable employment and afforded him an additional 30 days to accept the position.
By letter dated August 21, 2007, the Office informed appellant that it had considered his
reasons for refusing the position and determined that they were invalid. It provided him 15 days
to accept the position or have his compensation terminated.
By decision dated October 4, 2007, the Office terminated appellant’s compensation on
the grounds that he refused an offer of suitable work under section 8106(c)(2). It based its
1

Appellant returned to limited-duty employment on September 6, 2006 but stopped work again on
September 7, 2006.

2

finding that he was capable of performing the offered position on Dr. Wessels’ June 14, 2007
work restriction evaluation.
On October 17, 2007 appellant requested either a telephonic oral hearing or review of the
written record.
In a report dated November 8, 2007, Dr. David A. Rankine, a Board-certified neurologist,
diagnosed a corneal abrasion. On December 31, 2007 Dr. Wessels found that appellant could
resume work without restrictions. On January 21, 2008 he indicated that appellant had increased
“visual disability” and was therefore unable “to perform normal activities, including working.”
On February 6, 2008 the Office accepted “other disorder” of the right optic nerve.
In a report dated February 25, 2008, Dr. Wessels diagnosed right and left severe ptosis
and photophobia. He stated, “Because of his severe visual disability and photophobia it is not
possible for him to function within a usual illumination climate. I believe that his ocular
discomfort also will materially interfere with his ability to function in a reasonable and
appropriate manner with possible combative clients.”
On February 27, 2008 appellant requested a review of the written record in lieu of a
telephonic hearing. On April 3, 2008 the Office accepted right eye dermatoses as causally
related to his work injury. On April 9, 2008 it accepted chronic pain syndrome of the right optic
nerve.
By decision dated April 24, 2008, the hearing representative affirmed the October 4, 2007
decision after finding that it was appropriate at the time of issuance. She found, however, that
the evidence was currently sufficient to warrant further development of the case record and
instructed the Office upon return of the case record to refer appellant for a second opinion
evaluation.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 Section 8106(c)(2) of the Federal Employees’
Compensation Act3 provides that a partially disabled employee who refuses or neglects to work
after suitable work is offered to, procured by or secured for the employee is not entitled to
compensation.4 To justify termination of compensation, the Office must show that the work
offered was suitable and must inform appellant of the consequences of refusal to accept such
employment.5 Section 8106(c) will be narrowly construed as it serves as a penalty provision,

2

Linda D. Guerrero, 54 ECAB 556 (2003).

3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

5

Ronald M. Jones, 52 ECAB 190 (2000).

3

which may bar an employee’s entitlement to compensation based on a refusal to accept a suitable
offer of employment.6
Section 10.517(a) of the Act’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.7 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.8
Before compensation can be terminated, however, the Office has the burden of
demonstrating that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work, establishing that a position has been offered within the employee’s
work restrictions and setting for the specific job requirements of the position.9 In other words, to
justify termination of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, it
has the burden of showing that the work offered to and refused by appellant was suitable.10
Once the Office establishes that the work offered is suitable, the burden shifts to the
employee who refuses to work to show that the refusal or failure to work was reasonable or
justified.11 The determination of whether an employee is physically capable of performing a
modified assignment is a medical question that must be resolved by medical evidence.12 Office
procedures state that acceptable reasons for refusing an offered position include medical
evidence of inability to do the work.13
ANALYSIS
The Office accepted that appellant sustained right eye photophobia and dermatomes and
chronic pain syndrome of the right optic nerve as a result of sand blowing into his face on
May 30, 2006. It paid him compensation for total disability until October 4, 2007, when it
terminated his compensation for refusing suitable work.
The Board finds that the Office improperly terminated appellant’s compensation as the
medical evidence failed to establish that he was capable of performing the position offered by the
employing establishment. In determining that the full-time limited-duty position in screening
6

Joan F. Burke, 54 ECAB 406 (2003).

7

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 5.

8

Id. at § 10.516.

9

See Linda Hilton, 52 ECAB 476 (2001).

10

Id.

11

20 C.F.R. § 10.517(a).

12

Gayle Harris, 52 ECAB 319 (2001).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5(a)(3) (July 1997).

4

offered by the employing establishment was suitable, the Office relied upon the opinion of his
attending physician, Dr. Wessels.
In a report dated May 8, 2007, Dr. Wessels found that appellant could work if he did not
use his right eye and wore an eye patch. In a work restriction evaluation dated June 14, 2007, he
opined both that he could perform his usual position and that he could work full time with
restrictions. Dr. Wessels determined that appellant could sit, walk and stand for six to eight
hours per day and had no physical limitations except for those resulting from his photophobia.
He, however, characterized the photophobia as severe and disabling. Dr. Wessels further
indicated on the work restriction evaluation that he was unable to specifically state the number of
hours that appellant could work pending a diagnosis. As his opinion is equivocal in nature, it is
insufficient to meet the Office’s burden of proof to establish that appellant could perform the
duties of the offered position.14
Additionally, on June 26, 2007 appellant refused the limited-duty position in screening as
he was unable to drive due to his work injury. On May 24, 2007 Dr. Wessels asserted that he
was unable to “legally drive due to visual field loss and severe photophobia.” Under the Office’s
procedure and Board precedent, an inability to travel to work because of residuals of the
employment injury is an acceptable reason for rejecting an offer of suitable work.15
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation on the
grounds that he refused an offer of suitable work.

14

See Ricky S. Storms, 52 ECAB 349 (2001).

15

Supra note 13 at Chapter 2.814.5(a)(5) (July 1996); Mary E. Woodard, 57 ECAB 211 (2005); Janice S.
Hodges, 52 ECAB 379 (2001).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 24, 2008 and October 4, 2007 are reversed.
Issued: May 8, 2009
Washington, DC

Alec J. Koromilas, Chief Judge
Employees' Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees' Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jamaica, NY, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 13-2007
Issued: February 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 29, 2013 appellant filed a timely appeal from a June 28, 2013 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 met his burden of proof to establish a traumatic injury in
the performance of duty on April 25, 2013.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review evidence for the first time
on appeal.2 Appellant may submit this or other 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.

FACTUAL HISTORY
On May 1, 2013 appellant, then a 49-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging injury to his left shoulder and arm in the performance of duty on
April 25, 2013. He stated that picking up customers’ “click and ship” packages may have caused
his injury.
In a statement dated April 25, 2013, appellant noted that his left shoulder was sore, but
manageable, but when he finished his route, he had to retrieve a customer’s “click and ship”
package. When he reached out to pick up the item, his arm became painful to move and
immovable.
An April 25, 2013 duty status report, with an illegible signature, noted that appellant had
certain work restrictions. In duty status reports dated April 30 and May 6, 2013, with illegible
signatures, it was listed that appellant could not return to work.
In a Form CA-16 authorization for examination and/or treatment dated April 30, 2013, a
physician with an illegible signature diagnosed appellant with strain.3
By letter dated May 24, 2013, OWCP advised appellant that the evidence of record was
insufficient to support his claim. It afforded him 30 days to submit additional evidence and
respond to its inquiries, noting that the signatures on the submitted medical reports were
illegible. Further, physician’s assistants, nurses and nurse practitioners did not qualify as a
physician under FECA.
In a duty status form report dated May 17, 2013, Ronald Flood, a physician’s assistant,
noted that appellant could not return to work.
By letter dated May 22, 2013, the Department of Veterans Affairs informed appellant that
he was scheduled to have a magnetic resonance imaging scan on June 6, 2013.
In a certification of health care provider (Form WH-380-E) dated May 23, 2013,
Mr. Flood described the history of appellant’s condition, the dates he would be incapacitated for
work and his course of treatment.
On May 31, 2013 appellant signed and returned the questionnaire containing OWCP’s
inquiries, but did not provide responses to them. He also submitted an undated list of his active
and expired medications on June 11, 2013.
By decision dated June 28, 2013, OWCP denied appellant’s claim. It found that he had
not submitted any medical evidence from a qualified physician and that the evidence in his case
was from a physician’s assistant.
3

The record contains a Form CA-16 signed by the employing establishment official. When the employing
establishment properly executes a Form CA-16 which authorizes medical treatment as a result of an employee’s
claim for an employment-related injury, Form CA-16 creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim.
See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).

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LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury5 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.7
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.8 The opinion of the physician must be
based on a complete factual and medical background of the employee, 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 specific employment factors identified by
the employee.9 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.10
ANALYSIS
Appellant alleged that, on April 25, 2013, he sustained an injury to his left shoulder and
arm in the performance of duty. The Board finds that he did not submit sufficient medical
4

5 U.S.C. §§ 8101-8193.

5

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
6

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
7

Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

8

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

9

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

James Mack, 43 ECAB 321, 329 (1991).

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evidence from a physician to establish that a medical condition had been diagnosed in connection
with this incident.
In support of his claim, appellant submitted reports from Mr. Flood, a certified
physician’s assistant. A physician’s assistant does not qualify as a physician as defined under
FECA. Their reports do not qualify as probative medical evidence supportive of a claim for
federal workers’ compensation, unless countersigned by a physician.11 Mr. Flood’s reports were
not countersigned by a physician. Therefore, the reports do not constitute probative medical
evidence and fail to establish that appellant sustained injury to his left shoulder or arm, as
claimed.
Appellant also submitted standardized form reports that were illegibly signed, such that
the author could not be determined. Consequently, these reports are of no probative value as it
cannot be discerned whether a physician signed the reports.12
Because appellant did not submit rationalized medical opinion evidence, containing a
diagnosis from a physician, in support of his claim, the Board finds that he has failed to meet his
burden of proof to establish that he was diagnosed with a condition as a result of the April 25,
2013 employment incident.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in
the performance of duty on April 25, 2013.

11

See 5 U.S.C. § 8101(2); Lyle E. Dayberry, 49 ECAB 369, 372 (1998) (regarding physicians’ assistants).

12

See Merton J. Sills, 39 ECAB 572, 575 (1988); see also Sheila A. Johnson, 46 ECAB 323, 327 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the June 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2014
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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