United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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Docket No. 18-0287
Issued: October 11, 2018

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of the Solicitor for the Director

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 27, 2017 appellant, through counsel, filed a timely appeal from a
September 7, 2017 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 to consider 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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 7, 2017 decision, OWCP received additional evidence. However,
the Board’s jurisdiction is limited to the evidence that was of record at the time OWCP issued its final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. See 20 C.F.R.
§§ 501.2(c)(1); M.B., Docket No. 09-0176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that his claim
should be expanded to include additional conditions as causally related to his accepted February 3,
2015 employment injury; and (2) whether appellant met his burden of proof to establish that his
inpatient hospital stay from March 9 to 29, 2016 was medically necessary due to the accepted
February 3, 2015 employment injury.
FACTUAL HISTORY
On February 4, 2015 appellant, then a 67-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on February 3, 2015, he sustained injuries to his right arm and
shoulder when he pulled and engaged the emergency break in his postal vehicle. He continued to
work with restrictions regarding the use of his right upper extremity. OWCP accepted the claim
for a right shoulder and upper arm acromioclavicular sprain on April 4, 2015.
In an attending physician’s report (Form CA-20) dated March 18, 2015, Dr. Mitchell R.
Pollak, a treating Board-certified orthopedic surgeon, diagnosed neck, shoulder, and elbow
sprains. He noted an injury date of February 3, 2015 and checked a box marked “yes” to questions
concerning the relationship between the diagnosed conditions and the February 3, 2015
employment injury date. OWCP also received progress notes dated March 18, 25, and 30, 2015
from Dr. Pollak detailing examination findings and treatment given for cervical, bilateral carpal
tunnel, and right upper extremity conditions.
Appellant was evaluated by Dr. Peter A. Tomasello, a Board-certified orthopedic surgeon
on August 25, 2015 for complaints of neck pain. In an August 25, 2015 report, Dr. Tomasello
provided examination findings, reviewed diagnostic tests, and noted a history of the
February 3, 2015 employment incident. He diagnosed severe right cervical radiculopathy with
right hand interosseous wasting and weakness, severe multilevel degenerative disc disease, C2-3
anterolisthesis, C4-5 and C7 on T1 retrolisthesis, and multilevel arthritis.
In reports dated September 10 and October 22 and 29, 2015, Dr. Harold Gregory Bach, an
examining Board-certified orthopedic surgeon, diagnosed cervical spinal stenosis, cervical
radiculitis, spondylolisthesis, and cervical spondylosis without myelopathy. He noted that on
February 3, 2015 appellant’s right arm got caught in the emergency brake when he was exiting his
vehicle. A treatment plan and recommendation for spinal surgery were discussed with appellant.
In reports dated November 4 and December 2, 2015, Kay-Ann Mullings, a physician
assistant, reported seeing appellant for a follow-up visit for a February 3, 2015 employment injury.
She provided examination findings and noted that medical clearance for the cervical surgery was
pending. Diagnoses included cervical herniation, cervical radiculitis, cervical spondylolisthesis,
cervical spinal canal stenosis, right rotator cuff injury, biceps tear, cubital tunnel syndrome, and
right elbow lateral epicondylitis. Ms. Mullings recommended that appellant avoid activities which
aggravated his condition.
In a January 14, 2016 report, Dr. Bach noted the injury date of February 3, 2015 and
provided examination findings. Appellant continued to complain of right arm numbness, right
hand and arm atrophy, and neck pain radiating into his bilateral upper extremities. Diagnoses
2

included cervical region spondylolisthesis, cervical joint spondylosis, cervical herniated disc,
cervical radiculitis, and cervical spinal canal stenosis. Dr. Bach observed that as of January 15,
2016 appellant was disabled from work due to his spinal cord compromise and neurological
degeneration.
Ms. Mullings, in reports dated January 21 and February 18, 2016, noted that appellant was
seen for neck, right shoulder, and right elbow pain. Examination findings and diagnoses were
unchanged from prior reports.
A February 18, 2016 duty status (Form CA-17) reported that on February 3, 2015 appellant
injured his right arm from a defective hand break.4 Diagnoses, which were attributed to the injury,
included right arm injury and spinal cord compression.
On February 18, 2016 appellant was again seen by Ms. Mullings who submitted a report
of her findings and diagnoses, which was unchanged from prior reports.
On March 21, 2016 OWCP received a January 26, 2016 report from Dr. Robert O.
Schiftan, an examining physician specializing in neurology. Dr. Schiftan provided examination
findings, reviewed diagnostic tests, and noted the injury history. He reported that appellant was
injured at work on February 3, 2015 when his hand got caught in the emergency break when he
attempted to exit his postal vehicle. Dr. Schiftan diagnosed multilevel cervical radiculopathy,
bilateral carpal tunnel syndrome which was worse on the right, and severe right upper extremity
weakness. He attributed the severe right upper extremity weakness to the accepted February 3,
2015 incident.
By letter dated May 27, 2016, counsel requested that OWCP expand appellant’s claim to
include the conditions of cervical herniated disc, cervical spinal canal stenosis, cervical joint
spondylosis, cervical radiculitis, and cervical region spondylolisthesis based on Dr. Bach’s report.
Appellant submitted attending physician’s reports (Form CA-20) dated March 9, May 13,
and June 6, 2016 from Dr. Ali Ghods Jourabchi, a physician specializing in neurosurgery, in
support of appellant’s request to expand his claim. On the March 9 and May 13, 2016 reports,
Dr. Jourabchi diagnosed cervical myelopathy and checked a box marked “yes” to the question of
whether this condition had been caused or aggravated by the accepted February 3, 2015 incident.
On the June 6, 2016 form report he detailed the history of injury and diagnosed multilevel cervical
herniated discs and myelopathy. Dr. Jourabchi checked a box marked “yes” indicating that the
diagnosed conditions had been caused or aggravated by the work injury. He explained that
appellant’s getting his arm caught caused abnormal reflexes and motion.
Dr. Schiftan, in reports dated May 31, July 14, August 25, and September 22, 2016,
provided a history of complaints and examination findings. He reported that appellant was seen
for neck pain. Dr. Schiftan noted that appellant continued having neck pain following anterior
cervical discectomy and fusion surgery, which had been performed on November 6, 2015.
Diagnoses included cervical herniation and cervical radiculopathy.

4

The signature is illegible.

3

On a July 14, 2016 Form CA-17, Dr. Schiftan indicated that appellant continued to be
disabled from work. He reported that appellant injured his right arm and neck on February 3, 2015
and diagnosed right arm injury and spinal cord compression due to the injury.
Dr. Schiftan, in CA-17 forms dated August 25 and September 22, 2016 indicated that
appellant was capable of working light duty as of August 31, 2016. He reported that appellant
injured his right arm and neck on February 3, 2015 and diagnosed right arm injury and spinal cord
compression due to the injury.
In a September 22, 2016 report, Dr. Schiftan provided a history of anterior cervical
discectomy and fusion surgery, which had been performed on November 6, 2015, and cervical
spinal fusion, which had been performed on March 9, 2016. During the March 9, 2016 surgery he
noted that appellant suffered a pulmonary embolism. Dr. Schiftan provided examination findings
and diagnoses of status post cervical surgery, cervical myelopathy with cervical radiculopathy,
cervical radiculopathy, cervical herniation, cervical spinal stenosis, and unspecified cervical region
kyphosis.
On October 17, 2016 OWCP received a request for authorization for postsurgery
hospitalization and medical treatment for a cervical condition for the period March 9 to 29, 2016.
By development letter dated November 14, 2016, OWCP informed appellant that the
evidence of record was insufficient for authorization of the requested medical treatment for a
cervical condition. It noted that the diagnosed cervical myelopathy was not an accepted condition.
OWCP advised appellant regarding the type of medical evidence required to establish his claim
for an additional condition and afforded him 30 days to provide the requested information.
On December 23, 2016 OWCP received a copy of the March 9, 2016 surgical report by
Dr. Jourabchi and a March 29, 2016 hospital discharge note. Dr. Jourabchi noted that on March 9,
2016 appellant underwent anterior C2-7 cervical discectomy and osteophytectomy for spinal cord
and nerve roots decompression, C2-7 anterior interbody arthorodesis, C2-7 placement of
intervertebral structural allograft, C2-7 placement of anterior cervical instrumentation, C2-T1
cervical laminectomy, C2-6 and T1-2 posterior cervical and thoracic lateral mass and pedicle, and
C2-6 and T1-2 posterolateral cervical arthrodesis.
The hospital discharge summary noted that appellant was admitted on March 9, 2016 and
discharged on March 29, 2016. The summary reported that he underwent posterior C7-T1
laminectomy, C2-7 anterior cervical discectomy and fusion, and C2-T2 posterior fusion. The
primary diagnoses were cervical myelopathy with cervical radiculopathy and, status post cervical
fusion with secondary diagnoses of supraventricular tachycardia and pulmonary embolism.
In a December 14, 2016 report, Dr. Jourabchi noted that appellant had been under his care
for cervical issues. He observed that appellant had progressive arm and hand weakness which
impacted his daily living activities.
By decision dated December 29, 2016, OWCP denied appellant’s request for authorization
for inpatient stay postsurgery for the period March 9 to 29, 2016.
By separate decision dated December 29, 2016, OWCP denied appellant’s request to
expand his claim to include the additional conditions of cervical spinal stenosis, cervical
4

spondylosis without myelopathy, spondylolisthesis, cervical radiculitis, bicep tendon tear, right
elbow lateral epicondylitis, right elbow cubital tunnel syndrome, and carpal tunnel syndrome. It
found that the evidence of record was insufficient to establish that the conditions were causally
related to the accepted work injury.
In a letter dated January 5, 2017, and received on January 9, 2017, appellant, through
counsel, requested a telephonic hearing before an OWCP hearing representative regarding the
decisions issued on December 29, 2016. A telephonic hearing was held on July 11, 2017.
Following appellant’s request for a telephonic hearing, OWCP received additional medical
evidence.
In a December 15, 2016 report, Dr. Schiftan noted that appellant was seen for complaints
of neck and lower back pain. He reported that appellant suffered a pulmonary embolism during
the March 9, 2016 cervical spinal fusion. Examination findings and treatment provided were
detailed. Diagnoses included cervical radiculopathy, cervical spinal stenosis, cervical herniation,
cervical myelopathy with cervical radiculopathy, cervical region unspecified-type kyphosis, and
status post cervical spinal fusion.
On July 12, 2017 OWCP received an April 2, 2014 cervical magnetic resonance imaging
scan, which revealed multilevel cervical degenerative changes with severe focal central
spondylostenosis and chronic C7-T1 cord compression without evidence of cord edema, C7-T1
anterolisthesis, and no evidence of a fracture.
Dr. Bach, in reports dated July 26 and August 29, 2017, noted that appellant was seen for
complaints of right arm and neck pain. He reported that appellant had a February 3, 2015
employment incident and he was status post the March 9, 2016 cervical surgery. Dr. Bach detailed
physical examination findings and treatment provided. Diagnoses included right arm pain,
cervical radiculitis, herniated cervical disc, and cervical spinal cord stenosis.
By decision dated September 7, 2017, an OWCP hearing representative affirmed the
December 29, 2016 OWCP decisions. The hearing representative found that the evidence of
record remained insufficient to support that the additional diagnoses of cervical spinal stenosis,
cervical spondylosis without myelopathy, spondylolisthesis, cervical radiculitis, bicep tendon tear,
lateral epicondylitis of the right elbow, cubital tunnel syndrome of the right elbow, and bilateral
carpal tunnel syndrome were caused or aggravated by the accepted employment injury. As such,
appellant’s request for authorization of his post-surgery inpatient stay from March 9 to 29, 2016
remained denied as the procedure for which he was hospitalized was necessitated by conditions
which were not work related.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that he or she is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation,

5

Supra note 2.

5

that an injury was sustained while in the performance of duty as alleged, and that any disability or
specific condition for which compensation is claimed is causally related to the employment injury.6
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.7
To establish causal relationship between the condition claimed and the employment event
or incident, the employee must submit rationalized medical opinion evidence based on a complete
factual and medical background, supporting such causal relationship.8 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 specific employment factors
identified by the claimant.9 The weight of 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 -- ISSUE 1
The Board finds that appellant has not met his burden to proof to establish that his claim
should be expanded to include cervical spinal stenosis, cervical spondylosis without myelopathy,
spondylolisthesis, cervical radiculitis, bicep tendon tear, right elbow lateral epicondylitis, right
elbow cubital tunnel syndrome, and carpal tunnel syndrome as causally related to his accepted
February 3, 2015 employment injury.
In a January 26, 2016 report, Dr. Schiftan diagnosed multilevel cervical radiculopathy,
severe right upper extremity weakness, and bilateral carpal tunnel syndrome. He opined that
appellant’s severe right upper extremity weakness had been caused by the accepted February 3,
2015 accident. Dr. Schiftan, in duty status reports dated July 14, August 25, and September 22,
2016, diagnosed right arm injury and spinal cord compression, which he attributed to the accepted
February 3, 2015 work injury. Without explaining how, physiologically, the employment incident
caused or contributed to the diagnosed conditions, the medical evidence of record is of limited
probative value.11
The remaining reports from Dr. Schiftan are of limited probative value with regard to claim
expansion as they do not specifically address the cause of the diagnosed conditions. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition are of
6
C.W., Docket No. 17-1636 (issued April 25, 2018); Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton,
40 ECAB 1143 (1989).
7

See V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

8

See M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

9

See John W. Montoya, 54 ECAB 306 (2003).

10

See H.H., Docket No. 16-0897 (issued September 21, 2016); James Mack, 43 ECAB 321 (1991).

11

See E.R., Docket No. 18-0391 (issued August 24, 2018).

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diminished probative value on the issue of causal relationship.12 Thus, these reports are
insufficient to meet appellant’s burden of proof regarding the expansion of his claim.
Dr. Jourabchi, in attending physician reports dated March 9, May 13, and June 6, 2016,
diagnosed various conditions including cervical myelopathy multilevel cervical herniated discs,
and myelopathy. He checked a box marked “yes” indicating that the condition(s) was caused or
aggravated by the injury date noted on these forms. In a March 18, 2015 form report, Dr. Pollak
diagnosed neck, shoulder, and elbow sprains and checked a box marked “yes” to the question of
whether the condition was employment related. The Board has held that a report that addresses
causal relationship with a checkmark, without medical rationale explaining how the employment
incident caused the alleged injury, is of diminished probative value and insufficient to establish
causal relationship.13 For the reasons set forth above, the reports from Dr. Jourabchi and
Dr. Pollak are insufficient to support appellant’s request for expansion of his claim.
The remaining medical evidence from Dr. Bach, Dr. Pollak, Dr. Jourabchi, and
Dr. Tomasello is insufficient to establish appellant’s claim as they offered no opinion regarding
the cause of the diagnosed conditions. As noted above, the Board has held that medical evidence
offering no opinion regarding the cause of an employee’s condition is of diminished probative
value on the issue of causal relationship.14 Thus, these reports are insufficient to support
appellant’s request for expansion of his claim.
Appellant also submitted reports from Ms. Mullings, a physician assistant. Physician
assistants, however, are not considered physicians as defined by section 8101(2) of FECA.15
Consequently, these reports have no probative value.
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence.16 Appellant failed to provide
rationalized medical evidence sufficient to establish that the conditions of cervical spinal stenosis,
cervical spondylosis without myelopathy, spondylolisthesis, cervical radiculitis, bicep tendon tear,
right elbow lateral epicondylitis, right elbow cubital tunnel syndrome, and carpal tunnel syndrome
were causally related to his accepted February 3, 2015 employment injury. Accordingly, the Board
finds that he has not met his burden of proof to establish expansion of the acceptance of his claim.17

12

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

13

See R.A., Docket No. 17-1472 (issued December 6, 2017); Sedi L. Graham, 57 ECAB 494 (2006); Deborah L.
Beatty, 54 ECAB 340 (2003).
14

Supra note 12.

15

See V.J., Docket No. 17-0358 (issued July 24, 2018); see also David P. Sawchuk, 57 ECAB 316 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); Charley V.B. Harley, 2 ECAB 208 (1949) (the Board held that medical opinion, in general, can only
be given by a qualified physician). See also 5 U.S.C. § 8101(2).
16

See E.P., Docket No. 16-0153 (issued August 25, 2016); D.I., 59 ECAB 158 (2007).

17

See E.P., id.

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On appeal, counsel argues that OWCP failed to give proper credit to the medical evidence
appellant submitted. For the reasons set forth above, the Board finds that the medical evidence of
record is insufficient to establish expansion of appellant’s claim to include additional conditions.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty the services, appliances and supplies prescribed or
recommended by a qualified physician that the Secretary of Labor considers likely to cure, give
relief, reduce the degree or the period of any disability, or aid in lessening the amount of any
monthly compensation.18 OWCP procedures provide that services which meet the statutory
criteria of being likely to cure, give relief, reduce the degree or the period of disability, or aid in
lessening the amount of the monthly compensation, including hospitalization, may be authorized.19
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.20
In interpreting section 8103, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA.21 The only limitation on OWCP’s authority is that of
reasonableness.22 Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.23 To be entitled to reimbursement of
medical expenses, a claimant has the burden of proof to establish that the expenditures were
incurred for treatment of the effects of an employment-related injury or condition.24

18

5 U.S.C. § 8103(a); see B.L., Docket No. 15-1452 (issued September 20, 2016); L.D., 59 ECAB 648 (2008).

19
Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.5
(April 1993).
20

S.R., Docket No. 09-2332 (issued August 16, 2010); Joseph P. Hofmann, 57 ECAB 456 (2006); Kennett O.
Collins, Jr., 55 ECAB 648 (2004).
21

A.O., Docket No. 08-580 (issued January 28, 2009); Joseph P. Hofmann, id.

22

D.C., 58 ECAB 620 (2007); Dr. Mira R. Adams, 48 ECAB 504 (1997).

23

L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); Daniel J. Perea, 42 ECAB 214 (1990).

24

Supra note 20.

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ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that his inpatient postsurgery
hospitalization from March 9 to 29, 2016 was causally related to the accepted February 3, 2015
employment injury.
Appellant’s claim was accepted for the conditions of right shoulder and upper arm
acromioclavicular sprain.
Dr. Jourabchi diagnosed cervical myelopathy in a March 9, 2016 attending physician’s
report. In a March 9, 2016 surgical report, he reported that appellant underwent anterior C2-7
cervical discectomy and osteophytectomy for spinal cord and nerve roots decompression, C2-7
anterior interbody arthorodesis, C2-7 placement of intervertebral structural allograft, C2-7
placement of anterior cervical instrumentation, C2-T1 cervical laminectomy, C2-6 and T1-2
posterior cervical and thoracic lateral mass and pedicle, and C2-6 and T1-2 posterolateral cervical
arthrodesis. Appellant must submit evidence that establishes that the requested medical procedure
was necessitated by the accepted employment injury. In the preceding analysis, the Board
explained why the medical evidence did not support that his claim should be expanded to include
additional conditions including cervical myelopathy. As the requested surgery has not been
established to be causally related to appellant’s employment injury, OWCP did not abuse its
discretion by denying his request for authorization of surgery and inpatient hospital stay from
March 9 to 29, 2016. As the procedure performed during his hospitalization was not related to his
accepted condition, his hospitalization was not likely to cure, give relief, reduce the degree or the
period of any disability, or aid in lessening the amount of any monthly compensation.25
CONCLUSION
The Board finds that appellant has not established that the acceptance of his claim should
be expanded to include additional conditions causally related to his accepted February 3, 2015
employment injury. The Board further finds that OWCP did not abuse its discretion in denying
authorization for his inpatient hospital stay from March 9 to 29, 2016 as causally related to the
accepted February 3, 2015 employment injury.

25

Supra note 18.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated September 7, 2017 is affirmed.
Issued: October 11, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Battle Creek, MI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0531
Issued: June 16, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 22, 2021 appellant, through counsel, filed an appeal from a July 27, 2020
decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the Appellate
Boards assigned Docket No. 21-0531.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.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
Counsel did not appeal from OWCP’s February 3, 2021 hearing decision, which affirmed OWCP’s July 27, 2020
decision. He identified only the July 27, 2020 on the application for review (Form AB-1). Therefore, the Board will
not consider the February 3, 2021 OWCP decision in this appeal. See 20 C.F.R. § 501.3; see also L.J., Docket No.
19-0211 (issued July 10, 2019). Appellant has 180 days from the date of that decision to file an appeal with the Board.
Id.
3

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.4
The 180th day following the July 27, 2020 decision was January 23, 2021. As appellant
did not file an appeal with the Board until February 22, 2021, more than 180 days after the July 27,
2020 OWCP decision, the Board finds that the appeal docketed as No. 21-0531 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not offered a reason to
explain the failure to timely file an appeal with supporting documentation sufficient to establish
compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”5
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0531 is dismissed.
Issued: June 16, 2021
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees' Compensation Appeals Board

4

Id. at § 501.3(e).

5
Id. at § 501.6(d). Appellant may file a petition for reconsideration of this order prior to the expiration of the 30
days. See id. at 501.7(a).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, CAMILLA POST
OFFICE, Camilla, GA, Employer
__________________________________________

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Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1432
Issued: August 5, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 21, 2019 appellant, through counsel, filed a timely appeal from a May 17, 2019
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 May 17, 2019 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish entitlement to
intermittent wage-loss compensation commencing December 23, 2017, causally related to her
accepted August 29, 2017 employment injury.
FACTUAL HISTORY
On August 29, 2017 appellant, then a 49-year-old carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that day she injured her lower back when she tripped on a floor mat
and fell while in the performance of duty. On the back of the form the employing establishment
noted that appellant had not stopped work.4 OWCP accepted the claim for lower back muscle,
fascia, and tendon strain.
On December 5, 2017 appellant was seen by Dr. Michael Pare, a Board-certified
neurosurgeon, who noted appellant’s complaints of back pain, provided examination findings, and
diagnosed dorsalgia. Dr. Pare reported that appellant was currently working a sedentary position
for two hours per day and continued to have a fair amount of back pain complaints. He attributed
appellant’s failure to improve in part to fibromyalgia and recommended continued restricted duty.
A January 16, 2018 note from Kirk Clinic, Family Practice, which was signed by Jade
Merritt,5 noted that appellant was a patient at the clinic and requested that she be excused from
work on January 11, 12, 13, 16, 18, 19, and 20, 2018.
On January 21, 2018 appellant filed claims for intermittent wage-loss compensation (Form
CA-7) including for the period December 23, 2017 to January 19, 2018.6
In a development letter dated February 1, 2018, OWCP advised appellant that it had not
received any evidence to support her claim for wage-loss compensation for the period January 6,
through 19, 2018. It advised appellant regarding the medical evidence necessary to establish
disability. OWCP afforded him 30 days to submit the necessary evidence.
In a January 23, 2018 note, Sean Saul, a physician assistant, noted that he had been
involved with appellant’s care under the management of Dr. Christopher N. Bazal, a Boardcertified family medicine physician. Mr. Saul noted that appellant continued to have days of
debilitating back pain which greatly limited her activity and resulted in her inability to work.

4

The employing establishment noted that appellant worked from 9:55 a.m. to 4:45 p.m., as directed. On
September 29, 2017 appellant accepted a September 15, 2017 modified rural associate carrier associate job offer
effective September 23, 2017 with work hours of 12:00 p.m. to 4:20 p.m.
5

The Board notes that there is no other identifying information about the author.

6

In attached time analysis forms (Form CA-7a) appellant claimed 23.20 hours of leave without pay (LWOP) for
December 23, 26, 28, 29, and 30, 2017 and January 2, 4, and 5, 2018 (2.20 hours per day) and 23.20 hours of LWOP
for January 6, 8, 9, 11 to 13, 15, 16, 18, and 19, 2018 (2.20 hours per day) due to excessive pain from her back injury.
Appellant also claimed 23.20 hours for this period, including 2.20 hours of LWOP for Christmas Day (holiday) and
2.20 hours of LWOP for New Year’s Day (holiday). The reason given for the leave on this form was “work injury
with medical attached.”

2

In a January 31, 2018 note from the Kirk Clinic, Jade Merritt, indicated that appellant was
a patient at the clinic and requested that she be excused from work on January 20, 22, 23, 25, 26,
27, 29, 30, February 1, and 2, 2018 due to back injury pain.
In a February 21, 2018 report, Dr. Bazal noted that since appellant’s work injury she
continued to experience daily severe mid-back pain which was incapacitating. He reported that
prior to her fall at work appellant was capable of fulfilling her employment duties without
limitation, even with her fibromyalgia, but that she could no longer perform her work duties.
OWCP received disability notes from the Kirk Clinic, which were signed by Jade Merritt,
requesting that appellant be excused from work due to work-related disability for numerous dates
for the period January 20 through March 2, 2018.
In a development letter dated April 9, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish her claims for compensation for the periods December 23,
2017 to January 5, 2018. It advised her regarding the definition of the term disability under FECA
and the medical evidence required to establish her claims. OWCP afforded appellant 30 days to
provide the necessary evidence.
By decision dated April 9, 2018, OWCP denied appellant’s claim for intermittent wageloss compensation for the period January 6 through 19, 2018.
In an April 12, 2018 report, Dr. Bazal clarified the work excuses provided by his office.
He opined that the dates appellant missed work were due to her complaints and that she had not
been seen or evaluated on all the dates listed. Dr. Bazal attributed her work absences to her back
injury.
In a report dated May 1, 2018, Dr. Mark A. Wolgin, a Board-certified orthopedic surgeon,
noted that appellant’s onset of back pain began with an August 29, 2017 employment injury when
she tripped on a thick mat and fell and that she had been off work since December 21, 2017. He
summarized her medical history noting a history of fibromyalgia since 2010 and noted that her
current symptoms included constant low back pain radiating into her lower extremities.
Appellant’s physical examination findings were detailed. Dr. Wolgin diagnosed lumbar facet
arthropathy, chronic bilateral shoulder pain, chronic low back pain with bilateral sciatica, and some
degenerative changes. He opined that a component of her pain was likely due to her fibromyalgia
and unrelated to her fall.
Dr. Wolgin, in a May 1, 2018 work/school note, provided work restrictions which included
no frequent lifting, twisting, or bending, and no lifting more than five pounds. He explained that,
if work was not available within these restrictions, appellant should remain off work.
In a May 17, 2018 report, Dr. Konstantin S. Tsymbalov, a Board-certified physiatrist,
noted appellant’s history of injury and medical treatment. He reported that appellant had been
seen for lumbar pain complaints. Dr. Tsymbalov reviewed diagnostic testing and performed a
physical examination. Examination findings included mild antalgic gait on the right, straight leg
rising seated and rising positive for bilateral radicular pain, moderate lumbar paraspinal muscle
tenderness and spasm and mildly to moderate decrease lumbar range of motion. Dr. Tsymbalov
diagnosed chronic bilateral low back pain with bilateral sciatica.

3

On June 5, 2018 appellant was seen by Dr. Wolgin who noted that appellant was receiving
pain treatment from Dr. Tsymbalov. Dr. Wolgin reported that appellant’s examination findings
were unchanged. He diagnosed chronic bilateral low back pain with bilateral sciatica due to a fall,
chronic bilateral shoulder pain, and neck and thoracic pain. Dr. Wolgin opined that appellant’s
preexisting fibromyalgia had been aggravated by the accepted August 29, 2017 trip and fall. In
support of this conclusion, he explained that appellant’s back had been aggravated and she
developed bilateral shoulder, neck, and intrascapular pain following the trip and fall. Moreover,
Dr. Wolgin noted that appellant had no problem performing her duties and had no symptoms prior
to the accepted August 29, 2017 employment injury. He concluded that appellant had been and
continued to be totally disabled due to the accepted August 29, 2017 employment injury.
In work excuses dated June 5 and 7, 2018, Dr. Wolgin found appellant disabled from work
until further notice.
Dr. Tsymbalov, in a June 12, 2018 report, diagnosed chronic bilateral low back pain with
bilateral sciatica, lumbosacral radiculopathy, chronic pain syndrome subsequent to a fall, and
myofascial pain syndrome. He noted that appellant’s examination findings and review of
diagnostic testing were unchanged. Dr. Tsymbalov opined that it was likely that appellant’s
lumbar pain was due to lumbar spondylosis with radiculopathy.
On June 21 and 25, July 26 and 27, August 23, and September 10, 2018, OWCP received
Form CA-7 claims and accompanying Form CA-7a’s for the period December 23, 2017 to
August 31, 2018.7
In a June 28, 2018 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim for compensation for the periods December 23, 2017
and continuing. It advised her regarding the definition of the term disability under FECA and the
medical evidence required to establish her claim. OWCP afforded appellant 30 days to provide
the information requested.
A July 5, 2018 report from Dr. Wolgin diagnosed chronic bilateral low back pain with
bilateral sciatica and facet arthropathy. Dr. Wolgin reiterated that prior to her fall on August 29,
2017 appellant had no symptoms or difficulty performing her work duties. Thus, he concluded
that she sustained an aggravation of her preexisting lumbar degenerative condition.

7

On the Form CA-7a, appellant claimed 23.20 hours of LWOP for January 20, 22, 23, 25 to 27, 29, 30, February 1,
and 2, 2018 (2.20 hours per day), 23.20 hours for February 3, 5, 6, 8 to 10, 12, 13, 15, and 16, 2018 (2.209 hours per
day), 23.20 hours for February 17, 19 (federal holiday), 20, 22 to 24, 25, 27, March 1, and 2, 2018 (2.20 hours per
day), 23.20 hours for March 3, 5, 6, 8 to 10, 12, 13, 15, and 16, 2018, 23.20 hours for March 17, 19, 20, 22 to 24, 26,
27, 29 and 30, 2018, 23.20 hours for March 31, April 1, 3, 5 to 7, 9, 10, 12, and 13, 2018 (2.20 hours per day), 23.20
hours of LWOP for April 14, 16, 17, 19 to 21, 23, 24, 26, and 27, 2018 (2.20 hours per day), 7.00 hours of LWOP for
April 28, 30, and May 1, 2018, 23.40 hours for May 14, 16, 18, 21, 23 and 25, 2018 (3.90 hours per day), 23.40 hours
of LWOP for May 28, 30, June 1, 4, 6, and 8, 2018 (3.90 hours per day), 23.40 hours of LWOP for June 11, 13, 15,
18, 20, and 22, 2018 (3.90 hours per day) due to work injury with medical attached. (RD 1/25, 6/21, 25/2018) and
23.40 hours of LWOP for June 25, 27, 29, July 2, 4, and 6, 2018 (3.90 hours per day), 23.40 hours of LWOP for
July 9, 11, 13, 16, 18, and 20, 2018 (3.90 hours per day), 23.40 hours of LWOP for July 23, 25, 27, 30, August 1,
and 3, 2018 (3.90 hours per day), 23.40 hours of LWOP for August 6, 8, 10, 13, 15, and 17, 2018, 23.40 hours of
LWOP for August 20, 22, 24, 27, 29, and 31, 2018 (3.90 hours per day) (3.90 hours per day) noting she was placed
off work by her physician until further notice

4

In a July 10, 2018 report, Dr. Tsymbalov reported that appellant was seen for low back
pain with unchanged examination findings. He diagnosed chronic bilateral low back pain with
bilateral sciatica, lumbosacral radiculopathy, chronic pain syndrome, neuropathy, and lumbar facet
arthropathy. The work restrictions provided by Dr. Wolgin were unchanged.
Dr. Tsymbalov’s August 13, 2018 report noted diagnoses of myofascial pain syndrome,
chronic bilateral low back pain with bilateral sciatica, chronic pain syndrome, and neuropathy. He
attributed appellant’s lumbar radicular pain as likely due to lumbar spondylosis with radiculopathy
and myofascial in etiology. Dr. Tsymbalov noted her work restrictions were established by
Dr. Wolgin.
By decision dated September 20, 2018, OWCP affirmed the denial of appellant’s claim for
intermittent wage-loss compensation on and after December 23, 2017.
OWCP continued to receive progress reports from Dr. Wolgin dated September 6 and
November 1, 2018.
Dr. Wolgin, in a November 26, 2018 report, noted appellant’s history of injury and medical
treatment. He noted that appellant’s physical examination revealed moderate lumbosacral spine
tenderness with positive facet loading maneuvers and light touch skin tenderness, cervical spine
moderate tenderness with light tough skin tenderness, positive bilateral shoulder Neer and
Hawkins maneuvers, and negative straight leg reaching. Dr. Wolgin diagnosed chronic bilateral
low back pain with bilateral sciatica, lumbosacral radiculopathy, bilateral shoulder joint pain,
anxiety, lumbar facet arthropathy, chronic pain syndrome, and chronic neck pain with exacerbation
from fall. Regarding causation, he opined that the fall at work exacerbated her lumbar
radiculopathy and cervical and lumbar intervertebral disc disorder. In support of this opinion,
Dr. Wolgin explained that where there was preexisting lumbar degeneration any pressure, such as
a fall, on the spine worsened the lumbar condition. Pressure on the lumbar spine from the fall
increased the load on the discs and resulted in further disc protrusion. If the protrusion was far
enough, there can be nerve impingement and radicular pain. According to Dr. Wolgin, appellant
experienced this type of fall on August 29, 2017 and that the increased spinal pressure resulted in
L5-S1 disc protrusion and nerve impingement resulting in radicular symptoms. He explained that
the mechanism of the fall also caused increased neck pain and aggravation of her preexisting
cervical symptoms. Dr. Wolgin opined that the August 29, 2017 employment injury caused her
chronic pain syndrome due to the persistent pain signals caused by the fall. He observed that her
preexisting stenosis, disc protrusion, disc degeneration, and osteoarthritis made her less tolerant
and flexible to the August 29, 2017 fall at work. Thus, Dr. Wolgin determined that the accepted
August 29, 2017 fall at work resulted in an aggravation of her back pain and new bilateral shoulder,
neck, and interscapular region pain. With regards to her work status, he found appellant had been
totally disabled since her August 29, 2017 employment injury.
On December 13, 2018 appellant, through counsel, requested reconsideration of the
September 20, 2018 decision denying appellant’s claim for wage-loss compensation for
December 23, 2017 and continuing.
OWCP received a disability note and report dated February 4, 2019 from Dr. Wolgin in
which he reiterated his prior opinion that appellant remained disabled from work.
By decision dated March 12, 2019, OWCP denied modification.
5

On April 5, 2019 appellant, through counsel, requested reconsideration. In support of the
reconsideration request appellant submitted medical reports of Drs. Wolgin and Tsymbalov
previously of record.
By decision dated May 17, 2019, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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
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. Disability is thus not
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.11
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.12 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.13
ANALYSIS
The Board finds that this case is not in posture for a decision.
Dr. Wolgin, in a November 26, 2018 report, reiterated appellant’s history of injury, noted
her preexisting history of cervical and lumbar conditions and medical treatment, and presented
examination findings. He diagnosed chronic bilateral low back pain with bilateral sciatica,
lumbosacral radiculopathy, bilateral shoulder joint pain, anxiety, lumbar facet arthropathy, chronic
8

B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018).

9

Id.

10

20 C.F.R. § 10.5(f); B.O., supra note 7; N.M., Docket No. 18-0939 (issued December 6, 2018).

11

Id.

12

J.M., Docket No. 19-0478 (issued August 9, 2019).

13

R.H., Docket No. 18-1382 (issued February 14, 2019).

6

pain syndrome, and chronic neck pain. Dr. Wolgin reiterated that appellant’s conditions had been
aggravated by her employment injury. He explained that appellant’s fall at work exacerbated her
lumbar radiculopathy and cervical and lumbar intervertebral disc disorder because where there
was preexisting lumbar degeneration any pressure, such as a fall, on the spine worsened the lumbar
condition. Dr. Wolgin explained that pressure on the lumbar spine from the fall increased the load
on the discs and resulted in further disc protrusion and that if the protrusion was far enough, there
can be nerve impingement and radicular pain. He concluded that appellant experienced this type
of fall on August 29, 2017, which caused increased spinal pressure resulting in L5-S1 disc
protrusion and nerve impingement resulting in radicular symptoms. Moreover, Dr. Wolgin
concluded that the mechanism of the fall also caused increased neck pain and aggravation of her
preexisting cervical symptoms. He explained that appellant’s preexisting conditions made her less
tolerant and flexible when she fell at work on August 29, 2017. Dr. Wolgin opined that appellant’s
nerve impingement, L5-S1 disc protrusion, and radicular symptoms were causally related to the
August 29, 2017 employment injury. With regards to her work status, he found she had been
totally disabled from any type of work since her August 29, 2017 employment injury.
The Board finds that while Dr. Wolgin’s opinion regarding causal relationship lacks
sufficient medical rationale to meet appellant’s burden of proof to establish that her claim should
be expanded to include nerve impingement, L5-S1 disc protrusion with radicular symptoms, and
the resulting intermittent wage-loss compensation, it was based upon an accurate medical history
and provided medical rationale explaining how the forces of impact in the accepted employment
injury could result in or have aggravated the diagnosed conditions and resulting disability. As
such, the opinion of Dr. Wolgin is sufficient to require OWCP to further develop the medical
evidence in this claim.14
It is well established that proceedings under FECA are not adversarial in nature and OWCP
is not a disinterested arbiter.15 While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence and to see that
justice is done.16
The Board will remand the case to OWCP for further development of the medical evidence
to obtain a rationalized medical opinion as to whether the accepted employment injury of
August 29, 2017 was sufficient to have caused or aggravated cervical and lumbar conditions and
any resulting disability. OWCP should prepare a statement of accepted facts which includes the
accepted conditions of the case as well as appellant’s preexisting medical conditions and then
obtain a second opinion examination on the issue of causal relationship. It should also determine
whether appellant should be compensated for up to four hours per day for attendance at medical
examinations. After such further development as may be deemed necessary, OWCP shall issue a
de novo decision.

14
See A.M., Docket No. 18-1098 (issued April 22, 2019); R.H., Docket No. 17-1966 (issued March 6, 2018);
Donald R. Gervasi, 57 ECAB 281 (2005); John J. Carlone, 41 ECAB 354 (1989).
15

See A.M., Docket No. 18-0630 (issued December 10, 2018); Vanessa Young, 56 ECAB 575 (2004).

16

A.M., id.; M.B., Docket No. 17-0536 (issued June 22, 2017); Donald R. Gervasi, 57 ECAB 281, 286 (2005);
Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

7

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 17, 2019 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: August 5, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1265
Issued: January 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On May 24, 2012 appellant, through her attorney, filed a timely appeal from an April 23,
2012 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 her burden of proof to establish that her disability
commencing November 30, 2010 was causally related to her employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 23, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant’s attorney contends that OWCP’s decision was contrary to fact and
law.
FACTUAL HISTORY
OWCP accepted that appellant, then a 37-year-old clerk, sustained right shoulder bursitis
and tendinitis in the performance of duty as a result of picking up a tub on July 27, 2010. She
received continuation of pay and compensation for the period September 14 through
October 8, 2010. OWCP paid temporary total disability compensation for the period October 9
through November 28, 2010.
In an October 26, 2010 report, Dr. Danilo R. Manimtim, an orthopedic surgeon,
diagnosed right shoulder adhesive capsulitis and indicated that appellant injured her right
shoulder at work on July 27, 2010. He reported that x-rays of the right shoulder were performed
in the office and were unremarkable. Dr. Manimtim released appellant to modified-duty work
with the following restrictions: no lifting more than 20 pounds.
In a November 11, 2010 report, Deborah Wilk, a registered nurse, indicated that
appellant’s position as a clerk for the employing establishment was a full-time seasonal job and
required lifting 5 to 10 pounds at maximum.
By letter dated December 1, 2010, OWCP indicated that appellant returned to work for
1.5 hours on November 29, 2010 and then did not return to work. It requested a narrative report
from appellant’s physician to support the new period of disability and how it was causally related
to her accepted right shoulder conditions.
Appellant filed claims for disability (Form CA-7s) commencing November 30, 2010.
In a November 30, 2010 report, Dr. Manimtim reiterated his diagnosis and indicated that
he examined appellant regarding her right shoulder injury. Appellant stated that she was unable
to work, was unable to lift even a cup of coffee and had pain. Dr. Manimtim opined that she was
temporarily disabled for the period November 11 through December 15, 2010.
By letter dated December 21, 2010, OWCP afforded appellant 30 days to provide
medical evidence to support total disability beginning November 30, 2010.
Appellant submitted a December 29, 2010 report from Dr. Ajit S. Khaira, a Boardcertified internist, who indicated that she had been in constant pain since her July 27, 2010
injury. It was approximately two months before she received physical therapy and Dr. Khaira
opined that this was why she had adhesive capsulitis to the right shoulder. Appellant was still
feeling a burning pain in her right shoulder and her arm and hand were still going numb.
Dr. Khaira opined that she had chronic pain due to the shoulder trauma incident that occurred at
work. He released appellant to work on January 13, 2011.
By decision dated January 18, 2011, OWCP denied appellant’s claim for compensation
for the period beginning November 30, 2010 on the basis that the medical evidence failed to
establish that she was disabled for work due to the July 27, 2010 employment injury.

2

On February 4, 2011 appellant, through her attorney, requested a hearing before an
OWCP hearing representative and submitted a February 4, 2011 narrative statement. She also
submitted an unremarkable January 25, 2011 magnetic resonance imaging (MRI) scan of the
cervical spine and a September 2, 2010 MRI scan of the right shoulder, which revealed
inflammatory capsulitis and mild osteitis across the acromioclavicular (AC) joint, laterally
downsloping acromion with narrowed acromion outlet, subacromial-subdeltoid bursitis, a very
shallow partial-thickness bursal surface tear and mild-to-moderate cuff tendinopathy.
In a January 19, 2011 report, Dr. Khaira indicated that appellant had complained of neck
pain that could be related to her cervical spine, which is why he referred her to a neurologist.
Since the date of injury, appellant complained of neck and shoulder pain and numbness in the
fingers. She submitted absence from work notes by Dr. Khaira for the periods January 11
through February 9, 2011, February 8 through March 4, 2011 and March 8 through April 10,
2011 due to chronic shoulder and neck pain.
In an April 7, 2011 report, Dr. Sergio D. Ilic, a Board-certified orthopedic surgeon,
indicated that appellant picked up a bucket at work that she believed weighed approximately 20
to 25 pounds and felt pain in the right shoulder with a pop. Upon review of the medical evidence
of record and a physical examination, he diagnosed osteitis of the AC joint by MRI scan with
impingement syndrome, secondary to a July 27, 2010 employment injury. Dr. Ilic indicated that
appellant had some complaints that were not classic and were not compatible with any known
medical problems, such as the abnormal abduction and adduction tests and her complaints of
numbness when she had pain in the shoulder on a nonanatomical fashion. Appellant had many
positive Waddell’s tests, such as severe pain on the shoulder with barely touching it, the
nonanatomical numbness, the pain in the wrong places with the abduction and the adduction tests
and the severe restriction of the range of motion, which should be much better with the findings
she had on the MRI scan and x-rays.
On April 26, 2011 appellant, through her attorney, again requested a hearing via
telephone before an OWCP hearing representative and submitted an April 4, 2011
electrodiagnostic report by Dr. D. Kevin Lester, a Board-certified orthopedic surgeon,
demonstrating mild demyelinating neuropathy of bilateral upper extremities and work absence
notes from Dr. Khaira for the periods April 5 to May 4, 2011 due to mild demyelinating
neuropathy of bilateral upper extremities and May 31 to August 24, 2011 due to right shoulder
pain.
On June 8, 2011 a hearing was held via telephone before an OWCP hearing
representative. Appellant provided testimony and the hearing representative held the case open
for 30 days for the submission of additional evidence.
Subsequently, appellant submitted a May 31, 2011 report by Dr. Manimtim who
indicated that she did not have multiple sclerosis and found positive impingement of the right
shoulder upon physical examination. She indicated that she was unable to work due to pain. In a
July 6, 2011 report, Dr. Khaira indicated that as her pain became chronic it started affecting the
neck secondary to her pain in the right shoulder. On December 15, 2010 he diagnosed “locked
up” shoulder and appellant was told that she could not do any work from any job. Dr. Khaira
advised her to rest and not work.

3

By decision dated August 5, 2011, an OWCP hearing representative affirmed the
January 18, 2011 decision. She noted that, as appellant’s regular-duty position required lifting
less than 10 pounds, she was essentially released to return to full duty by Dr. Manimtim on
October 26, 2010.
On January 26, 2012 appellant, through her attorney, requested reconsideration and
submitted an August 11, 2011 absence from work note from Dr. Khaira releasing her to return to
work with special limitations of no lifting due to right shoulder pain and a November 16, 2011
report by Dr. Khaira who provided medical explanations of the pain caused by bursitis, tendinitis
and torn rotator cuff of the right shoulder.
By decision dated April 23, 2012, OWCP denied modification of the August 5, 2011
decision on the basis that the medical evidence failed to establish that appellant was disabled
commencing November 30, 2010 due to the employment injury.
LEGAL PRECEDENT
Section 8102(a) of FECA3 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”4 This meaning, for brevity, is expressed as disability for work.5
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.6 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable, probative and substantial
medical evidence.7
Disability is not 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 his
or her federal employment, but who nonetheless 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 under FECA and is not
entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the

3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
5

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

6

See William A. Archer, 55 ECAB 674 (2004).

7

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

4

particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.8
ANALYSIS
The Board finds that appellant has not established that she was disabled commencing
November 30, 2010 causally related to her employment injury. While OWCP accepted that she
sustained an employment injury, she bears the burden to establish through medical evidence that
she was disabled during the claimed time periods and that her disability was causally related to
her accepted injury.9 The Board finds that appellant submitted no rationalized medical evidence
explaining how the employment injury materially worsened or aggravated her right shoulder
conditions and causing disability from work beginning November 30, 2010.
In his reports, Dr. Khaira opined that appellant had adhesive capsulitis to the right
shoulder due to an approximately two-month waiting period before she received physical therapy
for her employment injury. On July 6, 2011 he indicated that as her pain became chronic it
started affecting the neck secondary to her pain in the right shoulder. Dr. Khaira advised
appellant to rest and not work. He provided absence from work notes for intermittent periods
from January 11 through August 24, 2011 and released her to return to work with no lifting
restrictions on August 11, 2011. Although Dr. Khaira provided a firm diagnosis and opined that
appellant was disabled, he failed to provide a rationalized medical explanation as to why she had
employment-related residuals and how the residuals of the employment injury prevented her
from continuing in her federal employment.
In his reports, Dr. Manimtim diagnosed right shoulder adhesive capsulitis and indicated
that appellant injured her right shoulder at work on July 27, 2010. On November 30, 2010 he
reported that she stated that she had pain and was unable to work. Dr. Manimtim opined that
appellant was temporarily disabled for the period November 11 through December 15, 2010. On
May 31, 2011 he found positive impingement of the right shoulder. Appellant indicated that she
was unable to work due to pain. The Board has held that when a physician’s statement regarding
an employee’s ability to work consists only of a repetition of the employee’s complaints that she
hurts too much to work without objective signs of disability being shown, the physician has not
presented a medical opinion on the issue of disability or a basis for payment of compensation.10
Although Dr. Manimtim provided a firm diagnosis and opined that appellant was disabled, he
failed to provide a rationalized medical explanation as to why she had employment-related
residuals and how the residuals of the employment injury prevented her from continuing in her
federal employment.
In his April 4, 2011 report, Dr. Lester diagnosed mild demyelinating neuropathy of
bilateral upper extremities. As he failed to offer any probative medical opinion on whether

8

Id.

9

See supra notes 6 and 7. See also V.P., Docket No. 09-337 (issued August 4, 2009).

10

See William A. Archer, supra note 6.

5

appellant was disabled on the dates at issue due to her accepted conditions, his report is of
diminished probative value.11
The September 2, 2010 and January 25, 2011 MRI scans are diagnostic in nature and
therefore do not address the issue of appellant’s disability commencing November 30, 2010. As
such, the Board finds that they are insufficient to establish her claim.
Appellant has not submitted any rationalized medical evidence establishing that she was
disabled commencing November 30, 2010 causally related to the employment injury. Thus, she
has not met her burden of proof to establish that she is entitled to compensation for any
disability.
On appeal, appellant’s attorney contends that OWCP’s decision was contrary to fact and
law. For the reasons stated above, the Board finds that the attorney’s argument is not
substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
disability commencing November 30, 2010 was causally related to her employment injury.

11

See Sandra D. Pruitt, 57 ECAB 126 (2005). See also V.P., supra note 9.

6

ORDER
IT IS HEREBY ORDERED THAT the April 23, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 10, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cranston, RI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0921
Issued: March 15, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On May 27, 2021 appellant filed a timely appeal from a January 28, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as Docket No. 21-0921.
On August 24, 2020 appellant, then a 34-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on August 18, 2020 she sustained shoulder and lower back sprains
when trying to avoid a dog attack while in the performance of duty. She stopped work on
August 18, 2020.
On August 20, 2020 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16) authorizing appellant to seek medical care related to
her back strain. The portion of the form designated as Part B attending physician’s report was
signed on August 20, 2020 by Dr. Alexandra S. Ruggiero, a Board-certified family medicine
physician, who noted appellant’s history of injury and diagnosed a muscle strain. In a duty status
form (Form CA-17) dated August 20, 2020, Dr. Ruggiero diagnosed lumbar and right shoulder
strains due to the claimed August 20, 2020 employment incident.
OWCP subsequently received CA-17 form reports dated August 27 and September 3
and 17, 2020 diagnosing low back muscle sprain/pain/low back pain, and narrative reports dated

August 27 and September 3, 2020 diagnosing acute midline low back pain without sciatica and
acute left-side low back pain without sciatica from Dr. Manoj Garg, an osteopath Board-certified
in family practice. In August 27, 2020 x-ray report, Dr. Christina Pinto, an osteopath Boardcertified in family medicine, diagnosed mild multilevel degenerative disc disease most pronounced
in the lower thoracic and lower lumbar spine. OWCP also received an August 27, 2020 report
from Dr. Mark Mulak, a chiropractor, who diagnosed lower back and thorax muscle and tendon
strains and thoracic and lumbar segmental and somatic dysfunction, which he attributed to the
claimed August 18, 2020 employment incident.
By decision dated October 2, 2020, OWCP denied the claim, finding that appellant failed
to submit any medical evidence diagnosing a medical condition in connection with the accepted
August 24, 2020 employment incident. It concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA.
Subsequent to the denial of her claim, OWCP received an October 1, 2020 Form CA-17
from Dr. Garg diagnosing low back and right shoulder strain, and an October 22, 2020 Form
CA-17 which diagnosed lumbar strain from Barbara Burchard, an advanced practice registered
nurse.
On October 23 and November 2, 2020 appellant requested reconsideration. She submitted
a November 4, 2020 report and referral by Ms. Burchard.
By decision dated January 28, 2021, OWCP denied modification. It found that the medical
evidence of record did not include a valid diagnosis from a qualified physician under FECA.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.
OWCP denied appellant’s claim finding that the medical evidence of record did not
establish a diagnosed medical condition. It however failed to review the August 20, 2020 Part B
attending physician’s report and August 20, 2020 Form CA-17 report from Dr. Ruggiero. In the
case of William A. Couch,1 the Board held that, when adjudicating a claim, OWCP is obligated to
consider all evidence properly submitted by a claimant and received by OWCP befo re the final
decision is issued. As the Board’s decisions are final as to the subject matter appealed, it is crucial
that all evidence relevant to the subject matter of the claim which was properly submitted to OWCP
prior to the time of issuance of its final decision be reviewed and addressed by OWCP. 2 Because
OWCP did not review and address the August 20, 2020 medical evidence from Dr. Ruggiero, the
Board cannot review such evidence for the first time on appeal.3 The case will therefore be
remanded to OWCP to enable a proper consideration of the evidence that was of record at the time

1

41 ECAB 548 (1990).

2

Id.; see also E.P., Docket No. 20-0655 (issued March 17, 2021); J.S., Docket No. 18-1111 (issued April 30, 2020);
S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004).
3

20 C.F.R. § 501.2(c). A.C., Docket No. 20-0917 (issued January 27, 2021); E.P., id.

2

of its January 28, 2021 decision to be followed by an de novo decision regarding appellant’s
request for reconsideration. Accordingly,
IT IS HEREBY ORDERED THAT the January 28, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 15, 2022
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, FLORISSANT MAIN
POST OFFICE, Florissant, MO, Employer
__________________________________________

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

Docket No. 21-1270
Issued: March 21, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 18, 2021 appellant filed a timely appeal from a July 15, 2021 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 met his burden of proof to establish disability from work
for the period May 3 through August 30, 2020, causally related to his accepted December 12, 2019
employment injury.
FACTUAL HISTORY
On December 16, 2019 appellant, then a 62-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 12, 2019 he injured his right shoulder and lower
1

5 U.S.C. § 8101 et seq.

back when he picked up a parcel while in the performance of duty. He stopped work on
December 17, 2019 and returned on December 24, 2019.
By decision dated September 8, 2020, OWCP accepted the condition of right rotator cuff
capsule sprain, initial encounter.
In support of his disability claim, appellant submitted a June 6, 2020 report by
Dr. Jonathan L. Ben-Zev, an orthopedic surgeon, who diagnosed right shoulder pain, unspecified
chronicity, and ordered diagnostic testing.
In a June 8, 2020 right shoulder magnetic resonance imaging (MRI) scan report,
Dr. Stephen B. Huebner, a Board-certified diagnostic radiologist, provided an impression of highgrade supraspinatus tendon tear, including at least two areas of full-thickness tear and mild muscle
atrophy, moderate infraspinatus tendinosis and possible small partial thickness tear and moderate
subscapularis tendinosis, moderate acromioclavicular (AC) osteoarthritis, and minimal
glenohumeral arthritis and small tear of the superior glenoid labrum.
An August 31, 2020 operative report by Dr. Scott G. Kaar, an attending Board-certified
orthopedic surgeon, provided preoperative and postoperative diagnoses of right shoulder rota tor
cuff tear involving the supraspinatus tendons, and AC joint arthritis. Dr. Kaar performed right
shoulder arthroscopic rotator cuff repair, subacromial decompression, and distal clavicle excision.
In progress notes dated September 15 and October 13, 2020, he provided an impression that
appellant was six weeks status post right shoulder arthroscopic rotator cuff repair, subacromial
decompression, and distal clavicle excision. Dr. Kaar noted appellant’s physical restrictions.
Appellant filed a claim for compensation (Form CA-7) for disability from work for the
period May 3, 2020 and continuing.
OWCP, in a November 30, 2020 development letter, informed appellant of the deficiencies
in his claim and requested that he submit medical evidence to support his reported surgery and
disability during the period claimed causally related to the accepted December 12, 2019
employment injury. It afforded him 30 days to respond.
In response, appellant submitted an undated statement in which he described his
December 12, 2019 employment injury and resultant medical treatment. He also submitted
medical evidence.
In progress notes dated June 11, 2020, Dr. Jeffrey C. Faron, a Board-certified internist,
noted appellant’s left shoulder pain. He indicated that there were no contraindications for
appellant’s planned right shoulder surgery.
An additional progress note dated August 11, 2020 and letters dated September 15,
October 16, and December 11, 2020 by Dr. Kaar noted an impression of full-thickness
supraspinatus tear with, mild retraction, mild supraspinatus atrophy and partial thickness tearing
involving the supraspinatus, subscapularis tendinosis, ﬂuid along the biceps, and moderate AC
joint arthrosis. Additionally, he noted that appellant was doing well status post appellant’s
August 31, 2020 arthroscopic right shoulder surgery. In the October 16, 2020 letter, Dr. Kaar

2

advised that appellant was unable to work beginning March 26, 2020 and continuing following his
August 31, 2020 surgery.
OWCP subsequently received additional medical evidence. In letters dated October 13 and
November 24, 2020 and January 5, 2021, Dr. Kaar reiterated that appellant was status post
arthroscopic right shoulder surgery and was “doing well.” In the January 5, 2021 letter, he advised
that appellant would remain off work until his next visit. Dr. Kaar, in a March 5, 2021 letter,
opined that appellant’s full-thickness rotator cuff tear and AC joint arthrosis and resultant
August 31, 2020 surgery were directly related to appellant’s December 2019 employment injury.
In a March 11, 2021 letter, Dr. Karr restated his opinion that appellant’s right rotator cuff
and bicep tear and resultant August 31, 2020 surgical repair was due to his December 12, 2019
employment injury. He advised that appellant could return to full-duty work without restrictions
as of March 9, 2021.
OWCP, by decision dated July 15, 2021, denied appellant’s claim for disability from work
for the period May 3 through August 30, 2020 because the medical evidence of record was
insufficient to establish disability.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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.3 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.4 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.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.6 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a

2

Supra note 1.

3

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).
4

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
5

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

6

Id. at § 10.5(f); see e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

3

medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.7
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.8 The opinion of the physician 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 incident identified
by the employee.9
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. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period May 3 through August 30, 2020, causally related to his accepted December 12,
2019 employment injury.
In support of his disability claim, appellant submitted progress notes and letters from
Dr. Kaar. Dr. Kaar’s August 11, 2020 progress note provided an impression of full-thickness
supraspinatus tear with, mild retraction, mild supraspinatus atrophy and partial thickness tearing
involving the supraspinatus, subscapularis tendinosis’ ﬂuid along the biceps, and moderate AC
joint arthrosis. He also provided an impression that appellant was doing well status post
arthroscopic right shoulder surgery. However, Dr. Kaar offered no opinion regarding appellant’s
disability status during the period May 3 through August 30, 2020. The Board has held that
medical evidence that does not provide an opinion as to whether a period of disability is due to an
accepted employment condition is insufficient to meet a claimant’s burden of proof. 11 In an
October 16, 2020 letter, Dr. Kaar noted appellant’s inability to work commencing March 26, 2020
and continuing following his authorized August 31, 2020 surgery. While he noted appellant’s
inability to work on the claimed dates, he did not provide any medical reasoning to support his
opinion on disability nor did he attribute appellant’s disability to the accepted December 12, 2019

7

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

8

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

9

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
10

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, supra note 4.
11

See B.M., Docket No. 20-0826 (issued May 10, 2021); Y.D., Docket No. 20-0097 (issued August 25, 2020); M.A.,
Docket No. 19-1119 (issued November 25, 2019); S.I., Docket No. 18-1582 (issued June 20, 2019).

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employment injury. 12 Dr. Kaar’s remaining letters dated September 15, 2020 through March 5,
2021 do not address appellant’s inability to work on the claimed dates. 13 For these reasons, the
Board finds that his letters and progress note are insufficient to establish appellant’s disability
claim.
Appellant also submitted progress notes by Dr. Faron dated June 11, 2020. The Board
finds that Dr. Faron’s progress notes are of no probative value as they did not address appellant’s
disability status and are therefore insufficient to establish the disability claim. 14
Likewise, Dr. Ben-Zev’s June 6, 2020 report diagnosed right shoulder pain, unspecified
chronicity, but does not offer an opinion regarding appellant’s disability status during the claimed
period.15 For this reason, the Board finds that this evidence from Dr. Ben-Zev is insufficient to
establish appellant’s disability claim.
The record also contains diagnostic reports. However, the Board has long held, however,
that diagnostic studies, standing alone, lack probative value as they do not address whether the
employment injury caused any of the diagnosed conditions or associated disability. 16 For this
reason, the Board finds that the diagnostic reports of record are insufficient to establish appellant’s
disability claim.
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 17 Because appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related total disability during the claimed period due to his
accepted condition, the Board finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.

12

M.A., Docket No. 20-0033 (issued May 11, 2020); F.S., Docket No. 18-0098 (issued August 13, 2018); P.W.,
Docket No. 17-0154 (issued June 9, 2017).
13
M.A., id.; C.S., Docket No. 19-1279 (issued December 30, 2019); L.B., Docket No. 18-0533 (issued August 27,
2018); D.K., Docket No. 17-1549 (issued July 6, 2018); see also William A. Archer, supra note 10 (the Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly addressing the specific
dates of claimed disability).
14
S.S., Docket No. 21-0763 (issued November 12, 2021); M.V., Docket No. 20-0872 (issued January 27, 2020);
P.R., Docket No. 20-0596 (issued October 6, 2020); M.L., Docket No. 18-1058 (issued November 21, 2019); D.J.,
Docket No. 18-0200 (issued August 12, 2019).
15

Supra note 13.

16

See T.W., Docket No. 20-1669 (issued May 6, 2021); J.S., Docket No. 17-1039 (issued October 6, 2017).

17

Supra note 5.

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period May 3 through August 30, 2020, causally related to his accepted December 12,
2019 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 21, 2022
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, MILL NECK POST
OFFICE, Mill Neck, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0575
Issued: March 22, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On March 7, 2022 appellant filed an appeal from a January 13, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0575.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the January 13, 2021 decision was July 12, 2021. As appellant
did not file an appeal with the Board until March 7, 2022, more than 180 days after the
January 13, 2021 OWCP decision, the Board finds that the appeal docketed as No. 2 2 -05 75 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not
explained her failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances. Because there is no final adverse decision issued by OWCP
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

within 180 days of the filing of the instant appeal, the Board concludes that the appeal docketed
as No. 22-0575, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0575 is dismissed.
Issued: March 22, 2022
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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2