D.J. and Department of Homeland Security, Transportation Security Administration, Orlando, FL (Board decision, November 17, 2009)

ECAB final decision on this appeal. The Board affirmed OWCP's June 30, 2008 and February 6, 2009 denials of wage loss compensation for December 4, 2007 through February 2, 2008. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board specifies another period. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

D.J., a transportation security officer, had accepted cervical and thoracic sprains from a work incident. He claimed wage loss for disability over roughly two months. The Board found that the submitted certificates did not give a reasoned medical explanation connecting inability to work on the claimed dates to those accepted sprains. Three certificates came from two chiropractors who had not diagnosed an x-ray confirmed spinal subluxation. A physician’s certificate did not address the cause of disability. The Board affirmed denial of the claimed wage loss compensation.

Decision snapshot

• Authority: FECA wage loss claim; definition of physician for chiropractic evidence under 5 U.S.C. § 8101(2).
• Outcome: June 30, 2008 and February 6, 2009 wage loss denials affirmed.
• Key point: Disability on the claimed dates required competent medical evidence linking it to the accepted work injuries.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.J., Appellant
)
)
and ) Docket No. 09-1196
) Issued: November 17, 2009
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Orlando, FL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION

On April 2, 2009 appellant, through his attorney, filed a timely appeal of the June 30, 2008 merit decision of the Office of Workers’ Compensation Programs and the February 6, 2009 Office hearing representative’s merit decision, respectively, denying his claim for wage-loss compensation. 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 is entitled to wage-loss compensation for disability from December 4, 2007 to February 2, 2008 due to his accepted employment-related injuries.

FACTUAL HISTORY

On January 10, 2008 appellant, then a 62-year-old transportation security officer, filed a traumatic injury claim alleging that on December 2, 2007 he experienced severe pain in his upper back radiating down his left arm to below the elbow and lesser pain in his right shoulder as a result of moving a chair on wheels and a stripped station or closed sign, and reaching into a storage bin. He stopped work on December 22, 2007.1 By letter dated February 20, 2008, the Office accepted appellant’s claim for cervical and thoracic sprains.

On February 27, 2008 appellant filed claims for wage-loss compensation for the period December 4, 2007 to February 2, 2008. Time analysis forms indicated that he was off work during the claimed period. In an undated narrative statement, appellant described his employment-related and nonemployment-related accidents covering the period 1953 to December 22, 2007. An undated disability certificate of a physician whose signature is illegible stated that appellant could return to full-duty work on December 26, 2007. A December 28, 2007 disability certificate of Dr. David Nahali, a chiropractor, advised that appellant was unable to work until January 3, 2008 due to an automobile accident. In a January 4, 2008 disability certificate, he reported that appellant was unable to work until further notice. A December 31, 2007 disability certificate of Dr. Christopher C. Lingan, Board-certified in emergency medicine, advised that appellant could return to light-duty work as of January 3, 2008. In a January 16, 2008 disability certificate, Dr. Mark Ott, a chiropractor, stated that appellant was unable to work.

By letter dated April 28, 2008, the Office advised appellant that the evidence submitted was insufficient to establish his claim. It requested that he submit medical evidence establishing he was totally disabled from December 4, 2007 to February 2, 2008 due to his accepted December 2, 2007 employment injuries. Appellant was afforded 30 days to submit the requested evidence. He did not respond.

By decision dated June 30, 2008, the Office denied appellant’s claim for wage-loss compensation for the period December 4, 2007 to February 2, 2008. It found the evidence insufficient to establish that he was totally disabled due to his accepted December 2, 2007 employment-related injuries. In a July 8, 2008 letter, appellant, through counsel, requested a telephonic hearing before an Office hearing representative.

By decision dated February 6, 2009, an Office hearing representative affirmed the June 30, 2008 decision. He found the evidence insufficient to establish that appellant was disabled from December 4, 2007 to February 2, 2008 due to his accepted employment injuries.

LEGAL PRECEDENT

Under the Federal Employees’ Compensation Act, the term disability is defined as an inability, due to an employment injury, to earn the wages the employee was receiving at the time of the injury, i.e., an impairment resulting in loss of wage-earning capacity.2 For each period of disability claimed, the employee has the burden of establishing that he was disabled for work as a result of the accepted employment injury.3 Whether a particular injury causes an employee to become disabled for work and the duration of that disability are medical issues that must be proved by a preponderance of probative and reliable medical opinion evidence.4 The fact that a 1 In a February 20, 2008 decision, the Office denied appellant’s claim for continuation of pay.
2
See Prince E. Wallace, 52 ECAB 357 (2001).
3
Dennis J. Balogh, 52 ECAB 232 (2001).
4
Gary J. Watling, 52 ECAB 278 (2001).

2 condition manifests itself during a period of employment does not raise an inference that there is a causal relationship between the two.5 The Board will not require the Office 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 disability and entitlement to compensation.6

ANALYSIS

The Office accepted that appellant sustained cervical and thoracic sprains while in the performance of duty on December 2, 2007. Appellant sought compensation for wage loss, contending that he was totally disabled from December 4, 2007 to February 2, 2008. He has the burden of establishing by the weight of the substantial, reliable and probative evidence a causal relationship between the claimed disability and the accepted conditions.7 The Board finds that appellant did not submit sufficient medical evidence to establish employment-related disability for the period claimed due to his accepted injuries.

The Board finds that Dr. Nahali’s and Dr. Ott’s disability certificates are insufficient to establish appellant’s claim. The term “physician” under 8101(2) of the Act includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.8 Neither Dr. Nahali nor Dr. Ott diagnosed a spinal subluxation based on x-ray. Therefore, their disability certificates are of no probative medical value.9

Dr. Lingan’s December 31, 2007 disability certificate advised that appellant could return to light-duty work as of January 3, 2007. However, he did not address the issue of whether appellant’s total disability during the claimed period was causally related to his accepted December 2, 2007 employment injuries. The Board finds, therefore, that Dr. Lingan’s disability certificate is insufficient to establish appellant’s claim.

The undated disability certificate, which contained an illegible signature, does not constitute probative medical evidence as this evidence lacks any indication that it was completed by a physician.10

Appellant has failed to submit rationalized medical evidence establishing that his disability during the period December 4, 2007 to February 2, 2008 resulted from the residuals of his accepted employment-related cervical and thoracic sprains.

5
Manuel Garcia, 37 ECAB 767 (1986).
6
Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).
7
Alfredo Rodriguez, 47 ECAB 437 (1996).
8
5 U.S.C. § 8101(2); see Paul Foster, 56 ECAB 208 (2004).
9
See Michelle Salazar, 54 ECAB 523 (2003).
10
See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

3
 CONCLUSION

The Board finds that appellant has not met his burden to establish entitlement to wage- loss compensation for total disability from December 4, 2007 to February 2, 2008 due to his accepted employment-related injuries.

ORDER

IT IS HEREBY ORDERED THAT the February 6, 2009 and June 30, 2008 decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: November 17, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4