C.C. and U.S. Postal Service, Mackenzie Pointe Post Office (Board decision, March 8, 2024)

ECAB final decision. The Board affirmed OWCP’s decision. A party may petition the Board for reconsideration within 30 days of issuance unless this order 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

A postal carrier sought wage-loss compensation starting with an accepted 2019 left ankle injury. The Board found that several physicians reported symptoms or work status without explaining how the accepted sprain caused disability for the claimed period. One physician had returned him to limited work. It affirmed OWCP’s denial.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Disability claim denied.
• Key point: The medical reports did not establish injury-related inability to work.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.C., Appellant
)
)
and ) Docket No. 23-0998
)
Issued: March 8, 2024
U.S. POSTAL SERVICE, MACKENZIE POINTE )
POST OFFICE, St. Louis, MO, Employer )
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 21, 2023 appellant filed a timely appeal from a June 21, 2023 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 commencing November 25, 2019 causally related to his accepted November 25, 2019 employment injury.

FACTUAL HISTORY

On November 25, 2019 appellant, then a 41-year-old mail carrier, filed a traumatic injury claim (Form CA-1) alleging that on that same date he injured his low back, ankle, hand, and

1
5 U.S.C. § 8101 et seq. hamstring when he fell down steps and landed on his back while in the performance of duty. He stopped work on November 26, 2019. OWCP accepted the claim for left ankle sprain.

OWCP received a November 25, 2019 report, prescription slips, and a work slip signed by Lori McLeod, a physician assistant. She held appellant off work until after evaluation by a physician. An accompanying November 25, 2019 hospital emergency department after-visit summary listed diagnoses of left ankle sprain, left hamstring muscle strain, lumbar strain, head injury, fall, and work-related injury.

Appellant was then followed by Dr. Richard Derby, Board-certified in family practice and sports medicine. In reports from December 3, 2019 through January 20, 2020, Dr. Derby recounted that appellant had been off work since the November 25, 2019 injury, as he did not feel ready to resume prolonged walking. He diagnosed sprains of the left foot and ankle. He returned appellant to limited-duty work as of December 18, 2019, with up to four hours of intermittent standing and walking, and up to two hours intermittent climbing. Dr. Derby found that appellant had reached maximum medical improvement (MMI) as of January 20, 2020.

In a December 18, 2019 report, Dr. Miguel H. Granger, Board-certified in family practice, recounted a history of the November 25, 2019 injury. He noted that appellant required work restrictions commencing October 26, 2019, and was disabled from work commencing November 26, 2019. Dr. Granger provided periodic reports through July 8, 2020 noting appellant’s continued left ankle and lumbar symptoms, which interfered with sitting and other physical activities. He diagnosed musculoskeletal pain and headache.

In January 27 and February 3, 2020 reports, Dr. Gordon K.T. Chu, a neurosurgeon, recounted appellant’s symptoms of left ankle and lumbar pain. He noted that appellant had not returned to work. Dr. Chu diagnosed acute left ankle pain, left foot pain, acute bilateral low back pain with left-sided sciatica, and paraspinal muscle spasm. He prescribed medication and physical therapy.

In a July 13, 2020 report, Dr. Jeffrey H. Citrin, a chiropractor, opined that the November 25, 2019 employment incident caused lumbar subluxation/nerve root compression. In a May 5, 2021 report, Dr. Citrin clarified that he had diagnosed subluxation at L4-5 and L5-S1 based on April 28, 2020 x-rays.

In a July 20, 2020 report, Dr. Chu reviewed a June 29, 2020 lumbar magnetic resonance imaging (MRI) scan, which demonstrated mild multilevel degenerative changes. He released appellant from care.

On March 2, 2023 OWCP received a claim for compensation (Form CA-7) for disability from work commencing November 25, 2019.

In a March 3, 2023 development letter, OWCP informed appellant of the deficiencies of his March 2, 2023 claim for compensation. It advised him of the type of medical evidence needed to establish his claim and afforded him 30 days to respond.

OWCP subsequently received an October 20, 2022 work slip by Dr. Granger, holding appellant off work until cleared by a specialist.

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 By decision issued April 18, 2023, OWCP denied appellant’s March 2, 2023 claim for compensation, finding that the medical evidence of record was insufficient to establish disability from work commencing November 25, 2019, causally related to the accepted November 25, 2019 employment injury.

On April 27, 2023 appellant requested reconsideration and submitted additional evidence.2

In reports dated from January 11 through April 12, 2023, Dr. Mia Thouvenot, a podiatrist, diagnosed left plantar fasciitis, tibialis posterior tendinitis, acquired deformity of right foot, acquired deformity of left foot, bilateral foot pain, and bilateral Achilles tendinitis.

In an April 14, 2023 letter, Dr. Thouvenot noted that appellant had applied for disability retirement. She opined that appellant’s bilateral foot pain, ankle pain, plantar fasciitis, Achilles tendinitis, and posterior tibial tendinitis, had arisen or worsened during the past few years. Dr. Thouvenot opined that these conditions directly impacted appellant’s ability to perform his job as a letter carrier. She recommended that appellant retire because he was medically unable to walk extended distances while carrying heavy weight.

By decision issued June 21, 2023, OWCP denied modification of the April 18, 2023 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of proof to establish the essential elements of his or her claim, including that any disability for which compensation is claimed is causally related to the employment injury.3 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.4

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.5

The medical evidence required to establish causal relationship between a claimed period of disability and an accepted employment injury is rationalized medical opinion evidence. The

2
OWCP also received medical records dated from December 15, 2021 through January 9, 2023 addressing sleep apnea, rhinitis, erectile dysfunction, and an eating disorder, and an incomplete medical report dated May 18, 2023.

3
S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009);
Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989); see also Nathaniel Milton, 37 ECAB 712 (1986).

4
20 C.F.R. § 10.5(f); B.O., Docket No. 19-0392 (issued July 12, 2019); N.M., Docket No. 18-0939 (issued December 6, 2018).
5
Id.

3 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 claimed disability and the accepted employment injury.6

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 their disability and entitlement to compensation.7

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish disability from work commencing November 25, 2019 causally related to his accepted November 25, 2019 employment injury.

Dr. Derby, in reports dated from December 3, 2019 through January 20, 2020, recounted that appellant felt unable to return to work, but did not express an independent opinion finding him disabled from work due to the accepted left ankle sprain. Moreover, he returned appellant to limited-duty work effective December 18, 2019, indicating that appellant was not totally disabled from work as of that date. Similarly, Dr. Chu noted in a January 27, 2020 report that appellant had not returned to work, but did not find him disabled for work. The Board has held that medical evidence that fails to provide an opinion that an employee was disabled from work during the claimed period of disability due to the accepted employment injury is of no probative value.8 For this reason, the reports of Dr. Derby and Dr. Chu are insufficient to establish appellant’s disability claim.

Dr. Granger, in a December 18, 2019 report, noted work restrictions commencing October 26, 2019, prior to the accepted injury, then found appellant disabled from work commencing November 26, 2019. He noted in reports through July 8, 2020 that appellant’s left ankle symptoms interfered with physical activity. In an October 20, 2022 work slip, Dr. Granger held appellant off work pending clearance by a specialist. However, he did not provide an opinion on causal relationship between appellant’s disability and the accepted employment injury. The Board has held that medical evidence that does not provide an opinion on causal relationship is of no probative value.9 Therefore, Dr. Granger’s medical reports are insufficient to establish appellant’s disability claim.

Dr. Thouvenot, in reports dated from January 11 through April 14, 2023, diagnosed left plantar fasciitis, tibialis posterior tendinitis, acquired deformity of the bilateral feet, bilateral foot pain, and bilateral Achilles tendinitis. She opined that the diagnosed conditions prevented

6
T.T., Docket No. 18-1054 (issued April 8, 2020).
7
J.R., Docket No. 23-0215 (issued July 28, 2023); K.G., Docket No. 22-1358 (issued June 27, 2023); B.M., Docket No. 19-1075 (issued February 10, 2021); R.A., Docket No. 19-1752 (issued March 25, 2020); A.W., Docket No. 18-0589 (issued May 14, 2019); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

8
J.R., id., H.A., Docket No. 20-1555 (issued December 22, 2022).

9
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

4 appellant from prolonged walking and carrying as required by his date-of-injury position as a mail carrier. While Dr. Thouvenot opined that appellant was disabled from work, she did not provide medical rationale explaining why his disability was due to the accepted left ankle sprain. Instead, he attributed appellant’s disability to nonaccepted conditions.10 Thus, these reports are insufficient to establish appellant’s disability claim.11

Dr. Citrin diagnosed spinal subluxations by x-ray12 but did not address whether appellant was disabled from work during the claimed period. As discussed, medical evidence that does not address the specific period of disability claimed is of no probative value.13 Therefore, Dr. Citrin’s reports are insufficient to establish appellant’s disability claim.14

OWCP also received a November 25, 2019 work slip signed by Ms. McLeod, a physician assistant, holding appellant off work pending evaluation by a physician, and physical therapy treatment notes signed by physical therapists. Certain health care providers such as physician assistants and physical therapists are not considered physicians as defined under FECA.15 Consequently, these reports will not suffice for purposes of establishing entitlement to FECA benefits.16 Accordingly, this evidence is also insufficient to establish appellant’s disability claim.

10
S.C., Docket No. 20-0327 (issued May 6, 2021); see E.B., Docket No. 17-0875 (issued December 13, 2018);
C.L., Docket No. 16-0004 (issued June 14, 2016).

11
S.C., id.
12
FECA, at 5 U.S.C. § 8101(2), provides that the term physician, as used therein, 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 and subject to regulation by the Secretary. L.M., Docket No. 22-0667 (issued November 1, 2022); T.H., Docket No. 18-1736 (issued March 13, 2019). OWCP’s implementing federal regulation at 20 C.F.R. § 10.5(bb) defines subluxation as an incomplete dislocation, off-centering, misalignment, fixation or abnormal spacing of the vertebrae, which must be demonstrated on x-ray. As Dr. Citrin diagnosed a subluxation as demonstrated by x-ray, he is considered a physician under FECA and his reports constitute probative medical evidence. See T.H., Docket No. 17-0833 (issued September 7, 2017); George E. Williams, 44 ECAB 530 (1993); Robert H. St. Onge, 43 ECAB 1169 (1992).

13
A.S., Docket No. 21-1263 (issued July 24, 2023); see D.P., Docket No. 22-0184 (issued June 7, 2022); T.S., Docket No 20-1229 (issued August 6, 2021); J.M., Docket No. 19-1169 (issued February 7, 2020); A.L., 19-0285 (issued September 24, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14
Id.

15
Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law, 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); J.R., supra note 7 (reports from physician assistants and physical therapists have no probative value in establishing a claim as they are not considered physicians as defined by FECA); M.F., Docket No. 19-1573 (issued March 16, 2020) (physician assistants are not considered physicians as defined by FECA); N.B., Docket No. 19-0221 (issued July 15, 2019) (reports from physician assistants have no probative value in establishing a claim as they are not considered physicians as defined under FECA); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (finding that lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).

16
Id.

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 As the medical evidence of record is insufficient to establish employment-related disability during the claimed period due to the accepted employment injury, the Board finds that appellant has not met his burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish disability from work commencing November 25, 2019 causally related to his accepted November 25, 2019 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the June 21, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 8, 2024
Washington, DC

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

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

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