A.T. and U.S. Postal Service, Kilmer Processing & Distribution Center (Board decision, March 7, 2025)

ECAB final decision. The Board affirmed OWCP's denial of disability benefits beginning February 23, 2022. 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 vehicle operator sought wage-loss benefits after an accepted 2021 injury. The Board found the medical evidence did not adequately establish that the injury caused disability from work beginning February 23, 2022. It upheld the denial.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Disability claim beginning February 23, 2022 denied.
• Key point: The record did not establish disability for the claimed period.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.T., Appellant
)
)
and ) Docket No. 25-0224
)
Issued: March 7, 2025
U.S. POSTAL SERVICE, KILMER
)
PROCESSING & DISTRIBUTION CENTER, )
Edison, NJ, Employer
)
__________ )

Appearances: Case Submitted on the Record
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On January 7, 2025 appellant, through counsel, filed a timely appeal from an October 17, 2024 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.

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.
ISSUE

The issue is whether appellant met his burden of proof to establish disability from work commencing February 23, 2022, causally related to the accepted September 15, 2021 employment injury.

FACTUAL HISTORY

On October 2, 2021 appellant, then a 52-year-old motor vehicle operator, filed a traumatic injury claim (Form CA-1) alleging that he injured his low back and knees on September 15, 2021 when he dove out of the way of an oncoming employing establishment truck while in the performance of duty. He stopped work on September 16, 2021 and did not return.

In a February 23, 2022 work slip, Dr. Boqing Chen, Board-certified in pain management, physiatry, and sports medicine, returned appellant to modified-duty work with no frequent bending, and lifting limited to 20 pounds.

In a March 24, 2022 report, Dr. Howard M. Baruch, a Board-certified orthopedic surgeon, held appellant off work.

On May 24, 2022 OWCP accepted the claim for right knee sprain, left knee sprain, and low back sprain.

On June 2, 2022 appellant filed a claim for compensation (Form CA-7) for disability from work for the period October 9, 2021 through May 30, 2022.3

OWCP paid appellant wage-loss compensation on the supplemental rolls for the period October 31, 2021 through February 22, 2022.

In a development letter dated June 6, 2022, OWCP informed appellant of the deficiencies of his claim for the remaining claimed disability during the period February 23, 2022 and continuing. It advised him of the type of evidence needed to establish his claim and afforded him 30 days to provide the necessary evidence.

OWCP received a report dated June 9, 2022 wherein Dr. Richard Linn, a Board-certified orthopedic surgeon, related a history of injury and treatment. Dr. Linn indicated that appellant had been off from work since the September 15, 2021 employment injury. He noted that appellant ambulated with a cane and had a history of prior right knee arthroscopy, asymptomatic prior to the September 15, 2021 employment injury. On examination, Dr. Linn observed moderately restricted lumbar motion with spasm, tenderness over the medial joint line of the right knee, antalgic gait favoring the left knee, obvious effusion of the left knee, mild left quadriceps atrophy, and tenderness to palpation throughout the left knee. He reviewed a magnetic resonance imaging (MRI) scan of the lumbar spine, which demonstrated mild disc bulging and facet hypertrophy inferiorly. Dr. Linn diagnosed unspecified low back pain, sacroiliitis, primary osteoarthritis of the

3
Commencing June 18, 2022, OWCP received additional Form CA-7 claims for compensation for the period February 23 through July 1, 2022. In development letters dated June 24 and July 5, 2022, OWCP explained that its June 6, 2022 development letter encompassed the period February 23 through June 17, 2022.

2 knees with possible exacerbation, and lumbar strain. He returned appellant to sedentary-duty work. Dr. Linn prescribed physical therapy.

In reports dated June 23 through August 22, 2022, Dr. Linn indicated that the accepted employment injury had exacerbated but not aggravated underlying degenerative knee conditions. He found appellant able to perform sedentary-duty work and prescribed additional physical therapy.4 A November 10, 2022 functional capacity evaluation (FCE) signed by Jill Maurer, a physical therapist, indicated that appellant could perform light-duty work. She noted appellant’s maximum physical abilities could not be identified due to inconsistent effort during the evaluation.

In a December 22, 2022 report, Dr. Linn opined that there was no evidence of “objective injury to the low back or the knees.” He attributed appellant’s symptoms and deficits observed on functional capacity testing to preexisting degenerative conditions and not the accepted September 15, 2021 employment injury.

On January 26, 2023 OWCP referred appellant, along with the medical record, a statement of accepted facts (SOAF), and a series of questions to Dr. Clinton G. Bush, a Board-certified orthopedic surgeon, for a second opinion to determine the status of appellant’s accepted conditions and his work capacity as of February 23, 2022.5

In a February 13, 2023 report, Dr. Bush noted his review of the medical record and SOAF.
On examination, he noted a significant discrepancy between appellant’s subjective symptoms and the objective findings on physical examination. Dr. Bush diagnosed early degenerative spondylosis of the lumbosacral spine, a resolved lumbar strain superimposed on early degenerative lumbar spondylosis, complaints of left knee pain without objective findings, and resolved Grade 1 sprains of the right anterior cruciate and medial collateral ligaments. He opined that appellant’s continuing symptoms were due to preexisting degenerative conditions and that the accepted conditions had resolved without residuals. Dr. Bush found that appellant was able to perform his date-of-injury position without restrictions as of February 23, 2022. He completed a work capacity evaluation (Form OWCP-5c), wherein he indicated that appellant could perform work at the medium physical demand level.

By decision dated April 6, 2023, OWCP denied appellant’s claim for disability from work commencing February 23, 2022, finding that the medical evidence of record was insufficient to establish disability from work during the claimed period, causally related to the accepted employment injury. It accorded the weight of the medical evidence to Dr. Bush’s second opinion report.

On April 14, 2023 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

4
OWCP received physical therapy treatment notes dated June 28 through August 4, 2022.
5
By decision dated July 8, 2022, OWCP denied appellant’s claim for compensation finding that the medical evidence of record was insufficient to establish disability from work commencing February 23, 2022, due to the accepted September 15, 2021 employment injury. On July 25, 2022 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. By decision dated January 23, 2023, OWCP vacated its July 8, 2022 decision and returned the case to OWCP for further development.

3
In a June 20, 2023 hospital emergency department report, Dr. Kenneth J. Greenberg, a Board-certified internist, related appellant’s complaints of neck, low back, and bilateral knee pain. He obtained bilateral knee x-rays, which revealed sclerotic changes in the marrow of the left distal femur, and no acute lumbar fracture or spondylolisthesis. Dr. Greenberg diagnosed acute exacerbation of chronic low back pain, acute-on-chronic neck pain, and chronic knee pain.

A hearing was held on September 7, 2023.

In reports dated September 20, 2023, Dr. Brad Chayet, a Board-certified orthopedic surgeon, related a history of injury and treatment and noted findings on examination. He obtained lumbosacral x-rays, which revealed spondylosis at L4-5 with significant degenerative changes at L5, tricompartmental degenerative joint disease in the knees, and bone-on-bone arthritis in the left knee. Dr. Chayet diagnosed lumbar intervertebral disc degeneration, vertebrogenic low back pain, bilateral knee pain, and primary osteoarthritis of both knees. He opined that appellant had returned to baseline and attained maximum medical improvement (MMI). Dr. Chayet explained that it was possible appellant had a lumbar “stretch strain with the preexisting degenerative changes” but had “probably” returned to preinjury status and no further spinal treatment was needed. He opined that appellant’s bilateral knee conditions were due to age-related degenerative changes not caused by the accepted employment injury. Dr. Chayet indicated that appellant could perform full-duty work with no restrictions.

By decision dated November 21, 2023, OWCP’s hearing representative denied modification of the April 6, 2023 decision.

On October 7, 2024 appellant, through counsel, requested reconsideration .

By decision dated October 17, 2024, OWCP denied modification of the November 21, 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 or specific condition for which compensation is claimed is causally related to the employment injury. 6 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. 7 Disability is, thus, not synonymous with physical impairment, which may or may not result in an incapacity to earn wages. 8 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

6
S.F., Docket No. 20-0347 (issued March 31, 2023); 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). 7 20 C.F.R. § 10.5(f).
8
See H.B., Docket No. 20-0587 (issued June 28, 2021); L.W., Docket No. 17-1685 (issued October 9, 2018).

4 that term is used in FECA. 9 When, however, the medical evidence establishes that the residuals or sequelae of an employment injury are such that, from a medical standpoint, they prevent the employee from continuing in his or her employment, he or she is entitled to compensation for loss of wages.10

The medical evidence required to establish causal relationship between a claimed period of disability and an employment injury is rationalized medical opinion evidence. The opinion of the physician must be based on a complete factual and medical background of the claimant, must be one of reasonable medical certainty, and must be supported by medical rationale explaining the nature of the relationship between the claimed disability and the accepted employment injury. 11

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. 12

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish disability from work commencing February 23, 2022, causally related to the accepted September 15, 2021 employment injury.

In support of his claim for compensation, appellant submitted a February 23, 2022 work slip, wherein Dr. Chen returned him to modified-duty work with restrictions. The Board has held that evidence which negates disability during the claimed period, is of no probative value.13 As such, this evidence is insufficient to establish appellant’s claim.

Dr. Baruch, in his March 24, 2022 report, indicated that appellant was totally disabled from work. However, he did not provide an opinion on whether appellant was disabled from work commencing February 23, 2022 causally related to the accepted September 15, 2022 employment injury. The Board has held that medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is of no probative value on the issue of causal relationship. 14 As such, this report is insufficient to establish appellant’s claim.

9
See H.B., id.; K.H., Docket No. 19-1635 (issued March 5, 2020).
10
See D.R., Docket No. 18-0323 (issued October 2, 2018).
11
R.W., Docket No. 25-0096 (issued January 31, 2025); Y.S., Docket No. 19-1572 (issued March 12, 2020).
12
J.B., Docket No. 19-0715 (issued September 12, 2019); Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
13
See M.B., Docket No. 24-0466 (issued June 20, 2024); S.H., Docket No. 21-0987 (issued September 1, 2023).
14
J.W., Docket No. 25-0011 (issued November 19, 2024); C.V., Docket No. 18-1106 (issued March 20, 2019);
M.E., Docket No. 18-0330 (issued September 14, 2018); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018); A.D., 58 ECAB 149 (2006).

5
Dr. Linn, in reports dated June 9 through December 22, 2022, opined that the accepted employment conditions had resolved and returned appellant to sedentary-duty work. Similarly, in reports dated September 20, 2023, Dr. Chayet indicated that the accepted employment injuries had resolved and returned appellant to full-duty work. As these reports negate disability from work during portions of the claimed period of disability, they are of no probative value and are insufficient to establish the disability claim.15

Dr. Bush, in his April 3, 2023 second opinion report, opined that appellant’s continuing symptoms were due to preexisting degenerative conditions and that the accepted conditions had resolved without residuals. He found appellant able to perform his date-of-injury position with no restrictions commencing February 23, 2022. Dr. Bush’s well-rationalized opinion, based on the complete medical record and a SOAF, also negates appellant’s claim for disability. 16

In a June 20, 2023 report, Dr. Greenberg diagnosed acute exacerbation of chronic low back pain, acute-on-chronic neck pain, and chronic knee pain. However, as he did not provide an opinion on appellant’s disability status during the specific dates of disability for which compensation was claimed, his report is of no probative value and is insufficient to establish appellant’s disability claim.17

Appellant also submitted physical therapy reports and a November 10, 2022 FCE signed by a physical therapist. However, certain healthcare providers such as physical therapists are not considered physicians as defined under FECA, and their reports do not constitute competent medical evidence. 18 Consequently, these findings or opinions are insufficient to establish appellant’s disability claim.

OWCP also received December 3, 2021 MRI scans of the lumbar spine and bilateral knees.
However, the Board has held that diagnostic studies, standing alone, lack probative value on the issue of causal relationship. 19 Thus, this evidence is insufficient to establish appellant’s disability claim.

15
See supra note 13; see also T.H., Docket No. 21-1429 (issued November 2, 2023); S.H., Docket No. 21-0640 (issued February 2, 2023).
16
T.H., id.
17
See P.L., Docket No. 22-0337 (issued September 9, 2022); K.F., Docket No.19-1846 (issued November 3, 2020);
L.B., supra note 14; D.K.,supra note 14.
18
Section 8102(2) of FECA provides as follows: (2) 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. § 8102(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); J.A., Docket No. 23-0256 (issued December 10, 2024) (physical therapist are not considered physicians as defined under FECA); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA). 19 C.H., Docket No. 25-0010 (issued December 5, 2004); K.B., Docket No. 22-0842 (issued April 25, 2023);
T.K., Docket No. 18-1239 (issued May 29, 2019).

6
As the medical evidence of record is insufficient to establish disability from work for the period commencing February 23, 2022 causally related to the accepted September 15, 2021 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 February 23, 2022, causally related to his accepted September 15, 2021 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the October 17, 2024 merit decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 7, 2025
Washington, DC

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

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

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

7