United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.M., Appellant 

and 

SOCIAL SECURITY ADMINISTRATION, 

Houston, TX, Employer 

__________________________________________ 

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Docket No. 14-1418 

Issued: August 18, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 10, 2014 appellant filed an appeal from a May 22, 2014 merit decision of the 

Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case. 

ISSUE 

The issue is whether appellant had any employment-related disability from July 26 to 

November 5, 2012 or thereafter due to her accepted bilateral carpal tunnel syndrome. 

On appeal appellant asserts that she had continued pain and limitations and, based on her 

physician’s advice, she did not work. She missed intermittent periods between July 26 and 

November 12, 2012 and had total disability for the period December 17, 2012 to January 25, 

2013 when she could not use her left hand. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On April 14, 2011 appellant, then a 51-year-old paralegal specialist, filed an occupational 

disease claim asserting that factors of her federal employment caused bilateral carpal tunnel 

syndrome. OWCP initially denied the claim in decisions dated June 17 and September 29, 2011. 

On January 10, 2012 it accepted bilateral carpal tunnel syndrome. Appellant stopped work on 

March 12, 2012. Dr. Randolph A. Lopez, a hand surgeon, performed carpal tunnel surgery on 

the right hand on March 13 and April 18, 2012. 

On April 25, 2012 Dr. Lopez advised that appellant could return to work with no lifting, 

pushing, or pulling over five pounds. On May 21, 2012 he found that she could not return to 

work and provided the same physical restrictions. On July 3, 2012 Dr. Lopez noted that 

appellant was doing well but could not work. He additionally diagnosed cervical radiculopathy, 

advised that left carpal tunnel release surgery was to be scheduled, and provided the same 

physical restrictions. On July 17, 2012 Dr. Lopez determined that appellant could return to fulltime work with no restrictions. 

In correspondence dated September 6, 2012, the employing establishment advised that 

appellant returned to full-time work on July 23, 2012. It provided a position description for the 

position of paralegal specialist. Appellant received wage-loss compensation from March 12 

through August 25, 2012.2 

Appellant’s left carpal tunnel release was postponed because of her uncontrolled diabetes. 

On September 10, 2012 Dr. Lopez noted that she had continued discomfort in both hands and 

advised that she could work full time. He recommended a magnetic resonance imaging (MRI) 

scan study of the cervical spine and referred appellant to a neurologist. Dr. Lopez also referred 

her for pain management. In a pain management analysis dated November 10, 2012, 

Christina M. Leopold, M.A., advised that appellant would benefit from a multidisciplinary 

approach to pain management. 

Appellant filed CA-7 forms, claims for compensation, for 87.25 hours of disability 

between July 26 and November 5, 2012. In correspondence dated November 30, 2012, OWCP 

informed her that she was only entitled to two hours of compensation on September 10 and on 

November 5, 2012. Appellant was not entitled to compensation for the additional claimed period 

because there was no medical evidence to support her disability for work. 

In a treatment note dated December 12, 2012, Dr. Lopez noted appellant’s complaints of 

continued right and left hand pain and numbness. He reported that a cervical spine MRI scan 

demonstrated degenerative disc disease at C5-6. Dr. Lopez advised and that he would “further 

restrict appellant’s work status” and that surgery on the left hand would be scheduled, pending 

medical clearance. The record contains two duty status reports dated December 12, 2012 from 

Dr. Lopez. One restricted the use of her left hand; the other did not. On each form, box 12 was 

checked “no,” indicating that appellant was not told to resume work. 

 2

 On November 5, 2012 OWCP found that an overpayment of compensation of $5,473.64 had been created for 

the period July 23 to August 25, 2012 because appellant received wage-loss compensation after her return to work. 
3

Appellant stopped work on December 17, 2012 and filed claims for total disability 

compensation. On January 23, 2013 the employing establishment noted that voice-activated 

software had been installed on appellant’s computer as of August 18, 2011 and that she did not 

handle any paper files, fold mail, or sign letters. 

On a duty status report dated January 24, 2013, Dr. Lopez advised that appellant could 

not use her left hand. Box 12 was checked “no,” indicating that appellant was not told to resume 

work. Dr. Lopez performed carpal tunnel release surgery on the left hand on February 21, 2013. 

OWCP assigned a medical management nurse to assist in her return to work. 

By decision dated February 1, 2013, OWCP denied appellant’s claim for compensation 

for the period commencing July 26, 2012. It noted that she had been paid compensation for four 

hours on September 10 and November 5, 2012. 

Appellant timely requested a hearing and submitted additional evidence. On 

November 5, 2012 Dr. Jamchid Lotfi, a neurologist, performed a neurological evaluation. He 

advised that appellant possibly had median nerve entrapment at the wrist bilaterally. Dr. Lotfi 

recommended electrodiagnostic testing. A November 26, 2012 MRI scan of the cervical spine 

demonstrated mild degenerative disc disease at C5-6, but was otherwise unremarkable. 

On February 28, 2013 appellant maintained that her severe bilateral carpal tunnel 

syndrome caused her to be unable to work. She stated that she used the voice-activated software, 

but had no formal training in its use. 

On March 11, 2013 Dr. Lopez found that appellant could return to work on March 18, 

2013 at four hours a day for two weeks, then six hours daily for four weeks and then to full duty. 

He advised that she must attend all therapy appointments and lift nothing greater than 10 pounds. 

On March 13, 2013 the employing establishment advised appellant that she should report 

to work on March 18, 2013, in accordance with Dr. Lopez’s recommended schedule and 

restrictions. Appellant returned to work on March 18, 2013. She received total disability wageloss compensation for the period February 20 to March 18, 2013 and partial disability thereafter. 

In a March 20, 2013 report, Dr. Lopez noted that appellant was having severe pain. He 

reiterated his recommendations. On March 29, 2013 Ms. Leopold recommended a 

multidisciplinary approach to pain management. On April 15, 2013 Dr. Lopez indicated that 

appellant had made great improvement since her left hand surgery. He recommended continued 

physical and occupational therapy. Dr. Lopez found that appellant could work six hours a day, 

three days a week. On May 13, 2013 he found that she was doing well. Dr. Lopez advised that 

appellant could return to full duty on May 27, 2013 and recommended follow-up in three 

months. Appellant returned to full duty on May 28, 2013. On June 26, 2013 Dr. Lopez 

recommended that she have 5- to 10-minute breaks every hour and use voice-activated software. 

Appellant received intermittent compensation for medical treatment and therapy. 

At the August 16, 2013 hearing, appellant testified that she took off work due to pain and 

at the direction of Dr. Lopez. She also noted that she was in a motor vehicle accident in 

March 2013 and continued to have pain, although she was working full time. Appellant stated 
4

that her work production had decreased due to the carpal tunnel syndrome. The hearing 

representative advised her of the medical evidence needed to support her disability claim. 

In an August 19, 2013 report, Dr. Lopez noted that appellant was doing well since her 

most recent surgery. He hoped that the documentation provided would explain that she had 

followed all medical instructions and that much of her absence from work had been related to 

restrictions he provided. Dr. Lopez stated it was reasonable that appellant should be absent from 

work during a postoperative period. 

By decision dated November 29, 2013, an OWCP hearing representative affirmed the 

February 1, 2013 decision. She found that appellant had not submitted sufficient medical 

evidence addressing why she was unable to work during the claimed periods. 

On January 23, 2014 appellant requested reconsideration. She reiterated that she was 

simply following Dr. Lopez’s instructions when she remained off work. Appellant attached a 

January 23, 2014 statement from Charlotte Newsom, her supervising attorney. Ms. Newsom 

reported: 

“During [appellant’s] workers’ compensation-related absences, she provided 

CA-l7 Duty Status Reports listing her limitations and hours of off-duty status for 

doctor’s appointments. Per confirmation with our regional office liaisons at that 

time ... no other documentation was required. [Appellant] was on intermittent 

leave from approximately September 2012 [to] December 2012. On 

December 12, 2012, [she] signed in at 6:37 am and signed out at 11:07 am. 

[Appellant] submitted a CA-17 with item 7t indicating no use of left hand and 

item 12 stating that she was not advised to resume work. She used annual leave 

for the remainder of that day and did not claim this particular absence as workers’ 

compensation. [Appellant] claims she came in to the office after her visit with 

Dr. Lopez on December 12, 2012, and presented the above-mentioned CA-17. I 

do not personally recall if it was on December 12, 2012, but if it was, then I 

would have sent her home as her CA-17 did not release her back to the office. 

There was also a notation from Dr. Lopez advising her to be off pending 

clearance. [Appellant] returned to work on December 14, 2012. Subsequently, 

the Department of Labor released [her] back to work on February 5, 2013, 

pending her surgery on February 21, 2013, as the restrictions imposed by 

Dr. Lopez did not prevent her from performing her job duties utilizing specialized 

software.” 

Ms. Newsom also noted that appellant received voice-activated software on August 18, 2011 and 

received formal training on the software on September 23, October 1, and from November 4 

to 7, 2013. Appellant also submitted an August 19, 2013 duty status report in which Dr. Lopez 

indicated that she could work full duty with the restrictions of no heavy lifting over five pounds. 

In a merit decision dated May 22, 2014, OWCP found the evidence submitted was 

insufficient to warrant modification of the prior decisions. It determined that Dr. Lopez did not 

submit a well-reasoned opinion addressing appellant’s disability for work commencing 

July 26, 2012. 
5

LEGAL PRECEDENT 

Under FECA, the term “disability” is defined as incapacity, because of employment 

injury, to earn the wages that the employee was receiving at the time of injury.3

 Disability is 

thus not synonymous with physical impairment which may or may not result in an incapacity to 

earn the wages. An employee who has a physical impairment causally related to a federal 

employment injury but who nonetheless has the capacity to earn wages he or she was receiving 

at the time of injury has no disability as that term is used in FECA.4

 The test of “disability” 

under FECA is whether an employment-related impairment prevents the employee from engaging 

in the kind of work he or she was doing when injured.5 Whether a particular injury causes an 

employee to be disabled for work and the duration of that disability, are medical issues that must 

be proved by a preponderance of the reliable, probative and substantial medical evidence.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 employees to self-certify their disability and 

entitlement to compensation.7

 Causal relationship is a medical issue. 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.8 

ANALYSIS 

The Board finds that appellant did not establish her intermittent disability for the period 

commencing July 26 to November 5, 2012. Appellant was paid wage-loss compensation through 

August 6, 2012.9 She received compensation for two hours each on September 10, 2012, when 

she saw Dr. Lopez, and for November 5, 2012 when she saw Dr. Lotfi. There is no additional 

evidence of record that supports for this initial period in question. Dr. Lopez advised on July 17, 

2012 that appellant could return to full-time work with no restrictions. The evidence does not 

reflect that appellant received medical treatment or therapy for her accepted conditions, other 

than on September 10 and November 5, 2012. The Board therefore affirms the findings of 

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

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

5 Corlisia Sims, 46 ECAB 963 (1995). 

 6 Tammy L. Medley, 55 ECAB 182 (2003). 

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

 8 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 

9

 As stated in note 2, on November 5, 2012 an overpayment of compensation was declared for the period July 23 

to August 6, 2012, because appellant continued to receive wage-loss compensation after her return to work. She has 

not begun repayment of the overpayment and did not file an appeal from the overpayment decision. 
6

OWCP relating to appellant’s clams for intermittent disability for the period commencing 

July 26 to November 5, 2012. 

The Board finds, however, that the case is not in posture for decision regarding claimed 

disability after November 5, 2012. As noted above, under FECA, the term “disability” is defined 

as incapacity, because of employment injury, to earn the wages that the employee was receiving 

at the time of injury.10 In a treatment note dated December 12, 2012, Dr. Lopez advised that he 

would “further restrict” appellant’s work status.” He provided two duty status reports with 

conflicting information about her restrictions and whether she could use her left arm. 

Ms. Newsom, appellant’s supervisor, indicated on January 23, 2014 that, upon her review 

of a duty status report dated December 12, 2012, she sent appellant home. Her correspondence 

is not clear about the periods appellant was off work thereafter until her surgery on 

February 21, 2013.11 However, Ms. Newsom related that appellant was removed from work on 

or about December 12, 2012, based on a duty status report furnished by Dr. Lopez. It is unclear 

from the record whether appellant was performing regular or modified duties on 

December 12, 2012. When an employee, who is disabled from the job he or she held when 

injured because of continuing employment-related residuals, returns to a light-duty position or 

when the medical evidence establishes that light duty can be performed, the employee has the 

burden to establish by the weight of reliable, probative, and substantial evidence a recurrence of 

total disability. As part of this burden of proof, the employee must show either a change in the 

nature and extent of the injury-related condition, or a change in the nature and extent of the lightduty requirements.12 The record indicates that voice-activated software had been installed on 

appellant’s computer in August 2011 and that she had further restrictions including that she did 

not handle paper files and did not fold, mail, or sign letters. Appellant indicated on February 28, 

2013 that she had been using the software. 

It is well established that proceedings under FECA are not adversarial in nature, and 

while the claimant has the burden to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence to see that justice is done.13 The case is 

remanded to OWCP for further development of appellant’s claimed total disability for the period 

December 17, 2012 to January 25, 2013. On remand, OWCP shall obtain information from the 

employing establishment about the job duties appellant was performing when she stopped work 

in December 2012 and whether her position had been modified, including whether she used 

voice-activated software and had specific restrictions on lifting, etc. Once the employment 

information is received, OWCP shall prepare a new statement of accepted facts that specifically 

describes the duties appellant was performing when she stopped work in December 2012 and ask 

Dr. Lopez to provide a rationalized opinion as to what, if any, medical restrictions or conditions 

 10 See Prince E. Wallace, supra note 3. 

11 The CA-7 claims for compensation filed by appellant indicate that for the period November 26 to December 14, 

2012 she claimed 12 hours of wage-loss compensation, and thereafter claimed total disability compensation from 

December 17, 2012 to February 4, 2013. She received total disability compensation effective February 20, 2013. 

 12 Shelly A. Paolinetti, 52 ECAB 391 (2001); Terry R. Hedman, 38 ECAB 222 (1986). 

 13 See Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989). 
7

appellant had due to the accepted bilateral carpal tunnel syndrome and whether, in his 

professional opinion, she could perform the December 2012 job duties. 

After this and such further development deemed necessary, OWCP shall issue an 

appropriate merit decision. The Board, however, notes that the record indicates that appellant 

may have an outstanding overpayment.14 

CONCLUSION 

The Board finds this case is not in posture for decision regarding whether appellant 

established that she was entitled to disability compensation between December 12, 2012 and 

February 20, 2013. 

ORDER 

IT IS HEREBY ORDERED THAT the May 22, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is 

remanded to OWCP for proceedings consistent with this opinion of the Board.15

Issued: August 18, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 14 Supra notes 2 and 9. 

15 Michael E. Groom, Alternate Judge participated in the preparation of this decision but was no longer a member 

of the Board after December 27, 2014.