United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.O., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Richmond, VA, Employer 

__________________________________________ 

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Docket No. 15-1361 

Issued: December 15, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On June 4, 2015 appellant filed a timely appeal of a February 24, 2015 merit decision and 

a May 6, 2015 nonmerit 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

ISSUES 

The issues are: (1) whether appellant established that he was totally disabled for the 

period August 22 to September 5, 2013 due to her employment-related injuries; and (2) whether 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the May 6, 2015 nonmerit decision, OWCP received additional evidence. 

However, the Board may only review evidence that was in the record at the time OWCP issued its final decision. 

See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (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). 
2

OWCP properly denied appellant’s request for a review of the written record before an OWCP 

hearing representative. 

On appeal appellant argues that she was totally disabled from work for the period in 

question as her physician had instructed her not to work. 

FACTUAL HISTORY 

On March 11, 2011 appellant, then a 46-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on March 8, 2011 she strained her lower back while providing 

emergency support to a patient who was about to fall. OWCP accepted the claim for lumbar/low 

back sprain and lumbosacral ligament/joint sprain.3 Appellant stopped work on March 10, 2011 

and returned to light-duty work on March 11, 2011. 

On September 7, 2013 appellant filed a claim for wage-loss compensation for the period 

August 22 to September 5, 2013. 

In duty status reports (Form CA-17) dated July 19 and August 22, 2013, Dr. Glenn Kerr, 

a treating Board-certified orthopedic surgeon, diagnosed degenerative disc disease and herniated 

disc which was causing radicular hip pain, which he attributed to the March 8, 2011 employment 

injury. He first released appellant to return to full-time work on July 13, 2013 in his July 19, 

2013 Form CA-17 but in his later August 22, 2013 Form CA-17 he released appellant to fulltime work on September 5, 2013 in the August 22, 2013 Form CA-17. On both forms, Dr. Kerr 

mentioned referring appellant to Dr. Peyman Nazmi, a treating Board-certified anesthesiologist 

and pain management specialist. 

In a September 5, 2013 report, Dr. Nazmi diagnosed lumbar radiculopathy and lumbar 

degenerative disc disease. Appellant was seen for complaints of right leg and gluteal pain. 

Dr. Nazmi noted that appellant has had right leg pain since her March 8, 2011 employment 

injury. He recommended that appellant return to light-duty work with a lifting restriction of 25 

pounds. 

In a letter dated September 30, 2013, OWCP advised appellant that the evidence of 

record was insufficient to establish her claim for wage-loss compensation as the record contained 

no medical evidence documenting that she was totally disabled for the period in question due to 

the accepted March 8, 2011 employment injury. Appellant was advised as to the type of medical 

evidence required and was afforded 30 days to provide this information. 

In an October 3, 2013 report, Dr. Nazmi diagnosed lumbar radiculopathy and lumbar 

degenerative disc disease and noted that appellant “has made significant progress” and opined 

that she should continue permanently with light-duty work. 

 3

 The record reveals that on December 29, 2011 appellant also filed a claim for a recurrence of disability of her 

accepted March 8, 2011 employment injury. OWCP has not issued a final decision on the issue of whether she 

sustained a recurrence of disability due to her accepted March 8, 2011 employment injury. Therefore, the Board 

lacks jurisdiction to address this issue on appeal. 20 C.F.R. § 501.2(c). See E.L., 59 ECAB 405 (2008); Linda 

Beale, 57 ECAB 429 (2006) (the Board’s jurisdiction extends only to the review of final decisions by OWCP). 
3

On November 1 and December 2, 2013 and January 7, 2014 Dr. Nazmi diagnosed lumbar 

radiculopathy and lumbar degenerative disc disease and noted appellant’s pain complaints. 

In CA-17 forms dated October 3, November 1, and December 2, 2013 and January 7, 

2014, Dr. Nazmi noted that appellant was capable of performing light-duty work and provided 

work restrictions. 

In a February 4, 2014 Form CA-17, Dr. Nazmi noted that appellant could return to fullduty work on February 5, 2014. 

By decision dated February 24, 2015, OWCP denied appellant’s claim for wage-loss 

compensation as the evidence failed to establish total disability for the period in question. 

In a March 16, 2015 letter, Dr. Nazmi noted that appellant was under his care for leg and 

lower back pain for the period August 22 to September 5, 2013 and that he advised her not to 

work during that period. 

On April 7, 2015 OWCP received appellant’s undated request for a review of the written 

record by an OWCP hearing representative. 

By decision dated May 6, 2015, the Branch of Hearings and Review denied appellant’s 

request for review of the written record as being untimely filed. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.5 For each period of 

disability claimed, the employee has the burden of establishing that he or she was disabled for 

work as a result of the accepted employment injury.6 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.7 

Under FECA the term “disability” means incapacity, because of an employment injury, to 

earn the wages that the employee was receiving at the time of injury.8

 Disability is, thus, not 

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

wages.9 An employee who has a physical impairment causally related to his or her federal 

 4

 5 U.S.C. §§ 8101-8193 

5 See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. 

Whelan, 20 ECAB 55 (1968). 

6 See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980). 

7 See Edward H. Horton, 41 ECAB 301 (1989). 

8 S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796 

(2003); 20 C.F.R. § 10.5(f). 

9 Roberta L. Kaaumoana, 54 ECAB 150 (2002). 
4

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

the time of injury, has no disability and is not entitled to compensation for loss of wage-earning 

capacity.10 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 her employment, she is entitled to compensation for any loss of wages. 

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 

eligibility for compensation.11

ANALYSIS -- ISSUE 1 

OWCP accepted appellant’s claim for lumbar/low back sprain and lumbosacral 

ligament/joint sprain. Appellant stopped work on March 10, 2011 and returned to light-duty 

work on March 11, 2011. She filed a CA-7 form claiming wage-loss compensation for the 

period August 22 to September 5, 2013. OWCP denied appellant’s claim for wage-loss 

compensation for the period in question as it found the record was devoid of any medical 

evidence finding appellant totally disabled for that period. The Board finds that appellant has 

failed to meet her burden of proof to establish wage-loss compensation for the claimed period. 

The record is devoid of any medical evidence supporting appellant’s contention that she 

was disabled from work for the period in question. OWCP advised her of the need to submit 

medical evidence supporting her disability. The relevant evidence submitted by appellant 

included reports dated September 5 through February 4, 2014 and CA-17 forms dated October 3, 

November 1, and December 2, 2013 and January 7 and February 4, 2014 from Dr. Nazmi. The 

CA-17 forms from Dr. Kerr released appellant to full-duty work at the earliest on July 13, 2013 

and referred her to Dr. Nazmi. The CA-17 forms by Dr. Nazmi noted that appellant was capable 

of working light-duty work and provided work restrictions. In his reports for the period 

October 3, 2013 to February 4, 2014, Dr. Nazmi diagnosed lumbar radiculopathy and lumbar 

degenerative disease and noted that appellant was seen for right leg and gluteal pain complaints. 

He did not address disability in any of his reports. Neither the CA-17 forms from Drs. Kerr 

and Nazmi, nor the reports for the period October 3, 2013 to February 4, 2014 from Dr. Nazmi 

addressed the relevant issue of whether appellant was disabled from work for any period from 

August 22 to September 5, 2013 due to her accepted March 8, 2011 employment injury. Thus, 

the CA-17 forms from Dr. Kerr and reports from Dr. Nazmi are of little probative value and are 

insufficient to support appellant’s contention that she was disabled from work during the claimed 

period.12

 10 Merle J. Marceau, 53 ECAB 197 (2001). 

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

12 W.W., Docket No. 09-1619 (issued June 2, 2010); Carol A. Lyles, 57 ECAB 265 (2005) (whether a particular 

injury caused an employee disability from employment is a medical issue which must be resolved by competent 

medical evidence). 
5

The Board finds that appellant has not met her burden of proof to establish disability for 

the period August 22 to September 5, 2013 due to her accepted work injury. OWCP properly 

denied her claim for compensation. 

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 8124(b)(1) of FECA provides that a claimant is entitled to a hearing before an 

OWCP representative when a request is made within 30 days after issuance of an OWCP final 

decision.13 A claimant is not entitled to a hearing if the request is not made within 30 days of the 

date of issuance of the decision as determined by the postmark of the request.14 OWCP has 

discretion, however, to grant or deny a request that is made after this 30-day period.15 In such a 

case, it will determine whether a discretionary hearing should be granted or, if not, will so advise 

the claimant with reasons.16

ANALYSIS -- ISSUE 2 

A request for a hearing must, as noted above, be made within 30 days after the date of the 

issuance of OWCP’s final decision. Appellant requested a review of the written record by 

OWCP’s Branch of Hearings and Review which was received April 7, 2015. As the request was 

submitted more than 30 days following issuance of the February 24, 2015 decision, it was 

untimely filed. 

OWCP also has the discretionary power to grant a review of the written record when a 

claimant is not entitled to a review of the written record as a matter of right. The Board finds 

that the Branch of Hearings and Review, in its May 6, 2015 decision, properly exercised its 

discretion by stating that it had considered the matter in relation to the issue involved and had 

denied appellant’s request for a review of the written record by an OWCP hearing representative 

because her claim could be addressed through a reconsideration application. The Board has held 

that as the only limitation on OWCP’s authority is reasonableness, 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 deduction from established facts.17 

In the present case, the Board finds that appellant’s request for hearing was properly denied as 

untimely. 

 13 5 U.S.C. § 8124(b)(1). See A.B., 58 ECAB 546 (2007); Gerard F. Workinger, 56 ECAB 259 (2005).

14 20 C.F.R. § 10.616(b). 

15 Hubert Jones, Jr., 57 ECAB 467 (2006). 

16 Teresa M. Valle, 57 ECAB 542 (2006). 

17 Id.; Daniel J. Perea, 42 ECAB 214 (1990). 
6

CONCLUSION 

The Board finds that appellant failed to establish disability for the period August 22 to 

September 5, 2013 due to her accepted work injury. The Board further finds that appellant’s 

request for review of the written record was properly denied as untimely filed. 

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated May 6 and February 24, 2015 are affirmed. 

Issued: December 15, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board