United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, OFFICE OF THE SECRETARY, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 15-1807 

Issued: May 25, 2016 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 1, 2015 appellant filed a timely appeal from an April 30, 2015 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 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. 

ISSUE 

The issue is whether appellant met his burden of proof to establish that he was disabled 

for work on intermittent dates from January 30 to March 19, 2008 due to an accepted emotional 

condition. 

 1

 Appellant filed a timely request for oral argument. By order dated March 9, 2016, the Board exercised its 

discretion and denied his request as his arguments could be adequately addressed in a decision based on a review of 

the case record. Order Denying Request for Oral Argument, Docket No. 15-1807 (issued March 9, 2016). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board on appeal. The facts and circumstances 

set forth in the Board’s prior decision are incorporated herein by reference.3

 The facts relevant 

to this appeal are set forth below. 

OWCP accepted that on or before November 1, 2006 appellant, then a 36-year-old 

contracting officer, sustained an aggravation of depressive disorder due to threats and harassment 

by supervisors and coworkers during his leadership of a contract review team. 

On February 17, 2011 appellant filed a claim for 223 hours of wage loss on intermittent 

dates between January 1 and February 29, 2008. 

In a letter dated April 15, 2011, OWCP advised appellant of the evidence needed to 

establish his claim for wage loss. It requested a report from his attending physician explaining 

how the accepted emotional condition disabled him for work for the claimed periods. 

In response, appellant submitted chart notes from Dr. Allan S. Melmed, an attending 

Board-certified psychiatrist, dated January 4 to March 14, 2008. Dr. Melmed discussed 

appellant’s emotional condition and prescribed medications. 

By decision dated June 10, 2011, OWCP denied appellant’s claim finding that causal 

relationship was not established. It found that Dr. Melmed did not specify any period of 

disability. 

In a September 16, 2011 letter, appellant requested reconsideration. He submitted 

June 17, and 22, and July 21, 2011 letters asserting that the medical evidence of record was 

sufficient to establish his claim. Appellant contended that he had submitted treatment notes for 

each of the dates claimed. He provided a chronology of his mental health appointments and a 

February 28, 2008 abdominal imaging scan report. 

By decision dated December 20, 2011, OWCP modified the June 10, 2011 decision to 

accept 78 hours of intermittent wage loss from January 17 to March 14, 2008, based on 

Dr. Melmed’s treatment notes dated January 4, 11, and 21, February 1, 8, 11, 18, and 29, 

March 7, 10, and 14, 2008. It found that Dr. Melmed’s opinion as appellant’s attending 

physician was sufficient to establish disability for the dates claimed. OWCP denied appellant’s 

claim for wage loss for the following dates as he did not submit sufficient medical evidence 

establishing disability: January 30, 5 hours; January 31, 8 hours; February 20, 8 hours; 

February 22, 4 hours; February 25, 8 hours; February 26, 8 hours; February 27, 8 hours, 

February 28, 8 hours; March 3, 8 hours; March 4, 4 hours; March 5, 8 hours; March 6, 8 hours; 

March 7, 4 hours; March 10, 8 hours; March 12, 4 hours; March 13, 8 hours; March 14, 4 hours; 

March 17, 8 hours; March 18, 8 hours; and March 19, 2008, 8 hours. 

In an April 14, 2012 letter, appellant requested reconsideration. He submitted an 

August 17, 2011 letter from Nancy Shands, a licensed professional counselor and therapist, who 

 3

 Docket No. 13-0454 (issued March 18, 2014). 
3

noted that she had treated appellant since August 3, 2007 for depression and anxiety disorders. 

Ms. Shands reported that, from January 11 to March 19, 2008, appellant’s “symptoms became 

more acute causing him to go on sick leave the second week of February.” 

By decision dated July 17, 2012, OWCP modified the December 20, 2011 decision to 

accept four hours of wage loss on February 28 2008 when appellant obtained an imaging study. 

It denied wage-loss compensation for the remaining dates as the new evidence submitted was 

insufficient to establish causal relationship. Appellant then appealed to the Board, and presented 

oral argument on March 5, 2014. 

By decision and order issued March 18, 2014,4

 the Board affirmed OWCP’s July 17, 

2012 decision, finding that appellant had not established all other claimed periods of intermittent 

disability. The Board found that appellant did not submit sufficient medical evidence to 

establish total disability for the claimed periods. The Board noted that as Ms. Shands was not 

considered a physician under FECA and therefore her opinion was of no probative medical 

value. 

In an October 17, 2014 letter, appellant requested reconsideration. He asserted that new 

medical evidence was sufficient to establish disability from work during the claimed periods. 

Appellant provided an October 9, 2014 report from Dr. Steven M. Zimmet, a Board-certified 

internist and pulmonologist in the same medical practice as Dr. Wilson Coudon, who treated 

appellant from January 11 to March 19, 2008. Dr. Coudon had since retired. Appellant was also 

treated by a physician assistant. Dr. Zimmet noted that according to medical records, appellant’s 

condition “became acutely worse at the beginning of 2008, resulting in numerous health care 

contacts and additional missed work.” Appellant was treated in the medical practice “seven 

times during January to March 2008 to review his psychiatric care, monitor his thyroid and blood 

work, as well as to address a variety of somatic complaints and medication-induced side 

[effects].” He was “treated with many medications including antidepressants, antipsychotics and 

mood stabilizers.” Dr. Zimmet opined that he agreed with Dr. Melmed and Ms. Shands that 

appellant “developed anxiety and major depressive disorder as a result of work-related stress and 

was sufficiently ill during the period January 11 to March 19, 2008 such that he was completely 

disabled.” 

By decision dated April 30, 2015, OWCP denied modification, finding that Dr. Zimmet’s 

report was insufficiently rationalized to meet appellant’s burden of proof. It found that 

Dr. Zimmet did not explain which objective findings disabled appellant for work from 

January 30 to March 19, 2008. OWCP further found that the contemporaneous reports for the 

period at issue did not indicate that appellant was disabled for work. 

LEGAL PRECEDENT 

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

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

 Under FECA, the term 

 4 Id. 

5 Joe D. Cameron, 41 ECAB 153 (1989). 
4

“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 wageearning capacity.6

 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.7

 

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.8

 The fact that a condition manifests itself during a period of 

employment does not raise an inference that there is a causal relationship between the two.9 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 her disability and entitlement to 

compensation.10 

ANALYSIS 

OWCP accepted that appellant sustained an aggravation of depressive disorder on or 

before November 1, 2006. He claimed intermittent wage loss for the period January 30 to 

March 19, 2008. Appellant has the burden of establishing by the weight of the substantial, 

reliable, and probative evidence that he was totally disabled for work for the claimed period due 

to the accepted emotional condition.11 

In support of his claim, appellant submitted an October 9, 2014 report from Dr. Zimmet, 

a Board-certified internist and pulmonologist. While Dr. Zimmet reviewed medical records, 

there is no indication that he treated appellant. Also, he did not explain which findings observed 

by appellant’s treating physicians indicated that he was disabled for work for the claimed 

periods. In the absence of such rationale, Dr. Zimmet’s report is insufficient to meet appellant’s 

burden of proof in establishing causal relationship.12 The Board notes that while Dr. Zimmet 

expressed agreement with Dr. Melmed that appellant was disabled from work from January 1 to 

February 29, 2008, Dr. Melmed did not opine that the accepted emotional condition 

incapacitated appellant during that period. 

As appellant did not submit sufficient medical evidence demonstrating that the accepted 

emotional condition disabled him from work on intermittent dates from January 30 to March 19, 

2008, OWCP’s April 30, 2015 decision denying wage-loss compensation for the claimed period 

of disability is proper under the facts and law of the case. 

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

7 Dennis J. Balogh, 52 ECAB 232 (2001). 

8 Gary J. Watling, 52 ECAB 278 (2001). 

9 Manuel Garcia, 37 ECAB 767 (1986). 

10 Fereidoon Kharabi, 52 ECAB 291 (2001). 

11 Alfredo Rodriguez, 47 ECAB 437 (1996). 

12 Deborah L. Beatty, 54 ECAB 340 (2003).
5

On appeal, appellant asserts that OWCP’s April 30, 2015 decision was unreasonable, as 

the medical evidence of record established that the accepted emotional condition disabled him 

from work during the claimed periods. He contends that Dr. Zimmet’s October 9, 2014 report 

presents direct proof of a work-related disability. As set forth above, Dr. Zimmet’s report 

contains insufficient medical rationale to meet appellant’s 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 that he was 

disabled for work on intermittent dates from January 30 to March 19, 2008 due to an accepted 

emotional condition. 

ORDER 

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

Compensation Programs dated April 30, 2015 is affirmed. 

Issued: May 25, 2016 

Washington, DC 

 

 Christopher J. Godfrey, 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