United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.J., Appellant 

and 

PEACE CORPS, VOLUNTEER SERVICES, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 15-0188 

Issued: March 25, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 27, 2014 appellant filed a timely appeal of July 30 and September 11, 2014 

decisions 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

ISSUE 

The issue is whether appellant has established disability for the periods May 28 to 30, 

2014 and on or after June 3, 2014 causally related to her employment injury. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the September 11, 2014 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

FACTUAL HISTORY 

On May 12, 2014 appellant, then a 28-year-old Peace Corps volunteer in Namibia, filed 

an occupational disease claim (Form CA-2) alleging that on March 27, 2014 she first realized 

that her pregnancy was due to her employment. OWCP accepted her claim for an incidental 

pregnant state.3

 

In a June 11, 2014 attending physician’s report (Form CA-20), Dr. Monica Brown, a 

treating physician Board-certified in obstetrics and gynecology, diagnosed pregnancy with early 

vomiting and nausea. She noted that appellant had been hospitalized with hyperemesis 

gravidarum on May 23 to 27, and May 31 to June 2, 2014. Dr. Brown indicated no other period 

of disability from performing appellant’s job. 

Appellant filed a claim for wage-loss compensation (Form CA-7) for the period May 27 

to June 9, 2014. 

In a letter dated June 26, 2014, OWCP informed appellant that her claim was not payable 

in its entirety. It stated that it had authorized payment for wage-loss compensation for the 

periods May 23 to 27 and May 30 to June 1, 2014 as the evidence showed that she had been 

hospitalized on those dates. The record reflects that appellant received supplemental roll 

payments from May 23 to 27, 2014 and from May 31 to June 2, 2014. Appellant’s claim for 

wage-loss compensation for the periods May 28 to 30, and June 3, 2014 to the present was 

denied as she had not submitted any medical evidence supporting her claim of disability. OWCP 

advised her to submit a medical narrative from her treating physician explaining why she was 

unable to perform her volunteer duties due to her pregnancy. It gave appellant 30 days to 

provide this information. 

Following OWCP’s letter requesting additional information, appellant submitted a claim 

for wage-loss compensation (Form CA-7) for the period June 10 to 23, 2014. 

In a letter dated July 11, 2014, OWCP informed appellant that her claim for wage-loss 

compensation on and after June 10, 2014 was not payable as there was no medical evidence 

supporting disability due to the accepted condition. Appellant was advised as to the medical 

evidence required to establish her claim and given 30 days to provide this information. 

On July 24, 2014 OWCP received appellant’s claims for wage-loss compensation (CA-7 

forms) for the period June 24 to July 21, 2014, and a July 24, 2014 attending physician’s report 

(Form CA-20) from Dr. Lisa Martinez-Franco, a treating physician specializing in obstetrics and 

gynecology. Dr. Martinez-Franco indicated a period of partial disability for the period July 24 to 

November 26, 2014 due to appellant “suffering from nausea and vomiting during pregnancy.” 

She advised that the condition of hyperemesis gravidarum might result in appellant being 

disabled from performing the duties of her job. Dr. Martinez-Franco further advised that the 

frequency and severity of the symptoms were unpredictable. 

 3

 On May 11, 2014 appellant was medically separated from the employing establishment. 
3

By decision dated July 30, 2014, OWCP informed appellant that her claim for wage-loss 

compensation for the period May 28 to 30 and June 3 to 9, 2014 was denied. It noted that 

appellant stopped work on May 28, 2014 and that the medical evidence failed to show that her 

pregnancy disabled her from performing the duties of her volunteer position. 

In correspondence dated August 13, 2014, OWCP requested from Dr. Martinez-Franco 

clarification of appellant’s current medical status and disability. It then set forth questions for 

her to answer regarding appellant’s current condition. 

By decision dated September 11, 2014, OWCP denied appellant’s claim for wage-loss 

compensation on and after June 10, 2014. It found that the medical evidence submitted failed to 

establish that she was totally disabled from performing her duties as a volunteer due to her 

pregnancy. 

LEGAL PRECEDENT 

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 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 

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. 

 4 Supra note 1. 

5 See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. 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). 

10 Merle J. Marceau, 53 ECAB 197 (2001). 
4

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.11

ANALYSIS 

OWCP accepted appellant’s claim for incidental pregnancy. Appellant received wageloss compensation for disability May 23 to 27 and May 30 to June 2, 2014. By decision dated 

July 30, 2014, OWCP denied her claim for wage-loss compensation for the periods May 28 to 

30, and June 3 to 9, 2014. On September 11, 2014 it issued a decision denying appellant’s claim 

for wage-loss compensation on and after June 10, 2014. Appellant has the burden of establishing 

by the weight of the substantial, reliable, and probative evidence, a causal relationship between 

her claimed disability for the periods in question and the accepted condition.12

The only medical evidence appellant submitted relevant to disability for the periods 

May 28 to 30 and June 3 to July 23, 2014 is a June 11, 2014 attending physician’s report from 

Dr. Brown. OWCP paid wage-loss compensation for the dates Dr. Brown indicated that 

appellant had been hospitalized with hyperemesis, which were May 5 to 7, 23 to 27, and May 31 

to June 2, 2014. Appellant has not submitted any evidence establishing that she was totally 

disabled from performing her job as a volunteer for the periods in question due to the accepted 

incidental pregnant state. It is her burden of proof to provide evidence from a qualified 

physician to establish her claim for wage-loss compensation for total disability for any period of 

time. Thus, the Board finds that she has failed to meet her burden of proof. 

In support of her claim for wage-loss compensation for the period July 24 to 

November 26, 2014, appellant submitted attending physician reports by Dr. Martinez-Franco. 

Dr. Martinez-Franco indicated that appellant was partially disabled for the entire period July 24 

to November 26, 2014 as appellant was “suffering from nausea and vomiting during pregnancy.” 

She advised that the condition of hyperemesis gravidarum might result in appellant being 

disabled from performing the duties of her job. Dr. Martinez-Franco further advised that the 

frequency and severity of the symptoms were unpredictable. The Board finds that this evidence 

is not sufficient to establish appellant’s disability from performing her job as a volunteer for the 

period July 24 to November 26, 2014. 

Dr. Martinez-Franco’s opinion that appellant might require time and days off work in the 

future due to the unpredictable frequency and severity of her hyperemesis gravidarum symptoms 

is based on a fear of future injury. It is well established that the possibility of future injury or 

disability is not a basis for payment of compensation.13 Dr. Martinez-Franco’s July 24, 2014 

opinion related appellant’s disability from July 24 to November 26, 2014 to future possible 

periods of disability rather than to appellant’s current condition or disability. As her opinion 

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

12 Alfredo Rodriguez, 47 ECAB 437 (1996). 

13 I.J., 59 ECAB 408 (2008); Manuel Gill, 52 ECAB 282, 286 n.5 (2001). 
5

regarding disability is based on a possibility of disability rather than actual disability, it is 

insufficient to support her claim for wage-loss compensation for the period in question. 

Therefore, the Board finds that appellant has not established that she was disabled for the period 

July 24 to November 26, 2014. 

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 established that she was disabled for the periods 

May 28 to 30, and on or after June 3, 2014 causally related to her employment injury. 

ORDER 

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

Compensation Programs dated September 11 and July 30, 2014 are affirmed.14

Issued: March 25, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 14 James A. Haynes, Alternate Judge, participated in the preparation of this decision but was no longer a member 

of the Board effective November 16, 2015.