United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 16-0674 

Issued: July 20, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 22, 2016 appellant filed a timely appeal from a January 6, 2016 merit 

decision and a February 1, 2016 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. 

ISSUES 

The issues are: (1) whether appellant has met her burden of proof to establish total 

disability on May 22 and June 22 and 26, 2015 due to her accepted employment 

 1

 5 U.S.C. § 8101 et seq. 
2

injury; and (2) whether OWCP properly denied appellant’s request for further merit review of 

her claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On October 26, 2012 appellant, then a sales associate, filed a traumatic injury claim 

(Form CA-1) alleging that on October 22, 2012 a safe’s door closed on her right thumb. As her 

injury appeared to be minor, with minimal or no lost time from work, the claim was 

administratively handled to allow for payment of a limited amount of medical expenses. When 

appellant’s medical bills exceeded $1,500.00, OWCP adjudicated the claim and accepted the 

October 22, 2012 traumatic injury for right open wound of finger with complications. 

On July 1, 2015 appellant filed a claim for compensation (Form CA-7) for the dates of 

May 22 and June 22 and 24, 2015. The accompanying time analysis form indicated that 

appellant took two hours of leave without pay (LWOP) on those dates for a total of six hours to 

attend occupational therapy on June 22 and 24, 2015. 

In a July 7, 2015 letter, OWCP advised appellant of the deficiencies in her claim and 

requested that she provide reports regarding her physical therapy on June 22 and 24, 2015 and 

either medical examination, physical therapy, or testing on May 22, 2015. Appellant was 

afforded 30 days to provide the requested evidence. No additional evidence pertaining to the 

dates claimed were provided. 

By decision dated September 16, 2015, OWCP denied appellant’s claim for 

compensation as there was no evidence of record to support that appellant lost time from work 

on May 22 and June 22 and 24, 2015 due to her accepted injury. 

On October 15, 2015 OWCP received appellant’s September 28, 2015 request for 

reconsideration. Appellant indicated that she had attended occupational therapy those three 

dates. 

Evidence received in support of her reconsideration request included a copy of a date log 

from WSMC -- Sports Medicine that ranged from June 22 through July 24, 2015. The date log 

reflected that on June 22 and 24, 2015 appellant had occupational therapy for 30 minutes with 

Regina Pascal. No treatment notes were received. 

By decision dated January 6, 2016, OWCP denied modification of the September 16, 

2015 decision. 

On January 20, 2016 OWCP received appellant’s January 15, 2015 request for 

reconsideration. Appellant advised that she was unaware that something in writing was needed 

from her occupational therapist. No evidence was received. 

By decision dated February 1, 2016, OWCP denied appellant’s request for 

reconsideration without merit review. 
3

LEGAL PRECEDENT -- ISSUE 1 

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.2

 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.3

 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.4

 

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. When 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. 

OWC’s procedure manual provides that no more than four hours of compensation or 

continuation of pay should be allowed for routine medical appointments. Longer periods of time 

may be allowed when required by the nature or the medical procedure and/or the need to travel a 

substantial distance to obtain the medical care.5

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 disability and 

entitlement to compensation.6

ANALYSIS -- ISSUE 1 

OWCP accepted that on October 22, 2012 appellant sustained an open wound of finger 

with complications and paid medical benefits. Appellant filed a claim for wage-loss 

compensation for the dates of May 22 and June 22 and 24, 2015. She must submit rationalized 

medical evidence specifically addressing the claimed period of disability. Without this 

requirement, a claimant could effectively self-certify that she was disabled and entitled to 

compensation for a particular date or dates.7

While a date log from WSMC -- Sports Medicine reflected that appellant underwent 

occupational therapy with Ms. Pascal for 30 minutes on June 22, 2015 and 30 minutes on 

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

3 See Amelia S. Jefferson, id.

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

5

 Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 

(November 1998). 

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

7 Id. 
4

June 24, 2015, there is no evidence of record to support that such therapy was due to the 

October 22, 2012 employment injury. However, there is no evidence of record that those 

sessions of occupational therapy were authorized, or that therapy performed on the dates in 

question was for the accepted injury.8

 Accordingly, the Board finds that OWCP properly denied 

the claim for disability. 

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 and 

20 C.F.R. §§ 10.605 through 10.607. 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9

OWCP’s regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.10 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her 

application for review within one year of the date of that decision.11 When a claimant fails to 

meet one of the above standards, OWCP will deny the application for reconsideration without 

reopening the case for review on the merits.12 

ANALYSIS -- ISSUE 2 

On January 20, 2016 OWCP timely received appellant’s January 15, 2015 request for 

reconsideration of its January 6, 2015 decision denying her claim for compensation for the dates 

May 22, June 22 and 24, 2015. The question for determination is whether her request met at 

least one of the three standards for obtaining a merit review of her case. 

Appellant did not establish that OWCP erroneously applied or interpreted a specific point 

of law. She did not advance a relevant legal argument not previously considered by OWCP and 

she did not submit relevant and pertinent new evidence not previously considered by OWCP. 

Appellant advised that she was unaware that something in writing was needed from her 

occupational therapist. She did not submit any further evidence regarding her occupational 

therapy appointments. The underlying issue is a medical question for which she must submit 

 8 Compare Docket No. 11-2108 (issued June 1, 2012) (where Board remanded the case for further development of 

the evidence wherein appellant claimed wage-loss benefits for physical therapy appointments several months after 

beginning regular physical therapy for the accepted injury. 

9

 Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of 

compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a). 

10 20 C.F.R. § 10.606(b)(3). 

11 Id. at § 10.607(a). 

12 Id. at § 10.608(b)(3). 
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medical evidence specifically addressing the claimed period of disability. Appellant offered no 

new relevant and pertinent evidence. 

A claimant may be entitled to a merit review by submitting new and relevant evidence or 

argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R. § 10.608, 

OWCP properly denied merit review. 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish disability for 

the claimed dates of May 22 and June 22 and 24, 2015 due to the October 22, 2012 employment 

injury. The Board also finds that OWCP properly denied appellant’s request for further merit 

review of her claim pursuant to 5 U.S.C. § 8128(a). 

ORDER 

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

Compensation Programs dated February 1 and January 6, 2016 are affirmed. 

Issued: July 20, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board