United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.N., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Dallas, TX, Employer 

__________________________________________ 

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Docket No. 16-0137 

Issued: October 14, 2016 

Appearances: Case Submitted on the Record

Michael E. Woods, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 2, 2015 appellant, through her representative, filed a timely appeal of a 

September 4, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

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 has met her burden of proof to establish total disability for 

the period December 3, 2011 through December 31, 2013. 

                                                             1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 

20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. 

Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, 

subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of 

fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On October 17, 2011 appellant, then a 46-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on October 16, 2011 she injured her left shoulder when loading 

a trunk. She did not stop work at that time. 

Appellant was treated by Dr. Ronnie Shade, a Board-certified orthopedic surgeon. An 

October 26, 2011 disability certificate found her totally incapacitated for work from October 26 

to November 23, 2011. In an October 27, 2011 report, Dr. Shade noted that appellant sustained a 

work injury to the left shoulder as a result of an October 16, 2011 work accident where she was 

pulling on footlocker trunks and felt something pull in her left shoulder. He found that flexion 

and abduction was 135 degrees, and tenderness in the subacromial bursa and biceps. Dr. Shade 

diagnosed acute cervical sprain with left upper extremity radiculopathy, bursitis of the left 

shoulder, and rotator cuff tear of the left shoulder. In November 23, 2011 reports, he repeated 

his diagnoses and placed appellant off work from November 23 to December 21, 2011. In 

reports dated November 27, 2011 and April 15, 2012, Dr. Shade opined that the mechanism of 

injury was directly related to the work injury. He explained that the injury that appellant 

sustained caused the listed diagnoses. Dr. Shade opined that her neck and left shoulder condition 

was directly causally related to her work injury on October 16, 2011. In December 15 and 29, 

2011 treatment notes, he provided an injection of the subacromial bursa and bicep tendon. On 

January 23, 2012 Dr. Shade advised that appellant was totally disabled from January 23 to 

February 23, 2012. In a February 22, 2012 report, he noted that she had bilateral hand and wrist 

complaints. Dr. Shade noted a normal inspection of the right and left wrists, with no asymmetry, 

crepitus, swelling, or effusion. He continued to treat appellant and placed her off work due to 

her cervical and left shoulder pain and spasms. 

On April 25, 2012 OWCP accepted the claim for neck sprain, disorder of bursae, and 

tendons in left shoulder, and other specified disorder of bursae and tendons in the left shoulder. 

In reports dated May 14, June 11, and July 11, 2012, Dr. Shade advised that appellant 

was released to limited duty on May 16, 2012. In the July 11, 2012 report, he noted that she 

complained of severe pain, tightness, weakness, spasms and pain associated with lying, lifting, 

and with overhead use. Dr. Shade explained that appellant was unable to perform activities of 

daily living such as driving or house chores and rated the pain on a level 7 out of 10. He 

diagnosed: left shoulder bursitis, bilateral carpal tunnel syndrome, and acromioclavicular (AC) 

joint degenerative disease of the left shoulder, cervical discogenic disease from C4-5 through 

C6-7, and chronic pain. 

In an October 7, 2013 report, Dr. Shade noted treating appellant for the October 16, 2011 

work injury. He examined her and diagnosed: bursitis, left shoulder, bilateral carpal tunnel 

syndrome, AC joint degenerative disease, left shoulder, cervical discogenic disease from C4-5 

through C6-7, and chronic pain. Dr. Shade advised that appellant still had symptoms after 

stopping work at the employing establishment. Appellant continued with pain from her 

conditions which “would incapacitate her from performing any work duties that consist of 

continuous pushing and pulling of heavy lifting and repetitive movement and motion of the 

upper extremities.” Dr. Shade explained that her cervical and left shoulder conditions required 

permanent limitations and her prognosis was fair to poor. He opined that within a degree of 
3

medical certainty appellant was limited in the capacity of work that she did and the objective 

medical evidence “casts no doubt as to her disability.” Dr. Shade recommended that she 

continue with orthopedic treatment. 

In an October 8, 2013 report, Dr. Shade requested acceptance for bilateral carpal tunnel 

syndrome. He indicated that appellant could return to limited duty on October 9, 2013. In a 

November 8, 2013 duty status report, Dr. Shade continued her limited-duty work restrictions 

from October 8, 2013. 

On June 13, 2014 appellant submitted a Form CA-7 claim for compensation requesting 

wage-loss compensation for the period December 3, 2011 through December 31, 2013. The 

employing establishment advised that she received continuation of pay from October 26 to 

December 9, 2011. It noted that appellant was issued a notice of removal, for unacceptable 

conduct and attendance, and was off work for two years. The employing establishment stated 

that it never advised her that no work was available. 

In a September 11, 2013 arbitration award it was found that there was no just cause to 

issue a December 12, 2011 notice of removal and the notice was rescinded. It was also noted 

that on October 22, 2011 appellant called in and requested leave without pay, which was 

considered to be a request for continuation of pay. She was reinstated to her former position 

without any loss of seniority or other nonmonetary benefits, to include compensation for the 45 

days of continuation of pay. The decision noted that making appellant whole and any 

reinstatement was conditioned upon her providing acceptable medical documentation to explain 

her absence, along with a fitness-for-duty examination. Following this, she was reinstated 

effective December 28, 2013 for four hours a day, increasing to full time. 

In a letter dated June 23, 2014, appellant’s representative requested compensation from 

December 3, 2011 through December 31, 2013 as the employing establishment refused to allow 

appellant to come to work after she was terminated. He indicated that she was returned to work 

by the arbitrator’s decision. The representative contended that the fact that the employing 

establishment did not provide her a form that there was “No work available” did not relieve it 

from its responsibility in providing her work. He argued that she still had residuals from her 

October 16, 2011 injury and that Dr. Shade provided a consistent opinion that appellant was 

unable to work for the period October 27, 2011 through January 15, 2014. 

By letter dated July 30, 2014, OWCP informed appellant of the type of evidence needed 

to support her claim for the period December 3, 2011 through December 31, 2013. It noted that 

the arbitration award ordered the employing establishment to make her whole. OWCP explained 

that appellant was not provided a “No work available” note going back to 2011. It noted that she 

was issued a notice of removal for unacceptable conduct and attendance-”AWOL.” OWCP 

advised that appellant was not off work due to no work available and, therefore, she was not 

entitled to compensation for the period claimed. 

In an August 11, 2014 response, appellant’s representative argued that appellant was 

removed two months after her injury because of the injury. He indicated that she was not made 

whole and had not received any compensation. The representative argued that, on November 27, 

2011, Dr. Shade declared appellant unable to work and two weeks later on December 11, 2011, 
4

she was terminated because of her on-the-job injury. He argued that she was disabled since 

November 27, 2011 until she was released to return to work on May 16, 2012. Furthermore, the 

employing establishment refused to allow appellant to return to work. Appellant’s representative 

indicated that no light duty was made available to her consistent with her restrictions. 

In a letter dated November 20, 2014, OWCP advised appellant and her representative that 

the employing establishment indicated that it had never issued a “no work” memorandum. 

Rather, appellant stopped coming to work and failed to submit documentation of total disability. 

OWCP noted that she also stopped communicating with everyone. It explained that the 

arbitration decision awarded 45 calendar days of continuation of pay. Additionally, the notice of 

removal was rescinded and appellant was reinstated without loss of seniority or benefits. OWCP 

noted that the decision indicated that it would not be appropriate to award full back pay for the 

entire time off. It requested that appellant submit additional medical evidence to support her 

claim and afforded her 30 days to submit the requested evidence. 

By decision dated January 14, 2015, OWCP denied appellant’s claim for compensation 

for the period December 3, 2011 through December 31, 2013. It advised her that the medical 

evidence did not establish disability for the above period.3

 

On January 23, 2015 appellant’s representative requested a telephonic hearing, which 

was held on June 24, 2015. In a letter dated July 27, 2015, he argued that appellant was entitled 

to benefits regardless of whether the termination of employment was for cause as the medical 

evidence established that she was unable to perform her assigned duties due to her accepted 

condition. The representative argued that light-duty consistent with her medical restrictions was 

not provided. In a July 27, 2015 separate letter, he argued that Dr. Shade provided sufficient 

support for causation to establish the claim. 

Appellant provided a December 4, 2014 report from Dr. Shade who advised that he 

treated her since October 27, 2011 and at that time diagnosed her with cervical sprain, bursitis, 

left shoulder, and left rotator cuff tear. Dr. Shade indicated that the left shoulder was positive for 

impingement syndrome, subacromial bursa, and bicep tendon tenderness. He noted that x-rays 

showed hypertrophy of the distal clavicle and increased subacromial joint space. Dr. Shade 

related that appellant was taken off work the same day as she was having cervical and left 

shoulder spasms with radicular symptoms. He related that she remained off work with these 

symptoms pending approval of her claim as well as the need for surgery. Dr. Shade noted that 

appellant was released to limited duty on May 16, 2012, but she was unable to perform her usual 

mail handler duties, which included lifting up to 70 pounds. He noted that she had left shoulder 

rotator cuff surgery on July 28, 2014 and remained unable to perform her mail handler duties. 

In a July 24, 2015 response to the hearing, Lester Williams, the supervisor of distribution 

operations, stated that appellant was given a notice of removal on December 12, 2011. He 

explained that she filed a grievance and the termination process stopped and she was never 

terminated. Mr. Williams advised that appellant received disciplinary action for reasons having 

nothing to do with her injury, but rather unacceptable attendance (AWOL) for the periods: 

                                                             3

 On July 28, 2014 appellant underwent authorized left rotator cuff surgery. She stopped work on that date. 

OWCP paid appellant disability compensation beginning July 28, 2014. 
5

October 22 to November 4, 2010, 80 hours unscheduled leave without pay/absence without 

official leave; November 5 to 18, 2011, 80 hours unscheduled leave without pay/absence without 

official leave; and 80 hours unscheduled leave without pay/absence without official leave 

(ULWOP/AWOL). He explained that on September 18, 2013 the employing establishment sent 

her a letter requesting that she return to duty. Mr. Williams related that appellant was advised 

that the arbitration decision provided that she only receive continuation of pay and no back pay 

for the 2011 to 2013 period. He noted that she never received any accommodations because she 

never asked for accommodation and did not provide medical evidence of any kind. 

Mr. Williams indicated that appellant was issued a job offer after the arbitration once she 

provided medical documentation. Additionally, he related that she simply stopped coming to 

work and stopped communicating with the employing establishment, with a few exceptions. 

Mr. Williams reiterated that appellant stopped submitting medical documentation and never 

requested limited duty or contacted her employing establishment concerning limited duty. 

Accompanying this was a copy of the December 12, 2011 notice of removal that was to be 

effective January 31, 2012. 

In a September 4, 2015 hearing representative decision, OWCP’s hearing representative 

affirmed the January 14, 2015 decision.4

 She found that Dr. Shade did not provide sufficient 

support for the claimed disability. The hearing representative further found that there was no 

evidence that work restrictions were identified by him and provided to the employing 

establishment. She explained that appellant had a duty to maintain communication with her 

employing establishment concerning her work injury and release to return to work. 

LEGAL PRECEDENT 

The term disability as used in FECA5 means the incapacity because of an employment 

injury to earn the wages that the employee was receiving at the time of injury.6 Whether a 

particular injury caused an employee disability for employment is a medical issue which must be 

resolved by competent medical evidence.7 When the medical evidence establishes that the 

residuals of an employment injury are such that, from a medical standpoint, they prevent the 

employee from continuing in the employment held when injured, the employee is entitled to 

compensation for any loss of wage-earning capacity resulting from such incapacity.8

 The Board 

will not require OWCP to pay compensation for disability in the absence of any medical 

evidence directly addressing the specific dates of disability for which compensation is claimed. 

                                                             4

 OWCP also issued an August 12, 2015 decision which suspended appellant’s wage-loss compensation due to 

her failure to submit a completed CA-1032 form. Appellant has not appealed this decision. 

5

 20 C.F.R. § 10.5(f). 

6 Paul E. Thams, 56 ECAB 503 (2005). 

7 W.D., Docket No. 09-658 (issued October 22, 2009); Id.

8 Id.
6

To do so would essentially allow employees to self-certify their disability and entitlement to 

compensation.9

 

ANALYSIS 

In support of her claim for disability compensation for the period December 3, 2011 

through December 31, 2013, appellant provided several reports from her treating physician, 

Dr. Shade. However, these reports do not provide sufficient support for total disability for the 

period December 3, 2011 through December 31, 2013 due to her accepted employment injuries. 

OWCP accepted the claim for sprain of the neck, disorder of bursae, and tendons in shoulder 

region, left, other specified disorder of bursae, and tendons in shoulder region, left. The 

employing establishment indicated that it never told appellant that no work was available, prior 

to her notice of removal for unacceptable attendance and that it would have provided work if it 

had been apprised of her restrictions.10 The Board notes that when a claimant stops work for 

reasons unrelated to the accepted employment injury, there is no disability within the meaning of 

FECA.11

In November 23, 2011 reports, Dr. Shade diagnosed cervical sprain, acute with left upper 

extremity radiculopathy, bursitis of the left shoulder and rotator cuff tear, left shoulder and 

placed appellant off work for the period November 23 to December 21, 2011. The Board notes 

that not all of these conditions were accepted by OWCP. Where an employee claims that a 

condition not accepted or approved by OWCP was due to an employment injury, appellant bears 

the burden of proof to establish that the condition is causally related to the work injury.12 

Dr. Shade did not explain the reasons why she was totally disabled and unable to work due to her 

accepted conditions. A physician’s opinion on causal relationship between a claimant’s 

disability and an employment injury is not conclusive simply because it is rendered by a 

physician. To be of probative value, the physician must provide rationale for the opinion 

reached. Where no such rationale is present, the medical opinion is of diminished probative 

value.13 

Dr. Shade subsequently provided a January 23, 2012 disability certificate, indicating that 

appellant was totally incapacitated from January 23 to February 23, 2012. On February 22, 2012 

he noted that she had complaints of the bilateral hands and wrists and placed her off work due to 

her cervical and left shoulder pain and spasms. However, these reports are of insufficient 

probative value, as Dr. Shade did not provide any rationale to explain why appellant was 

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

10 See 20 C.F.R. § 10.515(b) (if an employee cannot return to the job held at the time of injury due to partial 

disability from the effects of the work-related injury, but has recovered enough to perform some type of work, she 

must seek work). 

11 See John I. Echols, 53 ECAB 481 (2002); John W. Normand, 39 ECAB 1378 (1988). Cf. 20 C.F.R. § 10.5(x) 

(a recurrence of disability does not apply when a light-duty assignment is withdrawn for reasons of misconduct, 

nonperformance of duties or other downsizing). 

12 Jaja K. Asaramo, 55 ECAB 200 (2004). 

13 T.M., Docket No. 08-975 (issued February 6, 2009). 
7

disabled due to her accepted conditions. On June 11 and July 11, 2012 he advised that she was 

released to limited duty on May 16, 2012. Dr. Shade diagnosed bursitis, left shoulder; bilateral 

carpal tunnel syndrome, and AC joint degenerative disease of the left shoulder, cervical 

discogenic disease from C4-5 through C6-7 and chronic pain. The Board notes that these were 

not all accepted conditions. He did not offer any opinion regarding her inability to work before 

May 16, 2012. In May 14 and October 7, 2013 reports, Dr. Shade opined that her conditions 

continued to prevent appellant from performing all the duties of her date-of-injury job. He 

advised that she was limited in the capacity of work that she did and the objective medical 

evidence “casts no doubt as to her disability.” As explained, not all of the diagnosed conditions 

were accepted by OWCP and Dr. Shade did not otherwise explain how the accepted conditions 

would cause total disability during the period December 3, 2011 to December 31, 2013. 

On December 4, 2014 Dr. Shade noted treating appellant since October 27, 2011. He 

related that she was taken off work the same day as she was having cervical and left shoulder 

spasms with radicular symptoms. Dr. Shade noted that appellant was released to limited duty on 

May 16, 2012, but was unable to perform her usual duties as a mail handler. He does not provide 

medical rationale to explain the reasons why she was totally disabled during the period 

December 3, 2011 to December 31, 2013 due to her accepted conditions. For much of the 

period, Dr. Shade acknowledges that appellant was able to work limited duty. Without rationale 

to explain why appellant was totally disabled during the above noted time frame, this report is of 

limited probative value.14 Other medical reports submitted by her either predated the claimed 

period or did not address whether her accepted conditions caused disability from December 3, 

2011 through December 31, 2013.15

Although appellant alleged that she was disabled for the period December 3, 2011 

through December 31, 2013, due to her accepted employment injury, the medical evidence of 

record does not establish that her claimed disability during the timeframe was related to her 

accepted employment injuries. The Board finds that she has failed to submit rationalized 

medical evidence establishing that her disability from December 3, 2011 through December 31, 

2013, was causally related to her accepted employment injury, and thus, she has not met her 

burden of proof. 

On appeal, appellant’s representative asserts that the medical evidence supports 

appellant’s claim. As explained, the medical evidence is insufficient to establish the claimed 

period of disability. The representative also asserts that appropriate light duty was not made 

available to appellant. The Board notes that she was issued a notice of removal and was off 

work for two years as discipline for unacceptable attendance. As noted, when a claimant stops 

work for reasons unrelated to the accepted employment injury, there is no disability within the 

meaning of FECA.16 An arbitration decision later reinstated appellant to her former position and 

the employing establishment was directed to make her whole, but this was conditioned upon her 

providing acceptable medical documentation to explain her absence, along with a fitness-for-

                                                             14 See id. 

15 See supra note 8. 

16 See supra note 10. 
8

duty examination. The Board notes that it has no jurisdiction over internal employing 

establishment personnel matters.17 There is no basis under FECA for requiring the employing 

establishment to make work available during the pendency of an administrative action involving 

the removal of an employee. While the employing establishment’s administrative removal was 

later overturned, this is a personnel matter of the employing establishment. There is no evidence 

establishing that appellant was removed due to her work-related condition. The employing 

establishment confirmed that, before the removal, appellant never contacted it for limited duty or 

requested limited duty. Accordingly, there is no basis for wage-loss compensation for the period 

requested. 

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 failed to establish that she was disabled for the period 

December 3, 2011 through December 31, 2013. 

                                                             17 A.B., Docket No. 15-0785 (issued August 11, 2015); V.B., Docket No. 12-0114 (issued June 13, 2012). 
9

ORDER 

IT IS HEREBY ORDERED THAT the September 4, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 14, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board