United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

STATION, Great Lakes, IL, Employer 

__________________________________________ 

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Docket No. 14-1929 

Issued: February 23, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 2, 2014 appellant, through counsel, filed a timely application for review 

from a March 12, 2014 merit decision and an August 15, 2014 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 OWCP properly denied appellant’s claim for wage-loss 

compensation for the period February 10, 2010 through January 15, 2011; and (2) whether it 

properly denied appellant’s request for further merit review of his claim pursuant to 5 U.S.C. 

§ 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 11, 2010 appellant, then a 54-year-old police officer, filed a traumatic injury 

claim (Form CA-1) alleging that on February 10, 2010 he slipped on ice while exiting a squad 

car and twisted his left knee. OWCP accepted his claim for sprain of the medial collateral 

ligament of the left knee on April 21, 2010. On January 26, 2011 it accepted an additional 

condition of a tear of the medial meniscus of the left knee. 

In a note dated February 24, 2010, Dr. Daniel T. Weber, a Board-certified orthopedic 

surgeon, stated that appellant could return to work as of the next day with sedentary work 

restrictions. He reiterated these restrictions in a note dated March 24, 2010, and stated that 

appellant should be limited to walking or standing for no more than 30 minutes per day and 

allowed to elevate his left leg. 

On August 20, 2010 Dr. Weber stated that, until appellant had arthroscopic surgery, he 

would maintain his sedentary work restriction. In a narrative report dated September 24, 2010, 

he again reiterated that appellant’s diagnosis was internal derangement of the left knee and that 

appellant could only perform sedentary work until surgery. 

In an attending physician’s report dated January 13, 2011, Dr. Weber diagnosed a left 

medial meniscus tear. He recommended surgery pending authorization from OWCP. Dr. Weber 

stated that appellant had been able to resume sedentary work on February 24, 2010. 

Appellant stopped work on January 19, 2011 and returned on February 9, 2011. He 

stopped work again on May 28, 2011. A review of appellant’s compensation history reveals that 

he was paid for intermittent disability between January 19, 2011 and April 13, 2012. 

On January 20, 2011 Dr. Weber performed a left knee arthroscopy with a partial medial 

meniscectomy and a patellofemoral abrasion arthroplasty. There were no complications. 

On February 14, 2011 appellant filed a claim for intermittent leave without pay from 

February 10, 2010 through January 15, 2011. He submitted time analysis forms dated 

February 17, 2011, in which he claimed eight intermittent hours of leave without pay for June 6, 

26, 27, 29, and 30, 2010; August 6, 2, 23, 24, 25, and 26, 2010; September 9, 10, 11, and 24, 

2010; October 3 and 5, 2010; and January 10, 11, and 19, 2011. Appellant claimed three hours 

of leave without pay for June 28 and October 4, 2010. He claimed four hours of leave without 

pay for August 6 and 8, September 12, and October 2, 2010. Appellant claimed six hours of 

leave without pay for January 7, 2011. 

By letter dated February 16, 2011, a representative of the employing establishment asked 

Dr. Weber to advise as to appellant’s disability on dates between June 6, 2010 and 

January 11, 2011. 

By letter dated February 21, 2012, OWCP advised appellant that the evidence of record 

was insufficient to support his claim for wage-loss compensation due to disability. It noted that 

he had been released to sedentary work following his injury, and that there was no evidence of 

record that the employing establishment sent him home due to lack of sedentary work. OWCP 

afforded appellant 30 days to submit additional information. 
3

Appellant elected to receive retirement benefits in lieu of FECA benefits effective 

October 22, 2012. 

By decision dated October 19, 2012, OWCP denied appellant’s claim for intermittent 

wage-loss compensation for the period from February 10, 2010 through January 15, 2011. It 

found that the medical evidence was insufficient to support intermittent disability on these dates. 

On October 22, 2012 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. 

A hearing was held on December 18, 2013. At the hearing, appellant testified that, when 

he had to move around at his job, his knee would swell, and his physician had advised him to put 

ice on it and keep it immobilized until the swelling abated. He stated that he did not see his 

physician every time this occurred, and that when it occurred, it would improve within a day or 

two. Appellant stated that, in addition to his left knee, his right knee also began to hurt, and that 

he told this to Dr. Weber. He testified that both his left and right knee had been approved under 

this file. The hearing representative stated that OWCP had not approved a right knee injury 

under this file. Counsel noted that appellant had been paid wage-loss compensation under this 

claim for disability after surgery on his right knee in 2012. He also noted that OWCP had paid 

for appellant’s right knee surgery. The hearing representative stated that there was no formal 

authorization for right knee surgery and that a right knee condition had not been accepted in this 

case. Appellant noted that he was off work for the dates in question due to both of his knees. He 

also stated that he did not take partial days off. The hearing representative noted that appellant’s 

time analysis forms stated that he claimed less than eight hours for certain workdays, and that it 

was unclear whether he worked the rest of the day on these dates. He advised appellant that he 

needed to submit medical evidence supporting specific dates of disability and held the record 

open for 30 days for submission of additional evidence. 

On March 12, 2014 the hearing representative affirmed the decision of October 19, 2012. 

He noted that a right knee condition was not approved, and that a review of the case file revealed 

that a right knee surgery may have been erroneously paid by OWCP. The hearing representative 

found that no medical evidence had been submitted discussing appellant’s claimed intermittent 

disability between February 10, 2010 and January 15, 2011. 

By letter received on June 26, 2014, appellant, through counsel, requested 

reconsideration of OWCP’s March 12, 2014 decision. 

With his request for reconsideration, appellant attached a report from Dr. Scott Cordes, a 

Board-certified orthopedic surgeon, dated April 8, 2014. Dr. Cordes reviewed the history of 

appellant’s injury, noting that appellant underwent total knee replacements in October and 

December 2012. He stated that appellant’s left knee injury caused progressive osteoarthritic 

deterioration due to prolonged limping and favoring of the left knee. Appellant also resubmitted 

a functional capacity evaluation dated May 3, 2011 and signed by an occupational therapist. 

By decision dated August 15, 2014, OWCP denied appellant’s request for reconsideration 

without reviewing the merits of his case. It found that Dr. Cordes’ report was irrelevant, as it did 

not address the period of disability from February 10, 2010 through January 15, 2011. 
4

LEGAL PRECEDENT -- ISSUE 1 

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

to earn the wages that the employee was receiving at the time of injury.2

 Disability is thus not 

synonymous with physical impairment, which may or may not result in incapacity to earn wages. 

An employee who has a physical impairment causally related to a federal employment injury, but 

who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury, 

has no disability as that term is used in FECA.3

 Whether a particular injury causes an employee 

disability for employment is a medical issue which must be resolved by competent medical 

evidence.4 Whether a particular injury causes an employee to be disabled for work and the 

duration of that disability, are medical issues that must be proved by a preponderance of the 

reliable, probative, and substantial medical 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

 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 or her disability and entitlement to 

compensation.7

The medical evidence required to establish a causal relationship, generally, is rationalized 

medical opinion evidence.8

 The opinion of the physician must be based on a complete factual 

and medical background of the employee, must be one of reasonable certainty, and must be 

supported by medical rationale explaining the nature of the relationship between the diagnosed 

condition and the specific employment factors identified by the employee.9

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained a sprain of the left medial collateral ligament of 

the left knee and a tear of the medial meniscus of the left knee as a result of a traumatic incident 

on February 10, 2010. Appellant claimed that he was disabled for intermittent dates from 

February 10, 2010 through January 15, 2011. OWCP denied his claim by decision dated 

October 19, 2012. A hearing representative affirmed this decision on March 12, 2014. 

 2 William Nimitz, Jr., 30 ECAB 567, 570 (1979). 

3 Cheryl L. Decavitch, 50 ECAB 397, 401 (1999). 

4 Donald E. Ewals, 51 ECAB 428 (2000). 

5 Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id. 

6 See Amelia S. Jefferson, 57 ECAB 183 (2005); see also David H. Goss, 32 ECAB 24, 27 (1980). 

7 See William A. Archer, 55 ECAB 674, 679 (2004); Fereidoon Kharabi, 52 ECAB 291, 293 (2001). 

8 See Viola Stanko (Charles Stanko), 56 ECAB 436, 443 (2005); see also Naomi A. Lilly, 10 ECAB 560, 572-

73 (1959). 

9 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (2005). 
5

Appellant has the burden of establishing by the weight of the substantial, reliable, and probative 

evidence that he was disabled for work for the claimed period due to his accepted injuries.10

In a note dated February 24, 2010, Dr. Weber stated that appellant could return to work 

as of the next day with sedentary work restrictions. He reiterated these restrictions in a note 

dated March 24, 2010, and stated that appellant should be limited to walking or standing for no 

more than 30 minutes per day and allowed to elevate his leg. On August 20, 2010 Dr. Weber 

stated that, until appellant had arthroscopic surgery, he would maintain his sedentary work 

restriction. In an attending physician’s report dated January 13, 2011, he diagnosed appellant 

with a left medial meniscus tear. Dr. Weber recommended surgery pending approval from 

OWCP. He stated that appellant had been able to resume sedentary work on February 24, 2010. 

Dr. Weber did not address specific dates of disability in any of his reports. He advised 

that appellant could work with sedentary restrictions as early as February 24, 2010. Dr. Weber 

did not explain how or why the accepted injuries disabled appellant from work for the dates 

claimed. Hence, his notes and medical reports lack both rationale and particularity for the dates 

of disability claimed. Similarly, the remaining medical reports of record do not address any 

specific dates of disability. As such, these reports are of diminished probative value on the issue 

of whether appellant was disabled intermittently between February 10, 2010 and 

January 15, 2011.11

The Board has however long recognized that, under section 8103 of FECA,12 payment of 

expenses incidental to the securing of medical services encompasses payment for loss of wages 

incurred while obtaining medical treatment. An employee is entitled to disability compensation 

for loss of wages incidental to treatment for an employment injury.13 OWCP’s Federal (FECA) 

Procedure Manual,14 provides that, in general, no more than four hours of compensation or 

continuation of pay should be allowed for routine medical appointments. 

Appellant testified at his hearing that his left knee and subsequently his right knee would 

swell, and that he had been told by a physician to stay off the knee if this occurred. He explained 

that he would then stay off the knee and ice it, and in a day or two the knee would improve. 

Appellant stated that he did not go to a physician each time this occurred. A review of the record 

does indicate that, of the dates of disability he claimed, he did seek medical treatment from 

Dr. Weber on September 24, 2010. The medical evidence supports that appellant received 

 10 Alfredo Rodriguez, 47 ECAB 437 (1996). 

11 See Deborah L. Beatty, 54 ECAB 340 (2003). 

12 5 U.S.C. § 8103. 

13 Daniel Hollars, 51 ECAB 355 (2000); Antonio Mestres, 48 ECAB 139 (1996); Henry Hunt Searles, III, 46 

ECAB 192 (1994). 

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

(November 1998). 
6

treatment for his left knee accepted condition on this date and should be granted up to four hours 

of compensation for his wage-loss incidental to such treatment on this date.15 

OWCP advised appellant by letter dated February 21, 2012 of the evidence needed to 

establish his claim, including a physician’s opinion as to why his accepted injuries would disable 

him for work intermittently between February 10, 2010 and January 15, 2011. At the telephonic 

hearing held on December 18, 2013, the hearing representative advised appellant of the evidence 

needed to establish his claim. Appellant did not submit such evidence. He provided no 

rationalized reports addressing any other specific dates of disability between February 10, 2010 

and January 15, 2011. 

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 

To require OWCP to reopen a case for merit review under section 8128(a), 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.16 Section 10.608(b) of OWCP’s regulations 

provide that when an application for reconsideration does not meet at least one of the three 

requirements enumerated under section 10.606(b)(2), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.17

The Board has found that evidence that repeats or duplicates evidence already in the case 

record has no evidentiary value.18 The Board also has held that the submission of evidence 

which does not address the particular issue involved does not constitute a basis for reopening a 

case.19 While the reopening of a case may be predicated solely on a legal premise not previously 

considered, such reopening is not required where the legal contention does not have a reasonable 

color of validity.20

 15 See C.F., Docket No. 07-1567 (issued January 17, 2008). 

16 20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007). 

17 Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008). 

18 See Daniel Deparini, 44 ECAB 657, 659 (1993). 

19 P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB 

180, 187 (2000). 

20 Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000). 
7

ANALYSIS -- ISSUE 2 

OWCP issued a March 12, 2014 decision denying appellant’s compensation. On June 26, 

2014 appellant requested reconsideration of this decision. OWCP denied his request for 

reconsideration on August 15, 2014 without reviewing the merits of his claim. 

The issue presented on appeal of the August 15, 2014 decision is whether appellant met 

any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for 

review of the merits of his claim. In his June 26, 2014 request for reconsideration, appellant did 

not establish that OWCP erroneously applied or interpreted a specific point of law. He did not 

identify a specific point of law or show that it was erroneously interpreted or applied. Thus, 

appellant is not entitled to a review of the merits of his claim based on the first and second 

above-noted requirements under section 10.606(b)(3). 

The relevant issue upon reconsideration was whether appellant had established by 

submission of rationalized medical evidence of disability on specific dates between February 10, 

2010 and January 15, 2011. A claimant may be entitled to review by submitting new and 

relevant evidence. However, appellant did not submit any new and relevant evidence in this 

case. With his request, appellant submitted a report from Dr. Cordes dated April 8, 2014. 

Dr. Cordes reviewed the history of appellant’s injury, noting that appellant underwent total knee 

replacements in October and December 2012. He stated that appellant’s left knee injury caused 

progressive osteoarthritic deterioration due to prolonged limping and favoring of the left knee. 

Although this report was new, it was not relevant and pertinent to the issue of whether appellant 

was disabled from work due to his accepted conditions between February 10, 2010 and 

January 15, 2011. Dr. Cordes did not address specific dates of disability in his report. As such, 

his report was not relevant and thus insufficient to require a merit review of appellant’s claim. 

Appellant also resubmitted a functional capacity evaluation dated May 3, 2011 and 

signed by an occupational therapist. As this evidence was previously of record, it did not 

constitute a basis for review of the merits of appellant’s claim.21

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s claim for wage-loss 

compensation for the period February 10, 2010 through January 15, 2011; except that appellant 

is entitled to disability compensation for wage loss during medical treatment on 

September 24, 2010. The Board further finds that OWCP properly denied appellant’s request for 

review of the merits of his claim pursuant to 5 U.S.C. § 8128(a). 

 21 Supra at note 14. 
8

ORDER 

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

Compensation Programs dated August 15 and March 12, 2014 are affirmed as modified. 

Issued: February 23, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board