United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.B., Appellant 

and 

DEPARTMENT OF JUSTICE, EXECUTIVE 

OFFICE FOR IMMIGRATION REVIEW, 

Falls Church, VA, Employer 

__________________________________________ 

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Docket No. 16-0515 

Issued: September 14, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On January 27, 2016 appellant filed a timely appeal from a December 28, 2015 merit 

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.2

 

ISSUE 

The issue is whether appellant met her burden of proof to establish disability on July 29, 

2014 to attend a medical appointment. 

                                                             1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted additional evidence after OWCP rendered its December 28, 2015 

decision. The Board’s jurisdiction however is limited to reviewing the evidence that was before OWCP at the time 

of its final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. 

§ 501.2(c)(1). 
2 

On appeal, appellant contends that OWCP should have paid two hours of compensation 

on July 29, 2014 to attend a presurgical appointment for a procedure authorized by OWCP. She 

notes that the employing establishment approved two hours of leave for the same visit. 

FACTUAL HISTORY 

OWCP accepted that appellant, a 60-year-old legal assistant, sustained a temporary 

aggravation of localized primary osteoarthritis of the right hip, localized primary osteoarthritis of 

the right lower leg, pain in joint of right pelvic region and thigh, and localized primary 

osteoarthritis of the right pelvic region and thigh as a result of tripping and falling at work on 

January 6, 2012. It authorized a right total hip arthroplasty which was performed on August 6, 

2014 by Dr. Richard L. Meyer, Jr., a Board-certified orthopedic surgeon. Appellant received 

wage-loss compensation for intermittent periods between November 15, 2012 and 

October 24, 2014. 

On August 25, 2014 appellant filed a claim for compensation (Form CA-7) for wage loss 

due to disability on July 29, 2014. 

In an August 27, 2014 letter, OWCP advised appellant that it had not received any 

evidence to support her claim and afforded her 30 days to submit additional evidence to establish 

disability for work that day. 

In response, appellant submitted a September 15, 2014 letter explaining that she had used 

leave without pay (LWOP) on July 29, 2014 to attend a presurgical clearance appointment with 

Dr. Christopher Lege, a Board-certified internist, before the August 6, 2014 hip replacement 

surgery.3

 She provided a July 29, 2014 report from Dr. Lege, confirming that appellant had been 

seen that day for “pre-op clearance” and could return to work on July 30, 2014. 

On July 31, 2014 Dr. Rodrigo Saenz, a Board-certified radiologist, found no acute 

cardiopulmonary process. On August 6, 2014 he found postoperative changes from right total 

hip arthroplasty. 

In a September 3, 2014 report, Dr. Meyer released appellant to work effective 

September 5, 2014 with the following restrictions: no reaching above the head or side-to-side; 

lifting no more than five pounds; and no stooping or bending from low positions. 

By decision dated December 28, 2015, OWCP denied appellant’s claim for disability 

compensation, finding that she had submitted no medical evidence that the accepted January 6, 

2012 injuries disabled her from work on July 29, 2014. 

LEGAL PRECEDENT 

Section 8102(a) of FECA4

 sets forth the basis upon which an employee is eligible for 

compensation benefits. That section provides: “The United States shall pay compensation as 

specified by this subchapter for the disability or death of an employee resulting from personal 

                                                             3

 Appellant also requested a correction to her listed name. 

4

 5 U.S.C. § 8102(a). 
3 

injury sustained while in the performance of his duty....” In general the term “disability” under 

FECA means “incapacity, because of an employment injury, to earn the wages the employee was 

receiving at the time of injury.”5 This meaning, for brevity, is expressed as disability from 

work.6 For each period of disability claimed, the employee has the burden of proving that she 

was disabled for work as a result of the accepted employment injury.7

 Whether a particular 

injury caused an employee to be disabled from employment and the duration of that disability are 

medical issues which must be proved by the preponderance of the reliable probative and 

substantial medical evidence.8

 

With respect to claimed disability for medical treatment, section 8103 of FECA provides 

for medical expenses, along with transportation and other expenses incidental to securing 

medical care, for injuries.9

 Appellant would be entitled to compensation for any time missed 

from work due to medical examination or treatment for an employment-related condition.10 

However, OWCP’s obligation to pay for expenses incidental to obtaining medical care, such as 

loss of wages, extends only to expenses incurred for treatment of the effects of any employmentrelated condition. Appellant has the burden of proof, which includes the necessity to submit 

supporting rationalized medical evidence.11 As a rule, 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 of the medical procedure and/or the need to 

travel a substantial distance to obtain the medical care.12

ANALYSIS 

OWCP accepted that appellant sustained employment-related injuries to the pelvis and 

right lower extremity on January 6, 2012, requiring right hip surgery on August 6, 2014. On 

August 25, 2014 appellant claimed compensation to attend a July 29, 2014 appointment with 

Dr. Lege, an attending Board-certified internist, to obtain presurgical clearance for the August 6, 

2014 procedure. In support of her claim, appellant submitted Dr. Lege’s July 29, 2014 note 

confirming a “pre-op clearance” on that date. She also explained in a September 15, 2014 letter 

that she used two hours of leave without pay (LWOP) on July 29, 2014 to receive medical 

clearance for right hip surgery approved by OWCP. 

                                                             5

 20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548 

(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984). 

6 See Roberta L. Kaaumoana, 54 ECAB 150 (2002). 

7 See William A. Archer, 55 ECAB 674 (2004). 

8 See Fereidoon Kharabi, 52 ECAB 291, 292 (2001). 

9

 5 U.S.C. § 8103(a). 

10 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment, 

Chapter 2.901.19a (February 2013). See also Vincent E. Washington, 40 ECAB 1242 (1989). 

11 Dorothy J. Bell, 47 ECAB 624 (1996); Zane H. Cassell, 32 ECAB 1537 (1981). 

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

(November 1998). 
4 

OWCP denied the claim on December 28, 2015, finding that appellant had submitted 

insufficient medical evidence that the accepted injuries disabled her from work on July 29, 2014. 

On appeal, appellant contends that OWCP should have paid two hours of compensation to 

reimburse LWOP used to attend the July 29, 2014 appointment. 

The Board finds that Dr. Lege’s July 29, 2014 report is sufficient to establish two hours 

of compensation for the date claimed. It is dated July 29, 2014, the date for which appellant 

claimed compensation. Dr. Lege confirmed that the appointment was for a presurgical clearance. 

Also, the appointment was within a week of the August 6, 2014 right hip arthroplasty approved 

by OWCP. The specificity of Dr. Lege’s report, and the proximity of the appointment to the 

approved surgery demonstrate that the July 29, 2014 presurgical clearance was incidental to an 

accepted injury for which surgery was authorized. Therefore, appellant has established disability 

for two hours of wage-loss compensation for the July 29, 2014 appointment. OWCP’s 

December 28, 2015 decision denying that compensation is reversed. The case is returned to 

OWCP for payment of two hours of wage-loss compensation on July 29, 2014. 

CONCLUSION 

The Board finds that appellant has met her burden of proof to establish disability on 

July 29, 2014 to attend a medical appointment. 

ORDER 

IT IS HEREBY ORDERED THAT the December 28, 2015 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: September 14, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board