United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.C., Appellant 

and 

DEPARTMENT OF DEFENSE, DEFENSE 

COMMISSARY AGENCY, San Diego, CA, 

Employer 

__________________________________________ 

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Docket No. 17-0966 

Issued: August 4, 2017 

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 April 3, 2017 appellant filed a timely appeal from a January 11, 2017 merit decision 

of the Office of Workers’ Compensation Programs (OWCP) and a March 14, 2017 nonmerit 

decision. 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 established that he was totally disabled from 

October 19 to 26, 2010 causally related to his accepted employment injury; and (2) whether 

OWCP properly denied appellant’s request for a review of the written record under 5 U.S.C. 

§ 8124 as untimely. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On October 14, 2010 appellant, then a 62-year-old grocery department manager, filed an 

occupational disease claim (Form CA-2) alleging that he sustained stress, anxiety, and 

depression due to harassment and a hostile work environment. 

The employing establishment, in a memorandum dated October 25, 2010, issued 

appellant a return to work order.2 It noted that he had been absent without leave (AWOL) after 

October 19, 2010 when he refused to follow an order of a supervisor.3 

Appellant stopped work on March 5, 2011 and retired on April 1, 2011. 

By decision dated March 9, 2011, OWCP denied appellant’s emotional condition claim 

as he had not sufficiently supported his allegation of harassment. It further noted that the 

medical evidence submitted was insufficient to support causation. 

Appellant requested an oral hearing before an OWCP hearing representative. A 

telephone hearing was held on July 16, 2012. In a decision dated October 12, 2012, an OWCP 

hearing representative vacated the March 9, 2011 decision. She reviewed a February 7, 2012 

Merit Systems Protection Board (MSPB) decision finding that the employing establishment had 

reduced appellant’s grade without due process in May 2010. The hearing representative found 

that the MSPB decision demonstrated error or abuse by the employing establishment in reducing 

his grade and thus constituted a compensable work factor. She remanded the case for OWCP to 

prepare a statement of accepted facts and refer appellant for a second opinion examination to 

determine whether he sustained a diagnosed condition causally related to the accepted work 

factor. 

Following further development, on August 11, 2014 OWCP accepted appellant’s claim 

for recurrent major depression. It paid him wage-loss compensation for total disability beginning 

April 1, 2011. Appellant remains on the periodic compensation rolls for total disability. 

Appellant, on October 16, 2014, filed a claim for compensation (Form CA-7) requesting 

compensation for intermittent wage loss from October 19 to 26, 2010. On the form the 

employing establishment advised that he had used leave without pay intermittently from 

October 19 to 26, 2014. In a time analysis form, the employing establishment indicated that 

appellant worked two hours on October 19, 2010, three hours on October 21, 2010, and was 

AWOL for the remaining hours. 

On August 30, 2016 appellant again filed a claim for compensation for lost time from 

October 19 to 26, 2010. By letter dated August 30, 2016, OWCP notified him that there was no 

medical evidence establishing that he was disabled from work for 43 hours from October 19 

 2

 In an October 13, 2010 statement, H.D., a coworker, related that on that date a manager ordered appellant into 

his office, but he refused. The manager called security. 

3

 Appellant provided an October 26, 2010 response to the memorandum. 
3

to 26, 2010.4 It further noted that there was no evidence that the employing establishment erred 

in finding appellant AWOL during the claimed period. OWCP asked that he submit evidence 

supporting error by the employing establishment in categorizing him as AWOL and medical 

evidence supporting disability from employment. 

Appellant submitted clinic notes regarding his treatment on October 19, 2010 for 

complaints of “depression about [appellant’s] work.” A nurse practitioner noted that 

management took his badge and escorted him from his office and that he wanted a work excuse 

for one week due to stress. She diagnosed depression with anxiety and gave him a one week 

work excuse. Appellant further provided a note from another nurse practitioner excusing him 

from work from October 19 to 26, 2010. 

By decision dated January 11, 2017, OWCP denied appellant’s claim for compensation 

for intermittent disability from October 19 to 26, 2010. It found that he had not submitted 

factual evidence showing that the employing establishment erred in determining that he was 

AWOL from October 19 to 26, 2010. OWCP noted that the only compensable work factor was 

that the employing establishment erred in demoting him in 2010. 

In correspondence dated February 14, 2017 and postmarked February 15, 2017, appellant 

requested a review of the written record. By decision dated March 14, 2017, OWCP denied his 

request for a review of the written record under section 8124 as it was not made within 30 days. 

It exercised its discretion and found that the matter could equally well be addressed through a 

request for reconsideration with supporting evidence establishing entitlement to disability 

compensation for the claimed period. 

On appeal appellant contended that the employing establishment involuntarily removed 

him from work on October 19, 2010. 

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, including that any disability or specific condition for 

which compensation is claimed is causally related to the employment injury.5 The term 

disability is defined as the incapacity because of an employment injury to earn the wages the 

employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of 

wage-earning capacity.6

 

Whether a particular injury causes an employee to be disabled for employment and the 

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

 4

 OWCP indicated that the claimed date of disability was from October 19, 2010 to October 26, 2013 instead of 

October 26, 2010. 

5 Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 

6

 20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (finding that the claimant had an injury, 

but no loss of wage-earning capacity). 
4

reliable, probative, and substantial medical evidence.7 Findings on examination are generally 

needed to support a physician’s opinion that an employee is disabled for work. When a 

physician’s statements regarding an employee’s ability to work consist only of repetition of the 

employee’s complaints that he hurt too much to work, without objective findings of disability 

being shown, the physician has not presented a medical opinion on the issue of disability or a 

basis for payment of compensation.8 

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained recurrent major depression as a result of the 

compensable work factor, that the MSPB found the employing establishment erred in reducing 

his grade without due process in May 2010. It paid him compensation for total disability 

commencing April 1, 2011. 

Appellant filed a claim for wage-loss compensation for the period October 19 

to 26, 2010. OWCP noted that the employing establishment considered him AWOL during the 

claimed period. It denied appellant’s claim for disability compensation from October 19 to 26, 

2010 as he failed to demonstrate error by the employing establishment in finding him AWOL. 

The relevant issue, however, is whether appellant established disability from employment during 

that period causally related to the accepted compensable employment factor. 

The Board finds that the medical evidence of record is insufficient to support that 

appellant was disabled from October 19 to 26, 2010 due to the accepted employment injury. 

Appellant submitted evidence addressing his ability to work during this period from nurse 

practitioners. A nurse or nurse practitioner, however, is not considered a “physician” under 

FECA and thus cannot render a medical opinion.9

 Thus, this evidence is of no probative value in 

establishing appellant’s claim.10 Appellant, consequently, has offered insufficient medical 

evidence to establish his claim for disability compensation from October 19 to 26, 2010. 

On appeal appellant contended that the employing establishment involuntarily removed 

him from work on October 19, 2010. The Board’s jurisdiction, however, is limited to reviewing 

final decisions of OWCP issued under FECA.11

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. 

 7 See Fereidoon Kharabi, 52 ECAB 291 (2001). 

8 Id. 

9 5 U.S.C. § 8101(2) (defining physicians as surgeons, podiatrists, dentists, clinical psychologists, optometrists, 

chiropractors, and osteopathic physicians within the scope of their practice as defined by State law); see also R.E., 

Docket No. 16-1568 (issued February 9, 2017) (nurse practitioners are not considered physicians as defined by 

FECA). 

10 See A.B., Docket No. 17-0301 (issued May 19, 2017). 

11 20 C.F.R. § 501.2(c). 
5

LEGAL PRECEDENT -- ISSUE 2 

Section 8124(b) of FECA provides that a claimant for compensation not satisfied with a 

decision of the Secretary is entitled, on request made within 30 days after the date of the issuance 

of the decision, to a hearing on his or her claim before a representative of the Secretary.12 

Section 10.615 of the federal regulations implementing this section of FECA provides that a 

claimant shall be afforded a choice of an oral hearing or a review of the written record.13 The 

request must be sent within 30 days (as determined by postmark or other carrier’s date marking) 

of the date of the decision for which a hearing is sought.14 A claimant is entitled to a hearing or 

review of the written record as a matter of right if the request is filed within 30 days.15

While a claimant may not be entitled to a hearing or review of the written record as a 

matter of right if the request is untimely, OWCP has the discretionary authority to grant the 

request and must properly exercise such discretion.16

ANALYSIS -- ISSUE 2 

By decision dated January 11, 2017, OWCP denied appellant’s claim for disability 

compensation from October 19 to 26, 2010. Appellant sought a review of the written record by 

letter dated February 14, 2017 and postmarked February 15, 2017. OWCP, in a decision dated 

March 14, 2017, denied his request for a review of the written record as untimely. As appellant’s 

request for a hearing was postmarked February 15, 2017, more than 30 days after OWCP issued 

its January 11, 2017 decision, he was not entitled to a hearing as a matter of right.17

OWCP has the discretionary power to grant a hearing or review of the written record 

when a claimant is not entitled to a hearing or review as a matter or right.18 It properly exercised 

its discretion by noting that it had considered the matter in relation to the issue involved and 

denied appellant’s request for an oral hearing as the case could be resolved by submitting 

additional evidence in a reconsideration request. The Board has held that the only limitation on 

OWCP’s discretionary authority is reasonableness. An abuse of discretion is generally shown 

through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken 

which are contrary to both logic and probable deduction from established facts.19 There is no 

evidence that OWCP committed any action in connection with its denial of appellant’s request 

 12 5 U.S.C. § 8124(b)(1). 

13 20 C.F.R. § 10.615. 

14 Id. at § 10.616(a). 

15 See Leona B. Jacobs, 55 ECAB 753 (2004). 

16 20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the 

Written Record, Chapter 2.1601.2(a) (October 2011). 

17 See supra note 15. 

18 Afegalai L. Boone, 53 ECAB 533 (2002). 

19 See R.C., Docket No. 17-0280 (issued May 5, 2017). 
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for a review of the written record that constituted an abuse of discretion.20 Accordingly, the 

Board finds that OWCP properly denied his request for a review of the written record as 

untimely. 

CONCLUSION 

The Board finds that appellant has not established that he was disabled from October 19 

to 26, 2010 causally related to his accepted employment injury. The Board further finds that 

OWCP properly denied his request for a review of the written record under section 8124 as 

untimely. 

ORDER 

IT IS HEREBY ORDERED THAT the March 14 and January 11, 2017 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: August 4, 2017 

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 

 20 See B.H., Docket No. 16-1553 (issued March 27, 2017).