United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Township of Washington, NJ, Employer

__________________________________________

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Docket No. 17-1552

Issued: July 10, 2018

Appearances: Case Submitted on the Record

Jason S. Lomax, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 7, 2017 appellant, through counsel, filed a timely appeal from January 18 and 30, 

2017 merit decisions 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 claim.

 

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

ISSUE

The issue is whether appellant met his burden of proof to establish intermittent periods of 

disability during the period July 24, 2014 to May 26, 2015, causally related to a December 9, 

2013 employment injury.

FACTUAL HISTORY

On December 10, 2013 appellant, then a 56-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 9, 2013 he sustained right knee and lower back 

injuries as a result of slipping on ice and falling while climbing stairs in the performance of duty. 

He stopped work on the date of injury and returned to limited-duty work on March 19, 2014. On 

December 23, 2014 OWCP accepted appellant’s claim for left knee contusion, left knee abrasion, 

L4-5 lumbar disc protrusion without myelopathy, and lumbar sprain.

On December 11, 2015 OWCP received appellant’s claim for wage-loss compensation

(Form CA-7) for the period July 24, 2014 to January 24, 2015.

3

In a July 22, 2014 status/progress report of injury/illness (form report), Dr. Christine M. 

Corradino, an examining Board-certified orthopedic surgeon, noted an injury date of 

December 9, 2013 and diagnosed lumbar and knee sprains. She checked a box marked “no” to 

the question of whether appellant could perform his preinjury job. With respect to work 

restrictions, Dr. Corradino checked light duty, which included restrictions of no lifting more than 

20 pounds, walk or stand as needed, and pull or push with arms alone and/or legs and feet.

In a report dated October 28, 2014, Dr. Corradino, noted that appellant was seen that day 

for lumbar pain complaints. She recommended physical therapy and recommended he continue 

with light-duty work.

Dr. Corradino, in a November 11, 2014 report, noted treating appellant since 

February 2014 for a low back and left knee injuries. Physical findings included some paraspinal 

tenderness and negative straight leg raise. Dr. Corradino reviewed a 2014 lumbar spine magnetic 

resonance imaging (MRI) scan which showed facet arthritis, spondylitic changes, and disc 

protrusion abutting the thecal sac at the L5 nerve root. She again indicated that appellant was to 

continue with light-duty work and recommended physical therapy. In form reports dated 

November 11, 2014, and January 6 and 11, 2015, Dr. Corradino diagnosed lumbar and knee 

sprains. She checked a box that appellant could perform light-duty work with restrictions noting

no lifting more than 20 pounds, walk and stand as needed, and pull or push with arms and/or legs 

and or feet.

The record contains physical therapy records for December 15 and 19, 2014 and

January 6 to 9, 14, 16, and 29, February 3, 4, 11, 16, 25, and 27, and March 2, 18, 19, 23, 25, 26, 

and 31, 2015.

 

3 The Board notes that the Form CA-7 incorrectly requested wage-loss compensation to January 24, 2014, a date 

prior to the requested date for disability compensation, rather than 2015.
3

In a February 19, 2015 report, Dr. Mohammad H. Dorri, an examining physician 

specializing in physical therapy and rehabilitation, provided examination findings and diagnosed 

lumbar radiculopathy with concomitant discogenic pain versus lumbar lactogenic pain. A 

physical examination revealed L4-5 and L5-S1 significant tenderness on palpation of the lumbar 

paraspinals, positive bilateral reverse straight leg raising (SLR), and significant hip flexors 

muscle weakness. In a form dated February 19, 2015, Dr. Dorri noted an injury date of 

December 9, 2013 and indicated that appellant was capable of working light duty, with the same 

restrictions noted by Dr. Corradino. 

On February 20, 2015 OWCP received a November 12, 2014 e-mail from the postmaster, 

T.V. regarding appellant’s claim. The postmaster noted that appellant returned to work on 

March 24, 2014 and worked until July 24, 2014. He stated that he questioned appellant about 

ascending and descending stairs by putting one foot to the step and then bringing the other foot 

to the same step while delivering mail. Appellant stated that he had restrictions, but the 

postmaster noted that there were no restrictions regarding stairs. The postmaster noted that 

appellant had refused to provide work restrictions since September 4, 2014 and that he refused to 

deliver his route on November 6, 2014. Appellant did work his route from March 24 to July 24, 

2014 until being told that the way he ascended and descended stairs was unacceptable, unsafe, 

and extended his delivery time. The postmaster also related that he sent appellant a certified 

letter on September 14, 2014 informing him that his claim had not been accepted and that there 

was no record of a work-related condition or incident.

On February 20, 24, and 25, 2015 OWCP received claims for compensation (Form CA-7) 

claiming intermittent wage-loss compensation for the periods July 26 to August 8, August 23 to 

September 5, September 20 to October 17, and November 1 to December 12, 2014. In attached 

CA-7a forms, appellant indicated that the reason for using leave without pay (LWOP) during the 

period was “work[-]related disability.” Appellant claimed 53.10 hours for the period July 26 to 

August 6, 2014, 40.12 hours for the period August 27 to September 5, 2014, 62.07 hours for the 

period September 20 to October 3, 2014, 54.99 hours for the period October 4 to 17, 2014, 38.82 

hours for the period November 1 to 14, 2014, 51.55 hours for the period November 15 to 28, 

2014, and 56.79 hours for the period November 29 to December 12, 2014.

On the reverse side of the claim form, the employing establishment checked a box 

marked “No” indicating that appellant did not return to his predate-of-injury job. It also noted a 

job offer was forthcoming, work was available, and appellant refused to work.

In a development letter dated February 26, 2015, OWCP noted receipt of appellant’s

claim for intermittent wage-loss compensation for the periods July 26 to August 8, August 23 to

September 5, September 20 to October 17, and November 1 to December 12, 2014. It informed 

him that the record was unclear as to why he was claiming leave. OWCP noted that the 

employing establishment indicated that appellant refused to work even though he had been 

offered work within his restrictions. It advised appellant regarding the medical evidence 

required to establish his claim and afforded him 30 days to provide the requested evidence.

In a March 19, 2015 report, Dr. Dorri diagnosed sciatica and lumbago. A physical

examination revealed decreased lumbar axial range of motion, right paraspinal muscle 

tenderness, and normal gait. Based on review of a lumbar spine MRI scan, Dr. Dorri diagnosed 
4

lumbar disc herniation/radiculopathy, which he explained correlated with appellant’s pain 

location.

On March 30, 2015 OWCP received a hospital report dated March 6, 2015 indicating 

appellant underwent lumbar epidural injections. 

By decision dated May 13, 2015, OWCP denied appellant’s claim for wage-loss 

compensation for the periods July 26 to August 8, August 23 to September 5, September 20 to 

October 17, and November 1 to December 12, 2014.

A May 28, 2015 report from Dr. Dorri was unchanged from prior reports including work 

restrictions. 

In a letter dated May 29, 2015, counsel requested a telephonic hearing before an OWCP 

hearing representative, which was held on January 13, 2016.

On June 1, 2015 appellant accepted a modified job offer of casing mail for up to eight 

hours, if mail was available. 

In a June 2, 2015 report, Dr. Corradino noted that appellant had a left knee strain which 

continued to bother him. She reported that appellant was working light-duty work and provided 

work restrictions which remained unchanged. Examination findings revealed full knee range of 

motion with medial joint line tenderness. 

On September 29, 2015 OWCP received a Form CA-7 claiming intermittent wage-loss 

compensation for the period May 16 to July 29, 2015.

On the reverse side of the claim form, the employing establishment checked a box 

marked “No” indicating that appellant did not return to his predate-of-injury job. It noted that 

appellant was claiming 228.48 hours of LWOP and attached five CA-7a forms.

By decision dated December 16, 2015, OWCP accepted appellant’s claim for a 

recurrence of disability commencing May 27, 2015 based on the withdrawal of his light-duty job.

On January 27, 2016 OWCP received CA-7 forms claiming intermittent wage-loss 

compensation for the periods September 6 to 19 and October 18 to 31, 2014 and December 13, 

2014 to March 6, 2015. In attached CA-7a forms, he indicated that the reason for using 63.24 

hours of LWOP during the period was “work[-]related disability.”

By decision dated February 24, 2016, an OWCP hearing representative affirmed the 

May 13, 2015 decision denying compensation for the periods July 26 to August 8, August 23 to 

September 5, September 20 to October 17, and November 1 to December 12, 2014. The hearing 

representative noted appellant’s recurrence of disability beginning May 27, 2015 had been

accepted based on the withdrawal of light-duty work and that intermittent wage-loss 

compensation had been paid for the period May 29 to July 24, 2015.

In a Form CA-7 dated March 25, 2016, appellant claimed intermittent wage-loss 

compensation for the period December 13, 2014 to March 6, 2015. On the reverse side, the 
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employing establishment noted that appellant was claiming 333.42 hours of LWOP. In an 

attached CA-7a form, appellant indicated that the reason for using LWOP during the period was 

“work[-]related disability,” except for March 6, 2015 when he claimed he underwent an epidural 

injection. Appellant claimed 53.65 hours for the period December 13 to 26, 2014, 53.80 hours 

for the period December 27, 2014 to January 9, 2015, and 54.35 hours for the period January 10 

to 17, 2015, 54.45 hours for the period February 7 to 20, 2015, 51.65 hours for the period 

February 21 to March 4, 2015, and 8 hours for March 6, 2015.

By decision dated March 31, 2016, OWCP denied appellant’s claim for intermittent 

wage-loss compensation for the periods January 25 to March 18, September 6 to 19, and 

October 18 to 31, 2014, and continuing. It noted the employing establishment’s concerns 

regarding what it termed his abnormal method of climbing stairs and that no medical restrictions 

for stair climbing had been submitted. OWCP further found that disability due to pain was 

insufficient to support wage-loss compensation as pain is considered a symptom and not a 

diagnosis.

By decision dated November 18, 2016, OWCP accepted appellant’s claim for a 

recurrence of disability beginning May 3, 2016 based on the withdrawal of his light-duty job 

offer.

On November 30, 2016 OWCP received a November 11, 2014 progress report from

Dr. Corradino indicating that appellant was capable of performing light-duty work. She 

provided work restrictions of lifting up to 20 pounds, standing or walking as necessary, up to 10 

pounds frequent carrying. Diagnoses included lumbago, lumbar sprain/strain, and knee/leg 

sprain/strain. 

Appellant timely requested an oral hearing before a representative of OWCP’s Branch of 

Hearings and Review from the March 31, 2016 decision, which was held via telephone 

conference on November 30, 2016.

By decision dated January 18, 2017, an OWCP hearing representative affirmed as 

modified the March 31, 2016 decision. He concurred with the prior hearing representative’s 

finding that appellant was properly disqualified from performing modified work as of July 17, 

2014 based his unusual method of ascending and descending stairs, which was not a work 

restriction given by his physician until February 4, 2016. The hearing representative noted that a 

claim for a recurrence of disability beginning May 27, 2015 had been accepted. Thus, he 

affirmed the denial of compensation for the periods January 25 to March 18, September 6 to 19, 

and October 18, 2014 to May 26, 2015. 

By decision dated January 30, 2017, OWCP denied modification of the February 24, 

2016 decision, which denied appellant’s claim for compensation for the periods July 26 to 

August 8, August 23 to September 5, September 20 to October 17, and November 1 to 

December 12, 2014.
6

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the 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 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.7 

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.8 Disability is, thus, not 

synonymous with physical impairment which may or may not result in an incapacity to earn 

wages.9 An employee who has a physical impairment causally related to his federal 

employment, but who nonetheless has the capacity to earn the wages he was receiving at the time 

of injury, has no disability and is not entitled to compensation for loss of wage-earning 

capacity.10 When, however, 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 his employment, he is entitled to compensation for any loss of wages.

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 their disability and 

entitlement to compensation.11

OWCP’s implementing regulation at 20 C.F.R. § 10.500 addresses the basic rules 

governing continuing receipt of compensation benefits after a return to work.

“(a) Benefits are available only while the effects of a work-related condition 

continue. Compensation for wage loss due to disability is available only for any 

periods during which an employee’s work-related medical condition prevents him 

or her from earning the wages earned before the work-related injury. For 

example, an employee is not entitled to compensation for any wage-loss claimed 

 

4 Supra note 2.

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

Whelan, 20 ECAB 55 (1968).

6 See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

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

8 S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796 

(2003); 20 C.F.R. § 10.5(f).

9 Roberta L. Kaaumoana, 54 ECAB 150 (2002).

10 Merle J. Marceau, 53 ECAB 197 (2001).

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

on a Form CA-7 to the extent that evidence contemporaneous with the period 

claimed on a Form CA-7 establishes that an employee had medical work 

restrictions in place; that light duty within those work restrictions was available; 

and that the employee was previously notified in writing that such duty was 

available. Similarly, an employee receiving continuing periodic payments for 

disability was not prevented from earning the wages earned before the workrelated injury if the evidence establishes that the employing establishment had 

offered, in accordance with OWCP procedures, a temporary light-duty assignment 

within the employee’s work restrictions.”

12

ANALYSIS

OWCP accepted that appellant sustained a left knee contusion, left knee abrasion, L4-5 

lumbar disc protrusion without myelopathy, and a lumbar sprain as a result of the accepted 

December 9, 2013 employment injury. Appellant stopped work and returned to limited-duty 

work on March 19, 2014. He filed claims for intermittent wage-loss compensation for the period 

July 26, 2014 to May 26, 2015.

The Board finds that this case is not in posture for a decision regarding appellant’s claim 

for periods of intermittent disability from July 26, 2014 to May 26, 2015 as the evidence of 

record lacks sufficient information to determine whether there was appropriate modified-duty 

work available for appellant such that he was not entitled to intermittent periods of partial 

disability. On the reverse side of the CA-7 claim forms, the employing establishment noted that 

appellant had not returned to the job he held on the date of injury. In the CA-7 forms, except for 

the Form CA-7 covering the period December 13, 2014 to March 6, 2017, the employing 

establishment noted that work was available and a job offer was forthcoming. The evidence of 

record reflects that appellant returned to work on March 19, 2014 to a limited-duty job. 

However, the record contains no copy of a modified job offer for the period in question.13 The 

first modified job offer in the record is dated June 1, 2015 when appellant accepted a modified 

job casing mail, when it was available.

Although the employing establishment asserted on the CA-7 forms that there was work 

available, the evidence of record does not contain a copy of the modified job offer until June 1, 

2015, which is after the period appellant is claiming intermittent wage-loss compensation. The 

current record before the Board does not clearly establish that the employing establishment was 

able to accommodate appellant’s work restrictions full time, such that his claim for intermittent 

periods of partial wage-loss compensation should be denied.14 Appellant claimed work-related 

disability for the periods of intermittent wage-loss compensation. It is unclear from the record 

 

12 20 C.F.R. § 10.500(a). 

13 Id. 

14 See J.G., Docket No. 17-0910 (issued August 28, 2017) (the Board remanded the case for OWCP to determine 

whether there was modified work available for appellant on November 25, 2016 when the employing establishment 

initially noted that he only worked 15.54 hours for the period September 17 through November 30, 2016, but later 

claimed that there was always work available for the claimant); see also J.T., Docket No. 15-1133 (issued 

December 21, 2015).
8

what modified job appellant was performing on his return to work on March 19, 2014. In 

addition, it appears that the employing establishment placed appellant off work beginning 

July 24, 2014 because of the way he ascended and descended stairs. 

On remand OWCP must develop the case and make factual findings on the status of 

appellant’s employment at the time he requested wage-loss compensation for partial disability 

from July 24, 2014 to May 26, 2015 because the record is unclear as to the requirements of the 

modified job appellant was performing and if it was within his restrictions. OWCP’s procedures 

also provide that wages lost for compensable medical examination or treatment may be 

reimbursed.15 It notes that a claimant who has returned to work following an accepted injury or 

illness may need to undergo examination or treatment and such employee may be paid 

compensation for wage loss while obtaining medical services and for a reasonable time spent 

traveling to and from the medical provider’s location.16 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.17

After such further development as necessary, OWCP shall issue a de novo decision. 

CONCLUSION

The Board finds that this case is not in posture for a decision.

 

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19 

(February 2013).

16 D.V., Docket No. 17-1344 (issued March 19, 2018); Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 

ECAB 950 (1984).

17 Supra note 15 at Chapter 2.901.19(c) (February 2013).
9

ORDER

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

Compensation Programs dated January 30 and 18, 2017 are set aside and the case is remanded 

for proceedings consistent with the above opinion.

Issued: July 10, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board