United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.B., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Brooklyn, NY, 

Employer

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Docket No. 18-1321

Issued: April 5, 2019

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 20, 2018 appellant filed a timely appeal from a June 7, 2018 merit decision of the 

Office of Workers’ Compensation Programs (OWCP).1 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.3

 

1 Appellant filed a timely request for oral argument before the Board. By order dated March 1, 2019, the Board, 

after exercising its discretion, denied her request, finding that her arguments on appeal could be adequately addressed 

in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 18-1321 

(issued March 1, 2019).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the June 7, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id. 
2

ISSUE

The issue is whether appellant has met her burden of proof to establish total disability from 

work for the period April 3 through October 10, 2008 causally related to her July 11, 2006

employment injury.

FACTUAL HISTORY

On July 18, 2006 appellant, then a 50-year-old flat sorting machine (FSM) clerk, filed a 

traumatic injury claim (Form CA-1) alleging that on July 11, 2006 she sustained a contusion of 

the bilateral ankles, left arm, lower back, and lower right ribs while in the performance of duty. 

She stopped work on July 12, 2006. OWCP accepted the claim for neck strain, lumbar strain, and 

bilateral ankle sprains. It paid appellant wage-loss compensation for total disability beginning 

September 30, 2006. 

Appellant returned to limited-duty employment on July 10, 2007.4 On March 1, 2008 she 

accepted a position as a modified mail processing clerk. The position required standing, reaching 

above the shoulders, twisting, bending, and stooping up to five hours per day; pushing, pulling, 

and lifting up to 10 pounds up to three hours per day; and kneeling and climbing up to three hours 

per day.

OWCP, on March 21, 2008, referred appellant to Dr. Michael Katz, a Board-certified 

orthopedic surgeon, for a second opinion examination. 

In a report dated April 2, 2008, Dr. Katz reviewed appellant’s history of a July 11, 2006 

employment injury and noted that she was currently not working. He diagnosed resolved cervical 

strain, resolved lumbosacral strain, a resolved left knee contusion, resolved bilateral ankle 

contusions, and internal derangement of the right knee. Dr. Katz recommended a right knee 

arthroscopy. He attributed the right knee internal derangement to the July 11, 2006 employment 

injury. In an April 2, 2008 work capacity evaluation, Dr. Katz found that appellant could work 

full time, with restrictions of sitting up to eight hours per day; walking, standing, reaching, 

reaching above the shoulders, twisting, bending/stooping, and operating a motor vehicle at work 

up to two hours per day; pushing, pulling, and lifting up to 10 pounds up to two hours per day; and 

squatting, kneeling, and climbing up to two hours per day.

A June 1, 2008 magnetic resonance imaging (MRI) scan of the right knee showed small 

tears in the medial and lateral menisci and a Baker’s cyst essentially unchanged since March 2, 

2007, and an interval decrease in chondromalacia compared to a March 2, 2007 MRI scan study. 

Dr. Katz, in a supplemental report dated July 15, 2008, related that he had reviewed the

June 1, 2008 MRI scan. He diagnosed right knee internal derangement directly related to the 

July 11, 2006 employment injury. Dr. Katz again recommended a right knee arthroscopy. He 

further advised that appellant’s “underlying arthritis [is] not caused by the accident. The arthritis 

 

4 On November 1, 2007 appellant filed a notice of recurrence (Form CA-2a) on October 12, 2007 causally related 

to her July 11, 2006 employment injury. She attributed her recurrence of disability to pushing a skid of flats. OWCP 

adjudicated the recurrence of disability claim as a claim for a new injury, assigned File No. xxxxxx575. It denied that

claim by decision dated February 25, 2008. 
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is not the cause of her current symptoms.” Dr. Katz noted that she should be evaluated again after 

the surgery which he recommended be performed.

In a report dated July 21, 2008, Dr. Placido A. Menezes, a Board-certified orthopedic 

surgeon, evaluated appellant for right knee pain and pain in the low back with radiculopathy. On 

examination he found limited range of motion, swelling in the popliteal region, tenderness of the 

medial and lateral joints, and a positive McMurray’s sign for a meniscal tear. Dr. Menezes 

requested authorization for a right knee arthroscopy.

By letter dated August 21, 2008, OWCP advised the employing establishment that Dr. Katz 

had found that appellant could work with restrictions. It requested that the employing 

establishment offer her modified employment within his restrictions.

The employing establishment, on September 26, 2008, offered appellant a position as a 

modified FSM operator which it claimed was within the restrictions set forth by Dr. Katz. 

Dr. Menezes, on September 22 and November 17, 2008 and January 16, August 21,

October 23, and December 18, 2009, and June 18 and August 20, 2010, requested authorization 

for arthroscopic surgery on the right knee.5

On October 3, 2008 appellant accepted the September 26, 2008 job offer from the 

employing establishment.

Appellant, on April 5, 2018, filed a claim for compensation (Form CA-7) requesting wageloss compensation for the period from April 3 through October 10, 2008. The employing 

establishment noted that she had accepted a job offer in March 2008, but had not returned to work.

By development letter dated April 20, 2018, OWCP notified appellant that the evidence 

submitted was insufficient to establish that she was entitled to wage-loss compensation for the 

period April 3 through October 10, 2008. It advised her that the medical evidence from

Dr. Menezes from March through September 2008 did not address whether any disability had 

resulted from the accepted conditions of neck strain, lumbar strain, bilateral ankle strain, and a tear 

of the right knee meniscus. OWCP requested that appellant submit medical evidence supporting 

that she was disabled from work during the claimed period. It afforded her 30 days to submit the 

requested evidence.

Thereafter, appellant submitted an April 10, 2008 report from Dr. Donald E. Moore, a 

general practitioner. Dr. Moore related that he was treating her for neck and bilateral ankle injuries 

sustained on July 11, 2006 at work. He diagnosed traumatic arthritis of the right ankle and knee, 

neck sprain, left shoulder sprain, backache, and a herniated disc at L4-S1. Dr. Moore found that 

appellant was totally disabled beginning July 11, 2006. He submitted similar reports dated 

April 24, May 8, June 4, and July 1, 2008. 

In progress reports dated July 24 and August 6 and 20, 2008, Dr. Moore diagnosed 

traumatic arthritis of the right shoulder, knees, neck, and low back. He found that appellant was 

 

5 An October 2, 2008 lumbar MRI scan yielded negative findings. 
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disabled from work pending reevaluation. On October 1, 2008 Dr. Moore opined that he 

anticipated that appellant could return to work on October 20, 2008. 

By decision dated June 7, 2018, OWCP denied appellant’s claim for wage-loss 

compensation for the period April 3 through October 10, 2008. It found that she had not submitted 

sufficient medical evidence to establish that she was totally disabled from work during the period 

claimed, causally related to her July 11, 2006 employment injury.

LEGAL PRECEDENT

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

essential elements of his or her claim by the weight of the evidence.6 For each period of disability 

claimed, the employee has the burden of proof to establish that he or she was disabled from work 

as a result of the accepted employment injury.7 Whether a particular injury causes an employee to 

become disabled from work, and the duration of that disability, are medical issues that must be 

proven by a preponderance of probative and reliable medical opinion evidence.8

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.9 Disability is, thus, not 

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

wages.10 An employee who has a physical impairment causally related to his or her federal 

employment, but who nonetheless has the capacity to earn the wages that he or she was receiving 

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

capacity.11 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 or her employment, he or she is entitled to compensation for any loss of wages.12

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility to see that justice is done.13 The nonadversarial policy of proceedings 

under FECA is reflected in OWCP’s regulations at section 10.121.14 Additionally, once OWCP 

 

6 See T.A., Docket No. 18-0431 (issued November 7, 2018).

7 M.C., Docket No. 18-0919 (issued October 18, 2018).

8 See K.C., Docket No. 17-1612 (issued October 16, 2018).

9 20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

10 See L.W., Docket No. 17-1685 (issued October 9, 2018).

11 See D.G., Docket No. 18-0597 (issued October 3, 2018).

12 See D.R., Docket No. 18-0232 (issued October 2, 2018).

13 A.D., Docket No. 17-1984 (issued March 19, 2018).

14 20 C.F.R. § 10.121.
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undertakes to develop the medical evidence further, it must do a complete job in procuring medical 

evidence that will resolve the relevant issues in the case.15

ANALYSIS

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

OWCP, on August 21, 2008, requested that the employing establishment offer appellant a 

position within the restrictions set forth by Dr. Katz. On September 26, 2008 the employing 

establishment offered her a modified position which it indicated was within Dr. Katz’ work 

restrictions. Appellant accepted the offered modified position on October 3, 2008.

On April 5, 2018 appellant filed a CA-7 form requesting wage-loss compensation from 

April 3 through October 10, 2008. 

In support of her claim for wage-loss compensation for the period April 3 through 

October 10, 2008, appellant submitted progress reports from Dr. Moore dated April 10 through 

July 1, 2008. Dr. Moore diagnosed traumatic arthritis of the right ankle and knee, neck sprain, left 

shoulder sprain, backache, a herniated disc at L4-S1, and a herniated lumbar disc and found that 

appellant was totally disabled from employment. In progress reports dated July 24 through 

August 20, 2008, he diagnosed traumatic arthritis of the right shoulder, knees, neck, and low back,

Dr. Moore opined that appellant was totally disabled.

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. 

Once OWCP undertakes to further develop the medical evidence, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues.16

In its June 7, 2018 decision, OWCP found that appellant had not established entitlement to 

wage-loss compensation for the period April 3 through October 10, 2008 as she had not submitted 

sufficient medical evidence to establish that she was disabled during this period due to her July 1, 

2006 employment injury. It did not, however, discuss the April 2, 2008 report from Dr. Katz, its 

referral physician, in reaching this finding. The Board finds that his opinion supports that appellant 

had employment-related disability and that she was unable to perform the duties of the limitedduty position that she accepted on March 1, 2008.17

 Accordingly, the Board will remand the case 

for OWCP to further consider the medical evidence.18 After such further development as deemed 

necessary, it shall issue a de novo decision.

CONCLUSION

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

 

15 V.H., Docket No. 18-0848 (issued February 24, 2019).

16 J.W., Docket No. 17-0715 (issued May 29, 2018).

17 See K.D., Docket Nos. 17-1894, 18-1237 (issued August 6, 2018).

18 Id.
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ORDER

IT IS HEREBY ORDERED THAT the June 7, 2018 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded for further proceedings consistent 

with this opinion of the Board.

Issued: April 5, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board