United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.J., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

Atlanta, GA, Employer

__________________________________________

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Docket No. 19-1225

Issued: December 17, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 13, 2019 appellant, through counsel, filed a timely appeal from a March 26, 2019 

merit decision 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 case.3

 

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.

3 The Board notes that following the March 26, 2019 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 evidence for 

the first time on appeal. Id. 
2

ISSUE

The issue is whether appellant has met her burden of proof to establish that she was disabled 

for 5.25 hours on May 29, 2018, causally related to her accepted February 3, 2016 employment 

injury.

FACTUAL HISTORY

On February 8, 2016 appellant, then a 56-year-old social insurance specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on February 3, 2016 she fell while in the 

performance of duty. On the reverse side of the claim form, the employing establishment indicated 

that she stopped working on February 4, 2016. Appellant returned to work on February 10, 2016.4

OWCP accepted her claim for lower back contusion and sacroiliac joint dysfunction. It paid 

appellant compensation on the supplemental rolls for periods of both intermittent wage loss and 

temporary total disability. Appellant last received payment on the periodic compensation rolls 

from February 4 through March 31, 2018.5 Effective April 3, 2018, she resumed work in a fulltime, limited-duty capacity, with no loss in wages.

On June 11, 2018 appellant filed a claim for compensation (Form CA-7) for intermittent 

wage loss during the period May 28 through June 5, 2018. She claimed a total of 8.5 hours of lost 

wages which included 5.25 hours on May 29, 2018, 2.25 hours on May 31, 2018, and 1 hour on 

June 5, 2018.6

OWCP received physical therapy treatment records for May 22 and 31, and June 5, 2018. 

It subsequently paid appellant wage-loss compensation for a total of 3.25 hours claimed for 

medical treatment received on May 31 and June 5, 2018.

In a June 29, 2018 claim development letter, OWCP informed appellant that the evidence 

of record was insufficient to support her recent Form CA-7 claiming compensation for May 29, 

2018 (5.25 hours). It explained that additional evidence was necessary to establish disability for 

work and/or lost time from work due to medical appointments or physical therapy sessions. OWCP 

afforded appellant 30 days to submit the requested information.

A July 11, 2018 Form CA-110 note of a telephone conversation indicated that OWCP

spoke with appellant’s physical therapy provider in an attempt to verify if she attended physical 

therapy on May 29, 2018. The representative advised that although appellant was scheduled for 

therapy on May 29, 2018, she was a “No Show.”

 

4 Appellant resumed work on a part-time (4 hours), modified-duty basis.

5 OWCP paid wage-loss compensation for a period of temporary total disability following appellant’s authorized 

January 30, 2018 surgery for left sacroiliac joint fusion. 

6 The accompanying time analysis form (Form CA-7a) identified various reasons for appellant’s absence(s), which 

include physical therapy (PT), occupational therapy (OT), and increased pain. 
3

In a July 12, 2018 note, Dr. Mark L. Dumonski, an orthopedic surgeon,7indicated that 

appellant would be out of work May 28 to 29, 2018 secondary to sacroiliac joint dysfunction.8

By decision dated September 4, 2018, OWCP denied appellant’s claim for 5.25 hours of 

lost wages on May 29, 2018 as the medical evidence of record did not establish “that the time was 

lost to obtain medical care” for her accepted employment-related conditions.

On September 14, 2018 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

February 1, 2019. During the hearing appellant testified that she did not recall each and every day 

in the period of time between May 28, 2018 and June 5, 2018, but that there were days when she 

was in too much pain to go to physical therapy and did not work the entire day, but rather went 

home. Counsel then asked her if she was referring to May 29, 2018 and she responded “yes.” He 

then asked appellant if she worked at all on that day and she said “she may have,” but she did not 

recall. Appellant noted at that time she was experiencing pain down her groin and into her legs 

and back, and she could not sit or stand in one place. Counsel requested for OWCP to hold the 

record open for 30 days. No evidence was received.

By decision dated March 26, 2019, OWCP’s hearing representative affirmed the 

September 4, 2018 decision finding that appellant failed to establish that her claimed 5.25 hours 

of disability on May 29, 2018 were causally related to her accepted February 3, 2016 employment 

injury.

LEGAL PRECEDENT

An employee seeking benefits under FECA9 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.10 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.11 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 the weight of the probative and reliable medical opinion evidence.12

Causal relationship is a medical issue, and the medical evidence required to establish causal 

relationship is rationalized medical evidence.13 Rationalized medical evidence is medical evidence 

which includes a physician’s detailed medical opinion on the issue of whether there is a causal 

relationship between the claimed disability and the accepted employment injury. The opinion of

the physician must be based on a complete factual and medical background of the claimant, must 

 

7 Dr. Dumonski performed appellant’s January 30, 2018 left sacroiliac joint fusion. Id.

8 Dr. Dumonski also excused appellant for work on April 17 to 19, 2018.

9 Supra note 2.

10 See B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018).

11 Id.

12 20 C.F.R. § 10.5(f); B.O., supra note 10; N.M., Docket No. 18-0939 (issued December 6, 2018).

13 J.M., Docket No. 19-0478 (issued August 9, 2019).
4

be one of reasonable medical certainty, and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the claimed period of disability.14

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.15

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that she was 

disabled for 5.25 hours on May 29, 2018, causally related to her accepted February 3, 2016 

employment injury.

Although appellant was scheduled for physical therapy on May 29, 2018, she did not attend 

her appointment. Appellant’s physical therapy provider indicated she was a “No Show” that day. 

As such, appellant is not entitled to compensation for lost wages due to attending medical 

treatment.16

In a July 12, 2018 note, Dr. Dumonski, appellant’s physician, excused her from work 

May 28 to 29, 2018 secondary to sacroiliac joint dysfunction. He did not, however, provide 

medical rationale explaining why appellant’s sacroiliac joint dysfunction disabled her from 

performing her modified duties on May 29, 2018.17 Dr. Dumonski’s July 12, 2018 note, therefore, 

is of diminished probative value and is insufficient to establish appellant’s claim for wage loss.

18

The issue of whether a claimant’s disability from work is related to an accepted condition 

must be established by a physician who, on the basis of a complete and accurate factual and 

medical history, concludes that the disability was causally related to the employment injury and 

supports that conclusion with sound medical reasoning.19 As appellant has not submitted such 

evidence in this claim, the Board finds that she has not met her burden of proof.20

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. 

 

14 Id.

15 A.W., Docket No. 18-0589 (issued May 14, 2019).

16 See B.O., supra note 10.

17 Id.

18 Id.

19 J.A., Docket No. 19-0776 (issued September 25, 2019).

20 Id. 
5

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish that she was 

disabled for 5.25 hours on May 29, 2018, causally related to her accepted February 3, 2016 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the March 26, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 17, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board