United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Mill Valley, CA, Employer

__________________________________________

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Docket No. 18-1634

Issued: May 13, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 August 28, 2018 appellant, through counsel, filed a timely appeal from a July 20, 2018

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 July 20, 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). 
2

ISSUE

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

disability for the period May 4 to December 5, 2017 causally related to his accepted November 14, 

2003 employment injury.

FACTUAL HISTORY

On December 8, 2003 appellant, then a 35-year-old carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on November 14, 2003 he sustained head and upper body injuries 

during a motor vehicle accident (MVA) when his postal vehicle was rear ended by another vehicle

while in the performance of duty. He stopped work on November 15, 2003. By decision dated 

February 6, 2004, OWCP accepted the claim for cervical sprain. It paid appellant for intermittent 

periods of disability on the supplemental rolls commencing December 30, 2003 and for temporary 

partial disability compensation through June 1, 2004 when he returned to full-time modified-duty 

work. 

Appellant continued to treat with his attending physician Dr. Michael Hebrard, Boardcertified in physical medicine and rehabilitation. In a May 2, 2017 medical report, Dr. Hebrard 

diagnosed sprain of joints and ligaments of the neck and bicipital bilateral shoulder tendinitis. He 

opined that appellant’s employment-related condition was still present and that appellant 

developed an emotional condition which was a consequential injury of his accepted neck 

condition. Dr. Hebrard advised that appellant’s modified work restrictions were still necessary 

and remained unchanged. He reported that appellant would be referred to a psychiatrist to 

determine the extent of his emotional condition and causal relationship to factors of his physical 

impairment in relationship to his occupational injury. 

In a May 4, 2017 prescription note, Dr. George Karalis, a treating psychiatrist, reported 

that appellant presented for therapy on that date. In a September 14, 2017 note, Dr. Karalis 

reported that appellant had an appointment on that date. 

On October 27, 2017 appellant filed a claim for compensation (Form CA-7) for leave 

without pay for intermittent dates from February 22 to October 10, 2017 claiming 25.5 hours of 

leave. 

In a development letter dated November 2, 2017, OWCP requested that appellant submit 

additional evidence to establish his claim for compensation for disability for certain claimed

intermittent dates. It noted dates for which compensation for disability would be paid, but 

explained that he failed to establish that he was disabled for 2.5 hours on May 4, 2017 and 2 hours 

on September 14, 2017 as the appointment slips provided indicated that he attended a psychiatric

appointment. OWCP advised appellant that compensation would only be paid for medical 

appointments related to his accepted condition of neck sprain. It afforded him 30 days to submit 

additional evidence. 

In a December 5, 2017 medical report, Dr. Hebrard reported that he evaluated appellant on 

that date due to discomfort and pain in the neck. He diagnosed bilateral bicipital shoulder 

tendinitis, brachial plexus disorders, post-traumatic stress disorder, pain disorder with related 
3

psychological factors, cervical spinal stenosis, cervical radiculopathy, and connective tissue and 

disc stenosis of intervertebral foramina of cervical region. Given the complexity of appellant’s 

condition, Dr. Hebrard opined that on a more probable than not basis, that the relationship between 

the conditions found on clinical examination and the factors of appellant’s federal employment of 

twisting and bending of the head and neck on a repetitive basis caused an increased amount of 

stress along the intervertebral disc of the cervical spine, particularly at C4 through C6 

intervertebral region. Dr. Hebrard reported that appellant developed a chronic pain condition as a 

result of his work-related cervical spine condition. He noted that appellant continued to work and 

also developed an emotional condition due to frequent pain of his diagnosed condition,

contributing to his depression. Dr. Hebrard noted that appellant’s nonwork-related issues in terms 

of family problems may be causing his clinical concern due to the stress of not being able to work 

at the capacity he is accustomed to. He continued to opine that appellant’s emotional condition of 

depression arose as a consequential injury from appellant’s accepted employment injury. 

Dr. Hebrard referred appellant to Dr. Karalis, a treating psychiatrist, for evaluation and an opinion 

on the causal relationship pertaining to appellant’s emotional condition. His modified work 

restrictions remained unchanged. 

By decision dated December 14, 2017, OWCP denied appellant’s claim for compensation 

for 2.5 hours on May 4, 2017 and 2 hours on September 14, 2017 finding that the medical evidence 

of record failed to establish that he lost time from work to obtain medical care due to an accepted 

work-related condition. 

On December 21, 2017 appellant filed a claim for compensation (Form CA-7) for leave 

without pay for the intermittent period November 7 through December 7, 2017, amounting to 

18.75 hours. 

In a December 5, 2017 appointment verification note, Dr. Hebrard reported that appellant 

was evaluated on that date in relation to his November 14, 2003 employment injury. 

In a December 7, 2017 prescription note, Dr. Karalis reported that appellant presented for 

medical therapy on that date. 

In a development letter dated December 26, 2017, OWCP requested that appellant submit 

additional evidence to establish his claim for compensation for disability for the period 

November 7 through December 7, 2017. It advised him that on November 7, 2017 he attended a 

second opinion appointment under a different OWCP File No. xxxxxx288 and, therefore, no

further action would be taken on that medical appointment because it did not pertain to time loss 

for the accepted work-related injury in this claim. With regard to the five hours claimed for 

November 15, 2017, OWCP noted that it had not received evidence establishing a medical 

appointment on that date. It informed appellant that, for December 5, 2017, it had not received 

medical evidence verifying he took off of work due to his accepted work-related conditions, nor 

did he provide evidence establishing why he was claiming more than four hours to obtain medical 

care. OWCP further noted that appellant’s December 7, 2017 medical appointment was for 

therapy with a psychiatrist, but that a psychiatric condition had not been accepted. I afforded him

30 days to submit additional evidence in support of his claim for compensation. 
4

On January 2, 2018 appellant, through counsel, appealed the December 14, 2017 decision 

and requested an oral hearing before an OWCP hearing representative. 

In support of his claim, appellant submitted a January 11, 2018 medical report from

Dr. Hebrard. Dr. Hebrard opined that appellant’s employment injury led to an emotional 

condition. He reported that appellant was referred to Dr. Karalis for treatment of the emotional 

and psychological issues which he opined were a consequence of appellant’s occupational injury. 

By decision dated February 28, 2018, OWCP denied appellant’s claim for compensation 

for the period November 7 to December 7, 2017. It noted that 4.75 hours on November 7 and 4 

hours on December 7, 2017 were not payable because medical appointments on those dates were 

unrelated to this claim. OWCP further noted that it had approved four hours of compensation for 

attending a medical appointment on December 5, 2017, but appellant failed to establish payment 

for the additional one hour requested. 

On March 13, 2018 appellant, through counsel, appealed the February 28, 2018 decision 

and requested an oral hearing before an OWCP hearing representative. 

A hearing was held on May 30, 2018 addressing the denial of appellant’s claim for 

compensation for intermittent dates from February 22 through December 7, 2017. At the hearing, 

counsel argued that appellant’s appointments for a psychiatric condition with Dr. Karalis were

causally related to his original 2003 work-related MVA. Appellant was advised by OWCP’s

hearing representative of the evidence needed to establish his claim and the record was held open 

for 30 days. 

The record reflects numerous medical reports submitted dated January 5, 2011 through 

July 9, 2018, unrelated to the dates of disability in question. 

By decision dated July 20, 2018, OWCP’s hearing representative affirmed the 

December 14, 2017 and February 28, 2018 decisions finding that the evidence of record did not 

establish that appellant obtained medical treatment on intermittent dates from May 4 to 

December 7, 2017 as a result of the accepted November 14, 2003 employment injury. 

LEGAL PRECEDENT

Under FECA,4the term disability is defined as incapacity, because of employment injury, 

to earn the wages that the employee was receiving at the time of injury.5 Disability is not 

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

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

injury, but who nonetheless has the capacity to earn wages he or she was receiving at the time of 

injury has no disability as that term is used in FECA.6

 

4 Supra note 2. 

5 20 C.F.R. § 10.5(f); G.T., Docket No. 18-1369 (issued March 13, 2019). 

6 N.M., Docket No. 18-0939 (issued December 6, 2018).
5

To establish causal relationship between the disability claimed and the employment injury, 

an employee must submit rationalized medical evidence, based on a complete factual and medical 

background, supporting such causal relationship.7 The opinion of the physician must be one of 

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

the relationship.8

In discussing the range of compensable consequences, once the primary injury is causally 

connected with the employment, The Law of Workers’ Compensation notes that, when the question 

is whether compensability should be extended to a subsequent injury or aggravation related in 

some way to the primary injury, the rules that come into play are essentially based upon the 

concepts of direct and natural results and of the claimant’s own conduct as an independent 

intervening cause. The basic rule is that a subsequent injury, whether an aggravation of the original 

injury or a new and distinct injury, is compensable if it is the direct and natural result of a 

compensable primary injury.9

OWCP’s procedures provides that wages lost for compensable medical examination or 

treatment may be reimbursed.10 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.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

The Board finds that appellant has not met his burden of proof to establish entitlement to 

intermittent disability for the period May 4 to December 5, 2017 causally related to his accepted 

November 14, 2003 employment injury.

Medical notes dated May 4, September 14, and December 7, 2017 were provided from

Dr. Karalis, a treating psychiatrist, indicating treatment on those dates. The Board finds, however, 

that these appointment verification notes fail to establish treatment or disability as a result of the

November 14, 2003 employment injury. The notes failed to discuss appellant’s accepted condition 

of cervical strain or provide an opinion regarding the cause of his current condition. As set forth 

 

7 See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

8 See S.J., id; Kathryn Haggerty, 45 ECAB 383 (1994). 

9 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014); see also A.M., Docket No. 

18-0685 (issued October 265, 2018); K.S., Docket No. 17-1583 (issued May 10, 2018). 

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

(February 2013).

11 E.W., Docket No. 17-1988 (issued January 28, 2019). 

12 Id.
6

above, to establish a consequential injury the medical evidence must establish that the 

consequentially claimed condition was a direct and natural result of a compensable primary 

injury.13 Dr. Karalis did not provide sufficient rationale explaining how and why the accepted 

injury would cause the claimed psychiatric condition. As he did not discuss evaluation findings

on May 4, September 14, and December 7, 2017 to establish that, treatment was related to the 

November 14, 2003 employment injury, his notes are insufficient to establish wage-loss 

compensation for medical appointments on those dates.14 

The reports of Dr. Hebrard also fail to establish entitlement to wage-loss compensation on 

May 4, September 14, November 7 and 15, and December 7, 2017. The record does not establish 

that appellant was treated by Dr. Hebrard on those dates causally related to this accepted 

employment injury.15 The Board also notes that OWCP paid appellant for four hours of wage-loss 

compensation on December 5, 2017, secondary to his medical appointment with Dr. Hebrard on 

that date for evaluation of his cervical injury. As previously noted, four hours of compensation 

are allowed for routine medical appointments, unless the evidence of record substantiates that the 

nature of the medical procedure or the need to travel a substantial distance necessitated that a 

longer period of time be authorized.16 There is no evidence of record that appellant required more 

than four hours for this routine medical appointment.17 Therefore, OWCP properly denied his 

request for an additional one hour of wage-loss compensation on December 5, 2017.18

With respect to 4.75 hours claimed for a medical appointment on November 7, 2017, the 

record reflects that appellant was evaluated by Dr. Sciaroni for a second opinion examination 

under a different claim of OWCP File No. xxxxxx288. Accordingly, appellant is not entitled to 

compensation for the November 7, 2017 medical appointment as it is unrelated to this claim.19 

The Board finds that appellant failed to submit probative evidence establishing that he 

received medical care on May 4, September 14, November 7 and 15, and December 7, 2017 due 

to his accepted employment injury.

20

 Nor has appellant established that he required one additional 

hour in order to attend his December 5, 2017 medical appointment. Absent such evidence, he is 

not entitled to compensation for medical treatment on the claimed dates.21

 

13 See A.M., supra note 9. 

14 D.E., Docket No. 16-1604 (issued February 1, 2017).

15 S.M., Docket No. 17-1557 (issued September 4, 2018).

16 See supra note 10 at Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (November 1998).

17 A.L., Docket No. 17-1975 (issued August 21, 2018).

18 Id.

19 Id.

20 Id. 

21 Id. 
7

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.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish intermittent 

disability for the period May 4 to December 5, 2017 causally related to his accepted November 14, 

2003 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the July 20, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 13, 2019

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