United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland Heights, OH, Employer

__________________________________________

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Docket No. 18-0597

Issued: October 3, 2018

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 26, 2018 appellant, through counsel, filed a timely appeal from a December 11, 

2017 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.

 

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 has met her burden of proof to establish intermittent total 

disability commencing December 14, 2016 causally related to the accepted January 6, 2014 

employment injury.

FACTUAL HISTORY

On January 21, 2014 appellant, then a 53-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she injured both hands, including her fingers, when delivering 

mail in cold weather on January 6, 2014. On April 22, 2014 OWCP accepted the claim for 

frostbite, bilateral hands. Appellant received continuation of pay from January 7 to February 20, 

2014, and OWCP paid wage-loss compensation on the supplemental compensation rolls from 

February 21 to June 15, 2014. She returned to full-duty work on June 16, 2014.

On January 9, 2017 appellant filed a claim for compensation (Form CA-7) for intermittent

disability beginning December 31, 2016. In support of her claim, she submitted a December 15, 

2016 treatment note in which Dr. Daniel A. Breitenbach, an internist, noted complaints of a 

tingling, stinging sensation in all fingers that began on December 14, 2016. Dr. Breitenbach

indicated that appellant’s frostbite that occurred on January 6, 2014 was exacerbated on 

December 14, 2016. He noted that digits 2 through 5 of both hands blanched with pressure at the 

tips. Dr. Breitenbach diagnosed superficial frostbite with pain. On an attending physician’s report 

(Form CA-20) also dated December 15, 2016, he indicated by checking a box with an “x” that the 

diagnosed condition was employment related due to delivering mail in the cold. On a duty status 

report (Form CA-17) also dated December 15, 2016, Dr. Breitenbach advised that appellant could 

not be outside in temperatures below 30 degrees.

By development letter dated January 17, 2017, OWCP indicated that it had received a time 

analysis form (Form CA-7a) noting that appellant lost six hours on January 5, 2017. It noted that 

appellant had been released from care in June 2014 and that to establish her current claim, she 

must provide evidence to support a worsening of the accepted condition without intervening cause. 

OWCP advised that, if appellant believed her current condition was due to a new work incident or

incidents, she should file an applicable traumatic injury claim (Form CA-1) or occupational disease 

claim (Form CA-2). It afforded appellant 30 days to submit the necessary evidence.

In reports dated January 16, February 17, and March 23, 2017, Dr. Breitenbach noted 

appellant’s continued complaints of tingling and pain in her fingertips and that she did not go 

outside if the temperature was below 30 degrees. He diagnosed superficial frostbite, subsequent 

encounter, and reiterated that she could not be outside in temperatures below 30 degrees.

Appellant also filed additional claims (Form CA-7) for compensation. Accompanying time 

analysis forms indicated that she claimed intermittent disability compensation from December 15, 

2016 through March 14, 2017.

By decision dated April 24, 2017, OWCP denied the instant claim. It noted that, following 

her frostbite injury on January 6, 2014, appellant had returned to regular-duty work on June 6, 

2014 and continued regular duty “for almost 18 months [sic] prior to her resumption of medical 
3

care on December 15, 2016 with Dr. Breitenbach.

3

 OWCP indicated that, based on the record, her 

current frostbite condition was due to new and intervening circumstances, either to a specific work 

event or incident during a single day or work shift, or to continued or repeated exposure to elements 

of the work environment over a period longer than one workday or shift. It recommended that she 

file a new claim for compensation.

On May 4, 2017 appellant, through counsel, timely requested a hearing before an OWCP

hearing representative.

Dr. J. Robert Anderson, Board-certified in orthopedic and hand surgery, provided a 

May 12, 2017 report.4 He noted that appellant returned almost three years after her last visit for 

follow-up of a severe frostbite injury to all fingers. Dr. Anderson indicated that all wounds had 

ultimately healed, and that on December 15, 2016 she delivered mail in the cold and developed 

significant sharp pain in her fingers. Hand examination demonstrated that skin of both hands was 

intact with no erythema, ecchymosis, or diffuse swelling, and no gross tissue loss. Fingernails 

were in place. Composite flexion was full with some subjective stiffness. There was full extension 

and tendons were intact by individual testing. Wrist and forearm motion was symmetric with no 

pain. There was no triggering, and Watson’s and midcarpal shift tests were negative. Distal radial 

ulnar joint was stable. Sensation was intact to light touch in all distributions. Dr. Anderson 

diagnosed frostbite with tissue necrosis of both hands. He indicated that it was typical to have 

pain with cold exposure that would be more severe in people who had a past frostbite injury and 

agreed that the restrictions provided by Dr. Breitenbach were reasonable.

In April 26 and May 30, 2017 reports, Dr. Breitenbach reiterated his findings and 

conclusions. In an August 1, 2017 report, he noted that appellant had a new complaint of cramping 

in her foot, fingers, neck, and side of the abdomen that occurred the previous day at the end of her 

route and continued at home. Following physical examination, Dr. Breitenbach diagnosed strains 

of the right and left hands, left thumb, right and left ankles and foot, and neck.

During the hearing, held on October 11, 2017, appellant testified that in December 2016,

when she delivered mail in the cold, her fingers became numb, even though she had on gloves. 

She maintained that this was due to frostbite, and that she missed intermittent periods of work 

when the temperature fell below 30 degrees.

Following the hearing, appellant submitted a November 20, 2017 treatment note in which

Dr. Breitenbach noted that appellant again had irritation and tingling in both hands. Hand 

examination demonstrated redness of digits 2 through 5 in both hands distally on the volar surfaces. 

Dr. Breitenbach diagnosed superficial frostbite and recommended that she wear gloves. In a duty 

 

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June 2014 to December 2016 is a 30-month period.

4 Dr. Anderson initially saw appellant on January 24, 2014 when he diagnosed frostbite, bilateral hands. He 

recommended that appellant wear gloves when outdoors. On February 14, 2014 Dr. Anderson indicated that extreme 

finger sensitivity could continue for several months. On February 28, 2014 he noted continued significant pain. On 

March 28 and April 25, 2014 Dr. Anderson indicated that appellant had been referred to pain management for 

continued pain. Appellant began pain management on May 23, 2014 and hand therapy on July 2, 2014. In the last 

report, dated August 8, 2014, Dr. Salim Hayek, Board-certified in anesthesiology and pain medicine, noted diagnoses 

of hand pain, frostbite, and sensory neuritis.
4

status report also dated November 20, 2017, he advised that appellant could not be outside if the 

temperature was below 30 degrees.

By decision dated December 11, 2017, an OWCP hearing representative denied appellant’s 

claim for compensation for intermittent disability beginning December 14, 2016. She noted that 

there was no medical evidence for the period between a report dated August 8, 2014 and that of

Dr. Breitenbach dated December 15, 2016, and concluded that the medical evidence of record, 

including Dr. Breitenbach’s monthly reports and the May 12, 2017 report from Dr. Anderson, 

were devoid of any rationalized medical opinion indicating that appellant became unable to work 

in December 2016 due to the effects of the accepted January 6, 2014 employment-related frostbite 

injury.

LEGAL PRECEDENT

Under FECA the term “disability” means the incapacity, because of an employment injury, 

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

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

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

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

of injury, has no disability as that term is used in FECA.5 Furthermore, whether a particular injury 

causes an employee to be disabled from employment and the duration of that disability are medical 

issues which must be proven by a preponderance of the reliable, probative, and substantial medical 

evidence.6

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

relationship is rationalized medical evidence.7 The opinion of the physician must be based on a 

complete factual and medical background of the claimant, must 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 specific employment factors identified by the employee.8 

Neither the mere fact that a disease or condition manifests itself during a period of employment 

nor the belief that the disease or condition was caused or aggravated by employment factors or 

incidents is sufficient to establish causal relationship.9

 

5 See 20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

6 Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

9 Dennis M. Mascarenas, 49 ECAB 215 (1997).
5

ANALYSIS

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

total disability beginning December 14, 2016 causally related to the accepted January 6, 2014 

employment injury.

Appellant submitted a number of reports from Dr. Breitenbach, an attending internist, dated 

December 15, 2015 to November 20, 2017 who noted appellant’s complaint of tingling, numbness, 

and pain in her fingers. Dr. Breitenbach diagnosed frostbite and advised that appellant could not 

work in temperatures below 30 degrees. On a December 20, 2016 attending physician’s report he

indicated by checking a box marked “x” that the diagnosed condition was employment related due 

to delivering mail in the cold. Dr. Breitenbach, however, included no explanation of how this 

recurrence of symptoms was caused by the January 6, 2014 employment injury, which occurred 

almost three years prior.

Likewise, in his report dated May 12, 2017, Dr. Anderson merely described appellant’s 

current complaints and indicated that it was typical to have pain with cold exposure. While he 

indicated that Dr. Breitenbach’s restrictions were reasonable, neither physician indicated that 

appellant’s finger symptoms rendered her totally disabled.

Medical evidence must be of reasonable medical certainty, and must be supported by 

medical rationale explaining the nature of the relationship between the diagnosed condition and 

the specific employment factors identified by the claimant which, in this case was the January 6, 

2014 employment injury.10 To establish that a claimed recurrence of a condition was caused by 

the accepted injury, medical evidence of bridging symptoms between the present condition and 

the accepted injury must support the physician’s conclusion of causal relationship.11 There is no 

medical evidence of record dated between August 8, 2014 and December 15, 2016.12

As noted by OWCP, in its April 24, 2017 decision, since there was a 30-month interval 

between appellant’s return to full-duty work in June 2014 and her claim for compensation in 

December 2016, it would be reasonable to assume that her condition in December 2016 was 

caused by a new exposure. OWCP recommended that appellant file a new claim. The record 

before the Board does not indicate that this was done.

The Board notes that counsel’s assertions on appeal regarding causal relationship are 

without merit and finds that the medical evidence of record is insufficient to meet appellant’s 

burden of proof to establish her disability claim. 

As appellant has not submitted sufficient rationalized medical opinion evidence to establish 

that she was disabled to work for intermittent periods beginning December 15, 2016 due to the 

January 6, 2014 employment injury, she has failed to establish that the claimed disability was 

 

10 See W.W., Docket No. 09-1619 (issued June 2, 2010).

11 C.W., Docket No. 07-1816 (issued January 16, 2009).

12 See C.S., Docket No. 17-1345 (issued May 24, 2018).
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employment related. She was thus not entitled to wage-loss compensation for the claimed 

periods.13

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 her burden of proof to establish intermittent 

total disability commencing December 14, 2016 causally related to the accepted January 6, 2014 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the December 11, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 3, 2018

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

 

13 N.R., Docket No. 14-114 (issued April 28, 2014).