United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.K., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

FACILITIES ENGINEERING COMMAND, 

Honolulu, HI, Employer

__________________________________________

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Docket No. 18-0386

Issued: September 14, 2018

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 13, 2017 appellant filed a timely appeal from a June 16, 2017 merit decision 

and an October 4, 2017 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.2

ISSUES

The issues are: (1) whether appellant met his burden of proof to establish intermittent 

periods of disability beginning October 24, 2016, due to his June 13, 2016 employment injury; and 

 

1 5 U.S.C. § 8101 et seq.

2 The record on appeal includes evidence received after OWCP issued its October 4, 2017 decision. The Board’s 

jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board is 

precluded from considering this additional for the first time on appeal. 20 C.F.R. § 501.2(c)(1). 
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(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his 

claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On August 19, 2016 appellant, then a 58-year-old electrician, filed a traumatic injury claim 

(Form CA-1) alleging that, while at work on June 13, 2016, he slipped and fell while ascending

stairs to a parking lot. He stopped work on June 14, 2016. On February 23, 2017 OWCP accepted 

the claim for sprain of right knee anterior cruciate ligament (ACL) and unspecified rotator cuff 

tear or rupture of right shoulder. 

OWCP received three Form CA-7s claiming intermittent disability compensation for 

periods commencing October 24, 2016 and continuing. 

In a September 29, 2016 progress note, Dr. Joseph DiCostanzo, a Board-certified 

physiatrist, noted appellant’s history of the June 13, 2016 employment injury, provided 

examination findings and noted the results of the diagnostic testing performed on June 17, 2016.3 

He diagnosed right knee pain, right hip pain, right shoulder pain, neck pain, low back pain, right 

knee ACL tear, right rotator cuff tear, left knee joint pain, and lumbar muscle strain. 

Dr. DiCostanzo placed appellant off work from September 29 through October 28, 2016 due to 

“incapacitating injury or pain.” 

Dr. DiCostanzo continued to treat appellant. In work status reports dated October 31 and

December 1, 2016, and January 5, 2017,4 he continued to place appellant off work due to 

“incapacitating injury or pain.” In his October 31, 2015 report, Dr. DiCostanzo noted examination 

findings and diagnosed right knee joint pain, right hip joint pain, right shoulder joint pain, neck 

pain, low back pain, right knee ACL tear, right rotator cuff tear, and lumbar muscle strain. In his 

December 1, 2016 report, he noted examination findings and diagnosed lumbar muscle strain, right 

knee joint pain, right hip joint pain, right shoulder joint pain, right rotator cuff tear, and right knee 

ACL tear. 

In a February 9, 2017 report, Dr. DiCostanzo noted appellant’s examination findings. He 

diagnosed right knee joint pain, right hip joint pain, right shoulder joint pain, neck pain, low back 

pain, right knee ACL tear, right rotator cuff tear, and lumbar muscle strain. Dr. DiCostanzo 

released appellant to work at appellant’s request due to financial reasons. 

In a March 15, 2017 progress note, Dr. DiCostanzo reported examination findings and 

assessed a right rotator cuff tear, right knee ACL tear, and lumbar muscle strain. He opined that 

 

3 X-rays of the hips revealed degenerative changes of both hips and degenerative changes of lumbosacral spine; an 

x-ray of right knee found no acute bony abnormality; an x-ray of the right shoulder showed no acute bony abnormality 

and mild degenerative changes at the acromioclavicular joint and glenoid humeral joint; an x-ray of the cervical spine 

showed mild degenerative disc disease and bilateral neural foramen narrowing; and an x-ray of the lumbosacral spine 

revealed mild degenerative disc disease. 

4 There is no narrative report from Dr. DiCostanzo on January 5, 2017, just an industrial work status report. 
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appellant was temporarily totally disabled from regular work from March 15 through 

April 21, 2017. 

By development letter dated May 2, 2017, OWCP advised appellant that additional 

evidence was needed to establish disability from work for the periods claimed. It requested that 

he submit a comprehensive medical report from his physician which explained with objective 

findings how his accepted condition had worsened such that he could no longer perform the duties 

of his position. OWCP noted that pain was not a valid reason for being off work without 

corresponding objective findings. It also noted that Dr. DiCostanzo had diagnosed a lumbar 

muscle strain and advised of the medical evidence needed to expand the claim since a back strain 

was not an accepted work-related condition. OWCP requested a surgical report for the claimed 

postsurgery recovery from October 24 through 28, 2016.5 Appellant was afforded 30 days to 

submit this evidence. 

In an April 12, 2017 progress note, Dr. DiCostanzo reported examination findings and 

provided assessments of lumbar muscle strain, lumbar disc degeneration, right knee joint pain, 

right hip joint pain, right shoulder joint pain, neck pain, low back pain, right knee ACL tear, and 

right rotator cuff tear. He noted that shoulder, knee, and hip conditions were accepted for this 

claim, but no lower back condition was accepted. Dr. DiCostanzo opined that, based on the 

history, mechanism of injury, and his examination, appellant’s diagnosed conditions were more 

than likely was caused by the work injury and therefore were industrial injuries. 

In an April 27, 2017 progress report, Dr. DiCostanzo reported a history of injury occurring 

on October 17, 2007 while appellant was reaching for lights and strained his back. He indicated 

that, since that time, appellant had chronic low back pain. Results from a March 4, 2013 lumbar 

spine magnetic resonance imaging (MRI) scan revealed chronic stable disc bulges and stable mild 

central spinal canal stenosis secondary to a broad-based disc bulge and facet joint arthropathy. No 

diagnosis was provided. 

By decision dated June 16, 2017, OWCP denied appellant’s claim for intermittent periods 

of wage-loss compensation commencing October 24, 2016. It found that the medical evidence of 

record failed to establish that he was disabled from work during the claimed periods as a result of 

his accepted conditions. 

In a January 5, 2017 progress report, Dr. DiCostanzo reported examination findings and 

diagnosed lumbar muscle strain, right rotator cuff tear, right knee ACL tear, right hip muscle strain, 

right patellar tendon strain, neck muscle strain, and right shoulder muscle strain. He noted that 

appellant was released back to work at his request. In a January 5, 2017 work status report,

Dr. DiCostanzo held appellant off work from January 6 to 8, 2017 due to “incapacitating injury or 

pain.” 

In a February 9, 2017 progress note and work status report, Dr. DiCostanzo noted 

examination findings and diagnosed right patellar tendon strain, right hip muscle strain, right 

 

5 OWCP noted that under case number xxxxx651 appellant had an accepted right carpal tunnel condition. Appellant

was advised that, if he had surgery for a right carpal tunnel release, then he could refile the Form CA-7 and Form CA7a under that claim number. 
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shoulder muscle strain, and neck muscle strain. He opined that appellant was totally disabled from

his regular work from February 9 through March 17, 2017. 

In March 15, April 12, May 16, and June 14, 2017 progress notes, Dr. DiCostanzo noted 

examination findings and diagnosed right rotator cuff tear, right knee ACL tear, neck muscle strain, 

right hip muscle strain, right patellar tendon strain, right shoulder muscle strain, and lumbar muscle 

strain. 

On July 6, 2017 appellant requested reconsideration. 

In a July 13, 2017 report, Dr. DiCostanzo provided examination findings and diagnosed 

right patellar tendon strain, right hip muscle strain, right shoulder muscle strain, and neck muscle 

strain. In an accompanying July 13, 2017 work status report, he indicated that appellant had 

permanent restrictions from the June 13, 2016 work injury. No restrictions were provided. An 

August 30, 2017 progress report from Dr. DiCostanzo was also received. 

By decision dated October 4, 2017, OWCP denied appellant’s request for reconsideration. 

It found that the evidence submitted was either cumulative or irrelevant and immaterial. 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA6 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.7 For each period of disability 

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

result of the accepted employment injury.8 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.9

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.10 Disability is, thus, not 

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

wages.11 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 he or she was receiving at 

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

 

6 Supra note 1. 

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

Whelan, 20 ECAB 55 (1968).

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

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

10 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).

11 Roberta L. Kaaumoana, 54 ECAB 150 (2002).
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capacity.12 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.13

ANALYSIS -- ISSUE 1

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

periods of disability for the claimed periods commencing October 24, 2016.

OWCP accepted appellant’s claim for sprain of the ACL of his right knee and unspecified 

rotator cuff tear or rupture of the right shoulder. During his alleged periods of disability, appellant

received medical treatment from Dr. DiCostanzo, who restricted appellant from work beginning 

September 29, 2016. As noted, 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.14

For the period October 24 through 28, 2016, appellant claimed 40 hours leave without pay 

for postsurgery recovery. The record is devoid of any evidence that he underwent surgery related 

to the accepted conditions of sprain of the ACL of right his knee and unspecified rotator cuff tear 

or rupture of right shoulder, not specified as traumatic. Additionally, there is no medical evidence 

of record addressing that specific time period.15 

Appellant also claimed wage-loss benefits as of October 31, 2016 for “incapacitating 

injury.” However, Dr. DiCostanzo failed to provide any medical rationale supported by objective 

findings which explained how appellant’s accepted work conditions had worsened to the point 

where he could no longer work during this period. In his progress notes and work status reports 

dated September 29, October 31, and December 16, 2015 and January 5, 2017, he took appellant 

off work due to “incapacity injury or pain.” The Board has found, however, that when a 

physician’s statements regarding an employee’s ability to work consist only of repetition of the 

employee’s complaints that he or she hurt too much to work, without objective findings of 

disability being shown, the physician has not presented a medical opinion on the issue of 

disability.16 Dr. DiCostanzo did not discuss any objective findings to support appellant’s inability 

to work, nor did he explain why appellant was unable to work as a result of his accepted sprain of 

 

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

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

14 Id. 

15 See id. 

16 P.D., Docket No. 14-0744 (issued August 6, 2014); G.T., 59 ECAB 447 (2008).
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the ACL of his right knee and unspecified rotator cuff tear or rupture of right shoulder, not 

specified as traumatic.17 The Board notes that in multiple reports he continually noted appellant’s 

right shoulder, neck, hip joint, knee, and low back pain. Dr. DiCostanzo’s opinions pertaining to 

disability due to pain are also insufficient to establish disability compensation as the Board has 

held that pain is a description of a symptom and not a diagnosed medical condition.18

On March 15, 2017 Dr. DiCostanzo opined that appellant was totally disabled from 

March 15 to April 27, 2017.19 However, he did not explain with objective findings why appellant 

was disabled from work.20 

Dr. DiCostanzo noted appellant’s prior lumbar muscle strain which occurred on 

October 17, 2007. However, he did not provide a well-rationalized medical opinion with objective 

findings which explained how the June 13, 2016 work injury caused or aggravated appellant’s 

preexisting back condition to the point that he was rendered totally disabled from work during the 

claimed time periods.21 

Accordingly, the Board finds that appellant has failed to establish intermittent disability 

for the claimed periods commencing October 24, 2016. As such, appellant has failed to establish 

that he was entitled to wage-loss compensation for the claimed periods.

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.

LEGAL PRECEDENT -- ISSUE 2

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,22

OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or 

interpreted a specific point of law; (2) advance a relevant legal argument not previously considered 

by OWCP; or (3) constitute relevant and pertinent new evidence not previously considered by 

OWCP.23 To be entitled to a merit review of an OWCP decision denying or terminating a benefit, 

a claimant’s application for review must be received by OWCP within one year of the date of that 

 

17 See M.M., Docket No. 16-0541 (issued April 27, 2010).

18 See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued 

October 10, 2008) (regarding pain); J.S., Docket No. 07-0881 (issued August 1, 2007) (regarding spasm).

19 At appellant’s request, Dr. DiCostanzo released appellant back to work on February 9, 2017.

20 See supra note 14. 

21 See supra note 17. 

22 Supra note 1. Section 8128(a) of FECA provides that the Secretary of Labor may review an award for or against 

payment of compensation at any time on his own motion or on application.

23 20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-0218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB 

630 (2006).
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decision.24 When a claimant fails to meet one of the above standards, OWCP will deny the 

application for reconsideration without reopening the case for review on the merits.25

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 8128(a). 

The Board finds that appellant’s request for reconsideration neither alleged nor 

demonstrated that OWCP erroneously applied or interpreted a specific point of law. Consequently, 

appellant was not entitled to a review of the merits based on the first and second above-noted

requirements under 20 C.F.R. § 10.606(b)(3). 

With respect to the third above-noted requirement under section 10.606(b)(3), appellant 

submitted Dr. DiCostanzo’s January 5, February 9, March 15, April 12, May 16, June 14, and 

July 13, 2017 reports and physical therapy reports. In these reports, rather than relating appellant’s 

multiple pain complaints, Dr. DiCostanzo listed strains corresponding to appellant’s pain 

complaints. He did not offer further explanation regarding the cause of these strains or how they 

caused appellant disability during the claimed time periods. This evidence, while new to the 

present claim, is cumulative of evidence contained in the case record and does not constitute a 

basis for reopening a case.26

OWCP also received new September 17, 2017 MRI scan reports. As this evidence does 

not address the underlying issue of disability during the time periods in question, causally related 

to appellant’s accepted employment conditions, this evidence is insufficient to reopen his claim 

for further merit review.27

The Board finds that, as appellant did not satisfy any of the three requirements under 

section 10.606(b)(3) to warrant further merit review of his claim, OWCP properly denied his 

request for reconsideration.

CONCLUSION

The Board finds that appellant has not established intermittent periods of disability 

beginning October 24, 2016 and continuing causally related to his accepted employment. The 

Board also finds that OWCP properly denied his request for reconsideration of the merits of his

claim pursuant to 5 U.S.C. § 8128(a).

 

24 Id. at § 10.607(a).

25 Id. at § 10.608(b). See Y.S., Docket No. 08-0440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB 

598 (2006).

26 M.V., Docket No. 17-0132 (issued April 7, 2017); Candace A. Karkoff, 56 ECAB 622 (2005).

27 J.D., Docket No. 16-1253 (issued February 7, 2017); D’Wayne Avila, 57 ECAB 642 (2006).
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ORDER

IT IS HEREBY ORDERED THAT that the October 4 and June 16, 2017 decisions of 

the Office of Workers’ Compensation Programs are affirmed. 

Issued: September 14, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board