United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.J., Appellant

and

U.S. POSTAL SERVICE, ATLANTA 

PROCESSING & DISTRIBUTION CENTER, 

Atlanta, GA, Employer

__________________________________________

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Docket No. 18-0619

Issued: October 22, 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 30, 2018 appellant, through counsel, filed a timely appeal from a December 12, 

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 to consider the merits of the 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 Appellant’s AB-1 form notes that she is only appealing from the December 12, 2017 merit decision of OWCP’s 

Branch of Hearings and Review. 
2

ISSUE

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

work during the periods August 13 through 25, 2016 and December 7, 2016 through January 14, 

2017 due to her accepted January 4, 2009 employment injury.

FACTUAL HISTORY

On January 4, 2009 appellant, then a 42-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that she was sweeping mail when she felt a pain in her right arm near her elbow. 

Her elbow then began to swell. Appellant stopped work that day and returned on February 8, 2009 

with restrictions. On February 17, 2009 OWCP accepted her claim for right lateral epicondylitis.

The employing establishment withdrew appellant’s light-duty job assignment on 

October 4, 2010 under the National Reassessment Process. OWCP paid her wage-loss 

compensation on the periodic rolls. On March 20, 2012 appellant underwent a right lateral 

epicondyle surgical release. On February 17, 2014 she underwent a second right lateral epicondyle 

extensive release as well as elbow synovectomy through lateral approach. Appellant returned to 

light-duty work on June 9, 2015 as a sales solution team member with a lifting restriction of five 

pounds in a sedentary position.4

On November 6, 2015 appellant accepted a light-duty position as a modified mail 

processing clerk which required standing, walking, simple grasping, and no lifting over five 

pounds.

In a report dated December 17, 2015, appellant’s attending physician, Dr. Duncan Wells, 

a Board-certified orthopedic surgeon, related that appellant had chronic signs of inflammation in 

her lateral elbow, for which he recommended injections.5 On January 14, 2016 he noted that 

appellant wished to consider additional right elbow surgery. Dr. Wells referred her to Dr. Randall 

Alexander, a Board-certified orthopedic surgeon. On February 18 and 25, 2016, as well as 

April 21, 2016, he found that appellant was totally disabled from work. 

In a note dated May 12, 2016, Dr. Alexander described appellant’s work-related right arm 

injury and medical history. He recommended diagnostic testing. Dr. Alexander released appellant 

to perform light-duty work with no lifting, pulling, or pushing over five pounds with her right 

upper extremity. On June 9, 2016 he reviewed appellant’s x-rays and diagnosed heterotrophic

ossification of the radial head and neck of the right arm caused by her work injury and previous 

surgeries. Dr. Alexander recommended excision of the heterotopic ossification and debridement 

 

4 By decision dated October 26, 2015, OWCP granted appellant schedule award compensation for five percent 

permanent impairment of her right upper extremity.

5 Appellant filed a claim for compensation (Form CA-7) requesting intermittent wage-loss compensation for the 

period October 13, 2015 through June 20, 2016. OWCP authorized 12 hours of wage-loss compensation benefits from 

December 17, 2015 through January 14, 2016. It authorized wage-loss compensation benefits for four hours on 

February 25 and May 12, 2016. Appellant filed a second Form CA-7 on October 20, 2016 requesting intermittent 

wage-loss compensation from July 21 through October 13, 2016. By decision dated December 2, 2016, OWCP denied 

appellant’s claim for wage-loss compensation on May 2 and 19, 2016.
3

of the lateral epicondyle. Dr. Alexander also diagnosed right carpal tunnel syndrome and right 

cubital tunnel syndrome.

On June 13, 2016 appellant underwent a computerized tomography (CT) scan of her right 

elbow. This scan demonstrated moderated to advanced elbow joint arthropathy affecting the ulnar 

compartment of the elbow with osteochondral loose bodies. On July 20, 2016 Dr. Wells found 

that appellant was unable to work.

Dr. Alexander completed a report on July 12, 2016 and opined that as a result of appellant’s 

two previous right elbow surgeries she had developed heterotopic ossification in the lateral elbow 

which was causing ongoing pain. He recommended a revision debridement of the lateral 

epicondyle of the right elbow as well as excision of the heterotopic ossification in that region. 

Dr. Alexander opined that based on a reasonable degree of medical certainty appellant’s current 

pain and dysfunction in her elbow was entirely related to her 2009 work injury and the subsequent 

surgeries. He noted that her elbow surgeries led to the formation of heterotopic ossification. 

On July 21, 2016 Dr. Wells opined that appellant was totally disabled. He completed a 

note on August 25, 2016 and concluded that her physical examination demonstrated significant 

and pronounced tenderness over the lateral epicondyle with swelling of the proximal forearm.

In a report dated September 21, 2016, Dr. Tedman L. Vance, a Board-certified orthopedic 

surgeon, examined appellant due to right lateral elbow pain. He provided a history of injury and 

reviewed her right elbow CT scan. Dr. Vance diagnosed primary osteoarthritis of the right elbow 

as well as an olecranon fossa loose body and radiopatellar arthritis. He recommended additional 

testing. On September 28, 2016 appellant underwent a right elbow magnetic resonance imaging 

(MRI) scan which demonstrated an osteochondral loose body in the posterior intercondylar recess, 

joint effusion, deformity of the radial head, marginal osteophyosis and postsurgical changes 

involving thinning of the extensor tendon. Dr. Vance reviewed appellant’s MRI scan on 

October 6, 2016 and diagnosed loose body in the right elbow, lateral epicondylitis, and primary 

osteoarthritis of the right elbow. He recommended an open right elbow debridement.

On October 13, 2016 Dr. Wells opined that appellant was unable to work until after 

surgery. He completed a note on October 20, 2016 and reported that appellant was experiencing 

severe right lateral elbow pain. Dr. Wells therefore recommended that appellant stop work prior 

to her surgery by Dr. Vance.

OWCP’s medical adviser reviewed appellant’s request for surgery on December 8, 2016

and found that the proposed surgery was related to her accepted condition. He agreed that this 

surgery was medically necessary.

In a note dated December 28, 2016, Dr. Wells related that appellant would be totally 

disabled until after her surgery.

On January 20, 2017 appellant filed claim for compensation (Form CA-7) requesting wageloss compensation for total disability from August 13 through 25, 2016 and wage-loss 

compensation for intermittent periods of disability from December 7, 2016 through 

January 14, 2017.
4

In a development letter dated February 13, 2017, OWCP requested additional medical 

evidence supporting appellant’s claimed periods of disability from work. It afforded her 30 days 

for a response.

In reports dated March 6 and 8, 2017, Dr. Vance noted appellant’s continued right elbow 

symptoms and that her surgery was scheduled for March 23, 2017.

By decision dated April 10, 2017, OWCP denied appellant’s claimed periods of disability 

from work from August 13 through 25, 2016 and December 7, 2016 through January 14, 2017. It

noted that the medical evidence of record did not explain why she was totally disabled during the 

periods in question. On April 18, 2017 counsel requested a telephonic hearing before an OWCP

hearing representative.

On March 30, 2017 Dr. Vance evaluated appellant following her March 23, 2017 surgery

for right elbow loose body removal, osteochondral synovial mass excision, and right elbow 

irrigation and lavage.

In a report dated April 5, 2017, Dr. Wells noted that appellant did not work from August 13 

through 25, 2016 and from December 7, 2016 through January 14, 2017 and continuing. He found, 

“The patient is unable to work at this point, because she continues having severe right elbow pain 

that requires taking significant pain medication, which prevents her from driving safely or doing 

her job fully. Even doing a sedentary-type job she has to use her dominant hand for any type of 

activity and since that is the injured extremity, she cannot do sedentary work.” 

In a report dated May 1, 2017, Dr. Vance indicated that appellant could return to light-duty 

work with no use of her right arm and no lifting over five pounds for the following six weeks.

6

Appellant testified before an OWCP hearing representative during the oral hearing on 

October 2, 2017. She asserted that her doctor found she was disabled from work from August 13 

through 25, 2016 and from December 7, 2016 through January 14, 2017 due to excessive swelling 

and pain in her right elbow. Appellant worked intermittently until August 13, 2016. She then 

stopped work. 

On October 31, 2017 OWCP expanded acceptance of appellant’s claim to include the 

additional conditions of primary osteoarthritis of the right elbow, and loose body in the right elbow.

By decision dated December 12, 2017, OWCP’s hearing representative found that 

appellant had not established that she was disabled from work for the periods August 13 

through 25, 2016 and from December 7, 2016 through January 14, 2017 due to her accepted 

employment injuries.

 

6 By decision dated June 8, 2017, OWCP denied appellant’s claim for wage-loss compensation for the period 

February 25 through March 22, 2017.
5

LEGAL PRECEDENT

An employee seeking benefits under the FECA7 has the burden of proof to establish the 

essential elements of his or her claim, including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury.8

Under FECA the term “disability” is defined as the incapacity because of an employment 

injury to earn the wages the employee was receiving at the time of the injury.9 

Whether a particular injury causes an employee disability for employment is a medical 

issue which must be resolved by competent medical evidence.10 Whether a particular injury causes 

an employee to be disabled from work and the duration of that disability, are medical issues that 

must be proven by a preponderance of the reliable, probative, and substantial medical evidence.11

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.12 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

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.14 Causal relationship is a medical issue and the 

medical evidence required to establish causal relationship is rationalized medical evidence.15 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.16

 

7 Supra note 2.

8 S.J., Docket No. 17-0828 (issued December 20, 2017); G.T., Docket No. 07-1345 (issued April 11, 2008); Kathryn 

Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

9 20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury, but no 

loss of wage-earning capacity).

10 See S.J., supra note 8; Edward H. Horton, 41 ECAB 301 (1989).

11 See S.J., supra note 8; Tammy L. Medley, 55 ECAB 182 (2003).

12 See S.J., supra note 8; Amelia S. Jefferson, 57 ECAB 183 (2005).

13 See S.J., supra note 8; Fereidoon Kharabi, 52 ECAB 291 (2001)

14 See S.J., supra note 8; Kathryn E. DeMarsh, 56 ECAB 677 (2005).

15 See S.J., supra note 8; Elizabeth Stanislaw, 49 ECAB 540 (1998).

16 Id.
6

ANALYSIS

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

disabled from work for the periods August 13 through 25, 2016 and from December 7, 2016 

through January 14, 2017 due to her accepted January 4, 2009 employment injury.

OWCP accepted appellant’s claim for right lateral epicondylitis, primary osteoarthritis of 

the right elbow, and loose body in the right elbow.

In support of her claim for disability for the periods August 13 through 25, 2016 and from 

December 7, 2016 through January 14, 2017 due to her accepted January 4, 2009 employment 

injury, appellant provided several notes from her treating physician, Dr. Wells. On July 20, 2016

Dr. Wells again found that appellant was unable to work. In a note dated August 25, 2016, he 

reported that appellant demonstrated significant and pronounced tenderness over the lateral 

epicondyle with swelling of the proximal forearm. On October 13, 2016 Dr. Wells opined that 

appellant was unable to work until after surgery. He completed a note on October 20, 2016 and 

reported that appellant was experiencing severe right lateral elbow pain and recommended that 

appellant stop work prior to her surgery by Dr. Vance. In a note dated December 28, 2016,

Dr. Wells found that appellant was totally disabled until after her surgery. However, he provided 

limited objective findings in support of his opinion that appellant was totally disabled for work 

and no medical reasoning supporting his opinions. Dr. Wells noted appellant’s subjective 

complaints, but did not explain why she could not perform the duties of her light-duty position. 

Due to these defects these reports are insufficient to meet appellant’s burden of proof to establish 

total disability from August 13 through 25, 2015 and from December 7, 2016 through 

January 14, 2017.17 A medical report must include rationale explaining how the physician reached 

his conclusion regarding disability.18 As these reports lack the requisite medical rationale, they 

are insufficient to meet appellant’s burden of proof.

In his April 5, 2017 report, Dr. Wells found that appellant was unable to work beginning 

August 13, 2016 due to severe right elbow pain that required taking significant pain medication. 

He opined that appellant’s prescribed medications prevented her from driving safely or fully 

performing her light-duty job duties. Dr. Wells noted that even a sedentary job required appellant 

to use her injured dominant right hand, which she could not do. His April 5, 2017 report is not 

contemporaneous with her alleged period of disability beginning August 13, 2016. Furthermore, 

although Dr. Wells opined that appellant was totally disabled for work, his opinion is conclusory 

in nature and fails to explain in detail how the accepted medical conditions were responsible for 

appellant’s total disability for work and why she could not perform her light-duty federal 

employment during the period claimed.19 

Appellant’s surgeon, Dr. Alexander, reported on May 12, 2016 that appellant could 

perform light-duty work with no lifting, pulling, or pushing over five pounds with her right upper 

 

17 R.C., Docket No. 17-0748 (issued July 20, 2018); P.W., Docket No. 17-0154 (issued June 9, 2017).

18 R.C., id.; J.I., Docket No. 17-0485 (issued June 22, 2017).

19 D.H., Docket No. 17-0565 (issued July 2, 2018).
7

extremity. This report does not support appellant’s claim for total disability as it indicates that she 

was capable of performing light-duty work with restrictions. As Dr. Alexander provided an 

opinion that appellant was not totally disabled from work due to her employment injury, his report 

is insufficient to establish appellant’s claim for periods of employment-related total disability.20 

In his subsequent reports dated June 9 and July 12, 2016, Dr. Alexander related appellant’s 

diagnostic findings, but offered no opinion regarding her disability status. As these reports offered 

no opinion regarding the specific dates of alleged disability, they are insufficient to establish 

appellant’s claim.21 

Similarly, OWCP received several reports from Dr. Vance dating from September 21, 

2016 to May 1, 2017. Dr. Vance continued to note appellant’s right elbow symptoms and 

diagnoses, but he offered no opinion regarding her disability status until May 1, 2017. In his report 

dated May 1, 2017, Dr. Vance related that appellant could return to light-duty work with no use of 

her right arm and no lifting over five pounds. As he did not address appellant’s disability status 

during the claimed periods of disability in this report, or in his earlier reports, these reports are also 

insufficient to establish her claim.22

The Board finds that appellant has not provided sufficient rationalized medical opinion 

evidence to establish that she was totally disabled from August 13 through 25, 2016 and 

December 7, 2016 through January 14, 2017 causally related to her accepted January 4, 2009 

employment injuries. Thus, appellant has not met her burden of proof.

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. 

§ 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 total disability 

from work during the periods August 13 through 25, 2016 and December 7, 2016 through 

January 14, 2017 due to her accepted January 4, 2009 employment injury.

 

20 R.C., supra note 17.

21 Supra note 13. 

22 Id.
8

ORDER

IT IS HEREBY ORDERED THAT the December 12, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 22, 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