United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.J., Appellant

and

U.S. POSTAL SERVICE, PALM DESERT POST 

OFFICE, Palm Desert, CA, Employer

__________________________________________

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Docket No. 18-1181

Issued: May 20, 2019

Appearances: Case Submitted on the Record

David W. Graves, 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 May 22, 2018 appellant, through counsel, filed a timely appeal from an April 17, 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.

 

1 The Board notes that counsel appeared on behalf of appellant on December 4, 2018. 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 his burden of proof to establish disability for the 

periods February 4, 1982 through December 15, 1986 and January 1, 2000 through January 7, 

2006, causally related to his February 4, 1982 accepted employment injuries.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior orders and decisions are incorporated herein by reference. The relevant facts 

are set forth below.

OWCP accepted that on February 4, 1982 appellant sustained a sprain, neuroma, and nonunion fractured sesamoid of the second metatarsal phalangeal joint of the right foot when he 

stepped out of a mail truck onto a medium-sized rock while in the performance of duty. It 

authorized right foot surgery, which was performed on August 8, 1983. On November 28, 1983 

and September 23, 1985 appellant underwent unauthorized right foot surgeries.

Following further OWCP proceedings the Board, by decision dated October 20, 2005, 

affirmed an OWCP hearing representative’s March 1, 2004 merit decision affirming an April 3, 

2003 decision denying appellant’s claim for a recurrence of disability commencing October 4, 

2002 and OWCP’s April 15, 2004 nonmerit decision denying appellant’s request for 

reconsideration pursuant to 5 U.S.C. § 8128(a), September 9, 2004 merit decision denying 

modification of the denial of his recurrence claim, and November 19, 2004 nonmerit decision

again denying appellant’s request for reconsideration pursuant to section 8128(a).

4

On February 13, 2018 appellant filed a claim for compensation (Form CA-7) requesting 

compensation for disability for the periods February 4, 1982 through December 15, 1986 and

January 1, 2000 through January 7, 2006. No evidence was submitted with appellant’s claim.

In a development letter dated March 14, 2018, OWCP advised the employing 

establishment that based on the record, appellant was paid continuation of pay (COP) for the period 

February 12 through 18, 1982. It requested that the employing establishment review its personnel 

records to determine the correct period in which appellant was entitled to COP, and authorize COP 

for the dates he was temporarily totally disabled, or no work was available due to his work injury. 

In a separate development letter of the same date, OWCP informed appellant about the 

periods he had received COP and compensation for leave buy back. Regarding the additional 

claimed periods of disability, it requested that he submit evidence verified by the employing 

establishment indicating that it was unable to accommodate his work restrictions. OWCP also 

requested that appellant submit medical evidence showing that his disability due to his 

unauthorized November 28, 1983 and September 23, 1985 right foot surgeries and work 

 

3 Order Dismissing Appeal, Docket No. 04-1309 (issued June 29, 2004); and Docket No. 05-0820 (issued 

October 20, 2005), petition for recon. denied, Docket No. 05-0820 (issued May 11, 2006).

4 Docket No. 05-0820, id.
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restrictions were causally related to his accepted right foot conditions. Regarding the claimed 

period October 2, 2002 through January 7, 2006, it advised him to refer to the appeal rights that 

accompanied the Board’s October 20, 2005 decision. Both the employing establishment and 

appellant were afforded 30 days to submit the requested evidence. Appellant did not submit 

responsive evidence.

In a letter dated April 11, 2018, the employing establishment responded to OWCP’s 

development letter, noting that it was unable to provide the requested COP records. It noted that 

it was informed by accounting services that the records only went back to 1993. 

By decision dated April 17, 2018, OWCP denied appellant’s claim for disability for the 

periods February 4, 1982 through December 15, 1986 and from January 1, 2000 through 

January 7, 2006. It noted that he had not responded to its March 14, 2018 development letter.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has the burden proof to establish the essential 

elements of his or her claim by the weight of the evidence.6 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.7 Whether a particular injury caused 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.8

The claimant must submit medical evidence showing that the condition claimed is 

disabling.9 The evidence submitted must be reliable, probative, and substantial.10 The physician’s 

opinion must be based on the facts of the case and the complete medical background of the 

employee, must be one of reasonable medical certainty, and must include objective findings in 

support of its conclusions.11 Subjective complaints of pain are insufficient, in and of themselves, 

to support payment of continuing compensation.12 Likewise, medical limitations based solely on 

the fear of a possible future injury are also insufficient to support payment of continuing 

compensation.13

 

5 Supra note 2.

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

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Id.

8 Amelia S. Jefferson, supra note 6; William A. Archer, 55 ECAB 674 (2004).

9 20 C.F.R. § 10.115(f).

10 Id. at § 10.115.

11 Id. at § 10.501(a)(2).

12 Id.

13 Id.
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Causal relationship is a medical issue and the medical evidence required to establish causal 

relationship is rationalized medical evidence.14 Rationalized medical evidence is medical evidence 

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

relationship between the claimant’s diagnosed condition and the implicated employment injury. 

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 claimant.15 Neither the 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.16

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 his or her disability and 

entitlement to compensation.17

ANALYSIS

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

the periods February 4, 1982 through December 15, 1986 and January 1, 2000 through January 7, 

2006, causally related to his February 4, 1982 employment injuries.

Preliminarily, the Board notes that it is unnecessary for it to consider the evidence appellant 

submitted prior to the issuance of OWCP’s last merit decisions which the Board considered in its 

October 20, 2005 decision and found insufficient to establish disability. Findings made in prior 

Board decisions are res judicata absent any further review by OWCP under section 8128 of 

FECA.18

In a development letter dated March 14, 2018, OWCP requested that appellant submit 

factual evidence in support of his claim for disability from work. It also requested that he submit 

medical evidence to establish his disability from work during the claimed periods. Appellant did 

not, however, respond to OWCP’s request with any additional evidence. He has the burden of 

 

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

15 T.W., Docket No. 18-0890 (issued October 26, 2018).

16 E.J., Docket No. 09-1481 (issued February 19, 2010).

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

18 See B.R., Docket No. 17-0294 (issued May 11, 2018).
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proof to submit evidence supporting disability in the form of lost wages for the periods claimed.19 

Appellant did not submit such evidence, and thus, has not met his burden of proof.20

CONCLUSION

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

the periods February 4, 1982 through December 15, 1986 and January 1, 2000 through January 7, 

2006, causally related to his February 4, 1982 employment injuries.

ORDER

IT IS HEREBY ORDERED THAT the April 17, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 20, 2019

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

 

19 See A.L., Docket No. 16-1092 (issued May 9, 2017).

20 See J.D., Docket No. 18-0034 (issued May 22, 2018).