United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.D., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Cleveland, OH, Employer

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Docket No. 17-0292

Issued: June 19, 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 November 21, 2016 appellant filed a timely appeal from an October 31, 2016 merit 

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 this case.

ISSUE

The issue is whether appellant has met her burden of proof to establish that she was totally 

disabled from work for intermittent periods March 11, 2015 forward causally related to her 

accepted employment injuries.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

OWCP accepted that appellant, then a 51-year-old training technician, sustained left hand 

and wrist tenosynovitis as a result of computer use while in the performance of duty. She did not 

stop work. OWCP paid appellant wage-loss compensation for medical appointments she attended 

related to her accepted injuries.

In a March 10, 2015 report, Dr. Jeffrey Kirschman, a Board-certified occupational 

medicine specialist, diagnosed tenosynovitis of the hand and wrist and indicated that appellant 

requested a refill on her hydrocodone-acetaminophen. On March 17, 2015 he released her to 

modified duty with the following restrictions: frequent hand/wrist work, grasping, pushing, 

pulling, and fine manipulation; occasional reaching above the shoulder; kneeling; squatting;

climbing stairs; and lifting up to 10 pounds. Dr. Kirschman advised that appellant should use a 

splint at work and projected that she would be capable of returning to unrestricted duties as of 

June 4, 2015. 

Appellant filed claims for compensation (Form CA-7) for intermittent periods commencing 

March 6, 2015. 

On March 27, 2015 appellant accepted a modified job offer as a training technician based 

on Dr. Kirschman’s work restrictions.

In an April 21, 2015 letter, OWCP requested additional medical evidence establishing 

appellant’s disability from work during the period claimed and afforded her 30 days to respond to 

its inquiries. 

Appellant subsequently submitted a May 4, 2015 report from Dr. Kirschman who 

diagnosed right hand tenosynovitis and opined that the condition was causally related to her 

repetitive use of her right hand in the performance of her federal duties.

By decision dated June 3, 2015, OWCP expanded appellant’s claim to include the 

additional condition of right hand and wrist tenosynovitis.

By decision dated June 3, 2015, OWCP denied appellant’s claim for intermittent periods 

of disability from work commencing March 11, 2015 as the medical evidence submitted was 

insufficient to support disability due to the employment injury. It noted that the March 24, 2015 

Form CA-7 sought wage-loss compensation for 1.5 hours on March 6, 2015; 3 hours on March 10, 

2015; and March 11, 2015 and continuing. OWCP noted that the evidence of record indicated that 

appellant stopped work on March 11, 2015 and had not returned. It found that the evidence was 

sufficient to authorize payment of benefits for the hours claimed on March 6 and 10, 2015, but 

denied compensation commencing March 11, 2015 and continuing.

Appellant requested an oral hearing before OWCP’s Branch of Hearings and Review. She 

also submitted physical therapy reports and x-rays of her right wrist dated March 11 and 

May 11, 2015. 

In progress reports dated January 8, 2015 through January 28, 2016, Dr. Kirschman 

reiterated his diagnoses and indicated that appellant’s complaints and pain patterns remained 
3

unchanged. He also noted that appellant continued to work at computers and took hydrocodoneacetaminophen as medication for her conditions. On June 15, 2015 Dr. Kirschman related that 

appellant was taken off work from March 11 to 20, 2015 to allow her conditions to subside and 

restart medication for hyperuricemia, including presdnisone and allopurionol, to decrease the 

inflammatory process, along with the use of hydrocodone-acetaminophen for pain control. He 

noted that the use of hydrocodone-acetaminophen, a narcotic, prevented appellant from 

participating safely in the work environment as it affected her cognitive abilities and balance. 

Dr. Kirschman advised that, by her follow-up appointment on March 17, 2015, appellant had 

responded to treatment and was judged able to return to work with restrictions after 

March 20, 2015. In a November 3, 2015 work restriction report, he advised that appellant was 

capable of occasional hand/wrist work, grasping, pushing, pulling, fine manipulation, reaching 

above the shoulder, bending, twisting, kneeling, squatting, climbing stairs, and lifting up to 10 

pounds. Dr. Kirschman noted that appellant’s braces may be removed as needed. 

In reports dated June 15 and August 5, 2015, Dr. Laurel Beverley, a Board-certified 

orthopedic surgeon, diagnosed right wrist de Quervain’s tenosynovitis, status post-cervical surgery 

for stenosis, and asymptomatic basal joint osteoarthritis. She reported that appellant underwent a 

work-related right trigger thumb release surgery in 2013. Appellant complained of three months 

of significant pain and swelling and indicated that she had missed some work with the symptoms. 

On January 25, 2016 Dr. Kevin Malone, a Board-certified orthopedic hand surgeon, 

diagnosed de Quervain’s tenosynovitis.

A telephonic hearing was held before an OWCP hearing representative on 

February 18, 2016. Appellant provided testimony and the hearing representative held the case 

record open for 30 days for the submission of additional evidence.

By decision dated May 3, 2016, OWCP’s hearing representative affirmed the prior 

decision. 

On August 25, 2016 appellant requested reconsideration and submitted an April 18, 2016 

x-ray of her right hand which revealed mild degenerative changes.

In an April 18, 2016 report, Dr. Malone diagnosed right wrist first dorsal compartment 

tenosynovitis and advised that appellant was currently taking hydrocodone-acetaminophen. 

On August 15, 2016 Dr. Kirschman checked a box marked “yes” indicating his opinion 

that appellant was totally disabled for work. He also advised that prescription medication “may”

impair her ability to perform any duty, and bed rest was advised. Dr. Kirschman further advised 

that appellant had not yet reached maximum medical improvement.

In an August 16, 2016 report, Dr. Kirschman reiterated his opinion that appellant 

represented an immediate and significant risk for harm to self or others, due to the use of the pain 

medication hydrocodone-acetaminophen for her acute pain, which posed a risk for cognitive and 

balance issues, along with operating heavy equipment, such as cars.

By decision dated October 31, 2016, OWCP denied modification of its prior decision. 
4

LEGAL PRECEDENT

Section 8102(a) of FECA2sets forth the basis upon which an employee is eligible for 

compensation benefits. That section provides: “The United States shall pay compensation as 

specified by this subchapter for the disability or death of an employee resulting from personal 

injury sustained while in the performance of his duty....” In general the term “disability” under 

FECA means “incapacity, because of an employment injury, to earn the wages the employee was 

receiving at the time of injury.”

3

 This meaning, for brevity, is expressed as disability from work.4 

For each period of disability claimed, the employee has the burden of proving that he or she was 

disabled from work as a result of the accepted employment injury.5 Whether a particular injury 

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

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

evidence.6

Disability is 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 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 as that term is used under FECA, and is not entitled 

to compensation for loss of wage-earning capacity. The Board will not require OWCP to pay 

compensation for disability in the absence of medical evidence directly addressing the particular 

period of disability for which compensation is claimed. To do so would essentially allow 

employees to self-certify their disability and entitlement to compensation.7

ANALYSIS

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

totally disabled from work for the period commencing March 11, 2015 causally related to her

accepted employment injuries. The Board finds that she has not submitted rationalized medical 

evidence explaining how her employment injuries materially worsened or aggravated her bilateral 

hand and wrist condition and caused her to be disabled from work for the period commencing 

March 11, 2015.

In his reports, Dr. Kirschman diagnosed bilateral hand and wrist tenosynovitis and asserted 

that appellant’s complaints and pain patterns remained unchanged. He also noted that appellant 

continued to work on computers and took hydrocodone-acetaminophen as medication for her

conditions. Dr. Kirschman indicated that appellant was taken off work from March 11 to 20, 2015 

to allow her conditions to subside and restart medication, including hydrocodone-acetaminophen 

 

2

Id. at § 8102(a).

3 20 C.F.R. § 10.5(f); see also William H. Kong, 53 ECAB 394 (2002).

4 See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

5 See William A. Archer, 55 ECAB 674 (2004).

6 See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

7

Id.
5

for pain control. He noted that the use of hydrocodone-acetaminophen, a narcotic, prevented 

appellant from participating safely in the work environment as it affected cognitive abilities and 

balance. Dr. Kirschman further opined that appellant represented an immediate and significant 

risk for harm to self or others, along with the use of the pain medication hydrocodoneacetaminophen for her acute pain, which posed a risk for operating heavy equipment, such as cars. 

On August 15, 2016 he checked a box marked “yes” indicating his opinion that appellant was 

totally disabled for work, prescription medication “may” impair her ability to perform any duty,

and bed rest was advised. Although the “yes” checkmark indicates support for causal relationship,

the Board has held that when a physician’s opinion on causal relationship consists only of a 

checkmark on a form, without more by way of medical rationale, the opinion is of diminished 

probative value.8 Therefore, Dr. Kirschman’s August 15, 2016 report is of diminished probative 

value. In his other reports, Dr. Kirschman opined that appellant was totally disabled for work, 

however, his opinions are conclusory in nature, and fail to explain in detail how the accepted 

medical conditions were responsible for appellant’s disability and why she could not perform her

federal employment.9 Consequently, the Board finds that Dr. Kirschman’s reports are insufficient 

to establish appellant’s claim that she was totally disabled for intermittent periods commencing 

March 11, 2015 causally related to her accepted bilateral tenosynovitis condition.

In her reports, Dr. Beverley diagnosed right wrist de Quervain’s tenosynovitis, status postcervical surgery for stenosis, and asymptomatic basal joint osteoarthritis and indicated that she had 

missed some work with the symptoms. In his reports, Dr. Malone diagnosed de Quervain’s 

tenosynovitis and right wrist first dorsal compartment tenosynovitis and advised that appellant was 

currently taking hydrocodone-acetaminophen. The Board finds that this medical evidence failed 

to provide a probative medical opinion on whether appellant was disabled on the dates at issue due 

to her accepted conditions.10 Therefore, this evidence is insufficient to establish appellant’s claim.

Appellant also submitted evidence from physical therapists. These documents do not 

constitute competent medical evidence because physical therapists are not considered “physicians”

as defined under FECA.11 As such, this evidence is also insufficient to meet appellant’s burden of 

proof.

 

8 See Gary J. Watling, 52 ECAB 278 (2001).

9 See J.J., Docket No. 15-1329 (issued December 18, 2015).

10 See Amelia S. Jefferson, 57 ECAB 183 (2005).

11 See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 

2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and 

physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection 

defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and 

osteopathic practitioners within the scope of their practice as defined by state law).
6

Other medical evidence of record, including diagnostic test reports, are of limited probative 

value. Diagnostic studies are of limited probative value as they do not address whether the 

employment injuries caused any of the claimed periods of disability.12

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

evidence establishing that she was totally disabled during intermittent periods commencing 

March 11, 2015 causally related to the employment injuries. Thus, appellant has not met her

burden of proof to establish that she is entitled to compensation for total disability.

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 that she was 

totally disabled for intermittent periods commencing March 11, 2015 causally related to her 

employment injuries.

ORDER

IT IS HEREBY ORDERED THAT the October 31, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 19, 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

 

12 See J.S., Docket No. 17-1039 (issued October 6, 2017).