United States Department of Labor

Employees’ Compensation Appeals Board

___________________________________________

E.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer

___________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-1988

Issued: January 28, 2019

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 25, 2017 appellant filed a timely appeal from two August 23, 2017 merit 

decisions 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.2

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish disability

for two hours on May 4, 2017 and two hours on May 5, 2017, causally related to her accepted 

November 14, 2002 employment injury; and (2) whether appellant has met her burden of proof to 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the August 23, 2017 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for 

the first time on appeal. Id.
2

establish a recurrence of disability for the period January 16 through March 14, 2017, causally 

related to her accepted November 14, 2002 employment injury.

FACTUAL HISTORY

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

in the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.

On January 19, 2003 appellant, then a 32-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that, while in the performance of duty, she sat down on a wooden 

bench in the women’s locker room and fell onto the floor. By decision dated April 14, 2003 OWCP 

accepted her claim for the condition of low back (lumbosacral) sprain/strain. By decision dated 

January 11, 2005, it expanded the acceptance of appellant’s claim to include the additional

condition of herniated disc at L5-S1. 

Following her employment injury, appellant was working full time with a 20-pound lifting 

restriction until her work hours were reduced to six hours per day with a 10-pound lifting restriction 

on or around April 24, 2009, based upon a duty status report (Form CA-17) which was completed 

by a physician with an illegible signature. She continued light-duty employment until August 2010 

when the employing establishment was no longer able to accommodate her restrictions. Appellant 

filed claims for compensation (Form CA-7) and OWCP paid her wage-loss compensation on the 

periodic rolls for total disability.4 

OWCP referred appellant to vocational rehabilitation on February 4, 2011, based upon the 

medical findings of Dr. Scott Massien, a Board-certified internist and treating physician, who 

noted that her lumbosacral sprain and strain had resolved, but that her L5-S1 disc herniation 

continued to produce pain. Dr. Massien noted his review of the job description for a mail handler 

and determined that she could not perform those employment duties. He assigned restrictions 

limiting appellant’s work to 2.5 hours per day for 5 days per week with various restrictions on her 

physical functioning. In a report dated July 11, 2011, Dr. Massien noted that she could work for 

six hours per day with various restrictions on her physical functioning which were determined by 

a work capacity evaluation.

By decision dated March 20, 2013, OWCP reduced appellant’s wage-loss compensation as 

she failed to complete vocational rehabilitation. On March 28, 2013 appellant requested an oral 

hearing. By decision dated June 11, 2013, a hearing representative reversed the March 20, 2013 

decision, finding that OWCP had improperly reduced appellant’s compensation without issuing 

the requisite prereduction notice pursuant to 5 U.S.C. § 8113(b). Benefits were reinstated at the 

previous level retroactive to March 20, 2013. A loss of wage-earning capacity (LWEC) 

 

3 Docket No. 03-1880 (issued November 17, 2003); Docket No. 10-0968 (issued February 1, 2011); and Docket 

No. 14-0584 (issued July 29, 2014).

4 By decision dated February 1, 2011, the Board found that appellant had not met her burden of proof to establish 

a recurrence of disability beginning May 5, 2009 causally related to her accepted employment injury. Id.
3

determination was thereafter issued by OWCP on July 19, 2013 and was affirmed by the Board in 

its decision dated July 29, 2014.5 

On October 15, 2015 appellant accepted a limited-duty job offer as a mail handler

(modified) working for two hours a day, five days per week. She continued to work in that position 

until January 16, 2017 when her work assignment was amended to two hours a day, four days per 

week.

In a January 12, 2017 treatment note, Dr. Tim Nice, a Board-certified orthopedic surgeon, 

noted that he saw appellant on December 29, 2016. He indicated that she could not return to work 

for the period January 13 through February 13, 2017.

Appellant thereafter submitted several claims for compensation (Form CA-7) following 

her change in duty status.

In an August 11, 2016 Form CA-17, Dr. Nice indicated that appellant could perform 

modified duty for two hours a day, four days a week. In a May 4, 2017 Form CA-17, he again 

indicated that appellant could resume her limited-duty employment for two hours a day, four days 

per week.

In a letter dated May 5, 2017, D.J., an employing establishment human resources specialist,

provided additional information and copies of previously submitted evidence. She also included

a May 4, 2017 e-mail from the employing establishment which indicated that they were not aware 

of any work stoppage due to no work available. Furthermore, the employing establishment advised 

that there was no change in appellant’s restrictions and that her October 15, 2015 job offer

remained in effect.

In a May 4, 2017 treatment note, Dr. Nice explained that he had not seen appellant for a 

year. He advised that she continued to take her medicine and lived with pain in her back. Dr. Nice

noted that appellant worked two hours a day standing “and even that bothers her.” He examined 

her and reported a negative straight leg raise on the left and a negative straight leg raise on the 

right. Dr. Nice determined that the straight leg raise went to 90 degrees and did not create back 

pain, but appellant had some pain behind her knee. He found that she had a good muscle strength 

examination of both lower extremities which were symmetric. Dr. Nice found that appellant 

denied any paresthesias in her right leg. He also indicated that she has had disc issues at L5 in the 

past and that she was given a sedentary work status when she had her functional capacity 

examination. Dr. Nice noted that appellant had not seen a neurologist or neurosurgeon. He

advised that she had electrical studies which showed a very mild chronic L5-S1 radiculopathy, 

mostly on the right side. Dr. Nice also indicated that appellant was also claiming to have pain in 

the left leg, but there were “absolutely no neurologic findings in the left leg.” He continued her 

on her present work restrictions.

 

5 On June 18, 2013 OWCP provided prereduction notice of its intent to reduce appellant’s wage-loss compensation 

based upon the constructed position of doctor’s office clerk. By decision dated July 19, 2013, it finalized the proposed 

reduction of her wage-loss compensation benefits. A hearing representative, by decision dated March 14, 2014, 

affirmed the LWEC determination. On February 27, 2014 appellant requested a modification of her LWEC 

determination. By decision dated April 21, 2014, OWCP denied her request for modification. 
4

On May 14, 2017 appellant filed a claim for compensation (Form CA-7) requesting

intermittent disability during the period April 29 to May 12, 2017. On a time analysis form, dated 

May 16, 2017, she noted that April 29 and 30, 2017 were her days off, and indicated “no work 

available.” Appellant also noted eight hours for May 1, 2017 as her off day. For May 4, 2017, 

she noted eight hours for a physician visit as she saw Dr. Nice for back pain. For May 5, 2017, 

appellant noted eight hours for back pain. She claimed a total of 76 hours of compensation.

In a May 25, 2017 memorandum of telephone call, OWCP determined that appellant’s job 

offer required that she work two hours a day, four days a week. It was noted in the memorandum 

that time was taken off due to medical appointments on May 4 and 6, 2017. OWCP explained to 

appellant that she attended her medical appointments during the day and that she was scheduled to 

work at night. It further explained to appellant that she could not take time off for medical 

appointments and claim temporary total disability as they were two different issues. OWCP also 

addressed her complaint of loss of work due to pain. It instructed that, if appellant was disabled 

from work, that was in essence a recurrence that must be established with substantive medical 

evidence.

In a letter dated June 6, 2017, appellant provided a note from Dr. Nice. Dr. Nice explained 

that she could return to work on May 9, 2017 following his May 4, 2017 examination. In a note 

to OWCP appellant noted that, due to drowsiness, she could not drive and “rest the night away due 

to my injury on job.” 

In a June 23, 2017 memorandum of phone call, OWCP verified that appellant worked two

hours and was in six hours of leave without pay status on March 23, 2017. In a separate 

memorandum of the same date, OWCP’s claims examiner indicated that the physician’s note for 

May 4 to 9, 2017 “did not include much.”

On June 26, 2017 OWCP manually adjusted appellant’s underpayment, providing 

compensation for six hours on March 23, 2017.6 

In a June 12, 2017 treatment note, Dr. Nice indicated that he saw appellant three months 

ago and opined that she was able to work two hours a day and she wanted to continue working the 

two hours a day. He noted that she was experiencing numbness in her left foot, which was 

something new. Dr. Nice advised that appellant’s reflexes, though decreased bilaterally were 

symmetric in the Achilles and the patella reflexes. He found that the muscle strength was negative 

and the straight leg raise maneuver was negative bilaterally. Dr. Nice opined that he could not 

account for what appellant was claiming to have, but he explained that a magnetic resonance 

imaging (MRI) scan from 2014 showed the degenerative disc at L5 with a four millimeter bulge 

mostly on the right. He explained that now her symptoms were on the left and right. Dr. Nice 

indicated that it was possible that “this has gotten worse.” He advised that appellant was going to 

 

6

In a June 27, 2017 note, appellant indicated that she had still not been paid for lost wages of 34 hours. She listed 

the dates as: 4 hours from March 4 to 17, 2017; 4 hours from March 18 to 31, 2017; and 4 hours from April 29 to 

May 12, 2017, and explained that she was not paid for her off day of Monday of 2 hours each; 4 hours for the period 

May 13 to 26, 2017; and 6 hours for wage loss not paid on March 23, 2017, appellant noted that it was her error as 

she had skipped the date on the Form CA-7; and 12 hours for being out sick from May 4 to 5, 2017, appellant filled 

in physician appointment not paid.
5

have a neurologic consultation and they might have to repeat electrical studies and the MRI scan 

to her back. Dr. Nice indicated that she could continue working.

In a letter dated June 30, 2017, OWCP noted that they had received appellant’s Form CA7 claiming compensation for the period April 29 through May 12, 2017. It paid compensation for 

May 1 through 5, 2017 and May 8 through 12, 2017, for a total of 60 hours in the amount of 

$1,153.88. OWCP noted that development had also been undertaken to determine entitlement to 

compensation for an additional two hours on both May 1 and 8, 2017 as these were days off, but

four hours were subsequently paid. It therefore noted that for the period April 29 through May 12, 

2017, as claimed on the May 14, 2017 Form CA-7, there remained only four hours under 

consideration. These hours related two hours for her examination with Dr. Nice on May 4, 2017 

and absence due to back pain on May 9, 2017. OWCP denied payment for these four hours due to 

lack of medical documentation to support recurrent disability.

In a July 27, 2017 report, Dr. Nice noted that there was some debate regarding appellant’s 

work status on May 4 and 5, 2017. He explained that she was seen in his office for her usual 

appointment for her back symptoms on May 4, 2017. Dr. Nice indicated that appellant was having 

a bad day and he refilled her medication. He explained that she was also off on May 5, 2017 

because of the ongoing symptoms in her left leg. Dr. Nice noted that appellant did not return to 

work until May 6, 2017, which would probably be appropriate based on the symptoms she was 

having on May 4, 2017. He explained that she was working two hours a day, four days a week. 

Dr. Nice advised that appellant continued to take anti-inflammatories and occasional pain 

medicine, as well as therapy modalities and seemed to be tolerating this work schedule. He opined 

that there was no overall change in her work status or symptomatology with a negative neurologic 

examination. Dr. Nice noted that appellant was actually doing better than she was when he saw 

her in May 2017. He also completed a duty status report of the same date.

In an August 14, 2017 letter, appellant indicated that she had not been paid for May 4 and 

5, 2017. She indicated that she was off sick for a medical appointment due to severe and ongoing 

leg (nerve) pain with numbness and tingling on the left leg. Appellant explained that she was 

prescribed medication and rest and was awaiting electromyography testing and had been referred 

to a neurologist on July 14, 2017. She noted that she experienced constant back pain and she could 

not drive because her medication made her sleepy. 

On August 15, 2017 OWCP received a copy of appellant’s May 18, 2017 modified 

position. The two hours that appellant was scheduled to work on her scheduled workdays were 

listed as 19:00 to 21:00 (7:00 p.m. to 9:00 p.m.) 

By decision dated August 23, 2017, OWCP denied appellant’s claim for an additional four 

hours of compensation for the period May 4 to 5, 2015 (two hours of wage loss each day), finding 

that the evidence of record was insufficient to establish that she was disabled from work as a result 

of her accepted conditions.

By separate decision also dated August 23, 2017, OWCP denied appellant’s recurrence of 

disability claim for the period January 16 through March 14, 2017 as she failed to establish that 

she was disabled due to a material change or worsening of her accepted conditions. 
6

LEGAL PRECEDENT -- ISSUE 1

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

essential elements of his or her claim by the weight of the evidence.8 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.9 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.10

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.11 Disability is, thus, not 

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

wages.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 her employment, the claimant is entitled to compensation for any loss of wages.13

A claimant who has returned to work following an accepted injury or illness may need to 

undergo examination or treatment and such employee may be paid compensation for wage loss 

while obtaining medical services and for a reasonable time spent traveling to and from the medical 

provider’s location.14 A claimant may be paid compensation for wage loss while obtaining medical 

services and for a reasonable time spent traveling to and from the medical provider’s location.15 

As a rule, no more than four hours of compensation or continuation of pay should be allowed for 

routine medical appointments. Longer periods of time may be allowed when required by the nature 

of the medical procedure and/or the need to travel a substantial distance to obtain the medical 

care.16

 

7 Supra note 1.

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

Whelan, 20 ECAB 55 (1968).

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

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

11 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).

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

13 E.B., Docket No. 17-1160 (issued December 19, 2018); Merle J. Marceau, 53 ECAB 197 (2001).

14 C.Y., Docket No. 17-0605 (issued January 11, 2018); Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 

ECAB 950 (1984).

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19 

(February 2013).

16 Id. at Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (November 1998)
7

ANALYSIS -- ISSUE 1

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

two hours on May 4, 2017 and two hours on May 5, 2017, causally related to her accepted 

November 14, 2002 employment injury.

In support of her claim for compensation, appellant submitted medical reports of Dr. Nice. 

In a May 4, 2017 treatment note, Dr. Nice examined her and provided findings. He noted that 

appellant was also claiming to have pain in the left leg, but there were “absolutely no neurologic 

findings in the left leg.” Dr. Nice continued her work restrictions and did not offer an opinion that 

she was unable to perform her two hours of work that day, which as listed in her job offer, was 

from 7 p.m. to 9 p.m. He also provided a separate May 4, 2017 duty status report (Form CA-17) 

and indicated that appellant could resume her limited duties of two hours a day, four days per 

week. In another report dated May 4, 2017, Dr. Nice explained that appellant was seen in his 

office that day for an appointment and she could return to work on May 9, 2017. However, he did 

not offer a reason for the time off from work. These medical reports do not establish that appellant 

was disabled from her light-duty employment position, as her restrictions remained unchanged and

Dr. Nice did not provide a medical opinion supporting her loss of two hours of employment. 

Furthermore, the medical appointment was scheduled and occurred during nonwork hours. 

Therefore appellant has not met her burden of proof to establish that she incurred a loss of wages 

to obtain this treatment.

17

 

In a July 27, 2017 report, Dr. Nice noted that there was some debate on appellant’s work 

status on May 4 and 5, 2017. He explained that she was seen in his office for her usual appointment 

for her back symptoms on May 4, 2017. Dr. Nice indicated that appellant was having a bad day 

and he refilled her medication. He explained that she was also off on May 5, 2017 because of the 

ongoing symptoms in her left leg. Dr. Nice noted that appellant did not return to work until May 6, 

2017, which would probably be appropriate based on the symptoms she was having on 

May 4, 2017. He opined that there was no overall change in her work status or symptomatology 

with a negative neurologic examination. Dr. Nice noted that appellant was actually doing better 

on that date than she was when he saw her in May 2017. This medical report also fails to support 

appellant’s claim for compensation. Dr. Nice did not provide a rationalized medical opinion 

explaining why appellant could not work for two hours on May 4, 2017 or two hours on 

May 5, 2017. 

As appellant has not submitted rationalized medical evidence establishing disability from 

work for the periods claimed, she has not met her burden of proof to establish her claim.

LEGAL PRECEDENT -- ISSUE 2

Section 10.5(x) of OWCP’s Code of Federal Regulations provides that a recurrence of 

disability means an inability to work after an employee has returned to work, caused by a 

 

17 Id.
8

spontaneous change in a medical condition which had resulted from a previous injury or illness 

without an intervening injury or new exposure to the work environment that caused the illness.18

When an employee, who is disabled from the job he or she held when injured on account 

of employment-related residuals, returns to a light-duty position or the medical evidence 

establishes that the employee can perform the light-duty position, the employee has the burden of 

proof to establish by the weight of the reliable, probative and substantive evidence, a recurrence 

of total disability, and to show that he or she cannot perform such light duty. As part of this burden, 

the employee must show a change in the nature and extent of the light-duty job requirements.19

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

causal relationship, generally, is rationalized medical evidence.20 This consists of a physician’s 

rationalized medical opinion on the issue of whether there is a causal relationship between the 

claimant’s diagnosed condition and the implicated employment factors.21 The physician’s opinion 

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.22

ANALYSIS -- ISSUE 2

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

disability for the period January 16 through March 14, 2017, causally related to her accepted 

November 14, 2002 employment injury.

Appellant has not alleged a change in the nature and extent of her light-duty job 

requirements. She must therefore provide medical evidence establishing that she was disabled due 

to a worsening of her accepted work-related conditions.23

In support of her claim, appellant presented a January 12, 2017 note from Dr. Nice. 

Dr. Nice indicated that he saw her on December 29, 2016 and that she could not return to work for 

the period January 13 through February 13, 2017. However, this report does not contain a 

diagnosis or an opinion as to why appellant was disabled for the period January 13 through 

February 13, 2017 and unable to work.24 Dr. Nice did not provide clear physical findings 

 

18 20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

19 Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986).

20 Elizabeth Stanislav, 49 ECAB 540, 541 (1998). 

21 Duane B. Harris, 49 ECAB 170, 173 (1997). 

22 Gary L. Fowler, 45 ECAB 365, 371 (1994).

23 Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986). 

24 Medical evidence which does not offer any opinion regarding causal relationship is of no probative value. See 

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
9

supporting appellant’s disability for work during the period in question and did not provide any 

rationale explaining how or why appellant was disabled due to a worsening of her accepted workrelated conditions.25

 Therefore this report is insufficient to establish her claim.

In a progress note dated May 4, 2017, Dr. Nice saw appellant for complaints of back pain. 

He examined her and continued her on her present work status. Likewise, Dr. Nice’s return to 

work note of May 4, 2017 advised that appellant could return to work on May 9, 2017 while his

June 12, 2017 progress note provided findings and indicated that she continue working two hours 

per day. Dr. Nice provided a July 27, 2017 progress note, which advised that on May 4, 2017 

appellant was having a bad day and took some time off work through May 6, 2017. He indicated 

that she was doing better than she was in May 2017. However, these reports are insufficient to 

establish appellant’s claim as they do not address any period of disability claimed from January 16 

through March 14, 2017 and they lack any medical rationale supporting disability.

26

No other medical reports specifically address how appellant’s disability on the aforenoted 

dates was caused or aggravated by her accepted conditions. 

The Board thus finds that the evidence of record is insufficient to establish that there was 

a change in the nature or extent of appellant’s injury-related condition, or a change in the lightduty requirements, that would prohibit her from performing the light-duty position for the period 

January 16 through March 14, 2017, causally related to her accepted 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. 

§§ 10.605 through 10.607.

CONCLUSION

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

two hours on May 4, 2017 and two hours on May 5, 2017, causally related to her accepted 

November 14, 2002 employment injury. The Board also finds that she has not met her burden of 

proof to establish a recurrence of disability for the period January 16 through March 14, 2017, 

causally related to her accepted November 14, 2002 employment injury.

 

25 See J.M., Docket No. 16-0306 (issued May 5, 2016). 

26 Supra note 24.
10

ORDER

IT IS HEREBY ORDERED THAT the August 23, 2017 decisions of the Office of 

Workers’ Compensation Programs are affirmed. 

Issued: January 28, 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