United States Department of Labor

Employees’ Compensation Appeals Board

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B.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Solvang, CA, Employer

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Docket No. 19-0852

Issued: October 18, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 15, 2019 appellant filed a timely appeal from a February 6, 2019 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 entitlement to an 

additional four hours of wage-loss compensation on November 30, 2018 causally related to her 

accepted employment conditions.

FACTUAL HISTORY

OWCP accepted that appellant, a 66-year-old retired sales, services, and distribution 

associate, sustained cervical disc disorder with myelopathy and cervical intervertebral disc 

 

1

5 U.S.C. § 8101 et seq.
2

displacement (C5-6) without myelopathy, due to factors of her federal employment on or about 

July 29, 1996. It authorized a May 19, 1999 anterior cervical discectomy and fusion at C5-6. 

On July 23, 2018 appellant underwent: (1) a radiofrequency facet joint nerve ablation of 

the left and right C4-5 joints; (2) a radiofrequency facet joint nerve ablation of the left and right 

C6-7 joints; and (3) a fluoroscopy for spinal injections. 

In a progress report dated November 30, 2018, Dr. Benjamin Dirkx, an osteopath Boardcertified in pain medicine, physical medicine, and rehabilitation, noted that appellant presented for 

a follow-up appointment, and that, since her last visit, she reported that her neck pain had 

worsened, and that she experienced muscle spasms and daily morning headaches. He listed the 

diagnoses as: (1) cervical disc disorder with myelopathy in the mid-cervical region; (2) carpal 

tunnel syndrome; (3) cervical facet arthropathy; (4) cervical myofascial strain; and (5) left 

occipital neuralgia. Dr. Dirkx related that he provided appellant with an out-of-work note for 

missing work on November 30, 2018 secondary to the appointment. 

On December 27, 2018 appellant submitted a claim for compensation (Form CA-7) for 

intermittent periods of disability from November 26 to December 21, 2018, totaling 96 hours of 

leave without pay. The attached time analysis form (Form CA-7a), included an entry for a total of 

eight hours of leave without pay claimed for November 30, 2018, due to a workers’ compensation 

physician visit for neck and head pain. With the Form CA-7a, appellant included a work excuse 

note dated November 30, 2018, from Dr. Dirkx who requested that she be excused from work 

secondary to a flare-up of pain. 

In a development letter dated December 31, 2018, OWCP informed appellant that payment 

was authorized for 92 hours of wage loss for the claimed period. However, it advised that the 

claim was not payable in its entirety as the medical evidence submitted did not substantiate the 

disability for the additional four hours claimed for November 30, 2018. OWCP advised appellant

of the type of medical evidence necessary and afforded her 30 days to respond. 

In response, Dr. Dirkx submitted a January 9, 2019 report, noting that appellant was unable 

to attend work and could not perform her usual and customary duties for an extended period of 

time between November 26 and December 21, 2018, due to a flare-up of pain as a result of her 

cervical disc disorder with myelopathy in the mid-cervical region. He stated that this flare-up of 

pain was a result of her accepted condition which caused severe pain to the head and neck area, 

and concluded that she unable to attend work. Dr. Dirkx attached a copy of his treatment notes 

from the November 30, 2018 appointment. 

By decision dated February 6, 2019, OWCP denied appellant’s claim for an additional four 

hours of disability compensation on November 30, 2018. It found that the medical evidence of 

record was insufficient to establish that she was disabled from work on that date due to her 

accepted medical conditions.2 

 

2 Appellant voluntarily retired from the employing establishment effective January 31, 2019.
3

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.4 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.5 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.

6

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.7 Disability is, thus, not 

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

wages.8 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 

capacity.9 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 or her employment, he or she is entitled to compensation for any loss of wages.10

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.11

 

3

Supra note 1. 

4 K.M., Docket No. 19-0367 (issued June 26, 2019); R.R., Docket No. 19-0048 (issued April25, 2019); see 

Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); JosephM. Whelan, 20 

ECAB 55 (1968).

5

See Amelia S. Jefferson, id. 

6

See D.W., Docket No. 18-0644 (issued November 15, 2018); see Edward H. Horton, 41 ECAB 301 (1989).

7

S.M., 58 ECAB 166 (2006); BobbieF. Cowart, 55 ECAB 746 (2004); ConradHightower, 54 ECAB 796 (2003); 

20 C.F.R. § 10.5(f).

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

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

10 S.H., Docket No. 18-1342 (issued February 26, 2019).

11 See WilliamA. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).
4

ANALYSIS

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

an additional four additional hours of wage-loss compensation on November 30, 2018 causally 

related to her accepted employment conditions. 

In support of her claim, appellant submitted reports from Dr. Dirkx. Dr. Dirkx opined that 

she would have intermittent periods of disability due to neck pain or flare-ups of her accepted 

cervical conditions. The Board has held that subjective complaints of pain are insufficient to 

establish disability from employment.12 Dr. Dirkx did not explain with rationale why appellant’s

condition caused her to be disabled on that date.13 The Board has held that medical evidence must 

provide a rationalized medical opinion substantiating disability from work.14 Thus, the Board 

finds that reports submitted by Dr. Dirkx are insufficient to establish entitlement to an additional 

four hours of disability on November 30, 2018.

As the medical evidence of record is insufficient to establish causal relationship between 

the additional four hours of claimed disability on November 30, 2018 and appellant’s accepted 

employment conditions, the Board finds that she 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 entitlement to 

an additional four additional hours of wage-loss compensation on November 30, 2018 causally 

related to her accepted employment conditions. 

 

12 G.J., Docket No. 18-1335 (issued March 22, 2019).

13 See V.G., Docket No. 18-0936 (issued February 6, 2019).

14 K.A., Docket No. 16-0592 (issued October 26, 2016); C.S., Docket No. 08-2218 (issued August 7, 2009); 

SandraD. Pruitt, 57 ECAB 126 (2005).
5

ORDER

IT IS HEREBY ORDERED THAT the February 6, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 18, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board