United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.D., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

LOUIS STOKES VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Cleveland, OH, Employer

__________________________________________

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Docket No. 19-0628

Issued: November 5, 2019

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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 31, 2019 appellant, through counsel, filed a timely appeal from a December 14, 

2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

 

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

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.3

ISSUE

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

during the period June 26 through August 18, 2017 causally related to her accepted employment 

conditions.

FACTUAL HISTORY

On November 20, 2013 appellant, then a 50-year old lead medical records technician, filed 

a notice of traumatic injury (Form CA-1) alleging that she injured her left shoulder and neck on 

November 15, 2013 when she slipped and fell while ascending stairs following a fire drill while in 

the performance of duty. OWCP assigned this claim File No. xxxxxx713 and accepted the claim 

for contusion of the left shoulder, closed fracture of the left humerus, closed dislocation of the left 

shoulder, and sprain of the left shoulder. Appellant received intermittent wage-loss compensation 

on the supplemental roll for the period December 31, 2013 through May 30, 2014. 

On February 24, 2017 appellant filed an occupational disease claim (Form CA-2) alleging 

that she sustained bilateral carpal tunnel syndrome due to factors of her federal employment 

including years of typing. She noted that she first became aware of the condition on December 8, 

2008, and its relationship to factors of her federal employment on November 14, 2016. Appellant

did not indicate that she had stopped work. OWCP assigned this claim File No. xxxxxx437, and 

on June 15, 2017 accepted for the condition of bilateral carpal tunnel syndrome as work related.

The record reflects that appellant received wage-loss compensation on the supplemental rolls from 

May 5 to 22, 2017. OWCP administratively combined the case records with OWCP File No. 

xxxxxx437 serving as the mater file. 

In an employing establish work capacity evaluation form dated June 26, 2017, Dr. Vladlen 

Kim, a Board-certified internist, indicated that appellant was to be off work on temporary total 

disability until July 6, 2017 due to left shoulder and arm pain. On July 3, 2017 Dr. Kim completed 

another work capacity evaluation form and noted that appellant was to be off work on temporary 

total disability until August 1, 2017. 

On July 7, 2017 appellant filed a claim for wage-loss compensation (Form CA-7) for leave 

without pay for the period June 26 to July 7, 2017. 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the December 14, 2018 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 

additional evidence for the first time on appeal. Id.
3

In a development letter dated July 11, 2017, OWCP requested additional medical evidence 

supporting appellant’s claim for wage-loss compensation for the period alleged. Appellant was 

afforded 30 days to submit the necessary evidence. 

In reports dated May 5, 15, 22, and 31, June 6, 16, 20, 26, and 30, and July 17, 2017,

Dr. Kim noted complaints including bilateral numbness and tingling in appellant’s hands, left 

shoulder pain, pain radiating up to her left arm and shoulder, back pain, neck pain, and sharp pains 

in the palm of her right hand. In the May 15 and 22, 2017 reports, he diagnosed bilateral carpal 

tunnel syndrome and noted that she could return to work on May 23, 2017 full time, with 

restrictions. 

In his June 26, 2017 report, Dr. Kim diagnosed left arm pain, left arm weakness, numbness 

and tingling in both hands, and cervicalgia, and related that appellant was to be off work until 

July 5, 2017. In his June 30 and July 17, 2017 reports, he diagnosed bilateral carpal tunnel 

syndrome, and related that she was to be off work until August 22, 2017. In his July 17, 2017 

report, Dr. Kim related that appellant had been off work due to severe pain and weakness in her 

hands bilaterally, and that even limited duty would be impossible to perform without use of hands 

and with significant pain. 

On August 15, 2017 Dr. Kim reported that appellant was to remain off work until 

September 14, 2017.

On August 18, 2017 OWCP received a Form CA-7 claiming compensation for leave 

without pay for the period August 7 through 18, 2017. 

By decision dated August 28, 2017, OWCP denied appellant’s claim for disability 

compensation for the period June 26, 2017 and continuing finding that the evidence of record did 

not establish that she was disabled as a result of her accepted employment-related medical 

condition.4

OWCP thereafter received a June 26, 2017 hospital record signed by Dr. Stephanie Gaines, 

a specialist in emergency medicine, who related that appellant was seen that day for chronic left 

arm pain. Dr. Gaines noted that appellant had no obvious injury or deformity to her left arm, she 

had full range of motion and no significant sensory deficit. She also noted that appellant had 

recently undergone magnetic resonance imaging (MRI) scans all of which were “reassuring.”

On September 7, 2017 appellant, through counsel, requested a telephonic hearing before 

an OWCP hearing representative. 

OWCP continued to receive continuing medical evidence regarding appellant’s current 

medical status. 

 

4 The Board notes that appellant continued to file CA-7 forms for periods of claimed wage-loss compensation 

following OWCP’s August 28, 2017 decision. OWCP paid appellant wage-loss compensation on the supplemental 

rolls for periods of intermittent disability commencing September 12, 2017. 
4

On February 7, 2018 a telephonic hearing was held before an OWCP hearing 

representative. At the hearing, appellant indicated that she was taken off work commencing 

June 26, 2017 by her physician due to shoulder and arm pain related to her accepted bilateral carpal 

tunnel syndrome.

By decision dated March 28, 2018, an OWCP hearing representative affirmed OWCP’s 

August 28, 2017 decision finding that the evidence of record was insufficient to establish that 

appellant was disabled as of June 26, 2017, causally related to the accepted medical conditions.

On May 2, 2018 appellant, through counsel, requested reconsideration of OWCP’s hearing 

representative’s March 28, 2018 decision. OWCP continued to receive medical progress reports. 

In a report dated April 12, 2018, Dr. Kim indicated that appellant was admitted to the 

emergency room on June 26, 2017, and was diagnosed with neuropathic pain of her left upper 

extremity. He noted that after release from the hospital, he evaluated her on that day, and she 

complained of severe pain in her left shoulder with radiation down to her left hand, pain in her 

wrists bilaterally, numbness and weakness in her left hand, and sharp pain in the palm of her right 

hand. Dr. Kim related that physical examination revealed tenderness over the left shoulder, left 

elbow, left wrist, right wrist, and neck. He diagnosed left arm pain, left arm weakness, numbness 

and tingling in both hands, and cervicalgia at that time. Dr. Kim subsequently recommended that 

appellant stay off work until July 6, 2017. He opined that the pain in her left arm was directly 

related to the diagnosed carpal tunnel syndrome. 

By decision dated July 11, 2018, OWCP denied modification of the March 28, 2018 

decision.

On September 18, 2018 appellant, through counsel, requested reconsideration of OWCP’s 

July 11, 2018 decision. OWCP continued to receive medical progress reports. 

By decision dated December 14, 2018, OWCP denied modification of its July 11, 2018 

decision. It found that the medical evidence of record was insufficient to establish that appellant’s 

accepted condition prevented her from working during the claimed period of disability. 

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 

 

5 Supra note 2.

6 B.F., Docket No. 19-0123 (issued May 13, 2019); M.D., Docket No. 18-0474 (issued October 3, 2018); see 

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

7

Id.
5

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

OWCP’s procedures discuss the evidence necessary if recurrent disability for work is 

alleged within 90 days of return to duty.9 It is noted that the focus is on disability rather than 

causal relationship of the accepted condition to the employment injury.10

The Board has held that, if recurrent disability from work is claimed within 90 days or less 

from the first return to duty, the attending physician should describe the duties which the employee 

cannot perform and demonstrate objective medical findings that form the basis for the renewed 

disability for work.11

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.12

ANALYSIS

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

the period June 26, through August 18, 2017 causally related to her accepted employment 

conditions.

Appellant has submitted a number of reports to the record from Dr. Kim. Dr. Kim initially 

related that appellant was off work from May 5, 2017 due to her bilateral hand condition, but that 

she could return to full-time work with restriction on May 23, 2017. The record reflects that 

appellant received wage-loss compensation during that initial period of disability and that she 

returned to limited-duty work on or about May 23, 2017. 

Appellant was then seen in an emergency room on June 26, 2017 for left arm complaints, 

however Dr. Gaines reported normal examination findings. 

Dr. Kim thereafter continued to submit reports noting appellant’s diagnoses and indicating 

that appellant was unable to work as of June 26, 2017. In his progress notes during the relevant 

time period Dr. Kim noted appellant’s subjective complaints, but offered no medical explanation 

 

8 B.F., supra note 6; M.D., supra note 6; see Edward H. Horton, 41 ECAB 301 (1989).

9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013); see B.R., Docket 

No. 18-0339 (issued January 24, 2019).

10 Id.

11 A.B., Docket No. 18-0978 (issued September 6, 2019); J.W., Docket No. 17-0715 (issued May 29, 2018); G.P.,

Docket No. 14-1150 (issued September 15, 2014); J.F., 58 ECAB 124 (2006).

12 V.B., Docket No. 18-1273 (issued March 4, 2019); see William A. Archer, 55 ECAB 674 (2004); see also 

Fereidoon Kharabi, 52 ECAB 291 (2001).
6

regarding appellant’s inability to return to work, based upon objective medical evidence. As 

previously noted, if inability to work is claimed within 90 days after the initial return to work the 

focus is on disability, rather than causal relationship. However, the treating physician must

describe the duties which the employee cannot perform and demonstrate objective medical 

findings that form the basis for the renewed disability for work.13 

In his July 17, 2017 report, Dr. Kim related that appellant had been off work due to severe 

pain and numbness in her hands and he indicated that even light duty would be impossible for her

to perform. Although Dr. Kim opined that appellant was totally disabled for work, his opinion 

was conclusory in nature and failed to explain how the accepted bilateral carpal tunnel syndrome 

was responsible for her disability and why she could not perform her light-duty assignment during 

the period claimed.14

In his narrative report dated April 12, 2018, Dr. Kim related that appellant was admitted to 

the emergency room on June 26, 2017 for neuropathic upper extremity pain. He examined 

appellant on that day, after she was released from the hospital. Appellant’s physical examination 

findings included tenderness over the left shoulder, left elbow, left wrist, right wrist and neck. She 

also reported left arm pain and weakness, numbness and tingling in both hands, and cervicalgia.

Dr. Kim related that he had recommended that appellant stay off work. The Board finds that while

Dr. Kim, in this report as in his others, consistently noted appellant’s subjective symptoms, he 

again did not relate any objective findings of disability. Furthermore, Dr. Kim did not address 

why appellant could not perform the duties of the light-duty position she returned to on 

May 23, 2017. When a physician’s statements regarding an employee’s ability to work consist 

only of recitation of the employee’s complaints that she was in too much pain to work, without 

objective findings of disability being shown, the physician has not presented a medical opinion on 

the issue of disability.15 A mere conclusion without the necessary rationale is insufficient to meet 

a claimant’s burden of proof.16 Without medical rationale supporting disability, Dr. Kim’s reports 

are insufficient to meet appellant’s burden of proof.17 His reports, do not establish that appellant 

was disabled from work during the claimed period due to her accepted conditions.

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.

 

13 A.B., Docket No. 18-0978 (issued September 6, 2019); J.W., Docket No. 17-0715 (issued May 29, 2018); G.P.,

Docket No. 14-1150 (issued September 15, 2014); J.F., 58 ECAB 124 (2006).

14 See S.K., Docket No. 18-1537 (issued June 20, 2019). 

15 B.F., Docket No. 19-0123 (issued May 13, 2019); P.D., Docket No. 14-0744 (issued August 6, 2014); G.T., 59 

ECAB 447 (2008).

16 B.F., id.; E.L., Docket No. 17-1632 (issued January 3, 2018).

17 A.T., Docket No. 19-0410 (issued August 13, 2019). 
7

CONCLUSION

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

disabled during the period June 26 through August 18, 2017 causally related to her accepted 

employment conditions.

ORDER

IT IS HEREBY ORDERED THAT the December 14, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 5, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board