United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WEST LOS ANGELES VA MEDICAL 

CENTER, Los Angeles, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 20-0026

Issued: August 21, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On October 3, 2019 appellant filed a timely appeal from a September 5, 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.2 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the September 5, 2019 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

ISSUE

The issue is whether appellant has met her burden of proof to establish intermittent 

disability for the period April 18 to June 4, 2019 causally related to her accepted employment 

conditions.

FACTUAL HISTORY

On October 5, 2004 appellant, then a 58-year-old electrocardiogram technician, filed a 

traumatic injury claim (Form CA-1) alleging that on September 30, 2004 she sustained head and 

right shoulder injuries in the performance of duty when a tray fell and struck her while she was in 

the canteen.3 On November 17, 2004 OWCP accepted a right shoulder contusion and a neck 

contusion (right side).

On April 27, 2006 appellant filed a notice of recurrence (Form CA-2a). OWCP converted 

the recurrence claim to a claim for a new traumatic injury, and assigned File No. xxxxxx800. On 

July 11, 2006 it accepted the claim in OWCP File No. xxxxxx800 for neck sprain and a sprain of 

the right shoulder and upper arm at an unspecified site. OWCP administratively combined File 

No. xxxxxx861 and File No. xxxxxx800, with the latter designated as the master file.

In an April 18, 2019 unsigned state workers’ compensation medical report, Dr. Pamela 

Law, Board-certified in physical medicine and rehabilitation, indicated that appellant complained 

of right neck and shoulder pain. She noted appellant’s date of injury as April 17, 2006, reviewed 

appellant’s history of medical treatment, conducted a physical examination, diagnosed a right 

shoulder impingement and right trapezius strain, and indicated that appellant could return to work 

with restrictions.

In an April 22, 2019 prescription note, Dr. Law noted that appellant had a previous 

arthroscopic shoulder surgery and a diagnosis of right shoulder impingement syndrome and right 

trapezius strain. She prescribed physical therapy twice a week for three weeks and acupuncture 

twice a week for three weeks.

Dr. Law, in a June 3, 2019 report, noted that appellant presented with improved neck and 

shoulder pain. She reported appellant’s date of injury and history of treatment, and conducted a 

physical examination. Dr. Law diagnosed a right shoulder impingement and right trapezius strain, 

and she indicated that appellant could return to work with restrictions. 

On June 25, 2019 appellant filed a wage-loss compensation claim (Form CA-7) for 

disability from work for the period April 18 to June 4, 2019. On the reverse side of the claim form, 

the employing establishment indicated that she had returned to modified-duty work on 

April 19, 2019.

On June 25, 2019 OWCP received a time analysis form (Form CA-7a), signed by appellant 

on June 4, 2019, for the period April 18 to June 4, 2019. Appellant requested compensation for 

leave without pay (LWOP) as follows: four hours on April 18, 2019 due to a doctor’s appointment;

 

3 OWCP assigned File No. xxxxxx861 to the traumatic injury claim.
3

four hours on April 30, 2019 due to therapy; four hours on May 3, 2019 due to a magnetic 

resonance imaging (MRI) scan; four hours on May 7, 2019 due to therapy; four hours on May 14, 

2019 due to therapy; four hours on May 20, 2019 due to an orthopedic doctor’s appointment; four 

hours on May 23, 2019 due to therapy; four hours on May 30, 2019 due to therapy; four hours on 

June 3, 2019 due to therapy and a doctor’s appointment; and four hours on June 4, 2019 due to 

therapy.

In a June 28, 2019 development letter, OWCP informed appellant that the documentation 

received to date was insufficient to establish her claim for FECA wage-loss compensation. It 

advised her of the type of medical evidence necessary to establish her disability claim and afforded 

her 30 days to submit the necessary evidence.

April 30, 2019 acupuncture treatment notes containing an illegible signature indicated that 

appellant presented with right shoulder pain that radiated into her neck. The note provided her

history of right shoulder treatment and surgery in 2006 and diagnosed right shoulder impingement. 

A May 3, 2019 right shoulder MRI scan, interpreted by Dr. Joon Dokko, a Board-certified 

radiologist, displayed mild degenerative changes. 

Additional acupuncture notes dated May 7, 14, 23, and 30, and June 4, 2019 with an 

illegible signature noted appellant’s right shoulder impingement diagnosis and indicated that she 

underwent acupuncture treatments. 

In a May 20, 2019 state workers’ compensation orthopedic consultation report, Dr. Joseph 

Faustgen, a Board-certified orthopedic surgeon, indicated that appellant presented with chronic 

right shoulder pain, right shoulder weakness and pain, and weakness in her periscapular muscles 

and neck. He noted that she appeared to have adhesive capsulitis. Dr. Faustgen also noted that 

appellant underwent a right rotator cuff repair 10 years prior and she had continued issues with 

that area. He conducted a physical examination, reviewed her right shoulder MRI scan, and 

diagnosed a neck strain, back sprain, right trapezius strain, right impingement syndrome, and 

lumbar spondylosis. Dr. Faustgen placed appellant off of work for the date of May 20, 2019 and 

indicated that she could return to full duty on May 21, 2019. 

In July 10, 2019 summary of a telephone call (Form CA-110), OWCP indicated that it did 

not have all of the medical reports for the month of May which appellant claimed to have 

submitted. 

Subsequently, a July 22, 2019 CA-110 note indicated that OWCP informed appellant that 

while it had received her May report which contained an impingement diagnosis, the report did 

not provide the diagnosis due to her accepted employment injury. 

By decision dated September 5, 2019, OWCP denied appellant’s wage-loss compensation 

claim finding that the evidence of record was insufficient to establish that she was disabled for 

work for the period April 18 to June 4, 2019 due to her accepted conditions. 
4

LEGAL PRECEDENT

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

essential elements of his or her claim by the preponderance 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 the incapacity, because of an employment injury, 

to earn the wages that the employee was receiving at the time of injury.7 

OWCP’s procedures provide that wages lost for compensable medical examinations or 

treatment may be reimbursed.8 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.9 Wage loss is payable only if the 

examination, testing, or treatment is provided on a day which is a scheduled workday and during 

a scheduled tour of duty. Wage-loss compensation for medical treatment received during off-duty 

hours is not reimbursable.10 The evidence should establish that a claimant attended an examination 

or treatment for the accepted work injury on the dates claimed in order for compensation to be 

payable.11 For a routine medical appointment, a maximum of four hours of compensation may be 

allowed. However, 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. The 

claims for wage loss should be considered on a case-by-case basis.12

ANALYSIS

The Board finds that this case is not in posture for decision.

 

4 See B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018).

5

Id.

6 20 C.F.R. § 10.5(f); B.O., supra note 4; N.M., Docket No. 18-0939 (issued December 6, 2018).

7

Id. at § 10.5(f); see B.K., Docket No. 18-0386 (issued September 14, 2018).

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment, Chapter 

2.901.19 (February 2013).

9

Id. at Chapter 2.901.19.a.

10 Id. at Chapter 2.901.19.a(2).

11 Id. at Chapter 2.901.19.a(3).

12 Id. at Chapter 2.901.19.c.
5

OWCP’s September 5, 2019 decision denied appellant’s wage-loss compensation claim 

because the evidence of record was insufficient to establish that she was disabled for work for the 

period April 18 to June 4, 2019. It also noted that she had stopped work on April 18, 2019 and 

had not returned. However, appellant’s supervisor certified on June 25, 2019 that appellant had 

returned to work on April 19, 2019 and her June 4, 2019 time analysis form (Form CA-7a) listed 

specific dates and number of hours for which she was requesting compensation, in addition to the 

specific reasons for taking leave for each date mentioned, primarily for medical appointments.

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact 

and make an award for or against payment of compensation.13 Section 10.126 of FECA’s 

implementing regulations provides that a decision shall contain findings of fact and a statement of 

reasons and a statement of reasons.14 As well, OWCP’s procedures provide that the reasoning 

behind OWCP’s evaluation should be clear enough for the reader to understand the precise defect 

of the claim and the kind of evidence which would overcome it.

15

OWCP did not determine whether appellant was entitled to up to four hours of

compensation for wage loss while obtaining medical services and for a reasonable time spent 

traveling to and from the medical provider’s location during the claimed period. The Board will 

therefore set aside OWCP’s September 5, 2019 decision. On remand OWCP shall make findings 

of fact and a provide a statement of reasons as to whether appellant is entitled to any intermittent 

wage-loss compensation due to her attendance for medical examinations or treatment to be 

followed by a de novo decision regarding appellant’s claim for disability compensation. 

CONCLUSION

The Board finds that this case is not in posture for decision.

 

13 5 U.S.C. § 8124(a).

14 20 C.F.R. § 10.126.

15 Id.; See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 

(February 2013).
6

ORDER

IT IS HEREBY ORDERED THAT the September 5, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: August 21, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board