United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland Heights, OH, Employer

__________________________________________

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Docket No. 19-1540

Issued: February 5, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 July 11, 2019 appellant, through counsel, filed a timely appeal from a May 29, 2019 

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

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

 

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 5 U.S.C. § 8101 et seq.

3 The Board notes that following the May 29, 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 additional 

evidence for the first time on appeal. Id.
2

ISSUE

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

compensation for disability from work for the period January 29 through August 3, 2018, causally 

related to her accepted March 16, 2017 employment injury.

FACTUAL HISTORY

On March 16, 2017 appellant, then a 31-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on that date, she injured her lower extremities and right shoulder when 

she slipped and fell while in the performance of duty. She stopped work on the date of injury. On 

January 24, 2018 OWCP ultimately accepted appellant’s claim for lumbar sprain, left hip sprain, 

and left knee contusion. In its acceptance letter, OWCP noted that she had also been diagnosed 

with a left knee medial meniscus tear and left knee osteoarthritis, however, the medical evidence 

of record was insufficient to establish that the additional left knee diagnoses were causally related 

to the accepted March 16, 2017 employment injury.

In duty status reports (Form CA-17) dated February 8 and April 3, 2018, Dr. Richard A. 

Figler, Board-certified in family practice and sports medicine, diagnosed osteoarthritis of the knee, 

a medial meniscus tear, and patellofemoral instability. He advised that appellant was able to work

full-time light duty and described her work restrictions. On the supervisor’s portion of the April 3, 

2018 report, a supervisor described appellant’s usual work requirements and noted that “alternate 

work” was available.

In a Form CA-17 dated May 16, 2018, Dr. Figler diagnosed a tear of the medial meniscus 

of the knee and patellofemoral instability. He advised that appellant was able to work full-time 

light duty and described her work restrictions. On the supervisor’s portion of the report, a 

supervisor noted that alternate work was available.

In a Form CA-17 dated July 17, 2018, Dr. Figler diagnosed osteoarthritis of the knee, a 

medial meniscus tear, and patellofemoral instability. He reiterated appellant’s ability to work fulltime light-duty work and described her work restrictions. On the supervisor’s portion of the report, 

a supervisor reiterated that alternate work was available. 

On August 24, 2018 appellant filed multiple claims for compensation (Form CA-7) for 

intermittent wage loss for the period January 20 through August 3, 2018. In time analysis forms 

(Form CA-7a) accompanying her claim, she reported a total of 141.83 hours of leave without pay 

(LWOP). Appellant worked a majority of the dates claimed during the period, and reported LWOP 

for portions of those days when there was “no work available.” She also claimed LWOP for 

medical appointments on June 13 (5.3 hours) and July 17, 2018 (3.99 hours). 

By letter dated September 4, 2018, OWCP requested that appellant provide additional 

factual and medical information to establish disability from work during the period January 29

through August 3, 2018. It afforded her 30 days to submit the requested information.

By decision dated October 9, 2018, OWCP denied appellant’s claim for compensation for 

disability from work for the period January 29 through August 3, 2018 and continuing. It found 

that the medical evidence of record was insufficient to establish that she was disabled during this 

period due to her employment injury.
3

On October 25, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on March 14, 2019. 

During the hearing, appellant stated that, after her return to work as a carrier with restrictions, she 

was accommodated until the employing establishment hired additional employees and began 

sending her home on certain days.

By decision dated May 29, 2019, OWCP’s hearing representative affirmed the October 9, 

2018 decision.

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 Disability is thus 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 a federal employment 

injury, but who nevertheless 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 in FECA.8

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 their disability and 

entitlement to compensation.9

ANALYSIS

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

work for the period January 29 through August 3, 2018 causally related to her March 16, 2017 

employment injury.

In CA-17 forms dated February 8 through July 17, 2018, Dr. Figler advised that appellant 

was able to work light duty and provided restrictions. The employing establishment noted in the 

reports dated April 3 to July 17, 2018 that “alternate work” was available. There is no medical 

 

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

Id.

9 A.W., Docket No. 18-0589 (issued May 14, 2019).
4

evidence indicating that appellant was disabled from work on the dates and hours claimed due to 

the accepted conditions. Appellant worked portions of full days on the claimed dates and there is 

no evidence of record explaining why she was unable to work for a full eight hours on the claimed 

dates. Furthermore, the CA-17 forms from Dr. Figler do not refer to appellant’s accepted 

conditions. Instead, they refer to diagnoses of osteoarthritis of the knee and a medial meniscus 

tear, conditions that were specifically noted as not established to be causally related to the accepted 

March 16, 2017 injury in OWCP’s January 24, 2018 acceptance letter, as well as patellofemoral 

instability. Evidence that does not address appellant’s accepted conditions and dates of disability

is insufficient to establish the claim.10

Because appellant has not submitted rationalized medical opinion evidence to establish 

employment-related disability for the period January 29 through August 3, 2018 causally related 

to her accepted left knee contusion, lumbar sprain, and left hip sprain, the Board finds that she has 

not met her burden of proof to establish her claim for 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 disability from 

work for the period January 29 through August 3, 2018 causally related to her March 16, 2017 

employment injury.

 

10 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
5

ORDER

IT IS HEREBY ORDERED THAT the May 29, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 5, 2020

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