United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

FEDERAL DEPOSIT INSURANCE 

CORPORATION, Arlington, VA, Employer

__________________________________________

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Docket No. 19-0658

Issued: March 17, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 1, 2019 appellant filed a timely appeal from a December 6, 2018 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 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.

ISSUE

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

disability during the period October 6 through December 11, 2015, causally related to her accepted 

August 6, 2015 employment injury.

 

1 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 

20 C.F.R. § 501.5(b). By order dated December 11, 2019, the Board exercised its discretion and denied the request, 

finding that the arguments on appeal could adequately be addressed in a decision based on the case record. Order 

Denying Request for Oral Argument, Docket No. 19-0658 (issued December 11, 2019).

2 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On September 3, 2015 appellant, then a 47-year-old examination specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on August 6, 2015 she sustained left shoulder, 

neck, mid-back, and right hand injuries when she misstepped while descending stairs, contorted 

her body attempting to grab a hand rail, and fell forward on the remaining cement steps while in 

the performance of duty.

3

 She stopped work on August 17, 2015 and returned on October 8, 2015. 

Dr. John P. McConnell, a Board-certified orthopedic surgeon, in an October 1, 2015 

physician’s certificate, recommended appellant telework as she was unable to drive or commute 

to work using public transportation due to her left shoulder injury. In an October 21, 2015 report,

he provided examination findings and diagnosed continued left rotator cuff strain. Dr. McConnell

recommended physical therapy and indicated that appellant was capable of “tailored work.” In a 

Family and Medical Leave Act (FMLA) form dated October 29, 2015, he noted the claimed 

August 6, 2015 employment injury and provided medical restrictions of no driving or commuting 

by public transportation. Dates of disability included 16 hours for October 6 to 7, 2015, 8 hours 

on October 9, 2015, 8 hours on October 21, 2015, and 40 hours for the period October 26 

to 30, 2015. 

In a duty status report (Form CA-17) dated October 29, 2015, Dr. McConnell indicated 

that appellant was capable of working, provided she teleworked as she was unable to take public 

transportation. The employing establishment noted on this form that she was eligible for 

nonrecurring telework. 

On November 23, 2015 OWCP received appellant’s claim for compensation (Form CA-7) 

for leave buy back for the period October 6 through 30, 2015.

On November 18, 2015 appellant was seen by Dr. McConnell regarding her left shoulder 

pain. He reported continued left shoulder pain with range of motion (ROM) testing and 

recommended physical therapy. Dr. McConnell released appellant to return to regular work. 

On April 6, 2016 OWCP accepted appellant’s claim for left rotator cuff and right wrist 

sprains. 

In a development letter dated August 8, 2016, OWCP explained that the evidence 

submitted was insufficient to support the claim for wage-loss compensation for the period 

October 6 through 30, 2015. It requested appellant complete and resubmit a time analysis (Form 

CA-7a) and advised her of the type of medical evidence required to establish her claim. Appellant

was afforded 30 days to submit the necessary evidence. 

In response to OWCP’s request appellant submitted an October 29, 2015 Form CA-17 from

Dr. McConnell indicating that she could perform work in a telework capacity. 

On December 2, 2016 OWCP received appellant’s Forms CA-7 for leave buy back and 

wage-loss compensation for the period October 6 to December 11, 2015. It also received Forms 

 

3 The record reflects that appellant received continuation of pay which covered the period prior to October 6, 2015. 
3

CA-7a for this period requesting 182 hours of leave buy back and 29 hours of wage-loss 

compensation.4 

In a letter dated December 14, 2016, OWCP advised appellant that a leave buy back 

worksheet/certification and election (Form CA-7b) was required to complete the processing of her 

claim for leave buy back for the periods requested. 

On December 19, 2016 OWCP paid appellant wage-loss compensation for four hours on 

October 21, 2015. 

In a letter dated January 13, 2017, the employing establishment confirmed that appellant 

had been allowed to telework for the period September 22 through December 11, 2015. 

On July 27, 2017 OWCP referred appellant for a second opinion evaluation with

Dr. Chester DiLallo, a Board-certified orthopedic surgeon, for an opinion on the diagnosed 

conditions causally related to the accepted August 6, 2015 employment injury, the period of 

disability due to the accepted employment injury, whether she was capable of working with 

restrictions, and whether she had continuing residuals or disability. 

In an August 15, 2017 report, Dr. DiLallo, based upon a review of the record, statement of 

accepted facts, and appellant’s physical examination diagnosed resolved right wrist sprain, 

resolved left rotator cuff tear, and left shoulder impingement syndrome. He indicated that 

appellant was not disabled due to her accepted work injury at that time. However, Dr. DiLallo

concurred with Dr. McConnell that she would have difficulty using public transportation due to 

left shoulder restrictions and that adjustments were required for teleworking or providing 

transportation to work. 

On August 17, 2017 OWCP received appellant’s Form CA-7b requesting 48 hours of leave 

buy back, which included 8 hours for holiday, 40 hours for the period November 25 to December 8, 

2015, and a Form CA-7a requesting 17 hours of intermittent wage-loss compensation for the period 

November 23 and December 9 and 11, 2015. 

In November 29, 2017 supplemental report, Dr. DiLallo diagnosed left shoulder 

impingement based on physical findings and magnetic resonance imaging (MRI) scan. He opined

that the accepted left rotator cuff tear was unsubstantiated, the accepted right wrist sprain had 

resolved, and the left shoulder impingement syndrome was a direct result of the accepted August 6, 

2015 employment injury. Dr. DiLallo again concurred with Dr. McConnell that it would be 

difficult for appellant to use public transportation due to medication and left shoulder restrictions. 

 

4 On the Form CA-7a appellant claimed 16 hours of disability for October 6 and 7, 2015, 8 hours of disability for 

October 9, 2015, 2 hours of other leave for a physician’s appointment on October 16, 2015, 8 hours of disability for 

October 21, 2015, 8 hours of disability for October 26, 2015, 32 hours of disability for October 27 to 30, 2015, 24 

hours of disability for the period November 2 to 4, 2015, 16 hours of disability for November 9 and 10, 2015, 8 hours 

of disability for November 12, 2015, 24 hours of disability for the period November 16 to 18, 2015, 4 hours of 

disability for November 19, 2015, 8 hours of disability for November 20, 2015, 8 hours of disability for November 23, 

2015, 24 hours of disability for November 25, 27, and 30, 2015, 16 hours of disability for December 4 and 8, 2015, 5 

hours of disability for December 9, 2015, and 4 hours of disability for December 11, 2015. 
4

By decision dated December 1, 2017, OWCP denied appellant’s claim for compensation 

for the period October 6 through December 11, 2015. It explained that her claim had been 

accepted for right wrist and left rotator cuff sprains. OWCP noted that appellant had been allowed 

to telework during the period at issue and that the medical evidence did not support disability due 

to the accepted conditions. 

On December 30, 2017 appellant requested an oral hearing before an OWCP hearing 

representative. The hearing was held on May 30, 2018. 

On January 8, 2018 OWCP received an undated physician’s certificate indicating that 

appellant had an appointment on November 18, 2015 at 1:10 p.m. with Dr. McConnell. It also 

received a premium pay request history from webTA noting denied and approved telework. The

form noted 16 hours of telework had been denied for November 16 and 17, 2015.

5

On June 19 and 21, 2018 OWCP received an undated report from Dr. Brett A. Wohler, a 

Board-certified family medicine physician, who advised that appellant had been under his care 

since March 8, 2016. Based upon a review of appellant’s time and attendance and medical records,

Dr. Wohler opined that she sustained intermittent periods of disability due to her accepted left 

rotator cuff and right wrist strains. He listed the dates of flare-ups and resulting disability as 

October 6, 7, 9, 21, and 26 to 30, and November 2 to 4, and 9, 10, and 16 to 18, 2015. Dr. Wohler 

also listed partial days on November 19 and 20, and 23, 25, 26, 27, and 30, and December 4, 8, 9, 

and 11, 2015. He described the flare-ups as increased neck and left shoulder to left bicep to elbow 

pain, loss of use and/or strength in the left shoulder/arm, additional swelling, limited ROM, and 

sleep disturbance due to left rotator cuff strain. 

By decision dated August 2, 2018, OWCP’s hearing representative affirmed in part the 

denial of the claim for compensation for the period October 6 through December 11, 2015. He

found that the evidence established entitlement to compensation for November 16 and 17, 2015 as 

the evidence established that appellant’s request for telework was denied. The hearing 

representative found Dr. Wohler’s opinion unpersuasive regarding disability as he accepted, 

without objective evidence, her statement regarding her disability for the periods in question. 

On August 15, 2018 OWCP paid appellant four hours of compensation for a medical 

appointment on November 18, 2015 and two days of wage-loss compensation for November 16 

and 17, 2015. 

On November 19, 2018 appellant requested reconsideration and submitted additional 

evidence in support of her claim. The evidence included e-mail correspondence dated 

November 1, 2015, from her supervisor showing approval for 40 hours of FMLA annual during 

pay period 21, an October 16, 2015 e-mail from her supervisor denying her request for advanced 

sick leave, and time and attendance sheets for October 18 to 31 and November 1 to 14, 2015. 

By decision dated December 6, 2018, OWCP denied modification finding the medical 

evidence insufficient to establish disability for the claimed period. 

 

5 Appellant also submitted a denial of her telework request by her supervisor for this period. 
5

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 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 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.8 Findings on 

examination are generally needed to support a physician’s opinion that an employee is disabled 

from work.9 When the physician’s statements regarding an employee’s ability to work consist 

only of repetition of the employee’s complaints that he or she was unable to work, without 

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

supported by medical rationale, on the issue of disability or a basis for payment of compensation.10

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. 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.11

ANALYSIS

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

disability for the period October 6 through December 11, 2015, causally related to her accepted 

August 6, 2015 employment injury.

In support of her claim for disability, appellant submitted reports from Dr. McConnell and

Dr. Wohler. Beginning with his October 1, 2015 physician’s certificate, Dr. McConnell related 

that she was restricted to telework as she could not drive or commute using public transportation. 

He found that appellant was capable of working provided telework was available in a Form CA17 dated October 29, 2015 and in an October 29, 2015 FMLA form. On November 18, 2015

Dr. McConnell noted that she could return to regular work. The employing establishment had 

confirmed by letter dated January 13, 2017 that telework was available from September 22 until 

December 11, 2015, and the record reflects that appellant did perform telework during the period 

in question. The Board has held that medical evidence must directly address the specific dates of 

 

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

7

Id.

8 20 C.F.R. § 10.5(f); B.O., supra note 6; N.M., Docket No. 18-0939 (issued December 6, 2018).

9 B.R., Docket No. 18-0339 (issued January 24, 2019).

10 Id.

11 Id.
6

disability claimed and must provide a medical opinion substantiating disability from work.

12

 

Therefore, since Dr. McConnell’s only work restriction was telework and as telework was 

available within appellant’s restrictions during the time period in question, the Board finds that his

reports do not substantiate that she was disabled from work, on the intermittent dates alleged.13 

As such his reports are insufficient to establish her claim for intermittent periods of disability.

Dr. Wohler reported that appellant had been under his care since March 8, 2016. Based on 

his review of her time and attendance records during the period in question, he determined that she

had flare-ups and resulting disability due to her accepted right wrist sprain and left rotator cuff 

sprain on the dates claimed by appellant. Dr. Wohler explained that the flare-ups included neck 

and left shoulder to left bicep to elbow pain, loss of use and/or strength in the left shoulder/arm, 

additional swelling, limited ROM, and sleep disturbance due to left rotator cuff strain. The Board 

finds that he failed to address why appellant could not perform her telework duties during the 

alleged dates of disability, due to objective medical findings rather than mere recitation of her

complaints.

14

 Without medical rationale explaining why she was disabled on each specific date 

alleged, Dr. Wohler’s report is insufficient to meet her burden of proof.15 His report, is insufficient 

to establish that appellant was disabled from work during the claimed period due to her accepted 

conditions.16

The record also contains reports dated August 15 and November 29, 2017 from

Dr. DiLallo, an OWCP referral physician, opining that appellant was capable of teleworking

during the period in question. As telework was available during the dates of disability alleged, his 

reports support a finding that she was not disabled from work during the dates alleged.17 

The Board also notes that OWCP’s procedures provide that wages lost for compensable 

medical examination or treatment may be reimbursed.18 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. For a routine medical appointment, a maximum of four 

hours may be allowed.19 The record reflects that OWCP has paid wage loss for some medical 

appointments. While appellant has also alleged two hours of lost wages on October 16, 2015 for 

 

12 G.J., Docket No. 18-1335 (issued March 22, 2019); K.A., Docket No. 16-0592 (issued October 26, 

2016); C.S., Docket No. 08-2218 (issued August 7, 2009); Sandra D. Pruitt, 57 ECAB 126 (2005).

13 See J.P., Docket No. 18-1396 (issued January 23, 2020). 

14 Supra note 9. 

15 K.D., Docket No. 19-0628 (issued November 5, 2019); A.T., Docket No. 19-0410 (issued August 13, 2019).

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

17 Supra note 11.

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

2.901.19 (February 2013); V.H., Docket No. 19-0807 (issued December 3, 2019).

19 Id.
7

a medical appointment, the record does not reflect that she obtained medical care on October 16, 

2015 for her accepted employment injury.

On appeal appellant asserts that the evidence of record establishes her claim for intermittent 

disability. Contrary to her assertion, she has failed to submit any rationalized medical opinion

evidence establishing disability causally related to the accepted August 6, 2015 employment 

injury. As such, 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 intermittent 

disability for the period October 6 through December 11, 2015, causally related to her accepted 

August 6, 2015 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the December 6, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 17, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board