United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.F., Appellant

and

U.S. POSTAL SERVICE, KENNESAW MAIN 

POST OFFICE, Kennesaw, GA, Employer

__________________________________________

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Docket No. 19-1095

Issued: March 8, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 19, 2019 appellant, through counsel, filed a timely appeal from a March 22, 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 March 22, 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 intermittent 

disability from work during the period February 21 through May 14, 2018 causally related to her

accepted September 29, 2017 employment injury. 

FACTUAL HISTORY

On September 29, 2017 appellant, then a 48-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she injured her neck and upper back in a motor 

vehicle accident (MVA) while in the performance of duty. She stopped work on September 30,

2017 and returned to work on October 3, 2017. OWCP accepted the claim for sprains of the 

ligaments of the cervical and thoracic areas of the spine. 

On March 20, 2018 appellant filed a claim for wage-loss compensation (Form CA-7) for 

leave without pay (LWOP) for intermittent dates of disability during the period January 6 to 

March 2, 2018. An attached time analysis form (Form CA-7a) dated March 20, 2018 indicated 

that she was claiming a total of 48 hours of lost time from work during this period. Appellant 

stopped work completely on February 21, 2018. 

OWCP received a Form CA-7 on March 21, 2018 wherein appellant claimed LWOP for 

disability for the period March 3 through 16, 2018. 

In a development letter dated March 27, 2018, OWCP requested that appellant provide 

additional medical information supporting that she was disabled for the periods claimed on the 

CA-7 forms.

On April 3, 2018 appellant filed a Form CA-7 requesting LWOP for disability from 

March 17 through 30, 2018. In an attached Form CA-7a, she claimed that she used 80 hours of 

LWOP during the aforementioned period. In a development letter dated April 10, 2018, OWCP 

requested additional medical evidence supporting disability during the claimed period. 

Thereafter, OWCP received a February 26, 2018 report from Dr. Ryan Rosen, a Boardcertified physiatrist. Dr. Rosen noted that appellant had undergone a radiofrequency ablation at 

L3-S1 earlier that month, but that performing repetitive activities at work had increased her 

symptoms. He diagnosed bilateral carpal tunnel syndrome, cervical and lumbar dorsopathies, 

lumbar and cervical facet syndrome, and paresthesia of the hands. Dr. Rosen advised that appellant 

should remain off work for two weeks due to severe pain. He indicated that she might need surgery 

for carpal tunnel syndrome and performed a steroid injection to the right lumbar paraspinal region. 

In a duty status report (Form CA-17) of the same date, Dr. Rosen diagnosed facet syndrome and 

carpal tunnel syndrome and opined that appellant was totally disabled from work. 

In a progress report dated March 12, 2018, Dr. Rosen discussed appellant’s complaints of 

increased pain in the right lower back, buttock, and groin. He diagnosed right hip pain, other 

spondylosis of the sacral and sacrococcygeal region, right sacroiliac (SI) joint dysfunction, hand 
3

paresthesia, and carpal tunnel syndrome.4 In a work status report and Form CA-17 of the same 

date, Dr. Rosen found appellant unable to work. 

On March 14, 2018 Dr. Phillip R. Langer, a Board-certified orthopedist, evaluated 

appellant for “right hip pain following an [MVA] on September 29, 2017.” He diagnosed 

trochanteric bursitis, a lesion of the sciatic nerve, a right hip contusion, piriformis syndrome, and 

iliotibial band syndrome. 

On March 15, 2018 Dr. Rosen performed a sacroiliac joint injection. 

Dr. Jeffrey Y. Lee, an osteopath, treated appellant on April 2, 2018 for back pain and 

identified the date of injury as September 29, 2017. On examination he found tenderness in the 

right gluteal area with palpation. Dr. Lee diagnosed right hip pain, bilateral carpal tunnel 

syndrome, myalgia, other spondylosis, sacral and sacrococcygeal region, right SI joint 

dysfunction, lumbar facet syndrome, and paresthesias of the hand. He determined that appellant 

should remain off work until her next appointment. In a work status form of the same date, Dr. Lee 

found that she was disabled from employment. 

On April 3, 2018 Dr. Daren Newfield, a Board-certified orthopedic surgeon, evaluated 

appellant for pain in her forearms, bilaterally, and numbness of both hands. He discussed her 

history of an MVA on September 29, 2017 and resulting treatment with injections and ablation of 

the cervical spine. On examination Dr. Newfield found a positive Tinel’s sign on the right and a 

positive compression test bilaterally. He diagnosed bilateral carpal and cubital tunnel syndrome. 

Dr. Newfield asserted that it was “unlikely that one accident caused all of [appellant’s] extremity 

symptoms and we do not have a single source for her issues.” He recommended a right carpal 

tunnel release.

In a development letter dated April 10, 2018, OWCP advised appellant that the evidence 

submitted was insufficient to support that she was disabled. It requested that she submit a report 

from her attending physician supported by objective findings, explaining why she was unable to 

work beginning February 21, 2018. OWCP afforded appellant 30 days to respond.

In a progress report dated April 16, 2018, Dr. Lee discussed appellant’s complaints of neck, 

back, right hip, and groin pain. He diagnosed cervicalgia, lumbar and cervical dorsopathies, low 

back pain, myalgia, sacral and sacrococcygeal spondylosis, cervical and lumbar facet syndrome, 

lumbago, lumbar degenerative disc disease, and right S1 dysfunction. In a work status form of the 

same date, Dr. Lee found that appellant could not work pending reevaluation. 

On April 18, 2018 appellant filed a Form CA-7 for disability for the period March 31 

through April 13, 2018. An accompanying Form CA-7a indicated that she was claiming that she 

used 80 hours of LWOP during that period. On April 27, 2018 appellant filed a Form CA-7 for 

LWOP for disability from April 14 through 27, 2018. An accompanying Form CA-7a indicated 

that she was claiming that she used 80 hours of LWOP during that period. On May 11, 2018 

 

4 A magnetic resonance imaging scan of the right hip obtained on March 13, 2018 revealed no abnormalities. 
4

appellant filed a Form CA-7 for LWOP for disability from April 28 through May 14, 2018. An 

accompanying Form CA-7a indicated that she was claiming 80 hours of LWOP. 

By decision dated May 15, 2018, OWCP determined that the evidence of record established 

that appellant was disabled from work for the period January 9 to 17, 2018. It, however, denied 

her claims for disability from work during the period February 21 to May 14, 2018. OWCP found, 

however, that appellant had not submitted sufficient medical evidence to establish that she was 

totally disabled from work beginning February 21, 2018 causally related to her September 29, 

2017 employment injury. 

Subsequently, OWCP received an April 19, 2018 operative report from Dr. Newfield, who 

performed a right carpal tunnel release on that date.5 In a progress report dated May 1, 2018,

Dr. Newfield diagnosed a contusion of the hip, trochanteric bursitis, a lesion of the sciatic nerve, 

and a status post right carpal tunnel release two weeks earlier. In a work status form of the same 

date, he provided restrictions for the right wrist. 

In a progress report dated May 9, 2018, Dr. Lee advised that appellant’s “chief complaint 

continues to be back pain across the low back with a radiating sharp, achy pain in the posterior 

right leg.” He noted that she also had some pain in her neck. Dr. Lee diagnosed other lumbar 

intervertebral disc displacement, myalgia, cervicalgia, dorsopathies of the cervical and lumbar 

region, low back pain, spondylosis, lumbar radiculopathy, cervical and lumbar facet syndrome, 

lumbago, lumbar herniated nucleus pulposus, and sacroiliac dysfunction. He provided work 

restrictions and completed a work status form of the same date. 

On May 14, 2018 appellant returned to modified employment. 

On May 22, 2018 appellant, through counsel, requested a telephonic oral hearing before an 

OWCP hearing representative. 

Dr. Mark A. Flood, an osteopath, evaluated appellant on July 18, 2018 for neck and back 

pain after a motor vehicle collision on September 29, 2017. He diagnosed intervertebral disc 

displacement of the lumbar region, cervical disc displacement, herniated disc at C6-7, cervical 

spondylosis at C5-6 and C6-7, left C6 and C7 radiculopathies, disc bulge at L4-5, lumbar 

spondylosis at L4-5 and L5-S1 bilaterally, and right lower extremity pain and paresthesias. 

Dr. Flood recommended a total disc replacement at C5-6 and C6-7.

On August 30, 2018 OWCP expanded the acceptance of appellant’s claim to include 

cervical and lumbar disc herniations and cervical and lumbar radiculopathy. In a telephone call 

dated September 13, 2018, an OWCP nurse advised that appellant had been off work due to neck 

surgery beginning August 29, 2018.6 

During the telephonic hearing held on October 15, 2018 appellant testified that she missed 

work intermittently beginning in January 2019 and stopped work completely from February 21 to 

 

5 On March 15 and April 26, 2018 Dr. Rosen performed sacroiliac injections and diagnosed SI joint dysfunction. 

6 OWCP paid her wage-loss compensation for total disability from work beginning August 29, 2018.
5

May 14, 2018. During that period, she underwent carpal tunnel surgery. Appellant asserted that 

her physician had taken her off work because of neck pain.

By decision dated December 21, 2018, an OWCP hearing representative affirmed the 

May 15, 2018 decision. She found that appellant had not submitted sufficient medical evidence to 

establish that appellant was “totally disabled from work beginning February 21, 2018” causally 

related to her September 29, 2017 employment injury. 

On February 11, 2019 appellant, through counsel, requested reconsideration.

By decision dated March 22, 2019, OWCP denied modification of the December 21, 2018 

decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA7has the burden of proof to establish the 

essential elements of his or her claim.8 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.9 

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.10 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.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 this case is not in posture for decision.

Appellant filed claims for wage-loss compensation for intermittent disability from 

January 6 through March 2, 2018. OWCP found that she was entitled to compensation from 

January 9 to 17, 2018, but denied her claim for compensation from February 21 through 

 

7 Supra note 2.

8 See L.S., Docket No. 18-0264 (issued January 28, 2020); B.O., Docket No. 19-0392 (issued July 12, 2019).

9 20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).

10 T.W., Docket No. 19-1286 (issued January 13, 2020).

11 S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

12 See M.J., Docket No. 19-1287 (issued January 13, 2020); William A. Archer, 55 ECAB 674 (2004).
6

May 14, 2018. It, however, did not address the remaining dates claimed by appellant from 

January 6 through 9, and January 17 through February 21, 2018. 

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 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

As OWCP did not determine whether appellant was entitled to wage-loss compensation for 

all the claimed dates, the Board will set aside the March 22, 2019 decision.16 On remand it shall 

make findings of fact and provide a statement of reasons regarding whether she is entitled to any 

intermittent wage-loss compensation for the claimed period. Following this and other such further 

development as deemed necessary, it shall issue a de novo decision.

CONCLUSION

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

 

13 5 U.S.C. § 8124(a).

14 20 C.F.R. § 10.126. E.P., Docket No. 20-0026 (issued August 21, 2020).

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

16 E.P., supra note 14.
7

ORDER

IT IS HEREBY ORDERED THAT the March 22, 2019 decision of the Office of 

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

consistent with this opinion of the Board.

Issued: March 8, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board