United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.R., Appellant

and

U.S. POSTAL SERVICE, ALTOONA MAIN 

POST OFFICE, Altoona, PA, Employer

__________________________________________

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Docket No. 20-0681

Issued: January 12, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 7, 2020 appellant, through counsel, filed a timely appeal from an October 28, 

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 October 28, 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 for the period December 8 through 21, 2018.

FACTUAL HISTORY

On November 3, 2016 appellant, then a 49-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that she developed a tendon tear of the right rotator cuff and 

bicep tendon damage due to the repetitive duties of her federal employment. She did not initially 

stop work. OWCP accepted appellant’s claim for complete rotator cuff tear or rupture of the right 

shoulder. It later expanded the acceptance of her claim to include sprain of the right rotator cuff 

capsule, right shoulder impingement syndrome, injury to the muscles/tendons of the rotator cuff 

of the right shoulder, and right shoulder bicipital tendinitis.4 OWCP paid appellant wage-loss 

compensation on the supplemental rolls as of March 13, 2017 for intermittent disability.

In a work capacity evaluation (Form OWCP-5c) dated March 20, 2018, Dr. Jonathan 

VanKluenen, a Board-certified orthopedic surgeon, recommended work restrictions of reaching, 

reaching above the shoulder, operating a motor vehicle, pushing, pulling, and lifting no more than 

four hours per day. He noted that appellant may deliver mail for up to four hours per day and lift 

no more than 5 pounds overhead or 30 pounds to the chest. Dr. VanKluenen checked a box 

indicating that appellant was able to work up to eight hours per workday with physical restrictions.

On March 21, 2018 appellant accepted a full-time limited-duty modified assignment as a 

rural carrier with office duties with restrictions of no more than three hours casing mail, up to four 

hours delivering mail, and no more than three hours working with Express Mail within her weight 

range. The physical requirements of the modified assignment included two to four hours per day

standing, four to six hours driving, up to four hours of reaching, and lifting within weight 

restrictions. Appellant’s work hours were listed as 7:30 a.m. to 4:00 p.m.

In a functional capacity evaluation dated March 29, 2018, Craig Rolla, physical therapist, 

found that appellant was capable of exerting 2 to 50 pounds of force occasionally, 10 to 25 pounds 

of force frequently, and up to 10 pounds of force constantly to move objects, corresponding to a 

medium level of work. He found that appellant was capable of sustaining a medium level of work 

for an 8-hour day at 40 hours per week. Mr. Rolla noted that appellant exhibited self-limiting in 

excess of normal limits and inconsistent behavior.

In a Form OWCP-5c dated April 3, 2018, Dr. VanKleunen recommended work restrictions 

of pushing no more than three hours per day of up to 35 pounds; pulling no more than three hours 

per day of up to 40 pounds; and lifting no more than three hours per day of up to 50 pounds. He 

checked a box indicating that appellant was able to work eight hours per workday with physical 

restrictions.

 

4 On December 30, 2016 appellant underwent OWCP-approved right shoulder surgical arthroscopy, rotator cuff 

repair, subacromial decompression with bony acromioplasty, and biceps tenotomy. On June 26, 2017 she underwent 

OWCP-approved revision of rotator cuff repair and surgical arthroscopy of the right shoulder. 
3

In a memorandum of file dated June 7, 2018, OWCP noted that appellant had been working 

full-time with permanent restrictions for over 60 days without wage loss. In an e-mail dated 

October 15, 2018, an employing establishment representative confirmed that appellant had been 

working the offered full-time limited duty rural carrier position.

5

On December 24, 2018 appellant submitted a claim for wage-loss compensation (Form 

CA-7) for intermittent disability from work for the period December 8 through 21, 2018. In an 

attached time analysis form (Form CA-7a), she claimed wage-loss compensation for19 hours of

leave without pay. 

In a development letter dated February 28, 2019, OWCP requested that appellant submit 

medical evidence establishing her inability to work from December 8 through 21, 2018. It afforded 

her 30 days to submit the requested evidence.

By decision dated April 2, 2019, OWCP denied appellant’s claim for compensation for 

wage loss due to intermittent disability for the period December 8 through 21, 2018. It found that 

she had not submitted medical evidence relevant to the claimed period of disability.

On April 8, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

August 13, 2019. During the hearing, appellant advised that she worked partial days during the 

claimed period, but left work for the claimed hours because there was no work available within 

her restrictions. The hearing representative held the case record open for submission of additional 

evidence for 30 days. No additional evidence was received.

By decision dated October 28, 2019, OWCP’s hearing representative affirmed the decision 

of April 2, 2019.

LEGAL PRECEDENT

An employee seeking benefits under FECA6 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.7 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.8 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.9

 

5 On October 23, 2018 OWCP granted appellant a schedule award for eight percent permanent impairment of her 

right upper extremity. The period of the award ran for 24.96 weeks from July 27, 2018 through January 17, 2019. 

6 See supra note 2.

7 D.P., Docket No. 18-1439 (issued April 30, 2020); Amelia S. Jefferson, 57 ECAB 183 (2005).

8

Id.; Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

9 20 C.F.R. § 10.5(f); J.M., Docket No. 18-0763 (issued April 29, 2020).
4

Under FECA, the term disability means an incapacity because of an employment injury, to 

earn the wages the employee was receiving at the time of the injury.10 When, however, the medical 

evidence establishes that the residuals or sequelae of an employment injury are such that, from a 

medical standpoint, prevent the employee from continuing in his or her employment, he or she is 

entitled to compensation for any loss of wages.11

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.12 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 reliable, probative and 

substantial medical opinion evidence.13

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.14

ANALYSIS

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

disability from work for the period from December 8, through 21, 2018.

Appellant claimed compensation for intermittent disability for the period December 8, 

through 21, 2018. However, she did not submit medical evidence in support of the period of 

disability.15 Appellant explained that she worked during the claimed period, but left work for the 

claimed hours because there was no work available within her restrictions. 

In OWCP-5c forms dated March 20 and April 3, 2018, Dr. VanKluenen recommended 

work restrictions. He checked a box indicating that appellant was able to work up to eight hours 

per workday with physical restrictions. As these form reports do not address the period of claimed 

disability, they lack probative value and are therefore insufficient to establish appellant’s burden 

of proof.16 The Board will not require OWCP to pay compensation for disability in the absence 

 

10 Id. at § 10.5(f); see J.T., Docket No. 19-1813 (issued April 14, 2020); Cheryl L. Decavitch, 50 ECAB 397 (1999).

11 J.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

12 See C.E., Docket No. 19-1617 (issued June 3, 2020).

13 20 C.F.R. § 10.5(f); see W.C., Docket No. 19-1740 (issued June 4, 2020); Fereidoon Kharabi, 52 ECAB 

291 (2001).

14 J.K., Docket No. 19-0488 (issued June 5, 2020); Sandra D. Pruitt, 57 ECAB 126 (2005).

15 Supra note 10. 

16 M.A., Docket No. 19-1119 (issued November 25, 2019); S.I., Docket No. 18-1582 (issued June 20, 2019).
5

of medical evidence directly addressing the specific dates of disability for which compensation is 

claimed.17

Appellant also submitted a functional capacity evaluation dated March 29, 2018 from a

Mr. Rolla, a physical therapist. However, certain healthcare providers such as physician assistants, 

nurse practitioners, physical therapists, and social workers are not considered “physician[s]” as 

defined under FECA.18 Consequently, these reports do not constitute competent medical evidence.

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 from work for the period December 8 through 21, 2018.

 

17 Supra note 15.

18 Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal 

Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals 

such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under 

FECA); R.L., Docket No. 19-0440 (issued July 8, 2019) (physical therapists are not considered physicians under 

FECA).
6

ORDER

IT IS HEREBY ORDERED THAT the October 28, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 12, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board