United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.T., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

HUNTER HOLMES MCGUIRE VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Richmond, VA, Employer

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Docket No. 18-0979

Issued: February 4, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 13, 2018 appellant filed a timely appeal from November 9 and 14, 2017 and 

March 28, 2018 merit decisions 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 March 28, 2018 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 total disability

commencing June 28, 2016 causally related to her accepted employment injury.

FACTUAL HISTORY

On January 20, 2010 appellant, then a 51-year-old laundry worker, filed an occupational 

disease claim (Form CA-2) alleging that she developed bilateral upper extremity symptoms while 

in the performance of duty. She explained that she transported heavy carts throughout the entire 

hospital several times a day. OWCP accepted the claim for bilateral carpal tunnel syndrome. 

Appellant underwent an OWCP-authorized right carpal tunnel release on September 9, 2013 and 

left carpal tunnel release on October 7, 2013. She returned to work for approximately three weeks

in November 2013. OWCP paid compensation for temporary total disability as of 

December 11, 2013. 

In May 2014, Dr. Jawad Bhatti, a Board-certified physiatrist, started prescribing 

medication for appellant’s chronic pain. He continued palliative opioid therapy to allow appellant 

to continue to carry out daily activities without interruption.

In March 2016, OWCP referred appellant to Dr. James Schwartz, a Board-certified 

orthopedic surgeon, for a second opinion examination to determine, in part, whether she was 

capable of returning to work. 

In a March 19, 2016 report, Dr. Schwartz diagnosed bilateral carpal tunnel syndrome (CTS) 

and marked nonphysiologic pain behavior that was not complex regional pain syndrome (CRPS)

Type 2. He indicated that the physical examination was “too bizarre” to relate to CTS or CRPS as 

the findings and complaints on examination were not physiologically possible. Dr. Schwartz 

opined that appellant’s nonphysiologic pain behavior was not connected to any type of injury or 

aggravation of a preexisting condition. He indicated that subjectively appellant could not perform 

her regular duties. However, appellant could perform sedentary duty with limited lifting not to 

exceed 10 pounds. Dr. Schwartz also completed a work capacity evaluation form (OWCP-5c). 

Based upon Dr. Schwartz’s restrictions, on June 7, 2016 the employing establishment 

offered appellant a temporary full-time assignment performing secretarial-type duties. The 

assignment was sedentary in nature. The physical demands of the position included minor lifting 

no more than 10 pounds, intermittent/limited repetitive gripping hand motion with breaks, 

standing, and walking. Appellant accepted the temporary-duty assignment on June 14, 2016. 

In a June 17, 2016 attending physician’s report (Form CA-20), Dr. Bhatti noted that 

appellant had permanent bilateral nerve damage. He reported that she had accepted temporary 

duties and that she could return to work in the offered temporary secretarial position. Dr. Bhatti 

also indicated that appellant had CRPS Type 2 which he opined was caused by her occupational 

injury. 

Appellant reported to the temporary modified position on June 27, 2016. She stopped work 

the next day. 
3

In June 28 and July 22, 2016 attending physician’s reports (Form CA-20), Dr. Bhatti 

diagnosed CRPS Type 2 and opined that appellant was incapacitated. 

In an August 10, 2016 letter, OWCP advised appellant that the June 7, 2016 job offer was 

medically suitable in accordance with the medical limitations provided by Dr. Schwartz and that 

the position remained open and available. It advised her of the provisions under 5 U.S.C. 

§ 8106(c)(2) regarding abandonment of suitable employment. OWCP also advised appellant that,

if she stopped work because of a worsening in her injury-related condition, then additional factual 

and medical evidence was needed to establish a recurrence of disability. It afforded appellant 30 

days to submit the additional information. 

On August 17, 2016 appellant filed a Form CA-7 claiming disability compensation for the 

period June 14 to August 12, 2016. 

In an August 18, 2016 letter, appellant indicated that she had seen Dr. Bhatti once a month 

since March 9, 2014 and that she had been taking oxycodone twice a day since that time. She 

noted that her carpal tunnel releases did not improve her condition and that her hands were the 

same as they had been before the surgery. Appellant asserted that she did not abandon her job. 

She indicated that, when she saw Dr. Bhatti on June 28, 2016, he advised her to apply for medical 

disability due to bilateral nerve damage, which she did on July 13, 2016. 

On August 19, 2016 OWCP received Dr. Bhatti’s June 28, 2016 progress report. Dr. Bhatti 

diagnosed carpal tunnel syndrome, median neuropathy, and reflex sympathetic dystrophy of the 

upper limb. He continued to prescribe oxycodone. In his June 28, 2016 report, Dr. Bhatti noted 

that appellant came to his office due to worsening pain in her wrists and arms after she went back 

to work on June 27, 2016. He noted that appellant was unable to fully work because of her 

medications. Dr. Bhatti opined that appellant was unable to work due to severe pain in all her 

joints and chronic pain in her wrists and arms which caused chronic fatigue, decreased motion, 

swelling, muscle spasms, sweating and numbness. July 22 and August 22, 2016 progress reports 

and CA-20 attending physician’s reports were also received from Dr. Bhatti, with the CA-20 

reports noting a diagnosis of CRPS Type 2 and that appellant was incapacitated. 

In an August 22, 2016 letter, OWCP advised appellant that the temporary light-duty 

assignment appropriately accommodated her current work restrictions as provided by

Dr. Schwartz. It notified her that under the provisions of 20 C.F.R. § 10.500(a) she would not be 

entitled to compensation for total wage loss for the duration of the temporary light-duty assignment

if she failed to report for work deemed appropriate by OWCP. OWCP afforded appellant an 

additional 30 days to either accept the assignment and report to duty or submit evidence that the 

assignment was no longer available or no longer accommodated her medical work restrictions as 

provided by Dr. Schwartz.

OWCP thereafter received a July 13, 2016 statement in which B.R., appellant’s supervisor, 

noted that a light-duty work order/administrative function was developed for appellant and 

required her to answer work order calls and radio supervisors. B.R. indicated that appellant worked 

one day, but got very sleepy and unbalanced due to her medication. She indicated that they could 

not reasonably accommodate appellant due to the effect of her medications and inability to stay 

alert.
4

In an August 23, 2016 letter, the employing establishment noted that the physical demands 

of the limited-duty assignment did not require appellant to perform any activities outside of the 

restrictions set by Dr. Schwartz. Specifically, the assignment did not involve pushing or pulling.

By decision dated September 28, 2016, OWCP denied entitlement to compensation from 

June 28 through August 12, 2016. It found that the medical evidence of record was insufficient to 

support that appellant was disabled from the limited-duty position as a result of her accepted workrelated medical condition.

3

In an October 4, 2016 telephone message, the employing establishment confirmed that the 

job offer was temporary. 

On October 8, 2016 appellant requested an oral hearing before an OWCP hearing 

representative. A telephonic hearing was held on May 16, 2017. Appellant testified that she had 

returned to work on June 27, 2016, but because of her medication for her carpal tunnel syndrome, 

her supervisor had allowed her to go to the employee health unit. She indicated that she was 

addicted to oxycodone and should not have been allowed to return to work. Appellant confirmed 

that, while a coworker had attempted to train her to perform secretarial work, she kept nodding off 

because of her medication. She noted that she took oxycodone twice a day to help her pain, but it 

made her fall asleep. Appellant also testified that she could not perform the limited-duty position 

because she had tried the job for over an hour and a half and her hands were in pain and she had a 

lot of tingling. She indicated that she had bilateral nerve damage in both hands. 

In May 29 and June 9, 2017 statements, appellant corrected the hearing transcript and 

expanded on her testimony. She clarified that on June 28, 2016 Dr. Bhatti had cancelled her return 

to the light-duty work assignment due to her incapability to use her hands, her lack of 

concentration, focus/alertness, and the heavy sedation due to her medication. Appellant noted that 

she had remained for the full eight-hour shift on June 27, 2016. The shift started with training of 

the assigned duties, which included answering telephones, documentation filing, and putting paper 

files in numerical order for about an hour and a half. Appellant indicated that during this period, 

her head was nodding and she was unable to concentrate/focus and that she could not retain the 

training information. She noted that she told the trainer and the supervisor, B.R., that the 

medication made her sleepy and that B.R. had her go to the employee health unit. Appellant also 

indicated that her hands tingled and hurt even though she had taken her morning dose. She noted 

that she had difficulty trying to do the assigned work and that her doctor determined that she was 

unable to perform the limited-duty job. 

On June 30, 2017 OWCP received Dr. Bhatti’s June 26, 2016 prescription note. Dr. Bhatti 

diagnosed bilateral carpal tunnel syndrome and indicated that appellant was unable to lift anything 

over two pounds. He further advised that she was also not able to sit, stand, and walk longer than 

five minutes due to her severe back pain. Appellant was also limited from extreme movement. 

Medical reports and CA-20 forms from Dr. Bhatti dated September 23, October 21, 

November 21, December 16, 2016 and January 20, February 21, March 21, April 21, May 23, 

June 23 and July 20, 2017 were received. Dr. Bhatti continued to prescribe pain medication. In 

 

3 OWCP authorized payment for June 14 through 26, 2016. 
5

his October 21 and December 16, 2016 and January 20, February 21, March 21 and May 23, 2017 

CA-20 forms, Dr. Bhatt diagnosed CRPS Type 2 which he opined was caused or aggravated by 

appellant’s work duties, which caused bilateral nerve damage to the carpal tunnel. In his April 21, 

June 23 and July 20, 2017 CA-20 forms, Dr. Bhatti diagnosed CRPS Type 2 which he opined, with 

a checkmark “yes” was caused or aggravated by the employment activity. 

By decision dated July 27, 2017, an OWCP hearing representative affirmed OWCP’s 

September 28, 2016 decision. 

OWCP received additional CA-7 forms from appellant claiming disability compensation 

from August 15, 2016 and continuing. 

On August 9, 2017 appellant requested reconsideration. 

In an August 8, 2017 report, Dr. Bhatti indicated that appellant, a patient since March 2014 

secondary to a work-related injury of both her hands, was being treated for severe median 

neuropathy. He diagnosed bilateral CTS, opioid dependence, bilateral CRPS of upper limbs, and 

other lesions of median nerve, right and left upper limb. Dr. Bhatti indicated that appellant still 

suffered from severe pain even after the surgery, noting that a nerve conduction study showed 

severe neuropathy in bilateral median nerve in both wrists after surgery. He opined that appellant 

was unable to return to work because the narcotic medication affected her cognitive functions. 

Dr. Bhatti noted that on July 27, 2016 appellant was only able to complete two hours of sedentary 

work with restrictions and experienced drowsiness from medication, lack of focus and alertness, 

and severe pain in both wrists and arms. He indicated that because of appellant’s CTS, she was 

unable to perform the repetitive hand and wrist motions of the modified position involving use of 

telephone, e-mail and house data base, retrieve work orders from printer, use of hand held radio, 

proof read data and information, and sustain work order spread/reports. Based on physical 

examination history, the findings of nerve conduction studies, and appellant’s use of narcotic 

medications, Dr. Bhatti opined that appellant was unable to return to work. 

CA-20 forms from Dr. Bhatti dated August 23, September 22, 28 and October 23, 2017 

were received. He continued to prescribe pain medication. In his CA-20 reports, Dr. Bhatti 

diagnosed CRPS Type 2 and opined that appellant was incapacitated.

In a September 7, 2017 report, Dr. Bhatti related that appellant’s bilateral surgical release 

did not resolve her symptoms and that July 7, 2015 electromyogram (EMG) study and an 

October 21, 2016 nerve conduction study showed severe neuropathy in bilateral median nerve in 

both wrists and arms after surgery. He noted that he had upgraded appellant’s diagnosis to CRPS 

I of bilateral upper limb as she experienced constant, excessive severe pain with little or no stimuli. 

This diagnosis was confirmed in the above mentioned studies as well as blood tests and Sudomotor 

Axon Reflex Test. Dr. Bhatti concluded that appellant was unable to perform sedentary tasks due 

in part to her inability to use her hands and the side effects from medication which affected her 

cognitive functions. He noted that appellant’s disability also limited her ability to perform major 

life activities, perform manual tasks and hindered her concentration and thinking proficiencies. 

Dr. Bhatti opined that appellant was totally disabled, that she had met maximum medical 

improvement and that her prognosis was poor. 
6

By decision dated November 9, 2017, OWCP denied modification of its July 27, 2017 

decision. It found that appellant failed to establish disability compensation for the claimed period 

as Dr. Bhatti had failed to provide medical rationale, supported by objective findings, as to how 

appellant’s accepted conditions prevented her from working the light-/limited-duty job offer and 

how she was totally disabled from work. 

By decision dated November 14, 2017, OWCP denied appellant’s claim for disability 

compensation for the period August 15, 2016 and continuing. It found that Dr. Bhatti failed to 

provide medical rationale, supported by objective findings, establishing that appellant’s accepted

condition prevented her from working the light-/limited-duty job offer. 

OWCP received additional Form CA-7 claims for compensation for the period 

November 22, 2017 onwards. 

Additional CA-20 forms from Dr. Bhatti dated November 21 and December 21, 2017, 

January 22, February 22, and March 22, 2018, and prescription forms were received. 

On March 1, 2018 appellant requested reconsideration.

In a February 15, 2018 letter, Dr. Bhatti advised that the intent of his letter was to 

substantiate that appellant’s disability was caused by the work-related injury. He noted that 

appellant’s bilateral surgical release did not resolve her symptoms and that she was diagnosed with

possible CRPS Type 2 secondary to carpal tunnel surgery. Dr. Bhatti noted that July 7, 2015 EMG 

and October 21, 2016 nerve conduction studies showed severe neuropathy in bilateral median 

nerve in both wrists and arms, even after surgery, and that her diagnosis was upgraded to CRPS 

Type 1 bilateral of the upper limbs. Dr. Bhatti noted that the above diagnostic tests as well as 

blood tests and Sudomotor Axon Reflex Tests confirmed the diagnosis. He also noted that 

appellant had objective positive findings for pain on palpation, a withdrawal response and 

abnormal nerve conduction testing, which revealed severe C8 nerve injury. Dr. Bhatti indicated 

the criteria to determine CRPS was based on appellant’s history, physical examination, and 

conduction blocks. He opined that appellant was totally disabled and unable to perform sedentary 

tasks due in part to her inability to use her hands, as well as the side effects from medication, which 

affected her cognitive functions. Furthermore, appellant’s disability limited her ability to perform 

major life activities, perform manual tasks, and hindered her concentration and thinking 

proficiencies. 

By decision dated March 28, 2018, OWCP denied modification. It found that Dr. Bhatti 

failed to provide medical rationale, supported by objective findings, of how appellant’s condition 

prevented her from working the light-/limited-duty job offer.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim, including that any disability or specific condition for which 

 

4 See supra note 1.
7

compensation is claimed is causally related to the employment injury.5 The term disability is 

defined as the incapacity because of an employment injury to earn the wages the employee was 

receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning 

capacity.6

When an employee, who is disabled from the job he or she held when injured on account 

of employment-related residuals, returns to a light-duty position or the medical evidence of record 

establishes that he or she can perform the light-duty position, the employee has the burden to 

establish by the weight of the reliable, probative, and substantial evidence a recurrence of total 

disability and show an inability to perform such light duty. As part of this burden, the employee 

must show a change in the nature and extent of the injury-related condition or a change in the 

nature and extent of the light-duty requirements.7

ANALYSIS

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

The record supports that appellant was prescribed oxycodone and that the medication had 

side effects. Dr. Bhatti has reported that the oxycodone was prescribed for appellant’s bilateral 

carpal tunnel syndrome, which developed into chronic regional pain syndrome. If the accepted 

conditions of bilateral CTS necessitated the use of such medication, appellant would be entitled to 

compensation for the period that the use of that medication was needed and caused disability. 

OWCP’s second opinion physician, Dr. Schwartz had however diagnosed carpal tunnel syndrome, 

but had opined that appellant’s pain behavior was not CRPS. Dr. Schwartz had indicated that 

appellant could not perform her regular job duties, but could perform sedentary work. 

The evidence of record reflects that on June 26, 2016 appellant returned to temporary job 

assignment which was sedentary in nature and based on medical restrictions established by

Dr. Schwartz. Appellant stopped work on June 27, 2016, after returning to limited-duty for one 

day. While she stayed for the full eight-hour shift, the evidence reflects that she worked only an 

hour and a half to two hours before being sent to the health unit due to the side effects of her 

medication. In a July 13, 2016 statement, B.R., appellant’s supervisor, confirmed that appellant 

worked one day, but got very sleepy and unbalanced due to her medication. She indicated that the 

employing establishment could not reasonably accommodate appellant due to the effects of her 

medications and inability to stay alert.

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility to see that justice is done.8 The nonadversarial policy of proceedings 

 

5 G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

6 20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury, but no 

loss of wage-earning capacity).

7 Terry R. Hedman, 38 ECAB 222 (1986).

8 See G.C., Docket No. 18-0842 (issued December 20, 2018); see also Jimmy A. Hammons, 51 ECAB 219 (1999).
8

under FECA is reflected in OWCP’s regulations at section 10.121.9 Once OWCP undertakes to 

develop the medical evidence further, it has the responsibility to do so in a proper manner.10

OWCP did not ask Dr. Schwartz to address as part of his second opinion evaluation 

whether appellant’s medication would affect her ability to work. After appellant was sent home 

from work on June 27, 2016, he was not asked to clarify whether appellant required oxycodone 

for her accepted conditions, and if so whether this medication’s side effects would affect 

appellant’s ability to perform the duties of the temporary sedentary position. 

On remand, OWCP should seek clarification from Dr. Schwartz as to whether appellant’s 

use of the medication oxycodone, led to her inability to perform the limited-duty job and was 

necessitated by the accepted conditions. After this and such further development as may be 

deemed necessary, OWCP shall issue a de novo opinion.

CONCLUSION

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

 

9 20 C.F.R. § 10.121.

10 See G.C., supra note 8.
9

ORDER

IT IS HEREBY ORDERED THAT the March 28, 2018 and November 14 and 9, 2017 

decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded 

to OWCP for proceedings consistent with this opinion of the Board. 

Issued: February 4, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board