United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.M., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Warwick, RI, Employer

__________________________________________

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Docket No. 20-1153

Issued: August 4, 2022

Appearances: Case Submitted on the Record

Jacqueline Shanahan, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On May 14, 2020 appellant, through counsel, filed a timely appeal from a November 26, 

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.

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.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish total disability from 

work for the period from July 7 through October 1, 2018 causally related to his accepted May 2, 

2013 employment injury.

FACTUAL HISTORY

On May 9, 2013 appellant, then a 54-year-old enforcement removal assistant, filed a 

traumatic injury claim (Form CA-1) alleging that on May 2, 2013 while in the performance of duty 

he was the victim of an “armed verbal assault” by a coworker which exacerbated his combatrelated post-traumatic stress disorder (PTSD). He stopped work on May 9, 2013. On 

November 21, 2013 OWCP accepted the claim for temporary exacerbation of PTSD. On April 1, 

2015 it entered appellant on the periodic rolls effective March 8, 2015.

Appellant’s attending physician Dr. Landis Mitchner, a Board-certified psychiatrist, noted 

treating him for PTSD beginning November 17, 2008 and found that he could work eight hours a 

day performing his regular duties, but not at the employing establishment.

On March 19, 2014 OWCP referred appellant for vocational rehabilitation services. On 

April 17, 2014 it noted that the employing establishment did not have an approp riate position 

available and that other options would be considered including employment in the private sector.

On April 16, 2015 Dr. Mitchner found that appellant was totally disabled and unable to 

participate in vocational rehabilitation services due to an exacerbation of his service-connected 

disability by an incident of workplace violence. On that date OWCP suspended vocational 

rehabilitation services. On November 5, 2015 and December 2, 2016 Dr. Mitchner continued to 

opine that appellant remained totally disabled.

On July 21, 2017 appellant joined the apprenticeship fund of the Engineers Training Center

which began on September 12, 2017. On July 31, 2017 OWCP terminated his wage-loss 

compensation on the periodic rolls as he had returned to work on July 31, 2017.

Appellant provided earnings statements for the period July 31 through August 20, 2017

detailing the number of hours worked and the payment received.

In an August 29, 2017 development letter, OWCP acknowledged appellant’s return to work 

in an apprenticeship program from the Engineer’s Training Center and requested additional 

information regarding his employment, including the job title, hours per day worked, his pay rate, 

and specific job duties. It advised him that if his earnings were intermittent or sporadic in nature, 

he was responsible for forwarding his pay stubs or earning records with his claims for 

compensation. OWCP afforded appellant 30 days for a response.

On August 31, 2017 appellant reported earnings for the period August 21 through 27, 2017.

On September 11, 2017 appellant filed a schedule award claim (Form CA-7). By decision 

dated September 18, 2017, OWCP denied his claim for a schedule award.
3

On September 15, 2017 appellant submitted additional earnings statements for the period

September 4 through 17, 2017.

On September 18, 2017 appellant informed OWCP that he had been laid-off from his 

private sector employment. He reported that he would continue to participate in the school portion 

of the apprenticeship program at the Engineer’s Training Center which required 297 hours. In a 

letter dated September 19, 2017, counsel noted that appellant had returned to intermittent work 

and requested that wage-loss compensation resume on the periodic rolls.

OWCP responded on October 6, 2017 and noted that while appellant’s periodic rolls

payments were cancelled, he was still entitled to wage-loss compensation. It informed him that it 

would calculate the wage-loss and compensate him for the difference.

On October 20, 2017 appellant provided additional documentation of his work through

October 20, 2017.

In CA-7 forms dated October 20, 2017, appellant requested leave without pay 

compensation (LWOP) for the period September 17 through 23, 2017 and on September 25, 2017. 

In an October 23, 2017 Form CA-7, he requested LWOP compensation for the period 

September 28 through October 20, 2017.

On November 3, 2017 OWCP authorized wage-loss compensation for the period July 23 

through August 19, 2017 in the amount of $2,512.52.

In a November 15, 2017 development letter, OWCP requested additional information 

regarding appellant’s employment and earnings during the claimed periods after August 19, 2017. 

It afforded him 30 days to respond.

On November 27, 2017 appellant submitted additional documentation of work through 

November 4, 2017, and that he was laid off on November 5, 2017. He filed CA-7 forms requesting 

wage-loss compensation through December 11, 2017. A December 30, 2017 monthly 

employment record noted that appellant returned to work on December 25, 2017.

In a January 23, 2018 letter, OWCP noted that it had issued payment in the amount of 

$2,506.05 for the period August 20 through December 11, 2017 based on its application of the

principles set forth in the Albert C. Shadrick3formula to appellant’s actual earnings during that 

period.

On March 2, 2018 appellant provided a January 31, 2018 monthly employment record 

which indicated that he was employed from January 1 through 10, 2018.

On March 9, 2018 appellant filed a Form CA-7 requesting wage-loss compensation for the 

period December 11, 2017 through January 31, 2018 completed by the employing establishment.

3 Albert C. Shadrick, 5 ECAB 376 (1953), codified at 20 C.F.R. § 10.403.
4

On April 20, 2018 OWCP authorized wage-loss compensation in the net amount of 

$1,421.22 for the period from December 12, 2017 through January 31, 2018 based on his actual 

earnings.

On August 24, 2018 appellant filed a Form CA-7 requesting wage-loss compensation for

the period July 7 through August 24, 2018 as well as a schedule award. In an August 28, 2018 

development letter, OWCP requested evidence in support of his August 24, 2018 claim, including 

pay stubs since he last claimed compensation on January 31, 2018. It afforded 30 days for a 

response.

Appellant provided a September 1, 2018 time analysis form (Form CA 7a) indicating that 

he was claiming 160 hours of LWOP from July 7 through August 24, 2018. He filed an additional 

Form CA-7 for the period August 24 through October 1, 2018 with an accompanying Form CA 7a 

indicating that he was claiming compensation for 160 hours of LWOP. In an October 5, 2018 

development letter, OWCP requested additional factual and medical evidence in support of 

appellant’s claimed period of disability. It afforded 30 days for a response.

Appellant provided an October 23, 2018 note from Paula Smith, a licensed clinical social 

worker, co-signed by Dr. Mitchner, diagnosing PTSD and finding that he had experienced periods

of exacerbation with regard to workplace environment. Dr. Mitchner advised that he was totally 

disabled.

On October 24, 2018 appellant filed a Form CA-7 for the period July 7 through 

October 24, 2018. He completed a Form CA-7a and claimed 136 hours of LWOP for the period 

July 7 through 31, 2018; 181 hours of LWOP for the period July 31 through August 31, 2018; 160 

hours of LWOP for the period August 31 through September 30, 2018; and 136 hours of LWOP 

for the period September 30 through October 23, 2018.

In a November 9, 2018 letter, counsel noted that appellant had no additional period of 

employment. She further reported that he had relocated.

By decision dated November 14, 2018, OWCP denied appellant’s claim for compensation 

for the period July 7 through October 1, 2018 and continuing. It noted that he had not responded 

to the development letters. OWCP reviewed Dr. Mitchner’s note and found that it failed to identify 

and demonstrate any specific spontaneous recurrence or worsening of the accepted condition of 

temporary exacerbation of PTSD. On December 12, 2018 appellant requested an oral hearing 

before a representative of OWCP’s Branch of Hearings and Review.

Dr. Ernest P. Bicknell, a clinical psychologist, completed a report dated December 13, 

2018 and recounted that appellant felt unemployable due to PTSD. He noted that appellant had 

made exhaustive attempts to gain employment with no positive results. Dr. Bicknell found that he 

was experiencing moderate to severe levels of difficulty in social and occupational functioning 

rendering him unable to work. He diagnosed PTSD.

Appellant continued to submit CA-7 forms for the periods November 1 through 

December 1, 2018; July 7, 2018 through January 4, 2019; January 1 through February 1, 2019;

and February 1 through 18, 2019. He provided corresponding CA-7a forms.
5

On March 20, 2019 counsel asked that appellant’s request for an oral hearing be converted 

to a review of the written record. On March 28, 2019 she provided additional evidence and noted 

that appellant began working on January 30, 2019 at a private sector employer. Counsel contended 

that he had not received reimbursement for books and materials totaling $323.00 while 

participating in the apprenticeship program at the Engineer’s Training Center.4

In a March 27, 2019 statement, appellant responded to the November 14, 2018 

development letter and asserted that he experienced an exacerbation of his PTSD symptoms while 

at the employing establishment. He further noted that he was requesting unpaid wages and the 

difference between his current wages with his job at the private sector employer. Appellant 

asserted that the apprenticeship program did not guarantee him permanent full-time work and that 

he was only provided work for a week at a time and did not receive medical benefits.

Dr. Bicknell completed a note on February 5, 2019 and opined that appellant had the 

capacity to perform the functions and duties of a yard specialist for the private sector employer. 

In a March 18, 2019 report, he again diagnosed PTSD and found that appellant was currently 

capable of returning to work.

On January 30, 2019 the private sector employer offered appellant the position of yard 

specialist beginning February 10, 2019 earning $16.50 per hour.

By decision dated May 29, 2019, OWCP’s hearing representative vacated the 

November 14, 2018 decision and remanded the claim for additional development of the medical 

evidence through a referral physician.

On June 11, 2019 OWCP referred appellant, a statement of accepted facts (SOAF) and a 

series of questions for a second opinion evaluation with Dr. Eduardo Sanchez, a Board-certified 

psychiatrist. In a July 1, 2019 report, Dr. Sanchez related the history of injury on May 2, 2013, as 

well as appellant’s prior history of service-related PTSD. He noted that appellant was no longer 

working for the private sector employer and had obtained a job as a security guard on 

April 29, 2019. Dr. Sanchez found that after his reinjury in 2013 his functioning was dismal as he 

was unable to become employed until the present time. However, he found that appellant was 

currently asymptomatic. Dr. Sanchez opined that he should be able to return to full employment 

at the level when the temporary exacerbation of PTSD occurred. He found that there were no 

discernable residuals of the accepted condition, and that appellant could return to his removal 

assistant position at the employing establishment. Dr. Sanchez reported that he was unable to 

evaluate appellant’s ability to work for the period July 7 through October 1, 2018.

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

the period July 7 to October 1, 2018. It asserted that he was required to file a new claim as he had 

alleged a recurrence of disability due to an emotional condition. On August 29, 2019 appellant, 

through counsel, requested a review of the written record from a representative of OWCP’s Branch 

of Hearings and Review.

4 This is the first request for reimbursement found in the record before the Board.
6

On September 6, 2019 counsel contended due to several circumstances, including unstable 

seasonal employment and a symptom flare documented by his treating physician, appellant moved 

to Florida in July 2018. He began working at a private sector employer on February 10, 2019, but 

was laid-off on April 15, 2019. On April 29, 2019 appellant began working as a security guard. 

Counsel further contended OWCP improperly denied his request for wage-loss compensation 

beginning July 7, 2018 and continuing. She requested that OWCP address appellant’s unpaid 

claims for compensation and supplies, as well as issue a wage-earning capacity determination

regarding appellant’s position at Amazon.

By decision dated November 26, 2019, OWCP’s hearing representative found that 

appellant had returned to intermittent employment in August 2017 and claimed and received wageloss compensation through January 31, 2018. He then stopped work and claimed an additional 

period of disability beginning July 7, 2018 causally related to his accepted employment injuries.

OWCP’s hearing representative noted that OWCP undertook further development of the medical 

evidence and sought Dr. Sanchez’ opinion, but that there was no medical evidence of record 

relating appellant’s stoppage of his apprenticeship program on July 7, 2018 to his 2013 work 

injury. He concluded, therefore, that appellant had not met his burden of proof to establish injuryrelated disability on or after July 7, 2018.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has the burden of proof to establish the 

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

compensation is claimed is causally related to the employment injury. 6

Disability means “the incapacity, because of an employment injury, to earn the wages the 

employee was receiving at the time of injury.”

7

 The question of whether an employee is disabled 

for work is an issue that must be resolved by competent medical evidence. 8 The employee is 

responsible for providing sufficient medical evidence to justify payment of any compensation 

sought.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 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 

5

Supra note 2.

6

S.J.,Docket No. 17-0828 (issued December 20, 2017); G.T.,Docket No. 07-1345 (issued April11, 2008); Kathryn 

Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

7

20 C.F.R. § 10.5(f).

8

S.A., Docket No. 18-0399 (issued October 16, 2018); R.C., 59 ECAB 546, 551 (2008).

9

20 C.F.R. § 10.501(a).

10 Id. at § 10.501(a); V.B., Docket No. 18-1273 (issued March 4, 2019); T.A., Docket No. 18-0431 (issued 

November 7, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005).
7

would essentially allow an employee to self-certify his or her disability and entitlement to 

compensation.11

ANALYSIS

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

OWCP referred appellant for a second opinion evaluation with Dr. Sanchez, who 

completed a July 1, 2019 report, and found that appellant’s PTSD was currently asymptomatic. 

However, Dr. Sanchez also reported that he was unable to evaluate appellant’s ability to work for 

the period July 7 through October 1, 2018.

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

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

OWCP shares responsibility in the development of the evidence to see that justice is done. 12 Once 

OWCP undertook development of the evidence by referring appellant to Dr. Sanchez, it had an 

obligation to obtain a proper evaluation that sufficiently addresses the issues in this case.

Thus, the Board will set aside OWCP’s November 26, 2019 decision and remand the case 

for a second opinion as to whether appellant was totally disabled due to the accepted cond itions 

during the period July 7 through October 1, 2018. Following this and such further development as 

deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

11 S.M.,Docket No. 17-1557 (issued September 4, 2018); WilliamA. Archer, 55 ECAB 674, 679 (2004); Fereidoon 

Kharabi, 52 ECAB 291, 293 (2001).

12 R.C., Docket No. 15-0581 (issued June 8, 2016)
8

ORDER

IT IS HEREBY ORDERED THAT the November 26, 2019 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: August 4, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board