United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

St. Louis, MO, Employer

__________________________________________

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Docket No. 20-0304

Issued: December 1, 2022

Appearances: Case Submitted on the Record

Frederick Wolfmeyer, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On November 25, 2019 appellant, through his representative, filed a timely appeal2from 

an August 6, 2019 merit decision and an October 3, 2019 nonmerit decision of the Office of 

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 Appellant, through counsel, submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). 

Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. 

§ 501.5(a). In support of his oral argument request, appellant asserted that oral argument should be granted in order 

to present argument demonstrating that he had greater right lower extremity permanent impairment than had 

previously been found by OWCP. The Board, in exercising its discretion, denies his request for oral argument because 

this matter requires an evaluation of the medical evidence required. As such, the arguments on appeal can be 

adequately addressed in a decision based on a review of the case record. Oral argument in this appeal would further 

delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and 

this decision is based on the case record as submitted to the Board.
2

Workers’ Compensation Programs (OWCP).3 Pursuant to the Federal Employees’ Compensation 

Act4(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of 

this case.5

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish disability 

from work during the period May 16 through October 26, 2018 due to the accepted January 15, 

2018 employment injury; and (2) whether OWCP abused its discretion when it denied appellant’s 

September 6, 2019 request for an oral hearing before an OWCP hearing representative as untimely 

filed pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On January 24, 2018 appellant, then a 58-year-old tractor trailer operator, filed a traumatic 

injury claim (Form CA-1) alleging that on January 15, 2018 he sustained bilateral elbow injuries 

when manually unloading a lift while in the performance of duty. OWCP accepted the claim for 

bilateral elbow contusions, lower back strain, and left shoulder/upper arm strain. Appellant 

stopped work on January 17, 2018. The record reflects that he returned to work on January 24, 

2018, but stopped work again. OWCP paid appellant wage-loss compensation on the supplemental 

rolls from March 30 to April 29, 2018.

On February 12, 2018 the employing establishment offered appellant a modified 

assignment as a manual clerk in the processing manual unit. Appellant accepted the assignment

on February 16, 2018, but did not return to work.

In a March 12, 2018 report, Dr. John W. Ellis, a Board-certified family practitioner, noted 

the history of appellant’s January 15, 2018 employment injury and his medical treatment. He 

reported that a January 24, 2018 x-ray of appellant’s lumbar spine revealed mild lumbar 

spondylosis and January 24, 2018 x-rays of his elbows were negative. Dr. Ellis recommended 

additional diagnostic testing including a magnetic resonance imaging (MRI) scan of the cervical 

and lumbar spine, bilateral shoulders and bilateral elbows and electromyogram (EMG) studies of 

the bilateral upper and lower extremities. He opined that appellant was totally disabled from work 

due to severe weakness in the bilateral upper and lower extremities. However, in a March 12, 

3 The Board notes that, during the pendency of this appeal, OWCP issued December 31, 2019 and January 13, 2020 

nonmerit decisions, and June 11 and July 23, 2020 merit decisions, which addressed the same issues that are the 

subject of the current appeal. The Board and OWCP may not simultaneously exercise jurisdiction over the same 

issue(s). 20 C.F.R. §§ 501.2(c)(3), 10.626. See J.A., Docket No. 19-0981 (issued December 30, 2019); ArloniaB. 

Taylor, 44 ECAB 591 (1993); DouglasE. Billings, 41 ECAB 880 (1990). Consequently, OWCP’s December 31, 

2019 and January 13, June 11, and July 23, 2020 decisions are set aside as null and void. 

4

5 U.S.C. § 8101 et seq.

5 The Board notes that,following the October 3, 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. 
3

2018 work status form, Dr. Ellis indicated that appellant could work full time with restrictions as 

of March 13, 2018.

On April 12, 2018 Dr. Ellis provided updated work restrictions. This included lifting five

pounds intermittently for eight hours; limited walking; limited simple grasping and limited fine 

manipulation/keyboarding with five-minute breaks once every hour and frequent change of 

positions from sit to stand and stand to sit.

In a letter to the employing establishment dated April 18, 2018, appellant forwarded

Dr. Ellis’ work restrictions and related that he was more than willing to return to work as long as 

the work assignment was within Dr. Ellis’ work restrictions.

On April 27, 2018 the employing establishment offered appellant a modified clerk position 

with filing duties, effective April 30, 2018. The physical requirements of the job included lifting 

five pounds 1 to 8 hours a day; fine manipulation of 1 to 8 hours a day; and simple grasp ing 1 to 

8 hours per day. The offer was signed by Manager K.J. and accepted by appellant on May 2, 2018. 

Appellant returned to work from May 2 to 9, 2018. 

In a May 14, 2018 work status note, Dr. Ellis indicated that appellant was temporarily 

totally disabled from work. 

On May 25, 2018 appellant filed a Form CA-7 claim for compensation alleging disability 

from work for the period May 16 through 25, 2018. He continued to file CA-7 forms for disability 

from work through October 26, 2018.6

In a development letter dated June 5, 2018, OWCP noted that it was unclear why appellant 

could not perform the duties of the position he began on May 2, 2018. It requested that he submit 

medical evidence from his treating physician that provided objective examination findings and 

medical rationale, which supported that he was not able to return to work in the limited-duty 

capacity he began on May 2, 2018. OWCP afforded appellant 30 days to submit the necessary 

evidence.

In June 11 and 15, 2018 reports, Dr. Patricia F. McKelvy, a Board-certified internist, 

opined that appellant was temporarily totally disabled from his usual job due to his accepted 

conditions and that he was unable to work eight hours without restrictions.

OWCP received an August 15, 2018 report from Dr. McKelvy, who reported that appellant 

was seen on January 18, 2018 with complaints of right elbow and back pain related to a January 15, 

2018 employment incident. Dr. McKelvy indicated that, after a brief return to work, appellant was 

unable to complete his duties. She noted that an MRI scan of appellant’s right elbow showed a 

contusion of the distal humerus and a subchondral cyst and that a lumbar MRI scan showed 

degenerative joint disease. Dr. McKelvy opined that appellant sustained an employment-related 

6 A May 31, 2018 notice of 14-day suspension notified appellant that he would be suspended for a period of 14 

days for failing to follow instructions regarding assistance with clerk duties in the dispatch office on May 14, 2018. 

A July 6, 2018 Step 2 Grievance Settlement indicatedthat appellant’s 14-day notice of suspension dated May 30, 2018 

for failure to follow instructions on May 14, 2018 would be expunged from his record on November 30, 2019.
4

traumatic injury which caused him to have restricted activity and lost time for treatment of the 

injury. 

In an October 4, 2018 email, the employing establishment advised that it had 40 hours of

work available within appellant’s restrictions, during his claimed period of disability.

In an email dated October 25, 2018 to the employing establishment, appellant’s 

representative indicated that, in May 2018, appellant had received two modified assignments. A 

May 1, 2018 job offer, from supervisor L.S., pertained to work in the dispatch office. The May 2, 

2018 job offer, provided by Manager K.J., was the job offer, which appellant accepted. The 

representative confirmed that appellant was working the assignment from K.J. when L.S. 

instructed him to work in the dispatch office. He indicated that appellant was given a 14-day 

suspension and that appellant called Dr. Ellis who found that appellant was disabled as he could 

not perform the dispatch work. A copy of the April 27, 2018 job offer for modified clerk, signed 

by K.J and accepted by appellant on May 2, 2018, was provided. An assignment order signed by 

both appellant and supervisor L.S. on May 1, 2018 contained a directed assignment for clerk 

vehicle dispatching, with a start date of April 28, 2018.

On October 25, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), a list of questions, and the medical evidence of record, to Dr. Richard T. Katz, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine the relationship between 

appellant’s claimed conditions and factors of his employment. In a December 5, 2018 report,

Dr. Katz noted appellant’s history of injury and his review of the medical records and related his 

physical examination findings. He indicated that appellant’s behavior was highly somatoform, 

belligerent in a quiet way, and he would not answer many simple questions. Dr. Katz reported that 

appellant demonstrated almost no range of motion at the neck, low back and shoulders. 

Appellant’smovements were slowed non-physiologically, he was painful everywhere to the touch, 

he had diffuse give-way weakness on manual muscle testing, and showed poor effort on grip 

testing. He noted that the examination findings for the cervical region, right shoulder and 

lumbosacral region, were either unremarkable or unreliable due to appellant’s behaviors. Dr. Katz

also noted that there was no radiological imaging to review. He indicated that appellant’s 

evaluation was most notable by complaints suggestive of mental health issues and marked 

somatoform behaviors; thus, malingering had to be considered. Dr. Katz opined that the accepted 

lumbosacral sprain, shoulder sprain and elbow sprains should have resolved within a three-month 

window. He refuted the diagnosis of epicondylitis, noting that it was a chronic repetitive use 

disorder, and found no evidence of radiculopathy. Dr. Katz emphasized that he could not state 

whether appellant’s lack of cooperation with the examination was intentional or not. He concluded 

that appellant could return to his previous employment and no further treatment was indicated for 

the employment-related injury.

In a January 2, 2019 statement, appellant related that he was working limited duty until the 

employing establishment changed his assignment. He indicated that he filed for wage-loss 

compensation benefits after he was ordered to clock out. A copy of appellant’s July 2, 2018 

statement explaining the job offers and discipline received was enclosed. 

By decision dated January 8, 2019, OWCP denied appellant’s claim for wage-loss 

compensation for the period May 16, 2018 and continuing. It found that the medical evidence of 
5

record was insufficient to establish that disability from work during the claimed period due to the 

accepted employment injury. OWCP accorded the weight of the medical evidence to the 

December 5, 2018 opinion of Dr. Katz, the second opinion examiner. 

On January 25, 2019 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. 

OWCP received a May 21, 2018 MRI scan of appellant’s left shoulder, which noted mild 

acromioclavicular arthritis; a May 22, 2018 MRI scan of the lumbar spine, which noted mild 

degenerative disc disease; a June 13, 2018 MRI scan of the right elbow, which noted subchondral 

cyst, small contusion or osteochondritis dissecans of distal humeral articular surface; and a normal 

June 13, 2018 MRI scan of the left elbow. 

In a June 11, 2018 report, Dr. McKelvy advised that, as of May 14, 2018, appellant was 

temporarily totally disabled from his usual job duties and was unable to work eight-hour days 

without restrictions. 

By decision dated April 30, 2019, OWCP’s hearing representative vacated OWCP’s 

January 8, 2019 decision, discrepancy needed to be resolved to determine if appellant was entitled 

to wage-loss compensation. The hearing representative remanded the case for further 

development.7

By development letter dated May 10, 2019, OWCP requested additional information from 

the employing establishment. 

In a May 24, 2019 response, employing establishment supervisor L.S., confirmed that 

appellant had received and accepted two limited-duty assignments. L.S. indicated that the 

April 27, 2018 limited-duty assignment, which appellant accepted and worked, was available as 

recently as April 2019, when appellant opted to take disability retirement. In a July 16, 2019 

statement, L.S. explained that there were two modified assignments because appellant never 

showed up for the first assignment dated February 12, 2018. He also clarified that the April 27, 

2018 assignment appellant accepted remained available after May 17, 2018 and that was the job 

that returned available to appellant.

By decision dated August 6, 2019, OWCP denied appellant’s claim for wage-loss 

compensation for the period May 16 through October 26, 2018.

8

7 The hearing representative found that appellant accepted job offers for both a clerk vehicle dispatch position and 

a modified clerk position. The hearing representative found that further information from the employing establishment 

was necessary to determine the reason why two job assignment offers were made to appellant, which assignment 

appellant was working prior to his May 16, 2018 work stoppage, and to verify the reason why disciplinary action was 

issued to appellant.

8 The record reflects that OPM approved appellant’s request for disability retirement, effective April 15, 2019.
6

By appeal request form dated September 5, 2019 and postmarked September 6, 2019, 

appellant requested an oral hearing of the August 6, 2019 decision before a representative of 

OWCP’s Branch of Hearings and Review. 

By decision dated October 3, 2019, OWCP’s Branch of Hearings and Review denied 

appellant’s hearing request, finding that its request was untimely as it was not filed within 30 days

of the August 6, 2019 decision. After exercising its discretion, OWCP’s Branch of Hearings and 

Review further found that the merits of the claim could equally well be addressed through the 

reconsideration process. 

LEGAL PRECEDENT -- ISSUE 1

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. 9 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.10

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. 11 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.12

To establish causal relationship between the disability claimed and the employment injury, 

an employee must submit rationalized medical evidence, based on a complete factual and medical 

background, supporting such causal relationship.13 The opinion of the physician must be one of 

reasonable medical certainty and must be supported by medical rationale explaining the nature of 

the relationship between the diagnosed condition and the specific employment factors identified 

by the employee.14

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 

9

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019); 

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

10 See 20 C.F.R. § 10.5(f); N.M.,Docket No. 18-0939 (issued December 6, 2018).

11 Id. at § 10.5(f); see, e.g., G.T., Docket No. 18-1369 (issued March 13, 2019); CherylL. Decavitch, 50 ECAB 

397 (1999).

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

13 See S.J.,Docket No. 17-0828 (issued December 20, 2017); KathrynE. DeMarsh, 56 ECAB 677 (2005).

14 C.B., Docket No. 18-0633 (issued November 16, 2018); LeslieC. Moore, 52 ECAB 132 (2000); GaryL. Fowler, 

45 ECAB 365 (1994).
7

claimed. To do so, would essentially allow a claimant to self-certify his or her disability and 

entitlement to compensation.15

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish disability during 

the period May 16 through October 26, 2018 due to his accepted January 15, 2018 employment 

injury. 

Dr. Ellis, in a May 14, 2018 work status note, and Dr. McKelvy, in a June 11, 2018 report, 

indicated that appellant was disabled from work as of May 14, 2018. However, neither Dr. Ellis, 

nor Dr. McKelvy provided an opinion on causal relationship between the claimed disability and 

the accepted employment injury.16 Thus, these reports from Dr. Ellis and Dr. McKelvey are of no 

probative value and are insufficient to establish appellant’s claim for compensation.17

Dr. McKelvy opined, in her June 11 and 15, 2018 reports, that appellant was able to work 

eight-hour days with restrictions. The Board has held that medical evidence that negates causal 

relationship is of no probative value.18 This report is, therefore, insufficient to establish the claim.

In an August 15, 2018 report, Dr. McKelvy opined that appellant had an employmentrelated traumatic injury and, after a brief return to work on April 3 through May 1, 2018, he was 

unable to complete his duties. Dr. McKelvy’s report contains a conclusory opinion without the 

necessary rationale explaining how and why the employment injury caused disability for work. 19 

Therefore, this report is insufficient to establish appellant’s claim. 

Appellant also submitted several MRI scan studies of the lumbar spine, and bilateral 

elbows. However, the Board has held that diagnostic studies, standing alone, lack probative value

as they do not address whether the accepted employment injury caused appellant to be disabled 

from work during the claimed period.20

As appellant has not submitted rationalized medical opinion evidence sufficient to establish 

employment-related disability during the period May 16 through October 26, 2018 due to his 

accepted January 15, 2018 employment injury, the Board finds that he has not met his burden of 

proof.

15 T.L., Docket No. 18-0934 (issued May 8, 2019); SandraD. Pruitt, 57 ECAB 126 (2005). 

16 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,Docket No. 17-1549 (issued July 6, 2018).

17 J.T., Docket No. 19-1813 (issued April14, 2020). 

18 T.W., Docket No. 19-0677 (issued August16, 2019). 

19 C.E., Docket No. 19-0192 (issued July 16, 2019).

20 See V.H., Docket No. 18-1282 (issued April2, 2019); J.S.,Docket No. 17-1039 (issued October 6, 2017).
8

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title 

[relating to reconsideration], a claimant for compensation not satisfied with a decision of the 

Secretary under subsection (a) of this section is entitled, on request made within 30 days after the 

date of the issuance of the decision, to a hearing on his [or her] claim before a representa tive of 

the Secretary.”

21

Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a 

review of an adverse decision by a hearing representative. Initially, the claimant can choose 

between two formats: An oral hearing or a review of the written record.”

22

 The hearing request 

must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the 

date of the decision for which the hearing is sought.23 However, OWCP has discretion to grant or 

deny a request that is made after this 30-day period.24 In such a case, it will determine whether to 

grant a discretionary hearing and, if not, will so advise the claimant with reasons.25

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s September 6, 2019 hearing 

request as untimely filed pursuant to 5 U.S.C. § 8124(b). 

Appellant had 30 days from OWCP’s August 6, 2019 merit decision to request a hearing 

before OWCP’s Branch of Hearings and Review. He requested an oral hearing by appeal request 

form dated September 5, 2019, and postmarked September 6, 2019. As the postmark date of his 

appeal request form was more than 30 days after OWCP’s August 6, 2019 decision, appellant was 

not entitled to an oral hearing as a matter of right.26 Section 8124(b)(1) is unequivocal on the time 

limitation for requesting a hearing.27

21 5 U.S.C. § 8124(b)(1).

22 20 C.F.R. § 10.615.

23 Id. at § 10.616(a); M.H., Docket No. 19-1087 (issued October 17, 2019); B.V., Docket No. 18-1473 (issued 

April 23, 2019).

24 G.W., Docket No. 10-0782 (issued April23, 2010); James Smith, 53 ECAB 188, 191-92 (2001).

25 K.L., Docket No. 19-0480 (issued August 23, 2019); C.C., Docket No. 18-1769 (issued April5, 2019); James 

Smith, id.

26 Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis 

of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 --Claims, Hearings 

and Reviews of the Written Record, Chapter 2.1601.4a (October 2011). In this case, 30 days after OWCP’s August 6, 

2019 decision is September 5, 2019. As appellant’s request was a hearing was postmarked September 6, 2019, it is 

untimely filed. 

27 5 U.S.C. § 8124(b)(1); see R.H.,Docket No. 18-1602 (issued February 22, 2019); WilliamF. Osborne, 46 ECAB 

198 (1994).
9

The Board finds that OWCP properly exercised its discretion in denying appellant’s request 

for a hearing by determining that the issue in the case could be addressed equally well by 

requesting reconsideration and submitting new evidence relevant to the issue of appellant’s wageloss compensation claim for the period May 16, 2018 and continuing.28

 The Board has held that 

the only limitation on OWCP’s authority is reasonableness, and an abuse of discretion is generally 

shown through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken 

which are contrary to both logic and probable deduction from established facts.29 In this case, the 

record does not indicate that OWCP abused its discretion in its denial of appellant’s untimely 

request for an oral hearing. Accordingly, the Board finds that OWCP properly denied his request 

for a hearing as untimely filed under 5 U.S.C. § 8124(b).30

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish disability during 

the period May 16 through October 26, 2018 due to his January 15, 2018 employment injury. The 

Board also finds that OWCP did not abuse its discretion when it denied appellant’s September 6, 

2019 request for an oral hearing before an OWCP hearing representative as untimely filed under 

5 U.S.C. § 8124(b). 

28 M.H., Docket No. 15-0774 (issued June19, 2015).

29 M.G., Docket No. 17-1831 (issued February 6, 2018); Daniel J. Perea, 42 ECAB 214, 221 (1990).

30 Id.; R.P., Docket No. 16-0554 (issued May 17, 2016).
10

ORDER

IT IS HEREBY ORDERED THAT the August 6 and October 3, 2019 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: December 1, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board