United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

X.M., Appellant

and

U.S. POSTAL SERVICE, MARINA POST 

OFFICE, San Francisco, CA, Employer

__________________________________________

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Docket No. 22-0271

Issued: February 28, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 12, 2021 appellant filed a timely appeal from May 28 and August 5, 2021

merit decisions of the Office of Workers’ Compensation Programs (OWCP).1 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 Appellant 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 appellant’s oral argument request, she asserted that oral argument should be granted because she was 

discriminated against and sought justice. The Board, in exercising its discretion, denies appellant’s request for oral 

argument because the arguments on appeal can adequately be 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 5 U.S.C. § 8101 et seq.
2

ISSUES

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

to continuation of pay (COP); and (2) whether appellant has met her burden of proof to establish 

disability from work for the period commencing September 7, 2020 causally related to her 

accepted July 3, 2020 employment injury. 

FACTUAL HISTORY

On August 5, 2020 appellant, then a 62-year-old postal support employee sales and service 

distribution clerk, filed a traumatic injury claim (Form CA-1) alleging that on July 3, 2020 she 

sustained an injury to her right foot when a general purpose container (GPC) rolled over her foot 

while in the performance of duty.3 In an accompanying statement she indicated that on July 3, 

2020 at about 2:30 a.m. she was unloading a postal truck and a GPC filled with magazines rolled 

over her right foot and toes causing a contusion. Appellant finished her tour of duty and continued 

to work for several days with foot pain. When her condition did not resolve she sought medical 

treatment. Appellant stopped work on July 20, 2020.

On July 24, 2020 Rick Beronilla, a physician assistant, treated appellant for bilateral foot 

pain after a work injury about three weeks prior. He diagnosed right and left foot pain and ordered 

diagnostic testing.

On July 29, 2020 Dr. Nagvir Sandhu, a podiatrist, reported that approximately three weeks 

prior a piece of heavy equipment fell on her right foot while at work. The right foot was edematous, 

darkly discolored, and the right fifth toenail was traumatically avulsed. Dr. Sandhu diagnosed 

right foot pain and swelling likely secondary to a direct blow injury. On August 11, 2020 he

treated appellant and advised that she could not return to work until August 26, 2020. On 

August 26, 2020 Dr. Sandhu indicated that she was totally disabled from work for one week and 

could return on September 4, 2020. In a note dated September 3, 2020, he advised that appellant 

was under his care and could not return to work until September 18, 2020. Similarly, on 

September 11, 2020, Dr. Sandhu reported treating appellant and indicated that she could return to 

work on September 23, 2020.

On October 2, 2020 Dr. Rollie D. Rosete, a Board-certified internist, treated appellant and 

indicated that she was disabled from work from October 1 through 11, 2020.

Appellant was treated by Dr. Theodore Qozi, a podiatrist, on October 15, 2020, who

advised that she was totally disabled until October 26, 2020. On October 26, 2020 Dr. Qozi

indicated that appellant was off work due to a foot condition until November 9, 2020.

3 Appellant previously filed a Form CA-1 for an injury sustained on September 4, 2004, when she tripped on the 

sidewalk and injured her right foot. OWCP assigned File No. xxxxxx807 and accepted that claim for right foot 

tarsometatarsal sprain and right ankle sprain.
3

In a November 3, 2020 development letter, OWCP informed appellant of the deficiencies 

of her claim. It advised her of the evidence needed and provided a questionnaire for her 

completion. OWCP afforded appellant 30 days to respond.

OWCP received a notification of personnel action PS Form 50 dated November 9, 2020,

which indicated that appellant’s appointment expired and her last day in pay status was 

November 16, 2020. 

On November 10, 2020 appellant filed a claim for compensation (Form CA-7) for 

disability from work for the period September 7 through November 6, 2020 as a result of her 

accepted employment injury.

In a work status form report dated November 16, 2020, Dr. Jagdish Patel, Board-certified

in family medicine, diagnosed contusion of the right foot. He checked a box marked “Yes” noting 

that appellant’s condition was related to the employment injury. Dr. Patel returned her to 

modified-duty work. In a work status form report dated November 23, 2020, he noted that 

appellant sustained an industrial injury on July 3, 2020 and could work subject to restrictions. In 

form reports dated November 16 and 23, 2020, appellant presented with right foot and fifth toe 

pain. She reported working as a clerk and on July 3, 2020, while unloading a postal truck a GPC 

weighing about 2,000 pounds rolled over the top of her right foot. The pain increased and she 

sought medical treatment. Dr. Patel noted an x-ray of the right foot dated July 29, 2020 revealed 

bilateral first to fourth metatarsophalangeal osteoarthritis worse on the left side with no evidence 

of a fracture. He diagnosed contusion of the right foot intact skin surface and continued modifiedduty work.

In response to the development letter on November 24, 2020, appellant indicated that 

immediately after her foot injury she continued to work the midnight shift because she was the 

only employee available to do the job. She noted that early on the pain was tolerable but as time 

passed the pain became more severe.

In a statement dated November 25, 2020, appellant indicated that although she was 

supposed to sign the Form CA-1 by August 3, 2020 she was unable to sign it until August 5, 2020,

because her manager delayed the filing of her claim. She reported to her place of employment on 

August 3, 2020 and spoke to her supervisor who printed the Form CA-1 and was willing to help 

her complete the form but was stopped by her manager because it was after hours. In a

December 2, 2020 letter to OWCP, appellant sought assistance with her claim and indicated that 

she had been terminated from her position.

By decision dated December 10, 2020, OWCP accepted appellant’s claim for contusion of 

the right foot. By separate decision of even date, it denied appellant’s claim for COP, finding that 

she had not reported her injury on an OWCP-approved form within 30 days of the accepted July 3, 

2020 employment injury. OWCP noted that the denial of COP did not affect her entitlement to 

other compensation benefits.

In a December 11, 2020 development letter, OWCP advised appellant that additional 

evidence was needed to establish disability from work during the period claimed. It indicated that 
4

appellant did not submit any supporting documentation with her claim. OWCP provided 30 days 

to submit the requested information.

OWCP received additional evidence. In a report dated October 15, 2020, Dr. Qozi 

evaluated appellant for right foot pain that commenced when her foot was rolled over by heavy 

equipment at work. Appellant presented with a controlled ankle motion (CAM) boot that she had 

worn since August. Dr. Qozi diagnosed pain in the right foot and toes, abnormality of gait, bunion 

of both feet, hammertoes of both feet, corns and callosities, capsulitis/enthesopathy, localized 

edema, and contusion of the right lesser toe and foot. He was unsure why appellant had not 

improved with the CAM boot. Dr. Qozi gave her one additional week off to “figure things out 

with work.”

In form reports dated December 8 and 22, 2020, Dr. Patel noted that appellant presented 

with no change in her right foot condition. He diagnosed contusion of the right foot with intact 

skin surface and continued modified-duty work. In work status forms dated December 8 and 22, 

2020 and January 6, 2021, Dr. Patel continued modified-duty work.

On January 5, 2021 the employing establishment indicated that appellant’s manager, E.L.,

could not accommodate appellant’s work restrictions and therefore she was unable to work due to 

her employment injury.

In a form report dated January 6, 2021, Dr. Patel diagnosed contusion of right foot, 

subsequent encounter and continued appellant on modified-duty work. 

On January 6, 2021 appellant filed a Form CA-7 for disability from work for the period 

December 5, 2020 through January 1, 2021.

On January 7, 2021 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review from OWCP’s December 10, 2020 decision denying COP.

By decision dated January 19, 2021, OWCP denied appellant’s claim for wage-loss 

compensation for disability from work commencing September 7, 2020. It found that the medical 

evidence of record was insufficient to establish that she was disabled from work due to her

accepted employment injury. 

OWCP received additional evidence. In a form report dated January 21, 2021, Dr. Patel 

diagnosed contusion of the right foot with intact skin surface and osteoarthritis and continued 

modified duty. In a work status report dated January 21, 2021, he continued appellant’s work 

restrictions. 

In a letter dated February 11, 2021, OWCP requested that Dr. Patel clarify whether the 

work restrictions provided on November 16, 23, 30, December 8 and 22, 2020, and January 6, 

2021 were due to the contusion of the right foot or due to osteoarthritis.

On February 17, 2021 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review from OWCP’s January 19, 2021 decision denying her 

disability claim.
5

The hearing for OWCP’s December 10, 2020 decision denying COP was held on 

April 22, 2021. 

OWCP received additional evidence. In form reports dated March 23 and May 12, 2021,

Dr. Patel noted releasing appellant to regular duty on March 23, 2021, because she was 

noncompliant and failed to undergo a magnetic resonance imaging (MRI) scan of the right foot. 

She ultimately had an MRI scan, which revealed no evidence of fracture. He opined that appellant 

sustained a simple injury on July 3, 2020, most likely a contusion of the big toe that she dragged 

out longer than necessary. Dr. Patel advised that appellant’s injury should have resolved by 

September 3, 2020 and that any lost time after that was not related to her employment injury. In a 

work status form dated May 12, 2021, he noted that appellant reached maximum medical 

improvement (MMI) and could return to regular-duty work.

An MRI scan of the right foot dated April 29, 2021 revealed small splits in the lesser digits 

plantar plates, mild first metatarsophalangeal joint capsulitis, and no structural defect or tear.

On May 21, 2021 appellant reported returning to work on July 11, 2020 and reinjuring her 

right foot when a coworker accidentally stepped on her foot. She asserted that she would be 

entitled to COP.

By decision dated May 28, 2021, an OWCP hearing representative affirmed the 

December 10, 2020 COP decision.

OWCP received additional evidence. Dr. Sandhu treated appellant on August 11, 26 and 

September 3, 2020 for right foot pain secondary to a direct blow injury at work. He diagnosed 

right foot pain and advised that appellant was off work due to continued pain and edema of the 

fifth toe.

Appellant submitted reports from Mr. Beronilla, dated November 6 and 12, 2020, who 

treated her for insomnia and seasonal allergies. 

On April 30, 2021 Dr. Patel opined that appellant reached MMI, had no permanent work 

restrictions and was released from his care to regular-duty work.

In a statement dated June 17, 2021, appellant indicated that she lost her telephone and failed 

to timely check in for her oral hearing for her disability claim. She requested that her hearing be 

rescheduled.

On June 17, 2021 a representative of OWCP’s Branch of Hearings and Review converted 

appellant’s request from an oral hearing for the January 19, 2021 disability denial to a review of 

the written record. The hearing representative also requested that appellant submit additional 

evidence in support of her claim for compensation. No additional evidence was received.

By decision dated August 5, 2021, OWCP’s hearing representative affirmed the 

January 19, 2021 decision.
6

LEGAL PRECEDENT -- ISSUE 1

Section 8118(a) of FECA authorizes COP, not to exceed 45 days, to an employee who has 

filed a claim for a period of wage loss due to a traumatic injury with his or her immediate superior 

on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of 

this title.4 This latter section provides that written notice of injury shall be given within 30 days.5 

The context of section 8122 makes clear that this means within 30 days of the injury.6

OWCP’s regulations provide, in pertinent part, that to be eligible for COP, an employee 

must: (1) have a traumatic injury which is job related and the cause of the disability and/or the 

cause of lost time due to the need for medical examination and treatment; (2) file Form CA-1 

within 30 days of the date of the injury; and (3) begin losing time from work due to the traumatic 

injury within 45 days of the injury.7

ANALYSIS -- ISSUE 1

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

COP.

Appellant filed written notice of her traumatic injury (Form CA-1) on August 5, 2020. 

Because appellant filed written notice of her traumatic injury claim (Form CA-1) on August 5, 

2020, the Board finds that it was not filed within 30 days of the accepted July 3, 2020 employment 

injury, as specified in sections 8118(a) and 8122(a)(2) of FECA. Accordingly, appellant is not 

entitled to COP.

LEGAL PRECEDENT -- ISSUE 2

An employee seeking benefits under FECA8 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.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 be disabled from employment and the duration of that disability are medical issues, 

4

Id. at § 8118(a).

5

Id. at § 8122(a)(2).

6 E.M., Docket No. 20-0837 (issued January 27, 2021); J.S., Docket No. 18-1086 (issued January 17, 2019);

Robert M. Kimzey, 40 ECAB 762-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).

7 20 C.F.R. § 10.205(a)(1-3); see also T.S., Docket No. 19-1228 (issued December 9, 2019); J.M., Docket No. 09-

1563 (issued February 26, 2010); Dodge Osborne, 44 ECAB 849 (1993); William E. Ostertag, 33 ECAB 1925(1982).

8 5 U.S.C. § 8101 et seq.

9 M.C., Docket No. 18-0919 (issued October 18, 2018); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine 

Pendleton, 40 ECAB 1143 (1989).

10 Id.; William A. Archer, 55 ECAB 674 (2004).
7

which must be proven by a preponderance of the reliable, probative, and substantial medical 

evidence.11 Findings on examination are generally needed to support a physician’s opinion that 

an employee is disabled from work.12

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.13 Disability is thus not synonymous 

with physical impairment, which may or may not result in an incapacity to earn wages.14 An 

employee who has a physical impairment causally related to a federal employment injury, but who 

nevertheless has the capacity to earn the wages he or she was receiving at the time of injury, has 

no disability as that term is used in FECA.15 

The Board will not require OWCP to pay compensation for disability in the absence of any 

medical evidence 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.16

Where employment is terminated, disability benefits would be payable if the evidence of 

record established that the claimant was terminated due to injury-related physical inability to 

perform assigned duties, or the medical evidence of record established that the claimant was unable 

to work due to an injury-related disabling condition.17

ANALYSIS -- ISSUE 2

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

work commencing September 7, 2020 causally related to her accepted July 3, 2020 employment 

injury.

In a note dated September 3, 2020, Dr. Sandhu advised that appellant was under his care 

and could not return to work until September 18, 2020. On October 2, 2020 Dr. Rosete indicated 

that she was disabled from work from October 1 through 11, 2020. Similarly, on October 15, 

2020, Dr. Qozi advised that appellant was totally disabled until October 26, 2020. They, however, 

did not otherwise provide an opinion on whether appellant was disabled from work during the 

claimed period due to her accepted employment injury. The Board has held that medical evidence 

11 V.H., Docket No. 18-1282 (issued April 2, 2019); Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer,

id.

12 Dean E. Pierce, 40 ECAB 1249 (1989).

13 20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB 

397 (1999).

14 G.T., Docket No. 18-1369 (issued March 13, 2019); Robert L. Kaaumoana, 54 ECAB 150 (2002).

15 See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-939 (issued December 6, 2018).

16 See B.K., Docket No. 18-0386 (issued September 14, 2018); Amelia S. Jefferson, supra note 11; see also 

C.S., Docket No. 17-1686 (issued February 5, 2019).

17 S.S., Docket No. 18-1680 (issued March 4, 2019); S.J., Docket No. 17-0783 (issued April 9, 2018).
8

that does not offer an opinion regarding the cause of an employee’s condition or disability is of no 

probative value on the issue of causal relationship.18 Accordingly, these reports are of no probative 

value and are insufficient to establish appellant’s claim for compensation.19

Reports from Dr. Sandhu dated July 29 through September 3, 2020, predate the claimed 

period of disability and thus are not relevant to the specific period of disability claimed.20 Thus, 

these reports are insufficient to establish appellant’s disability claims.

Other reports from Dr. Sandhu dated September 11 and October 1, 2020, do not support 

total disability commencing September 7, 2020, as he returned appellant to work on 

September 23, 2020.

In reports dated October 15 and 26, 2020, Dr. Qozi noted a history of injury and diagnosed 

pain in the right foot and toes. He opined that he was unsure why appellant had not improved but 

gave her one additional week off work. These reports are of no probative value because Dr. Qozi

did not provide an opinion that appellant was disabled from work during the claimed period, 

beginning September 7, 2020, causally related to the accepted July 3, 2020 employment injury.

21

 

Therefore, these reports are insufficient to establish her claim.

In his various reports, Dr. Patel did not provide an opinion on whether appellant was 

disabled from work during the claimed period due to her accepted employment injury. 

Accordingly, these reports are of no probative value and are insufficient to establish appellant’s 

claim for compensation.22

In form reports dated March 23, April 30, and May 12, 2021 and a work status report dated 

May 12, 2021, Dr. Patel returned appellant to regular-duty work because she was noncompliant in 

her treatment plan. He advised that appellant’s injury should have resolved by September 3, 2020,

and that any lost time after that was not related to an employment injury. The Board finds that 

these reports do not support work-related disability during the claimed period commencing 

September 7, 2020. 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 employees to self-certify their 

disability and entitlement to compensation.23 As such, these reports are insufficient to establish 

appellant’s disability claim.

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

also Charles H. Tomaszewski, 39 ECAB 461 (1988).

19 Id.

20 See S.E., Docket No. 21-1230 (issued January 27, 2023); E.B., Docket No. 17-0875 (issued December 13, 2018); 

C.L., Docket No. 16-0004 (issued June 14, 2016).

21 Supra note 18.

22 Id.

23 See E.B., supra note 20.
9

Appellant also received medical treatment from Mr. Beronilla, a physician assistant. His

medical notes are of no probative value to establish appellant’s disability claim because physician 

assistants are not considered physicians as defined under FECA.24

As the medical evidence of record does not establish disability from work for the period 

commencing September 7, 2020 causally related to her accepted July 3, 2020 employment injury, 

the Board finds that appellant has not met her burden of proof.

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 entitlement to 

COP. The Board further finds that appellant has not met her burden of proof to establish disability 

from work for the period commencing September 7, 2020 due to her accepted July 3, 2020

employment injury.

24 5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. 20 C.F.R. § 10.5(t). See 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); see 

also S.S., Docket No. 21-1140 (issued June 29, 2022) (physician assistants are not considered physicians under FECA 

and are not competent to provide medical opinions); George H. Clark, 56 ECAB 162 (2004) (physician assistants are 

not considered physicians under FECA).
10

ORDER

IT IS HEREBY ORDERED THAT the May 28 and August 5, 2021 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: February 28, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board