United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Harrisburg, PA, 

Employer

__________________________________________

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Docket No. 22-1115

Issued: January 4, 2023

Appearances: Case Submitted on the Record

Aaron Aumiller, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 25, 2022 appellant, through counsel, filed a timely appeal from a January 25, 2022 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

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 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. 20 C.F.R. 

§ 501.3(e)-(f). The 180th day following OWCP’s January 25, 2022 decision was July 24, 2022. As this fell on a 

Sunday, appellant had until the next business day, Monday, July 25, 2022, to file a timely appeal, thereby rendering 

this appeal as timely filed. 20 C.F.R. § 501.3(f)(2); see G.H., Docket No. 22-0122 (issued May 20, 2022). 
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.4

ISSUE

The issue is whether appellant has met her burden of proof to establish disability from work 

for the period November 30, 2015 through March 15, 2016 causally related to her accepted 

April 14, 2015 employment injury. 

FACTUAL HISTORY

This case has previously been before the Board on a different issue.5 The facts and 

circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The 

relevant facts are as follows.

On April 30, 2015 appellant, then a 47-year-old laborer custodian, filed a traumatic injury 

claim (Form CA-1) alleging that on April 14, 2015 she sustained right tennis elbow after cutting 

and breaking down cardboard while in the performance of duty. She stopped work on April 14, 

2015 and returned to modified duty on April 30, 2015. OWCP accepted the claim for right 

synovitis and tenosynovitis. It paid appellant wage-loss compensation on the supplemental rolls 

for intermittent disability from May 30 to July 20, 2015 and for total disability from July 20 to

November 29, 2015.

On August 31, 2015 Dr. Matthew J. Espenshade, an osteopath, Board-certified in 

orthopedic surgery, performed a partial lateral epicondylectomy at the right elbow, a debridement 

and release of the extensor carpi radialis brevis, and a repair of the collateral ligament. 6

On November 23, 2015 Dr. Espenshade noted that appellant continued to complain of 

burning and pain on the right side. On examination he found mild swelling on the right with no 

effusion. In a November 23, 2015 work status form, Dr. Espenshade indicated that appellant could 

return to modified employment on November 30, 2015 with no use of the affected arm. 

The employing establishment offered appellant the position of modified custodian on 

November 30, 2015 at the current salary of her date-of-injury position. The duties consisted of 

3

5 U.S.C. § 8101 et seq.

4 The Board notes that, following the January 25, 2022 OWCP decision, appellant submitted additional evidence to 

the Board. 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.

5 Docket Nos. 18-0757 & 18-1705 (issued November 14, 2018).

6 OWCP, on August 13, 2015, referred appellant to Dr.RobertR. Draper, Jr., a Board-certified orthopedic surgeon, 

for a second opinion examination. In a report dated September 21, 2015, Dr. Draper noted that appellant had recently 

undergone right elbow surgery and was not able to return to work. He estimated that she could perform light-duty 

work in around six weeks.
3

cleaning horizontal and vertical surfaces and rails. The physical requirements of the position 

included no use of the right arm or cleaning overhead. Appellant accepted the offered position .

A nurse advised OWCP on December 13, 2015 that appellant had refused the employing 

establishment’s offer of modified employment.

On December 21, 2015 appellant filed a claim for compensation (Form CA-7), for 

disability from work for the period November 28 to December 11, 2015. The employing 

establishment advised that she had refused the November 30, 2015 job offer.

In a January 5, 2016 progress report, Dr. Espenshade discussed appellant’s complaints of 

right elbow pain unimproved by surgery. He noted that she also had left elbow pain which she 

attributed to using her left elbow more performing light duty. Dr. Espenshade diagnosed status 

post right elbow partial lateral epicondylectomy, debridement, and collateral repair. He opined 

that appellant’s subjective complaints outweighed the objective findings.

On January 25, 2016 Dr. Michael Darowish, a Board-certified orthopedic surgeon, 

evaluated appellant for right lateral elbow pain due to a “work-related claim.” He diagnosed 

persistent pain in the right lateral elbow after a lateral epicondylectomy and opined that she might 

have a “latrogenic injury to the lateral ulnar collateral ligament....” Dr. Darowish also found 

carpal and radial tunnel syndrome and internal impingement of the shoulder.

A magnetic resonance imaging (MRI) scan of the right elbow, obtained on January 27, 

2016, demonstrated an “[a]bnormal appearance of the common extensor tendon origin upon the 

lateral epicondyle with abnormal fluid signal interposed between the tendon and the adjacent 

epicondyle and some proximal thickening.” 

On January 29, 2016 the employing establishment indicated that appellant had not returned 

to work. 

OWCP, on February 1, 2016, notified appellant of its proposed termination of her wageloss compensation under 20 C.F.R. § 10.500(a) as she had declined to accept an offered position 

within her work restrictions. It provided her 30 days to report to the assigned position or show 

that her refusal was justified.

In a February 8, 2016 progress report, Dr. Darowish advised that the MRI scan showed 

detachment of the lateral ulnar collateral ligament from the humeral insertion. He recommended 

a radial nerve compression and lateral ulnar collateral ligament repair, noting that it was a 

“relatively extensive surgery” with a long recovery. Dr. Darowish opined that appellant could 

work lifting, pushing, and pulling up to one pound with her right hand and performing no repetitive 

activities pending surgery.

Dr. Espenshade, on February 9, 2016, indicated that the MRI scan demonstrated a possible 

retear that he did not believe was significant. He advised that he had released appellant to resume 

work using only her left hand but she did not return as she disagreed that she could perform the 

duties using only her left hand. Dr. Espenshade diagnosed right elbow pain, right elbow radial 

neuritis, and status post right lateral debridement and release. He continued appellant’s “light duty 

restrictions” and recommended another opinion. 
4

By decision dated March 28, 2016, OWCP denied appellant’s disability claim for the 

period November 28 to December 11, 2015 and continuing, pursuant to 20 C.F.R. § 10.500(a), as 

she failed to accept a November 30, 2015 temporary modified-duty assignment within her 

restrictions. It noted that the offered position was within the work restrictions set forth by

Dr. Espenshade. OWCP informed appellant that if the employing establishment withdrew the 

limited-duty position or if her condition worsened such that she was unable to perform the 

assignment, she could file a notice of recurrence of disability.

On March 31, 2016 appellant, through counsel, requested an oral hearing before a

representative of OWCP’s Branch of Hearings and Review. 

Dr. Darowish, on March 16, 2016, performed a right radial tunnel decompression and right 

lateral ulnar collateral ligament repair.7 OWCP paid appellant wage-loss compensation for total 

disability from March 16 to April 1, 2016. 

In an e-mail dated March 23, 2016, the employing establishment confirmed that the 

November 30, 2015 offered position was a “temporary job offer based on [appellant’s] temporary 

restrictions.”

Appellant, on August 29, 2016, accepted a modified laborer custodial position with the 

employing establishment.

On September 21, 2016 appellant filed a notice of recurrence (Form CA-2a) claiming 

disability from work commencing November 30, 2015, causally related to her April 14, 2015 

employment injury. She advised that she had stopped work on November 30, 2015 and returned 

to work on August 29, 2016. The employing establishment indicated that appellant went home on 

November 30, 2015 stating that she could not perform the offered light-duty position. 

A telephonic hearing was held on October 25, 2016. 

By decision dated December 12, 2016, an OWCP hearing representative affirmed the 

March 28, 2016 decision. He noted that appellant had stopped work on November 30, 2015 after 

less than two hours. The hearing representative further noted that OWCP had paid her wage-loss 

compensation from March 16 to April 1, 2016. He found that OWCP’s March 28, 2016 decision 

pertained only to the period of November 30, 2015 through March 15, 2016, and asserted that the 

issue of whether appellant was entitled to wage-loss compensation subsequent to that date should 

be separately adjudicated.

By decision dated December 16, 2016, OWCP found that appellant had not established a 

recurrence of disability beginning November 30, 2015 causally related to her accepted April 14, 

2015 employment injury. 

7

In return-to-work forms dated May3 and June28, 2016,Dr.Darowish found that appellant was unable to work. 

On August 23, 2016 he noted that appellant was doing well after a right radial tunnel decompression and right elbow 

lateral collateral repair but had some continued numbness and tingling in the radial nerve and right hand, and bilateral 

wrist pain. Dr.Darowish released her to resume work with restrictions. 
5

On December 19, 2016 appellant, through counsel, requested an oral hearing on the 

December 16, 2016 recurrence decision before a representative of OWCP’s Branch of Hearings 

and Review. 

Subsequently, OWCP received a December 8, 2016 report from Dr. Darowish. 

Dr. Darowish diagnosed right lateral epicondylitis, right lateral ulnar collateral ligament 

detachment, and right radial tunnel syndrome. He advised that the detachment of the lateral ulnar 

collateral ligament could be the result of a traumatic event but found that appellant had not 

experienced such an event. Dr. Darowish attributed the condition to degeneration of the lateral 

epicondyle from the lateral epicondylitis and microtears related to appellant’s work duties. 

By decision dated August 25, 2017, OWCP’s hearing representative affirmed the 

December 16, 2016 recurrence decision.

On December 12, 2017 appellant, through counsel, requested reconsideration of the 

December 12, 2016 decision finding that she was not entitled to wage-loss compensation for the 

period November 30, 2015 through March 15, 2016, pursuant to 20 C.F.R. § 10.500(a). 

On February 21, 2018 appellant appealed the August 25, 2017 decision to the Board. 

By decision dated March 8, 2018, OWCP denied appellant’s request for reconsideration as 

she had not raised a legal argument or submitted evidence sufficient to warrant reopening her case 

for further merit review under 5 U.S.C. § 8128(a). It determined that she had requested 

reconsideration of its August 25, 2017 decision rather than the December 12, 2016 decision.

By decision dated November 14, 2018, the Board affirmed the August 25, 2017 decision.8 

The Board further found that OWCP had improperly issued its March 8, 2018 nonmerit decision. 

The Board noted that OWCP had mistakenly found that appellant had requested reconsideration 

of its August 25, 2017 decision instead of the December 12, 2016 decision finding that she was 

not entitled to wage-loss compensation beginning November 30, 2015 pursuant to section 

10.500(a). The Board further determined that OWCP lacked jurisdiction over the August 25, 2017 

decision as counsel had requested review of the decision by the Board. The Board thus found the 

March 8, 2018 decision null and void.

On January 19, 2020 counsel asserted that his December 12, 2017 request for 

reconsideration of the December 12, 2016 decision remained pending before OWCP. 

By decision dated January 25, 2022, OWCP denied modification of its December 12, 2016 

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA9 has the burden of proof to establish the 

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

8

Supra note 5. 

9

Supra note 3.
6

compensation is claimed is causally related to the employment injury. 10 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.11 For each period of disability claimed, the employee has the 

burden of proof to establish that he or she was disabled from work as a result of the accepted 

employment injury.12

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.14

Section 10.500(a) of OWCP’s regulations provides that benefits are available only while 

the effects of a work-related condition continue. Compensation for wage loss due to disability is 

available only for periods during which an employee’s work-related medical condition prevents 

him or her from earning the wages earned before the work-related injury. For example, an 

employee is not entitled to compensation for wage-loss claimed on a Form CA-7 to the extent that 

evidence contemporaneous with the period claimed on a Form CA-7 establishes that an employee 

had medical work restrictions in place, that light duty within those work restrictions was available, 

and that the employee was previously notified in writing that such duty was available. 15

OWCP’s procedures provide that, when a claimant is not on the periodic rolls, a claim for 

wage-loss compensation may be received on a Form CA-7 when a temporary light-duty 

assignment has been provided by the employing establishment. These procedures further provide 

that, when a formal loss of wage-earning capacity has not been issued, OWCP’s claims examiner 

should follow certain specified procedures. If the evidence establishes that injury-related residuals 

continue and result in work restrictions, that light duty within those work restrictions was available, 

and that the employee was notified in writing that such light duty was available, then wage -loss 

benefits (effective the date of the written notification of light-duty availability) are not payable for 

the period covered by the available light-duty assignment. Such benefits are payable only for 

10 See D.S., Docket No. 20-0638 (issued November 17, 2020);F.H., Docket No. 18-0160 (issued August23, 2019); 

C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 

ECAB 1143 (1989).

11 20 C.F.R. § 10.5(f); L.T., Docket No. 20-1488 (issued October 24, 2022); S.T., Docket No. 18-0412 (issued 

October 22, 2018); Cheryl L. Decavitch, 50 ECAB 397 (1999).

12 See C.E., Docket No. 22-0663 (issued October 31, 2022); B.O., Docket No. 19-0392 (issued July 12, 2019);D.G., 

Docket No. 18-0597 (issued October 3, 2018).

13 See A.G., Docket No. 22-0469 (issued October 28, 2022); J.M., Docket No. 19-0478 (issued August9, 2019); 

S.J., Docket No. 17-0838 (issued December 20, 2017); KathrynE. DeMarsh, 56 ECAB 677 (2005).

14 Id.

15 20 C.F.R. § 10.500(a); Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, 

Chapter 2.814.9a (June 2013).
7

periods during which an employee’s work-related medical condition prevent him or her from 

earning the wages earned before the work-related injury.16

ANALYSIS

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

work for the period November 30, 2015 through March 15, 2016 causally related to her accepted 

April 14, 2015 employment injury.

On November 23, 2015 Dr. Espenshade found that appellant could perform limited-duty 

work with no use of her right arm. Based on his report, on November 30, 2015 the employing 

establishment offered her a modified custodian position. The physical requirements included no 

use of the right arm or overhead cleaning. Appellant initially accepted the position, but stopped 

work on November 30, 2015, asserting that she was unable to perform the duties of the offered 

position.

The Board finds that Dr. Espenshade’s November 23, 2015 report provides the best 

assessment of appellant’s ability to work contemporaneous with the offered limited-duty 

assignment by the employing establishment, and that the restrictions provided in this report would 

allow her to perform the duties of the offered assignment. Thus, the evidence establishes that 

appellant’smedical work restrictions demonstrated her ability to perform light duty, that light duty

within those work restrictions was available, and that she was notified in writing that such light 

duty was available.

17

 

The Board finds that appellant has not submitted any medical evidence supporting that she 

was disabled due to her accepted April 14, 2015 employment injury thereby preventing her from 

working in the temporary light-duty assignment offered by the employing establishment for the 

period November 30, 2015 through March 15, 2016. There is further no evidence showing that 

the temporary modified light-duty assignment was not available during this period.

On January 5, 2016, Dr. Espenshade evaluated appellant for continued right elbow pain 

unimproved after surgery. He diagnosed status post right elbow partial lateral epicondylectomy, 

debridement, and collateral repair. Dr. Espenshade found that subjective complaints outweighed 

the objective findings. He did not, however, address the relevant issue of disability from 

employment, and thus his report is insufficient to meet appellant’s burden of proof.18

In a January 25, 2016 report, Dr. Darowish diagnosed persistent pain in the right lateral 

elbow after a lateral epicondylectomy, carpal and radial tunnel syndrome, internal impingement of 

16 Id. at Chapter 2.814.9b (June 2013); see also D.D., Docket No. 20-0772 (issued April27, 2022).

17 See L.M., Docket No. 20-0888 (issued May 14, 2021); S.W., Docket No. 18-1529 (issued April19, 2019).

18 See L.G., Docket No. 21-0034 (issued December 7, 2021); S.B., Docket No. 21-0182 (issued July 9, 2021); K.B., 

Docket No. 19-0155 (issued January 10, 2020).
8

the shoulder, and a possible latrogenic injury to the ulnar collateral ligament. As he did not address 

the relevant issue of disability, his report is insufficient to meet appellant’s burden of proof.19

On February 8, 2016 Dr. Darowish reviewed an MRI scan and found detachment of the 

lateral ulnar collateral ligament from the humeral insertion. He recommended surgery. 

Dr. Darowish found that appellant could work with restrictions on lifting, pushing, and pulling up 

to one pound with her right hand and performing no repetitive activities. He did not, however, 

address the cause of her work restrictions or relate them to the accepted employment injury. The 

Board has held that medical evidence 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. 20 

Further, Dr. Darowish’s restrictions on appellant’s use of her right hand were within the 

restrictions of the offered temporary position. Consequently, his report is insufficient to meet her 

burden of proof. 

In a report dated February 9, 2016, Dr. Espenshade noted that the MRI scan had 

demonstrated a possible retear that he did not believe was significant. He related that he had 

released appellant to work using her left hand, but she had not returned. Dr. Espenshade indicated 

that she could continue working with restrictions. As he did not find appellant disabled from the 

duties of the offered temporary position, his report is insufficient to meet her burden of proof.

In a December 8, 2016 report, Dr. Darowish attributed appellant’s detachment of the lateral 

ulnar collateral ligament to degeneration of the lateral epicondylitis resulting from her employment 

duties. He did not, however, directly address the period of disability from work for which 

compensation is claimed, and thus his report is insufficient to meet her burden of proof. 21 

The offered assignment would have paid appellant wages for the period November 30, 

2015 through March 15, 2016 that were at least equal to those paid by her date-of-injury position.

Therefore, based on the above-described principles, OWCP properly invoked 20 C.F.R. 

§ 10.500(a) as justification for its denial of appellant’s disability claim for the period 

November 30, 2015 through March 15, 2016.22

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. 

19 Id.; see also L.B., Docket No. 18-0533 (issued August 27, 2018); C.H., Docket No. 17-1239 (issued 

November 20, 2017) (the Board will not require OWCP to pay compensation for disability in the absence of any 

medical evidence directly addressing the specific date of disability for which compensation is claimed).

20 See T.M., Docket No. 21-1310 (issued March 7, 2022); K.F., Docket No. 19-1846 (issued November 3, 2020); 

L.B., id.; D.K., Docket No. 17-1549 (issued July 6, 2018).

21 See S.G., Docket No. 20-0828 (issued January 6, 2022); L.V., Docket No. 19-1725 (issued April 5, 2021); 

SandraD. Pruitt, 57 ECAB 126 (2005).

22 See R.C., Docket No. 20-0269 (issued December 23, 2021); L.M., supra note 17.
9

CONCLUSION

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

work for the period November 30, 2015 through March 15, 2016 causally related to her accepted 

April 14, 2015 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the January 25, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 4, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board