United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.F., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

JENNIFER MORENO VA MEDICAL CENTER, 

San Diego, CA, Employer

__________________________________________

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Docket No. 22-0156

Issued: March 3, 2023

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 12, 2021 appellant, through counsel, filed a timely appeal from a July 16, 

2021 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.3

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.

3 The Board notes that, following the July 16, 2021 decision, appellant submitted additional evidence to OWCP.

However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the 

case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered 

by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

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

work,for the period July 18 through August 31, 2020, causally related to her accepted employment

injury.

FACTUAL HISTORY

On December 20, 2019 appellant, then a 70-year-old pharmacy technician, filed an 

occupational disease claim (Form CA-2) alleging that she developed numbness, tingling, stiffness, 

and throbbing in her hands and wrists due to factors of her federal emp loyment, including 

repetitively opening and closing medication bottles, lifting, reaching, pushing, and using the 

medication cart. She noted that she first became aware of her claimed condition and realized its 

relation to her federal employment on September 17, 2018. On March 16, 2020 OWCP accepted 

appellant’s claim for bilateral carpal tunnel syndrome. By decision dated May 26, 2020, it 

expanded acceptance of her claim to include bilateral shoulder osteoarthritis, left middle trigger 

finger, and de Quervain’s radial styloid tenosynovitis. 

Appellant continued to receive medical treatment. In a report dated June 25, 2020,

Dr. Massoud Hertzel Soumekh, a Board-certified neurosurgeon, indicated that appellant had 

worked as a pharmacy technician for 20 years and recently complained of hand pain, numbness, 

and tingling sensation, and weakness. He reported objective examination findings of hypesthesia 

at the distribution of the median nerve of both hands, mild atrophy of the small muscles of the 

hands, mild weakness of thenar eminence muscles, and positive electromyography and nerve 

conduction velocity (EMG/NCV) study for bilateral carpal tunnel syndrome. Dr. Soumekh 

diagnosed moderately severe bilateral carpal tunnel syndrome. He recommended bilateral carpal 

tunnel release surgery. 

In a work excuse note dated June 25, 2020, Dr. Soumekh reported a diagnosis of carpal 

tunnel syndrome and indicated that appellant was totally disabled from June 25 through

September 1, 2020. 

On September 1, 2020 Dr. Soumekh performed a left carpal tunnel release surgery. The 

operative report noted a preoperative diagnosis of bilateral carpal tunnel syndrome. OWCP paid 

appellant wage-loss compensation on the supplemental rolls, effective September 1, 2020. 

On December 18, 2020 appellant filed a claim for compensation (Form CA-7) for disability 

from work for the period July 18 through December 18, 2020. 

In a March 24, 2021 development letter, OWCP informed appellant of the deficiencies of 

her claim for wage-loss compensation. It advised her of the type of additional medical evidence 

needed and provided a questionnaire for her completion. OWCP afforded appellant 30 days to 

provide the necessary evidence. No additional evidence was received by OWCP.

By decision dated May 5, 2021, OWCP denied wage-loss compensation for the period 

July 18 through August 31, 2020, finding that the medical evidence of record was insufficient to 

establish that appellant was disabled from work commencing July 18, 2020 due to her accepted 

employment injury.
3

On May 27, 2021 appellant, through counsel, requested reconsideration of the May 5, 2021 

decision. No additional medical evidence was received. 

By decision dated July 16, 2021, OWCP denied modification of the May 5, 2021 decision. 

LEGAL PRECEDENT

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

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

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

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

receiving at the time of the injury.6 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.7 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 the reliable, probative, and substantial medical evidence.8 

The medical evidence required to establish causal relationship between a claimed period 

of disability and an employment injury is rationalized medical opinion evidence. The opinion of 

the physician must be based on a complete factual and medical background of the claimant, must 

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

nature of the relationship between the claimed disability and the specific employment factors 

identified by the claimant.

9

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 an employee to self-certify his or her disability and 

entitlement to compensation.10

4

Supra note 2.

5

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).

6

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

397 (1999).

7

See T.J., Docket No. 20-0819 (issued June 17, 2021); D.G., Docket No. 18-0597 (issued October 3, 2018).

8

S.G., Docket No. 18-1076 (issued April11, 2019); Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

9 K.H., Docket No. 19-1635 (issued March 5, 2020); V.A., Docket No. 19-1123 (issued October 29, 2019).

10 A.R., Docket No. 20-0057 (issued April7, 2021); S.G., supranote 8; WilliamA. Archer, 55 ECAB 674 (2004).
4

ANALYSIS

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

work for the period July 18 through August 31, 2020, causally related to her accepted employment 

injury.

Appellant submitted a report and work excuse note dated June 25, 2020 by Dr. Soumekh 

who conducted an examination and diagnosed moderately severe bilateral carpal tunnel syndrome. 

He noted that appellant was totally disabled from work from June 25 through September 1, 2020. 

Although Dr. Soumekh noted that appellant was unable to work during part of the claimed period 

of disability, he did not provide any medical rationale explaining how appellant’s accepted 

bilateral upper extremity conditions prevented her from working.11 The Board has held that 

medical evidence must include rationale explaining how the physician reached the conclusion that 

he or she is supporting.12 Dr. Soumekh’s report, therefore, is of limited probative value and 

insufficient to establish appellant’s disability claim.

As the medical evidence of record is insufficient to establish disability from work for the 

period July 18 through August 31, 2020, due to her accepted employment injury, the Board finds 

that she 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 disability from 

work for the period July 18 through August 31, 2020, causally related to her accepted employment 

injury.

11 T.G., Docket No. 20-0121 (issued May 17, 2022); F.S., Docket No. 18-0098 (issued August13, 2018); P.W., 

Docket No. 17-0514 (issued June 9, 2017).

12 M.M., Docket No. 18-0817 (issued May 17, 2019); BeverlyA. Spencer, 55 ECAB 501 (2004).
5

ORDER

IT IS HEREBY ORDERED THAT the July 16, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 3, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy 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