United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

U.S. POSTAL SERVICE, MAIN POST OFFICE, 

Peoria, IL, Employer

__________________________________________

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Docket No. 20-1507

Issued: August 8, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 12, 2020 appellant, through counsel, filed a timely appeal from a June 10, 2020 

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 The Board notes that the June 10, 2020 decision addressed in part whether appellant had met her burden of proof 

to establish a left rotator cuff tear causally related to the accepted employmentinjury. However,OWCP issued that 

decision while an appealregarding that same issue was still pending in Docket No. 20-1230. The Board and OWCP 

may not simultaneously exercise jurisdiction over the same issue. 20 C.F.R. § 501.2(c)(2). The June 10, 2020 decision 

is therefore null and void with regard to the issue of expansion. Furthermore, during the pendency of the current 

appealOWCP issued a September 18, 2020 decision denying modification of the June 10, 2020 decision. As noted 

above, the Board and OWCP may not simultaneously exercise jurisdiction over the same issue(s). Consequently,

OWCP’s September 18, 2020 decision is also set aside as null and void. See 20 C.F.R. § 501.2(c)(3); see also Order 

Remanding Case, C.G.,Docket No. 21-0779 (issued December 3, 2021); A.C., Docket No. 18-1730 (issued July 23, 

2019); M.C., Docket No. 18-1278, n.1 (issued March 7, 2019); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. 

Billings, 41 ECAB 880 (1990).
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 intermittent 

disability from work for the remaining claimed disability from work duringthe period December 8, 

2018 through July 5, 2019 causally related to her accepted employment injury.

FACTUAL HISTORY

On April 26, 2019 appellant, then a 47-year-old sales and service/distribution associate, 

filed an occupational disease claim (Form CA-2) alleging that she developed carpal tunnel

syndrome (CTS) in her arms/wrists and a pinched ulna nerve in her left arm due to factors of her 

federal employment, including repetitive motions of throwing letters, flats, parcels and box mail 

on a daily basis for the past 25 years. She noted that she first became aware of her condition on 

December 7, 2017 and realized its relation to her federal employment on April 3, 2019. Appellant 

stopped work on May 3, 2019. On July 29, 2019 OWCP accepted the claim for right CTS and 

lesion of the left ulnar nerve.5

OWCP received an April 26, 2019 duty status report (Form CA-17) wherein Kellie Dewitt, 

a physician assistant, indicated that she examined appellant on March 20, 2019 due to median 

nerve neuropathy and noted that she should not return to work until she was examined by a 

specialist. Ms. Dewitt further advised that appellant could work eight hours a day, with 

restrictions.

In a May 2, 2019 report, Dr. Jeffrey Lowe, an osteopath, noted that he examined appellant 

due to bilateral upper extremity pain and paresthesia which had been ongoing for two years. He 

related that she worked at the employing establishment and that she believed that her symptoms 

had significantly progressed in October and November 2018. Dr. Lowe reviewed appellant’s 

April 3, 2019 bilateral upper extremity electromyogram (EMG) and found ulnar neuropathy at the 

left elbow and mild right CTS. He completed a Form CA-17 of even date and indicated that she 

could perform light-duty work as directed by her primary care physician. Dr. Lowe referred 

appellant for occupational therapy.

In a May 3, 2019 note, Dr. Lowe referred appellant for occupational therapy from May 3 

through August 3, 2019 due to left elbow pain. On May 10, 2019 he completed an attending 

physician’s report (Form CA-20) and diagnosed right CTS. Dr. Lowe noted that appellant

3

5 U.S.C. § 8101 et seq.

4 The Board notes that,following the June 10, 2020 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.

5 OWCP assigned the present claim OWCP File No. xxxxxx594. On September 24, 2019 appellant filed a traumatic 

injury claim (Form CA-1) alleging that on December 7, 2017 she sustained a left shoulder injury while in the 

performance of duty. OWCP assigned that claim OWCP File No. xxxxxx787. OWCP has administratively combined 

appellant’s claims in OWCP File Nos. xxxxxxx787 and xxxxxx594, with the latter servin g as the master file. 
3

performed repetitive duties and recommended right carpal tunnel release surgery. He found that

she could perform only light-duty work beginning May 2, 2019.

In a May 20, 2019 note, Ms. Dewitt noted that she examined appellant on November 19, 

2018 and March 20, 2019 due to symptoms in her hands, including numbness and tingling in the 

hands. She noted that she referred appellant to Dr. Lowe following her EMG.

Joseph A. Emmerich, a physician assistant, completed treatment and narrative notes on 

May 28, 2019 and recommended a right carpal tunnel release surgery, as well as conservative 

therapy of the left elbow neuropathy. He found that appellant could perform light-duty work until 

her surgery.

Appellant subsequently filed claims for compensation (Form CA-7) for intermittent

disability from work for the period December 5, 2018 through August 16, 2019. 

In support thereof, appellant submitted a July 29, 2019 statement explaining that she began 

seeking weekly treatment for her accepted bilateral upper extremity conditions in December 2018. 

She also provided a chart listing her use of intermittent leave without pay and the corresponding 

appointments with treatment providers. Appellant noted that on April 13, 2019 she was diagnosed 

with CTS, as well as a pinched ulnar nerve, and was provided light-duty work restrictions.6

In an August 26, 2019 development letter, OWCP informed appellant of the deficiencies 

of her claims for disability. It advised her of the type of medical evidence needed, including a 

medical opinion reflecting that she was intermittently disabled due to her accepted conditions. 

OWCP afforded her 30 days to submit the necessary evidence.

Appellant provided additionalmedical evidence. Dr. Lowe examined appellant on July 25, 

2019 and noted her two-year history of pain and paresthesia affecting mainly the medial nerve 

distribution. He diagnosed chronic right upper extremity CTS as demonstrated on EMG. 

Dr. Lowe recommended right carpal tunnel release surgery. 

On August 14, 2019 appellant underwent right carpal tunnel release surgery.

On August 30, 2019 appellant provided a list of treatment appointments dated May 2 

through September 12, 2019. She also indicated that Ms. Dewitt acted as her primary care 

provider and provided dates of treatment. 

By decision dated December 9, 2019, OWCP denied appellant’s August 13, 2019claim for 

compensation for disability from work during the period December 28, 2018 through 

July 5, 2019.7

On December 17, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. The oral hearing was held on 

April 7, 2020.

6 The employing establishment provided appellant with a notice of removal on August 14, 2019 due to unacceptable 

conduct.

7

It authorized four hours of compensation for EMG testing performed on April 3, 2019. 
4

OWCP received a July 1, 2019 note from Ms. Dewitt, who noted treating appellant due to 

her right hand condition and recommended surgery. Dr. Lowe completed a Form CA-20 on 

December 30, 2019 and indicated that he provided treatment for appellant due to right carpal tunnel 

release and left shoulder surgery on December 4, 2019. He indicated that appellant was partially 

disabled from work July 2 through 24, 2019 and further indicated that he provided treatment on 

May 2 and 28, 2019.

Appellant submitted additional evidence, including CA-17 forms dated May 2, 2019 with 

no signatures. She also resubmitted dates of examination.

By decision dated June 10, 2020, OWCP’s hearing representative modified the 

December 9, 2019 OWCP decision to authorize payment of four hours of wage-loss compensation 

for the May 2, 2019 appointment with Dr. Lowe; however, the claim remained denied with regard 

to the remaining claimed disability as the medical evidence of record was insufficient to establish 

causal relationship between the claimed disability and the accepted employment injury.

LEGAL PRECEDENT

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 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 

opinion evidence.10 Findings on examination are generally needed to support a physician’s 

opinion that an employee is disabled from work.11

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. 12 Disability is, thus, not 

synonymous with physical impairment, which may or may not result in an incapacity to earn 

wages.13 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.14

8

Supra note 3.

9

See C.B., Docket No. 20-0629 (issued May 26, 2021); D.S., Docket No. 20-0638 (issued November 17, 2020); 

F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn 

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

10 S.G., Docket No. 18-1076 (issued April11, 2019); V.H.,Docket No. 18-1282 (issued April2, 2019); Fereidoon 

Kharabi, 52 ECAB 291 (2001).

11 C.S., Docket No. 20-1621 (issued June 28, 2021); Dean E. Pierce, 40 ECAB 1249 (1989).

12 20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020); S.T., Docket No. 18-0412 (issued 

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

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

14 See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).
5

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 comp ensation is 

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

entitlement to compensation.15

ANALYSIS

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

claimed disability from work during the period December 8, 2018 through July 24, 2019 causally 

related to her accepted employment injury.

In support of her claims for wage-loss compensation, appellant submitted reports from

Dr. Lowe indicating that she was partially disabled commencing May 2, 2019. However, 

Dr. Lowe did not provide an opinion on causal relationship between the remaining claimed 

disability and the accepted employment injury. As such, his reports are of no probative value and 

are insufficient to establish the claim.16 

Reports from physician assistants Ms. Dewitt and Mr. Emmerich dated April 26, May 20 

and 28, and July 1, 2019, are of no probative value as physician assistants are not considered 

“physician[s]” as defined under FECA and therefore are not competent to provide a medical 

opinion.17 These reports are therefore insufficient to establish causal relationship between the 

remaining claimed periods of disability and the accepted employment conditions.

Appellant also submitted diagnostic imaging studies. The Board has held that diagnostic 

studies, standing alone, lack probative value as they do not provide an opinion on causal 

relationship between the accepted employment injury and the claimed period of disability. 18 This 

evidence is therefore insufficient to establish appellant’s claim.

As the medical evidence of record is insufficient to establish the remaining claimed

disability from work during the claimed period causally related to her accepted employment injury, 

the Board finds that she has not met her burden of proof.19

15 See M.J.,Docket No. 19-1287 (issued January 13, 2020); C.S.,Docket No. 17-1686 (issued February 5, 2019); 

William A. Archer, 55 ECAB 674 (2004).

16 L.S., Docket No. 19-1231 (issued March 30, 2021).

17 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law). 

Id.; 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 

2.805.3a(1) (January 2013); E.T.,Docket No. 17-0265 (issued May 25, 2018) (physician assistants are not considered 

physicians under FECA); 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).

18 See I.C., Docket No. 19-0804 (issued August 23, 2019).

19 Upon return of the case record, OWCP shall consider payment of up to four hours of compensation to appellant 

for lost time from work due to documented medical appointments to assess or treat symptoms related to the accepted 

employment injury. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 

2.901.19(c) (February 2013); J.E., Docket No. 19-1758 (issued March 16, 2021); A.V., Docket No. 19-1575 (issued 

June 11, 2020). See also K.A., Docket No. 19-0679 (issued April6, 2020);WilliamA. Archer, 55 ECAB 674 (2004).
6

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 the remaining 

claimed disability from work during the period December 18, 2018 through July 5, 2019.

ORDER

IT IS HEREBY ORDERED THAT the June 10, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 8, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board