United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.C., Appellant

and

U.S. POSTAL SERVICE, PROCESSING AND 

DISTRIBUTION ANNEX, Cleveland, OH, 

Employer

__________________________________________

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Docket No. 22-0990

Issued: December 19, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 June 15, 2022 appellant, through counsel, filed a timely appeal from a May 5, 2022 

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 May 5, 2022 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.
2

ISSUE

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

on February 1, 2, 14, and 16, 2021, causally related to her accepted January 7, 2019 employment 

injury.

FACTUAL HISTORY

On January 8, 2019 appellant, then a 48-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that on January 7, 2019 she was dispatching mail when a coworker pusheda forklift

carrying a box of mail onto her right leg and ankle while in the performance of duty. She stopped 

work on the date of injury and returned to work in a limited-duty status on March 8, 2019. 

Appellant returned to work in a full-time, full-duty status on March 11, 2020.

OWCP accepted the claim for contusion of the right ankle, initial encounter. The accepted 

conditions were subsequently expanded to include other joint disorders of the right ankle and foot 

and right leg posterior tibial tendinitis. OWCP paid appellant wage-loss compensation on the 

supplemental rolls, beginning February 22, 2019, and on the periodic rolls, beginning

June 20, 2021. By decision dated May 19, 2020, OWCP granted appellant a schedule award for 

five percent permanent impairment of her right lower extremity. On June 16, 2021 she underwent 

arthroscopic ankle debridement of osteochondral lesion with synovectomy, posterior tibial tendon 

debridement, and flexor digitorum tendon transfer, right.

On September 2, 2021 OWCP expanded the acceptance of the claim to include 

chondromalacia, right ankle, and injured muscle tendon post at low leg and right leg.

Appellant filed claims for compensation (Form CA-7) for disability from work for the 

period January 20, 2019 through February 26, 2021. In the Form CA-7a, appellant claimed eight

hours of leave without pay (LWOP) for the dates of February 1, 2, 14 and 16, 2021. 

In a February 8, 2021 treatment note, Dr. Timothy Levar, a podiatric surgeon, noted that 

appellant was seen on February 8, 2021 for treatment. In a separate note also dated February 8, 

2021, Dr. Levar diagnosed possible osteochondral defect, medial ankle impingement, posterior 

tibial tendinopathy, and planus foot type.

In a February 15, 2021 treatment note, Dr. Levar noted that appellant presented for 

reevaluation of right ankle pain that began four or five years prior. He noted that, in January 2019, 

her foot was run over by a jack while at work and that she had complaints of pain in the right and 

medial ankle. Dr. Levar diagnosed possible osteochondral defect, medial ankle impingement, 

posterior tibial tendinopathy, and planus foot type. He noted that a magnetic resonance imaging

(MRI) scan revealed osteochondral lesion of the medial talar shoulder, posterior tibial tendinosis, 

and heterotopic ossification of the deltoid ligament. Dr. Levar also noted that the MRI scan 

corresponded well with clinical findings and appellant continued to have pain over the PT 

(posterior tibial) tendon and medial ankle joint in the setting of a planovalgus foot deformity. He 

discussed surgical versus conservative care options and recommended custom orthotics bracing 

for mechanical support of her foot and ankle. Dr. Levar also noted that they discussed arthroscopic 

ankle debridement, posterior tibial tendon repair/debridement with possible flexor tendon transfer, 

and calcaneal osteotomy to control pathologic rearfoot motion. He opined that, given the 

chronicity of her pain, there was a high likelihood she would require surgical intervention should 
3

bracing fail to provide relief. Dr. Levar noted that the right lower leg and foot were casted using 

a fiberglass cast with ankle and subtalar joint in neutral position for right custom AFO orthotic and 

molded insert.

In February 15 and 18, 2021 duty status reports (Form CA-17), Dr. Levar noted clinical 

findings to include right ankle posterior tibial tendinitis and provided work restrictions of zero

hours of pulling and pushing.

In a development letter dated March 5, 2021, OWCP acknowledged receipt of appellant’s 

Form CA-7 claims for disability for the period,commencing February 1,2021. It notified appellant 

that the evidence supported that she had stopped work on February 14, 2021 and had not returned; 

however, the evidence was insufficient to establish her claims for wage-loss compensation. 

OWCP advised appellant of the type of medical evidence necessary to establish her disability 

claims and afforded her 30 days to respond.

Dr. Levar saw appellant on March 29, 2021 and repeated his findings. He also provided a 

March 29, 2021 duty status report (Form CA-17). Dr. Levar noted clinical findings to include 

right ankle posterior tibial tendinitis and provided work restrictions to include zero hours of pulling 

and pushing.

By decision dated April 14, 2021, OWCP denied appellant’s claim for compensation for 

disability from work on February 1, 2, and 14, 2021, and February 16 through 26, 2021. It

explained that appellant’s treating physician did not opine that she was disabled from work or 

provide medical rationale explaining why she was unable to work.

On April 19, 2021 appellant, through counsel, timely requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review, which was held on July 8, 2021.

OWCP received reports from Dr. Levar dated April 26 and 29, May 10 and 24, June 7, 14, 

16 and 22, July 1, 20 and 29, and August 31, 2021, and an operative report from Dr. Levar dated 

June 16, 2021.

By decision dated September 16, 2021, OWCP’s hearing representative affirmed the 

April 14, 2021 decision. He found that there was no rationalized medical opinion explaining why 

appellant was disabled on February 1, 2, 14 and 16, 2021, due to her employment injury and that 

compensation for wage loss was not payable for those dates.

On February 4, 2022 appellant requested reconsideration. In a January 31, 2022 statement, 

appellant argued that she presented a form to management for the dates from February 1 to 26, 

2021, with limited-duty restrictions, and that her supervisor, M.D., advised her not to return to 

work until she received a modified job offer. She argued that no work was available, she never 

received a job offer for the claimed dates, and the time was incorrectly coded in the system, causing 

her compensation to be denied. Appellant submitted a January 21, 2022 email from C.F., advising 

that pay adjustments needed to be made for the period February 1 to December 7, 2021 for time 

that was entered as unscheduled sick leave and absentwithout leave to be changed to leave without 

pay.

Dr. Levar continued to treat appellant and submit additional reports.
4

OWCP also received copies of previously-submitted reports.

By decision dated May 5, 2022, OWCP denied modification of the September 16, 2021

decision. It found that appellant had not established disability from work on February 1, 2, 14,

and 16, 2021 due to her employment injury.4 It noted that appellant had not submitted evidence 

from her supervisor, M.D., substantiating that work was not available within her restrictions for 

the dates claimed. 

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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. 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 be disabled from employment and the duration of that disability are medical issues, 

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

evidence.8 Findings on examination are generally needed to support a physician’s opinion that an 

employee is disabled from work.9

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. 10 Disability is, thus, not 

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

wages.11 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.12

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. 

4 OWCP did not make findings for dates of disability from February17 through 26, 2021. 

5

5 U.S.C. § 8101 et seq.

6

See S.D., Docket No. 21-1047 (issued July 7, 2022); M.C., Docket No. 18-0919 (issued October 18, 2018);

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

7

Id.; WilliamA. Archer, 55 ECAB 674 (2004).

8 V.H., Docket No. 18-1282 (issued April2, 2019); Amelia S. Jefferson, 57 ECAB 183 (2005).

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

10 20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB 

397 (1999).

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

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

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

to compensation.13

ANALYSIS

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

work for the period February 1, 2, 14, and 16, 2021 causally related to her accepted January 7, 

2019 employment injury.

Dr. Levar provided reports dated February 8, 2021 through April 5, 2022. However, the 

reports from Dr. Levar are of no probative value because while he noted a work restriction of no 

pushing or pulling, he noted that she could work full duty and he did not provide any rationalized 

medical opinion explaining why appellant was specifically disabled from work during the specific 

dates of February 1, 2, 14, and 16, 2021 causally related to the accepted January 7, 2019 

employment injury.14 Dr. Levar’s reports did not provide objective medical findings to support 

that appellant was disabled from work during the claimed period.

15

 As previously noted, OWCP 

is not required to pay compensation for disability in the absence of any medical evidence 

addressing the specific dates of disability for which compensation is claimed. Therefore, the

reports from Dr. Levar are insufficient to establish her claim.16

The record also contains diagnostic reports. However, the Board has long held that 

diagnostic studies, standing alone, lack probative value as they do not address whether the 

employment injury caused any of the diagnosed conditions or associated disability. 17 For this 

reason, the Board finds that the diagnostic reports are insufficient to establish appellant’s disability 

claim.

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

February 1, 2, 14, and 16, 2021, causally related to the accepted January 7, 2019 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.

13 See B.K., Docket No. 18-0386 (issued September 14, 2018); AmeliaS. Jefferson, supra note 8; see also C.S., 

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

14 See B.K., id.; Amelia S. Jefferson,supranote 8;see also C.S., id.

15 See L.A., Docket No. 22-0463 (issued September 29, 2022); J.W., Docket No. 17-0715 (issued May 29, 2018).

16 Supra note 14. 

17 See T.G., Docket No. 22-0244 (September 30, 2022); T.W., Docket No. 20-1669 (issued May 6, 2021); J.S., 

Docket No. 17-1039 (issued October 6, 2017).
6

CONCLUSION

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

work on February 1, 2, 14 and 16, 2021, causally related to her accepted January 7, 2019 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the May 5, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 19, 2022

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