United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.J., Appellant

and

DEPARTMENT OF COMMERCE, U.S. 

CENSUS BUREAU, Tacoma, WA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 22-0942

Issued: January 10, 2023

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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 3, 2022 appellant, through counsel, filed a timely appeal from a May 6, 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 issuance of the May 6, 2022 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 his burden of proof to establish disability from work 

for the period January 10 through February 6, 2021 causally related to his accepted October 26, 

2020 employment injury.

FACTUAL HISTORY

On October 29, 2020 appellant, then a 61-year-old temporary work unit supervisor, filed a 

traumatic injury claim (Form CA-1) alleging that on October 26, 2020 he sustained a right knee 

injury when he fell while in the performance of duty. He stopped work on the date of injury.

OWCP accepted appellant’s claim for right knee contusion, right lower leg contusion, and injury 

of the tibial nerve at the lower level of right leg.

In a January 6, 2021 report, Dr. Mario Alinea, a physician Board-certified in occupational 

medicine, related appellant’s history of injury and noted that appellant had pain in the patellar area, 

burning in the kneecap, and numbness in the posterior leg to the foot. Examination of the right

knee revealed a limp, tenderness in tibial tubercle and patella, an equivocal McMurray test with 

snapping noted on flexion and extension, and limited range of motion (ROM) on flexion. 

Dr. Alinea diagnosed contusion of right knee and contusion of right lower extremity. In a duty 

status report (Form CA-17) of even date, he indicated that appellant was treated for a right knee 

condition. Dr. Alinea held appellant off work. 

In a January 13, 2021 report, Dr. David Coons, an osteopath specializing in orthopedic 

surgery, indicated that appellant had undergone an electromyogram/nerve conduction velocity 

(EMG/NCV) study, which showed electrodiagnostic evidence of right lateral plantar neuropathy. 

He noted that the neurologist performing the study questioned the connection of this condition to 

the reported mechanism of injury. Examination of the right knee revealed pain over the medial 

joint space and complaints of paresthesias about the right ankle. Dr. Coons diagnosed persisting 

right knee pain, possibly meniscus pathology, and right lateral plantar neuropathy. He opined that 

the right lateral plantar neuropathy did not appear to be related to the injury and should be handled 

apart from appellant’s claim. On a January 13, 2021 form report, Dr. Coons related that appellant 

was injured on October 26, 2020 and diagnosed right knee pain and right lateral plantar 

neuropathy. He indicated that appellant could return to work with restrictions from January 13 to 

March 15, 2021.

On January 27, 2021 appellant filed a claim for compensation (Form CA-7) for disability 

from work for the period January 10 through 23, 2021.

In a January 28, 2021 development letter, OWCP informed appellant that the evidence 

submitted was insufficient to establish disability from work for the period January 10 

through 23, 2021. It advised him of the type of medical evidence required and afforded him 30 

days to submit the requested evidence.

Appellant underwent a right knee magnetic resonance imaging (MRI) scan on February 2, 

2021, which revealed severe right knee patellar chondromalacia and small joint effusion. 
3

On February 16, 2021 appellant filed a Form CA-7 for disability from work for the period 

January 24 through February 6, 2021. 

OWCP subsequently received a February 11, 2021 report, wherein Dr. Coons diagnosed a 

right leg injury and released appellant for work without restrictions. 

In a February 17, 2021 Form CA-17, Dr. Hossein P. Sedigh, a Board-certified orthopedist, 

indicated that 300 pounds had collapsed onto appellant’s right lower extremity. He released 

appellant for part-time work.

In a February 23, 2021 development letter, OWCP informed appellant of the deficiencies 

of his disability claim. It advised him of the type of medical evidence needed and afforded him 

30 days to submit the necessary evidence. 

Appellant subsequently submitted a January 7, 2021 EMG/NCV study, signed by Dr. Irfan 

Ansari, a Board-certified physiatrist, which demonstrated electrodiagnostic evidence of right 

lateral plantar neuropathy. Dr. Ansari related appellant’s history of injury and noted that it was 

difficult to connect the lateral plantar neuropathy to the mechanism of injury in question. 

In a February 11, 2021 report, Dr. Coons noted that an MRI scan showed patellofemoral 

joint degenerative changes and an EMG/NCV study showed lateral plantar neuropathy. He 

diagnosed chondromalacia of the patella of the right knee and right lateral plantar neuropathy. 

Dr. Coons noted that he could not relate the plantar neuropathy to appellant’s injury, though 

appellant reported that it had not bothered him before the date of injury.

In a February 17, 2021 report, Dr. Sedigh related appellant’s history of injury and indicated 

that he was seen because of abnormal EMG/NCV findings. Examination of the right foot and 

ankle demonstrated antalgic gate, abnormal and painful heel walking, calf muscle atrophy, and 

maximum tenderness in plantar heel. Dr. Sedigh diagnosed right plantar fasciitis.

On February 17, 2020 appellant underwent a right foot x-ray, which revealed no 

abnormalities. 

Appellant continued to submit medical evidence dated March 1 through April 19, 2021

regarding his continued need for treatment for his right lower extremity conditions.

By decision dated April 27, 2021, OWCP denied appellant’s claim for compensation for 

disability from work for the period January 10 through February 6, 2021. It found that he failed 

to submit sufficient probative medical evidence supporting his claim.

Appellant submitted additional medical evidence dated March 3, 2021 through January 27, 

2022 documenting his ongoing treatment for right lower extremity conditions.

On March 18, 2022 appellant, through counsel, requested reconsideration of the April 27, 

2021 decision. 

In a December 28, 2021 report, Dr. Gregory E. Webb, a podiatrist, related appellant’s 

history of injury and noted that appellant’s paresthesias in the plantar foot worsened with 

ambulation. Examination revealed tenderness and weakness along the course of the posterior tibial 
4

tendon, pain at the medial malleolus and distal to the medial malleolus to the insertion of the 

posterior tibial tendon on the navicular, and weakness and pain with plantarflexion and inversion 

of the right foot. Dr. Webb reviewed diagnostic studies and diagnosed right tarsal tunnel syndrome 

and traumatic right posterior tibial tendon tear.

By separate decision of even date, OWCP expanded its acceptance of his claim to include 

sprain of the right knee. 

By decision dated May 6, 2022, OWCP denied modification of its April 27, 2021 decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA 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. 4 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.5 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 probative and reliable medical opinion evidence.6

Under FECA, the term “disability” means the incapacity, because of an employment injury, 

to earn the wages that the employee was receiving at the time of injury.7 Disability is, thus, not 

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

wages.8 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.9 When, however, the medical evidence 

establishes that the residuals or sequelae of an employment injury are such that, from a medical 

standpoint, they prevent the employee from continuing in his or her employment, he or she is 

entitled to compensation for loss of wages.10

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 

4

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009);

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

5

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);

Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

6

20 C.F.R. § 10.5(f); B.O., Docket No. 19-0392 (issued July 12, 2019); N.M., Docket No. 18-0939 (issued 

December 6, 2018); R.C., 59 ECAB 546, 551 (2008).

7

20 C.F.R. § 10.5(f).

8

See L.W., Docket No. 17-1685 (issued October 9, 2018).

9

See K.H., Docket No. 19-1635 (issued March 5, 2020).

10 See D.R., Docket No. 18-0323 (issued October 2, 2018).
5

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 accepted employment injury. 11

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.12

ANALYSIS

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

work for the period January 10 through February 6, 2021 causally related to his accepted 

October 26, 2020 employment injury.

In support of his disability claim, appellant submitted a January 6, 2021 Form CA-17 from

Dr. Alinea indicating that appellant was treated for a right knee condition after his knee was hit. 

Dr. Alinea held appellant off work. In January 13, 2021 reports, Dr. Coons diagnosed persisting 

right knee pain and right lateral plantar neuropathy. He opined that the right lateral plantar 

neuropathy did not appear to be related to the injury and should be handled apart from appellant’s 

claim. Dr. Coons also indicated that appellant could return to work with restrictions. However, 

neither Dr. Alinea nor Dr. Coons provided objective findings related to his accepted employment 

conditions that explained why he was disabled from work due to his accepted employment injury

on any specific date.13 Evidence that does not address the specific dates of disability are of no 

probative value and are insufficient to establish the claim.14 These reports are therefore insufficient 

to establish appellant’s disability claim.

In a January 6, 2021 report, Dr. Alinea related appellant’s history of injury and diagnosed 

contusion of right knee and contusion of right lower extremity. However, he did not provide an 

opinion that appellant was disabled from work during the claimed period due to the accepted 

October 26, 2020 employment injury. As noted above, 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.15 Thus, this evidence is insufficient to meet 

appellant’s burden of proof.

11 Y.S., Docket No. 19-1572 (issued March 12, 2020).

12 J.B., Docket No. 19-0715 (issued September 12, 2019); Fereidoon Kharabi,supra note 8.

13 E.B., Docket No. 19-1390 (issued May 7, 2020); K.D., Docket No. 19-0628 (issued November 5, 2019); A.T., 

Docket No. 19-0410 (issued August13, 2019); see Terry R. Hedman, 38 ECAB 222 (1986).

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

15 See id.
6

Appellant also submitted medical evidence dated February 11, 2021 through 

January 27, 2022. As this evidence does not address the claimed period of disability, it is of no 

probative value and is insufficient to establish appellant’s disability claim.16

The record also contains several diagnostic tests. However, the Board has held that 

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

accepted employment injury resulted in appellant’s period of disability on specific dates.17 

Consequently, these medical findings are insufficient to establish appellant’s disability claim.

As the medical evidence of record does not contain a rationalized opinion establishing 

causal relationship between appellant’s claimed disability and the accepted October 26, 2020

employment injury, the Board finds that appellant has not met his 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 his burden of proof to establish disability from 

work for the period January 10 through February 6, 2021 causally related to his accepted 

October 26, 2020 employment injury.

16 Id.

17 F.S., Docket No. 19-0205 (issued June 19, 2019).
7

ORDER

IT IS HEREBY ORDERED THAT the May 6, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 10, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board