United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

DEPARTMENT OF THE AIR FORCE, 309TH 

MAINTENANCE SUPPORT SQUADRON, 

HILLS AIR FORCE BASE, UT, Employer

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Docket No. 21-1216

Issued: April 19, 2022

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 10, 2021 appellant, through counsel, filed a timely appeal from a February 24, 

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 February 24, 2021 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 met his burden of proof to establish total disability from 

work for the period commencing December 31, 2012 and continuing, or from May 26, 2016 and 

continuing, causally related to his accepted employment-related conditions.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as presented 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On July 25, 2014 appellant, then a 59-year-old retired nondestructive tester supervisor,

filed an occupational disease claim (Form CA-2) for a back injury, which he attributed to factors 

of his federal employment including handlingheavy equipment. He noted that he first became 

aware of his claimed condition and realized its relation to his federal employment on 

July 18, 2012.5 On December 29, 2014 OWCP accepted appellant’s claim for lumbar spinal 

stenosis (L4-5 and L5-S1) and permanent aggravation of lumbar degenerative disc disease (L4-5 

and L5-S1).6

On May 5, 2016 OWCP referred appellant to Dr. Leslie J. Harris, a Board-certified

orthopedic surgeon. In a second opinion report dated May 26, 2016, Dr. Harris diagnosed

employment-related bilateral carpal tunnel syndrome and determined that appellant was limited in

grasping activities with both hands, as well as fine manipulation. In an accompanying work

capacity evaluation (Form OWCP-5c), Dr. Harris indicated that appellant had permanent work

restrictions due to his lumbar and bilateral carpal tunnel conditions. Appellant was limited to 

working four hours per day with restrictions.

On June 6, 2016 OWCP expanded the acceptance of appellant’s claim to include bilateral

carpal tunnel syndrome.

On August 8, 2016 appellant filed a claim for compensation (Form CA-7) for disability 

from work for the period May 26 to July 18, 2016.

OWCP subsequently receivedJune 10,2016correspondencefrom appellantindicatingthat

he had forwarded a copy of Dr. Harris’ report to the employing establishment and inquired as to

4 Docket No. 18-0318 (issued December 17, 2019).

5 Appellantvoluntarily retired fromthe employing establishment effective December 31, 2012.

6 OWCP assigned the present occupational disease claim File No. xxxxxx797. Under File No. xxxxxx334, OWCP

had previously accepted that appellant injured his lower back in an August 10, 1987 work-related slip and fall. 

Appellant’s accepted conditions included lumbar sprain and L5-S1 disc herniation. On August 22, 1991 he sustained 

another work-related back injury, which OWCP accepted for aggravation of lumbosacralsprain under File No.

xxxxxx534. OWCP has administratively combined File Nos. xxxxxx797, xxxxxx334, andxxxxxx534,with File No.

xxxxxx334 designated asthe masterfile. BydecisiondatedDecember 21, 2015,OWCP denied an additionalschedule

award for the bilateral lower extremities.
3

whether his former employer could accommodate the restrictions, as appellant was “seeking

reemployment.”

In an August 2, 2016 report, Dr. Neil B. Callister, a Board-certified orthopedic hand 

surgeon, noted appellant’s chronic pain and paresthesias clinically consistent with carpal tunnel 

syndrome with an indeterminate neurodiagnostic study suggestive of right brachial plexus lesion.

On August 15, 2016 the employingestablishment controvertedappellant’s claim for wageloss compensation, noting that he had voluntarily retired from the employing establishment in 

December 2012, and his retirement was unrelated to his employment injury.

In a letter dated August 25, 2016, OWCP advised appellant that since he had retired

effective December 31, 2012 and was no longer employed with the employing establishment, he

was not entitled to wage-loss compensation for the period May 26 to July 18, 2016. It noted that

no further action would be taken on the claim.

Counsel submitted an August 29, 2016 letter contending that, if an employee’s condition

related to his employment injury prevented him from performing the job he held when injured, it

wasimproper under FECA forOWCPto find that he was not entitled to compensation for disability

because he had voluntarily retired.

In a September 13, 2016 report, Dr.Callister diagnosed severe left carpometacarpal(CMC)

osteoarthritis, moderate right CMC osteoarthritis, and bilateral carpal tunnel syndrome.

OWCP also received October 25, 2016 treatment records regarding appellant’s lumbar

condition, which were signed by a physician assistant.

By letter dated November 15, 2016, OWCPresponded to counsel’sAugust 29, 2016letter,

advising that there was no evidence that appellant was unable to perform in his position at the time 

he retired on December 31, 2012. Itfurther explained thatsince appellantwas no longer employed

with the employing establishment, he was not experiencing compensable wage loss.

In a December 29, 2016 letter, appellant requested that OWCP process his claim for

compensation for the period beginning May 26, 2016, noting that he preferred to receive wageloss compensation rather than retirement benefits. He also requested that OWCP forward an

election of benefits form.

In a March 7, 2017 development letter, OWCP noted that appellant had undergone

additionalsurgery in November 2012, and thatfollow-up reportsthrough February 2013 indicated

that his lumbar condition had improved 80 percent, such that he was able to sit pain free. It

requested that he provide medical evidence from the date of his retirement to support that he was

totally disabled from his duties and unable to work without restrictions. OWCP afforded him 30

days to submit the requested medical evidence.

In response, OWCP received various diagnostic studies. An x-ray of the lumbar spine

dated October 25, 2016 showed severe disc degeneration at L4-S1, disc osteophyte complexes at

L3-S1, and arthrosis to the facet joints as well with narrowing of the neural foramen, most

significant at L4-S1. An October 25, 2016 right hip x-ray revealed moderate arthrosis of the right

hip joint with osteophytosisinvolvingthe superiorlip of the acetabulum and a loss of normalintra-
4

articular joint space. A March 6, 2017 lumbar magnetic resonance imaging (MRI) scan

demonstrated progressive mass effect on the thecal sac at L3-4 secondary to multiple factors,

significant neural foramen stenosis at L3-S1, and postsurgical changes at L4-5.

By decision dated June 8, 2017, OWCP denied appellant’s claim for wage-loss

compensation for disability for the period commencing May 26, 2016.

On June 26, 2017 appellant, through counsel, requested reconsideration and argued that

OWCP’s own second opinion physician, Dr.Harris, opined in a May 26, 2016 reportthat appellant

could not perform his usual job due to his work-related injuries. He also noted that appellant 

requested light-duty work in June 2016, but neither the employing establishment nor OWCP had

responded to the request.

By decision dated September 22, 2017, OWCP denied appellant’s request for

reconsideration. It noted that he resigned from his position on December 31, 2012 and was,

therefore, not entitled to wage-loss compensation.

On November 30, 2017 counsel filed an appeal with the Board. By decision dated 

December 17, 2019,7the Board set aside the June 8 and September 22, 2017 decisions finding that

Dr. Harris failed to provide a rationalized opinion addressing whether appellant was disabled from 

performing his December 2012 position during the period claimed as he relied on an incomplete 

statement of accepted facts (SOAF). The Board noted that, if an employment-related condition 

prevented the employee from performing the job he held when injured, it was improper for OWCP 

to find that he was not entitled to compensation for disability because he had voluntarily retired. 

The Board instructed OWCP on remand to update the SOAF to include all the accepted conditions 

and appellant’s full-work history following his 2012 retirement.

On January 24, 2020 OWCP referred an updated statement of accepted facts (SOAF), and 

list of questions to Dr. Harris for a supplemental report. In a report dated February 26, 2020,

Dr. Harris diagnosed recurrence L4-5 herniation, permanent aggravation L4-5 and L5-1 

degenerative disc disease with L4-5 and L5-S1 spinal stenosis. He opined that appellant was 

capable of performing his nondestructive tester supervisor position on December 31, 2012. 

Dr. Harris further found that there was no evidence that appellant was disabled from work after 

December 31, 2012 due to his accepted employment injuries.

By decision dated March 17, 2020, OWCP denied modification finding the evidence 

insufficient to establish total disability “from May 26, 2016 and continuing, and from 

December 31, 2012 and continuing,” causally related to the accepted July 18, 2012 employment 

injury.

On May 26, 2020 counsel requested reconsideration asserting that Dr. Harris failed to 

address any disability due to the accepted carpal tunnel condition nor did he address whether 

appellant was disabled from working during the period May 26, 2016 and continuing due to the 

accepted employment conditions.

By decision dated August 20, 2020, OWCP denied modification.

7

Supra note 4.
5

In a letter dated August 20, 2020, OWCP requested that the employing establishment 

address whether work was available for appellant within his restrictions.

On September 7, 2020 counsel requested reconsideration and provided a statement from 

appellant regarding employment following his retirement in 2012. Appellant related that following 

his retirement in 2012 he sporadically worked a maximum of four hours per day as an adjunct

instructor. He was unable to work in August, September, and October 2014 due to his back 

condition. Appellant further related that he did work sporadically through 2015 and 2016, except 

for periods of time in 2016 when his back spasms increased. In 2017, he worked occasionally, but 

cut back on work due to issues associated with his medications.

On December 7, 2020 OWCP requested that Dr. Harris provide a supplemental report. It 

requested that he review an updated SOAF and clarify whether appellant was disabled from 

performing his December 2012 job from May 26 to July 18, 2016 and continuing. Dr. Harris, in 

a January 25, 2021 supplemental report, noted that OWCP had accepted the conditions of bilateral 

carpal tunnel syndrome, permanent aggravation of L4-5 and L5-S1 degenerative disc disease, and 

L4-5 and L5-S1 lumbar stenosis. He noted that bilateral carpal tunnel syndrome physical findings 

were demonstrated in a May 26, 2016 physical examination, although an electromyograph 

(EMG)/nerve conduction test performed on June 25, 2015 showed no evidence of left or right 

median neuropathy. Dr. Harris opined that appellant, at that time, was limited in using his hands 

in grasping activities and fine manipulation. Thus, he concluded that appellant was disabled from 

performing the job of tester supervisor as of May 26, 2016 due his bilateral carpal tunnel syndrome. 

Dr. Harris explained that the change in his opinion regarding appellant’s disability occurred 

because he previously only considered whether appellant was capable of performing his position 

as a nondestructive tester supervisor based on his low back condition and had not considered 

whether appellant had any disability due to his bilateral carpal tunnel condition. He indicated that 

appellant would have had persistent bilateral carpal tunnel syndrome if he had continued in his 

job, which required manipulation of small instruments for long periods of time. Dr. Harris

explained that appellant’s decision to retire instead of having surgical releases appeared to be a 

reasonable decision. Based on his review of the record and the May 26, 2016 report, he found that 

appellant’s carpal tunnel syndrome symptoms might have improved in the absence of his work 

activities, but the symptoms would most likely have returned if appellant worked during this 

period. Dr. Harris concluded that appellant was totally disabled for the period May 26 through 

July 18, 2016 from his usual work due to his bilateral carpal tunnel syndrome. In an attached Form 

OWCP-5c, he opined that appellant was capable of performing sedentary work with limited 

grasping and fine manipulation. Dr. Harris provided work restrictions of up to one hour of 

twisting, bending/stooping, squatting, kneeling, and repetitive wrists; elbow movements and up to 

one hour of pushing, pulling, and lifting 10 pounds; and no climbing.

By decision dated February 24, 2021, OWCP denied modification finding the medical 

evidence insufficient to establish total disability for the period May 26 to July 18, 2016, or from 

December 31, 2012 and continuing. It noted that at the time of his retirement appellant was 

working full time and there was no evidence that his restrictions were not accommodated by the 

employing establishment. 
6

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 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.10

Whether a particular injury causes an employee to be disabled from work and the duration 

of that disability are medical issues, which must be proven by a preponderance of the reliable, 

probative, and substantial medical evidence.11

ANALYSIS

The Board finds that this case is not in posture for a decision.

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s September 22, 2017 decision because the 

Board considered that evidence in its December 17, 2019 decision. In the December 17, 2019 

decision, the Board found thatthe case was not in posture for decision because the SOAF provided 

to Dr. Harris was drafted prior to the acceptance of the claim for bilateral carpal tunnel syndrome. 

The Board instructed OWCP on remand to update the SOAF to include all the accepted conditions 

as well list appellant’s full employment history following his 2012 retirement. Once the SOAF 

was updated, the Board instructed OWCP to provide the updated SOAF and relevant position 

descriptions to Dr. Harris for clarification regarding whether the accepted conditions disabled 

appellant from performing his December 2012 employment position during the claimed period. 

Findings made in prior Board decisions are res judicata absent further review by OWCP under 

section 8128 of FECA.12 The Board, therefore, need not review the evidence addressed on prior 

appeal.

Following the Board’s December 17, 2019 decision, OWCP undertook further 

development of the claim by requesting supplemental reports from Dr. Harris based on an updated 

SOAF. In a January 25, 2021 supplemental report, Dr. Harris opined that appellant was totally 

disabled from his usual work during the period May 26 to July 18, 2016. He advised that if 

appellant had not retired in December 2012 and continued working as a nondestructive tester 

supervisor that he would have had persistent bilateral carpal tunnel syndrome. Moreover,

Dr. Harris explained that appellant’s carpal tunnel syndrome symptoms might have improved in 

8

Supra note 2.

9

See I.T., Docket No. 20-0001 (issued July 1, 2021); 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).

10 Id.

11 I.T., id.; Fereidoon Kharabi, 52 ECAB 291 (2001).

12 F.H., Docket No. 21-0579 (issued December 9, 2021); D.A., Docket No. 19-1965 (issued February 10, 2021); 

G.B., Docket No. 19-1448 (issued August21, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
7

the absence of his work activities, but his symptoms would most likely have returned if appellant 

worked during this period. 

It is well established that proceedings under FECA are not adversarial in nature and OWCP 

is not a disinterested arbiter. The claimant has the burden of proof to establish entitlement to 

compensation. However, OWCP shares responsibility in the development of the evidence to see 

that justice is done.13 Once it undertakes development of the record, OWCP must do a complete 

job in procuring medical evidence that will resolve the relevant issues in the case.14

Dr. Harris provided an opinion which was generally supportive of appellant’s claim for 

wage-loss compensation. However, he did not address specific dates of disability, and he did not 

address appellant’s work history following his December 31, 2012 retirement. Further, the Board 

notes that while OWCP denied appellant’s claim for disability as of December 31, 2012 and 

continuing, as well as from May 26, 2016, OWCP did not request that Dr. Harris address the entire 

period of disability, which commenced on December 31, 2012. This case must, therefore, be 

remanded for another supplemental opinion by Dr. Harris to determine whether appellant’s 

disability from work commencing December 31, 2012 and continuing was causally related to his 

accepted employment conditions. Following this and other such further development as deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case not in posture for a decision.

13 See C.L., Docket No. 20-1631 (issued December 8, 2021); J.C., Docket No. 20-0064 (issued September 4, 2020); 

L.B., Docket No. 19-0432 (issuedJuly 23, 2019); WilliamJ. Cantrell, 34 ECAB 1223 (1983).

14 Id.; see also S.A., Docket No. 18-1024 (issued March 12, 2020).
8

ORDER

IT IS HEREBY ORDERED THAT the February 24, 2021 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: April 19, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board