United States Department of Labor

Employees’ Compensation Appeals Board

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M.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Alabaster, AL, Employer

__________________________________________

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Docket No. 21-0225

Issued: October 7, 2021

Appearances: Case Submitted on the Record

James A. Haggerty, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 1, 2020 appellant, through counsel, filed a timely appeal from June 25 and 

November 12, 2020 decisions 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 November 12, 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.
2

ISSUE

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

for the period March 28, 2016 through January 31, 2018 causally related to his accepted 

employment injury.

FACTUAL HISTORY

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

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

follows.

On April 2, 2016 appellant, then a 56-year-old postmaster, filed an occupational disease 

claim (Form CA-2) alleging that he sustained hypertension and stress causally related to factors of 

his federal employment. He stopped work on March 28, 2016.

By decisions dated July 11, 2016 and June 5, 2017, OWCP denied appellant’s emotional 

condition claim, finding that he had not established any compensable factors of employment. By 

decision dated July 28, 2017, it denied his request for reconsideration of the merits of his claim 

under 5 U.S.C. § 8128(a). 

Appellant appealed to the Board. By decision dated February 8, 2019, the Board set aside 

OWCP’s June 5 and July 28, 2017 decisions.5 The Board found that appellant had established 

compensable work factors and remanded the case for OWCP to determine whether the medical 

evidence established a diagnosed emotional condition causally related to the accepted employment 

factors.

Following further development, on November 4, 2019 OWCP accepted appellant’s claim 

for severe major depressive disorder in partial remission and post-traumatic stress disorder (PTSD) 

in partial remission. It subsequently expanded its acceptance of the claim to include a temporary 

aggravation of essential hypertension which had resolved by November 12, 2019. 

On February 7, 2020 appellant filed a claim for compensation (Form CA-7) for other wage

loss from March 28, 2016 through January 31, 2018. On the reverse side of the form, the 

employing establishment indicated that he had used sick leave from March 28, 2016 to 

September 10, 2017 and annual leave from September 11, 2017 through January 30, 2018. It 

provided appellant’s salary and specified that he was not entitled to any additional pay. 

In a letter dated February 13, 2020, the employing establishment challenged appellant’s 

claim for compensation. It advised that he had no wage loss during the claimed period as he had 

used sick and annual leave. The employing establishment maintained that as postmaster appellant 

was not entitled to overtime pay. It indicated that he had voluntarily retired on January 31, 2018.6 

4 Docket No. 17-1803 (issued February 8, 2019).

5

Id.

6 A notification of personnel action (PS Form-50) indicates that appellant voluntarily retired from employment 

effective January 31, 2018. 
3

In a development letter dated February 21, 2020, OWCP noted that the employing 

establishment had paid appellant either sick or annual leave during the claimed period. It requested 

that he submit evidence that he was entitled to premium pay from March 28, 2016 through 

January 31, 2018. OWCP afforded appellant 30 days to submit the requested information.

In a March 9, 2020 response, counsel asserted that he had used sick and annual leave as a 

result of his employment-related PTSD, noting that it was prior to the acceptance of his claim. He 

advised that appellant had accumulated “sick and annual leave to maximize his retirement annuity, 

which would be additional income for the rest of his life.” Counsel related that appellant had used 

all of his sick and annual leave before his retirement as a result of his employment-related 

disability, resulting in a significant loss of retirement annuity.

By decision dated June 25, 2020, OWCP denied appellant’s claim for disability from work 

for the period March 28, 2016 through January 31, 2018. It found that he had not shown that he 

had any disability as he used sick and annual leave during the claimed period or that he was entitled 

to any premium pay. OWCP noted that appellant could file a claim for leave buy back through 

the employing establishment.

On July 3, 2020 appellant requested a review of the written record by a representative of 

OWCP’s Branch of Hearings and Review. 

By decision dated November 12, 2020, OWCP’s hearing representative affirmed the 

June 25, 2020 decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA7 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.

8

 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.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 probative and reliable medical opinion evidence.10

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

earn the wages that the employee was receiving at the time of injury.11 Disability is, thus, not 

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

7

Supra note 2.

8

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). 

9 M.C., Docket No. 18-0919 (issuedOctober 18, 2018).

10 See K.C., Docket No. 17-1612 (issued October 16, 2018).

11 20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).
4

wages.12 An employee who has a physical impairment causally related to his or her federal

employment, but who nonetheless has the capacity to earn the wages that he or she was receiving 

at the time of injury, has no disability as that term is used in FECA.13

OWCP’s regulations provide, “The employee may claim compensation for periods of 

annual and sick leave which are restorable in accordance with the rules of the employing 

establishment. Forms CA-7a and CA-7b are used for this purpose.”

14

Regarding leave buy back (LBB), OWCP’s procedures provide:

“b. LBB Forms. The CE [claims examiner] should review the submitted forms 

carefully to be sure they are complete. If one or more of the necessary forms are 

not received or are incomplete, the CE should send a written request to the 

[employing establishment] for the completed form(s). The claimant should receive 

a copy of this letter as well. Forms used in a LBB claim include --

‘(1) Form CA-7, Claim for Compensation, showing a claimant has elected 

LBB is required.

‘(2) Form CA-7b, Leave Buy Back (LBB) Worksheet/Certification and 

Election, is required.

‘(3) Form CA-7a, Time Analysis Form, is optional. If the Form CA-7a is 

not submitted though, a clear breakdown of leave used is required.”

15

In situations where compensation is claimed for periods when leave was used, OWCP has 

the authority and the responsibility to determine whether the employee was disabled during the 

period for which compensation is claimed.16 It determines whether the medical evidence 

establishes that an employee is disabled by an employment-related condition during the period 

claimed for LBB, after which the employing establishment will determine whether it will allow 

the employee to buy back the leave used.17

ANALYSIS

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

OWCP failed to sufficiently develop appellant’s claim for compensation for disability from 

work during the period March 28, 2016 through January 31, 2018. Appellant advised that he had 

used sick and annual leave to cover disability from employment during this period which had 

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

13 See M.W., Docket No. 20-0722 (issued April26, 2021); D.G., Docket No. 18-0597 (issued October 3, 2018).

14 20 C.F.R. § 10.425.

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.18(b) 

(February2013).

16 A.B., Docket No. 19-0185, n. 12; (issued July 24, 2020); Glen M. Lusco, 55 ECAB 148 (2003).

17 Id. 
5

affected his retirement annuity. OWCP denied his claim for disability from work for the period 

March 28, 2016 through January 31, 2018 as the employing establishment had paid him sick or 

annual leave for that period and he had not established entitlement to any premium pay. However, 

even if appellant used paid leave, he can still claim compensation for periods of sick and annual 

leave which are restorable in accordance with the rules of the employing establishment. 18 While 

the employing establishment advised that he had used leave during the claimed period, was not 

entitled to premium pay, and had now retired, it did not specifically address the question of whether 

he could buy back the leave used. 

OWCP’s procedures provide that, when an employee uses annual or sick leave during a 

period of claimed disability, and the necessary forms are not received, it should issue a written 

request to the employing establishment for a Form CA-7 showing that appellant has elected LBB, 

a Form CA-7b LBB worksheet/certification and election, and a Form CA-7a or other evidence 

showing a clear breakdown of leave used.19 OWCP failed to request these forms from the 

employing establishment in accordance with its procedures. On remand, it should inform the 

employing establishment and appellant of the appropriate forms required for LBB. The employing 

establishment should then follow established procedures to approve or disapprove the request and 

forward the completed forms to OWCP.20

CONCLUSION

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

18 20 C.F.R. § 10.425. See Laurie S. Swanson, 53 ECAB 517 (2002). 

19 Supra note 15. See also S.S., Docket No. 07-2336 (issued April14, 2008).

20 Whether to allow LBBis within the discretion of the employing establishment. K.J., Docket No. 11-0571 (issued 

January 25, 2012).
6

ORDER

IT IS HEREBY ORDERED THAT the June 25 and November 12, 2020 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

proceedings consistent with this decision of the Board.

Issued: October 7, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board