United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.B., Appellant

and

U.S. POSTAL SERVICE, BROOKLYN POST 

OFFICE (COLLECTION UNIT), Brooklyn, NY,

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 22-0679

Issued: January 23, 2024

Appearances: Case Submitted on the Record

Thomas Harkins, 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 March 30, 2022 appellant filed a timely appeal from an October 14, 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 October 14, 2021 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case islimited 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 intermittent 

disability from work during the period October 15 through November 13, 2020, causally related 

to his accepted January 11, 2019 employment injury.

FACTUAL HISTORY

On January 11, 2019 appellant, then a 30-year-old city carrier assistant (CCA), filed a 

traumatic injury claim (Form CA-1) alleging that, on that date, he injured his neck when the 

vehicle he was operating was rear-ended in a motor vehicle accident (MVA) while in the 

performance duty. He stopped work on the date of injury. On March 1, 2019, OWCP accepted 

appellant’s claim for radiculopathy, cervical region. It later expanded the acceptance of the 

claim to include intervertebral disc disorders with muti-level disc herniation of T6-7, T10-11, 

and T12-L1; lumbar spine disc bulges of L3-4, L4-5, and L5-S1; and sprains of the right 

shoulder, left shoulder, and cervical spine. OWCP paid appellant wage-loss compensation on the 

supplemental rolls from February 26 through July 15, 2019.

In a report dated July 13, 2019, Dr. Daniel W. Wilen, a Board-certified orthopedic 

surgeon, related appellant’s complaints of pain in his neck, shoulders, and lower back, which he 

attributed to the January 11, 2019 MVA. He noted that appellant had undergone treatment

including diagnostic testing, physical therapy, and a steroid injection to the left side of his 

lumbar spine. Dr. Wilen performed a physical examination, which revealed tingling in the arms 

and reduced range of motion, pain, and tenderness to palpation in the shoulders, cervical spine, 

and lumbosacral spine. In a work capacity evaluation (Form OWCP-5c) dated July 13, 2019,

Dr. Wilen released appellant to return to work with restrictions of no more than four hours per 

day walking, standing, reaching, twisting, bending, or operating a motor vehicle. In a separate 

excuse letter, he noted that the release was effective July 15, 2019. 

On July 16, 2019 appellant accepted a part-time, modified-duty job offer for a CCA 

position, working four hours per day. The duties of the assignment required carrying mail and 

packages weighing up to 25 pounds for up to four hours per day, and intermittent pushing and 

pulling up to 50 pounds.

In a report of work status (Form CA-3) dated July 16, 2019, an employing establishment 

official indicated that appellant had returned to work four hours per day with restrictions.

In duty status reports (Form CA-17) dated March 14 and April 30, 2020, Dr. Wilen 

released appellant to return to work four hours per day, with no lifting over 10 pounds.

In a Form CA-17 dated June 11, 2020, Dr. Wilen released appellant to return to work for 

six hours per day, with no lifting over 10 pounds. 

In a medical report dated August 10, 2020, Dr. Wilen noted that appellant continued to 

complain of pain in the shoulders and cervical and lumbar areas of the spine, as a result of the 

January 11, 2019 MVA. On physical examination, he documented tenderness to palpation and 

reduced range of motion in the cervical and lumbar spine and shoulders.
3

On August 13, 2020 appellant accepted a part-time, modified-duty job offer for a CCA 

position, working six hours per day. The duties of the assignment required carrying mail and 

packages weighing up to 10 pounds for up to six hours per day, and intermittent pushing and 

pulling up to 25 pounds.

In a Form CA-17 dated September 12, 2020, Dr. Wilen released appellant to return to his 

regular work duties, six hours per day.

In a Form CA-17 dated October 15, 2020, Dr. Wilen released appellant to return to his 

regular work duties for eight hours per day. In a report of even date, he noted that appellant was 

working full time. Dr. Wilen diagnosed cervicalgia, intervertebral disc disorders and 

displacement with radiculopathy, low back pain, cervical radiculopathy, and stiffness of an 

unspecified joint of the cervical spine. He discussed appellant’s complaints of cervical and 

lumbar spine pain due to his January 11, 2019 employment injury. On examination Dr. Wilen

observed tenderness and spasm in the cervical and lumbar spine.

In a report dated November 14, 2020, Dr. Wilen provided the same diagnoses and noted 

that appellant was working eight hours per day with ongoing neck and back pain that radiated 

into his arms and legs.

In a Form CA-3 dated November 18, 2020, an employing establishment official indicated 

that appellant had returned to work full time without restrictions, effective November 7, 2020. 

She further indicated that he had previously been working six hours per day light duty after 

accepting a modified-duty job offer on August 13, 2020, and that his full-duty medical release 

was dated October 15, 2020.

Beginning December 21, 2020, appellant filed CA-7 forms for intermittent disability

from work during the period September 5 through November 13, 2020.

In reports dated December 26, 2020 and January 28, 2021, Dr. Wilen indicated that 

appellant was working eight hours per day with ongoing neck and back pain, which radiated into 

his arms and legs.

In a development letter dated September 13, 2021, OWCP informed appellant that it had 

authorized payment for compensation for intermittent disability from September 5 through 

October 14, 2020.4 It further advised that the evidence submitted was insufficient to establish 

entitlement to compensation for the period October 15 through November 13, 2020. OWCP

requested that appellant submit medical evidence from his physician explaining how his

employment-related conditions caused or contributed to his inability to work for the claimed 

period October 15 through November 13, 2020. 

In a statement dated September 20, 2021, appellant indicated that he became a full-time 

employee on October 12, 2019, and that he was seeking compensation for intermittent disability 

from October 15, 2019 through November 4, 2020. He noted that, following his medical 

appointments on October 15 and November 14, 2020, he submitted CA-17 forms to the 

4 On September 14, 2021 OWCP paid appellant wage-loss compensation on the supplemental rolls for the period 

September 5 through October 14, 2020.
4

employing establishment which confirmed he was able to work eight hours per day. Appellant 

further related that the employing establishment did not “file the paperwork” or provide him with 

“a paper to sign for an eight-hour day” until November 7, 2020, and, therefore, he did not return 

to work eight hours per day until November 7, 2020. 

By decision dated October 14, 2021, OWCP granted appellant’s claim for disability from 

work for the period September 5 through October 14, 2020. However, it denied his claim for

intermittent disability from work for the period October 15 through November 13, 2020, finding 

that the medical evidence of record was insufficient to establish disability from work during the 

claimed period due to the accepted January 11, 2019 employment injury.

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim including the fact that any disability or specific condition 

for which compensation is claimed is causally related to the employment injury. 5 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.6 Disability is, thus, not synonymous with 

physical impairment, which may or may not result in an incapacity to earn wages. 7 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.8 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.9

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 

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.10

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 

5 F.S., Docket No. 23-0112 (issued April 26, 2023); S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., 

Docket No. 09-1061 (issued November 17, 2009). 

6

20 C.F.R. § 10.5(f).

7

See M.H., Docket No. 21-0919 (issued April10, 2023); H.B., Docket No. 20-0587 (issued June 28, 2021); L.W., 

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

8

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

9

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

10 K.D., Docket No. 22-0862 (issued March 30, 2023); Y.S., Docket No. 19-1572 (issued March 12, 2020).
5

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

entitlement to compensation.11

ANALYSIS

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

disability from work during the period October 15 through November 13, 2020, causally related 

to his accepted January 11, 2019 employment injury.

In support of his claim for wage-loss compensation, appellant submitted various medical 

records by Dr. Wilen which addressed appellant’s ability to work for the periods July 13, 2019 

through September 12, 2020 and November 14, 2020 through January 28, 2021. However,

Dr. Wilen did not address whether appellant was disabled from work for the period October 15 

through November 13, 2020 due to the accepted January 11, 2019 employment injury.12 As 

noted above, the medical evidence must directly address the specific dates of disability for which 

compensation is claimed.13 Therefore, this evidence is insufficient to meet his burden of proof to 

establish his disability claim.

In a Form CA-17 dated October 15, 2020, Dr. Wilen released appellant to return to his 

regular work duties for eight hours per day. In a report of even date, he noted that appellant was 

working full time. The Board has held that medical evidence that negates causal relationship is 

of no probative value.14 Therefore, this evidence is also insufficient to establish the disability 

claim.

As the medical evidence of record is insufficient to establish intermittent disability during 

the period October 15 through November 13, 2020 due to his accepted 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 intermittent 

disability from work during the period October 15 through November 13, 2020, causally related 

to his accepted January 11, 2019 employment injury.

11 M.H., Docket No. 22-1178 (issued April25, 2023); J.B., Docket No. 19-0715 (issued September 12, 2019); 

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

12 See F.S., Docket No. 23-0112 (issued April 26, 2023); L.B., Docket No. 18-0533 (issued August 27, 2018); 

D.K., Docket No. 17-1549 (issued July 6, 2018).

13 Id.

14 T.W., Docket No. 19-0677 (issued August 16, 2019). 
6

ORDER

IT IS HEREBY ORDERED THAT the October 14, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 23, 2024

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