United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

King George, VA, Employer

__________________________________________

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Docket No. 19-1159

Issued: June 27, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

JANICE B. ASKIN, Judge

JURISDICTION

On April 29, 2019 appellant, through counsel, filed a timely appeal from two March 26, 

2019 merit 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 March26, 2019 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

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish intermittent

disability from work, commencing March 10, 2018, causally related to her June 12, 2017 accepted 

employment injury; and (2) whether OWCP properly denied authorization for left carpal tunnel 

release surgery.

FACTUAL HISTORY

On June 12, 2017 appellant, then a 45-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on that date she smashed her left index finger while trying to close the 

stuck door of her mail truck while in the performance of duty. She stopped work and received 

stitches on her left index finger. OWCP accepted the claim for a displaced fracture of the distal 

phalanx of her left index finger and a laceration to the left index finger without damage to nail. 

Appellant returned to work on August 5, 2017 in a limited-duty position, working six hours

per day, with simple grasping and fine manipulation up to six hours a day. OWCP paid her wageloss compensation on the supplemental rolls from August 5, 2017 through March 2, 2018. 

OWCP, by letter dated January 4, 2018, referred appellant to Dr. Angela Jones, a Boardcertified orthopedic surgeon and orthopedic hand specialist, for a second opinion examination. 

In a January 25, 2018 report, Dr. Jones noted the history of injury, appellant’s medical 

treatment, and presented examination findings. She indicated that appellant’s x-rays showed a 

healed middle phalanx fracture, with some shortening and widening of the phalanx, but no residual 

angulation or displacement. The finger was sitting in a mallet posture, visible both on film and 

clinically. Dr. Jones opined that appellant had a crush injury of the left index finger, a middle 

phalanx fracture of the left index finger, mallet deformity of the digit which affected the left index 

finger, and ankyloses of the finger, all of which were directly caused and/or aggravated by the 

employment injury. She indicated that appellant’s joints were very stiff, which could represent 

aggravation of preexisting arthritis and post-traumatic stiffness. Dr. Jones also indicated that 

appellant had very minimal range of motion at the proximal interphalangeal (PIP) and the distal 

interphalangeal (DIP) joints related to the employment injury. Appellant also had discomfort and 

pain, which worsened with repetitive use or coldness and which were related to the crush aspect 

of her injury. Dr. Jones noted that this could improve up to two years after an injury, but oftentimes 

becomes an ongoing problem. She indicated that appellant had limitations of fine motor, pinch,

and grasp, with the left hand and significant ankyloses of her finger. Dr. Jones suggested that 

appellant would benefit from seeing a trained hand surgeon and a certified hand therapist. She

opined that appellant could not perform her full job without restrictions because of the problems 

with pinch, fine motor, and grasp of the left hand. In her report and an accompanying work 

capacity evaluation form (Form OWCP-5c), Dr. Jones opined that appellant could work full time 

with restrictions for approximately 12 weeks. The restrictions were no lifting more than 20 pounds 

up to 2 hours, with 5-minute breaks every hour and 10-minute breaks every 3 hours.

In a March 8, 2018 Form OWCP-5c, Dr. Ali Hashemi, a Board-certified orthopedic hand 

surgeon, opined that appellant could work eight hours per day in a light-duty position with 

restrictions for three weeks or until her next appointment. His assigned restrictions included no 

more than four hours of repetitive movements of appellant’s wrist and elbow, and no more than 

one hour of pushing, pulling, and lifting up to 15 pounds. In his March 8, 2018 report, Dr. Hashemi 
3

recounted the history of appellant’s employment injury, noted her examination findings, and 

administered an injection to her left index finger due to stiffness and intrinsic contracture of the 

left index finger status post laceration. He noted that appellant’s treatment plan was to start hand 

therapy, continue with light duty, and return for reevaluation in three weeks.

On March 12, 2018 the employing establishment offered appellant a temporary full-time 

light-duty assignment as a modified rural carrier for 10 hours per day, 4 days per week. The duties 

required an average of 8.6 hours in a case carry route and other duties as assigned within 

restrictions. The physical requirements of the assignment included lifting up to 10 pounds and 

simple gasping and holding mail in two-hour increments. Appellant refused the modified 

assignment on March 14, 2018, claiming that the duties were not in accordance with her repetitive 

movement restrictions. 

In a March 14, 2018 note, received by OWCP on April 2, 2018, Dr. Hashemi advised that 

appellant could use her left hand for only one hour of grasping, pulling, lifting, casing, and pushing. 

In his March 14, 2018 report, he indicated that appellant had again strained her left index finger 

when she went back to work. Dr. Hashemi indicated that appellant could flex her 

metacarpophalangeal (MP) joint to approximately 90 degrees and PIP joint to approximately 70 

degrees and that she was unchanged neurovascularly. He recommended additional nerve testing 

and physical therapy.

On March 26, 2018 appellant filed claims for wage-loss compensation (Form CA-7) for 

intermittent periods of disability, commencing February 17, 2018.4 For the period March 3 

through 16, 2018, she claimed a total of 32 hours of leave without pay (LWOP). 

On an April 11, 2018 Form OWCP-5c, Dr. Hashemi diagnosed left index finger strain and 

left hand weakness. He indicated that appellant could work six hours per day with restrictions of 

no more than three hours of simple grasping and no more than four hours of fine manipulation, 

reaching above shoulder, and driving a vehicle. In another report of even date, Dr. Hashemi 

indicated that appellant could flex her PIP joint to approximately 70 degrees and that she had mild 

signs of carpal tunnel syndrome. He ordered additional electrodiagnostic testing to determine if 

appellant had developed carpal tunnel syndrome. Dr. Hashemi advised that she would be kept on 

partial light duty. 

In an April 25, 2018 letter, appellant noted her medical treatment by Dr. Hashemi and the 

diagnostic testing performed. She indicated that the employing establishment placed her on 

LWOP status after she refused the March 12, 2018 assignment and she had not received another 

job offer.

In an April 25, 2018 letter, OWCP advised appellant that the March 12, 2018 temporary 

light-duty job offer was medically suitable in accordance with the medical limitations provided by

Dr. Jones and that the position remained available. It advised her that, under the provisions of 20 

C.F.R. § 10.500(a),she would not be entitled to compensation for total wage loss for the duration 

of the temporary light-duty assignment if she failed to report for work, which had been deemed 

appropriate by OWCP. OWCP afforded appellant 30 days to either accept the assignment and 

4 Wage-loss compensation benefits claimed for dates prior to March 3, 2018 have been paid and are not at issue in 

this appeal. 
4

report to duty or submit evidence that the assignment was no longer available or no longer 

accommodated her medical work restrictions as provided by Dr. Jones. 

In response, OWCP received an April 11, 2018 note from Dr. Hashemi, which diagnosed 

laceration of left index finger, carpal tunnel syndrome of left wrist, and cubital tunnel syndrome 

on left. It also received physical therapy and occupational therapy reports dated March 20 through 

May 15, 2018.

In a May 18, 2018 duty status report (Form CA-17), Dr. Hashemi indicated that appellant 

had left index finger stiffness and left carpal tunnel syndrome. He also indicated that she could 

work six hours per day with restrictions.

On June 8, 2018 OWCP received a June 1, 2018 note from Dr. Hashemi, wherein he 

recommended left carpal tunnel release surgery. Dr. Hashemi opined that appellant’s carpal tunnel 

syndrome was due to the accepted employment injury. He notedthat she did not have carpal tunnel 

syndrome prior to the work injury. Dr. Hashemi explained that “because of compensation and a 

lack of nerve gliding, carpal tunnel developed in her hand and her wrist as a result of the injury.” 

He further noted that “[h]er stiffness is only going to get worse if she does not have carpal tunnel 

release.” Attached were electromyogram and nerve conduction velocity (EMG/NCV) study 

results, which included his impression of moderate-to-severe carpal tunnel syndrome.

OWCP referred the medical record, along with a statement of accepted facts (SOAF), to a 

DMA for an opinion on the medical necessity of the requested left carpal tunnel release surgery. 

By decision dated June 19, 2018, OWCP denied appellant’s claim for wage-loss 

compensation, finding that the medical evidence of record was insufficient to establish disability

from the temporary light-duty assignment during the claimed period due to her accepted injury. 

In a report dated July 2, 2018, Dr. Nathan Hammel, a Board-certified orthopedic surgeon 

serving as an OWCP DMA, noted his review of the SOAF and the medical record. He opined that 

the proposed left carpal tunnel release surgery was medically necessary as it was likely to decrease 

pain and increase function. However, the DMA further found that the requested surgery is not 

intended to treat or otherwise causally related to the accepted medical conditions of laceration 

without foreign body of left index finger without damage to nail and displaced fracture of distal 

phalanx of left index finger, initial encounter for closed fracture. He explained that “there is no 

evidence that the work injury has had any impact on the development of the carpal tunnel 

syndrome.”

OWCP received additional Form CA-7 wage-loss compensation claims for disability from 

work during the period March 17 through June 8, 2018.

5

 Also received were physical therapy and 

occupational therapy notes.

5 Appellant claimed 80 hours of LWOP for the periods March 17 through 30, 2018, April14 through 27, 2018, 

April 28 through May 11, 2018, and May 12 through 25, 2018. She claimed 72 hours LWOP for the period May 26 

through June 8, 2018. 
5

Medical notes from Dr. Hashemi dated May 18 and June 1, 2018 continued to recommend 

surgical correction of appellant’s left carpal tunnel syndrome, which was confirmed by a May 4, 

2018 EMG.

By decision dated July 6, 2018, OWCP denied authorization for left carpal tunnel 

syndrome release surgery based on the opinion of the DMA. 

In an October 10, 2018 report, Dr. Hashemi noted that appellant still had stiffness in her 

left index finger, but neurovascularly she was improved and that the x-ray of the index finger 

showed no significant increase in arthritis of the joints. He opined that the fact she had stiffness 

in that index finger for so many months and had not improved, more strain was placed on the other 

tendons in her other fingers, which all intersected across the wrist and caused irritation of the 

median nerve. Dr. Hashemi further explained that this caused appellant to compensate with her 

wrist and her other fingers. As a result, appellant developed inflammation around her nerve. 

Dr. Hashemi noted that the fact that she had improved following her carpal tunnel release indicated 

that the carpal tunnel diagnosis was part of, and the result of, the employment injury. He 

recommended a functional capacity evaluation (FCE) and that appellant continue her current work 

restrictions.

On February 18, 2019 appellant, through counsel, requested reconsideration of OWCP’s 

June 19, 2018 denial of wage-loss compensation. 

Also on February 18, 2019 appellant, through counsel, requested reconsideration of 

OWCP’s July 6, 2018 denial of authorization for left carpal tunnel release surgery. 

OWCP subsequently received additional physical therapy/occupational therapy reports; a 

January 9, 2019 FCE report; and a January 25, 2018 Form OWCP-5c.

In a July 19, 2018 note, Dr. Hashemi noted that appellant was scheduled for carpal tunnel

release surgery on July 31, 2018 and that she would be off work until further notice. In an 

August 15, 2018 note, he indicated that she would remain off work until her September 12, 2018 

follow-up appointment. Dr. Hashemi placed her on light duty on September 12, 2018. 

In a January 23, 2019 report, Dr. Hashemi indicated that appellant had reached maximum 

medical improvement. He agreed with the FCE, which determined that she was able to perform 

sedentary, light-duty work. 

In a January 23, 2019 report, Dr. Andre Eglevsky, a Board-certified orthopedic surgeon, 

indicated that he initially saw appellant on July 11, 2017, following her employment injury. He 

related appellant’s progress through her last visit of November 27, 2017, during which he indicated 

that she was referred to a hand specialist.

By decision dated March 26, 2019, OWCP denied modification of its June 19, 2018 

decision regarding appellant’s claim for wage-loss compensation. 

By separate decision dated March 26, 2019, OWCP denied modification of itsJuly 6, 2018

decision regarding authorization for surgery. 
6

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA6 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence. 7 For each period of disability 

claimed, the employee has the burden of establishing that he or she was disabled for work as a 

result of the accepted employment injury.8 Whether a particular injury causes an employee to 

become disabled for work, and the duration of that disability, are medical issues that must be 

proved by a preponderance of probative and reliable medical opinion evidence.9

Section 10.500 (a) of OWCP’s regulations providesin relevant part:

“(a) Benefits are available only while the effects of a work-related condition 

continue. Compensation for wage loss due to disability is available only for any 

periods during which an employee’s work-related medical condition prevents [him 

or her] from earning the wages earned before the work-related injury. For example, 

an employee is not entitled to compensation for any wage loss claimed on a [Form] 

CA-7 to the extent that evidence contemporaneous with the period claimed on a 

[Form] CA-7 establishes that an employee had medical work restrictions in place; 

that light duty within those work restrictions was available; and that the employee 

was previously notified in writing that such duty was available. Similarly, an 

employee receiving continuing periodic payments for disability was not prevented 

from earning the wages earned before the work-related injury if the evidence 

establishes that the employing [establishment] had offered, in accordance with 

OWCP procedures, a temporary light-duty assignment within the employee’s work 

restrictions.”

10

Section 8123(a) of FECA provides that, if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or impartial medical specialist) who shall 

make an examination.11 This is called a referee examination and OWCP will select a physician 

who is qualified in the appropriate specialty and who has no prior connection with the case.12 For 

a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”

13

6

Supra note 2.

7 M.D., Docket No. 18-0474 (issued October 3, 2018); see Amelia S. Jefferson, 57 ECAB 183 (2005); see also 

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968).

8

Id.

9 M.D., supra note 7; see alsoEdwardH. Horton, 41 ECAB 301 (1989).

10 20 C.F.R. § 10.500(a).

11 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

12 20 C.F.R. § 10.321.

13 R.P., Docket No. 17-0428 (issued April19, 2018); Darlene R. Kennedy, 57 ECAB 414 (2006).
7

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decisionwith regard to whether appellant 

was intermittently disabled from work commencing March 10, 2018 causally related to the 

accepted employment injury. 

Following appellant’s June 12, 2017employment injury, she returned to work on August 5, 

2017 in a limited-duty position, working six hours per day, with simple grasping and fine 

manipulation required up to six hours a day. 

On January 4, 2018 OWCP referred appellant to Dr. Jones for a second opinion evaluation 

regarding the status of her accepted conditions and work capacity. In her January 25, 2018 report,

Dr. Jones did not limit the number of hours a day appellant could work. The only restrictions that

Dr. Jones noted were that appellant was not to lift no more than 20 pounds for 2 hours, and that 

she should be allowed a 5-minute break every hour, and a 10-minute break every 3 hours. 

However, OWCP continued to receive medical reports from appellant’s treating physician. 

Dr. Hashemi, in his March 8, 2018 Form OWCP-5(c), assigned more restrictive limitations. He 

limited appellant to an eight-hour workday, with no more than four hours a day of repetitive wrist 

motion, and lifting no more than 15 pounds in one hour. 

The Board, therefore, finds that a conflict in medical opinion exists with regard to

appellant’s work restrictions. Appellant had been working in a modified position for six hours a 

day, with simple grasping and fine manipulation required up to six hours a day, but a conflict 

existed in the medical evidence as to whether she could work unlimited hours, with only a lifting 

weight restriction, or eight hours a day, with only four hours of repetitive wrist motion.

Pursuant to 5 U.S.C. § 8123(a), OWCP should have referred the case record and a 

statement of accepted facts to an impartial medical examiner to resolve the conflict in medical 

opinion between Dr. Jones and Dr. Hashemi regarding the issue of appellant’s capacity to work 

commencing March 10, 2018. 

The Board further notes that on March 12, 2018 the employing establishment offered 

appellant a temporary, full-time modified employment position, which OWCP found medically 

suitable on April 25, 2018 based on Dr. Jones’ January 25, 2018 second opinion report. The 

temporary position, which the employing establishment offered to appellant on March 12, 2018,

required 10 hours of work a day, four days a week, with casing for 8.6 hours a day. The physical 

requirements of the position indicated that lifting was to be performed up to 10 pounds, and simple 

grasping and holding mail was to be performed in two-hour increments. 

The issue of whether an employee has the physical ability to perform a modified position 

offered by the employing establishment is a medical question that must be resolved by medical 

evidence.14 While this temporary job offer was within Dr. Jones’ medical restrictions, as 

previously discussed, a conflict existed in the medical evidence as to appellant’s ability to perform 

more than four hours of repetitive wrist motion a day, following the receipt of Dr. Hashimi’s 

March 8, 2018 Form OWCP-5(c).

14 See D.L., Docket No. 18-0862 (issued October 12, 2018); Kathy E. Murray, 55 ECAB 288 (2004).
8

Because there remains an unresolved conflict in medical opinion regarding appellant’s

work capacity commencing March 10, 2018, the case shall be remanded to OWCP for referral to 

an impartial medical examiner pursuant to section 8123(a) of FECA. 15 After this and other such 

further development as deemed necessary, OWCP shall issue a de novo decision regarding 

appellant’s wage-loss compensation claim.

LEGAL PRECEDENT -- ISSUE 2

Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies 

prescribed or recommended by a qualified physician who OWCP, under authority delegated by 

the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or 

aid in lessening the amount of monthly compensation.16 In interpreting section 8103(a), the Board 

has recognized that OWCP has broad discretion in approving services provided under FECA to 

ensure that an employee recovers from his or her injury to the fullest extent possible in the shortest 

amount of time.17

OWCP has administrative discretion in choosing the means to achieve the goal of recovery 

from a work-related injury and the only limitation on OWCP’s authority is that of reasonableness.18

Abuse of discretion is generally shown through proof of manifest error, clearly 

unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable 

deductions from established facts. It is not enough to merely show that the evidence could be 

construed so as to produce a contrary factual conclusion.19

ANALYSIS -- ISSUE 2

The Board further finds that OWCP properly denied authorization for surgery. 

In the present case, OWCP accepted that appellant sustained a displaced fracture of the 

distal phalanx of her left index finger and a laceration to the left index finger without damage to 

the nail. Appellant seeks authorization for a proposed left carpal tunnel release surgery. She must 

submit, as discussed above, rationalized medical evidence establishing that the requested surgery 

is causally related to the employment injury.

On June 8, 2018 OWCP received a June 1, 2018 note from Dr. Hashemi, wherein he 

recommended left carpal tunnel release surgery. Dr. Hashemiopined that appellant’s carpal tunnel 

syndrome was due to the accepted employment injury. He noted that she did not have carpal tunnel 

syndrome prior to the work injury. Dr. Hashemi explained that “because of compensation and a 

lack of nerve gliding, carpal tunnel developed in her hand and her wrist as a result of the injury.” 

15 See J.B.,Docket No. 19-0715 (issued September 12, 2019). 

16 5 U.S.C. § 8103(a).

17 See Dale E. Jones, 48 ECAB 648, 649 (1997).

18 See H.L. 16-0920 (issued January 9, 2017); Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of 

discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise of judgment 

or administrative actions which are contrary to both logic and probable deductions from established facts).

19 See H.L., id.; Minnie B. Lewis, 53 ECAB 606 (2002).
9

He further noted that “[h]er stiffness is only going to get worse if she does not have carpal tunnel 

release.” Attached were EMG/NCV study results, which included his impression of moderate-tosevere carpal tunnel syndrome. While he opined that appellant would benefit from the proposed 

surgery, Dr. Hashemi failed to provide a reasoned explanation for his opinion and, thus, it is of 

limited probative value.

20

In a report dated July 2, 2018, Dr. Hammel, the DMA, noted his review of the SOAF and 

the medical record. He opined that the proposed left carpal tunnel release surgery was medically 

necessary as it was likely to decrease pain and increase function. However, the DMA furthe r found 

that the requested surgery is not intended to treat or otherwise causally related to the accepted 

medical conditions of laceration without foreign body of left index finger without damage to the 

nail and displaced fracture of distal phalanx of left index finger, initial encounter for closed 

fracture. He explained that “there is no evidence that the work injury has had any impact on the 

development of the carpal tunnel syndrome.”

OWCP has discretion under 5 U.S.C. § 8103 regarding authorization of medical treatment.

As Dr. Hashemi did not provide a rationalized opinion on causal relationship between the 

requested surgery and the accepted employment incident, the Board finds that OWCPdid not abuse 

its discretion in denying authorization for surgery based on the report of the DMA. 

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 this case is not in posture for decisionwith regard to whether appellant 

has established intermittent disability from work, commencing March 10, 2018, causally related 

to her June 12, 2017 accepted employment injury. The Board further finds that OWCP properly 

denied authorization for left carpal tunnel release surgery.

20 See J.L., Docket No. 18-0503 (issued October 16, 2018).
10

ORDER

IT IS HEREBY ORDERED THAT the March 26, 2019 decision of the Office of 

Workers’CompensationPrograms regarding the denial of wage-loss compensation is set aside and 

the case is remanded for further action consistent with this decision of the Board. The March 26, 

2019 decision of the Office of Workers’ Compensation Programs regarding the denial of 

authorization for left carpal tunnel release surgery is affirmed. 

Issued: June 27, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board