United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Raleigh, NC, Employer

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-1282
Issued: September 21, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 9, 2007 appellant filed a timely appeal from an August 18, 2006 decision of the
Office of Workers’ Compensation Programs denying her claim for an emotional condition. The
Board also has jurisdiction to review a February 20, 2007 decision denying her request for a
hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit
decision and the nonmerit decision in this case.
ISSUES
The issues are: (1) whether appellant’s claimed emotional condition is causally related to
a compensable factor of her employment; and (2) whether the Office abused its discretion in
denying her request for a hearing.
FACTUAL HISTORY
On February 14, 2006 appellant, then a 54-year-old clerk, filed a claim for an emotional
condition alleging that she developed anxiety and depression caused by factors of her federal
employment. She alleged that for several years she had been assigned to different rehabilitation
positions and the job transfers caused stress. In August 1999, appellant was offered a permanent

rehabilitation job working for Postmaster Felix DeSantis. Instead, she was assigned to Elaine
Owens, customer relations coordinator, to perform customer relations duties. Appellant alleged
that Ms. Owens was hostile towards her. On one occasion, she requested a meeting with Acting
Postmaster Chris Tinkham and Ms. Owens. Subsequently, appellant alleged daily retaliatory
actions by Ms. Owens. She was subsequently assigned to Mr. DeSantis. Ms. Owens did not
approve of the transfer to Mr. DeSantis. A decision was made to eliminate appellant’s
permanent rehabilitation position. She alleged that this was due to Ms. Owens’ insistence on
removing her from the facility. In April 2002, appellant’s permanent rehabilitation position was
terminated. She accepted another job, under duress, which violated her medical restrictions
against repetitive motion activities. In May 2003, appellant was given a third rehabilitation job.
However, the duties were never defined. The secretary assigned at that time expressed concern
about working with appellant. In November 2005, appellant did not have a permanent position
and management did not find her suitable employment. Due to the repeated job assignments she
developed anxiety and depression. The record contains copies of appellant’s rehabilitation jobs
from August 1999 to May 2003. Appellant submitted medical evidence in support of her claim.
In a March 9, 2006 statement, Calvin Bagley, acting manager, Post Office Operations
Area 2, stated that he had been appellant’s supervisor since October 2005. In November 2005,
appellant was notified that she would be transferred to the Raleigh Post Office, where she had
worked previously, because there was no work for her in Mr. Bagley’s office. Mr. Bagley stated
that he never received any complaints from his secretary about working with appellant. He
stated that appellant and his secretary seemed to have a good working relationship, although
appellant advised him that the secretary did not like her.
By decision dated August 18, 2006, the Office denied appellant’s claim on the grounds
that the evidence did not establish that her emotional condition was causally related to a
compensable factor of employment.
By letter postmarked September 19, 2006, appellant requested an oral hearing. On
February 20, 2007 the Office denied her request for a hearing on the grounds that it was not
timely submitted within 30 days of the August 18, 2006 decision. The Office exercised its
discretion and determined that the issue in the case, whether appellant had a work-related
emotional condition, could be resolved equally well through a reconsideration request and the
submission of additional evidence.1
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
1

Subsequent to the February 20, 2007 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.

2

reaction to her regular or specially assigned work duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.3
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of the Act. However, where the evidence demonstrates that the employing establishment either
erred or acted abusively in the administration of personnel matters, coverage may be afforded.4
Where the claimant alleges compensable factors of employment, he or she must
substantiate such allegations with probative and reliable evidence.5 The fact that a claimant has
established compensable factors of employment does not establish entitlement to compensation.
The employee must also submit rationalized medical opinion evidence establishing that he or she
has an emotional condition that is causally related to the compensable employment factor.6 The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific compensable
employment factors identified by the claimant.7
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment, which may be considered by a physician
when providing an opinion on causal relationship and which are not deemed compensable factors
of employment and may not be considered.8 When a claimant fails to implicate a compensable
factor of employment, the Office should make a specific finding in that regard. If a claimant
does implicate a factor of employment, the Office should then determine whether the evidence of
record substantiates that factor.9 When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter asserted, then the
Office must base its decision on an analysis of the medical evidence.10 As a rule, allegations

2

5 U.S.C. §§ 8101-8193.

3

Lillian Cutler, 28 ECAB 125 (1976).

4

Michael Thomas Plante, 44 ECAB 510 (1993).

5

Joel Parker, Sr., 43 ECAB 220 (1991).

6

James W. Griffin, 45 ECAB 774 (1994).

7

Donna Faye Cardwell, 41 ECAB 730 (1990).

8

Dennis J. Balogh, 52 ECAB 232 (2001).

9

Margaret S. Krzycki, 43 ECAB 496 (1992).

10

See Charles D. Edwards, 55 ECAB 259 (2004).

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alone by a claimant are insufficient to establish a factual basis for an emotional condition claim
but rather must be corroborated by the evidence.11
ANALYSIS -- ISSUE 1
Appellant alleged that for several years she was assigned to different rehabilitation
positions. Due to the repeated job transfers, she developed anxiety and depression.
Several allegations made by appellant concern personnel or administrative matters. The
Board has held that an administrative or personnel matter will be considered to be an
employment factor only where the evidence discloses error or abuse on the part of the employing
establishment.12 In determining whether the employing establishment erred or acted abusively,
the Board has examined whether the employing establishment acted reasonably.13 Appellant
alleged that in August 1999 she was offered a permanent rehabilitation job working for
Mr. DeSantis. Instead, she was assigned to Ms. Owens to perform customer relations duties.
Appellant was subsequently assigned to Mr. DeSantis. A decision was made to eliminate her
permanent rehabilitation position which she attributed to Ms. Owens’ insistence on removing her
from the facility. The assignment of job duties is an administrative function of a supervisor.
There is insufficient evidence that management acted abusively or in error in making appellant’s
work assignments. Because there is insufficient evidence of error or abuse in the handling of
these administrative or personnel matters, these allegations are not deemed compensable factors
of employment.
Appellant alleged that Ms. Owens was hostile towards her. On one occasion, she
requested a meeting with Mr. Tinkham and Ms. Owens. Thereafter, appellant alleged daily
retaliatory actions from Ms. Owens. Mere perceptions of harassment or discrimination are not
compensable under the Act. Appellant’s burden of proof is not discharged with allegations
alone. She must support her charges with probative and reliable evidence.14 There is insufficient
evidence to establish that Ms. Owens harassed or discriminated against appellant. Appellant’s
allegations are not detailed as to specific instances of retaliation on the part of her supervisor or
supported by evidence, such as witness statement. Therefore, this allegation is not deemed a
compensable employment factor.
The Board finds that certain allegations made by appellant are not established as factual.
Appellant alleged that, in April 2002, her permanent rehabilitation position was terminated and
her new position violated her medical restrictions. The Board has held that being required to
work beyond one’s physical limitations may constitute a compensable employment factor if such
activity was substantiated by the record.15 However, appellant provided insufficient evidence
11

See Charles E. McAndrews, 55 ECAB 711 (2004).

12

Charles D. Edwards, supra note 10.

13

Janice I. Moore, 53 ECAB 777 (2002).

14

Cyndia R. Harrill, 55 ECAB 522 (2004).

15

Diane C. Bernard, 45 ECAB 223 (1993).

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that the employing establishment assigned her to perform work that was beyond her physical
limitations. Therefore, this allegation is not established as factual and is not deemed a
compensable employment factor. In May 2003, appellant was given a third rehabilitation job.
However, the duties were never defined. Appellant did not provide evidence to establish that her
job duties were not provided to her. Therefore, this allegation is not established as factual and is
not deemed a compensable employment factor. Appellant alleged that the secretary assigned in
May 2003 expressed concern about working with her. Mr. Bagley was appellant’s supervisor at
the time and he stated that he never received any complaints from his secretary about working
with appellant. There is insufficient evidence to establish that the secretary expressed concern
about working with appellant. Appellant alleged that, in November 2005, she did not have a
permanent position and management did not find her suitable employment. She provided no
evidence to support this allegation. Therefore, it is not deemed a compensable factor of
employment.
For the foregoing reasons, appellant has not established a compensable employment
factor under the Act. Therefore, she has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.16
LEGAL PRECEDENT -- ISSUE 2
Any claimant dissatisfied with a decision of the Office shall be afforded an opportunity
for an oral hearing, or, in lieu thereof, a review of the written record.17 A request for either an
oral hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the decision for which the hearing is sought.18 A claimant is not entitled to a hearing or a
review of the written record if the request is not made within 30 days of the date of the decision
for which the hearing is sought.19 The Office has discretion, however, to grant or deny a request
that is made after this 30-day period.20 In such a case, the Office will determine whether a
discretionary hearing should be granted and, if not, will so advise the claimant with reasons.21

16

Unless appellant alleges a compensable factor of employment substantiated by the record, it is unnecessary to
address the medical evidence. See Barbara J. Latham, 53 ECAB 316 (2002); Garry M. Carlo, 47 ECAB
299 (1996).
17

5 U.S.C. § 8124(b) of the Act provides that, before review under section 8128(a), a claimant for compensation
who is not satisfied with a decision of the Secretary of Labor is entitled to a hearing on his claim on a request made
within 30 days after the date of issuance of the decision before a representative of the Secretary of Labor.
Section 8124(b)(1) is unequivocal in setting forth the time limitation for requesting a hearing; a claimant is not
entitled to a hearing as a matter of right unless the request is made within the requisite 30 days. See Charles J.
Prudencio, 41 ECAB 499 (1990).
18

20 C.F.R. § 10.616(a).

19

James Smith, 53 ECAB 188 (2001).

20

20 C.F.R. § 10.616(b).

21

James Smith, supra note 19.

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ANALYSIS -- ISSUE 2
Appellant’s request for a hearing was postmarked September 19, 2006, more than 30
days after the Office’s August 18, 2006 decision.22 Therefore, she was not entitled to a hearing
as a matter of right. The Office exercised its discretion and determined that the issue in the case,
whether she had a work-related emotional condition, could be resolved through a request for
reconsideration and the submission of additional evidence. The Board finds no evidence to
indicate that the Office abused its discretion in denying appellant’s untimely request for a
hearing in its February 20, 2007 decision.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty causally related to compensable
factors of employment. The Board further finds that the Office did not abuse its discretion in
denying appellant’s request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 20, 2007 and August 18, 2006 are affirmed.
Issued: September 21, 2007
Washington, DC

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

22

The request was postmarked 32 days after the August 18, 2006 decision.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dayton, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-549
Issued: September 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 19, 2008 appellant, through her representative, filed a timely appeal from a
May 12, 2008 merit decision of the Office of Workers’ Compensation Programs and a
November 18, 2008 merit decision of an Office hearing representative denying her claim for fact
of injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the case.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty causally related to her federal employment duties.
FACTUAL HISTORY
On March 25, 2008 appellant, then a 53-year-old mailing requirements clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained carpal tunnel syndrome due
to repetitive movements at work, including typing, lifting and sorting. She noted that she was
first aware of the disease and its relationship to her employment on February 18, 2008.

In a medical report dated January 17, 2008, Dr. Pani Akuthota reported appellant’s
history of intermittent tingling and numbness of the left hand for several years, with a recent
onset of pain along the left wrist and hand. He opined that the findings of a physical
examination, electromyogram (EMG) and nerve conduction study suggested moderately severe
left median nerve entrapment neuropathy across the wrist or moderately severe left carpal tunnel
syndrome. Dr. Akuthota stated that there was evidence of axonal loss along the left abductor
pollicis brevis with evidence of denervation and reinnervation.
In a January 11, 2008 medical report, Dr. Matthew Studebaker, Board-certified in family
medicine, stated that appellant sustained right carpal tunnel syndrome in 1990. He reported that
appellant’s left hand was numb, that she had difficulties gripping and that her symptoms had
worsened in the past few months. Dr. Studebaker diagnosed carpal tunnel syndrome.
By letter dated April 1, 2008, the Office advised appellant of the deficiencies in her claim
and requested additional information.
In a February 18, 2008 medical report, Dr. John S. Urse, an osteopath, stated that
appellant underwent right carpal tunnel release in 1990 and that she was returning for a left
carpal tunnel release. Appellant provided a January 17, 2008 EMG with evidence of severe
median nerve entrapment. She relayed that her repetitive job duties caused burning and
numbness in the hand. Appellant’s symptoms included numbness and tingling in the index, long
and thumb digits and to a lesser degree the small finger of the left hand. Physical examination
revealed positive Tinel’s test over the median nerve causing a numb or tingling sensation in the
index and fingers. Carpal tunnel compression and Phalen’s test were positive. Dr. Urse
diagnosed left hand pain, moderate to severe carpal tunnel syndrome per EMG, possible tardy
ulnar nerve in the left elbow and possible basal joint arthropathy of the left thumb. He noted that
appellant may want to file a claim through workers’ compensation. Further, an x-ray report
showed mild, early degenerative changes at the trapeziometacarpal articulation.
By decision dated May 12, 2008, the Office denied appellant’s claim on the grounds that
she did not establish that she sustained an injury causally related to her employment duties.
On June 2, 2008 appellant, through her representative, filed a request for a telephonic
hearing before an Office hearing representative. A telephonic hearing took place on
September 11, 2008.
In an October 22, 2008 medical report, Dr. Urse stated that he saw appellant in
February 2008, at which time he diagnosed left carpal tunnel syndrome and recommended a left
carpal tunnel release. After reviewing her repetitive job duties, including keying, sorting,
sweeping machines, lifting and throwing, he opined that the carpal tunnel was a direct result of
performing these duties for many years.
By decision dated November 18, 2008, an Office hearing representative affirmed the
May 12, 2008 decision on the grounds that appellant did not meet her burden of proof in
establishing that she sustained left carpal tunnel syndrome due to her federal employment duties.

2

LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,2 including that she is an “employee” within the meaning of
the Act3 and that she filed her claim within the applicable time limitation.4 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS
The issue is whether appellant established that she sustained an injury to her left upper
extremity as a result of her repetitive employment duties. The Board finds that she did not
provide sufficient medical evidence to meet her burden of proof.

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

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In a January 17, 2008 medical report, Dr. Akuthota reported appellant’s history of
intermittent tingling and numbness in her left hand and recent onset of pain along the left wrist
and hand. Physical examination and diagnostic testing revealed findings of severe left carpal
tunnel syndrome. Dr. Akuthota also found evidence of axonal loss along the left abductor
pollicis brevis. However, he did not discuss the cause of appellant’s conditions nor did he
indicate any relationship between these conditions and appellant’s employment duties. Thus,
this report is of diminished probative value and insufficient to meet appellant’s burden of proof.8
Appellant also submitted medical reports dated February 18 and October 22, 2008 from
Dr. Urse. In the February 18, 2008 report, Dr. Urse relayed appellant’s comments that her
repetitive job duties caused burning and numbness in the hand. He diagnosed moderate-tosevere carpal tunnel syndrome and possible tardy ulnar nerve in the left elbow and possible basil
joint arthropathy of the left thumb. Dr. Urse noted that appellant may want to file a workers’
compensation claim. This report is also insufficient to meet appellant’s burden of proof.
Although, Dr. Urse mentioned that appellant may want to file a workers’ compensation claim, he
did not provide a rationalized medical opinion describing the relationship between appellant’s
condition and her employment. Further, his reporting of appellant’s belief that her repetitive job
duties caused her left hand symptoms does not constitute a rationalized medical opinion and is
insufficient to establish causation.9
Further, in the October 22, 2008 medical report, Dr. Urse stated that he saw appellant in
February 2008 and diagnosed left carpal tunnel syndrome. He opined that the carpal tunnel
syndrome was a direct result of appellant’s performance of repetitive job duties over many years,
including keying, sorting, sweeping, machines, lifting and throwing. However, Dr. Urse did not
expand on his conclusion of causal relationship or provide a rationalized medical opinion
explaining how the repetitive movements associated with appellant’s job duties caused or
contributed to the carpal tunnel. Specifically, he did not explain the mechanisms associated with
these tasks or how their repeated performance over a series of years led to carpal tunnel
syndrome. Therefore, this report is also of diminished probative value.10
Finally, in a January 11, 2008 medical report, Dr. Studebaker diagnosed carpal tunnel
syndrome and described appellant’s symptoms. The report did not include an opinion on
causation thereby rendering it of diminished probative value.11
The Board finds that none of the medical evidence provided a sufficiently rationalized
medical opinion describing the relationship between appellant’s left carpal tunnel syndrome and
her repetitive employment duties. Therefore, appellant did not meet her burden of proof in
establishing causation.

8

See Donald T. Pippin, 54 ECAB 631 (2003).

9

Appellant’s belief that the employment caused or aggravated her condition is insufficient to establish causal
relationship. See Joseph T. Gulla, 36 ECAB 516 (1985).
10

See Robert Broome, 55 ECAB 339 (2004).

11

See Donald. T. Pippin, supra note 8.

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CONCLUSION
The Board finds that appellant did not establish that she sustained an injury in the
performance of duty causally related to her federal employment duties.
ORDER
IT IS HEREBY ORDERED THAT the November 18 and May 12, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 10, 2009
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, ROGERS PARK POST )
OFFICE, Chicago, IL, Employer
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__________________________________________ )
E.M., Appellant

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 18-0454
Issued: February 20, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 2, 2018 appellant filed a timely appeal from July 21 and December 21, 2017
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish eligibility
for continuation of pay; and (2) whether appellant has met his burden of proof to establish total
disability from work for the period March 8 to July 7, 2017 causally related to his accepted
employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 7, 2017 appellant, then a 27-year-old mail carrier,2 filed a traumatic injury claim
(Form CA-1) alleging that he injured his lower back on March 8, 2017 as a result of blacking out
and stumbling while in the performance of duty. He stopped work on the date of injury. The
employing establishment advised that notice of the injury was first received on June 7, 2017.
In a March 16, 2017 report, Dr. Lise S. Weisberger, a Board-certified family practitioner,
recounted that appellant reported that he had reinjured his lower back when leaving work on
March 8, 2017 and had missed work from March 10 to 16, 2017. She found increased lumbar
paraspinal spasm and decreased range of motion of the low back. Dr. Weisberger released
appellant to return to work with his usual restrictions of working five hours a day, when his
vacation ended on March 27, 2017.
On July 12, 2017 appellant filed a wage-loss compensation claim (Form CA-7) for the
period March 8 through July 7, 2017.
By decision dated July 21, 2017, OWCP accepted appellant’s claim for the condition of
lumbar strain.
By separate decision of even date, OWCP denied appellant’s claim for continuation of pay
for the period March 8 to April 21, 2017 finding that he had failed to report the March 8, 2017
employment injury on a form approved by OWCP within 30 days, as required.
In a development letter dated July 21, 2017, OWCP requested additional medical evidence
establishing appellant’s disability for work during the claimed period. Appellant was afforded 30
days to respond. He did not submit additional evidence.
By decision dated September 1, 2017, OWCP denied appellant’s wage-loss compensation
claim finding that the medical evidence of record failed to establish total disability due to the
accepted employment injury.
On September 18, 2017 appellant requested reconsideration.
In support of his claim appellant submitted reports dated May 4 and June 9 and 29, 2017
from Dr. Weisberger who continued to diagnose lumbar muscle spasm. In the June 29, 2017
report, Dr. Weisberger indicated that he had missed work since June 16, 2017 “due to back pain
and stiffness” and was planning to return to work on July 3, 2017.
In a September 8, 2017 report, Dr. Weisberger noted that appellant initially sustained a
work-related injury on May 10, 2014 when he was lifting a heavy pallet of mail from a gurney and
was diagnosed with acute lumbar strain on May 16, 2014. Appellant had sustained his new injury
on March 8, 2017 and requested paperwork “to document his ability to return to work with
2

On March 7, 2017 appellant had accepted a limited-duty job offer as a city carrier. The duties included emptying
trash at carrier cases, cleaning, mopping, and answering telephones. The physical requirements included lifting,
carrying, pushing, and pulling up to 13 pounds for up to six hours per day, walking up to three hours per day, simple
grasping and fine manipulation up to six hours per day, and sitting one hour at a time for up to six hours per day.

2

restrictions following episodes of missed work due to exacerbations of his back pain.”
Dr. Weisberger diagnosed a lumbar back strain and opined that he was disabled for the period
claimed.
Appellant submitted progress reports dated March 16 and September 8, 2017 by
Dr. Weisberger who continued to diagnose lumbar spasm.
In an April 11, 2017 report, Dr. Lauren M. Burke, a Board-certified radiologist, reviewed
x-rays of appellant’s cervical and lumbar spine and found intact cervical and lumbar lordosis with
maintained alignment and no evidence of fracture or listhesis. She also reviewed a magnetic
resonance imaging (MRI) scan of the lumbar spine and found mild multilevel degenerative
changes, most pronounced at L5-S1. Dr. Burke found no significant stenosis. She diagnosed a
reaggravation of cervical and lumbar back strains.
By decision dated December 21, 2017, OWCP affirmed its prior decision with
modification finding that the medical evidence of record failed to establish appellant’s disability
for the entire claimed period. It further found that he had established entitlement to wage-loss
compensation for attending medical appointments on March 16, April 11, May 4, June 9 and 29,
and September 8, 2017.
LEGAL PRECEDENT -- ISSUE 1
Section 8118 of FECA3 provides for payment of continuation of pay, not to exceed 45 days,
to an employee who has filed a claim for a period of wage loss due to traumatic injury with his or
her immediate supervisor on a form approved by the Secretary of Labor within the time specified
in section 8122(a)(2) of this title. Section 8122(a)(2) provides that written notice of injury must
be given as specified in section 8119. The latter section provides in part that notice of injury shall
be given in writing within 30 days after the injury.4 Claims that are timely under section 8122 are
not necessarily timely under section 8118(a). FECA authorizes continuation of pay for an
employee who has filed a valid claim for traumatic injury.5 Section 8118(a) makes continuation
of pay contingent on the filing of a written claim within 30 days of the injury. When an injured
employee makes no written claim for a period of wage loss within 30 days, he or she is not entitled
to continuation of pay, notwithstanding prompt notice of injury.6
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish eligibility for
continuation of pay.

3

Supra note 1.

4

Id. at § 8119(a), (c). See also Gwen Cohen-Wise, 54 ECAB 732 (2003).

5

Id. at § 8118(a).

6
L.S., Docket No. 16-0088 (issued June 10, 2016); P.R., Docket No. 08-2239 (issued June 2, 2009). See also W.W.,
59 ECAB 533 (2008).

3

On June 7, 2017 appellant filed a claim for a March 8, 2017 traumatic injury. Because he
did not file a claim within 30 days from the date of injury, the time specified in sections 8118(a)
and 8122(a)(2) of FECA,7 he is not entitled to continuation of pay. When an injured employee
makes no written claim for a period of wage loss within 30 days, he is not entitled to continuation
of pay, notwithstanding prompt notice of injury. Moreover, oral notice is not determinative of as
to whether appellant is entitled to continuation of pay under section 8118(a).8 Because FECA
makes no provision for an exception to the time limitation in section 8118(a), no exceptional or
mitigating circumstance, including error by the employing establishment, can entitle a claimant to
continuation of pay who has not filed a written claim within 30 days of the date of injury.9
Appellant did not submit written notice of injury on an approved form until June 7, 2017,
more than 30 days after the March 8, 2017 employment injury, when he submitted Form CA-1.10
Therefore, the Board finds that he is not entitled to continuation of pay.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA11 has the burden of proof to establish the
essential elements of his or her claim.12 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.13
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.14 Whether a particular
injury caused an employee to be disabled from employment and the duration of that disability are
medical issues which must be proven by the preponderance of the reliable probative and substantial
medical evidence.15
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

7

5 U.S.C. §§ 8118(a), 8122(a)(2).

8

See J.M., Docket No. 09-1563 (issued February 26, 2010).

9

See Laura L. Harrison, 52 ECAB 515 (2001). See also S.C., Docket No. 10-0460 (issued January 26, 2011).

10

See Robert E. Kimzey, 40 ECAB 762 (1989).

11

Supra note 1.

12
M.C., Docket No. 18-0919 (issued October 18, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005); Nathaniel
Milton, 37 ECAB 712 (1986).
13

A.S., Docket No. 17-2010 (issued October 12, 2018); S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB
746 (2004); 20 C.F.R. § 10.5(f).
14

K.C., Docket No. 17-1612 (issued October 16, 2018); William A. Archer, 55 ECAB 674 (2004).

15

S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

4

claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.16
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish total disability
from work for the period March 8 through July 7, 2017 causally related to his accepted
employment injury.
While OWCP accepted that appellant sustained a lumbar strain, he bears the burden proof
to establish through medical evidence that he was disabled during the claimed time period and that
his disability was causally related to the accepted injury.17 The Board finds that he did not submit
rationalized medical evidence explaining how the employment injury materially worsened or
aggravated his lumbar condition and caused him to be disabled for work for the period March 8 to
July 7, 2017.
Appellant submitted an April 11, 2017 report from Dr. Burke. The report fails to provide
a probative medical opinion on whether he was disabled on the dates at issue due to his accepted
lumbar condition. Dr. Burke did not provide an opinion supporting appellant’s disability for work
during the period in question and failed to provide rationale explaining how or why he was disabled
for work.18 Consequently, her report is insufficient to satisfy his burden of proof.
In her reports, Dr. Weisberger diagnosed lumbar spasm and lumbar back strain and opined
that appellant was disabled for the period claimed. She indicated that he had reported to her that
he reinjured his lower back when leaving work on March 8, 2017 and then missed work from
March 10 to 16, 2017. Upon examination, Dr. Weisberger found increased lumbar paraspinal
spasm and decreased range of motion of the lower back. She released appellant “to return to work
with [appellant’s] usual restrictions, five hours a day, when his vacation end[ed], on March 27.”
In a June 29, 2017 report, Dr. Weisberger indicated that he had missed work since June 16, 2017
“due to back pain and stiffness” and was planning to return to work on July 3, 2017. Although she
opined that appellant was totally disabled for work, her opinion is conclusory in nature and fails
to explain, with detail, how the accepted medical condition of lumbar strain was responsible for
his disability and why he could not perform his federal employment during the claimed period.19
Consequently, the Board finds that Dr. Weisberger’s reports are insufficient to establish his claim
that he was totally disabled for the period March 8 to July 7, 2017 causally related to his accepted
employment injury.
The Board finds that appellant has not provided sufficiently rationalized medical opinion
evidence to establish that he was disabled for the period March 8 through July 7, 2017 causally

16

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

17

See supra notes 14 and 15. See also V.P., Docket No. 09-337 (issued August 4, 2009).

18

See J.M., Docket No. 16-0306 (issued May 5, 2016).

19

See J.J., Docket No. 15-1329 (issued December 18, 2015).

5

related to the accepted employment injury. Thus, appellant has not met his burden of proof to
establish that he is entitled to compensation for the claimed period.
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 eligibility for
continuation of pay. The Board further finds that he has not met his burden of proof to establish
that total disability from work for the period March 8 through July 7, 2017 was causally related to
his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 21 and July 21, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 20, 2020
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 16-0209
Issued: March 16, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 16, 2015 appellant filed a timely appeal from a September 8, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established plantar fasciitis and/or heel spurs causally
related to factors of her federal employment.
FACTUAL HISTORY
On June 30, 2014 appellant, then a 51-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that as a result of 18 years of walking and standing on concrete, she
developed a heel spur. She did not stop work.
1

5 U.S.C. § 8101 et seq.

By letter dated August 5, 2014, OWCP advised appellant that additional medical
evidence was necessary to establish her claim. It requested that she submit a rationalized
medical report from her treating physician explaining the causal relationship between her alleged
condition and the factors of her federal employment. Appellant was afforded 30 days to submit
this evidence.
In support of her claim, appellant submitted a May 29, 2014 report by Dr. Johnny D.
Parker, her attending podiatrist, diagnosing plantar fasciitis and calcaneal heel spurs. Dr. Parker
indicated that this condition was work related and that appellant was partially incapacitated. In a
June 24, 2014 note, he noted diagnoses of plantar fasciitis, calcaneal heel pain, painful limb, and
abnormal gait. In a June 30, 2014 note, Dr. Parker noted that appellant was partially
incapacitated commencing May 29, 2014 due to plantar fasciitis with calcaneal heel spurs, and
noted that the condition was employment related.
By decision dated October 15, 2014, OWCP denied appellant’s claim because she had
not demonstrated that her medical condition was causally related to the accepted employment
factors.
On October 15, 2014 appellant requested reconsideration. In further support of her claim,
she submitted an October 27, 2014 radiology report of her right ankle by Dr. Dr. Suk S. Lee, a
Board-certified radiologist, noting plantar calcaneal spur, soft tissue swelling, and no fracture.
Dr. Lee interpreted x-rays of appellant’s bilateral feet of the same date as evincing no fracture,
prominent plantar calcaneal spur bilaterally, and osteoarthritis at the first metatarsophalangeal
joints of both feet.
In a November 7, 2014 report, Dr. Parker indicated that appellant first visited his office
on February 9, 2009 with painful feet and ankles, and was diagnosed with plantar fasciitis and
calcaneal heel pain. He noted that since that first visit she has experienced continuous chronic
foot pain. Dr. Parker noted that appellant walked a lot as a result of her profession as a mail
carrier and that, on further evaluation, her profession as a mail carrier resulted in her condition.
By decision dated September 8, 2015, OWCP denied modification of its October 15,
2014 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 the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period, that an injury was sustained in the performance of duty as alleged, and
that any disabilities and/or specific conditions for which compensation is claimed are causally
related to the employment injury.2 These are the essential elements of each and every

2

Elaine Pendleton, 40 ECAB 1143 (1989).

2

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.4 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
Appellant established the factors of her federal employment and that she suffered from
plantar fasciitis and heel spur. However, OWCP denied her claim as she had failed to establish
that her diagnosed conditions were causally related to the accepted factors of her federal
employment. The Board has reviewed the medical evidence and has determined that appellant
has not established that these conditions are causally related to her federal employment.
Dr. Parker diagnosed appellant with plantar fasciitis and calcaneal heel pain and opined
that her profession as a mail carrier resulted in her condition. Although he noted employment
factors of walking a lot as a result of her profession, Dr. Parker never provided a wellrationalized medical opinion explaining how appellant’s plantar fasciitis and heel spurs were
causally related to the walking or other federal employment duties. A mere conclusion without
the necessary rationale explaining how and why the physician believes that a claimant’s accepted
exposure could result in a diagnosed condition is insufficient to meet a claimant’s burden of
proof.7 Accordingly, Dr. Parker’s reports are insufficient to meet appellant’s burden of proof.8
3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

See S.P., 59 ECAB 184, 188 (2007).

5

See Roy L. Humphrey¸ 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

6

I.J., 59 ECAB 408 (2008); supra note 3.

7

G.M., Docket No. 14-2057 (issued May 12, 2015).

8

J.S., Docket No. 14-818 (issued August 7, 2014).

3

Dr. Lee’s reports on appellant’s diagnostic studies do not provide an opinion as to the
cause of appellant’s condition. As such, his opinion is insufficient to establish causal
relationship.9
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment, nor her belief that the condition was caused by her employment, is sufficient to
establish causal relationship.10 As she did not establish that her medical condition was causally
related to the accepted factor of her employment, she did not meet her burden of proof.
CONCLUSION
The Board finds that appellant did not establish plantar fasciitis and/or heel spurs causally
related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 8, 2015 is affirmed.
Issued: March 16, 2016
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

9

Supra note 7.

10

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0422
Issued: March 16, 2022

Case Submitted on the Record

ORDER GRANTING REMAND
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 28, 2021 appellant filed a timely appeal from a December 16, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 By that decision, OWCP
denied his traumatic injury claim (Form CA-1) that he sustained COVID-19 on March 10, 2020
causally related to the accepted employment exposure. The Clerk of the Appellate Boards assigned
Docket No. 21-0422 to appellant’s appeal.2
On August 30, 2021, the Director of OWCP filed a motion to remand with the Clerk of the
Appellate Boards. The Director noted that OWCP has conceded that appellant is a covered
1

The Board notes that, following the December 16, 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

The Board notes that OWCP subsequently issued a March 22, 2021 decision, which vacated the December 16,
2020 merit decision. However, appellant had already filed the current appeal to the Board on January 28, 2021. OWCP
may not simultaneously have jurisdiction over the same issue. Consequently, the March 22, 2021 decision is set aside
as null and void. See 20 C.F.R. § 10.626; see also A.C., Docket No. 18-1730 (issued July 23, 2019); M.C., Docket
No. 18-1278, n.1 (issued March 7, 2019); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB
880 (1990).

employee under the American Rescue Plan Act of 2021 (ARPA) and that he is entitled to
appropriate benefits under FECA. The Director requested that the December 16, 2020 decision be
set aside. The Director further advised that, upon remand, OWCP wou ld reissue its decision on
appellant’s entitlement to FECA benefits for exposure to COVID-19 while in the performance of
her federal duties, and authorize the payment of appropriate benefits as claimed.
The Clerk of the Appellate Boards served appellant with a copy of the Director’s motion
to remand. No reply was received.
The Board, having duly considered this matter, grants the Director’s motion. On remand
OWCP shall reissue its decision on appellant’s entitlement to FECA benefits for exposure to
COVID-19 while in the performance of his federal duties, and authorize the payment of
appropriate FECA benefits as claimed by appellant.
IT IS HEREBY ORDERED THAT the motion to remand is granted. The decision of
OWCP dated December 16, 2020 is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 16, 2022
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Chicago, IL, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 17-1730
Issued: February 9, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 7, 2017 appellant filed a timely appeal from a July 21, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish total disability
commencing May 25, 2017 causally related to his accepted left knee conditions.
On appeal appellant contends that at the time of his August 9, 2012 work injuries his
physician, Dr. Priti Khanna, a Board-certified physiatrist, diagnosed knee strain and pain in the
lower joint of the left knee, but she subsequently performed a magnetic resonance imaging

1

5 U.S.C. § 8101 et seq.

(MRI) scan which revealed that he had a lateral meniscus tear and partial tear of the anterior
cruciate ligament (ACL).
FACTUAL HISTORY
On August 10, 2012 appellant, then a 51-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on August 9, 2012 he sustained a possible tear
of a left knee ligament at work. On September 28, 2012 OWCP accepted sprain of unspecified
sites of his left knee and leg and pain in the joint of his left lower leg. Appellant did not stop
work, but began light duty with restrictions on lifting and no kneeling or squatting.
On August 11, 2012 Dr. Khanna noted the history of the August 9, 2012 work injury,
reported findings, and diagnosed a left knee sprain. She noted that appellant had a left knee
lateral meniscus tear for which he had surgery in January 2012. Dr. Khanna advised that left
knee x-rays showed degenerative joint disease, particularly in the lateral joint space. She
released appellant to modified duty. An October 2, 2012 MRI scan of the left knee revealed
advanced osteoarthritic changes associated with chondromalacia, diminution of the posterior
horn of the medial meniscus which was possibly a post meniscectomy change, lateral meniscus
tear, and a possible partial ACL tear or myxoid degeneration. Dr. Khanna and associates
continued submitting status reports noting appellant’s status and restrictions.
Appellant began treating with Dr. Joseph L. D’Silva, a Board-certified orthopedic
surgeon, in 2015. OWCP received an April 4, 2016 progress note from Dr. D’Silva in which he
noted that appellant received injections and nonoperative treatment for his aggressive left knee
pain. Dr. D’Silva reported findings on examination, including an x-ray that revealed advanced
degenerative changes of the lateral compartment of the left knee and medial compartment of the
right knee. He indicated that appellant wished to proceed with knee replacement surgery due to
his persistent symptomatology.
On June 7, 2016 Dr. D’Silva requested authorization to perform a total left knee
arthroplasty. On October 6, 2016 OWCP forwarded appellant’s medical records and a statement
of accepted facts to a district medical adviser (DMA) for review. In an October 17, 2016
medical report, the selected DMA opined that the proposed left knee surgery was not causally
related to the accepted medical conditions as appellant’s claim had only been accepted for left
knee sprain and left knee joint pain. He further opined that the proposed surgery was not
medically necessary as appellant did not have an accepted condition that required the proposed
surgery. The DMA also opined that appellant’s left knee arthritis was not work related,
reasoning that his mechanism of injury was inconsistent with a degenerative disease as seen in
his knees. He maintained that this was an idiopathic onset of osteoarthritis seen in many
individuals. The DMA related that it was reasonable to perform surgery given the x-ray and
examination findings, but concluded that care should be sought through appellant’s private
insurance.
On October 26, 2016 OWCP advised appellant that his physician’s request for
authorization to perform left knee arthroscopy surgery was denied because the medical evidence
of record was insufficient to establish that the proposed treatment was medically necessary for
and/or causally related to the accepted employment-related conditions.

2

By letter May 10, 2017, OWCP advised appellant that the medical evidence of record
was insufficient to establish that his bilateral knee arthritis was causally related to his accepted
August 9, 2012 employment injuries. It requested that he submit additional factual and medical
evidence, including a rationalized medical report from his physician explaining how the
diagnosed condition was caused by the accepted work injuries.2
On May 25, 2017 appellant filed a claim for compensation (Form CA-7) requesting
compensation for leave without pay (LWOP) beginning May 14 through 27, 2017. The
employing establishment indicated that he stopped work on May 25, 2017. In a time analysis
form (Form CA-7a) also dated May 25, 2017, appellant claimed LWOP for 23 total hours of
disability during the claimed period. He indicated that he was participating in vocational
rehabilitation.
OWCP received a May 15, 2017 follow-up progress note from Dr. D’Silva in which he
noted that appellant’s bilateral knee pain had plateaued. Dr. D’Silva indicated that appellant
continued to required meloxicam one to two times a week. Appellant reported to Dr. D’Silva
that he was on limited-duty at work. Dr. D’Silva reviewed a history of appellant’s medical,
surgical, and social background, and medications. He conducted a review of systems and related
that appellant’s physical examination remained unchanged with moderate crepitation with range
of motion from 0 to 110 degrees. Dr. D’Silva advised that appellant had advanced degenerative
arthritis of both knees. In a May 15, 2017 work restriction form, he increased appellant’s work
restrictions, advising that he needed a sitting job and should use a cane at work.
On May 26, 2016 appellant informed OWCP that the employing establishment could not
accommodate his new restrictions and it had released him from service.3
OWCP received a follow-up progress note dated May 16, 2017 from Dr. Megan R.
Leahy, a podiatrist, in which she noted appellant’s complaints of onychomycosis and
preulcerative lesions bilaterally and right ankle pain with posterior tibial tendon dysfunction.
Dr. Leahy discussed examination findings and assessed posterior tibial tendinitis on the right
with the possibility of an interstitial tear that was doing well. She also assessed painful calluses,
onychomycosis pes planovalgus, and hallux valgus bilaterally. Appellant also had Type 2
diabetes mellitus with peripheral neuropathy bilaterally and hammer digit syndrome bilaterally.
By letter dated June 5, 2017, OWCP afforded appellant 30 days to submit a medical
report from his physician discussing his history of injury and objective findings explaining how
his accepted work-related condition had worsened such that he was no longer able to perform the
duties of his position when he stopped work on May 25, 2017.

2
The record reveals that the employing establishment referred appellant’s medical records, including the DMA’s
findings, to Dr. Tifani Gleeson, Board-certified in occupational medicine, for her review. Dr. Gleeson agreed with
the DMA’s findings and conclusions.
3

On May 24, 2017 the employing establishment informed appellant that it had been providing him light duty as
prescribed by his physician, but that it could not accommodate the increased restrictions set forth by Dr. D’Silva on
May 15, 2017.

3

In a June 2, 2017 letter, received on June 5, 2017, appellant requested a 15-day extension
to respond to OWCP’s May 10, 2017 development letter as Dr. D’Silva was out of work for two
weeks.
On June 7 and 22, and July 6, 2017 appellant filed CA-7 forms for LWOP beginning
May 28 through June 24, 2017. In CA-7a forms of the same date, he claimed LWOP for 240
total hours of disability during the claimed period. Appellant indicated that he was referred to
vocational rehabilitation.
In a June 15, 2017 letter, appellant related that he was examined on August 9, 2012 by
Dr. Khanna and diagnosed as having sprain, stiffness, and joint pain of the left knee. He noted
that she also diagnosed degenerative joint disease with narrow medial and lateral joint space,
particularly in the lateral joint space of the left knee. Appellant maintained that an October 2012
MRI scan revealed a lateral meniscus tear in his left knee and a partial tear in his ACL joint. He
attributed his conditions to his work duties.
In a June 15, 2017 employee statement regarding an occupational disease claim (Form
CA-2), appellant provided a history of his left knee injuries and medical treatment beginning in
May 2006. He noted that he was diagnosed as having a left knee meniscus tear and underwent
surgery performed by Dr. D’Silva in July 2006. Appellant indicated that in October 2011 he
sustained a second left knee injury resulting in a lateral meniscus tear and underwent surgery in
January 2012 again performed by Dr. D’Silva. He referenced his accepted August 9, 2012 left
knee injuries and medical treatment. Appellant attributed his current left knee condition to his
federal employment duties.
4

Appellant submitted reports dated October 27, 2011 to February 23, 2012 from
Dr. D’Silva, which addressed his left wrist and left knee conditions, January 20, 2012 left knee
surgery, and work capacity. He also submitted a June 13, 2017 work status report in which
Dr. D’Silva advised that he could return to work with restrictions.
By decision dated July 21, 2017, OWCP denied appellant’s claim for disability
compensation commencing May 25, 2017. It found that the medical evidence of record failed to
establish that the claimed disability was related to the accepted August 9, 2012 employment
injuries.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish essential
elements of his or her claim by the weight of the evidence.5 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled for work
as a result of the accepted employment injury.6 Whether a particular injury causes an employee

4

No occupational disease claim has been adjudicated in the claim that is presently before the Board.

5

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).

6

See Amelia S. Jefferson, id.

4

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.7
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.8 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.9 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 and is not entitled to compensation for loss of wageearning capacity.10 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
any loss of wages.
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.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish total disability
commencing May 25, 2017 causally related to his accepted left knee conditions.
While OWCP accepted that appellant sustained a sprain of unspecified sites of his left
knee and leg and pain in the joint of his left lower leg, he bears the burden of proof to establish
by the weight of the substantial, reliable, and probative evidence, a causal relationship between
his claimed disability for that period and the accepted conditions.12 The Board finds that he has
failed to submit sufficient medical evidence to establish employment-related disability for the
period claimed due to his accepted condition.13
Following his work injury, appellant returned to limited duty which the employing
establishment provided until Dr. D’Silva increased his work restrictions on May 15, 2017 such
that he required a sitting job. Although the withdrawal of a light-duty position may serve as the

7

See Edward H. Horton, 41 ECAB 301 (1989).

8

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

9

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

10

Merle J. Marceau, 53 ECAB 197 (2001).

11

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

12

Amelia S. Jefferson, supra note 5.

13

Alfredo Rodriguez, 47 ECAB 437 (1996).

5

basis for payment of compensation,14 it is the claimant’s burden of proof to establish that any
increase in disability for work is due to the accepted injury, rather than another cause.15
However, Dr. D’Silva did not explain how the increased restrictions were due to the accepted left
knee sprain. This is particularly important because appellant has other diagnoses involving the
left knee that have not been accepted as employment related.16
In his June 13, 2017 work status report, Dr. D’Silva noted that appellant could return to
work with restrictions. He failed, however, to address his disability status beginning
May 25, 2017. The remaining progress note and reports from Dr. D’Silva predate the claimed
period of disability and fail to provide an opinion regarding whether appellant was totally
disabled beginning May 25, 2017 due to the accepted conditions. Thus, his reports and progress
note are insufficient to meet appellant’s burden of proof.17
Appellant also submitted a May 16, 2017 progress note from Dr. Leahy indicating that he
had posterior tibial tendinitis on the right with the possibility of an interstitial tear, painful
calluses, onychomycosis pes planovalgus, and hallux valgus bilaterally, Type 2 diabetes mellitus
with peripheral neuropathy bilaterally, and hammer digit syndrome bilaterally. However, OWCP
has not accepted these diagnoses as causally related to the accepted August 9, 2012 employment
injuries. It has only accepted a left knee sprain in this case. For conditions not accepted by
OWCP as being employment related, it is the employee’s burden of proof to provide rationalized
medical evidence sufficient to establish causal relationship.18 Dr. Leahy did not provide
rationale explaining how these conditions were caused or aggravated by the accepted August 9,
2012 employment injuries. The Board has held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.19 Moreover, Dr. Leahy did not offer a specific medical opinion
addressing whether appellant’s disability from work during the stated period was causally related
to the accepted work injuries.20 Therefore, for these reasons, her report is insufficient to meet
appellant’s burden of proof.

14

See K.S., Docket No. 08-2105 (issued February 11, 2009).

15

C.S., Docket No. 08-2218 (issued August 7, 2009).

16

See T.M., Docket No. 08-0975 (issued February 6, 2009) (for conditions not accepted or approved by OWCP as
due to an employment injury, the claimant bears the burden of proof to establish that the condition is causally related
to the employment injury through the submission of rationalized medical evidence).
17

See R.R., Docket No. 17-1368 (issued October 19, 2017) (Board found reports that contained no opinion or
explanation on causal relationship to be of limited probative value and insufficient to meet appellant’s burden of
proof.
18

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).
19

See supra note 16; C.B., Docket No. 09-2027 (issued May 12, 2010); K.W., 59 ECAB 271 (2007); A.D., 58
ECAB 149 (2006); Jaja K. Asaramo, id.; Michael E. Smith, 50 ECAB 313 (1999).
20

Id.

6

As noted, appellant must submit reasoned medical evidence directly addressing the
specific dates of disability for work for which he claims compensation.21 He did not provide
medical evidence containing a rationalized opinion supporting that he could not work beginning
May 25, 2017 due to his accepted conditions, and thus did not meet his burden of proof.
On appeal appellant contends that at the time of his August 9, 2012 work injuries his
physician, Dr. Khanna, diagnosed knee strain and pain in the lower joint of the left knee, but she
subsequently performed a left knee MRI scan which revealed that he had a lateral meniscus tear
and partial tear of the AC joint. However, for the reasons set forth above, the Board finds that
the weight of the medical evidence does not establish a causal relationship between appellant’s
diagnosed conditions and resultant total disability and his accepted employment injuries.
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 failed to meet his burden of proof to establish total
disability beginning May 25, 2017 causally related to his accepted left knee conditions.

21

See K.A., Docket No. 16-0592 (issued October 26, 2016).

7

ORDER
IT IS HEREBY ORDERED THAT the July 21, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 9, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER -- MIAMI, Miami, FL, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 16-1162
Issued: February 8, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 16, 2016 appellant filed a timely appeal from a March 15, 2016 merit decision
and an April 13, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established more than seven percent permanent
impairment to her left lower extremity, for which she has received a schedule award; and
(2) whether OWCP properly denied her request for reconsideration of the merits of the claim
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 24, 1992 appellant, then a 36-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on that day she injured her left toe, leg and foot due to a
crushing injury from a bed rail. OWCP accepted the claim for a contusion of left toe, contusion
of foot, lesion of plantar nerve, left foot plantar fibromatosis, crushing injury of left foot, bunion,
left foot and post-traumatic osteoarthritis, ankle and left foot and authorized surgery, which
appellant underwent in November 1993 and June 1995. On December 10, 1997 OWCP found
that the position of alternative duty nursing assistant fairly and reasonably represented her wageearning capacity.2 Appellant has not worked since August 4, 2000.
On July 17, 2015 appellant filed a Form CA-7 claim for compensation requesting
schedule award compensation benefits. By decision dated November 10, 2015, OWCP granted
two percent permanent impairment to her left lower extremity. The award ran 5.76 weeks from
September 29 to November 8, 2015. The schedule award was based on crush injury left foot
with nondisplaced orthochondral fracture first metatarsophalangeal joint (MPJ) with no pain.
In a January 8, 2016 report, Dr. Tania C. Turbay, DPM, a podiatrist, documented
appellant’s residual symptoms. Examination of the left foot demonstrated a hallux valgus
deformity with tenderness to palpation, diminished sensation and pain with range of motion.
Appellant was noted to walk with an antalgic gait. Dr. Turbay opined that appellant had 20
percent impairment rating based on Florida Compensation Guide for Impairment Ratings. This
was due to appellant’s chronicity of pain and neuropathy and the impairment on ambulation due
to severe deformity of the toes of the right foot. Dr. Turbay indicated that appellant suffered
from reflex sympathetic dystrophy (RSD) and post-traumatic arthritic changes from the crush
injury to the foot. She noted that appellant’s previous impairment only included pain to the foot.
On January 27, 2016 an OWCP medical adviser reviewed the medical evidence of file,
noting that a statement of accepted facts was not contained in the case file. He indicated that
appellant was status postcontusion and straining injury left foot/ankle and hallux valgus (bunion)
left foot. Under Table 16-2, page 501 of the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment3 (hereinafter A.M.A., Guides), the medical
adviser opined that appellant had seven percent lower extremity impairment for residual
problems status post contusion and straining injury left foot and ankle. He noted that this
equated to a class 1 grade E. The medical adviser indicated that the date of maximum medical
improvement was January 21, 2016, when appellant was evaluated by Dr. Turbay.
On March 1, 2016 OWCP received appellant’s request for reconsideration. She
requested reconsideration based on Dr. Turbay’s finding that her impairment percentage had
increased.

2

By decision dated July 9, 2015, OWCP denied modification of its December 10, 1997 loss of wage-earning
capacity decision.
3

A.M.A., Guides (6th ed. 2008).

2

By decision dated March 15, 2016, OWCP awarded appellant an additional five percent
impairment for a total left lower extremity impairment of seven percent. The award ran 14.4
weeks from November 9, 2015 to February 17, 2016. The date of maximum medical
improvement was determined as January 21, 2016. The weight of the medical evidence was
given to the medical adviser, who applied the A.M.A., Guides to Dr. Turbay’s examination
findings. .
On March 29, 2016 OWCP received appellant’s March 29, 2016 request for
reconsideration. She again requested reconsideration based on a finding by Dr. Turbay that her
schedule award percentage had increased.
In a November 30, 2015 report, Dr. Turbay noted appellant had chronic pain and that
maximum medical improvement was reached on November 30, 2015. He found that a diagnosis
of displaced fracture of first metatarsal bone, right foot and displaced fracture of first metatarsal
bone, left foot, would be two percent.
By decision dated April 13, 2016, OWCP denied appellant’s request for reconsideration
as the evidence submitted was either irrelevant or immaterial to the issue at hand.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to rate permanent impairment.7
The A.M.A., Guides provides a diagnosis-based method for evaluating permanent
impairment.8 For lower extremity impairments, the evaluator identifies the impairment Class of
Diagnosis (CDX) which is then adjusted by grade modifiers for Functional History (GMFH),
Physical Examination (GMPE), and Clinical Studies (GMCS). The Net Adjustment Formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9 Under Chapter 2.3 of the A.M.A.,

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); Part 3 -- Medical, Schedule Award, Chapter 3.700, Exhibit 1 (January 2010).
8

A.M.A., Guides 493-531.

9

Id. at 515-22.

3

Guides, evaluators are directed to provide reasons for their impairment rating choices, including
choices of diagnoses from regional grids and calculations of modifier scores.10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the percentage of impairment
using the A.M.A., Guides.11 In some instances, the medical adviser’s opinion can constitute the
weight of the medical evidence. This occurs in schedule award cases where an opinion on the
percentage of permanent impairment and a description of physical findings is on file from an
examining physician, but the percentage estimate by this physician is not based on the A.M.A.,
Guides. In this instance, a detailed opinion by OWCP’s medical adviser which gives a
percentage based on reported findings and the A.M.A., Guides may constitute the weight of the
medical evidence.12
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision. OWCP’s medical adviser
noted that he had not been provided a statement of accepted facts. He based his report on
Dr. Turbay’s limited findings.
Dr. Turbay’s January 21, 2016 report is of diminished probative value. She opined in her
January 21, 2016 report that appellant had 20 percent impairment based on Florida
Compensation Guide for Impairment Ratings. OWCP, however, uses the sixth edition of the
A.M.A., Guides to calculate schedule awards.13 Dr. Turbay’s report was not based on the
A.M.A., Guides. A medical opinion not based on the appropriate edition of the A.M.A., Guides
is of diminished probative value in determining the extent of permanent impairment.14
OWCP’s medical adviser reviewed Dr. Turbay’s January 8, 2016 report and indicated
that the date of maximum medical improvement was January 21, 2016. He noted Dr. Turbay’s
examination findings of the left foot included a hallux valgus deformity with tenderness to
palpation, diminished sensation and pain with range of motion, and that appellant walked with an
antalgic gait. Under Table 16-2, page 501 of A.M.A., Guides, the medical adviser found
appellant had seven percent left lower extremity impairment for residual problems status post
contusion and straining injury to left foot and ankle or class 1, severity grade E. However, the
medical adviser failed to adequately explain how his determination was reached in accordance
with the relevant standards of the A.M.A., Guides.15 It is unclear what diagnostic criteria the
10

Id. at 23-28.

11

Supra note 7 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f)
(February 2013); see also L.R., Docket No. 14-674 (issued August 13, 2014); D.H., Docket No. 12-1857 (issued
February 26, 2013).
12

See supra note 7 at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.8(j)
(September 2010).
13

See supra note 7.

14

See F.T., Docket No. 14-553 (issued August 11, 2014); Fritz A. Klein, 53 ECAB 642 (2002).

15

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

4

medical adviser used or how he arrived at a severity grade of E. Under Chapter 2.3 of the
A.M.A., Guides, evaluators are directed to provide reasons for their impairment rating choices,
including choices of diagnoses from regional grids and calculations of modifier scores.16 It is
noted that the original schedule award was based on crush injury left foot with nondisplaced
ortochondral fracture first MPJ with no pain. The medical adviser also has not explained why a
different diagnostic class was used. Therefore the Board finds that he did not adequately follow
the A.M.A., Guides and his report is of diminished probative value where the A.M.A., Guides
were not properly followed.17
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.18 The Board
finds that the case is not in posture for decision regarding the additional award.
On remand, OWCP should prepare a statement of accepted facts and forward it to
OWCP’s medical adviser for an updated report. After this and such other development as it
deems necessary, OWCP should issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision on the extent of permanent
impairment to appellant’s left lower extremity.19

16

See supra note 10.

17

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
18

Phillip L. Barnes, 55 ECAB 426 (2004).

19

In light of the disposition of this case, issue 2 is hereby rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the March 15 and April 13, 2016 decisions of the
Office of Workers’ Compensation Programs are set aside and the case remanded for further
proceedings consistent with this decision.
Issued: February 8, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
PEACE CORPS, VOLUNTEER SERVICES,
Washington, DC, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1147
Issued: November 4, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 11, 2016 appellant, through counsel, filed a timely appeal from an April 28,
2016 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 claim.
ISSUE
The issue is whether appellant has established disability as of August 24, 2012 causally
related to the accepted employment injury.

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.

On appeal counsel argues that the medical evidence supports appellant’s disability claim.
FACTUAL HISTORY
On November 12, 2012 appellant, then a 26-year-old former Peace Corps volunteer, filed
an occupational disease claim (Form CA-2), alleging that he dealt with several stressors over the
course of his two years with the employing establishment. OWCP accepted the claim for major
depression, recurrent.
On February 19, 2016 appellant filed a claim for wage-loss compensation (Form CA-7)
for disability from work commencing August 24, 2012.
In a January 16, 2016 report, Ronald W. Wynne, Ph.D., a clinical psychologist, reviewed
appellant’s work history since his return from the Peace Corps and opined that appellant’s
present difficulties stemmed from his experiences as a Peace Corps volunteer. He indicated that
the diagnosis of major depressive disorder, recurrent was due, at least in part, to his work duties
with the Peace Corps. Dr. Wynne explained that the combination of attention deficit
hyperactivity disorder, giardiasis, and an abruptly discontinued romantic relationship played a
role in the most recent onset of appellant’s disorder. He opined that appellant’s depressive
disorder had exacerbated his difficulties with employment since 2012.
Dr. Wynne reviewed appellant’s employment history since his Peace Corps service and
related that appellant’s condition clearly seemed to have lowered his ability to regulate his
emotions and, as a result, appellant had taken several impulsive actions. Many of appellant’s
difficulties in dealing with his workplace supervisors when he worked stemmed, in part, from the
depressive disorder, as well as from exacerbation of preexisting conditions (possibly injury to the
limbic system when a brain tumor was removed at age nine), and from his attention deficit
disorder. Dr. Wynne opined that appellant’s psychological conditions limited his ability to
maintain steady employment, as reflected by his work history, where he has started and then left
numerous jobs (voluntarily or otherwise) in quick succession.
In a March 22, 2016 development letter, OWCP advised appellant that additional
evidence was needed to establish disability from work during the entire period claimed. It
further found that the medical evidence did not substantiate that the disability was caused by the
work injury as additional evidence was needed, including detailed total earnings for all jobs held
during the periods of disability and well-rationalized medical evidence to support total disability
during the period claimed. Appellant was afforded 30 days to respond.
On March 23, 2016 OWCP received a March 17, 2015 attorney fee request, Form W2
wage and tax statements dated April 13, 2015, and an April 13, 2016 letter from counsel.3
By decision dated April 28, 2016, OWCP denied appellant’s claim for wage-loss
compensation as of August 24, 2012. It found that the medical evidence submitted did not
contain a well-rationalized medical narrative supporting disability during the period claimed
causally related to the accepted condition of major depression.

3

On March 30, 2016 OWCP advised counsel that his fee application was approved.

2

LEGAL PRECEDENT
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.4 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.5
Whether a particular injury caused an employee disability from employment is a medical
issue which must be resolved by competent medical evidence.6 The Board will not require
OWCP to pay compensation for disability in the absence of any medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify their disability and entitlement to compensation.7
ANALYSIS -- ISSUE 1
In 2013, OWCP accepted that appellant sustained the condition of major depression,
recurrent as a result of his service with the Peace Corps. In 2016, appellant filed a claim for
wage-loss compensation for disability from work commencing August 24, 2012. He alleged that
he was unable to maintain steady employment as a result of his accepted work-related condition.
OWCP denied appellant’s claim for wage-loss compensation because it found the March 7, 2016
medical narrative from Dr. Wynne was not sufficiently rationalized to establish any disability
due to the accepted condition. Appellant’s counsel contends on appeal that appellant has
established disability, based on Dr. Wynne’s March 7, 2016 report, that his is due in part to his
accepted work-related injury.
The Board finds that appellant has not met his burden of proof to establish any specific
date of disability caused by his accepted condition. Dr. Wynne indicated that appellant’s
depressive disorder had exacerbated his difficulties with subsequent employment. He explained
that the depressive disorder and his physical condition lowered appellant’s ability to regulate his
emotions. Dr. Wynne further explained that many of the difficulties appellant had with
workplace supervisors when he did work stemmed in part from the accepted condition, as well as
from an exacerbation of preexisting conditions. In so far as Dr. Wynne’s opinion is that
appellant may have difficulty holding down future employment, it is well established that the
possibility of future injury or disability is not a basis for payment of compensation.8
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.9 Appellant has the burden to demonstrate his disability from work based on
4

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

5

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

6

See Paul E. Thams, 56 ECAB 503 (2005).

7

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

L.J., Docket No. 15-0188 (issued March 25, 2016).

9

William A. Archer, supra note 7.

3

rationalized medical opinion evidence. There is no such evidence in this case. Dr. Wynne’s
report related, in only general terms, that appellant’s depression contributed to difficulties when
appellant worked. He did not provide an opinion with supporting medical rationale explaining
why appellant’s depression would have disabled him from performing work on any specific date
during the period claimed.10
As appellant failed to provide a rationalized medical opinion supporting his disability
from work during the period in question, OWCP properly denied his claim for wage-loss
compensation.11
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 established that he was disabled as of August 24,
2012 causally related to the accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 28, 2016 is affirmed.
Issued: November 4, 2016
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
10

See C.L., Docket No. 14-1069 (issued February 22, 2016).

11

Supra note 9.

4