United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Boston, MA, Employer
__________________________________________

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Appearances:
Brett Elliot Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1758
Issued: March 16, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 20, 2019 appellant, through counsel, filed a timely appeal from April 29 and
May 15, 2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 15, 2019 decision, OWCP received additional evidence. 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish intermittent
disability from work for the period September 26, 2017 through March 17, 2018 causally related
to his accepted July 15, 2015 employment injury.
FACTUAL HISTORY
On September 21, 2017 appellant, then a 46-year-old geographic information system
analyst-geographer, filed a traumatic injury claim (Form CA-1) alleging that on July 15, 2015 he
sustained a tick bite on the posterior aspect of his right thigh during outdoor exercise while on a
travel assignment in the performance of duty. The bite caused a bullseye rash, headaches, joint
pain, and joint popping and cracking for two years.
Appellant stopped work on
September 25, 2017.
In an October 27, 2017 report, Dr. Mangadhara Madineedi, an internist, noted appellant’s
symptoms of extreme right shoulder pain, cervical spine immobility, generalized joint pain and
immobility, headaches, paresthesias in his fingers, disorientation, fatigue, and minor cognitive
impairment. Appellant had been treated with doxycycline in July 2015, and with steroids in
July 2017. Dr. Madineedi diagnosed Lyme disease based on appellant’s clinical presentation and
positive Lyme immunoglobulin assays on August 10, 2015 and June 13, 2017.
By decision dated November 1, 2017, OWCP accepted the claim for Lyme disease.
On December 4, 2017 OWCP received a claim for compensation (Form CA-7) for
intermittent periods of disability from September 26 to November 15, 2017. On December 7,
2017 it received additional CA-7 forms for intermittent periods October 29 to November 24, 2017.
In support of these claims, appellant provided time analysis (Form CA-7a) forms noting 20 hours
of leave without pay (LWOP) used from September 26 to 29, 2017, 8 hours of LWOP used on
November 9, 2017, 66 hours of LWOP used from November 12 to 24, 2017, 8 hours of LWOP
used on November 14, 2017, and 8 hours of LWOP used on November 16, 2017. He worked part
time during these claimed periods of intermittent disability and utilized LWOP for the remaining
hours.
In support of his claim, appellant submitted a September 27, 2017 report by Dr. Neal C.
Chen, a Board-certified orthopedic surgeon, who noted appellant’s symptoms of bilateral scapular
pain and numbness of the right thumb, index, and long finger. Dr. Chen also noted that appellant
had been treated for Lyme disease. He diagnosed bilateral periscapular muscle pain and possible
right carpal tunnel syndrome.4
In a November 20, 2017 letter, Katherine Dugan, a family nurse practitioner, described
appellant’s symptoms and noted work restrictions.
In a development letter dated December 15, 2017, OWCP requested that appellant submit
additional information to support his claim for compensation for intermittent disability from
4

September 17, 2017 right shoulder x-rays demonstrated postoperative changes of the left humerus with
intramedullary nails in the humeral diaphysis. Appellant participated in physical therapy treatments from
September 28 to December 7, 2017.

2

September 26 to November 24, 2017, including medical evidence establishing that he was disabled
during the claimed period as a result of his accepted employment condition. It afforded him 30
days to submit additional medical evidence.
Appellant also submitted notes from other nurse practitioners dated from August 10, 2015
to August 9, 2017. In July 19 and August 31, 2017 reports, Dr. Maneet Kaur, a Board-certified
internist, diagnosed recurrent Lyme disease with possible arthralgia, synovitis, and inflammatory
arthritis. She prescribed medication.
In a report dated August 10, 2017, Dr. Jason Weller, a Board-certified neurologist, noted a
very slight essential tremor in the right third digit of unknown etiology.
OWCP received physical therapy treatment notes dated November 9, 14, and 16, 2017 by
Lincoln Lawrence, a physical therapist.
In a December 14, 2017 report, Dr. Judith M. Strymish, Board-certified in internal
medicine, opined that appellant’s symptoms were likely not due to Lyme disease as he had a
negative Immunoglobulin G (IgG) Western blot test, and his symptoms did not develop until well
after antibiotics were started.5
Dr. Raymon Durso, a Board-certified neurologist, noted on December 15, 2017 that
appellant’s 2015 serology results were inconsistent with an active Lyme infection and that cervical
spine imaging studies showed disc protrusions at C5-6 and C6-7.6 He opined that appellant did
not have an active Lyme infection or neurologic sequelae. Dr. Durso attributed appellant’s
subscapular pain to muscular tension secondary to anxiety.
On January 11, 2018 appellant underwent laboratory blood tests, including serology for
Lyme disease, ordered by Dr. Jean J. Barry, a Board-certified internist. In a January 14, 2018
report, Dr. Barry opined that his ongoing symptoms were caused by Lyme disease, noting that the
January 11, 2018 laboratory tests were indicative of a Lyme infection with immunosuppression.
On January 9, 2018 OWCP received an additional Form CA-7 for the period December 12
to 23, 2017. Appellant subsequently claimed intermittent disability for the periods January 8 to
19 and January 22 to February 3, 2018, when he worked part time and used LWOP for the
remaining hours. On a January 25, 2018 Form CA-7a, appellant noted six hours LWOP used on
January 11, 2018.
By decision dated February 16, 2018, OWCP denied appellant’s claim for compensation
for intermittent disability during the period September 26 through November 15, 2017. It found
that the medical evidence of record was insufficient to establish work-related disability during the
claimed period.

5

Dr. Strymish previously examined appellant on August 10, 2015 and opined that he had no serologic, orthopedic,
or neurologic signs of Lyme disease.
6

An October 11, 2017 magnetic resonance imaging scan of the cervical spine demonstrated multilevel degenerative
changes most severe at C5-6 and C6-7 with severe spinal canal stenosis and mild cord flattening, and multilevel
neuroforaminal narrowing most marked at C5-6 on the right.

3

In a development letter dated February 16, 2018, OWCP notified appellant of the additional
evidence needed to establish his claims for compensation for the periods November 26 to
December 9, and December 12 to 23, 2017, January 8 to 19, and January 22 to February 3, 2018.
It afforded him 30 days to submit additional medical evidence.
On March 26, 2018 OWCP received an additional Form CA-7 claiming intermittent
periods of disability from February 4 to March 17, 2018.
In a development letter dated April 9, 2018, OWCP notified appellant of the additional
evidence needed to establish his claims for compensation for the period February 4 through
March 17, 2018. It afforded him 30 days to submit additional medical evidence.
By decision dated April 9, 2018, OWCP denied appellant’s claims for compensation for
intermittent disability during the periods November 26 to December 9, and December 12 to 23,
2017, and January 3 to 19 and January 22 to February 3, 2018. It found that the medical evidence
submitted described his symptoms, but did not address his work capacity.
On January 29, 2019 appellant, through counsel, requested reconsideration of the
February 16 and April 9, 2018 decisions. He submitted additional evidence.7
In an August 1, 2018 report, Dr. Allison M. Beaulieu noted appellant’s complaints of
chronic pain syndrome with total body pain and depression, and a history of chronic Lyme disease.
Dr. Payal K. Modi, Board-certified in emergency medicine, noted in an August 2, 2018
report appellant’s account of a history of chronic Lyme disease with systemic symptoms. He
diagnosed depression and chronic pain. Dr. Modi recommended that appellant consider other
etiologies for his symptoms.
In a September 27, 2018 report, Dr. John W. Ellis, a Board-certified family medicine
specialist, provided a history of injury and treatment. He related appellant’s complaints of organic
brain syndrome, generalized achiness and joint pain, weakness, insomnia, paresthesias, and
numbness from the left elbow to the ring and small fingers, and numbness from the left wrist into
the thumb and fingers. On examination Dr. Ellis observed findings consistent with a recent left
ear infection, cervical and lumbar paraspinal tenderness and spasm, mild bilateral plexus
impingement, weakness in movement of all extremities, healed surgical scars over the left wrist
and elbow with median and ulnar nerve impairment, and a mildly positive Romberg sign. He
diagnosed Lyme disease with sequelae of systemic infection and immune response, causing severe
fatigue, cognitive issues, and impaired functioning of all extremities. Dr. Ellis found appellant
totally disabled from work due to severe malaise and weakness beginning in March 2018.
In an addendum report dated December 13, 2018, Dr. Ellis opined that Lyme disease
temporarily totally disabled appellant from work for intermittent periods August 17 to
December 24, 2017, January 17 to May 13, 2018, and from May 27, 2018 onward.

7

Appellant also submitted serology tests results dated from December 22, 2017 to July 7, 2018. January 11,
March 21, and June 26, 2018 samples were positive for immunoglobulin indicative of a possible prior Epstein-Barr
viral infection, and negative for Bartonella and Borrelia.

4

By decision dated April 29, 2019, OWCP denied modification of its February 16, 2018
decision.
By separate decision also dated April 29, 2019, OWCP denied modification of its April 9,
2018 decision as the evidence submitted was insufficient to establish that the accepted condition
disabled appellant from work from November 26 to December 9, December 12 to 23, 2017,
January 3 to 19, and January 22 through February 3, 2018.
By decision dated May 15, 2019, OWCP denied appellant’s claim for compensation from
February 4 through March 17, 2018 as the medical evidence of record was insufficient to establish
disability from work for the claimed period.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury8 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.9 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues which must be
proven by the preponderance of the reliable, probative, and substantial medical evidence.10
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.11 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.12
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.13 Rationalized medical evidence is medical evidence
which includes a physician’s detailed medical opinion on the issue of whether there is a causal
relationship between the claimant’s claimed disability and the accepted employment injury. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale

8

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
9

Id.; William A. Archer, 55 ECAB 674 (2004).

10

20 C.F.R. § 10.5(f); B.O., supra note 8; N.M., Docket No. 18-0939 (issued December 6, 2018).

11

Id. at § 10.5(f); see B.K., Docket No. 18-0386 (issued September 14, 2018); S.M., 58 ECAB 166 (2006);
Bobbie F. Cowart, 55 ECAB 746 (2004).
12

Id.

13

J.M., Docket No. 19-0478 (issued August 9, 2019).

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explaining the nature of the relationship between the diagnosed condition and the claimed period
of disability.14
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.15
The Board has interpreted section 8103, which requires payment of expenses incidental to
the securing of medical services, as authorizing payment for loss of wages incurred while obtaining
medical services.16 An employee is entitled to disability compensation for any loss of wages
incurred during the time he or she receives authorized treatment and for loss of wages for time
spent incidental to such treatment. The rationale for this entitlement is that, during such required
examinations and treatment and during the time incidental to undergoing such treatment, an
employee did not receive his or her regular pay.17
ANALYSIS
The Board finds that appellant has met his burden of proof to establish entitlement to wageloss compensation for up to four hours of time lost for medical appointments on September 27,
November 9, 14, and 16, 2017 and January 11, 2018.
On September 27, 2017 appellant attended a medical appointment with Dr. Chen who
evaluated appellant for periscapular pain related to the accepted Lyme disease. The record also
establishes that he attended physical therapy treatments on November 9, 14, and 16, 2017 for
musculoskeletal pain attributed to Lyme disease. Additionally, on January 11, 2018, appellant
underwent laboratory blood tests ordered by Dr. Barry to assess the presence of Lyme-related
antibodies.
As noted above, an employee is entitled to disability compensation for any loss of wages
incurred during the time he or she receives authorized treatment and for loss of wages for time
spent incidental to such treatment.18 Here, the case record establishes that appellant underwent
evaluation and treatment for musculoskeletal complaints related to his accepted Lyme disease on
September 27 and November 9, 14, and 16, 2017 and on January 11, 2018. The Board thus finds
that this medical evidence is sufficient to establish that he is entitled to up to four hours of wageloss compensation on those dates.

14

R.H., Docket No. 18-1382 (issued February 14, 2019).

15

M.A., Docket No. 20-0033 (issued May 11, 2020); A.W., Docket No. 18-0589 (issued May 14, 2019).

16

A.V., supra note 8; Y.H., Docket No. 17-1303 (issued March 13, 2018).

17

For a routine medical appointment, a maximum of four hours of compensation for time lost to obtain medical
treatment is usually allowed. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter
2.901.19(c) (February 2013); A.V., supra note 8. See also K.A., Docket No. 19-0679 (issued April 6, 2020); William A.
Archer, 55 ECAB 674 (2004).
18

Id.

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The Board further finds, however, that appellant has not met his burden of proof to establish
entitlement to wage-loss compensation for the remaining claimed intermittent disability from
September 26, 2017 through March 17, 2018 causally related to his accepted July 15, 2015
employment injury.
In support of his claims for disability, appellant submitted July 19 and August 31, 2017
reports by Dr. Kaur and an August 10, 2017 report by Dr. Weller, which do not address appellant’s
condition during the claimed periods of disability. Evidence that does not address appellant’s
claimed period of disability is of no probative value and is insufficient to establish his claim.19
Appellant provided reports from several physicians who did not attribute his symptoms to
Lyme disease, or otherwise find him disabled from work. In reports dated December 14 and 15,
2017, Drs. Strymish and Durso, respectively, opined that appellant had no objective clinical or
serologic signs of Lyme disease. In an August 1, 2018 report, Dr. Beaulieu noted appellant’s
complaints of chronic total body pain of unspecified etiology. In an August 2, 2018 report,
Dr. Modi indicated that appellant’s symptoms were not due to Lyme disease. These reports tend
to negate appellant’s assertion that the accepted Lyme disease disabled him for work for the
claimed periods. As the Board has held, medical evidence that neither addresses the claimed
period of disability,20 or negates causal relationship,21 is of no probative value. These reports are,
therefore, insufficient to meet appellant’s burden of proof.
Dr. Madineedi diagnosed Lyme disease on October 27, 2017 and Dr. Barry noted serologic
findings consistent with a Lyme infection in a January 14, 2018 report. However, neither
physician addressed whether appellant was disabled from work for any period.22
In September 27 and December 13, 2018 reports, Dr. Ellis opined that appellant was
disabled from work for intermittent periods August 17 to May 27, 2018 due to fatigue, cognitive
issues, and systemic musculoskeletal and neurologic symptoms caused by Lyme disease.
However, he did not identify the objective clinical indicators demonstrating a chronic Lyme
infection, or explain how appellant’s symptoms disabled him from work during the claimed period.
The Board has held that a report is of limited probative value regarding causal relationship if it
does not contain medical rationale explaining how appellant’s claimed disability is causally related
to the accepted injury.23 Dr. Ellis’ opinion is, therefore, of limited probative value and is
insufficient to establish appellant’s claim.24

19

T.L., Docket No. 18-0934 (issued May 8, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
20

Id.

21

M.C., Docket No. 19-1074 (issued June 12, 2020).

22

See supra note 15.

23
G.R., Docket No. 19-0940 (issued December 20, 2019); D.L., Docket No. 19-0900 (issued October 28, 2019);
Y.D., Docket No. 16-1896 (issued February 10, 2017); C.M., Docket No. 14-0088 (issued April 18, 2014).
24

G.R., id.; M.M., Docket No. 18-0817 (issued May 17, 2019).

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Appellant also submitted reports by nurse practitioners. As nurse practitioners are not
considered physicians under FECA, their medical findings and opinions are insufficient to
establish entitlement to compensation benefits.25
Finally, appellant submitted results from diagnostic testing. The Board has held, however,
that diagnostic studies, standing alone, lack probative value as they do not address whether the
accepted condition disabled him from work during the claimed periods.26 These reports are,
therefore, insufficient to establish the claim.
As the medical evidence of record does not include a rationalized opinion on causal
relationship between appellant’s claimed disability and his accepted employment injury, the Board
finds that he has not met his burden of proof.27
On appeal counsel asserts that Dr. Ellis’ opinion is sufficient to warrant additional
development, including referral to a second opinion specialist. As explained above, Dr. Ellis did
not provide sufficient medical rationale to meet appellant’s burden of proof to establish disability
for work for the claimed periods.
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 met his burden of proof to establish entitlement to wageloss compensation for up to four hours of time lost for medical appointments on September 27 and
November 9, 14, and 16, 2017, and January 11, 2018. The Board further finds that he has not met
his burden of proof to establish intermittent disability from work for the remainder of the period
September 26, 2017 through March 17, 2018 causally related to his accepted July 15, 2015
employment injury.

25

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See id. at § 8101(2); 20 C.F.R. § 10.5(t); supra note 17 at Chapter 2.805.3a(1) (January 2013); M.J., Docket No.
19-1287 (issued January 13, 2020); P.H., Docket No. 19-0119 (issued July 5, 2019); T.K., Docket No. 19-0055 (issued
May 2, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician assistants,
and physical therapists are not competent to render a medical opinion under FECA). See also R.L., Docket No.
19-0440 (issued July 8, 2019) (nurse practitioners and physical therapists are not considered physicians under FECA).
26

See M.J., id.; see J.S., Docket No. 17-1039 (issued October 6, 2017).

27

M.A., supra note 15; J.M., Docket No. 18-0853 (issued March 9, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the May 15 and April 29, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 16, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, JACKSON
PERFORMANCE & DISTRIBUTION CENTER,
Jackson, MS, Employer
__________________________________________

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Appearances:
John R. Reeves, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1051
Issued: August 14, 2019

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 April 21, 2017 appellant, through counsel, filed a timely appeal from a December 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 the case.

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.

ISSUE
The issue is whether appellant was an employee of the United States under 5 U.S.C.
§ 8101(1) at the time of her alleged injury on April 4, 2011.
FACTUAL HISTORY
On February 4, 2012 appellant, then a 26-year-old contract driver, filed a traumatic injury
claim (Form CA-1) alleging that, on April 4, 2011, she lost control and overturned the truck she
was using to transport mail. She sustained left arm injuries, including a left arm amputation. The
back of the form was not completed.
Evidence submitted with the claim indicated that appellant worked for private contractor
Triple J. Enterprises, a private contractor. On April 29, 2009 the employing establishment had
awarded this private contractor with Highway Contract Route No. 396A5, a set route from Jackson
Postal and Distribution Center, MS to Oak Vale, MS, for the term from May 2, 2009 through
March 31, 2012. Under the terms of the contract, Triple J. Enterprises was responsible for
supplying the vehicles used to transport the mail, maintaining liability insurance for all vehicles
used under the contract, and for employing suitable individuals to perform under the contract, and
for paying the drivers hired under the contract. Under section B.3(d) of the contract, the private
contractor could either use a sign that read “United States Mail,” or, dependent on the color the
vehicle was painted, have inscribed on the doors the words “United States Mail Contractor.”
On PS Form 2081, Contractor Employee Assignment Notification, V.L. of Triple J.
Enterprises indicated that, effective January 5, 2010, appellant, an employee with the contractor,
was permanently assigned to contract number 396A5. She also indicated that appellant required
access to mail or postal premises under the contract with the employing establishment.
Pursuant to the terms of the contract, appellant underwent screening and identification
requirements. She completed a Contract Personnel Questionnaire, PS Form 2025, and was issued
a Non Postal Service temporary employee photo identification badge. Appellant was required to
wear and display the identification badge while on the employing establishment’s postal property.
She did not wear an employing establishment uniform.
On the PS Form 2025, appellant indicated that she was a contractor/contractor’s employee.
She also completed a PS Form 2181-C, an “Authorization and Release -- Background Investigation
(USPS Contractors and Employees of Contractors).
Under section B.1(4) of the contract, appellant was required to sort, load, and unload all
classes of mail at the headout, enroute, and destination postal offices as directed by an employing
establishment official. The contract indicated that employing establishment personnel could assist
with loading and unloading in order to maintain a schedule. However, the contractor (appellant)
was responsible to ensure the truck was loaded correctly. The contractor (appellant) was required
to spot loads, where applicable, upon arrival at destinations and required to pick up outbound loads
at locations(s) as directed by an employing establishment official. The contract also indicated that
the contractor (appellant) could be assigned lobby/vestibule keys and/or a scanning device to be

2

used in the delivery and collection of mail along the contract route, which had to be signed out
prior to the start of the designated route and turned in at the end of the trip(s).
In a February 16, 2012 letter, the employing establishment advised that, although appellant
was “an affiliate” of the postal service via the transportation and delivery of mail, she was not a
federal employee. Rather, she was employed by Triple J. Enterprises, an independent contractor.
In a November 16, 2015 letter, counsel argued that appellant was an employee of the
employing establishment for purposes of workers’ compensation benefits. He contended that the
postmaster maintained control over appellant’s job duties, including when she reported to duty and
the route she drove on a daily basis.
In a development letter dated November 24, 2015, OWCP informed appellant that the
evidence submitted was insufficient to support that she was a federal employee. Also, no medical
evidence had been received which contained a physician’s diagnosis and opinion regarding the
cause of a diagnosed condition. Appellant was afforded 30 days to submit the requested evidence,
including evidence which established that she was working as a federal civil employee as defined
by 5 U.S.C. § 8101(a).
Appellant submitted a signed statement of certification dated November 30, 2015 along
with medical reports from Simpson General Hospital dated April 28, 2011 through November 2,
2015 and reports from The University Hospitals and Clinics dated April 28, May 26, and June 28,
2011, which discussed her left arm condition.
In a December 15, 2015 letter, counsel contended that the employing establishment was
appellant’s “statutory employer” since Triple J. Enterprises did not have the required workers’
compensation insurance under state law. He indicated that the Fifth Circuit in Chaline v. U.S.3
held that when a postal service contractor’s employee was injured from work that was part of the
postal service’s “trade, business, or occupation,” it was deemed to be the “statutory employer” of
the injured employee. Further counsel contended that because Triple J. Enterprises contracted
with the employing establishment to deliver mail, the employing establishment was considered the
principal/contractor and Triple J. Enterprises was the subcontractor. As appellant’s injury
occurred from work that was part of the employing establishment’s “trade, business, or
occupation,” counsel argued that she qualified for federal workers’ compensation as Triple J.
Enterprises did not have the required workers’ compensation insurance under state law.
By decision dated January 4, 2016, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that she was a federal employee under FECA. It found that
an employee/employer relationship did not exist between appellant and the employing
establishment at the time of the claimed injury. Rather, she was employed by an individual
contractor, Triple J. Enterprises, at the time of the claimed injury.
On January 18, 2016 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative. At the September 13, 2016 telephonic hearing, appellant testified
that she worked for Triple J. Enterprises and transported mail for the employing establishment.
3

887 F.2d 505, 506 (5th Cir. 1989).

3

She stated that she took mail from the Jackson Post Office and delivered it to the smaller post
offices in Sontag, Monticello, and Oakville. Appellant checked in with the postmaster at the
Jackson Post Office to pick-up keys for the other offices. She stated that she had to sign for the
keys. Appellant would then sort through the mail on the deck, load her truck, and deliver the mail
to the other post offices. She testified that she had identification issued by the employing
establishment. Appellant also stated that Triple J. Enterprises had hired her and that she had
worked for the contractor for approximately two years prior to the time of the injury.
Appellant testified that, at the time of injury, her truck fishtailed because of the wind and
flipped over onto her arm. She indicated that her arm was amputated at the hospital above her
elbow. Appellant testified that a several of the employing establishment’s employees had helped
her load the truck. She did not believe that the vehicle had been loaded correctly as it had too
much weight on one side and that the contents were moving around as she was driving. Appellant
stated that she informed V.L. of Triple J. Enterprises about her injury and went to the hospital.
When she later tried to discuss her injuries with V.L., she was told that they were not responsible
and that the company did not have workers’ compensation insurance to cover her loss. Counsel
indicated that the lack of insurance was confirmed by the Workers’ Compensation Special
Commission.
Counsel asserted that appellant was a statutory employee of the employing establishment
and that the employing establishment was the statutory employer since the contractor, Triple J.
Enterprises, did not have workers’ compensation insurance.
Appellant testified that the postmaster of the employing establishment provided
instructions on the assignment destinations and gave her the keys to postal facilities. She also
picked up money bags from the smaller post offices and returned them to the postmaster in
Jackson, Mississippi. Appellant stated that she had keys to the offices and was trusted to get the
money and deliver it back to the postmaster. She advised that both parties signed off on the
transaction. Appellant also stated that the employing establishment instructed her regarding the
times to pick up the mail and have it delivered and that she had a set schedule to return to the
Jackson postal facility in the afternoon.
Appellant testified that V.L. had hired her and that her paychecks were from V.L. She
indicated that she had to complete an employment form for the employing establishment.
Appellant stated that she did not have a supervisor at the employing establishment and had picked
up the keys directly from the postmaster. She testified that she had the same route daily and used
a vehicle provided by Triple J. Enterprises. Appellant advised that the truck insurance had
provided $5,000.00 in medical expense. She stated that she did not have to present the contractor
with any type of insurance or bond information before she was hired. Appellant also stated that
she did not have a written contract of employment with Triple J. Enterprises.
Counsel indicated that a workers’ compensation claim had been filed against both V.L. and
the employing establishment. He explained that the state Workers’ Compensation Commission
had determined that they could not rule in a federal matter. Counsel argued that Triple J.
Enterprises was required under state law to have insurance coverage. Since it did not have the

4

required insurance, under state law, the employing establishment would be deemed the statutory
employer. Counsel again cited to the case of Chaline v. U.S.4 In support of his argument.
Counsel argued that the employing establishment controlled appellant’s daily work duties
through the contractor, Triple J. Enterprises, and that appellant was in the course and scope of her
employment when injured. Appellant testified that she was issued a 1099 tax form from Triple J.
Enterprises. Counsel argued that Triple J. Enterprises was skirting the tax law as appellant was its
employee.
In a September 16, 2016 letter, counsel submitted additional legal documentation which
supported his legal position that the employing establishment was the statutory employer of
appellant and which indicated that contractor Triple J. Enterprises did not have the required
workers’ compensation insurance.
On September 22, 2016 a copy of the hearing transcript was sent to the employing
establishment for review and comment.
In an October 24, 2016 letter, the employing establishment maintained its position that
appellant was not a federal employee at the time of her injury. It advised that the evidence
supported that appellant was an independent contractor with Triple J. Enterprises. In the
alternative, the employing establishment argued that, if appellant was considered an employee of
Triple J. Enterprises, there was no requirement in the contract that Triple J. Enterprises must
provide workers’ compensation insurance coverage to appellant. Rather, the contract simply
provided that Triple J. Enterprises was required to comply with all federal, state, and local law
ordinances. It noted that under Mississippi state law, an employer who had less than five
employees was not required to provide workers’ compensation insurance coverage and there was
no evidence that Triple J. Enterprises had five employees. Thus, there was no requirement under
state law that Triple J. Enterprises was required to provide appellant with insurance coverage. The
employing establishment argued that appellant was an independent contractor and thus she could
not be a statutory employee.
The employing establishment advised that appellant’s state claim against them had been
settled and that the Mississippi State Workers’ Compensation Commission had dismissed the
claim. However, no information pertaining to such a settlement was provided. A copy of the
employing establishment’s position statement dated April 12, 2012 was provided along with the
referenced contract and personnel data.
By decision dated December 28, 2016, OWCP’s hearing representative affirmed the
January 4, 2016 decision, finding that the evidence of record failed to establish that appellant was
an employee of the United States under FECA. She found that appellant was an independent
contractor of Triple J. Enterprises and thus she could not be a statutory employee of the employing
establishment.

4

Id.

5

LEGAL PRECEDENT
FECA provides that the United States shall pay compensation as specified by this
subchapter for the disability or death of an employee resulting from personal injury sustained while
in the performance of his or her duty.5 A claimant seeking compensation under FECA has the
burden of proof to establish the essential elements of his or her claim by the weight of the reliable,
probative, and substantial evidence, including that the claimant was an employee within the
meaning of FECA.6
For purposes of determining entitlement to compensation benefits under FECA, an
employee is defined, in relevant part, as:
“(A) a civil officer or employee in any branch of the [g]overnment of the United
States, including an officer or employee of an instrumentality wholly owned by the
United States;
“(B) an individual rendering personal service to the United States similar to the
service of a civil officer or employee of the United States, without pay or for
nominal pay, when a statute authorizes the acceptance or use of the service or
authorizes payment of travel or other expenses of the individual....”7
With regards to whether a claimant is a federal employee for purposes of FECA, the Board
has noted that such a determination must be made considering the particular facts and
circumstances surrounding his or her employment.8 Included among the many factors to be
considered are the right of control of the work activities, the right to hire and fire, the nature of the
work performed, the method of payment for the work, the length of time of the job, and the
intention of the parties.9 Other factors to be considered include whether the claimant has been
rendering service similar to the service of a federal employee and whether the employing
establishment was authorized by statute to accept such services.10 The statute does not require that
any written form of agreement be entered into by the employing establishment and the individual
providing services prior to acceptance of personal services by the employing establishment.11
With regards to the party who paid the wages, the implication that a claimant was a federal

5

5 U.S.C. § 8102(a).

6

T.C., Docket No. 19-0227 (issued July 11, 2019); Barbara L. Riggs, 50 ECAB 133, 137 (1998).

7

5 U.S.C. § 8101(1).

8
A.M., Docket No. 16-1038 (issued December 23, 2016); S.D., Docket No. 13-0090 (issued August 22, 2013);
Donald L. Dayment, Docket No. 01-1846 (issued January 21, 2003).
9

A.M., id.; Larry E. Young, 52 ECAB 264 (2001).

10

A.M., id.; Sandra Davis, 50 ECAB 450 (1999).

11

Jane Doe, 49 ECAB 646, 649 (1998).

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employee cannot be drawn solely from the fact that his or her salary was derived from a fund to
which the Federal Government contributed.12
Of the aforementioned factors, the Board has held that the right to control the work
activities of the person whose status is in dispute is the most important.13
OWCP’s procedure manual indicates that, when there is a question as to whether appellant
is an employee or an independent contractor, the claims examiner should request statements from
the worker and the reporting employing establishment to indicate, inter alia, whether the worker
was required to furnish any tools or equipment, the period of time the work relationship was to
exist, whether the reporting employing establishment had the right to control or direct how the
work was to be performed with full explanation, the manner in which payment for the worker’s
services was determined, and whether the activity in which the worker was engaged was a regular
and continuing activity of the reporting employing establishment.14
The procedures for making a determination of whether a claimant is an employee or an
independent contractor the claims examiner must be particularly careful to determine whether
the worker is an independent contractor or an “employee.” Where this issue becomes a factor,
the claims examiner should request statements from the worker and the reporting agency on seven
factors which must be considered.15
Specifically regarding Postal Service Mail Messengers, OWCP’s procedure manual relates
that determinations of whether mail messengers who perform service for the U.S. Postal Service
12
David Nivens, 46 ECAB 926, 934 (1995); Darlene Menke, 43 ECAB 173, 178 (1991); Carl R. Clover, 41 ECAB
625, 632 (1990) and cases cited therein.
13

S.D., supra note 8; Nettie Jackson (Lee F. Jackson), Docket No. 01-0498 (issued November 21,
2001);Kenneth W. Grant, 39 ECAB 208 (1987); Wendy S. Warner, 38 ECAB 103, 105 (1986); Funnia F. Hightower,
28 ECAB 83 (1976).
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Civil Employee, Chapter 2.802.6(a) (June 1995).

15

Id. at Chapter 2.802.6. The worker and the reporting agency, should be instructed to show:
(1) Whether the worker performs services or offers services to the public generally as a contractor or is
permitted to do so by the reporting agency and, if so, a full explanation;
(2) Whether the worker is required to furnish any tools or equipment and, if so, a full explanation;
(3) The period of time the work relationship is to exist;
(4) Whether the reporting agency has the right to discharge the worker at any time and, if so, when and
under what circumstances;
(5) Whether the reporting agency has any right to control or direct how the work is to be performed
and, if so, a full explanation;
(6) The manner in which payment for the worker’s services is determined; and
(7) Whether the activity in which the worker was engaged was a regular and continuing activity of the
reporting agency and, if not, a full explanation.

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are considered civil employees are made on a case-by-case basis. Cases involving determinations
of postal service mail messengers should be referred to a senior claims examiner.16
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant transported mail as a driver for contractor Triple J. Enterprises. She alleged that
her status should be considered that of a federal employee at the time of her April 14, 2011
accident. OWCP’s hearing representative found that appellant was an independent contractor of
Triple J. Enterprises and thus she could not be a statutory employee of the employing
establishment.
In determining whether an employer-employee relationship was created at the time of
appellant’s injury, the Board has applied both the right of control analysis and looked at the nature
of the work performed.17 Under FECA, although it is the burden of an employee to establish his
or her claim, OWCP also has a responsibility in the development of the factual evidence,
particularly when such evidence is of the character normally obtained from the employing
establishment or other government source.18

16

Id. at Chapter 2.802.7. Before referral, the claims examiner should ask the reporting agency for copies of any
written agreement or work contract executed by the mail messenger or the postal service when the injured individual
began working or at any later date, and of any oath executed by the worker. Absent a written contract, the postmaster
and the mail messenger should be asked to submit statements showing in full detail the terms of the oral agreement
and the precise manner in which it was reached.
The reporting agency should also be asked to submit a statement showing:
a. The manner in which the worker qualified and was selected to act as mail messenger;
b. The distance the mail was carried;
c. The kind of equipment used and by whom it was furnished;
d. Whether the mail messenger was required to personally perform the service or whether assistants or
substitutes were permitted and, if so, under what conditions and circumstances;
e. Whether the mail messenger had any other employment or performed or offered like or similar
services to the public as an independent business service and, if so, this should be explained fully;
f. The manner and circumstances under which the relationship could be terminated;
g. The manner in which the pay was determined;
h. Who determined how, when, and in what manner the mail would be carried; and
i. What right, if any, the postmaster had to direct or supervise the work performed by the mail messenger
and to what extent the postmaster exercised this right.
17

See supra note 8.

18

Willie A. Dean, 40 ECAB 1208, 1212 (1989); Willie James Clark, 39 ECAB 1311, 1318-19 (1988).

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The Board finds that the case should be remanded to OWCP for further development of
the factual evidence regarding the question of whether appellant was an employee within the
meaning of FECA at the time of her injury on December 12, 2011. FECA regulation 20 C.F.R.
§ 10.118(a) provides that the employing establishment is responsible for submitting to OWCP all
relevant and probative factual evidence in its possession or which it may acquire through
investigation or other means.19 OWCP procedures require development of the claim by inquiry
with the employing establishment regarding the employment relationship, if any, with a claimant.20
The procedures further provide separate and distinct inquiries with regard to mail messengers.21
On remand OWCP shall determine which inquiries are appropriate to determine appellant’s
employment status and then obtain all necessary information from the employing establishment in
accordance with its appropriate procedures. If the determination is made that appellant is a mail
messenger, pursuant to Chapter 2.802.7 of the FECA Procedure Manual,22 the claim shall be
referred to a senior claims examiner. After this and other such further development as deemed
necessary, OWCP shall issue a de novo decision regarding appellant’s employment status and the
validity of her claim for benefits in accordance with the relevant standards for such
determinations.23
CONCLUSION
The Board finds that this case is not in posture for decision.

19

20 C.F.R. § 10.118(a) (2012).

20

Supra note 15.

21

Supra note 16.

22

Id.

23

See Harry H. Holzem, Docket No. 03-0588 (issued June 19, 2003).

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ORDER
IT IS HEREBY ORDERED THAT the December 28, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 14, 2019
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERAN HEALTH ADMINISTRATION,
Bay Pines, FL, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0212
Issued: October 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 27, 2014 appellant, through counsel, filed a timely appeal from an
October 21, 2014 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 OWCP properly terminated appellant’s compensation benefits
effective December 30, 1986 because she refused an offer of suitable work.
FACTUAL HISTORY
OWCP accepted that on November 17, 1973 appellant, then a 34-year-old nurse,
sustained a low back strain and L5 radiculitis due to slipping on a wet floor at work. Appellant
1

5 U.S.C. §§ 8101-8193.

received total disability compensation until her return to work in 1974 and later suffered several
intermittent recurrences of disability. On October 3, 1977 she sustained a work-related right
shoulder sprain, but this claim was administratively closed due to no activity. Appellant twisted
her back when she slipped on a sticky liquid substance at work on June 15, 1978 and this claim
was accepted for lumbar sprain and displacement of lumbar intervertebral disc without
myelopathy.
In a June 8, 1979 report, an OWCP medical adviser reported that appellant might have a
neuropsychiatric disorder due to her work-related injuries. He recommended that she be sent to
an impartial orthopedic specialist to determine if she continued to have residuals of her 1973 or
1978 work injuries and that she also be sent to an impartial psychiatrist to determine if she had a
work-related neuropsychiatric disorder. On July 3, 1979 the same OWCP medical adviser again
recommended that, after developing the claim with respect to work-related physical residuals,
appellant be referred to an impartial psychiatrist in order to evaluate whether she had a
neuropsychiatric disorder and, if so, whether it was related to her 1973 or 1978 work injury.
In a July 9, 1985 report, Dr. Paul F. Wallace, an attending Board-certified orthopedic
surgeon, indicated that appellant was capable of doing some sedentary form of work. He noted,
“I do not feel any treatment is indicated because of her psychological adjustment to lack of
work.” In an attached July 9, 1985 form report, Dr. Wallace noted that appellant could perform
modified duty, including work that required sitting for eight hours per day and lifting up to 10
pounds for up to an hour per day.
In a March 3, 1986 report, Dr. James L. West, an attending Board-certified orthopedic
surgeon, noted that appellant had back pain and rigidity and that she had sensitivity over the
sciatic notch on either side with significant lower extremity irritation. He also noted that
appellant’s surgery status needed to be considered.
On June 24, 1986 the employing establishment offered appellant a full-time modified
position as a medical machine technician. The position involved watching monitors on
continuous basis and could be performed while sitting, standing, or walking. It did not require
any lifting, pushing, or pulling.
In September 1986 appellant was referred to a vocational rehabilitation program to assist
her with her return to work. Her vocational rehabilitation counselor determined that she was able
to work as a medical machine technician.
On September 10, 1986 Dr. West reviewed the position description of medical machine
technician job and determined that appellant was able to perform this job.
In a November 20, 1986 letter, OWCP advised appellant of its determination that the
medical machine technician position offered by the employing establishment was suitable. It
informed her that her compensation would be terminated if she did not accept the position or
provide good cause for not doing so within 30 days of the date of the letter. Appellant did not
respond to OWCP within the allotted time.

2

Appellant submitted a December 15, 1986 report, but the report is not signed and it is
unclear who authored it.2
In a December 30, 1986 decision, OWCP terminated appellant’s compensation effective
December 30, 1986 because she refused an offer of suitable work.
In an August 5, 2014 letter, appellant’s counsel requested reconsideration of OWCP’s
December 30, 1986 decision noting that the request was timely because it had been made with
respect to an OWCP decision issued prior to June 1, 1987 and OWCP had not subsequently
reviewed the December 30, 1986 decision.3 He argued that OWCP improperly terminated
appellant’s compensation for refusing an offer of suitable work effective December 30, 1986
because the contemporaneous medical evidence did not show that she had the ability to perform
the medical machine technician position offered by the employing establishment.4 Counsel
indicated that Dr. West provided opinions in March 3 and December 15, 1986 reports that
appellant was not employable and that other medical evidence of record showed that she had a
disabling “consequential psychological condition triggered by her work injury.”5
Counsel submitted September 27, 1975 and January 4, 1978 reports in which
Dr. R. Knaus, an attending osteopath, diagnosed agitated reactive depression. In a December 28,
1977 report, Dr. James R. Tyler, an attending osteopath, diagnosed several physical conditions
and indicated “some psychogenic, psychological overlay condition is suggested.” Counsel also
submitted medical reports dated between 1993 and 2014 that described medical treatment
appellant received, but they provide no opinion on appellant’s medical condition or ability to
work around the time the medical machine technician position was offered in 1986.
By decision dated October 21, 2014, OWCP affirmed its December 30, 1986 decision
noting that appellant’s compensation had been properly terminated effective December 30, 1986
because she refused an offer of suitable work.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.6 Section 8106(c)(2) of FECA provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by, or
secured for the employee is not entitled to compensation.7 Section 8106(c)(2) will be narrowly
2

The report stated that appellant reported severe lower back pain radiating down to her left heel and that she
lifted 10 to 15 pounds. It also indicated that she did not desire surgery and that she “continues to be disabled.”
3

E.R., Docket No. 13-719 (issued April 17, 2014); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4e (October 2011).
4

Counsel resubmitted a number of medical reports that had already been in the record.

5

Counsel stated that these psychological conditions were accepted by OWCP “by way of [OWCP medical
adviser memoranda] dated June 8 and July 3, 1979.”
6

See Mohamed Yunis, 42 ECAB 325, 334 (1991).

7

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

3

construed as it serves as a penalty provision, which may bar an employee’s entitlement to
compensation based on a refusal to accept a suitable offer of employment.8
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.9 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.10
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of his or her refusal to accept such employment.11
Determining what constitutes suitable work for a particular disabled employee, it considers the
employee’s current physical limitations, whether the work is available within the employee’s
demonstrated commuting area, and the employee’s qualifications to perform such work.12
OWCP procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer or medical evidence of inability to do the work or travel to the job.13
Medical question can only be resolved by medical opinion evidence, i.e., evidence produced
by a person considered to be a physician under FECA.14
No time limit applies to requests for reconsideration of decisions issued before June 1,
1987 because there was no regulatory time limit for requesting reconsideration prior to
June 1, 1987. Therefore, a request for reconsideration of a decision issued before June 1, 1987
may not be denied as untimely unless the claimant was advised of the one-year filing
requirement in a later decision denying an application for reconsideration or denying
modification of the contested decision. In these cases, the one-year time limit begins on the date
of the decision that includes notice of the time limitation.15

8

See Joan F. Burke, 54 ECAB 406 (2003).

9

20 C.F.R. § 10.517(a).

10

Id. at § 10.516.

11

See Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff d on recon., 43 ECAB
818 (1992).
12

20 C.F.R. § 10.500(b).

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a
(June 2013); see E.B., Docket No. 13-319 (issued May 14, 2013).
14

See Arnold A. Alley, 44 ECAB 912 (1993); 5 U.S.C. § 8101(2).

15

Supra note 3.

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ANALYSIS
In a December 30, 1986 decision, OWCP terminated appellant’s compensation effective
December 30, 1986 because she refused an offer of suitable work. On August 5, 2014 appellant,
through counsel, submitted a reconsideration request of OWCP’s December 30, 1986 decision.16
The Board finds that OWCP properly terminated appellant’s entitlement to compensation
effective December 30, 1986.
The evidence of record establishes that appellant was capable of performing the medical
machine technician position offered by the employing establishment in June 1986 and
determined to be suitable by OWCP in November 1986. The position involved watching
monitors on a continuous basis and could be performed while sitting, standing, or walking. It did
not require any lifting, pushing, or pulling. The medical machine technician position was
selected by appellant’s vocational rehabilitation counselor and OWCP properly relied on the
opinion of appellant’s counselor in determining that appellant is vocationally and educationally
capable of performing the position.17
In determining that appellant was physically capable of performing the medical machine
technician position offered by the employing establishment, OWCP properly relied on the
opinion of Dr. West, an attending Board-certified orthopedic surgeon. On September 10, 1986
Dr. West reviewed the description of the medical machine technician position and determined
that appellant was able to perform the position.
Before OWCP and on appeal, counsel argued that the medical evidence of record,
including March 3 and December 15, 1986 reports of Dr. West and a July 9, 1985 report of
Dr. Wallace, an attending Board-certified orthopedic surgeon, established that appellant could
not work as a medical machine technician. In his March 3, 1986 report, Dr. West indicated that
appellant had back and lower extremity symptoms including pain and rigidity. However, he did
not provide any opinion on appellant’s ability to work. The record contains a December 15,
1986 report which notes that appellant reported continuing back and left leg symptoms, engaged
in lifting 10 up to 15 pounds, and “continues to be disabled.” However, the report is not signed
and it is unclear who authored it. Therefore, it does not constitute probative medical evidence
from a physician within the meaning of FECA.18 In his July 9, 1985 report, Dr. Wallace opined,
“I do not feel any treatment is indicated because of her psychological adjustment to lack of

16

Appellant’s reconsideration request was timely because it related to an OWCP decision issued prior to June 1,
1987 and she was not advised of the one-year filing requirement in a later decision. See supra note 15.
17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4
(June 2013).
18

See supra note 14. Even if the report were considered to constitute medical evidence, it is unclear whether the
phrase “continues to be disabled” constitutes an actual medical opinion on disability (as opposed to appellant’s selfreporting of disability) and, if so, what level of disability it would denote.

5

work.” However, he did not opine that appellant had any specific psychiatric diagnosis and, in
fact, noted that appellant could perform sedentary work which included lifting up to 10 pounds.19
Counsel alleged that OWCP had accepted that appellant sustained a work-related
psychiatric condition and that this condition prevented her from working as a medical machine
technician. He submitted medical documents dated between 1975 and 1979 which made
reference to psychiatric conditions. However, the record does not contain any evidence that
appellant sustained a work-related psychiatric condition and there is no medical evidence of
record showing that a psychiatric condition, whether work related or not, prevented her from
performing the medical machine technician position around the time it was offered in mid-1986.
The Board finds that OWCP established that the medical machine technician position
offered by the employing establishment is suitable. The Board has carefully reviewed the
evidence and argument submitted by counsel on behalf of appellant in support of her refusal to
accept the medical machine technician position and finds that it is not sufficient to justify her
refusal of the medical machine technician position.
The Board therefore finds that OWCP properly terminated appellant’s compensation
effective December 30, 1986 because she refused an offer of suitable work.
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 OWCP properly terminated appellant’s compensation benefits
effective December 30, 1986 because she refused an offer of suitable work.

19

Counsel also submitted medical reports dated between 1993 and 2014 that described medical treatment
appellant received for physical ailments, but they provide no opinion on her medical condition or ability to work
around the time the medical machine technician position was offered in 1986.

6

ORDER
IT IS HEREBY ORDERED THAT the October 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 20, 2015
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 22-0115
Issued: March 22, 2022

Case Submitted on the Record

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

On November 1, 2021 appellant through counsel, filed a timely appeal from an
October 4, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 22-0115.
In a letter dated February 18, 2022, counsel requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that counsel ’s request f or the
dismissal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
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 b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT the request for the dismissal of the appeal is
granted. The appeal docketed as No. 22-0115 is dismissed.
Issued: March 22, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, San Francisco, CA, Employer
__________________________________________

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

Docket No. 17-1514
Issued: April 10, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 3, 2017 appellant filed a timely appeal from a June 15, 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 to
consider the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish total disability from
work commencing August 21, 2016, due to the accepted March 15, 2016 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 15, 2017 decision, OWCP received additional evidence. However, the
Board’s jurisdiction is limited to the evidence that was in the record at the time OWCP issued its final decision. Thus,
the Board is precluded from reviewing this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 13, 2016 appellant, then a 35-year-old human resources assistant, filed a
traumatic injury claim (Form CA-1) alleging that, on March 15, 2016, she pulled a muscle in her
right arm when she reached for some papers on her desk. OWCP accepted the claim for right
arm/shoulder strain on May 27, 2016. Appellant returned to light-duty work with restrictions on
June 22, 2016. OWCP paid appellant wage-loss compensation for intermittent periods of
disability from May 9 to August 20, 2016, and again from October 16 to 28, 2016.3
On June 9, 2016 OWCP referred appellant to Dr. Aubrey A. Swartz, a Board-certified
orthopedic surgeon, for a second opinion examination and assessment of her accepted work-related
condition. In a report dated June 30, 2016, Dr. Swartz, based upon a review of the statement of
accepted facts, medical records, and physical examination, diagnosed status post right shoulder
strain injury. He noted that appellant had sustained a prior injury on February 23, 2015 involving
her right shoulder, forearm, and wrist. Dr. Swartz noted physical examination findings and
recommended that a magnetic resonance imaging (MRI) scan be performed before he answered
OWCP’s questions regarding aggravation and disability.
In an August 28, 2016 supplemental report, Dr. Swartz reviewed an August 17, 2016 MRI
scan. Based on his review of the MRI scan, Dr. Swartz concluded that there was no evidence of a
rotator cuff tear and mild supraspinatus tendinosis with low-grade articular surface fraying,
degenerative fraying-type biceps labral anchor and superior-posterior labrum tear, and chronic
supraspinatus tendinitis/tendinosis. Dr. Swartz attributed the diagnosed conditions to the accepted
March 15, 2016 employment injury. He concluded that appellant was capable of performing her
usual job with a restriction of up to four hours of right shoulder overhead reaching. Dr. Swartz
also opined that appellant had reached maximum medical improvement and there appeared to be
no indication that surgery was required.
In a work status report dated August 24, 2016, Dr. Aundrea Wilson, a surgeon, indicated
that appellant was capable of working with restrictions for six hours per day and released her to
return to work on August 19, 2016.
In an August 24, 2016 report, Dr. Pamela Mehta, a Board-certified orthopedic surgeon,
noted appellant’s medical and injury histories and performed a physical examination. Diagnoses
included right shoulder impingement syndrome, right carpal tunnel syndrome, possible right neck
radiculopathy, and right neck pain. Dr. Mehta attributed appellant’s right shoulder, neck, and hand
conditions to work injuries of February 23, 2015 and March 15, 2016. She concluded that
appellant was capable of performing her usual work duties with restrictions on right arm use of
four hours. In attached work status reports, Dr. Mehta released appellant to return to work on
August 24, 2016 with restrictions of up to four hours of limited right arm use.

3

By decision dated July 29, 2016, OWCP denied appellant’s claim for wage-loss compensation for the period
May 19 to June 11, 2016. It noted that appellant had filed claims for wage-loss compensation (Form CA-7) for
intermittent wage loss of 8 hours covering the period May 9 to 13, 2016 and 14 hours covering the period May 16
to 19, 2016 and 72 hours of total disability covering the period May 31 to June 10, 2016. The record contains no
evidence that appellant appealed the July 29, 2016 decision denying her wage-loss claim.

2

In an August 26, 2016 work status report, Dr. Wilson released appellant to return to work
with restrictions on use of her right hand up to four hours. She checked a box that indicated
appellant had improved, but slower than anticipated.
A disability note signed by Dr. Kimberly Hicks, an internal medicine physician, related
that appellant had been under her care from August 19, 2016 and that she could return to work on
September 8, 2016.
Appellant filed claims for wage-loss compensation (Form CA-7) for total disability
covering the period August 21 to September 3, 2016, September 5 to 16, 2016, and September 19
to 30, 2016.
In a letter dated September 12, 2016, OWCP informed appellant that the evidence of record
was insufficient to establish her claim for wage-loss compensation. It noted that she had been
working light duty when she stopped work on August 21, 2016 and that it was unclear why she
went from part-time light duty to temporary total disability. Appellant was advised regarding the
evidence required to support her claim and she was afforded 30 days to provide the requested
evidence.
In response to OWCP’s request appellant submitted medical evidence relevant to the period
of disability. She submitted additional medical evidence and physical therapy reports.
A disability note dated September 7, 2016 and signed by Dr. Hicks, noted that appellant
had been under her care from August 19, 2016 to the present and indicated that appellant could
return to work on October 5, 2016. She indicated that appellant’s disability for the period in
question was due to her right arm tendinitis.
In a September 21, 2016 progress report, Dr. Mehta noted that appellant was being
reevaluated for her accepted March 15, 2016 work injury. Examination findings were provided
and diagnoses of right shoulder impingement syndrome, possible right carpal tunnel syndrome,
possible right neck radiculopathy, and right neck pain were noted. Dr. Mehta related that appellant
agreed to undergo right shoulder arthroscopic subacromial decompression surgery. In a
September 21, 2016 work status form, Dr. Mehta indicated that appellant was disabled from work
until September 29, 2016 when she could resume work with restrictions.
In a September 26, 2016 report, Dr. Hicks noted that appellant has been under her care
since April 2016 for treatment of right shoulder mild supraspinatus tendinosis with low grade
articular surface fraying and right shoulder degenerative fraying/ biceps labral anchor and superior
posterior labrum tear. She opined that appellant was disabled from work due to an aggravation.
An October 6, 2016 electromyogram (EMG) noted abnormal findings consistent with
moderate-to-severe forearm ulnar neuropathy below the cubital tunnel. The EMG reported no
evidence or radial neuropathy or carpal tunnel syndrome.
In an October 12, 2016 primary treating physician’s progress report, Dr. Mehta concluded
that appellant needed surgery and that she would be off work two to three months following right
shoulder subacromial decompression surgery. Diagnoses included right shoulder impingement
syndrome with decreased range of motion and right ulnar neuropathy. Dr. Mehta indicated that
3

appellant could return to work on October 12, 2016 with restrictions in a work status form dated
October 12, 2016.
By decision dated October 26, 2016, OWCP denied appellant’s claim for wage-loss
compensation on and after August 21, 2016.
Subsequent to the denial of her claim, OWCP received the following evidence.
On October 18, 2016 appellant was seen in the emergency room by Dr. Aaron Halstead
Barber, Board-certified in emergency medicine. Dr. Barber noted that appellant had a March 2016
right shoulder work injury and has had unrelenting pain since the injury. A diagnosis of chronic
right shoulder/neck pain was reported.
In a Form CA-7 dated October 18, 2016, appellant filed a claim for intermittent wage-loss
compensation from October 3 to 15, 2016.
An October 26, 2016 work status report by Dr. Mehta noted that appellant was waiting for
approval of the recommended surgery. Dr. Mehta indicated that appellant was unable to work
until November 23, 2016. Diagnoses included cervicalgia, right shoulder impingement syndrome,
cervical radiculopathy, and right carpal tunnel syndrome.
Dr. Mehta’s October 26, 2016 progress report contained findings and diagnoses unchanged
from prior reports. He placed appellant completely off work.
On November 2, 2016 appellant filed a Form CA-7 claim for wage-loss compensation for
intermittent disability from October 16 to 28, 2016.
On November 14, 2016 OWCP received appellant’s request for an oral hearing before an
OWCP hearing representative, which was held on March 31, 2017.
In a November 28, 2016 report, Dr. Mathias Masem, a treating Board-certified orthopedic
and hand surgeon, detailed medical and injury histories. A physical examination was performed
with findings noted in the report. Dr. Masem diagnosed right rotator cuff tendinitis and right
cubital tunnel syndrome. He recommended right shoulder arthroscopy and subacromial
decompression and cubital tunnel decompression surgery.
On November 29, 2016 a district medical adviser reviewed the request for right shoulder
arthroscopic surgery and opined that it was not medically necessary.
On December 9, 2016 appellant filed a Form CA-7 claim for wage-loss compensation for
total disability from November 28 to December 9, 2016.
Dr. Masem, in a January 12, 2017 report, noted that appellant was seen for a follow-up
visit concerning her right cubital tunnel symptoms and right shoulder rotator cuff tendinitis.
Examination finding included: biceps tendon and rotator cuff tenderness; pain with right rotator
cuff loading; and right shoulder abduction from 80 to 110 degrees. Dr. Masem reported that
appellant’s right shoulder condition was making her miserable and opined that surgery remained
the recommended course of action.

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In a January 12, 2017 duty status form (Form CA-17), Dr. Masem diagnosed persistent
right arm pain with use. He opined that appellant was totally disabled from work as she was
instructed not to use her right upper extremity.
In a February 2, 2017 progress report, Kelly Maris-Weissburg, nurse practitioner, noted an
injury date of March 15, 2016 and that appellant has been off work since October 25, 2016. She
reported that appellant’s right shoulder pain had worsened. Diagnoses listed were right cubital
tunnel symptoms and right shoulder rotator cuff tendinitis.
In a February 28, 2017 progress report, Dr. Masem provided an update on appellant’s
condition and examination findings. Appellant informed him that her pain was unchanged and
severe. Dr. Masem diagnosed right cubital tunnel symptoms and right shoulder rotator cuff
tendinitis. He opined that appellant’s rotator cuff tear may be worsening as her shoulder symptoms
had worsened. Dr. Masem advised that she remained disabled from work until she had surgery
and postoperative rehabilitation. In a February 28, 2017 note, he wrote that appellant had been
evaluated that day and was to remain off work until her next medical appointment in April.
Ms. Maris-Weissburg, in progress notes dated March 23, 2017, noted that appellant was
seen for right shoulder injury complaints. She noted that appellant had been off work since
October 2016 and opined that her condition was worsening. Ms. Maris-Weissburg listed right
cubital tunnel symptoms and right shoulder rotator cuff tendinitis.
In an April 18, 2017 report, Dr. Masem’s examination findings, diagnoses, and
recommendations remained unchanged from prior reports. He indicated that appellant had been
evaluated that day and was to remain off work until her next medical appointment at the end of
May.
On May 10, 2017 appellant was seen by Ms. Maris-Weissburg, who noted examination
findings and conclusions in a progress report. Ms. Maris-Weissburg opined that appellant’s
condition was worsening and that she has not worked since October 2016. The diagnoses
remained unchanged.
In a May 15, 2017 report, Dr. Mark H. Chan, a Board-certified specialist in pain medicine
and rehabilitation, noted an injury date of May 16, 2016 and that appellant last worked in
October 2016. He diagnosed right shoulder cuff tendinitis, which he noted had been accepted as
right shoulder strain, upper extremity and right cervical strain, and right cubital tunnel syndrome.
Examination findings were provided. Based on examination findings and history, Dr. Chan opined
that appellant’s condition was worsening despite the treatment provided. He recommended
acupuncture and a right shoulder MRI scan.
Dr. Masem, in May 30, 2017 progress notes, reiterated examination findings, diagnoses,
and conclusions from his prior reports. In a May 30, 2017 note, he wrote that appellant had been
evaluated that day and was to remain off work until her next medical appointment in July.
By decision dated June 15, 2017, an OWCP hearing representative affirmed the denial of
appellant’s claim for wage-loss compensation due to disability from work commencing
August 21, 2016.

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LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
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 establishing that he or she was disabled from work as a
result of the accepted employment injury.6 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.7
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he or she can perform the light-duty position, the employee has the burden of proof
to establish total disability by the weight of the reliable, probative, and substantial evidence and
show that he or she cannot perform such light duty. As part of this burden, the employee must
show either a change in the nature and extent of the injury-related condition or a change in the
nature and extent of the light-duty requirements.8 To establish a change in the nature and extent
of the injury-related condition there must be probative medical evidence of record. The evidence
must include a medical opinion, based on a complete and accurate factual and medical history, and
supported by sound medical reasoning, that the disabling condition is causally related to
employment factors.9
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 their disability and
entitlement to compensation.10
ANALYSIS
The Board finds that the medical evidence of record is insufficient to establish total
disability commencing August 21, 2016, causally related to the accepted March 15, 2016
employment injury.
The record reflects that Dr. Swartz, an OWCP-referral physician, found in his June 30,
2016 report that appellant was capable of performing her usual work duties with a restriction of no
4

Supra note 1.

5

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
6

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

7

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

8

N.W., Docket No. 17-1415 (issued November 7, 2017).

9

Maurissa Mack, 50 ECAB 498 (1999).

10

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

6

more than four hours of overhead reaching with her right shoulder. Appellant had returned to
light-duty work on June 22, 2016.
The record contains a number of progress notes and reports from Dr. Mehta who diagnosed
right shoulder impingement syndrome, right carpal tunnel syndrome, possible right neck
radiculopathy, and right neck pain. Dr. Mehta opined in reports dated August 24, 2016 that
appellant was capable of working full time with a restriction of no more than four hours of right
shoulder overhead use. This report is insufficient to support appellant’s claim as the record
substantiates that appellant was working light duty when she stopped work on August 21, 2016.
Dr. Mehta opined that appellant was capable of working with restrictions, she did not provide a
rationalized opinion that appellant could not perform her light-duty work.11 In a September 21,
2016 work status report, she opined that appellant was disabled from work until September 26,
2016 when she could resume work with restrictions. On October 12, 2016 Dr. Mehta indicated
that appellant could return to work with restrictions that day. However, she offered no specific
opinion as to the cause of appellant’s disability from work.12 In a progress note dated October 12,
2016, Dr. Mehta opined that appellant would be off work for two to three months following
shoulder surgery. However, this referred to future disability based on surgery, which was not
approved by OWCP or performed. For the above reasons, the reports from Dr. Mehta are
insufficient to support appellant’s claim.
Similarly, the evidence from Dr. Wilson is insufficient to support appellant’s claim.
Dr. Wilson, in August 24 and 26, 2016 work status reports, opined that appellant was capable of
working six hours per day. She did not, however, provide any explanation as to whether
appellant’s condition had worsened, such that she could not perform her light-duty work
assignment.13
Appellant also submitted a number of reports covering the period November 28, 2016 to
May 30, 2017 from Dr. Masem who diagnosed right rotator cuff tendinitis and right cubital tunnel
syndrome. Dr. Masem opined that appellant was disabled from work until she had right shoulder
surgery and recovered from the surgery. He also noted that appellant’s pain had worsened. Pain,
however, is a symptom and not a compensable medical diagnosis.14 Dr. Masem provided no
supporting rationale explaining how appellant was unable to perform her usual work duties due to
a worsening of the accepted March 15, 2016 work injury, beyond noting that she required surgery
and could not work.15 The Board has held that medical opinions without any supporting rationale

11

Supra note 9.

12

See F.T., Docket No. 09-0919 (issued December 7, 2009) (medical opinions not fortified by rationale are of
diminished probative value); Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements
merely asserting causal relationship generally do not discharge a claimant’s burden of proof). See also K.W., 59
ECAB 271 (2007) (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).
13

Supra note 9.

14

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

15

Supra note 10.

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or explanation are of little probative value.16 For these reasons, Dr. Masem’s reports are
insufficient to establish that appellant was totally disabled commencing August 21, 2016 causally
related to the accepted March 15, 2016 employment injury.
The record contains disability notes and report from Dr. Hicks. Dr. Hicks indicated that
appellant had been under her care from August 19 to September 7, 2016 and could resume work
on September 8, 2016. She did not, however, provide an opinion on causal relationship or a
diagnosis and, thus, these notes are of little probative value.17 In a September 7, 2016 disability
note, Dr. Hicks released appellant to return to work on October 5, 2016 while in a September 26,
2016 report she attributed appellant’s disability to an aggravation of right shoulder conditions. She
attributed appellant’s disability to her right arm tendinitis without any supporting rationale
explaining objective findings. The Board has held that medical opinions which contain no
rationale or explanation are of little probative value.18 For these reasons, Dr. Hicks’ notes are
insufficient to support appellant’s claim.
Appellant also submitted an October 18, 2016 emergency room report from Dr. Barber
diagnosing chronic neck/right shoulder pain and a March 15, 2017 report by Dr. Chan. Neither
Dr. Chan nor Dr. Barber offered any opinion regarding disability. Medical evidence must,
however, directly address specific periods of disability.19 Dr. Barber and Mr. Hinrichsen only
noted that appellant has had unrelenting pain since her March 2016 employment injury. As noted
above, pain is a symptom and not a compensable medical diagnosis.20 Dr. Chan opined that
appellant’s condition had worsened without any supporting rationale or explanation. As such these
opinions are of limited probative value.21
The remaining medical evidence of record is of limited probative value. The diagnostic
tests offered no opinion as to how the accepted March 15, 2016 injury caused any disability. The
Board has found that diagnostic tests are therefore of limited probative value.22
OWCP also received reports from a nurse practitioner. However, under FECA, the reports
of a nonphysician, including nurse practitioners, do not constitute probative medical evidence.23

16

Supra note 13.

17

See A.K., Docket No. 16-1133 (issued December19, 2016); T.O., Docket No. 16-0423 (issued June 20, 2016).

18

Supra note 17.

19

Supra note 11.

20

Supra note 15.

21

Id.

22

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

23

5 U.S.C. § 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.404; C.P., Docket No. 17-0042 (issued December 27, 2016); Roy L.
Humphrey, 57 ECAB 238 (2005); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

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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 total disability from work commencing
August 21, 2016 due to the accepted March 15, 2016 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated June 15, 2017 is affirmed.
Issued: April 10, 2018
Washington, DC

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

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

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

9