J.R. and U.S. Postal Service, Post Office, Federal Way, WA (Board decision, June 10, 2015)

ECAB final decision. The Board reversed OWCP’s November 21, 2014 denial and found J.R. entitled to wage loss compensation for October 1 through 3, 2014. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

J.R., a postal letter carrier with accepted hand conditions, had surgery for a trigger finger. OWCP paid some time off but denied compensation for October 1 through 3, 2014, believing her surgeon had released her to work on October 1. The Board found that one scanned copy of the surgeon’s form made October 7 look like October 1. Another copy and the appointment records showed that she was not released until after her October 7 postoperative examination. The Board reversed the denial and found her entitled to compensation for the three disputed days.

Decision snapshot

• Authority: FECA wage loss compensation, 5 U.S.C. § 8101 et seq.; medical evidence of the period of disability.
• Outcome: November 21, 2014 denial reversed; entitlement to compensation for October 1 through 3, 2014 established.
• Key point: A clearer copy and the appointment records resolved the date ambiguity in the surgeon’s work release.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.R., Appellant
)
)
and ) Docket No. 15-513
) Issued: June 10, 2015
U.S. POSTAL SERVICE, POST OFFICE,
)
Federal Way, WA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On January 5, 2015 appellant filed a timely appeal from a November 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 appellant has established entitlement for wage-loss compensation for the period October 1 through 3, 2014 due to her accepted occupational disease injury.

FACTUAL HISTORY

This case was previously before the Board. By decision dated May 12, 2014, the Board remanded a July 3, 2013 OWCP merit decision which denied appellant’s claim for

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5 U.S.C. § 8101 et seq. reimbursement of travel expenses for medical treatment during the dates of July 8 to 9, 2013.2 OWCP had utilized an outdated travel regulation and the case was therefore remanded for consideration under the new regulation. The Board further set aside the October 13, 2013 nonmerit decision denying appellant’s request for reconsideration as moot. The findings of fact and conclusions of law from the prior decision are hereby incorporated by reference.

On July 11, 2011 appellant, then a 51-year-old letter carrier, filed an occupational disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome (CTS) and osteoarthritis in the wrist and fingers as a result of her federal employment duties. OWCP accepted the claim for bilateral hand osteoarthritis and bilateral trigger finger. Appellant sought treatment with Dr. Kurt Anderson, a Board-certified hand and orthopedic surgeon. She received wage-loss compensation for intermittent periods of disability beginning May 30, 2012.

On October 3, 2014 appellant filed a claim for compensation (Form CA-7) covering 80 hours of leave without pay used during the period September 20 to October 3, 2014. A time analysis form was included to itemize her claim for compensation.

On September 24, 2014 Dr. Anderson performed revision of trigger finger, left hand index finger. OWCP authorized the surgery.

In a September 24, 2014 Olympia Orthopedics Surgery Center Postoperative Instructions report, appellant was advised that her next appointment with Dr. Anderson was scheduled for October 7, 2014 at 9:15 a.m.

In a September 29, 2014 Form CA-17, Dr. Anderson restricted appellant from work due to trigger finger. The date of examination was identified as September 24, 2014 and the date of next appointment was noted as October 7, 2014.

In an October 9, 2014 narrative statement, appellant reported that she was off work beginning September 23 to travel to Olympia, Washington for trigger finger release surgery on September 24, 2014. She recuperated from her surgery at her home in Walla Walla, Washington and then returned to Olympia on October 6, 2014 for an October 7, 2014 appointment to have her stitches removed, resuming work on October 9, 2014.

In a Form CA-17 clearly dated October 7, 2014, Dr. Anderson released appellant to full duty due to resolved trigger finger following his examination which has previously been noted to have occurred on October 7, 2014.3

2
Docket No. 14-150 (issued May 12, 2014). On remand, by decision dated August 14, 2014, OWCP approved reimbursement of travel expenses for medical treatment during the dates of July 8 to 9, 2013. 3 The record contains a Form CA-17 which appears to be dated October 1, 2014. However, upon inspection by the Board, this particular copy of the Form CA-17 was distorted and blurred in the bronzing process (scanning into digital format) so that the date could be read as October 1, 2014. The Board finds however that this Form CA-17 is actually dated October 7, 2014. The Board’s finding is based on another copy of the same document in the record which clearly is dated October 7, 2014, and is consistent with the other evidence of record including Dr. Anderson’s release of appellant to full duty due to resolved trigger finger upon his examination dated October 7, 2014.

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 By letter dated October 17, 2014, OWCP approved disability compensation for the period September 20 through 30, 2014 due to time off work for trigger finger release surgery. It relied upon the CA-17 which it read as being dated October 1, 2014 to find that Dr. Anderson had released appellant to full duty that date and therefore requested additional information with regard to her claim for compensation for the remaining period subsequent to October 1, 2014. OWCP provided her 30 days to submit the requested documentation.

On October 17, 2014 appellant filed a Form CA-7 claim for compensation for leave without pay (LWOP) used during the period October 4 through 8, 2014. Her Time Analysis Form (CA-7a) requested eight hours to cover LWOP used on October 4 due to “recuperation from surgery,” eight hours for a doctor’s appointment in Olympia, Washington on October 7, and eight hours for a doctor’s appointment in Walla Walla, Washington on October 8, 2014. On October 21, 2014 OWCP approved the 24 hours of disability compensation for the period October 4 through 8, 2014.

In an October 21, 2014 narrative statement, appellant stated that she was not released to work until October 7, 2014, the date of her scheduled follow-up appointment with Dr. Anderson to have her stitches removed.

In support of her claim, appellant resubmitted Dr. Anderson’s Form CA-17 and the September 24, 2014 Olympia Orthopedics Surgery Center Postoperative Instructions report which noted her next scheduled follow-up appointment as October 7, 2014. She also submitted an appointment reminder note from Dr. Anderson’s office informing her of the October 7, 2014 appointment.

By decision dated November 21, 2014, OWCP denied appellant’s claim for wage-loss compensation for the period October 1 through 3, 2014 finding that the medical evidence failed to establish that she was disabled for the specific period claimed because she was released by Dr. Anderson to full-duty work on October 1, 2014.4

LEGAL PRECEDENT

Under FECA,5 the term disability is defined as incapacity, because of employment injury, to earn the wages that the employee was receiving at the time of injury.6 Disability is not synonymous with a physical impairment which may or may not result in an incapacity to earn the wages. An employee who has a physical impairment causally related to a federal employment injury, but who nonetheless has the capacity to earn wages he or she was receiving at the time of injury has no disability as that term is used in FECA.7

4
OWCP informed appellant that her claim for compensation for the period September 20 through October 3, 2014 totaled 80 hours. It approved 56 hours of disability compensation for the period September 20 through 30, 2014. The remaining 24 hours for the period October 1 through 3, 2014 were denied. 5 5 U.S.C. §§ 8101-8193.
6
See Prince E. Wallace, 52 ECAB 357 (2001).
7
Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

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 Whether a particular injury causes an employee to be disabled and the duration of that disability are medical issues which must be proved by a preponderance of the reliable, probative, and substantial medical evidence.8 Findings on examination are generally needed to support a physician’s opinion that an employee is disabled for work. The Board will not require OWCP to pay compensation for disability without 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.9

ANALYSIS

OWCP accepted that appellant developed bilateral hand osteoarthritis and bilateral trigger finger as a result of her federal employment duties. It approved surgery for left trigger finger release which occurred on September 24, 2014. Appellant claimed 80 hours of LWOP for the period September 20 through October 3, 2014. OWCP approved 56 hours of disability compensation for the period September 20 through 30, 2014. By decision dated November 21, 2014, it denied disability compensation for the remaining 24 hours consisting of leave from October 1 through 3, 2014.

OWCP found that appellant was medically cleared to return to duty by Dr. Anderson on October 1 or 7, 2014. Dr. Anderson’s September 29, 2014 Form CA-17 restricted appellant from her work duties, noting the date of examination as September 24, 2014 and the date of next appointment as October 7, 2014. The record also contains a September 24, 2014 Olympia Orthopedics Surgery Center Postoperative Instructions report noting appellant’s next appointment was scheduled for October 7, 2014, as well as an appointment reminder note for the October 7, 2014 follow-up appointment with Dr. Anderson. There is no evidence of Dr. Anderson examining appellant on October 1, 2014 or having been asked to opine as to her work status on that date. Rather, the record establishes that appellant was not released to work until after her scheduled postoperative appointment on October 7, 2014. The Board finds that the Form CA-17 which OWCP read as being dated October 1, 2014, was in fact dated correctly as October 7, 2014 and was merely illegible on the one copy due to the bronzing process.

The Board also notes that, while OWCP denied wage-loss compensation for October 1 through 3, 2014, it approved eight hours of wage-loss compensation for October 4, 2014, which was noted on appellant’s Form CA-7a to be for “recuperation from surgery.”

Given the above evidence, the Board finds that Dr. Anderson did not release appellant to full duty until her postoperative examination on October 7, 2014. As such, appellant has established entitlement to disability compensation for the period October 1 to 3, 2014 as a result of her accepted occupational disease injury.10

8
See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).
9
Id.
10
F.J., Docket No. 10-1303 (issued April 22, 2011).

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 CONCLUSION

The Board finds that appellant is entitled to wage-loss compensation for the period October 1 through 3, 2014 as a result of her accepted occupational disease injury.

ORDER

IT IS HEREBY ORDERED THAT the November 21, 2014 decision of the Office of Workers’ Compensation Programs is reversed.

Issued: June 10, 2015
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

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