B.P. and Department of Veterans Affairs, Michael E. DeBakey VA Medical Center (Board decision, December 27, 2023)

ECAB final decision. The Board affirmed OWCP's denial of compensation for total disability from March 16 through April 23, 2020. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A VA pharmacist contracted COVID-19 and later sought leave buy back for 232 hours from March 16 through April 23, 2020. OWCP accepted the claim for COVID-19 and pneumonia due to SARS-associated coronavirus but denied compensation for the claimed period. The Board found that the doctor's note did not explain why the accepted conditions prevented the pharmacist from performing regular work duties. It also found that the evidence did not establish anxiety or post-traumatic stress disorder as consequences of the employment injury. The Board affirmed the denial.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 10.5(f), 10.605 through 10.607, 501.2(c)(1), 501.3.
• Outcome: OWCP's denial of total disability compensation affirmed.
• Key point: The medical evidence did not provide a reasoned explanation connecting the claimed disability period to the accepted employment injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.P., Appellant
)
)
and ) Docket No. 23-0909
) Issued: December 27, 2023
DEPARTMENT OF VETERANS AFFAIRS,
)
MICHAEL E. DEBAKEY VA MEDICAL
)
CENTER, Houston, TX, Employer
)
__________

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

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 21, 2023 appellant filed a timely appeal from a February 24, 2023 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.2

1
5 U.S.C. § 8101 et seq.
2
The Board notes that following the February 24, 2023 decision, appellant submitted additional evidence to OWCP. However, the Board’s Rules of Procedure provides: ”The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. ISSUE

The issue is whether appellant has met his burden of proof to establish total disability from work for the period March 16 through April 23, 2020 causally related to his accepted March 9, 2020 employment injury.

FACTUAL HISTORY

On April 28, 2020 appellant, then a 47-year-old pharmacist, filed a traumatic injury claim (Form CA-1) alleging that on March 9, 2020 he contracted COVID-19 and experienced chills, fever, headaches, and weakness while in the performance of duty. He did not stop work. OWCP accepted the claim for novel coronavirus (COVID-19) and subsequently expanded acceptance of the claim to include pneumonia due to severe acute respiratory syndrome (SARS)-associated coronavirus.

On April 8, 2022 appellant filed a claim for compensation (Form CA-7) for leave buy back (LBB) for the period March 16 through April 23, 2020. OWCP also received a time analysis form (Form CA-7a) dated October 7, 2020 claiming 232 hours of wage-loss compensation for the same period. In an LBB worksheet/certification and election (Form CA-7b) dated April 7, 2022, appellant claimed compensation to buy back 232 hours of leave for the same period.

In development letters dated October 13 and 18, 2022, OWCP informed appellant of the deficiencies of his claim for compensation and advised him of the type of medical evidence needed to establish disability during the period claimed. It afforded him 30 days to respond.

Thereafter, OWCP received a November 1, 2022 report from Dr. Harshidaben Chaudhari, a Board-certified family practitioner, excusing appellant from work for the period March 28 through April 23, 2020 and noting that he developed pneumonia due to COVID-19 infection. Dr. Chaudri related that after recovering, he continued to experience anxiousness due to the pandemic and due to his father’s death from COVID-19, which caused him to develop post- traumatic stress disorder (PTSD). She explained that she recommended that appellant refrain from work for the above period so that he could comply with COVID-19 protocols and recover from his personal loss.

By decision dated February 24, 2023, OWCP denied appellant’s claim for compensation for disability from work for the period March 16 through April 23, 2020, finding that the medical evidence of record was insufficient to establish disability from work for the claimed period causally related to his accepted March 9, 2020 employment injury.

LEGAL PRECEDENT

An employee seeking benefits under FECA 3 has the burden of proof to establish the essential elements of his or her claim. 4 Under FECA, the term disability means incapacity, because

3
Supra note 1.
4
See L.S., Docket No. 18-0264 (issued January 28, 2020); B.O., Docket No. 19-0392 (issued July 12, 2019).

2 of an employment injury, to earn the wages that the employee was receiving at the time of injury. 5 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.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

The medical evidence required to establish causal relationship between a claimed period of disability and an employment injury is rationalized medical opinion evidence. The opinion of the physician must be based on a complete factual and medical background of appellant, must be one of reasonable medical certainty, and must be supported by medical rationale explaining the nature of the relationship between the claimed disability and the accepted employment injury.8

The Board will not require OWCP to pay compensation for disability in the absence of medical evidence directly addressing the specific dates of disability for which compensation is claimed. To do so would essentially allow an employee to self -certify his or her disability and entitlement to compensation.9

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish total disability from work for the period March 16 through April 23, 2020 causally related to his accepted March 9, 2020 employment injury.

OWCP accepted appellant’s claim for novel coronavirus (COVID-19) and pneumonia due to SARS-associated coronavirus. In a November 1, 2022 report, Dr. Chaudhari excused appellant from work for the period March 28 through April 23, 2020 and noted that he had developed pneumonia due to COVID-19 infection. She explained that, after recovering, appellant experienced anxiousness due to the pandemic and due to his father’s death from COVID-19, which caused him to develop PTSD. Dr. Chaudhari recommended that he refrain from work for the above period so that he could comply with COVID-19 protocols and recover from his personal loss. This note did not explain, with rationale, how or why appellant was unable to perform his regular work duties during the claimed period of disability due to his accepted conditions of novel coronavirus (COVID-19) and pneumonia due to SARS-associated coronavirus. The Board has held that a report is of limited probative value regarding causal relationship if it does not contain medical rationale explaining how a given period of disability has an employment-related cause.10

5
20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).
6
T.W., Docket No. 19-1286 (issued January 13, 2020).
7
S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).
8
See D.W., Docket No. 20-1363 (issued September 14, 2021); Y.S., Docket No. 19-1572 (issued March 12, 2020).
9
See M.J., Docket No. 19-1287 (issued January 13, 2020); William A. Archer, 55 ECAB 674 (2004).
10
See S.S., Docket No. 21-0763 (issued November 12, 2021); A.G., Docket No. 21-0756 (issued October 18, 2021);
T.S., Docket No. 20-1229 (issued August 6, 2021).

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Appellant also has not submitted medical evidence sufficient to establish that the additional unaccepted conditions discussed by Dr. Chaudhari, including anxiety and PTSD, were a consequence of the March 9, 2020 employment injury. Therefore, Dr. Chaudhari’s report is insufficient to establish that appellant was disabled from work from during the claimed period due to his accepted employment injury. 11

As appellant has not submitted medical evidence sufficient to establish disability during the claimed period due to his accepted injury, the Board finds that he has not met his burden of proof.12

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish total disability from work for the period March 16 through April 23, 2020 causally related to his accepted March 9, 2020 employment injury.

11
Id.
12
K.A., Docket No. 17-1718 (issued February 12, 2018).

4
 ORDER

IT IS HEREBY ORDERED THAT the February 24, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: December 27, 2023
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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