T.B. and Department of Defense, Defense Commissary Agency, Fort Hood Commissary (Board decision, March 8, 2024)

ECAB remand decision. The Board set aside OWCP’s denial and ordered further medical development. The underlying disability claim remains unresolved. 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).

Plain-English summary

A commissary employee sought disability compensation beginning May 7, 2023 after an accepted injury. Her physician described functional limits and a period of incapacity after she returned to limited work. The Board found that the opinion did not by itself prove disability but warranted further medical development. It set aside OWCP’s denial and ordered a specialist examination and new decision.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Disability denial set aside and remanded.
• Key point: The treating physician’s explanation required further medical review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.B., Appellant
)
)
and ) Docket No. 23-0988
) Issued: March 8, 2024
DEPARTMENT OF DEFENSE, DEFENSE
)
COMMISSARY AGENCY, FORT HOOD
)
COMMISSARY, Fort Hood, 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
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 19, 2023 appellant filed a timely appeal from a July 18, 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

ISSUE

The issue is whether appellant has met her burden of proof to establish disability from work commencing May 7, 2023, causally related to her accepted March 11, 2023 employment injury.

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the July 18, 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. FACTUAL HISTORY

On March 22, 2023 appellant, then a 54-year-old sales store clerical associate, filed a traumatic injury claim (Form CA-1) alleging that on March 11, 2023 she sustained injuries to her right knee, hips, and buttocks when she slipped and fell while in the performance of duty. She stopped work on March 22, 2023. On April 12, 2023 OWCP accepted the claim for contusion of tailbone.

In a May 12, 2023 duty status report (Form CA-17), Dr. Kyriakos Tsalamandris, Board- certified in emergency medicine, released appellant to part-time sedentary work with restrictions, working no more than four hours per day.

On May 16, 2023 appellant accepted an offer for a limited-duty modified assignment as a sales store clerk based on her physician’s May 12, 2023 work restrictions. She returned to light- duty work on May 16, 2023 and stopped work on May 17, 2023.

In a May 18, 2023 report, Dr. Tsalamandris reported that appellant presented for evaluation of her work-related tailbone, lower spine, and bilateral hip injuries sustained on March 11, 2023. He noted that she had returned to work for four hours per day, but was unable to sit or walk without severe pain, which disrupted her focus at work. Dr. Tsalamandris placed appellant’s return to work on hold as of May 16, 2023 due to increased pain levels. He explained that she was incapacitated as a result of the work-related injury and unable to return to work. Dr. Tsalamandris noted that appellant attempted a trial return with restrictions, but was unable to sit, walk, or focus due to pain. He concluded that her current functional status would not allow for work in any capacity, as her activities of daily living had been significantly impacted by the injury, resulting in total disability. Dr. Tsalamandris recommended physical therapy along with further evaluation and testing. He provided an accompanying Form CA-17 holding appellant off work due to the accepted March 11, 2023 employment injury.

On May 24, 2023 appellant filed a claim for compensation (Form CA-7) for disability from work during the period May 7 through 20, 2023. She continued to file CA-7 forms for additional periods of disability thereafter.

In a development letter dated May 30, 2023, OWCP informed appellant of the deficiencies of her claim for wage-loss compensation commencing May 17, 2023 when she stopped work. It advised her of the type of medical evidence needed and afforded her 30 days to respond.

In a June 16, 2023 report and Form CA-17, Dr. Tsalamandris explained that appellant was incapacitated as a result of her work-related injury and could not return to work due to pain. He recommended continued physical therapy and further evaluation to determine when she could return to limited-duty employment.

In a June 20, 2023 report, Dr. Tsalamandris reported that appellant was evaluated for a March 11, 2023 employment injury to the lower back, tailbone, and hips as a result of slipping on a wet floor while at work. He explained that he began treating her on March 22, 2023 and restricted her from working due to difficulty walking, lifting, carrying, pushing, and pulling. Dr. Tsalamandris reported that appellant’s work-related claim was accepted for contusion of the lower back and pelvis, while additional diagnoses of sprain of lumbar spine and bilateral hip sprain

2 were pending approval. He noted that she was performing physical therapy to assist with her symptoms while also taking medication for her pain. Dr. Tsalamandris reported that, following the employment injury, appellant remained off work through May 12, 2023 when she was released to work on a trial basis for four hours per day. Appellant presented for evaluation on May 18, 2023 due to an increase in symptoms and the inability to sit, walk, or focus on work, resulting in her off-work status and referral to pain management.

Dr. Tsalamandris discussed diagnostic studies and appellant’s history of injury and treatment. He opined that she was totally disabled from work commencing May 18, 2023, due to the accepted employment injury. Dr. Tsalamandris explained that, due to the residual effects of the accepted conditions, combined with appellant’s activities of daily living, she had experienced a period of incapacitation requiring reevaluation on follow-up appointments. He further opined that functional deficits on examination, impact on activities of daily living, decreased muscle strength, decreased range of motion, decreased overall function, and significant increase of pain caused incapacitation for the dates listed above. Dr. Tsalamandris concluded that appellant continued to suffer from her work-related conditions, which had degenerated and become more painful with continued work and activities of daily living.

By decision dated July 18, 2023, OWCP denied appellant’s claim for disability from work commencing May 17, 2023, finding that the medical evidence of record was insufficient to establish disability from work during the claimed period due to her accepted March 11, 2023 employment injury.

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 injury.3

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.4 Disability is thus not synonymous with physical impairment, which may or may not result in an incapacity to earn wages.5 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.6 When, however, the medical evidence establishes that the residuals or sequelae of an employment injury are such that, from a medical standpoint, they prevent the employee from continuing in his or her employment, he or she is entitled to compensation for loss of wages.7

3
S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009);
Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 4 20 C.F.R. § 10.5(f).
5
See L.W., Docket No. 17-1685 (issued October 9, 2018).
6
See K.H., Docket No. 19-1635 (issued March 5, 2020).
7
See D.R., Docket No. 18-0323 (issued October 2, 2018).

3
 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 the claimant, 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

For each period of disability claimed, the employee has the burden of proof to establish that he or she was disabled from work causally related to the accepted employment injury.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 this case is not in posture for decision.

In support of her claim for compensation, appellant submitted a series of reports and CA-17 forms by Dr. Tsalamandris dated May 18 through June 20, 2023. In a June 20, 2023 narrative report, Dr. Tsalamandris opined that appellant was totally disabled from work due to the March 11, 2023 employment injury following her return to limited-duty work on May 16, 2023. He opined that, due to the residual effects of the accepted employment-related conditions, combined with her activities of daily living, she had experienced a period of incapacitation requiring reevaluation on follow-up appointments. Dr. Tsalamandris explained that the functional deficits on examination, impact on activities of daily living, decreased muscle strength, decreased range of motion, decreased overall function, and significant increase of pain caused incapacitation for the dates listed above. He concluded, therefore, that appellant continued to suffer from her accepted employment-related conditions, which had degenerated and become more painful with continued work and activities of daily living.

The Board notes that proceedings under FECA are not adversarial in nature, and OWCP is not a disinterested arbiter.11 The Board finds that, while Dr. Tsalamandris’ opinion is insufficient to meet appellant’s burden of proof, it is sufficient to require further development.12

On remand, OWCP shall refer appellant to a specialist in the appropriate field of medicine, along with the case record, and a statement of accepted facts, for an examination and a rationalized medical opinion regarding whether she was disabled from work commencing May 7, 2023, causally related to her accepted March 11, 2023 employment injury. If the second opinion

8
S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).
9
See B.D., Docket No. 18-0426 (issued July 17, 2019); Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
10
Id.
11
See S.M., Docket No. 22-1209 (issued February 27, 2024); B.B., Docket No. 18-1321 (issued April 5, 2019).
12
See S.M., id.; R.N., Docket No. 21-0948 (issued August 18, 2022); C.M., Docket No. 17-1977 (issued January 29, 2019); John J. Carlone, 41 ECAB 354 (1989).

4 physician disagrees with the opinion of Dr. Tsalamandris, he or she must provide a fully- rationalized explanation as to why the accepted employment injury was insufficient to have caused appellant’s disability. After this and other such further development as OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the July 18, 2023 decision of the Office of Workers’ Compensation Programs is set aside. The case is remanded for further proceedings consistent with this decision of the Board.

Issued: March 8, 2024
Washington, DC

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

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

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