M.J. and U.S. Postal Service (Board decision, September 6, 2024)

ECAB final decision. The Board affirmed OWCP's denial of the claimed wage-loss period. 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 postal vehicle operator sought disability compensation from June 7 through August 22, 2023 after an accepted rib contusion. His doctor kept him off work but did not explain how the accepted condition prevented him from working throughout that period. The Board found the medical evidence insufficient and affirmed OWCP's denial.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Disability compensation for June 7 through August 22, 2023 denied.
• Key point: Work-excuse notes did not explain disability from the accepted rib injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.J., Appellant
)
)
and ) Docket No. 24-0738
)
Issued: September 6, 2024
U.S. POSTAL SERVICE, MID-ISLAND
)
PROCESSING & DISTRIBUTION CENTER, )
Melville, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On July 1, 2024 appellant, through counsel, filed a timely appeal from a January 30, 2024 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this 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 5 U.S.C. § 8101 et seq.
3
The Board notes that, following the January 30, 2024 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 disability from work for the period June 7 through August 22, 2023, causally related to his accepted April 19, 2023 employment injury.

FACTUAL HISTORY

On April 20, 2023 appellant, then a 59-year-old motor vehicle operator, filed a traumatic injury claim (Form CA-1) alleging that on April 19, 2023 he sustained an injury to his abdominal wall below the ribcage when he crouched down to retrieve mail from the floor of his delivery truck while in the performance of duty. He stopped work on April 20, 2023 and returned to full-duty work on May 8, 2023.

In a June 12, 2023 report, Dr. Timur Yasin, a Board-certified physiatrist, recounted a history of injury. On examination, he observed severe spasm across the right intercostal region (mid ribs) with local twitch response, and painful thoracic rotation. Dr. Yasin diagnosed contusion of rib on right side, intercostal neuritis, and rib pain on right side. He prescribed physical therapy. 4 Dr. Yasin held appellant off work. He opined that appellant had sustained a “work-related right rib injury.”

In duty status reports (Form CA-17) dated June 12 and July 10, 2023, Dr. Yasin held appellant off work.

In reports dated August 2 and 7, 2023, Dr. Yasin observed continued severe spasm across the right intercostal region. He prescribed additional physical therapy and continued to hold appellant off work. Dr. Yasin opined that appellant had sustained a “work-related right rib injury.”

In an August 7, 2023 note, Dr. Yasin returned appellant to full-duty work effective August 23, 2023.

Appellant returned to full-duty work on August 23, 2023.

On November 1, 2023 OWCP accepted the claim for contusion of rib on right side.

On November 16, 2023 appellant filed a series of claims for compensation (Form CA-7) for total disability from work for the period June 7 through August 22, 2023.

In a development letter dated November 20, 2023, OWCP informed appellant of the deficiencies of his claim for wage-loss compensation. It advised him of the type of factual and medical evidence needed and afforded him 30 days to respond.

Thereafter, OWCP received a duplicate copy of Dr. Yasin’s August 7, 2023 report.

By decision dated January 30, 2024, OWCP denied appellant’s claim for compensation for disability from work for the period June 7 through August 22, 2023, finding that the medical

4
OWCP received physical therapy treatment notes dated June 22 through July 7, 2023.

2 evidence of record was insufficient to establish disability from work for the claimed period causally related to his accepted April 19, 2023 employment injury.

LEGAL PRECEDENT

An employee seeking benefits under FECA 5 has the burden of proof to establish the essential elements of his or her claim, 6 including that any disability or specific condition for which compensation is claimed is causally related to the employment injury. 7 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. 8 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. 9

Under FECA, the term disability means incapacity, because of an employment injury, to earn the wages that the employee was receiving at the time of injury. 10 Disability is thus not synonymous with physical impairment, which may or may not result in an incapacity to earn wages.11 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 the injury, has no disability as that term is used in FECA. 12 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. 13

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. 14

5
Supra note 2.
6
See L.S., Docket No. 18-0264 (issued January 28, 2020); B.O., Docket No. 19-0392 (issued July 12, 2019).
7
See S.F., Docket No. 20-0347 (issued March 31, 2023); 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). 8 T.W., Docket No. 19-1286 (issued January 13, 2020).
9
S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).
10
20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).
11
See L.W., Docket No. 17-1685 (issued October 9, 2018).
12
See K.H., Docket No. 19-1635 (issued March 5, 2020).
13
See D.B., Docket No. 24-0552 (issued July 31, 2024); D.R., Docket No. 18-0232 (issued October 2, 2018).
14
See S.C., Docket No. 24-0202 (issued April 26, 2024); B.P., Docket No. 23-0909 (issued December 27, 2023);
D.W., Docket No. 20-1363 (issued September 14, 2021); Y.S., Docket No. 19-1572 (issued March 12, 2020).

3
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

ANALYSIS

The Board finds appellant has not met his burden of proof to establish disability from work for the period June 7 through August 22, 2023, causally related to his accepted April 19, 2023 employment injury.

OWCP accepted appellant’s claim for contusion of rib on right side. Dr. Yasin opined on June 12, 2023 that appellant was disabled from work and held him off work. In reports dated July 7 through August 7, 2023, he continued to hold appellant off work through August 22, 2023. However, these reports did not address how or why appellant was disabled from work for the claimed period due to the accepted employment condition of contusion of rib on right side. The Board has held that medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is of no probative value on the issue of causal relationship.16 Dr. Yasin’s reports are, therefore, insufficient to establish appellant’s disability claim.

As the medical evidence of record is insufficient to establish disability from work for the period June 7 through August 22, 2023, causally related to the accepted employment injury, the Board finds that appellant has not met his burden of proof.

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 appellant has not met his burden of proof to establish disability from work for the period June 7 through August 22, 2023, causally related to his accepted April 19, 2023 employment injury.

15
See M.J., Docket No. 19-1287 (issued January 13, 2020); William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, supra note 9.
16
P.L., Docket No. 22-0337 (issued September 9, 2022); K.F., Docket No.19-1846 (issued November 3, 2020);
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

4
ORDER

IT IS HEREBY ORDERED THAT the January 30, 2024 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: September 6, 2024
Washington, DC

Alec J. Koromilas, 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

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