D.F. and U.S. Postal Service, Bedford Park Post Office (Board decision, February 20, 2025)

ECAB final decision. The Board affirmed denial of wage-loss compensation for a specific period after an accepted shoulder injury. 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 delivery worker had an accepted right rotator cuff tear and sought compensation for time off from November 2022 through early January 2023. The Board found that a later physician note discussed lifting restrictions but did not identify the specific dates of disability claimed. The remaining evidence did not establish work disability throughout the requested period. It affirmed OWCP’s denial.

Decision snapshot

• Authority: FECA; 5 U.S.C. § 8101.
• Outcome: Wage-loss compensation for the claimed period denied.
• Key point: The medical evidence did not address the dates for which disability compensation was requested.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.F., Appellant
)
)
and ) Docket No. 25-0218
)
Issued: February 20, 2025
U.S. POSTAL SERVICE, BEDFORD PARK )
POST OFFICE, Bedford Park, IL, Employer )
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
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 January 6, 2025, appellant, through counsel, filed a timely appeal from a November 26, 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.

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 has met her burden of proof to establish disability from work for the period November 17, 2022 through January 3, 2023 causally related to her accepted August 12, 2022 employment injury.

FACTUAL HISTORY

This case has previously been before the Board. 3 The facts and circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On November 28, 2022, appellant, then a 55-year-old rural delivery specialist, filed a traumatic injury claim (Form CA-1) alleging that on August 12, 2022 she sustained a supraspinatus tear of the right shoulder when transferring a parcel from the back to the front of the truck while in the performance of duty. The employing establishment reported that appellant stopped work on August 12, 2022, and returned to full-time, full-duty work on August 23, 2022. Appellant stopped work again on November 17, 2022. By decision dated May 31, 2023, OWCP accepted the claim for full-thickness right rotator cuff tear.

A November 6, 2022 right shoulder magnetic resonance imaging (MRI) scan demonstrated a full-thickness tear of the distal supraspinatus tendon in the background of supraspinatus tendinosis; moderate acromioclavicular degeneration; and small glenohumeral joint effusion, with fluid throughout the subacromial subdeltoid bursa.

In November 16 and 21, 2022 notes, Jared W. Schiefer, a physician assistant, indicated that he was referring appellant to an orthopedic surgeon for treatment of her supraspinatus tear of the right shoulder.

On January 4, 2023, appellant was treated by Dr. William C. Kostman, a Board-certified orthopedic surgeon. Dr. Kostman recounted appellant’s history of injury at work while lifting a heavy package. Following review of appellant’s right shoulder x-ray and November 6, 2022 MRI scan, he diagnosed right shoulder full-thickness rotator cuff tear. On March 6, 2023, Dr. Kostman performed a right shoulder arthroscopy with subacromial decompression and arthroscopic rotator cuff repair.

On June 12, 2023, appellant filed a claim for compensation (Form CA-7) for disability from work for the period November 17, 2022 through June 11, 2023.

In a development letter dated June 15, 2023, OWCP noted that the employing establishment was unable to certify that appellant was in a leave without pay (LWOP) status for the period November 17, 2022 through June 11, 2023. It indicated that she would be paid wage-

3
Docket No. 24-0623 (issued July 26, 2024).

2 loss compensation for the period February 7 through June 2, 2023.4 OWCP informed appellant of the deficiencies in her claim for compensation for the period November 17, 2022 through February 6, 2023. It advised her of the type of medical evidence required to show how her condition worsened such that she was no longer able to perform the duties of her position when she stopped work from November 17, 2022 through February 6, 2023 and afforded her 30 days to submit the requested evidence. No evidence relevant to the claim was received. 5

By decision dated July 18, 2023, OWCP denied appellant’s claim for wage-loss compensation, finding that the medical evidence of record was insufficient to establish disability from work for the period November 17, 2022 through February 6, 2023.6

On July 26, 2023, appellant, through counsel, requested a hearing before a representative of OWCP’s Branch of Hearings and Review. The hearing was held telephonically on November 9, 2023. During the hearing, appellant’s counsel agreed there was no medical evidence from a qualified physician to establish that appellant was totally disabled from November 17, 2022 through January 4, 2023.7

By decision dated January 18, 2024, OWCP’s hearing representative modified the July 18, 2023 decision to reflect November 17, 2022 through January 3, 2023 as the period of disability and found that the evidence was insufficient to support total disability. The hearing representative found that OWCP had paid the other claimed disability after that date through February 6, 2023.

Appellant appealed to the Board. By decision dated July 26, 2024, the Board affirmed the January 18, 2024 decision. 8 The Board found that the medical evidence was insufficient to establish disability from work for the period November 17, 2022 through January 3, 2023 causally related to the accepted August 12, 2022 employment injury.

In a December 13, 2023 note, Dr. Christopher Schenewerk, a Board-certified family practitioner, noted that appellant was seen in his clinic on November 16, 2022 for a torn rotator cuff of the right shoulder. He provided right shoulder restrictions of no lifting over three pounds prior to surgery scheduled for March 6, 2023.

In a statement dated February 20, 2024, appellant asserted that the employing establishment had no available light-duty work within Dr. Schenewerk’s restrictions during the claimed period of disability.

4
On June 15, 2023, OWCP processed a payment in the amount of $15,167.38 for wage-loss compensation for the period February 7 through June 2, 2023.
5
OWCP received physical therapy notes dated July 6, 7, 10, and 12, 2023.
6
OWCP paid a ppellant wage-loss compensation for the period February 7 through June 30, 2023.
7
On July 31, 2023, OWCP paid the 40 hours claimed for LWOP from January 7 to 13, 2023 and the 48 hours claimed from January 28 to February 4, 2023. On December 19, 2023, it also paid wage-loss compensation from January 14 to 27, 2023. 8 Supra note 3.

3
On November 13, 2024, appellant, through counsel, requested reconsideration .

By decision dated November 26, 2024, OWCP denied modification of its January 18, 2024 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA 9 has the burden of proof to establish the essential elements of their claim, including that any disability or specific condition for which compensation is claimed is causally related to the employment injury. 10 For each period of disability claimed, the employee has the burden of proof to establish that they were disabled from work as a result of the accepted employment injury. 11 Whether a particular injury causes an employee to be disabled from employment and the duration of that disability are medical issues, which must be proven by a preponderance of the reliable, probative, and substantial medical evidence.12 Findings on examination are generally needed to support a physician ’s opinion that an employee is disabled from work. 13

The term “disability” is defined as the incapacity, because of an employment injury, to earn the wages the employee was receiving at the time of the injury. 14 Disability is, thus, not synonymous with physical impairment, which may or may not result in an incapacity to earn wages.15 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. 16

The Board will not require OWCP to pay compensation for disability in the absence of any medical evidence 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. 17

9
Supra note 2.
10
See S.F., Docket No. 20-0347 (issued March 31, 2023); M.C., Docket No. 18-0919 (issued October 18, 2018);
Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 11 S.B., Docket No. 23-0999 (issued March 28, 2024); William A. Archer, 55 ECAB 674 (2004).
12
V.H., Docket No. 18-1282 (issued April 2, 2019); Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, id.
13
G.P., Docket No. 23-1133 (issued March 19, 2024); Dean E. Pierce, 40 ECAB 1249 (1989).
14
20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB 397 (1999).
15
G.T., Docket No. 18-1369 (issued March 13, 2019); Robert L. Kaaumoana, 54 ECAB 150 (2002).
16
See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).
17
See C.S., Docket No. 17-1686 (issued February 5, 2019); B.K., Docket No. 18-0386 (issued September 14, 2018); Amelia S. Jefferson, supra note 12; Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

4
ANALYSIS

The Board finds that appellant has not met her burden of proof to establish disability from work for the period November 17, 2022 through January 3, 2023 causally related to her accepted August 12, 2022 employment injury.

Preliminarily, the Board notes that it is unnecessary to consider the evidence appellant submitted prior to the issuance of the January 18, 2024 decision because the Board considered that evidence its July 26, 2024 decision. Findings made in prior Board decisions are res judicata absent any further review by OWCP under Section 8128 of FECA. 18

Following OWCP’s January 18, 2024 decision, appellant submitted a December 13, 2023 note from Dr. Schenewerk where he related that he had previously provided work restrictions of no lifting over three pounds with her right shoulder preceding her March 6, 2023 surgery. However, he did not provide specific dates of appellant’s claimed disability. As noted, the Board will not require OWCP to pay compensation for disability in the absence of any medical evidence addressing the specific dates of disability for which compensation is claimed. 19

As the medical evidence of record is insufficient to establish disability from work for the period November 17, 2022 through January 3, 2023 causally related to the accepted August 12, 2022 employment injury, the Board finds that appellant has not met her 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 that appellant has not met her burden of proof to establish disability from work for the period November 17, 2022 through January 3, 2023 causally related to her accepted August 12, 2022 employment injury.

18
M.V., Docket No. 24-0092 (issued March 28, 2024); R.P., Docket No. 23-0638 (issued November 30, 2023);
A.D., Docket No. 20-0553 (issued April 19, 2021); M.D., Docket No. 19-0510 (issued August 6, 2019); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998). 19 Id.; see also supra note 17.

5
ORDER

IT IS HEREBY ORDERED THAT the November 26, 2024 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 20, 2025
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

6