United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.E., Appellant 

and 

DEPARTMENT OF THE NAVY, U.S. NAVAL 

ACADEMY, Annapolis, MD, Employer 

__________________________________________ 

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Docket No. 13-2104 

Issued: March 7, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On September 12, 2013 appellant filed a timely appeal from an April 1, 2013 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 met her burden of proof to establish that she sustained a 

recurrence of disability on September 5, 2009 caused by the accepted right wrist fracture of 

December 5, 2000. 

On appeal appellant asserts that she is entitled to leave buyback for periods of leave used 

following the claimed September 5, 2009 recurrence. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On December 5, 2000 appellant, then a 44-year-old administrative support assistant, 

fractured her right wrist when she fell down steps at work. On December 12, 2000 Dr. Bryan R. 

Herron, a Board-certified orthopedic surgeon, performed an open reduction internal fixation of a 

distal radius fracture on the right. Plates with screws were inserted intraoperatively. Appellant 

returned to full-time work on January 22, 2001 with a lifting restriction of 10 pounds. OWCP 

thereafter closed her case.2 Appellant changed employment to a different federal agency. 

On September 14, 2009 appellant notified OWCP that she needed emergency surgery to 

remove the plates in her wrist related to the accepted claim. OWCP advised her to submit a 

request for surgery and to file a recurrence of medical condition claim. 

Appellant submitted a September 8, 2009 report from Lisa Knisley, a physician’s 

assistant with Chesapeake Orthopedics and Sports Medicine. She provided a history that, on 

September 5, 2009, while lifting a heavy bag of dog food, appellant felt immediate pain in the 

back of her right hand and her index finger went numb. Since that time, appellant had been 

unable to extend her right index finger. Ms. Knisley noted that appellant had previous wrist 

surgery and that an x-ray demonstrated a well-healed fracture and hardware in good position. 

She diagnosed tenosynovitis and advised that appellant had an acute rupture of the extensor 

tendon of her index finger. Ms. Knisley recommended surgical repair with removal of the 

hardware. 

On October 2, 2009 appellant filed a recurrence of disability claim as of 

September 5, 2009. She stopped work on September 17, 2009 and noted that she was unable to 

use her right hand because she had torn two tendons.3

 By letter dated March 28, 2010, OWCP 

advised appellant that the evidence submitted was insufficient to establish her claim. It 

requested a statement describing her work activities since her return to work and explain why she 

was incapable of work following the claimed recurrence. Appellant was also asked to provide 

medical records since the 2000 employment injury and to submit a narrative medical report, 

including a physician’s opinion regarding the causal relationship between her inability to work 

and the accepted right wrist condition. The development letter was returned to OWCP, which 

asked her by telephone to submit a change-of-address in writing. 

Appellant submitted an April 28, 2010 letter addressed to Senator Barbara Mikulski.4

 

She had surgery on September 17, 2009 to remove hardware and took time off from work for 

physical therapy and would perhaps require further surgery. In an undated statement received by 

OWCP on July 21, 2010, appellant indicated that she had missed time from work and used 

advanced sick leave. She stated that she had constant pain in her right hand and could not work 

at the computer on some days due to hand pain. 

 2

 The record indicates that appellant received a schedule award in 2002. The award decision is not found in the 

record before the Board. 

3

 Only the first page of the CA-2a claim form is found in the record before the Board. 

4

 The record does not contain correspondence from Senator Mikulski to OWCP. 
3

In a May 19, 2009 letter, Dr. Terrence M. O’Donovan, a Board-certified orthopedic 

surgeon, advised that appellant had been followed by his practice for some time. He noted a 

history that she had an open reduction internal fixation of the right distal radius in 

December 2000 and did well until around September 2009 when she had an acute rupture of the 

extensor tendon in her right index finger “from the hardware that had been placed back in 2000.” 

Dr. O’Donovan advised that appellant had the tendon surgically repaired, which required a graft. 

He noted that she required time off from work for surgery and rehabilitation and could require 

further surgery. 

On May 26, 2010 OWCP sent appellant a second development letter, to a new address. 

The letter indicated that a medical report mentioned that she injured her hand on September 5, 

2009 when she was lifting a heavy bag of dog food. OWCP asked appellant to clarify what 

happened on that day and to indicate whether she had sustained additional upper extremity 

injuries. Appellant was asked whether the injury occurred at home or at work. OWCP also 

requested that her attending physician provide further explanation regarding the cause of the 

September 5, 2009 problems with her right hand and right index finger, including whether they 

were caused by or related to the accepted December 5, 2000 employment injury or the surgery of 

December 12, 2000. 

In a June 9, 2010 statement, appellant indicated that she saw Ms. Knisley and that on that 

day Dr. O’Donovan told her that the plate had slipped and torn the tendon in her right index 

finger and that she needed surgery. She missed work due to the surgery and subsequent 

treatment and therapy. 

In a June 14, 2010 report, Dr. O’Donovan stated that appellant’s right index finger tendon 

rupture was caused by a weakening of the tendon due to movement over the hardware placed 

during the 2000 surgery. On September 28, 2010 he noted appellant’s complaint of continued 

dorsal pain and slight extensor lag. Dr. O’Donovan diagnosed sprain of metacarpophalangeal 

joint and tenosynovitis and noted that in September 2009 appellant had a tendon repair with 

graft. He advised that she had normal tendon function and distal sensation with some extensor 

lag but full range of motion and excellent range of motion at the wrist. 

On August 23, 2011 an OWCP claims examiner indicated that the case was open for 

medical care. On December 13, 2011 appellant filed a claim for leave buyback beginning 

September 14, 2009. On March 14, 2011 she filed a CA-7 claim for compensation for the period 

September 14, 2009 to February 23, 2011 and for a schedule award. On August 14, 2012 

appellant filed a second leave buyback claim. 

By decision dated April 1, 2013, OWCP found that appellant did not establish a 

recurrence of disability on September 5, 2009. Appellant did not adequately respond to the 

request for a detailed description of the claimed September 5, 2009 event or submit a rationalized 

medical report from her physician addressing how her right hand condition on September 5, 

2009 was causally related to the December 12, 2000 employment injury. 
4

LEGAL PRECEDENT 

A recurrence of disability means “an inability to work after an employee has returned to 

work, caused by a spontaneous change in a medical condition which had resulted from a 

previous injury or illness without an intervening injury or new exposure to the work environment 

that caused the illness.”5

 An individual person who claims a recurrence of disability due to an 

accepted employment-related injury has the burden of establishing by the weight of the substantial, 

reliable, and probative evidence that the disability for which he or she claims compensation is 

causally related to the accepted injury. This burden of proof requires that an employee furnish 

medical evidence from a physician who, on the basis of a complete and accurate factual and 

medical history, concludes that the disabling condition is causally related to the employment injury 

and supports that conclusion with sound medical reasoning.6

 Where no such rationale is present, 

medical evidence is of diminished probative value.7

 In discussing the range of compensable consequences, once the primary injury is causally 

connected with the employment, Larson notes that, when the question is whether compensability 

should be extended to a subsequent injury or aggravation related in some way to the primary 

injury, the rules that come into play are essentially based upon the concepts of direct and natural 

results and of claimant’s own conduct as an independent intervening cause. The basic rule is that 

a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is 

compensable if it is the direct and natural result of a compensable primary injury.8

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. Disability is thus 

not synonymous with physical impairment, which may or may not result in an incapacity to earn 

wages. 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.9

 Furthermore, whether a particular 

injury causes an employee to be disabled for employment and the duration of that disability are 

medical issues which must be proved by a preponderance of the reliable, probative and 

substantial medical evidence.10

In situations where compensation is claimed for periods when leave was used, OWCP has 

the authority to determine whether the employee was disabled during the period for which 

compensation is claimed. It determines whether the medical evidence establishes that an 

employee is disabled by an employment-related condition during the period claimed for leave 

 5

 20 C.F.R. § 10.5(x); R.S., 58 ECAB 362 (2007). 

6

 S.S., 59 ECAB 315 (2008). 

7

 See Ronald C. Hand, 49 ECAB 113 (1997). 

8

 Larson, The Law of Workers’ Compensation § 1300; see Charles W. Downey, 54 ECAB 421 (2003). 

9

 20 C.F.R. § 10.5(f); Cheryl Decavitch, 50 ECAB 397 (1999). 

10 Fereidoon Kharabi, 52 ECAB 291 (2001). 
5

buyback, after which the employing establishment will determine whether it will allow the 

employee to buy back the leave used.11

ANALYSIS 

OWCP accepted that on December 5, 2000 appellant sustained an employment-related 

right wrist fracture for which she had surgery with hardware placement on December 12, 2000. 

On October 2, 2009 appellant filed a recurrence of disability claim as of September 5, 2009. The 

Board finds that she has not submitted sufficient factual or medical evidence to support her 

recurrence claim. Appellant also filed leave buyback claims for periods when she took leave 

after the 2009 injury. 

A recurrence of disability means “an inability to work after an employee has returned to 

work, caused by a spontaneous change in a medical condition which had resulted from a 

previous injury or illness without an intervening injury or new exposure to the work environment 

that caused the illness.”12 The Board notes that the record establishes an intervening injury. In 

the initial treatment note dated September 8, 2009, Ms. Knisley, a physician’s assistant, listed a 

history that on September 5, 2009 appellant was lifting a heavy bag of dog food when she felt 

immediate pain in the back of her hand and her index finger went numb. In a May 26, 2010 

development letter, OWCP specifically asked appellant to clarify what happened on 

September 5, 2009, including whether the event happened at work. Although appellant 

submitted several statements, she did not further address the incident of September 5, 2009. This 

casts doubt as to whether the September 5, 2009 incident was causally related to the December 5, 

2000 employment injury. 

OWCP also requested that appellant have her physician explain how the September 5, 

2009 tendon rupture was caused by or related to the December 5, 2000 injury or surgery of 

December 12, 2000. If the work-connected character of any condition is established, any 

subsequent progression or aggravation of an employment injury remains compensable so long as 

the worsening is not shown to have been produced by an independent nonindustrial cause.13

Dr. O’Donovan, the attending orthopedist, submitted brief reports stating that appellant 

had an acute rupture of the extensor tendon in her right index finger from the hardware that was 

placed there in 2000. The rupture was caused by weakening of the tendon due to movement over 

the hardware. Dr. O’Donovan did not adequately explain the mechanism of the September 5, 

2009 incident or whether the weakening he described occurred acutely due to the incident that 

day by normal wear and tear, or whether it represented a spontaneous change in the work-related 

condition due to appellant’s current job duties. The record indicates that Dr. O’Donovan 

repaired the tendon surgically, but the surgical report is not of record. Based on the medical 

evidence of record, the Board finds that he did not sufficiently address causal relation. 

 11 M.C., Docket No. 10-1196 (issued March 4, 2011). 

12 20 C.F.R. § 10.5(x); R.S., 58 ECAB 362 (2007). 

13 See J.G., Docket No. 13-965 (issued December 11, 2013). 
6

An individual person who claims a recurrence of disability due to an accepted 

employment-related injury has the burden of establishing by the weight of the substantial, reliable, 

and probative evidence that the disability for which he or she claims compensation is causally 

related to the accepted injury.14 Appellant did not submit sufficient evidence to show that the 

claimed recurrence and disability were causally related to the December 2000 employment 

injury.15

As to appellant’s argument that she is entitled to leave buyback, in a typical leave 

buyback case, an injured employee uses sick or annual leave to prevent wage loss after an 

employment injury. In situations where compensation is claimed for periods when leave was 

used, OWCP has the authority to determine whether the employee was disabled during the 

period for which compensation is claimed based on the medical evidence that an employee was 

disabled by an employment-related condition during the period claimed for leave buyback. 

Thereafter, the employing establishment will determine whether it will allow the employee to 

buy back the leave used.16 In this case, the issue of causal relationship is not established. 

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 did not meet her burden of proof to establish that she 

sustained a recurrence of disability causally related to the accepted December 5, 2000 

employment injury. 

 14 Ronald C. Hand, supra note 7. 

15 Id. 

16 20 C.F.R. § 10.425 (2011); see R.P., Docket No. 12-1455 (issued January 10, 2013). 
7

ORDER 

IT IS HEREBY ORDERED THAT the April 1, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 7, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board