United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.W., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Cincinnati, OH, 

Employer 

__________________________________________ 

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Docket No. 14-0919 

Issued: July 21, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 11, 2014 appellant, through counsel, timely appealed an October 28, 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 the claim.2

ISSUE 

The issue is whether appellant is entitled to wage-loss compensation for the period 

October 11, 2011 through February 24, 2012. 

 1

 5 U.S.C. §§ 8101-8193 (2006). 

2

 The record on appeal contains evidence received after OWCP issued its October 28, 2013 decision. The Board 

is precluded from considering evidence that was not in the case record at the time OWCP issued its final decision. 

20 C.F.R. § 501.2(c)(1) (2014). 
2

FACTUAL HISTORY 

Appellant, a 56-year-old clerk, has an accepted claim for left plantar nerve lesion, which 

arose on or about August 14, 2006.3

 OWCP authorized left foot surgery, which was performed 

on January 16, March 23, and April 7, 2007. Effective August 8, 2007, appellant returned to 

work in a part-time (four hours per day), limited-duty capacity. She increased to a six-hour 

workday in December 2007. In May 2009, appellant reverted to working four-hour days due to 

her left foot condition. On July 22, 2009 she stopped work entirely because of an unrelated 

lower back problem. OWCP subsequently accepted that appellant sustained injuries to her 

lumbar spine and bilateral upper extremities on or about October 28, 2009 (claim number 

xxxxxx607). There are numerous references in the record to appellant having received wageloss compensation under claim number xxxxxx607; however, that information is not 

independently verifiable because the record in claim number xxxxxx607 is not available for 

review by the Board. Under the current left foot injury (claim number xxxxxx634), OWCP paid 

wage-loss compensation -- four hours per day -- for the period January 1 through 

November 19, 2010.4

 

Dr. John Kelly, a Board-certified neurologist, provided a January 6, 2011 work capacity 

evaluation (Form OWCP-5c) indicating that appellant was totally disabled due to her accepted 

left foot condition. He also treated appellant with respect to her lumbar and bilateral upper 

extremity conditions. Dr. Kelly’s January 6, 2011 OWCP-5c did not reference appellant’s 

October 28, 2009 employment injury; however, he noted that she had chronic lumbar pain. 

On March 4, 2011 appellant accepted a limited-duty assignment as a modified clerk. The 

position was written as a full-time (eight hours/day) assignment; however, a handwritten notation 

indicated that she was only expected to work a four-hour shift. Appellant was assigned to the 

rewrap area where her duties included repairing damaged mail, manually facing mail into trays, 

and hand cancelling mail. The physical requirements of the modified clerk assignment included 

sitting, simple grasping, and lifting letters weighing one to three ounces. The typewritten 

March 3, 2011 limited-duty job offer references the current OWCP claim number; however, 

there is another handwritten notation referencing claim number xxxxxx607. 

Appellant’s return to limited-duty work was short-lived, lasting less than two weeks. On 

May 8, 2011 she filed a claim for wage-loss compensation (Form CA-7) for the period March 12 

through May 6, 2011. Appellant requested four hours of wage-loss compensation per day with 

respect to her accepted left foot injury.5

 

 3

 Appellant attributed her left foot condition to walking and standing on concrete floors. She worked full time 

prior to her August 2006 left foot injury. Appellant previously underwent left foot surgery for treatment of Morton’s 

neuroma in 2000. 

4

 Payment records for the current claim indicate that during the early part of 2010 appellant also received 

compensation for four hours per day under claim number xxxxxx607. 

5

 A June 20, 2011 acknowledgement/development letter from OWCP noted that appellant also requested four 

hours of wage-loss compensation per day with respect to her back injury under claim number xxxxxx607. 
3

Dr. Theodore Toan Le, a Board-certified orthopedic surgeon and OWCP referral 

physician, examined appellant on June 27, 2011. He indicated that the only residual with respect 

to appellant’s foot condition was chronic pain. There was no evidence of decreased sensation or 

weakness of the left foot. Dr. Le also noted that appellant would benefit from therapy for 

strengthening, followed by enrollment in a work-hardening/conditioning program. He also 

suggested a functional capacity evaluation to determine appellant’s baseline and to see if she 

could perform light to medium work. Dr. Le completed a work capacity evaluation (OWCP-5c) 

that noted that appellant could only work four hours a day. He also noted it was unlikely she 

would be able to increase to an eight-hour workday. Dr. Le imposed restrictions with respect to 

sitting (four to six hours), walking (one to two hours), standing (one to two hours), twisting (one 

to two hours), and bending/stooping (one to two hours). Additionally, he precluded all squatting, 

kneeling, and climbing. Dr. Le also imposed a four-hour limitation with respect to pushing (no 

more than 20 pounds), pulling (no more than 20 pounds), and lifting (no more than 10 pounds). 

In a July 8, 2011 report, Dr. Kelly indicated that appellant had restrictions with respect to 

her August 14, 2006 and October 28, 2009 work-related injuries. He noted that in March 2011 

the employing establishment offered appellant a job that was primarily performed in a sitting 

position, but required her to move around from machine to machine. Dr. Kelly further noted that 

the position was located at a large postal facility, such that appellant had to walk a fairly long 

distance just to get to her workstation. After returning to work in March 2011, appellant’s foot 

pain increased and progressively worsened. He described radiating left leg pain down to 

appellant’s foot. It became so severe that she left work on March 12, 2011, and did not return. 

Dr. Kelly explained that appellant’s primary issue was severe, burning, left foot pain that 

prevented her from standing/walking more than one hour per day. Any more than that resulted 

in intolerable radicular pain. Although appellant’s job was part time (four hours per day) with 

less than one hour standing, she could only tolerate her March 2011 limited-duty assignment one 

day at a time. Dr. Kelly indicated that appellant could not perform her assigned duties on 

consecutive days without experiencing severe, intolerable pain. He further explained that the 

increased pain in her left foot altered appellant’s gait, which in turn aggravated her lumbar 

conditions associated with the October 28, 2009 employment injury. 

As of March 12, 2011, Dr. Kelly imposed the following restrictions: (1) no standing or 

walking more than 2 minutes at one time or more than 20 minutes per workday; (2) no sitting 

more than 30 minutes at one time or more than 3 hours per workday; (3) must be allowed to rest 

supine periodically and at unscheduled intervals; (4) must be allowed to elevate left leg as 

needed; (5) no bending, stooping, or crawling; and (6) no use of stairs or steps. He indicated that 

the above-noted restrictions pertained to both the 2006 and 2009 employment injuries because 

both conditions were presently impairing. Dr. Kelly further indicated that because these 

restrictions were incompatible with even light sedentary activity, appellant was temporarily 

totally disabled until further notice. 

By decision dated July 29, 2011, OWCP denied wage-loss compensation for the period 

March 12 through May 6, 2011. The Branch of Hearings and Review would later affirm this 

decision. 

In an August 11, 2011 report, Dr. Kelly clarified his earlier findings, noting that 

appellant’s left foot pain was due to plantar neuritis. He further explained that the pain altered 
4

her gait, which in turn aggravated appellant’s lumbar sprain and degenerative disc disease 

associated with her October 28, 2009 work injury. Dr. Kelly reiterated appellant’s July 8, 2011 

work restrictions. 

Appellant submitted a Form CA-7 for lost wages during the period May 7 through 

August 26, 2011. 

In an October 21, 2011 report, Dr. Kelly continued the work restrictions previously noted 

in his July 8 and August 11, 2011 reports. He also noted that the employing establishment had 

been unable to accommodate appellant’s restrictions. Additionally, Dr. Kelly explained that he 

originally apportioned appellant’s limitations equally to her left foot and lumbar conditions, 

which was entirely arbitrary. He further explained that, if one were to ignore appellant’s plantar 

lesion, she would still have to be off work solely for the conditions associated with her 

October 28, 2009 work injury.6

 

In a November 8, 2011 decision, OWCP denied appellant’s claim for wage-loss 

compensation for the period May 7 through August 26, 2011. By decision dated December 12, 

2011, the Branch of Hearings and Review affirmed OWCP’s July 29, 2011 decision regarding 

entitlement to compensation for the period March 12 through May 6, 2011. 

On May 7, 2012 appellant filed a claim for compensation (Form CA-7) for the period of 

August 27 through October 7, 2011. 

In a May 15, 2012 development letter, OWCP noted that appellant was claiming four 

hours of compensation per day with respect to her August 14, 2006 left foot injury while 

currently receiving four hours of wage-loss compensation per day for her October 28, 2009 back 

injury. It provided a synopsis of the previously denied compensation claims dating back to 

March 12, 2011, and advised appellant to submit medical evidence to support her latest claim for 

the period August 27 through October 7, 2011. 

OWCP did not receive any additional medical evidence during the allotted timeframe. 

Consequently, by decision dated June 20, 2012, it denied wage-loss compensation for the 

claimed period August 27 through October 7, 2011. 

Appellant’s counsel requested a hearing, which was held on October 15, 2012. In a 

December 6, 2012 decision, the Branch of Hearings and Review affirmed OWCP’s June 20, 

2012 decision. The hearing representative found that the evidence failed to establish a 

recurrence of disability from August 27 through October 7, 2011, causally related to appellant’s 

August 14, 2006 left foot injury. 

On January 17, 2013 appellant filed a claim for compensation (Form CA-7) for the period 

October 11, 2011 through February 24, 2012. She sought four hours of lost wages per day over 

the claimed period. 

 6

 Dr. Kelly indicated that, with the exception of having to elevate her left leg, the other five work restrictions 

equally applied to appellant’s left foot and lumbar conditions. 
5

In a January 31, 2013 report, Dr. Kelly noted that he initially evaluated appellant on 

May 13, 2008 for a left plantar nerve lesion. Her prior treatment included corticosteroid 

injections, nonsteroidal anti-inflammatory drugs, and surgical intervention failed, which failed to 

improve appellant’s painful lesion of the left plantar nerve. Dr. Kelly also noted that appellant’s 

left foot pain was aggravated by work activities, which included walking, standing, lifting, 

pushing/pulling, and any form of weight-bearing activity. He further noted that to date, 

appellant’s clinical signs and symptoms remained consistent with left plantar nerve 

lesion/impingement, secondary to inflammation and fibrosis (scar tissue). Dr. Kelly indicated 

that appellant’s current left foot condition was a chronic residual of the plantar lesion and 

subsequent surgical intervention. He also described the treatment appellant received, including a 

recent implantation of a spinal cord stimulator, which Dr. Kelly noted had provided some 

positive benefit. But given the long-standing history and duration of appellant’s symptoms, her 

prognosis for a complete recovery was poor. 

Dr. Kelly chronicled appellant’s foot-related limited-duty status between 2007 and 2009, 

when she stopped working part time (four hours/day) due to a separate work-related lumbar 

injury. He explained that were it not for the lumbar injury, she would still be working, and 

would still be restricted to four-hour workdays. Regarding the unrelated lumbar injury, 

Dr. Kelly noted that in March 2011, Dr. Michael A. Grefer, a Board-certified orthopedic 

surgeon, released appellant to return to work with the understanding that she would remain on a 

four-hour workday consistent with her previous permanent restriction related to the plantar nerve 

injury. However, appellant was unsuccessful in continuing the four-hour workday due to 

aggravation of both her back and foot injuries. Dr. Kelly indicated that she recently completed a 

work-hardening program, and with the spinal cord stimulator she was hopefully prepared to 

return to work on a sustained basis with permanent restrictions. 

Appellant’s permanent work restrictions with respect to her accepted left foot condition 

included: (1) no repetitive lifting of 10 pounds or greater, or more than 3 times per hour; (2) no 

standing or walking more than 10 minutes per hour or more than 30 minutes per work shift; and 

(3) no working more than 4 hours per day or more than 20 hours per week. 

Regarding appellant’s October 28, 2009 lumbar injury under claim number xxxxxx607, 

Dr. Kelly imposed the same above-noted permanent restrictions with respect to lifting and 

standing/walking. He also precluded bending and stooping, but did not specifically include a 4-

hour workday and/or 20-hour weekly limitation. 

In a March 4, 2013 development letter, OWCP noted that appellant requested four hours 

per day under her left foot claim, while currently receiving four hours of wage-loss 

compensation per day under claim number xxxxxx607. Additionally, it advised her to submit 

medical evidence to support disability for the claimed period (October 11, 2011 to 

February 24, 2012). 

Appellant’s counsel submitted Dr. Kelly’s lumbar-related treatment records covering the 

period March 30 through October 17, 2011. The treatment records reveal that he initially 

believed appellant’s March 2011 work stoppage was due to deconditioning. Dr. Kelly also 

initially attributed appellant’s left leg and left foot complaints to lumbar radiculopathy. 

However, in July 2008, he noted that her severe burning pain in the left leg and left foot was 
6

multi-factorial. Dr. Kelly explained that the pain was in part due to the plantar nerve lesion, but 

predominately due to lumbar radiculitis associated with appellant’s 2009 claim. In his 

October 17, 2011 treatment notes, he reiterated that her left lower extremity pain was 

predominately due to lumbar radiculitis. 

In an April 19, 2013 decision, OWCP denied wage-loss compensation for the period 

October 11, 2011 through February 24, 2012. It found, inter alia, that appellant admittedly 

stopped work due to her back condition, and Dr. Kelly indicated that she was totally disabled due 

to her back condition. Consequently, appellant failed to establish a recurrence of disability for 

the period October 11, 2011 through February 24, 2012. 

Appellant’s counsel requested a hearing, which was held on September 16, 2013. 

By decision dated October 28, 2013, the Branch of Hearings and Review affirmed 

OWCP’s denial of wage-loss compensation for the period October 11, 2011 through 

February 24, 2012. 

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 resulted from a previous 

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

caused the illness.7 Recurrence of disability also means an inability to work that takes place 

when a light-duty assignment made specifically to accommodate an employee’s physical 

limitations due to her work-related injury or illness is withdrawn or when the physical 

requirements of such an assignment are altered so that they exceed her established physical 

limitations.8 Generally, a withdrawal of a light-duty assignment would constitute a recurrence of 

disability where the evidence established continuing injury-related disability for regular duty.9 A 

recurrence of disability does not apply when a light-duty assignment is withdrawn for reasons of 

misconduct, nonperformance of job duties or other downsizing or where a loss of wage-earning 

capacity determination is in place.10 

Absent a change or withdrawal of a light-duty assignment, a recurrence of disability 

following a return to light-duty may be established by showing a change in the nature and extent 

of the injury-related condition such that the employee could no longer perform the light-duty 

assignment.11

 7

 20 C.F.R. § 10.5(x). 

8 Id.

9 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013). 

10 20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Recurrences, Chapter 2.1500.2b (June 2013). 

11 Theresa L. Andrews, 55 ECAB 719, 722 (2004). 
7

Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, she has the burden of establishing that the recurrence is causally related to the 

original injury.12 This burden includes the necessity of furnishing evidence from a qualified 

physician who concludes that the condition is causally related to the employment injury.13 The 

physician’s opinion must be based on a complete and accurate factual and medical history and 

supported by sound medical reasoning.14

Certain healthcare providers such as physician assistants, nurse practitioners, physical 

therapists and social workers are not considered “physician[s]” as defined under FECA.15 

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing 

entitlement to FECA benefits.16

ANALYSIS 

In early March 2011, appellant returned to work in a part-time, limited-duty capacity 

after having been off work since July 2009. Her return to limited-duty work lasted less than two 

weeks. Appellant stopped work on March 12, 2011, and subsequently filed several claims for 

compensation (CA-7 forms) seeking four hours of wage-loss compensation per day for the 

period March 12, 2011 through February 24, 2012. OWCP issued a series of decisions denying 

wage-loss compensation for the entire claimed period. The only period currently before the 

Board is October 11, 2011 through February 24, 2012. However, the record lacks sufficient 

evidence for the Board to render an informed decision regarding appellant’s entitlement to 

compensation for the claimed period. 

It is evident from the various decisions dating back to July 29, 2011 that OWCP relied in 

part on information obtained from appellant’s other claim (xxxxxx607).17 But it failed to include 

the relevant information it relied on in the current claim. For example, OWCP adjudicated 

appellant’s March 12, 2011 work stoppage as a recurrence of disability based on her having 

returned to work in a limited-duty capacity. According to Dr. Kelly, the March 3, 2011 limitedduty job offer was based on restrictions provided by Dr. Grefer, who treated appellant for her 

 12 20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 

and 2.1500.6 (June 2013). 

13 See S.S., 59 ECAB 315, 318-19 (2008). 

14 Id. at 319. 

15 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 

16 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a 

physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified 

physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) 

(January 2013). 

17 The October 28, 2013 decision currently on appeal specifically referenced appellant’s October 28, 2009 injury, 

including the accepted conditions and her receipt of wage-loss compensation under that particular claim. 
8

lumbar condition. However, the current record does not include a contemporaneous narrative 

medical report from Dr. Grefer.18

To properly evaluate appellant’s claim for compensation, the Board must have a thorough 

understanding of the type of limited-duty work made available to appellant and whether the 

position was consistent with her documented medical restrictions. Thus far, the only 

contemporaneous medical evidence regarding appellant’s left foot limitations is a January 6, 

2011 work capacity evaluation (OWCP-5c) from Dr. Kelly, who at the time found her totally 

disabled.19 To the extent the March 3, 2011 limited-duty job offer was based on 

contemporaneous limitations imposed by Dr. Grefer, that information should be included in the 

current record. 

Decisions on claims are based on the written record, which may include forms, reports, 

letters, and other evidence of various types such as photographs, videotapes or drawings.20 

Evidence may not be incorporated by reference, nor may evidence from another claimant’s case 

file be used.21 Evidence contained in another of the claimant’s case files may be used, but a copy 

of that evidence should be placed into the case file being adjudicated.22 All evidence that forms 

the basis of a decision must be in that claimant’s case record.23 In this instance, OWCP relied on 

evidence and information obtained from appellant’s other claim, but neglected to include that 

information in the current case record. 

Based on the record available to the Board, it is unclear whether the limited-duty position 

appellant accepted on March 4, 2011 was designed in part to accommodate her left foot 

condition. It is also unclear from the record why the offered position, which was originally 

written as a full-time job, was changed to part time (four hours per day).24 Furthermore, OWCP 

appears to have disregarded Dr. Le’s June 27, 2011 findings without explanation. Dr. Le 

examined appellant at OWCP’s behest and found that she continued to have residuals from her 

accepted left foot employment injury. He completed a work capacity evaluation (OWCP-5c) 

 18 The record includes an October 19, 2010 work status form report from Dr. Grefer indicating that appellant was 

capable of sedentary work. The comments section of the form includes the notation “frequent position changes.” 

19 There are additional treatment records from January and February 2011; however, the caregiver was not a 

“physician” as defined under FECA. See supra notes 15 and 16. 

20 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a 

(June 2011). 

21 Id.

22 Id.

23 Id.

24 Accurate information regarding appellant’s employment duties is essential to determining whether she suffered 

a recurrence of disability. The employing establishment is responsible for submitting to OWCP all relevant and 

probative factual and medical evidence in its possession, or which it may acquire through investigation or other 

means. 20 C.F.R. § 10.118. As evidence appearing in the employer’s files is not generally available to claimants, 

the employing establishment must assemble and submit such evidence. Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Initial Development of Claims, Chapter 2.800.4(b) (June 2011). 
9

which noted that appellant could only work four hours a day with restrictions. Dr. Le also 

indicated that it was unlikely that she would be able to increase to an eight-hour workday. 

Ostensibly, his June 27, 2011 second opinion report supports appellant’s claim for four hours of 

lost wages due to her left foot condition. However, OWCP has offered no explanation for its 

apparent disregard for the second opinion examiner’s findings. 

Because the record lacks sufficient evidence for the Board to render an informed 

decision, the case shall be remanded to OWCP for further development. After OWCP has 

developed the record consistent with the above-noted directive, it shall issue a de novo decision 

regarding appellant’s claim for wage-loss compensation for the period October 11, 2011 through 

February 24, 2012. 

CONCLUSION 

The case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the October 28, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision. 

Issued: July 21, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board