United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.R., Appellant 

and 

U.S. POSTAL SERVICE, LENOX HILL 

STATION, New York, NY, Employer 

__________________________________________ 

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Docket No. 14-1313 

Issued: January 22, 2015 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 19, 2014 appellant, through her attorney, filed a timely appeal from an April 21, 

2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) rescinding 

acceptance of a recurrence of disability. 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The issue is whether OWCP properly rescinded acceptance of its finding that appellant 

sustained a recurrence of disability on June 12, 1998 causally related to her May 11, 1994 

employment injury. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. OWCP accepted that on May 11, 1994 

appellant, then a 32-year-old mail handler, sustained a head contusion when she was struck by a 

metal bar. She worked limited duty beginning July 1994. 

On June 15, 1998 appellant filed a recurrence of disability beginning that date causally 

related to her May 11, 1994 employment injury. She stopped work on June 12, 1998 and did not 

return. 

On June 16, 1998 Dr. Frantz Jasmin, a Board-certified internist, found that appellant was 

disabled from employment beginning June 12, 1998 pending an evaluation by an orthopedist. 

In a July 21, 1998 narrative report, Dr. Richard Memoli, an orthopedic surgeon, discussed 

appellant’s history of an injury when a metal bar fell and hit the top of her head and neck. He 

noted that she complained of neck pain radiating into her right arm, headaches, and radiating low 

back pain. Dr. Memoli diagnosed head trauma by history, cervical sprain with radiculopathy, 

and to rule out a herniated nucleus pulposus. He asserted that appellant was disabled due to her 

May 11, 1994 work injury. 

In a letter dated July 21, 1998, Dr. Memoli related that he initially evaluated appellant on 

that date for neck pain radiating into her right arm, headaches, and dizziness.2

 On examination 

he found a loss of cervical spine range of motion with swelling and tenderness of the right 

paravertebral muscles. Dr. Memoli noted that appellant stopped work beginning June 12, 1998 

because of her worsening symptoms. He determined that she could not return to work and 

recommended a magnetic resonance imaging (MRI) scan study of the cervical spine. 

On September 25, 1998 Dr. Memoli diagnosed cervical radiculopathy and sprain and 

found that appellant was totally disabled. On December 14, 1998 he diagnosed cervical sprain 

with radiculopathy and opined that she was incapacitated. In a report dated March 22, 1999, 

Dr. Memoli found neck pain radiating into the right arm with weakness, headaches, and 

dizziness. He advised that appellant was unable to work and requested authorization for 

diagnostic studies.3

 Dr. Memoli submitted similar reports on January 19 and September 11, 

2001 and January 2, May 13 and September 16, 2003. 

On March 26, 1999 appellant resigned from the employing establishment. She cited as 

the reason for her resignation her daughter’s health condition. 

By letter dated May 3, 2000, OWCP referred appellant to Dr. Harvey A. Levine, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated May 19, 2000, 

Dr. Levine diagnosed status postconcussion, resolved cervical sprain, and resolved lumbosacral 

sprain, all of which he attributed to the work injury. He found that she had no disability. 

 2

 Dr. Memoli continued to submit progress reports finding appellant disabled from work. 

3

 On May 16, 2003 OWCP authorized a cervical MRI scan study. 
3

On July 23, 2001 OWCP notified appellant that it had accepted her “recurrence of 

June 12, 1998” and informed her that she could submit medical bills for payment. It requested 

that she submit a Form CA-7 if she “lost time from work due to the recurrence....” 

By letter dated January 3, 2003, OWCP informed appellant’s attorney that it had accepted 

her recurrence of June 12, 1998 and was “currently processing a supplemental payment” from 

August 4, 1998 to December 28, 2002 subject to “certification by several individuals.” It also 

advised counsel that it was scheduling an impartial medical examination to resolve a conflict 

between Dr. Memoli and Dr. Levine.4

By letter dated April 23, 2003, OWCP advised appellant’s congressional representative 

that it had accepted that she sustained a recurrence of disability on June 12, 1998. It indicated, 

however, that it was scheduling a referral examination prior to “processing compensation 

payments.” 

On July 21, 2003 OWCP referred appellant back to Dr. Levine for a second opinion 

examination. By letter dated July 21, 2003, appellant’s attorney questioned why it was 

scheduling another medical examination given that it had accepted a recurrence of disability. He 

argued that she was entitled to benefits until OWCP terminated her compensation. 

In a report dated August 14, 2003, Dr. Levine diagnosed status post cerebral concussion, 

resolved cervical sprain, and resolved lumbosacral sprain due to appellant’s work injury. He 

concluded that she could perform her usual employment.5

On January 6, 2012 appellant requested compensation from June 12, 1998 to 

December 21, 2011. She noted that she had worked outside the employing establishment during 

that period. 

In a letter dated February 14, 2012, OWCP indicated that appellant resigned from the 

employing establishment on March 26, 1999 for personal reasons. It requested that she explain 

why she was requesting compensation given that the record contained no medical report for 

almost nine years and as she had earnings from private employment. 

In a February 23, 2012 response, counsel again noted that OWCP had accepted a 

recurrence of disability and that appellant’s employment “represents at most a minor statutory 

adjustment for temporary wage[-]earning capacity.” 

By decision dated May 16, 2012, OWCP found that appellant had not established a 

recurrence of disability due to her accepted work injury. 

 4

 In an internal e-mail dated January 8, 2003, OWCP determined that it was unable to refer appellant for an 

impartial medical examination without obtaining current medical evidence regarding her condition. 

5

 In a report dated January 2, 2003, Dr. Memoli discussed appellant’s complaints of radiating neck pain and found 

that she should remain off work. In a September 16, 2003 progress report, he discussed her physical complaints and 

found that she was unable to work. 
4

In a decision dated December 11, 2012, the Board reversed a May 16, 2012 OWCP 

decision finding that appellant had not established an employment-related recurrence of 

disability on June 15, 1998.6

 The Board noted that on June 23, 2001 OWCP had accepted that 

she sustained a recurrence of disability commencing June 12, 1998. The Board thus found that 

OWCP improperly adjudicated the issue presented as it had the burden to rescind acceptance of 

its finding that appellant sustained a recurrence of disability. The Board further determined that 

OWCP failed to advise her that it was attempting to rescind its acceptance of her recurrence of 

disability and thus failed to issue an appropriate decision. The Board additionally noted that the 

May 19, 2000 report of Dr. Levine did not address the issue of whether she sustained a 

June 1998 employment-related recurrence of disability. 

On remand, in a decision dated March 6, 2013, OWCP again found that appellant did not 

establish a recurrence of disability. In an order dated January 2, 2014, the Board reversed a 

March 6, 2013 decision finding that appellant had not established a recurrence of disability.7 

The Board found that OWCP had not properly issued a decision rescinding acceptance of its 

determination that she sustained a recurrence of disability. 

On February 4, 2013 OWCP referred appellant to Dr. Jonathan Black, a Board-certified 

orthopedic surgeon, for a second opinion examination. In a report dated February 20, 2013, 

Dr. Black discussed her history of injury and current complaints of arm pain radiating to her 

hand, neck pain, and headaches. On examination he found no loss of motion or tenderness of the 

cervical spine, no radiculopathy, and full strength. Dr. Black related that he had reviewed the 

statement of accepted facts and reports from Dr. Jasmin, Dr. Neil S. Rosenthal, a Board-certified 

internist and neurologist,8

 Dr. Memoli, and Dr. Levine. He asserted, “Through review of the 

records I do not find any evidence that appellant suffered a recurrence of disability on June 15, 

1998 causally related to her May 11, 1994 work injury.” Dr. Black further determined that 

appellant had no residuals of her employment injury. 

On February 25, 2014 OWCP advised appellant of its proposed rescission of its finding 

that she sustained a recurrence of disability on June 12, 1998 due to her May 11, 1994 

employment injury. It found that there was no medical evidence showing a causal relationship 

between the accepted work injury and her June 12, 1998 work stoppage. 

In a response dated March 11, 2014, appellant’s attorney generally asserted that OWCP 

should consider the medical evidence and arguments submitted contemporaneous with 

appellant’s claimed recurrence of disability. 

By decision dated April 21, 2014, OWCP rescinded acceptance of its July 23, 2001 

finding that appellant had established an employment-related recurrence of disability on 

June 12, 1998. 

 6

 Docket No. 12-1404 (issued December 11, 2012). 

7 Order Reversing Case, Docket No. 13-1566 (issued January 2, 2014). 

8

 In a report dated December 9, 1996, Dr. Rosenthal, an OWCP referral physician, found that appellant had no 

objective findings supporting her complaints and could resume her usual employment. 
5

On appeal, appellant’s attorney notes that OWCP had accepted the recurrence of 

disability based on the medical evidence from Dr. Memoli and then shifted the burden to 

appellant to show a recurrence of disability. Counsel maintains that it is not possible “for a 

current examination to determine whether or not a claim was accepted in error in 1998.” He 

asserts that OWCP failed to meet its burden of proof to rescind acceptance and notes that 

appellant has not received disability compensation for any period. 

LEGAL PRECEDENT 

Section 8128 of FECA provides that the Secretary of Labor may review an award for or 

against payment of compensation at any time on his or her own motion or application.9 The 

Board has upheld OWCP’s authority to set aside or modify a prior decision and issue a new 

decision under section 8128 of FECA.10 The power to annul an award, however, is not an 

arbitrary one and an award for compensation can only be set aside in the manner provided by the 

compensation statute.11

Workers’ compensation authorities generally recognize that compensation awards may be 

corrected, in the discretion of the compensation agency and in conformity with statutory 

provision, where there is good cause for so doing, such as mistake or fraud.12 It is well 

established that, once OWCP accepts the claim, it has the burden of justifying the termination or 

modification of compensation benefits.13 OWCP’s burden of justifying termination or 

modification of compensation holds true where it later decides that it has erroneously accepted a 

claim of compensation. In establishing that its prior acceptance was erroneous, OWCP is 

required to provide a clear explanation of its rationale for rescission.14

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.15

ANALYSIS 

OWCP accepted that on May 11, 1994 appellant sustained a head contusion in the 

performance of duty. Appellant returned to limited-duty employment on July 13, 1994. She 

stopped work on June 12, 1998 and filed a notice of recurrence of disability on June 15, 1998. 

 9

 5 U.S.C. § 8128; see also M.E., 58 ECAB 694 (2007). 

10 John W. Graves, 52 ECAB 160 (2000). 

11 See 20 C.F.R. § 10.610; Cary S. Brenner, 55 ECAB 739 (2004); Stephen N. Elliott, 53 ECAB 659 (2002). 

12 See L.C., 58 ECAB 493 (2007). 

13 See Andrew Wolfgang-Masters, 56 ECAB 411 (2005). 

14 See Amelia S. Jefferson, 57 ECAB 183 (2005); Delphia Y. Jackson, 55 ECAB 373 (2004). 

15 20 C.F.R. § 10.5(x). 
6

On July 23, 2001 OWCP accepted that she sustained a recurrence of disability beginning 

June 12, 1998 causally related to her accepted work injury. 

Once OWCP accepts the claim, it has the burden of justifying the termination or 

modification of compensation benefits.16 Its burden of justifying termination or modification of 

compensation holds true where it later decides that it has erroneously accepted a claim of 

compensation. In establishing that its prior acceptance was erroneous, OWCP is required to 

provide a clear explanation of its rationale for rescission.17

OWCP determined that Dr. Black’s opinion constituted the weight of the medical 

evidence and established that appellant did not sustain a recurrence of disability on 

June 12, 1998. The Board finds, however, that Dr. Black did not provide sufficient rationale 

supporting his finding that she did not experience a recurrence of disability. As noted, OWCP 

has the burden to rescind acceptance and must provide a clear explanation of the rationale for the 

rescission.18

On February 20, 2013 Dr. Black discussed appellant’s history of injury and her 

complaints of continued radiating arm pain, neck pain, and headaches. He further reviewed the 

medical reports of record and provided findings on examination. Dr. Black opined that the 

appellant had not sustained a recurrence of disability on June 15, 1998 due to her May 11, 1994 

employment injury. He did not, however, offer medical reasoning in support of his 

conclusions.19 The certainty with which Dr. Black expressed his opinion cannot overcome the 

lack of medical rationale as the Board has held that medical conclusions unsupported by 

rationale are of little probative value.20 Additionally, medical rationale is particularly necessary 

in the instant case given the length of time between the acceptance of appellant’s recurrence of 

disability and OWCP’s rescission. Moreover, Dr. Black indicated that he had reviewed the 

evidence from Dr. Jasmin and Dr. Memoli but did not explain why he disagreed with these 

physicians’ finding that she had established a recurrence of disability. Consequently, the Board 

finds that OWCP did not meet its burden of proof to rescind acceptance of the recurrence of 

disability beginning June 12, 1998. 

CONCLUSION 

The Board finds that OWCP improperly rescinded acceptance of its finding that appellant 

sustained a recurrence of disability on June 12, 1998 causally related to her May 11, 1994 

employment injury. 

 16 See Andrew Wolfgang-Masters, 56 ECAB 411 (2005). 

17 See Amelia S. Jefferson, 57 ECAB 183 (2005); Delphia Y. Jackson, 55 ECAB 373 (2004). 

18 See V.C., 59 ECAB 137 (2007); John W. Graves, 52 ECAB 160 (2000). 

19 See Elaine Sneed, 56 ECAB 373 (2005). 

20 See Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001). 
7

ORDER 

IT IS HEREBY ORDERED THAT the April 21, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: January 22, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board