United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Show Lo, AZ, Employer 

__________________________________________ 

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Docket No. 15-0245 

Issued: September 4, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 12, 2014 appellant filed a timely appeal from a May 20, 2014 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 total disability on or after June 30, 2011 causally related to her January 12, 2011 

employment injuries. 

FACTUAL HISTORY 

This case has previously been before the Board.2

 In an August 28, 2013 decision, the 

Board affirmed an OWCP hearing representative’s August 29, 2012 decision, which found that 

 1

 5 U.S.C. § 8101 et seq.

2

 Docket No. 13-807 (issued August 28, 2013). 
2

appellant did not sustain a recurrence of disability on or after June 30, 2011 causally related to 

her accepted employment-related injuries. The Board found that the evidence of record was 

insufficient to establish a change in the nature and extent of her employment-related conditions, 

or a change in the nature and extent of her light-duty job requirements. The facts of the case, as 

set forth in the prior decision, are hereby incorporated by reference. The relevant facts are set 

forth below. 

On February 17, 2011 OWCP accepted that on January 12, 2011 appellant, then a 51-

year-old rural carrier, sustained a contusion of the left hip and concussion without loss of 

consciousness when she slipped on snow and ice and fell, hitting the back of her head on the 

ground. On June 3, 2011 appellant accepted the employing establishment’s job offer for a 

modified-duty assignment. The assignment was for four hours a day with restrictions of a daily 

average of one hour each of sitting, walking, grasping, and fine manipulation and five hours 

standing. OWCP paid disability compensation for four hours from July 2 through 

November 16, 2013.3

 

Subsequent to the issuance of the hearing representative’s August 29, 2012 decision, 

OWCP proceeded to further develop the issue of appellant’s total disability. On October 17, 

2012 it referred her, together with a statement of accepted facts and the medical record, to 

Dr. Ronald S. Bennett, a Board-certified neurologist, for an impartial medical examination to 

resolve a conflict in medical opinion between Dr. Mitchell A. Major, an attending 

anesthesiologist, and Dr. Scott C. Forrer, a Board-certified neurologist and second opinion 

physician, regarding appellant’s capacity to perform full-time regular-duty work. In an 

October 25, 2011 work capacity evaluation (Form OWCP-5c), Dr. Major opined that appellant 

was not capable of performing her usual job secondary to loss of function of the right upper 

extremity and complex regional pain syndrome secondary to her fall and occipital nerve damage. 

In a May 21, 2012 medical report, Dr. Forrer diagnosed concussion without loss of 

consciousness and contusion of the left hip and advised that appellant was capable of returning to 

her rural carrier position without restrictions. 

In an April 2, 2012 work capacity evaluation (Form OWCP-5c), Dr. Aaron C. Bornstein, 

an attending family practitioner, advised that appellant could not perform her usual job for an 

indeterminate period due to her neuropathy and chronic pain secondary to her January 12, 2011 

trauma. 

In a November 15, 2012 report, Dr. Bennett reviewed a history of the January 12, 2011 

employment injuries and appellant’s medical treatment, social, and family background. He also 

reviewed the medical record. Dr. Bennett provided essentially normal findings on physical 

examination with the exception of slightly decreased lateral rotation and forward flexion of the 

neck, extreme sensitivity on compression of the right greater occipital nerve, and sensory 

hypesthesia over the anterolateral aspect of the left thigh. He reported that electromyogram 

studies of the upper and lower extremities revealed no evidence of cervical or lumbar 

radiculopathy and were consistent with his diagnosis of occipital nerve neuralgia and meralgia 

paresthetica. Dr. Bennett advised that appellant suffered from a greater occipital nerve injury 

 3

 The Board notes that appellant retired on disability from the employing establishment effective October 11, 

2013 and elected to receive retirement benefits from the Office of Personnel Management. 
3

secondary to her fall with right-sided headaches. By history there was some altered mental 

status, but that was difficult to evaluate after the fact. Dr. Bennett noted that appellant 

complained about tingling and numbness in her anterolateral left thigh and hip. He stated that 

the left hip issue was related to meralgia paresthetica that was post-traumatic with tingling and 

numbness in the thigh. Appellant’s dizziness was related to position and fulfilled criteria of 

benign positional vertigo with dizziness and nausea secondary to her fall. Dr. Bennett stated that 

this was due to a concussion of the inner ear that could occur with head injuries. He related that 

further work up revealed very mild nonsurgical discogenic disease in the cervical and lumbar 

spine that was unrelated to the fall. Dr. Bennett suspected that appellant had post-traumatic 

stress disorder due to prolonged symptomatology and disability and medical treatments, but 

stated that this was not his area of expertise and suggested further evaluation. He addressed her 

treatment plan which included use of an occipital nerve stimulator. Dr. Bennett concluded that 

she was temporarily disabled. He recommended revaluation in three months. 

In an addendum report of even date, Dr. Bennett stated that he reviewed appellant’s 

position description and the statement of accepted facts regarding her rural mail carrier activities. 

He advised that she could perform all of these activities except loading mail onto a vehicle which 

depended on how frequent this activity was performed, the weight of the mail, and whether there 

was a positive response to the occipital nerve stimulator. Dr. Bennett concluded that all other 

work activities were possible at that time. In an accompanying OWCP-5c form dated 

November 15, 2012, he stated that appellant could work eight hours a day with restrictions which 

included no pushing, pulling, or lifting more than 10 pounds. 

Appellant, on January 3, 2013, submitted a January 3, 2012 report by Dr. Major who 

assessed appellant as being status post the accepted work-related January 12, 2011 fall. She had 

considerable cervicalgia, right greater than left which was absent prior to her fall. Appellant also 

had right shoulder pain related to her fall and left thigh pain of unknown etiology. Dr. Major 

concluded that appellant’s activities of daily living and quality of life were greatly diminished 

and her family life was significantly impinged upon. 

By letter dated March 25, 2013, OWCP expanded the acceptance of appellant’s claim to 

include traumatic occipital neuralgia of the right cervical region. 

Following the issuance of the Board’s August 28, 2013 decision, appellant, in a letter 

dated February 28, 2014, requested reconsideration of the August 29, 2012 denial of her 

recurrence claim. She contended that the Board’s decision did not mention Dr. Bennett’s 

findings which established her entitlement to disability compensation.4

 4

 The Board did not review Dr. Bennett’s reports or any other new evidence submitted after the hearing 

representative’s August 29, 2012 decision in its August 28, 2013 decision as the Board may only review evidence 

that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-

176 (issued September 23, 2009); J.T., 59 ECAB 293, 295 n.1 (2008); G.G., 58 ECAB 389, 391 n.7 (2007); 

Donald R. Gervasi, 57 ECAB 281, 284 n.1 (2005); Rosemary A. Kayes, 54 ECAB 373, 375 n.8 (2003). Therefore, 

this additional evidence was not considered on appeal. See James C. Campbell, 5 ECAB 35, 36 n.2 (1952). 
4

In OWCP-5c forms dated November 7, 2012 to November 4, 2013, Dr. Bornstein 

reiterated that appellant was unable to perform her usual job due to her accepted employment 

injuries. 

In a May 20, 2014 decision, OWCP denied modification of the denial of appellant’s 

recurrence of disability claim. It found that the weight of the medical evidence rested with 

Dr. Bennett’s impartial medical opinion and established that she could perform her rural carrier 

duties, except loading mail. OWCP stated that appellant was partially disabled and not totally 

disabled. 

LEGAL PRECEDENT 

OWCP’s definition of 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. 

The term also means the inability to work that takes place when a light-duty assignment made 

specifically to accommodate an employee’s physical limitations due to his or her work-related 

injury or illness is withdrawn or when the physical requirements of such an assignment are 

altered so that they exceed his or her established physical limitations.5

When an employee who is disabled from the job he or she held when injured on account 

of employment-related residuals returns to a limited-duty position or the medical evidence 

establishes that he or she can perform the limited-duty position, the employee has the burden of 

proof to establish a recurrence of total disability and that he or she cannot perform such limitedduty work. As part of this burden, the employee must show a change in the nature or extent of 

the injury-related condition or a change in the nature and extent of the light-duty job 

requirements.6 To establish a change in the nature and extent of the injury-related condition, 

there must be probative medical evidence of record. The evidence must include a rationalized 

medical opinion, based on a complete and accurate factual and medical history and supported by 

sound medical reasoning, that the disabling condition is causally related to employment factors.7

In situations where there exist opposing medical reports of virtually equal weight and 

rationale and the case is referred to an impartial medical specialist for the purpose of resolving 

the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a 

proper factual background, must be given special weight.8

In a situation where OWCP secures an opinion from an impartial medical examiner for 

the purpose of resolving a conflict in the medical evidence and the opinion from such examiner 

requires clarification or elaboration, OWCP has the responsibility to secure a supplemental 

 5 See John I. Echols, 53 ECAB 481 (2002); Terry R. Hedman, 38 ECAB 222 (1986). 

6 PA., Docket No. 10-1225 (issued April 20, 2011); Maurissa Mack, 50 ECAB 498 (1999). 

7 Vanessa Young, 55 ECAB 575 (2004). 

8 L.S., Docket No. 12-139 (issued June 6, 2012); Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch 

(Ronald Brasch), 52 ECAB 252 (2001). 
5

report from the examiner for the purpose of correcting the defect in the original opinion.9

 If an 

impartial medical specialist is unable to clarify or elaborate on his original report or if his 

supplemental report is also vague, speculative or lacking in rationale, OWCP must submit the 

case record and a detailed statement of accepted facts to a second impartial specialist for the 

purpose of obtaining his rationalized medical opinion on the issue.10

ANALYSIS 

The Board finds that the case is not in posture for a decision on whether appellant 

sustained a recurrence of disability because of an unresolved conflict in medical opinion. OWCP 

found that appellant did not sustain a recurrence of total disability commencing June 30, 2011 

because of a worsening of her accepted employment-related conditions based on the opinion of 

Dr. Bennett, an impartial medical specialist. 

OWCP determined that a conflict existed between appellant’s attending physician, 

Dr. Major, and Dr. Forrer, an OWCP referral physician, as to whether appellant was totally 

disabled. To resolve the conflict, it referred the claim to Dr. Bennett, for an impartial medical 

examination. In a November 15, 2012 report, Dr. Bennett listed his examination findings and 

diagnosed occipital nerve neuralgia and benign positional vertigo with dizziness and nausea as a 

consequence of the accepted January 12, 2011 employment injury. He found appellant 

temporarily totally disabled for work. In addition, Dr. Bennett advised that further treatment was 

necessary to return her to work. He recommended that she be reevaluated in three months to 

consider long-term disability. Dr. Bennett did not find that appellant no longer had any residuals 

or disability causally related to her accepted employment-related injuries. On the contrary, he 

found that she did. 

The Board finds that OWCP’s reliance on Dr. Bennett’s opinion in denying appellant’s 

recurrence of disability claim was misplaced given his actual opinion that appellant’s ongoing 

residuals and disability were employment related. In an undated addendum to his November 15, 

2012 report, Dr. Bennett stated that appellant could return to her rural mail carrier activities. In 

the addendum, his opinion lacks detail about the required work activities she could perform. 

Dr. Bennett generally found that she could perform all work activities, except loading mail onto 

a vehicle. However, he further stated that appellant’s ability to perform this activity depended on 

the frequency of the activity, the weight of the mail, and a positive response to an occipital nerve 

stimulator. Dr. Bennett did not explain what he meant regarding the required activities she could 

perform upon her return to work. 

For reasons stated above, the Board finds that Dr. Bennett’s reports cannot be given the 

special weight afforded an impartial medical examiner, and do not resolve the conflict of medical 

opinion on the issue of whether appellant sustained a recurrence of total disability on or after 

June 30, 2011. Therefore, the case will be remanded for OWCP to obtain detailed clarification 

 9 Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988). 

10 Guiseppe Aversa, 55 ECAB 164 (2003); Harold Travis, 30 ECAB 1071, 1078 (1979); see also Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11(e) 

(September 2010). 
6

from Dr. Bennett on whether appellant had any continuing disability as of June 30, 2011 that 

could be causally related to the accepted January 12, 2011 employment injury. If it is unable to 

obtain such clarification, then appellant should be referred to another Board-certified specialist 

for an examination and an opinion on this matter.11 After such further development of the case 

record as OWCP deems necessary, it should issue a de novo decision on appellant’s recurrence 

claim. 

CONCLUSION 

The Board finds that this case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the May 20, 2014 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: September 4, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 11 Id.