United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Brooklyn, NY, Employer 

__________________________________________ 

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Docket No. 14-1915 

Issued: January 7, 2015 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 2, 2014 appellant, through counsel, filed a timely appeal from the 

August 26, 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 his burden of proof to establish total disability on or 

after August 17, 2013 due to his accepted work injuries. 

FACTUAL HISTORY 

On October 20, 2012 appellant, then a 45-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 20, 2012 he was delivering mail when he stepped 

down on a stoop covered with green moss which caused him to slip and fall. OWCP initially 

 

 1 5 U.S.C. §§ 8101-8193. 
2

accepted his claim for closed fracture of the right tibia and fibula shaft. The accepted conditions 

were later expanded to include closed fracture of the medial malleolus of the right ankle and 

right osteochondritis dissecans. Appellant did not initially stop work but continued performing 

light-duty work and received wage-loss compensation on the daily rolls until he stopped on 

August 17, 2013. 

On September 25, 2013 the employing establishment provided appellant with a 

temporary light-duty assignment as a modified city carrier. The duties and requirements of the 

position were within the work restrictions provided on May 28, 2013 by Dr. Jeffrey Lakin, a 

Board-certified orthopedic surgeon serving as an OWCP referral physician.2

 These restrictions 

indicated that appellant could work eight hours per day with lifting, pushing, and pulling at no 

more than 10 pounds. He could walk or stand for eight hours per day, operate a motor vehicle at 

work for two hours per day, and operate a motor vehicle to/from work for two hours per day. 

Appellant did not accept the job offered by the employing establishment. 

On October 11, 2013 appellant filed a claim for compensation for the period August 17, 

2013 and continuing. 

In an October 21, 2013 letter, OWCP requested that appellant submit medical evidence in 

support of his claim for disability. Appellant was advised that he is expected to accept the lightduty position offered by his employing establishment and to report for duty. He was provided 30 

days to submit evidence to support that the modified assignment was no longer available or that 

the position no longer accommodated his medical restrictions. 

In support of his claim, appellant submitted medical reports dated between October 11 

and 29, 2013 of Dr. Cary P. Chapman, an attending Board-certified orthopedic surgeon. The 

reports did not contain a medical opinion, supported by objective findings and medical rationale, 

showing that appellant was totally disabled or unable to perform modified duties. 

In a November 22, 2013 decision, OWCP denied appellant’s claim for total disability 

stating that he had not established that he had a return or increase in disability due to a 

change/withdrawal of the limited-duty assignment made specifically to accommodate his workrelated conditions. 

Appellant requested a hearing before an OWCP hearing representative. During the 

June 12, 2014 hearing, appellant’s counsel asserted that there was no work available for 

appellant within his medical restrictions noting that it was not clear that appellant could perform 

the walking and standing duties of the modified city carrier position. Counsel argued that 

appellant should have been on the periodic rolls instead of the daily rolls. Appellant testified 

regarding his job duties before stopping work. He indicated that he underwent surgery on his 

ankle on March 17, 2014. 

Before and after the hearing, appellant submitted additional medical records, treatment 

notes, an operative report and physical therapy notes from Metropolitan Surgical Institute, Staten 

 2

 The job required performing the following duties for one to two hours per day: casing mail, delivering mail not 

to exceed 10 pounds, walking to deliver mail, and driving a postal vehicle. 
3

Island Physical Therapy, Orthopedic Sports Medicine, and Dr. Chapman, dated from 

February 2013 to May 2014. The medical records indicated that appellant was still being treated 

for the work-related injuries, but they did not show that he was unable to perform modified work 

duties. 

In an August 26, 2014 decision, OWCP hearing representative affirmed OWCP’s 

November 22, 2013 decision denying appellant’s claim for total disability on or after 

August 17, 2013. 

LEGAL PRECEDENT 

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

employment-related residuals, returns to a light-duty position or the medical evidence of record 

establishes that he or she can perform the light-duty position, the employee has the burden to 

establish by the weight of the reliable, probative, and substantial evidence a recurrence of total 

disability and show that he or she cannot perform such light duty. As part of this burden the 

employee must show a change in the nature and extent of the injury-related condition or a change 

in the nature and extent of the light-duty job requirements.3

ANALYSIS 

OWCP accepted that appellant sustained a work injury on October 20, 2012 and accepted 

the conditions of closed fracture of the right tibia and fibula shaft, closed fracture of the medial 

malleolus of the right ankle, and right osteochondritis dissecans. Appellant did not stop work at 

the time of the injury but continued performing light-duty work. He stopped work on August 17, 

2013 and on October 11, 2013, he filed a claim for compensation for the period August 17, 2013 

and continuing. 

Appellant submitted medical records, treatment notes, an operative report and physical 

therapy notes from Metropolitan Surgical Institute, Staten Island Physical Therapy, Orthopedic 

Sports Medicine, and Dr. Chapman, an attending Board-certified orthopedic surgeon, which 

were dated between February 2013 and May 2014. Although the medical records showed that 

appellant still had residuals of his work-related injuries, they did not show that he was unable to 

perform modified work duties on or after August 17, 2013. OWCP denied appellant’s claim as 

he failed to establish total disability on or after August 17, 2013 due to his accepted work 

injuries. 

 3 S.F., 59 ECAB 525 (2008); Terry R. Hedman, 38 ECAB 222 (1986). 20 C.F.R. § 10.5(x) provides, “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. This term 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 his or 

her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct, 

nonperformance of job duties or a reduction-in-force), or when the physical requirements of such an assignment are 

altered so that they exceed his or her established physical limitations.” 
4

Before OWCP and on appeal, counsel argued that there was no work available for 

appellant within his medical restrictions noting that it was not clear that he could perform the 

walking and standing duties of the modified city carrier position. However, modified duty 

remained available to appellant and a comparison of the work requirements of the modified 

position with appellant’s work restrictions shows that he was able to perform the modified work. 

Counsel argued that appellant should have been on the periodic rolls instead of the daily rolls, 

but he did not explain how this viewpoint obviated appellant’s responsibility to submit medical 

evidence showing that he had total disability on or after August 17, 2013 due to his accepted 

work injuries.4

For these reasons, the Board finds that appellant did not meet his burden of proof to 

establish total disability on or after August 17, 2013 due to his accepted work injuries. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s claim for recurrence of total 

disability on or after August 17, 2013 due to his accepted work injuries. 

ORDER 

IT IS HEREBY ORDERED THAT the August 26, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 7, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 4

 Appellant also did not show a change in the nature and extent of the light-duty job requirements. See supra 

note 3.