United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.C., Appellant 

and 

U.S. POSTAL SERVICE, MAIN POST OFFICE, 

Massapequa Park, NY, Employer 

__________________________________________ 

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Docket No. 14-1943 

Issued: May 4, 2015 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for appellant 

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 September 8, 2014 appellant, through counsel, filed a timely appeal from a July 30, 

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 established a recurrence of disability commencing 

March 24, 2012. 

FACTUAL HISTORY 

OWCP accepted that on April 2, 1991 appellant, then a 27-year-old letter carrier, 

sustained a left shoulder sprain when he tripped and fell on stairs. Appellant did not stop work at 

the time of injury. OWCP later expanded the claim to accept left cervical radiculitis, left 

 1

 5 U.S.C. § 8101 et seq. 
2

shoulder impingement, an intervertebral disc disorder with myelopathy, and a herniated C6-7 

disc. 

Dr. Eric Putterman, an attending Board-certified orthopedic surgeon, limited appellant to 

working for four hours a day. Appellant worked four hours a day as a modified letter carrier 

from December 19, 1992 onward. He received compensation for the remaining four hours.2

 

By decision dated March 8, 1994, OWCP found that the part-time modified letter carrier 

position that appellant began on December 19, 1992 fairly and reasonably represented his wageearning capacity. It reduced his compensation beginning March 6, 1994, based on his actual 

earnings. 

On April 25, 1995 Dr. Putterman performed left shoulder arthroscopy to repair anterior 

and posterior labral tears with acromioclavicular impingement. Appellant received 

compensation for work absence through June 1996, when he returned to light-duty work.3

 

Dr. Putterman increased appellant’s schedule from four to six hours a day through 

September 2001.4

 

On February 15, 2002 appellant claimed a recurrence of disability commencing 

January 29, 2002 while on light duty.5 He returned to work for four hours a day as of 

July 24, 2002 as a modified letter carrier. OWCP issued wage-loss compensation for the 

remaining four hours a day. 

OWCP issued an informal wage-earning capacity determination dated March 25, 2003, 

based on appellant’s actual earnings of $409.95 a week as a part-time modified letter carrier. 

Appellant continued to work four hours a day in the modified position through May 2007. 

OWCP accepted a recurrence of disability commencing June 28, 2007 as work was not available 

within his medical restrictions. Appellant continued to work part-time light duty up to four hours 

a day and claimed compensation for the remaining hours. 

In a November 12, 2008 memorandum, OWCP noted that the March 8, 1994 wageearning capacity determination should have been vacated by the April 25, 1995 surgery and 

subsequent 13 months of total disability. It advised that there was no current wage-earning 

capacity determination in effect. OWCP continued to issue wage-loss compensation. 

 2

 Dr. William A. Healy, Jr., a Board-certified orthopedic surgeon performing a fitness-for-duty examination for 

the employing establishment, found appellant able to work eight hours a day, limited duty, as of 

September 29, 1993. 

3

 OWCP obtained a second opinion from Dr. Healy on February 29, 1996, who opined that appellant could 

perform sedentary work for eight hours a day. 

4

 Dr. Putterman noted on June 1, 2006 that magnetic resonance imaging (MRI) scan studies demonstrated 

continued degeneration in the cervical spine and left shoulder. 

5

 A January 4, 2002 MRI scan arthrogram of the left shoulder revealed no evidence of rotator cuff or labral tear, 

and mild instability of the left shoulder. 
3

On November 6, 2009 Dr. Putterman restricted appellant to working no more than four 

hours a day due to increasing cervical radiculopathy and left shoulder instability. Beginning on 

March 4, 2010 appellant worked four hours a day. 

On December 14, 2011 appellant accepted a light-duty job offer as a modified letter 

carrier for two hours a day, working from 6:00 a.m. to 8:00 a.m. The job required up to one hour 

of reaching, up to one hour of throwing or casing mail, and up to one hour of delivering express 

mail. The position was within Dr. Putterman’s restrictions. 

In a December 21, 2011 report, Dr. Putterman diagnosed recurrent subluxation of the left 

shoulder.6

 As of March 15, 2012, he restricted appellant from driving before 9:00 a.m., due to 

the sedating effect of medications prescribed for the accepted injuries. 

On April 6, 2012 appellant claimed a recurrence of disability commencing March 24, 

2012 as the employing establishment withdrew his light-duty job. He also asserted that casing 

mail aggravated his neck and left shoulder, disabling him from work. Appellant stopped work 

on March 24, 2012. He claimed compensation from March 24 to April 6, 2012. 

In an April 13, 2012 letter, the employing establishment clarified that it had not 

withdrawn appellant’s light-duty position. Appellant was precluded from performing the job as 

Dr. Putterman prohibited driving before 9:00 a.m. and appellant’s duty shift was from 6:00 a.m. 

to 8:00 a.m.7

 

By decision dated September 24, 2012, OWCP denied the claim finding that appellant 

had not established a basis for modifying the March 8, 1994 wage-earning capacity decision. 

Appellant requested a telephonic hearing that was held on February 12, 2013. During the 

hearing, he asserted that his condition had worsened such that he could no longer perform his 

light-duty job. In support of this contention, appellant submitted an October 12, 2012 report 

from Dr. Phillip N. Fyman, an attending Board-certified anesthesiologist, recommending trigger 

point and epidural injections.8

 On March 14, 2013 Dr. Mitchell Goldstein, an attending Boardcertified orthopedic surgeon, opined that “repetitive work motion and activity” increased 

appellant’s “cervical spine and shoulder orthopedic pathology forcing him to stop work.” 

Dr. Putterman continued to restrict appellant to working four hours a day, with no driving before 

9:00 a.m. 

In a May 7, 2013 decision, an OWCP hearing representative set aside the September 24, 

2012 decision. He found that the March 8, 1994 wage-earning capacity decision was erroneous 

 6

 A February 22, 2012 cervical MRI scan showed a C3-4 disc herniation, posterior disc-osteophyte complexes 

from C2 to C7, causing mild central canal stenosis from C3 to C7 with compression of the right C4, C6, and C7 

nerve roots. A February 23, 2012 MRI scan arthrogram left shoulder showed an anterior labral tear. March 1, 2012 

electromyogram and nerve conduction velocity studies showed bilateral mild median neuropathy at the wrists, worse 

on the left, without evidence of cervical radiculopathy. 

7

 On September 10, 2012 Dr. Putterman restricted appellant from casing mail. 

8

 Dr. Fyman ordered a February 6, 2013 functional capacity evaluation, finding impairments of both shoulders. 
4

as appellant was a full-time employee before the date of injury and OWCP did not explain how a 

part-time job was found suitable. The hearing representative found that, as there was no wageearning capacity decision properly in place, OWCP must consider whether appellant established 

a disability beginning March 24, 2012. He found that the record required further development 

and remanded the case for OWCP to obtain a second opinion regarding whether appellant had a 

recurrence of disability or whether he sustained a work injury between December 2011 and 

March 2012 due to new occupational exposures. 

Appellant submitted additional medical evidence. In an April 30, 2013 report, 

Dr. Goldstein opined that appellant’s duties as of December 2011 aggravated his left shoulder, 

such that he was not able to work as of March 2012. He found appellant totally disabled for 

work through October 2013 due to left shoulder instability, a labral tear, and herniated cervical 

discs.9

 In an August 12, 2013 report, Dr. Putterman diagnosed chronic left shoulder 

impingement and cervical radiculopathy. He opined that both conditions were related to the 

accepted injury. 

On November 5, 2013 OWCP obtained a second opinion from Dr. David Benatar, a 

Board-certified orthopedic surgeon, who reviewed the medical record and a statement of 

accepted facts. On examination, Dr. Benatar noted restricted left shoulder motion due to pain. 

He diagnosed status post occupational injury with cervical stenosis and possible cervical 

radiculopathy, and “left shoulder status post arthroscopy with MRI scan evidence of further 

labrum injury and possible impingement.” Dr. Benatar opined that it could not be determined if 

appellant’s work duties between December 2011 and March 2012 aggravated or accelerated his 

condition as he had only examined appellant considerably after March 2012. He found appellant 

able to perform light-duty work, noting that appellant could change his medication schedule to 

avoid being sedated while driving. 

By decision dated November 21, 2013, OWCP denied appellant’s claim for a recurrence 

of disability, on the grounds that the medical evidence did not establish that his condition had 

worsened such that he was no longer able to perform his assigned light-duty job. It accorded the 

weight of the medical evidence to Dr. Benatar. 

In a May 1, 2014 letter, counsel requested reconsideration. He asserted that the medical 

evidence established that appellant was totally disabled for work as of March 2012. Counsel also 

contended that there was a conflict of medical opinion between Dr. Benatar and Dr. Goldstein 

regarding whether appellant’s condition worsened such that he was no longer able to work. He 

submitted additional reports from Dr. Goldstein dated from January 13 to July 7, 2014, finding 

appellant totally and permanently disabled for work. Dr. Goldstein opined that casing mail from 

December 2011 to March 2012 aggravated the accepted conditions, requiring increased 

medication, and preventing him from driving during his shift. 

By decision dated July 30, 2014, OWCP affirmed the prior decision, finding that 

appellant did not establish a spontaneous worsening of the accepted conditions. 

 9

 On July 29, 2013 appellant refused a light-duty job offer for four hours a day, requiring casing mail up to four 

hours, and reaching above the shoulder with the right arm up to two hours. He contended that he was medically 

unable to work and was in the process of applying for disability retirement. 
5

LEGAL PRECEDENT 

OWCP’s implementing regulations define a “recurrence of disability” as an inability to 

work after an employee has returned to work, caused by a spontaneous change in a medical 

condition which has resulted from a previous injury or illness without an intervening injury or 

new exposure to the work environment that caused the illness.10 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 is 

withdrawn or when the physical requirements of such an assignment are altered such that they 

exceed the employee’s physical limitations.11 Appellant has the burden of establishing that there 

was no medically appropriate light duty available for the claimed period.12 

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 

establishes that the employee 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 to 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.13 This includes the necessity of 

furnishing 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 

employment factors and supports that conclusion with sound medical reasoning.14 An award of 

compensation may not be made on the basis of surmise, conjecture, speculation, or on 

appellant’s unsupported belief of causal relation.15

ANALYSIS 

On April 6, 2012 appellant claimed a recurrence of disability commencing 

March 24, 2012 while on light duty. OWCP denied the claim on September 24, 2012. 

Following additional development, it issued November 21, 2013 and July 30, 2014 decisions 

denying the recurrence claim.16 

 10 20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 

2.1500.3.b(a)(1) (May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004). 

11 J.F., 58 ECAB 124 (2006). 

12 Id. 

13 Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986). 

14 Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982). 

15 Patricia J. Glenn, 53 ECAB 159 (2001); Ausberto Guzman, 25 ECAB 362 (1974). 

16 As there was no formal wage-earning capacity determination in place, the November 21, 2013 and July 30, 

2014 decisions properly addressed the issue of recurrence of disability. Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Reemployment, Determining Wage-Earning Capacity, Chapter 2.1501.1 (June 2013). 
6

Appellant has the burden of providing sufficient rationalized medical evidence supporting 

a spontaneous worsening of the accepted cervical radiculitis and left upper extremity injuries.17 

However, he did not assert or establish that the accepted conditions deteriorated on their own. 

Rather, appellant contended that casing mail at work from December 2011 to March 2012 

aggravated his neck and left shoulder conditions. Dr. Goldstein, an attending Board-certified 

orthopedic surgeon, supported appellant’s assertions. He opined that repetitive upper extremity 

motion at work from December 2011 through March 2012 aggravated appellant’s cervical spine 

and left shoulder, totally disabling him for work. Dr. Goldstein thus attributed appellant’s 

condition on and after March 24, 2012 to new work factors, an intervening cause negating the 

claimed relationship between the accepted injuries and appellant’s ongoing condition.18 

Dr. Fyman, an attending Board-certified anesthesiologist, and Dr. Putterman, an attending 

Board-certified orthopedic surgeon, did not address causal relationship in their reports. As none 

of appellant’s physicians opined that the accepted neck and left shoulder conditions worsened 

spontaneously on and after March 24, 2012, their opinions are insufficient to meet appellant’s 

burden of proof.19

Alternatively, appellant claimed that the employing establishment withdrew light duty on 

March 24, 2012. The Board has held that withdrawal of a light-duty job formulated to comply 

with an employee’s work-related medical limitations can constitute a recurrence of disability.20 

However, there was no withdrawal of light duty in this case. The employing establishment 

stated in an April 13, 2012 letter that appellant’s light-duty position remained open and available. 

Appellant also contended that his light-duty job was effectively withdrawn as Dr. Putterman 

restricted him from driving before 9:00 a.m. due to medication side effects, precluding him from 

delivering mail before 8:00 a.m. as required. However, Dr. Benatar, a Board-certified orthopedic 

surgeon and second opinion physician, explained that Dr. Putterman’s restriction was 

unnecessary, as appellant could change his medication schedule to be alert and able to drive 

before 9:00 a.m. 

The Board finds that appellant did not submit sufficient medical evidence to establish a 

spontaneous worsening of the accepted injuries, or a withdrawal of light duty. OWCP’s July 30, 

2014 decision denying the recurrence claim is therefore proper under the law and facts of this 

case. 

On appeal, counsel contends that OWCP subjected the opinions of appellant’s physicians 

to excessive scrutiny. The Board notes that there is no evidence that OWCP used an improper 

standard in reviewing these reports. Counsel also asserts that the medical evidence is entirely 

supportive of appellant’s claim for recurrence of disability. As stated above, appellant’s 

 17 Ricky S. Storms, 52 ECAB 349 (2001). 

18 D.B., Docket No. 13-717 (issued July 24, 2013). 

19 Ronald A. Eldridge, supra note 14. 

20 Supra note 11. 
7

physicians did not address the issue or attributed his condition to an intervening cause.21 

Counsel also argues that OWCP erred by setting aside the 1994 wage-earning capacity 

determination. However, it is well established that a finding that the original determination was 

erroneous is sufficient to modify a wage-earning capacity determination.22 There is no evidence 

that OWCP acted unreasonably in finding that the 1994 wage-earning capacity determination 

was no longer valid. 

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 has not established a recurrence of disability commencing 

March 24, 2012. 

 21 OWCP has not yet issued a decision consistent with instructions in the hearing representative’s May 7, 2013 

decision regarding whether appellant sustained a work injury between December 2011 and March 2012 due to new 

occupational exposures. 

22 Sharon C. Clement, 55 ECAB 552 (2004). 
8

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated July 30, 2014 is affirmed. 

Issued: May 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