United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.H., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, AIR 

NATIONAL GUARD, Schenectady, NY, 

Employer 

__________________________________________ 

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Docket No. 16-0715 

Issued: August 11, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 29, 2016 appellant filed a timely appeal from a February 9, 2016 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. 

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to rescind its acceptance of 

appellant’s recurrence of disability claim; and (2) whether appellant met his burden of proof to 

establish a recurrence of disability beginning September 20, 2006 causally related to his accepted 

employment condition. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 3, 1996 appellant, then a 46-year-old aircraft mechanic foreman, sustained a 

back injury while moving lockers at work. He stopped work on January 8, 1996 and worked 

intermittently before returning to full duty on October 5, 1998. 

An initial magnetic resonance imaging (MRI) scan of the lumbosacral spine revealed a 

large central and left paracentral disc herniation at the L4-5 level and degenerative disc disease 

from the L2-3 through the L5-S1 levels. OWCP accepted the claim for sprain of the lumbosacral 

spine and subsequently accepted displacement of a lumbar intervertebral disc without 

myelopathy. It authorized an August 14, 1996 left L4-5 hemilaminectomy and microdiscectomy, 

performed by Dr. Frank Genovese, a Board-certified neurological surgeon. 

In an April 12, 2002 proposed notice of indefinite suspension, the employing 

establishment proposed an indefinite suspension for conduct unbecoming of a National Guard 

technician and abuse of government property. Effective September 12, 2002, it terminated 

appellant’s employment. The record indicated that appellant was incarcerated from 

November 17, 2003 until September 5, 2006 for reasons unrelated to his compensation claim. 

In a September 25, 2006 report, Dr. Peter Diamond, an osteopath Board-certified in 

family medicine, advised that appellant had a workers’ compensation-related lumbar disc 

disease. Examination revealed weakness in the left leg, positive straight leg raise at 45 degrees, 

no muscular atrophy, normal pulses, and decreased range of motion of the lumbar spine. 

Dr. Diamond recommended physical therapy. 

In an April 13, 2007 notice of recurrence (Form CA-2a), appellant alleged a recurrence 

on September 20, 2006. He stated that he never fully recovered from his work injury and that it 

worsened over time, which prevented him from working and limited his activity. Appellant 

stated that he was playing with his grandkids when he felt a sharp low back pain and a loss of 

strength in his low back and left leg that caused him to fall. He explained that he had numbness 

and pain in his toes, pain in his low back radiating down his left leg, and sharp pain in his left 

buttock. 

In a July 10, 2007 report, Dr. Genovese advised that appellant progressively complained 

of low back difficulty and intermittent flare ups. He noted that appellant was out of work since 

2002 when he was suspended from the employing establishment. On examination Dr. Genovese 

noted positive single leg raise, inability to heel walk on the left, 4/5 strength in the left 

dorsiflexor halluces longus, and decreased pinprick from the ankle down on the left. 

In an August 27, 2007 report, Dr. Paul Salerno, a Board-certified physiatrist, advised that 

appellant was injured in a January 3, 1996 work-related accident. He noted that appellant 

worked until 2002, but had since been unemployed due to his back condition. Dr. Salerno 

opined that it was clear that appellant was unable to return to his prior level of function as an 

aircraft mechanic. 
3

In a September 14, 2007 report, Dr. Diamond advised that he wrote a note indicating that 

appellant had been unable to work for the past two years because of his lumbar disc disease. He 

opined that appellant was permanently unable to work. 

On January 8, 2008 Dr. Diamond advised that appellant was experiencing left foot 

weakness, chronic low back pain, lumbar disc disease with L4-5, L5-S1 radiculopathy 

bilaterally, and foot drop worse on the left. He opined that appellant was permanently and totally 

disabled and that he placed him in an out-of-work status since April 2002. In a January 14, 2008 

work capacity evaluation, Dr. Diamond advised that appellant was unable to return to his dateof-injury position. He noted that appellant had chronic low back pain and left foot weakness. 

In a claim for compensation (Form CA-7) dated June 24, 2008, appellant requested 

compensation from April 10, 2002 to the present. 

By letter dated June 26, 2008, appellant’s representative at the time advised that 

Dr. Diamond placed appellant on total disability from work beginning April 10, 2002 and that 

appellant never recovered enough to return to work. He noted that appellant was incarcerated 

from September 7, 2003 through September 7, 2006 and that this claim fell under 20 C.F.R. 

§ 10.18. 

By letter dated May 5, 2009, the employing establishment controverted appellant’s claim. 

It explained that he was working full duty since October 5, 1998 when he was suspended without 

pay in April 2002 after being indicted on felony charges. The employing establishment 

explained that appellant was subsequently terminated as his criminal conduct had a nexus to his 

federal employment. It contended that he was not entitled to compensation and that he either 

materially misrepresented facts to OWCP or concealed material facts. 

By letter dated February 4, 2010, OWCP informed appellant of the evidence needed to 

establish recurrence and instructed him to submit a notice of recurrence (Form CA-2a). 

In a February 18, 2010 notice of recurrence (Form CA-2a), appellant claimed that he 

sustained a recurrence of disability on September 20, 2006. He indicated that he was playing 

with his grandchildren when he felt a sharp pain in his lower back, which caused him to fall. 

Appellant noted that he never fully recovered after his original injury and his condition worsened 

which prevented him from working. 

In a February 23, 2010 report, Dr. Diamond advised that appellant had a work injury in 

January 1996, which resulted in a back injury and a consequential chronic left foot drop which 

caused frequent tripping and falling. On examination he noted that appellant had difficulty 

straight leg raising on the left past 30 degrees, obvious left foot drop with an absent ankle jerk on 

the left, and diminished range of motion of the lumbosacral spine. Dr. Diamond assessed 

chronic left foot drop as a result of delayed treatment for a herniated nucleus pulposus at L4-5 

and L5-S1. He opined that appellant was permanently disabled without any expected 

improvement. 

In a March 1, 2010 statement, appellant detailed the history of his injury and treatment. 

He noted that Dr. Diamond found that he was disabled for work in March 2002. Appellant 

asserted that Dr. Diamond had not released him to work since that time. 
4

By letter dated May 11, 2001, OWCP informed appellant of the deficiencies in his 

recurrence of disability claim. 

Subsequently, several progress notes from Dr. Diamond were submitted. A progress note 

with a handwritten annotation dated April 10, 2002 noted that appellant had an onset of severe 

low back pain the day prior which radiated to the left leg and caused him to fall while walking. 

It indicated that he would be kept out of work, subject to change and referred him to physical 

therapy. Another progress note dated May 21, 2002 advised that appellant was out of work 

without pay. It indicated that he related that he felt betrayed by his employing establishment for 

placing him out of work without due process. In a September 14, 2007 note, Dr. Diamond 

opined that appellant was permanently disabled. 

In a June 1, 2010 statement, appellant advised that he worked a part-time nonfederal 

position beginning in May or June 2002 for a couple of months. He contended that his physician 

released him to work this position because it involved sitting, answering the telephone, and some 

walking. 

In a June 10, 2010 letter, the employing establishment controverted appellant’s claim 

noting that his incarceration records indicated that he injured his left shoulder getting out of a 

bunk bed and injured his right ankle injury secondary to running. It asserted that these records 

showed that he ran four miles and did 400 sit-ups per day. The employing establishment also 

contended that medical reports noting that appellant was unemployed due to his back condition 

were incorrect, as appellant was in fact unemployed due to his felony conviction. 

By decision dated September 9, 2010, OWCP denied appellant’s recurrence claim finding 

that factual and medical evidence provided did not establish that his work stoppage or inability to 

work was caused by a spontaneous worsening of his work-related injury. It further found that 

injuries sustained while incarcerated were intervening causes to his current condition. 

In a September 27, 2010 report, Dr. Diamond opined that the work-related injury led to 

appellant’s condition and that it would only deteriorate over time. He also explained that the 

physical activity that appellant performed while incarcerated was encouraged to allow him to 

maintain his back health. 

In a November 18, 2010 report, Dr. Diamond disputed medical records from appellant’s 

incarceration. He noted that the nurse misinterpreted back stretches to be sit-ups and noted that 

the four-mile run described in the report was actually four miles of walking. Dr. Diamond 

reiterated that appellant’s condition was causally related to the work injury. 

By letter dated March 8, 2011, appellant’s then representative, requested reconsideration. 

He reiterated that Dr. Diamond found appellant totally disabled for work as of April 10, 2002, 

prior to his suspension and subsequent termination. 

In an April 21, 2011 report, Dr. Salerno detailed the history of the injury and treatment. 

He noted that appellant had a moderate partial disability and indicated that he was unable to 

return to his prior level of function due to the bending, twisting, and lifting requirement of that 

position. However, Dr. Salerno noted that appellant was capable of performing a sedentary 

full-time positon. 
5

By decision dated June 15, 2011, OWCP rescinded its September 9, 2010 decision and 

accepted appellant’s September 20, 2006 recurrence claim finding that the factual evidence and 

argument provided by appellant’s then representative was sufficient to establish that he did not 

suffer an intervening injury during his incarceration and that the injury sustained on 

September 20, 2006 could not be considered to have broken the chain of causation. 

Appellant continued submitting medical evidence from Dr. Salerno noting his status. 

Thereafter, appellant submitted claims for compensation requesting intermittent wageloss compensation beginning April 10, 2002. On May 23, 2012 OWCP advised him that it could 

not process his claims for compensation because it had not received the back page of the form 

signed by the employing establishment. On July 3, 2012, the employing establishment stated 

that it could not sign appellant’s Form CA-7 as it contained material misrepresentations. It 

asserted that he was not eligible for compensation because of his removal for cause. The 

employing establishment continued to refuse to sign its portion of the CA-7 form. 

On September 24, 2012 OWCP advised appellant that it had only accepted his recurrence 

claim beginning September 20, 2006 and that his entitlement to benefits could begin only on that 

date. It asked that he resubmit a Form CA-7 and indicate receipt of any benefits from the Office 

of Personnel Management. 

Appellant resubmitted a Form CA-7 on September 28, 2012, claiming wage-loss 

compensation from September 20, 2006 to September 28, 2012. On September 13 and 29, 2012 

he elected FECA benefits. 

On October 8, 2014 OWCP issued a notice of proposed rescission of the acceptance of 

appellant’s recurrence beginning September 20, 2006. 

In an October 27, 2014 statement, appellant’s then representative, disagreed with the 

proposed rescission. He contended that in an April 10, 2002 report, Dr. Diamond placed 

appellant on sick leave until May 13, 2002 and that based on the physician’s report appellant did 

not report to work. The representative noted several other inaccuracies in the notice of proposed 

rescission. 

In a May 15, 2015 decision, OWCP rescinded the June 15, 2011 acceptance of 

appellant’s September 20, 2006 claim for recurrence of disability finding that the employing 

establishment submitted evidence that established that he was not entitled to compensation. It 

explained that he was removed from his position with cause in September 2002 and because he 

was not employed as of September 20, 2006 there was no recurrence of disability. 

In another May 15, 2015 decision, OWCP denied appellant’s recurrence of disability 

claim finding that, as he was not employed as of September 20, 2006, there was no recurrence of 

disability at that time. 

By letter dated July 15, 2015, appellant, through his representative, requested 

reconsideration arguing that the claims examiner was incorrect in finding that a claimant must be 

employed as a federal employee at the time of submitting a notice of recurrence. 
6

In an October 8, 2015 letter, the employing establishment reiterated its contention that 

appellant was not entitled to compensation as his work stoppage was due to reasons unrelated to 

his accepted employment injury. 

Appellant was given the opportunity to respond to the employing establishment’s 

comment. He, through his representative at the time, contended in a December 28, 2015 letter 

that the employing establishment’s response indicated that only portions of FECA law, 

regulations, and case law was used in the evaluation of his claim of recurrence. Several medical 

reports were submitted which provided the current status of appellant’s condition. 

By decision dated February 9, 2016, OWCP denied modification of its previous 

decisions. 

LEGAL PRECEDENT ISSUE 1 

Pursuant to section 8128 of FECA, the Secretary of Labor may review an award for or 

against payment of compensation at any time on his or her own motion or on application.2

 The 

Board has upheld OWCP’s authority under this section to reopen a claim at any time on its own 

motion and, where supported by the evidence, set aside or modify a prior decision and issue a 

new decision.3 The Board has noted, however, that the power to annul an award is not arbitrary 

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

compensation statute.4 

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. Once OWCP 

accepts a claim, it has the burden of justifying termination or modification of compensation 

benefits. This also holds true where OWCP later decides that it erroneously accepted a claim.5 

OWCP bears the burden of justifying rescission of acceptance on the basis of new 

evidence, legal argument and/or rationale.6 Probative and substantial positive evidence7 or 

sufficient legal argument8

 must establish that the original determination was erroneous. OWCP 

must also provide a clear explanation of the rationale for rescission.9

 

 2

 5 U.S.C. § 8128. 

3 See John W. Graves, 52 ECAB 160, 161 (2000). See 20 C.F.R. § 10.610. 

4 Delphia Y. Jackson, 55 ECAB 373 (2004). 

5 See V.C., 59 ECAB 137 (2007). 

6 See John W. Graves, supra note 3; Alice M. Roberts, 42 ECAB 747, 753 (1991). 

7 See Michael W. Hicks, 50 ECAB 325, 329 (1999). 

8 See, e.g., Beth A. Quimby, 41 ECAB 683, 688-89 (1990). 

9 See supra note 5. 
7

ANALYSIS ISSUE 1 

Appellant alleged that he sustained a recurrence of disability on September 20, 2006. On 

June 15, 2011 OWCP accepted his recurrence of disability claim. On October 8, 2014 it 

proposed rescinding the acceptance of appellant’s claim and the rescission was made final in a 

May 15, 2015 decision. 

The Board finds that OWCP did not present sufficient evidence to meet its burden of 

proof to rescind its acceptance of appellant’s recurrence of disability claim. In its May 15, 2015 

decision, OWCP explained that appellant was removed from his position with cause in 

September 2002 and that he could not have sustained a recurrence of disability on September 20, 

2006 as he was not employed at that time. This is incorrect. In cases where employment has in 

fact been terminated for misconduct and disability is subsequently claimed, the Board has noted 

that in general the term disability under FECA means incapacity because of injury in 

employment to earn the wage which the employee was receiving at the time of such injury.10 

Disability can be established despite termination for cause if medical evidence is submitted to 

establish that the claimant could not work due to the accepted work injury for a given period 

after the termination.11 The Board has held that, even if a claimant were terminated for 

misconduct, disability benefits would be payable if the evidence of record established that the 

claimant was unable to work at some point thereafter due to a work-related disabling condition.12 

OWCP focused on the fact that appellant was terminated for cause and that he was not 

employed as of September 20, 2006. Instead, it should have analyzed whether medical evidence 

established that he sustained 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.13 For these reasons, the Board finds that OWCP erred in rescinding its 

acceptance of appellant’s recurrence of disability claim. 

Given the Board’s holding with respect to the first issue presented it is not necessary to 

address the second issue.

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to rescind its acceptance of 

appellant’s recurrence of disability claim. 

 10 Ralph Dennis Flanagan, Docket No. 94-1569 (issued May 28, 1996). 

11 Id. 

12 V.M., Docket No. 16-62 (issued May 18, 2016). 

13 20 C.F.R. § 10.5(x). 
8

ORDER 

IT IS HEREBY ORDERED THAT the February 9, 2016 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: August 11, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board