United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 14-1916 

Issued: July 10, 2015 

Appearances: Oral Argument May 27, 2015 

Kevin L. Card, for the 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 3, 2014 appellant, through her representative, filed a timely appeal from an 

August 14, 2014 Office of Workers’ Compensation Programs’ (OWCP) merit decision. 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 has established that she sustained a recurrence of disability 

beginning August 23, 2010, causally related to her accepted October 19, 2007 injury. 

FACTUAL HISTORY 

On October 22, 2007 appellant, then a 41-year-old mail carrier filed a traumatic injury 

claim alleging that on October 19, 2007 that she was driving her mail truck when she was struck 

by another vehicle, while stopped at a light. She stopped work on October 20, 2007. OWCP 

 1

 5 U.S.C. § 8101 et seq.
2

accepted that appellant sustained a neck sprain, sprain of the right shoulder and upper arm, and a 

right thoracic back sprain. On October 13, 2009 appellant accepted a limited-duty position with 

restrictions on lifting over 20 pounds. She received appropriate compensation and disability. 

On August 23, 2010 and June 10, 2011 appellant filed a recurrence claim alleging that 

she sustained a recurrence of disability on August 13, 2010. She indicated that, while on 

modified duty, she was opening up an all-purpose container (APC) and lifting boxes when her 

shoulder, neck, and back were aggravated by the lifting. The employing establishment noted that 

appellant was working with restrictions in a modified position and she indicated that she could 

not perform the duties of the position. Appellant stopped work on August 23, 2010. 

By letter dated July 28, 2011, OWCP requested that appellant submit additional evidence 

for consideration within 30 days to establish her claim. 

Appellant submitted reports from her treating physicians. They included several reports 

from Dr. Richard Farson, Board-certified in family medicine. In an August 16, 2010 disability 

certificate, Dr. Farson noted that appellant was under his care from August 16, 2010 and returned 

to work with restrictions to include no lifting over five pounds. He indicated that appellant was 

off from August 14 to 16, 2010 because of a “flare up of pain from an old shoulder injury.” In 

his August 23, 2010 report, Dr. Farson noted that appellant sustained a right shoulder injury on 

the job which got “a little better but the patient expressed a severe recurrence on the job on 

August 13, 2010. He placed appellant off work for the next 30 days due to severe right shoulder 

pain and emotional distress on the job. In an August 30, 2010 attending physician’s report, 

Dr. Farson noted that appellant injured her right shoulder at work on October 19, 2007. He 

indicated that appellant had neck, back, and right shoulder pain from lifting heavy boxes at work. 

Dr. Farson checked a box “yes” to indicate that appellant’s condition was work related and filled 

in “lifting heavy boxes.” He placed appellant off work. In a November 17, 2010 report, 

Dr. Farson noted that appellant had experienced much stress from a supervisor who verbally 

criticized her and caused her to work outside of her restrictions. He explained that on August 13, 

2010 appellant had a flare up of right shoulder, right neck, and right upper back pain because of 

“being forced to do work, which she was not supposed to do.” 

OWCP also received several reports dating from January 21 to September 15, 2011 from 

Dr. George J. Matthews a neurosurgeon, and treating physician. In a January 21, 2011 report, 

Dr. Matthews noted that on October 31, 2009 she was forced to return to modified employment 

and worked until August 2010, when her work schedule was increased and she was unable to do 

the work. He explained that she was off work since August 13, 2010. Dr. Matthews noted that 

her history included shoulder pain and right shoulder surgery in September 2006 prior to her 

work injury on October 19, 2007. In May 6 and July 27, 2011 reports, he diagnosed cervical, 

lumbar disc injury, and recurrent injury of the right shoulder. Dr. Matthews checked the box 

“yes” in response to whether he advised that the condition found was caused or aggravate by an 

employment activity. He indicated that appellant was not working and unable to work. 

Dr. Matthews explained that she reinjured herself doing modified work on August 13, 2010 and 

opined that this was a recurrence of the old injury. He noted that she continued to have neck and 

shoulder pain and was totally and temporarily disabled since August 13, 2010. In a 

September 15, 2011 treatment note and attending physician’s report, Dr. Matthews checked a 

box “yes” in response to whether he advised that the condition found was caused or aggravated 
3

by an employment activity and he filled in “pain soon after injury.” He indicated that appellant 

had pain in the neck radiating into the right shoulder and aching in the right arm as well as low 

back pain radiating into the left hip. Dr. Matthews explained that appellant was unable to work 

because physical activities including standing, walking, and bending aggravated the pain. He 

indicated her original injury was on October 19, 2007 and she sustained a “re-injury” on 

August 13, 2010 and was off work since that time. 

On October 6, 2011 OWCP referred appellant for a second opinion, along with a 

statement of accepted facts, a set of questions and the medical record to Dr. Easton Manderson, a 

Board-certified orthopedic surgeon. 

In a report dated October 12, 2011, Dr. Manderson described appellant’s history of injury 

and treatment and examined appellant. He noted that appellant had chief complaints of pain in 

the neck, upper back, and right shoulder. Dr. Manderson also related that appellant complained 

of low back pain although that was not in the statement of accepted facts. He related that her 

pain was 7 out of 10. Dr. Manderson indicated that her history of injury included that on 

August 13, 2010 she stopped work because she was doing more than light-duty work. He 

diagnosed chronic cervicodorsal strain, post contusion, right rotator cuff syndrome and 

lumbosacral strain. Dr. Manderson also added that appellant had cervical disc disease and a disc 

herniation confirmed by magnetic resonance imaging (MRI) scan. He indicated that she had 

residuals of her work injury but she was capable of performing light duty. Dr. Manderson 

advised that appellant should not lift more than 20 pounds. In response to whether appellant had 

a recurrence of her October 19, 2007, injury and was totally disabled or had residuals, 

Dr. Manderson opined that “she does suffer residuals of the injury. A neck strain with a cervical 

disc herniation was, probably from the accident, and right upper extremity weakness and right 

shoulder pain, which suggests rotator cuff syndrome, probably impingement or a retear of her 

right rotator cuff.” Dr. Manderson advised that appellant could not return to full duty but she 

could work eight hours per day in a light-duty capacity, as she displayed weakness upon 

examination in the right upper extremity and pain in the right shoulder. He also indicated that 

appellant had a neck injury, with a strain superimposed on a herniated cervical disc, and she 

probably had a rotator cuff syndrome, which could be impingement or a rotator cuff tear. 

Dr. Manderson recommended x-rays and an MRI scan of the right shoulder in order to ascertain 

treatment options. He also indicated that she had continued right shoulder pain from the motor 

vehicle injury, and her restrictions included a 20-pound restriction on lifting and only for a third 

of her eight-hour workday. Dr. Manderson indicated that a diagnosis of low back pain should be 

added, which was a lumbar strain. He then indicated that appellant “did not suffer a recurrence. 

A recurrence is a recurrence of pain after the claimant has completely recovered from the 

original injury and, for some unknown reason, not a new injury or event, the pain returned 

spontaneously. This did not happen. Based on the history that I received, appellant’s pain 

worsened because, according to her, she was doing moderate lifting, which was not part of her 

light-duty restrictions and this caused her pain in her neck, upper back, and right shoulder to 

increase and also to affect her lower back.” 

By letter dated November 3 and December 7, 2011, OWCP referred appellant for x-rays 

and an MRI scan of the right shoulder and lumbar spine. 
4

In a December 5, 2011 report, Dr. Gregg A. Ferrero, a Board-certified orthopedic 

surgeon, noted that appellant had an original injury on October 19, 2007. He related that 

appellant indicated that she had a “recurrence of the pain on August 13, 2010.” Dr. Ferrero 

diagnosed right shoulder, cervical and lumbar pain and rotator cuff syndrome. 

In a December 18, 2011 addendum report, Dr. Manderson noted that the MRI scan 

arthrogram of the right shoulder performed on October l0, 2011, revealed a possible frozen 

shoulder not consistent with clinical correlation; a small partial thickness on the surface tear of 

the anterior fibers of the supraspinatus which extended beyond 50 percent of the tendon 

thickness and an associated intramuscular cyst of the supraspinatus with minimal tendinosis of 

the infraspinatus; degenerative changes of the acromioclavicular joint with undersurface 

spurring. He indicated that lumbar spine x-rays taken on December 13, 2011, revealed mild-tomoderate degenerative disease at L5-Sl with bilateral facet arthropathy. Dr. Manderson also 

found that the pedicles at L5 demonstrated an irregular linear artifact. Otherwise there was no 

other bony joint abnormality of the spine. A lumbar spine MRI scan showed minimal facet 

hypertrophic changes and a small left foraminal disc protrusion resulting in minimal to moderate 

left-sided foraminal stenosis at L3-4. At L4-5 level, there was minimal facet hypertrophy with 

no significant central canal stenosis. A superimposed small right foraminal disc protrusion likely 

with minimal to moderate right-sided foraminal stenosis was suspected. Dr. Manderson 

indicated that there was also likely minimal to moderate left-sided foraminal stenosis at the L5-

S1 level with no significant central stenosis, minimal facet hypertrophy, minimal to moderate 

left-sided foraminal stenosis. He diagnosed degenerative disease of the lumbar spine with only 

small disc protrusions. 

OWCP continued to develop the claim. By decision dated March 6, 2012, it denied 

appellant’s claim finding that she did not establish that she sustained a recurrence of disability. 

By letter dated March 23, 2012, appellant’s representative requested a telephonic hearing, 

which was scheduled for July 9, 2012. 

On August 23, 2012 an OWCP hearing representative affirmed the March 6, 2012 

decision.2

 She found that appellant had not submitted probative medical evidence to support a 

recurrence of disability commencing August 23, 2010 as a result of a spontaneous change in her 

medical condition and not a new injury. 

On February 4, 2013 appellant requested reconsideration and submitted additional 

medical evidence. 

By decision dated May 22, 2013, OWCP denied modification of its prior decision. It 

found that appellant had not submitted probative medical evidence to support disability 

beginning August 23, 2010 as a result of a spontaneous change in her medical condition. 

 2

 Appellant did not attend the hearing. In a memorandum of telephone call, a representative from attorney Alan 

Shapiro’s office called and so did Representative Richard Daniels, but neither of the parties was aware that the 

claimant had contacted the other party. As the parties were unable to reach appellant, they requested that OWCP 

conduct an examination of the record. By letter dated July 9, 2012, Mr. Daniels withdrew his representation of 

appellant and by letter dated July 10, 2010, Mr. Shapiro withdrew his representation. 
5

In a letter dated May 20, 2014, appellant’s representative requested reconsideration and 

submitted additional medical evidence.3 He argued that OWCP did not follow its own 

procedures. Appellant’s representative explained that OWCP specifically found that, while 

appellant did not suffer a recurrence, she “reinjured herself lifting packages.” Furthermore, he 

argued that OWCP had the responsibility, under FECA Procedure Manual section 

2.800.3(c)(2) to process the claim as a traumatic injury in light of the new evidence. Appellant’s 

representative argued that OWCP in effect, decided that appellant had not suffered a recurrence, 

but had suffered a traumatic injury. He further argued that, while the submission of an incorrect 

form was a technical error, it was improper to deny a case on the basis that appellant failed to 

submit the correct form. Appellant’s representative requested that OWCP should convert the 

claim to the correct type and develop the claim as a traumatic injury. 

By decision dated August 14, 2014, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT 

Section 10.5(x) of OWCP’s regulations provide that 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 to the work environment that caused the illness.4 

Appellant has the burden of establishing that she sustained a recurrence of a medical 

condition5

 that is causally related to his accepted employment injury. To meet her burden, 

appellant must furnish medical evidence from a physician who, on the basis of a complete and 

accurate factual and medical history, concludes that the condition is causally related to the 

employment injury and supports that conclusion with sound medical rationale.6

 Where no such 

rationale is present, the medical evidence is of diminished probative value.7

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 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 

 3

 In a letter dated May 19, 2014, appellant designated Kevin L. Card as her representative. 

4

 20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004). 

5

 “Recurrence of medical condition” means a documented need for further medical treatment after release from 

treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment 

for the original condition or injury is not considered a need for further medical treatment after release from 

treatment, nor is an examination without treatment. 20 C.F.R. § 10.5(y) (2002). 

6 Ronald A. Eldridge, 53 ECAB 218 (2001). 

7 Albert C. Brown, 52 ECAB 152 (2000). 
6

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.8 

OWCP procedures provide that a case which is created may nonetheless lack appropriate 

forms. Submission of an incorrect form is a technical error and it is improper to deny a case on 

the basis that the claimant failed to submit the correct form.9

ANALYSIS 

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

OWCP accepted appellant’s claim for a neck sprain, sprain of the right shoulder and 

upper arm, and a right thoracic back sprain. Appellant returned to a modified-duty position on 

October 13, 2009. 

Appellant subsequently asserted that she sustained an onset on August 13, 2010 and then 

a total disability on August 23, 2010 while on modified duty. Appellant reported that her 

shoulder, neck, and back were aggravated when she was opening up an APC and lifting boxes. 

Although she initially filed the wrong claim form (recurrence of disability claim form), this 

cannot serve as the basis for OWCP to deny her claim. 

OWCP proceeded to develop the claim and referred appellant for a second opinion 

examination with Dr. Manderson on October 12, 2011. Dr. Manderson explained that appellant, 

“does suffer residuals of the injury. A neck strain with a cervical disc herniation was, probably 

from the accident, and right upper extremity weakness and right shoulder pain, which suggests 

rotator cuff syndrome, probably impingement or a retear of her right rotator cuff.” 

Dr. Manderson added that appellant did not suffer a recurrence. He defined a recurrence as the 

development of pain after a patient has completely recovered from an original injury. For some 

unknown reason, not a new injury or event, the pain then returns spontaneously. Dr. Manderson 

explained that did not happen in appellant’s case. 

Dr. Manderson stated that appellant’s pain worsened because, as she reported, according 

to her, she was doing moderate lifting, beyond her light-duty restrictions and this caused the pain 

in her neck, upper back, and right shoulder to increase and also to affect her lower back. The 

Board finds that this is a description of a new traumatic injury. The fact that it was reported on a 

recurrence form does not prevent the claim from being addressed as a new injury.10

The Board further finds that OWCP undertook development of the claim with regard to 

whether the injury was a recurrence or a new injury, as identified by Dr. Manderson, the second 

opinion physician. OWCP continued to deny her claim on the basis that it was not a recurrence. 

It is the duty of the claims examiner to develop a claim based on the facts at hand and not solely 

 8 Conard Hightower, 54 ECAB 796 (2003). 

9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, 2.800.3(c)(2) (June 2011). 

See also R.O., Docket No. 07-2070 (issued January 12, 2009). 

10 Id. 
7

on the basis of the type of claim form filed.11 The records submitted from appellant along with 

the second opinion physician, Dr. Manderson, clearly describe a new or traumatic injury. There 

is also a recommendation to expand the claim to include lumbar strain. On remand, OWCP 

should develop this claim as a new traumatic injury. It should provide appellant with the 

opportunity to supplement her claim in accordance with her factual statements, the medical 

evidence and OWCP’s procedures.12

 Following this and any other development deemed necessary, OWCP shall issue a de 

novo decision. 

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the August 14, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded. 

Issued: July 10, 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 Silverio J. Trujillo, Docket No. 99-593 (issued December 5, 2000); Jimmy L. Gardner, Docket No. 95-2360 

(issued January 12, 1998). 

12 See John H. Taylor, 40 ECAB 1228, at note 8 (1989) (when in the development of a claim the evidence 

indicates another aspect of the case, the evidence should be further developed and a determination made as to that 

aspect).