United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.B., Appellant 

and 

U.S. POSTAL SERVICE, BUFFALO 

PROCESSING & DISTRIBUTION CENTER, 

Buffalo, NY, Employer 

__________________________________________ 

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Docket No. 16-0863 

Issued: July 26, 2016 

Appearances: Case Submitted on the Record

David W. Covino, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 22, 2016 appellant, through counsel, filed a timely appeal from a February 3, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant met his burden of proof to establish a recurrence of 

disability on February 2, 2013 caused by an October 26, 2008 employment injury. 

On appeal counsel asserts that the medical evidence establishes disability due to reflex 

sympathetic dystrophy (RSD), an accepted condition, and that OWCP used an incorrect legal 

standard in denying appellant’s claim. 

FACTUAL HISTORY 

This case has previously been before the Board. In a March 13, 2015 decision, the Board 

affirmed a February 6, 2014 OWCP decision finding that appellant had not submitted sufficient 

evidence to establish a recurrence of disability commencing February 2, 2013 causally related to 

the October 26, 2008 employment injury. The Board noted that neither of appellant’s 

physicians, Dr. Mary Alice Kelly, a Board-certified internist, nor Dr. Lorianne E. Avino, an 

osteopath, specifically related appellant’s claimed February 2, 2013 recurrence of disability to 

the accepted conditions of left ankle fracture, deep vein thrombosis (DVT) or RSD.3

 The 

findings of facts and conclusions of the previous Board decision are incorporated herein by 

reference. 

Following the Board’s March 13, 2015 decision, on May 26, 2015 appellant, through 

counsel, requested reconsideration. Medical evidence received by OWCP after its February 6, 

2014 decision included a June 2, 2014 report in which Dr. Avino advised that she had been 

treating appellant’s left leg RSD symptoms of erythema, edema, allodynia, and hyperalgesia with 

medication but that appellant had shown no signs of improvement. She opined that, due to the 

severity of his RSD symptoms, appellant was disabled from performing the duties of truck 

driver, noting that he had great difficulty standing and walking for long periods of time, and that 

pushing and pulling loaded mail carts would worsen his RSD. Dr. Avino submitted monthly 

reports describing physical examination findings. She diagnosed chronic pain syndrome 

 

 3 Docket No. 14-74 (issued March 13, 2015). On October 26, 2008 appellant, a tractor/trailer operator, fractured 

of his left ankle when he fell at work. He stopped work that day and on October 31, 2008 underwent open reduction 

internal fixation of a left ankle trimalleolar fracture. The claim was accepted for left ankle fracture and appellant 

received wage-loss compensation. On January 18, 2009 appellant was hospitalized with a left leg DVT. OWCP 

accepted this condition. Appellant returned to full duty on May 11, 2009. On September 23, 2010 he was granted a 

schedule award for 25 percent left leg impairment. On February 3, 2011 appellant filed a recurrence claim for an 

October 26, 2010 work stoppage. OWCP accepted the October 26, 2010 recurrence. On March 10, 2011 appellant 

returned to full duty. In a May 5, 2011 decision, OWCP denied his claim for compensation due to the October 26, 

2010 recurrence because schedule award compensation had not yet expired. On February 8, 2012 appellant was 

granted a schedule award for an additional two percent left leg impairment. On February 5, 2013 he filed a 

recurrence claim, stating that he stopped work on February 2, 2013 due to the October 26, 2008 work injury. 

Appellant did not return to work. He submitted medical evidence to support his recurrence claim. A functional 

capacity evaluation (FCE) was performed on March 4, 2013. It indicated that appellant could not perform the 

physical demands required of a truck driver/unloader but that he had the ability to perform sedentary work. In 

May 14 and August 28, 2013 decisions, OWCP denied appellant’s recurrence claim. On February 6, 2014 it 

accepted RSD of the left leg. In a separate February 6, 2014 decision, OWCP denied the recurrence claim because 

the evidence did not sufficiently to support a causal relationship between the claimed recurrence and the accepted 

conditions. Appellant then appealed to the Board. 
3

secondary to RSD caused by an ankle fracture, joint disorder of the ankle or foot, and neuritis or 

radiculitis of the thoracic of lumbosacral spine. 

In a May 14, 2015 letter, Dr. Avino reported that appellant suffered from severe ankle 

pain, swelling, erythema, edema, allodynia, and hyperalgesia as a result of RSD. She noted that 

appellant was initially able to return to work full duty as a tractor trailer driver in March 2011, 

which was after an accepted October 26, 2010 recurrence of disability,4

 but that he was forced to 

stop working in February 2013 because his RSD worsened to the point where he could no longer 

work as a truck driver. Dr. Avino opined that the ankle fracture caused the RSD, and the RSD 

caused his disability from work. She indicated that she had reviewed appellant’s job description 

as a postal service truck driver and advised that his RSD clearly disabled him from this position, 

noting that the strenuous duties of the position, such as pushing and pulling carts of mail up and 

down ramps, would certainly cause severe pain and exacerbate the RSD. 

In a merit decision dated August 17, 2015, OWCP denied appellant’s recurrence claim. 

It found the medical evidence insufficient because it did not contain an explanation of how 

appellant could perform his work duties until the claimed February 2, 2013 recurrence of 

disability, but could not perform these duties after that date. 

Appellant, through counsel, again requested reconsideration on October 2, 2015. 

Counsel noted that an FCE done on March 4, 2013 demonstrated that appellant could not 

perform the duties of a truck driver. He attached a copy of the FCE which advised that appellant 

could not perform the physical demands of a postal service truck driver, but could perform 

sedentary work.5

 

On September 7, 2015 Dr. Avino again described appellant’s physical condition which, 

she opined, was due to RSD. She described the FCE findings and advised that she endorsed the 

conclusions described therein. Dr. Avino again opined that appellant stopped work on 

February 2, 2013 because the RSD worsened to the point that he could no longer perform the job 

duties of a truck driver. She concluded that appellant’s disability continued to present. 

Dr. Avino continued to submit treatment notes describing physical examination findings and 

diagnoses. 

In a merit decision dated February 3, 2016, OWCP denied appellant’s recurrence claim. 

It found the medical evidence insufficient because it did not establish the basis for the 

February 2, 2013 recurrence, noting that the evidence did not explain what occurred on 

February 2, 2013 that would render appellant completely disabled from work. The decision 

continued that the FCE indicated that appellant could perform sedentary duty which showed that 

appellant could have continued to work. OWCP concluded that the evidence did not show a 

spontaneous change in the medical condition which resulted from the previous illness or that the 

recurrence was due to a withdrawal of appellant’s light-duty assignment. 

 4 Id. 

5 Id. 
4

LEGAL PRECEDENT 

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.”6

 An individual person who claims a recurrence of disability due to an 

accepted employment-related injury has the burden of establishing by the weight of the substantial, 

reliable, and probative evidence that the disability for which he or she claims compensation is 

causally related to the accepted injury. This burden of proof requires that an employee furnish 

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 the employment injury 

and supports that conclusion with sound medical reasoning.7

 Where no such rationale is present, 

medical evidence is of diminished probative value.8

ANALYSIS 

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

appellant sustained a left ankle fracture. In February 2009 it expanded the claim to include DVT. 

On February 5, 2013 appellant filed a recurrence claim, stating that he stopped work on 

February 2, 2013 due to the October 26, 2008 employment injury. It was not until February 6, 

2014, one year later, that OWCP also accepted RSD. 

In reports dated May 14 and September 7, 2015, Dr. Avino described appellant’s physical 

condition, noting that the left leg RSD caused severe ankle pain, swelling erythema, edema, 

allodynia, and hyperalgesia. She clearly opined that the accepted October 26, 2008 left ankle 

fracture caused the RSD which worsened over years such that beginning on February 2, 2013 

appellant could no longer perform the duties of tractor/trailer operator. Dr. Avino also indicated 

that she agreed with the findings of a March 4, 2013 FCE that demonstrated that appellant could 

not perform truck driver duties but could only perform sedentary work. 

The Board finds that these reports from Dr. Avino provide sufficient rationale to warrant 

further development on the recurrence issue. While they lack detailed medical rationale 

sufficient to discharge appellant’s burden of proof that his current diagnoses and condition 

rendered him totally disabled beginning on February 2, 2013, OWCP later accepted RSD as 

employment related on February 6, 2014. Dr. Avino has clearly explained that the accepted 

October 26, 2008 left ankle fracture led to RSD which worsened on February 2, 2013 to the 

degree that appellant could no longer perform his truck driver duties. 

It is well established that proceedings under FECA are not adversarial in nature, and 

while the claimant has the burden to establish entitlement to compensation, OWCP shares 

 6

 20 C.F.R. § 10.5(x); R.S., 58 ECAB 362 (2007). 

7

 S.S, 59 ECAB 315 (2008). 

8 See Ronald C. Hand, 49 ECAB 113 (1997). 
5

responsibility in the development of the evidence.9

 The case shall therefore be remanded to 

OWCP. On remand, OWCP shall refer appellant, a statement of accepted facts that includes all 

accepted conditions, a position description, and the medical evidence of record to an appropriate 

Board-certified specialist for an examination, diagnosis, and a rationalized opinion regarding 

whether appellant was totally disabled for any period on or after February 2, 2013 due to the 

accepted conditions of left ankle fracture, DVT, and RSD. After this and such further 

development deemed necessary, OWCP shall issue a de novo decision.10

CONCLUSION 

The Board finds this case is not in posture for decision regarding whether appellant 

established a recurrence of disability on February 2, 2013. 

ORDER 

IT IS HEREBY ORDERED THAT the February 3, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for 

proceedings consistent with this opinion of the Board. 

Issued: July 26, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 9 See Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989). 

10 The Board notes that contrary to the inference in the February 3, 2016 OWCP decision, appellant was not 

working limited, sedentary duty when he stopped work on February 2, 2013.