United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DELIVERY CENTER, Charleston, WV, 

Employer 

__________________________________________ 

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Docket No. 17-0223 

Issued: July 7, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 28, 2016 appellant filed a timely appeal from an October 31, 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. 

ISSUE 

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

disability commencing August 17, 2016 causally related to the August 20, 2014 accepted 

employment injury. 

On appeal appellant contends that she attempted to return to work, but was unable to 

perform her assigned work duties. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On August 21, 2014 appellant, then a 36-year-old laborer-maintenance mechanic, filed a 

traumatic injury claim (Form CA-1) alleging that on August 20, 2014 she was struck in the 

nose/face area by a lever of a manual battery hoist. She stopped work on August 20, 2014 and 

returned to full-time, light-duty work on September 28, 2014. OWCP accepted appellant’s claim 

for contusions of the face, scalp, and neck, sprain of neck, sprain of right shoulder and upper 

arm, and sprain of the lumbar region of the back. Preexisting or concurrent medical conditions 

included left ankle sprain, right knee subluxation, multilevel thoracic spondylosis, multilevel 

lumbar degenerative disc disease and facet atrophy, bilateral sacroiliac degenerative joint 

disease, posterior cervical disc herniation at C5-6, multilevel cervical neural foraminal stenosis, 

and acromioclavicular joint arthritis. 

Appellant stopped work again on November 18, 2014. On December 1, 2014 she filed a 

recurrence of disability claim (Form CA-2a) alleging a recurrence of her August 20, 2014 injury 

commencing November 18, 2014. 

On December 22, 2014 OWCP received a December 17, 2014 report from appellant’s 

treating physician, Dr. H.S. Ramesh, Board-certified in pain medicine. Dr. Ramesh related that 

appellant’s nose, neck and right shoulder pain, as well as her right upper extremity numbness, 

had increased since her last visit due to “flare up.” He also related that her back pain had 

decreased. Dr. Ramesh requested authorization for cervical and lumbar facet joint injections. 

He recommended that appellant return to work on December 18, 2014 performing light, 

modified duties. 

A statement of accepted facts (SOAF) dated January 22, 2015 noted that appellant had 

not returned to work after her alleged November 18, 2014 recurrence of disability.2

OWCP referred appellant to Dr. Paul Bachwitt, a Board-certified orthopedic surgeon to 

determine appellant’s disability status. In a report dated March 3, 2015, Dr. Bachwitt noted 

appellant’s history of injury and history of medical treatment. He also provided extensive 

examination findings. Dr. Bachwitt diagnosed cervical sprain/strain, right shoulder sprain/strain 

with a supraspinatus tear, and a lumbar sprain/strain, all related to appellant’s August 20, 2014 

employment injury. He concluded that appellant had not reached maximum medical 

improvement and should be allowed to see an orthopedic surgeon for her right shoulder 

condition. Dr. Bachwitt also concluded that she could perform light-duty work until she saw an 

orthopedic surgeon. 

On July 22, 2015 appellant underwent the following approved procedures: (1) right 

shoulder arthroscopy with subacromial decompression; (2) bursectomy; and (3) limited intraarticular debridement of partial thickness rotator cuff tear. 

In an October 23, 2015 work capacity evaluation, Dr. John Pierson, appellant’s treating 

Board-certified orthopedic surgeon, indicated that appellant was unable to perform her job duties 

 2

 By decision dated October 5, 2016, OWCP accepted appellant’s claim for a recurrence of disability effective 

November 18, 2014. It apologized that a formal decision had not been previously rendered. 
3

until December 3, 2015 due to an incomplete rotator cuff tear or rupture and impingement 

syndrome. 

 On November 6, 2015 OWCP referred appellant to Dr. Saghir R. Mir, a Board-certified 

orthopedic surgeon, for a second opinion regarding appellant’s disability status. In his 

November 23, 2015 report, Dr. Mir diagnosed cervical strain with mild disc protrusion at C5-6 

level; and postoperative rotator cuff debridement and subacromial decompression. He opined 

that there was a direct causation between her symptoms and the work-related injury of 

August 20, 2014. Dr. Mir noted that appellant still had residuals from her injury, but was 

capable of modified work, with no lifting or pushing over 20 pounds. He also noted that she 

should not perform over the shoulder activity for more than one hour. Dr. Mir indicated that 

appellant would be able to resume full-duty work on January 2, 2016. He opined that appellant 

had reached maximum medical improvement, but should be allowed to finish her physical 

therapy. Dr. Mir noted that she did have some functional or psychological overlay as well. 

In a January 13, 2016 report, Dr. Pierson diagnosed impingement syndrome of the right 

shoulder and incomplete rotator cuff tear or rupture of right shoulder (not specified as traumatic). 

He recommended that she continue physical therapy and he noted that appellant had been given a 

right shoulder corticosteroid injection. Dr. Pierson noted that appellant was not yet at maximum 

medical improvement. He indicated that she could return to some sort of light-duty work, but 

that appellant was not able to return to full duty with her right upper extremity at that time. 

Dr. Pierson indicated in a work capacity evaluation that appellant could not perform reaching, 

pushing, pulling, lifting, squatting, or kneeling. He also noted that she could not perform 

repetitive movements with her wrists and elbows. 

By letter dated February 22, 2016, OWCP referred appellant to Dr. A.E. Landis, a Boardcertified orthopedic surgeon, for an impartial medical examination. It noted that there was a 

conflict between the second opinion physician and appellant’s treating physicians as to whether 

appellant had disabling residuals from the accepted August 20, 2014 injury. OWCP directed 

Dr. Landis to assess appellant’s need for further medical treatment as well as her disability 

status/work restrictions from the August 20, 2014 injury. 

In a March 22, 2016 report, Dr. Landis stated that, based on his review of appellant’s 

history of injury and the medical records available for review, appellant had sustained a facial 

contusion and mild concussion, which had resolved without the need for any further treatment. 

He indicated that her subjective complaints were in excess of the objective findings, which are 

primarily the result of underlying degenerative arthritic changes in the cervical spine and lumbar 

spine. Dr. Landis opined that appellant had reached maximum medical improvement from her 

injury. He stated that the only treatment that appellant required was ongoing use of nonsteroidal 

anti-inflammatory medication and mild analgesics. Dr. Landis noted that appellant might benefit 

from a corticosteroid injection. He opined that she could return to full modified duty at the 

employing establishment and he would rate her physical demand level (PDL), based on his 

examination, at a light level and noted that her capacity might improve in the future to medium 

PDL. In a March 28, 2016 work capacity evaluation, Dr. Landis indicated that appellant was 

limited to one to two hours of sitting, walking, standing, reaching, twisting, bending and 

stooping. He also limited her to pushing, pulling, and lifting 5 to 10 pounds with her right upper 

extremity. 
4

The employing establishment offered appellant a limited-duty assignment as a modified 

laborer/custodian effective June 17, 2016. The duties of the position were listed as “manual 

letter cases.” The position required appellant to work four hours a day. The physical 

requirements of the modified assignment were: intermittent sitting and walking, standing up to 

two hours per day, intermittent reaching above shoulder, twisting, bending/stooping, and 

lifting/pushing/pulling up to 10 pounds with right side. 

By letter dated June 14, 2016, OWCP informed appellant that the duties and physical 

requirements of the offered position were in accordance with her medical limitations as set forth 

by the impartial medical examiner. It provided her 30 days to accept the position without 

penalty or provide a written explanation of her reasons for failing to accept the position. On 

August 4, 2016 OWCP informed appellant that it had received notice that she continued to refuse 

to accept or report to the offered position, that the reasons provided for refusing to accept the 

position were not valid, and that the employing establishment advised that the position remained 

available to her. It afforded her 15 additional days to report to the position and advised her that, 

if she did not accept and report to the position during the allotted period, her entitlement to wageloss and schedule award benefits would be terminated. 

On August 13, 2016 appellant returned to work part-time limited-duty and on August 16, 

2016 she officially accepted the suitable work position. 

Appellant was seen on August 20, 2016 at the Urgent Care Center for cervical and 

lumbar pain following an injury while on the job. Dr. Daniel Smith, a physician Board-certified 

in family medicine, indicated in handwritten notes that appellant stated that she missed work for 

the past three days due to pain in her neck, back, and right shoulder, and that this pain was in the 

same areas as before and was aggravated by work. He excused appellant from work from 

August 18 to 21, 2016 due to pain. In an August 21, 2016 work capacity evaluation, 

Dr. Michael H. Chancey indicated that appellant could work sedentary duty for four hours a day, 

with limitations of pushing, pulling, and lifting 10 pounds. 

In an August 22, 2016 memorandum, an employing establishment human resource 

manager, stated that appellant returned to work for part of the day on August 13, 2016, worked a 

few days for approximately one and one-half hours each, called in for a couple of days, and went 

to the doctor on August 20 and 21, 2016. She indicated that it was her opinion that appellant 

could still perform the limited-duty job offer as long as she did not walk more than one hour. 

By letter dated August 29, 2016, appellant stated that, due to fear of losing income and 

health insurance for herself and her son, she attempted to work a modified-duty assignment. 

However, after attempting to perform this work, she could not continue. Appellant alleged that 

in order to perform this work, she was required to twist and lift at the waist practically the entire 

time, and was also required to lean and reach slightly below her waist and to a full stretch above 

her shoulder. She stated that she underwent surgery on July 22, 2015 and was unable to do the 

twisting and reaching, so she was constantly standing up, bending down, and stepping in the 

direction she needed to twist, bend or reach. Appellant also submitted a copy of a letter she 

wrote to the human resources manager contending that the position was not within her doctor’s 

restrictions. She alleged that, after two hours of trying to perform her modified job, she was in 

so much pain that she should not stand or sit straight. 
5

On September 8, 2016 appellant filed a recurrence of disability claim (Form CA-2a) 

alleging a recurrence commencing August 17, 2016 due to the accepted August 20, 2014 injury. 

She indicated that the amount of pain drastically increased with her work, and the longer she 

worked, the more she was in pain and the less the pain medication helped. Appellant contended 

that after working she would be incapacitated for the next one to two days. She alleged that the 

way she was required to sit and stand at work would immediately aggravate her injury to her 

back, along with the repetitive movements of twisting, turning, reaching, carrying, and looking 

up and down. 

By letter dated September 9, 2016, OWCP indicated that appellant must submit further 

information in support of her recurrence claim. It afforded her 30 days to submit this 

information. 

By decision dated October 31, 2016, OWCP denied appellant’s claim for a recurrence of 

disability commencing August 17, 2016. It determined that the evidence of record was 

insufficient to establish the basis of her recurrence claim. 

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 resulting from a previous injury or 

illness without an intervening cause or a new exposure to the work environment that caused the 

illness. It can also mean 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 or when the physical requirements of such an assignment are 

altered so that they exceed his or her established physical limitations.3

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

of employment-related residuals returns to a limited-duty position or the medical evidence of 

record establishes that he or she can perform the limited-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 limited-duty work.4 To show a 

change in the degree of the work-related injury or condition, the claimant must submit 

rationalized medical evidence documenting such change and explaining how or why the accepted 

injury or condition disabled the claimant from work on and after the date of the alleged 

recurrence of disability.5

OWCP procedures recognize that, if an alleged recurrence occurs less than 90 days after 

a return to light or full duty, the claimant is not required to produce the same evidence as for a 

 3 J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is 

withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See 

also Richard A. Neidert, 57 ECAB 474 (2006). 

4 Albert C. Brown, 52 ECAB 152, 154-55 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,

38 ECAB 222, 227 (1986). 

5 James H. Botts, 50 ECAB 265 (1999). 
6

recurrence claimed long after apparent recovery and return to work. Therefore, in cases where 

recurring disability for work is claimed within 90 days or less from the first return to duty, the 

focus is on disability rather than causal relationship.6 The attending physician should describe 

the duties which the employee cannot perform and the demonstrated objective medical findings 

that form the basis for the renewed disability for work.7

ANALYSIS 

OWCP accepted that appellant sustained a contusion of the face, scalp, and neck, sprain 

of the neck, sprain of right shoulder and upper arm, and sprain of the lumbar region of the back 

causally related to the August 20, 2014 employment accident. On July 22, 2015 appellant 

underwent a right shoulder arthroscopy and subacromial decompression, bursectomy, and limited 

intra-articular debridement of partial thickness rotator cuff tear. 

Appellant’s treating physicians included Dr. Pierson, who noted in an October 23, 2015 

work capacity evaluation that appellant was unable to perform all job duties until December 3, 

2015 due to an incomplete rotator cuff tear or rupture and impingement syndrome. OWCP 

referred appellant to a second opinion physician, Dr. Mir, who noted in a November 23, 2015 

report that appellant was capable of light-duty work. In a January 13, 2016 report, Dr. Pierson 

also indicated that appellant as able to perform light-duty work, but with greater restrictions than 

those set by Dr. Mir. OWCP referred appellant to Dr. Landis for an impartial medical 

examination. Dr. Landis, in his March 22, 2016 report, indicated that appellant could return to 

full modified-duty work at the employing establishment. Dr. Landis placed limitations on 

appellant of one to two hours of sitting, walking, standing, reaching, twisting, bending, and 

stooping. He indicated that appellant could push, pull, and lift from 5 to 10 pounds. 

The employing establishment made a job offer to appellant for a modified assignment 

effective June 17, 2016. The position was crafted to be within the restrictions set by Dr. Landis 

and required intermittent sitting and walking, standing up to two hours a day, intermittent 

reaching above the shoulder, twisting, bending, and stooping up to two hours a day, and 

intermittent lifting/pushing/pulling up to 10 pounds with right upper extremity. OWCP 

determined that the duties of the position were within the restrictions as set forth by the impartial 

medical examiner, and provided appellant with proper notice to accept the position. 

Appellant returned to limited-duty work on August 13, 2016. She worked several of 

hours a day for several days, but stopped work completely on or about August 17, 2016. 

Appellant alleged a recurrence of disability, commencing August 17, 2016. She indicated that 

the amount of her pain increased dramatically with her work duties. 

The Board finds that there is no credible evidence of record, which substantiates that 

appellant experienced a change in the nature and extent of the light-duty requirements or was 

 6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(a) (June 2013). See also 

J.S., Docket No. 16-0922 (issued September 22, 2016). 

7 B.E., Docket No. 16-1480 (issued March22, 2017). 
7

required to perform duties which exceeded the medical restrictions set by the impartial medical 

examiner.8 

In support of her recurrence claim, appellant submitted medical notes from an urgent care 

center. Dr. Smith excused appellant from work from August 18 to 21, 2016 due to pain. 

However, he did not provide a rationalized medical opinion describing the duties she could not 

perform, supported by demonstrated objective findings.9

 In an August 21, 2016 work capacity 

evaluation, Dr. Chancey indicated that appellant could work, but limited her to one hour of 

walking and four hours of sitting, repetitive movements with her wrists and elbows, and 

pushing/pulling/lifting limited to 10 pounds. He indicated that appellant could perform 

sedentary work. As Dr. Chancey’s opinion supports that appellant could perform sedentary work 

within the restrictions of the modified-duty assignment, his report does not support a recurrence 

of disability. 

The Board therefore also finds that appellant has not submitted objective evidence which 

demonstrates that she was unable to perform her light-duty work after August 13, 2016.10 

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 met her burden of proof to establish a recurrence 

of disability commencing August 17, 2016 causally related to the August 20, 2014 accepted 

employment injury. 

 8 Supra note 3. 

9 Supra note 7. 

10 Id. 
8

ORDER 

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

Compensation Programs dated October 31, 2016 is affirmed. 

Issued: July 7, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board