United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.B., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

SUBMARINE BASE, Groton, CT, Employer 

__________________________________________ 

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Docket No. 15-1079 

Issued: September 2, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., 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 April 15, 2015 appellant, through counsel, filed a timely appeal from merit decisions 

of the Office of Workers’ Compensation Programs (OWCP) dated December 17, 2014 and 

February 25, 2015. 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 that he sustained a recurrence of total disability 

on September 28, 2012 causally related to a November 27, 2007 employment injury. 

On appeal counsel asserts that the December 17, 2014 and February 25, 2015 decisions 

are contrary to law and fact. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

This case has previously been before the Board. In a March 11, 2014 decision, the Board 

found that appellant failed to establish that he sustained a recurrence of total disability on 

September 28, 2012 and affirmed a May 30, 2013 OWCP decision.2 The law and facts of the 

previous Board decision are incorporated herein by reference. 

In the interim, appellant continued to submit medical reports. Dr. Michael J. Halperin, an 

attending Board-certified orthopedic surgeon, submitted a June 25, 2013 treatment note in which 

he advised that appellant had failed back syndrome. He recommended a functional capacity 

evaluation (FCE) and advised that appellant was totally disabled until the FCE was done. On 

July 5, 2013 Dr. Halperin indicated that he could not provide a definitive diagnosis as to why 

appellant could not work, noting appellant’s complaint that he could not work due to pain. He 

again recommended an FCE. 

On September 23, 2013 Dr. Michael E. Karnasiewicz, an attending Board-certified 

neurosurgeon, noted appellant’s complaint of severe radiating back pain. He provided physical 

examination findings and advised that appellant had terrible mechanical low back pain and 

should continue pain management. On June 4, 2013 Dr. John Pagglioli, Board-certified in 

anesthesiology and pain medicine, described appellant’s pain management and diagnosed postlaminectomy syndrome and lumbar radiculitis. 

A November 14, 2013 magnetic resonance imaging (MRI) scan of the lumbar spine 

demonstrated diffuse spondylosis status post fusion and discectomy at L5-S1, a bulging disc and 

small protrusion at L3-4, and right protrusion at L4-5 with annular tearing. 

In November 2013 OWCP referred appellant to Dr. Steven A. Silver, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. In a December 10, 2013 report, Dr. Silver 

noted the history of injury and his review of the medical record. Physical examination 

demonstrated straight leg raising positive at 80 degrees bilaterally, weakness of dorsiflexion of 

the right and left big toes and right ankle, and decreased sensation along the dorsum and plantar 

aspect of the right foot. Dr. Silver diagnosed status post lumbar decompression at L5-S1; status 

post repeat lumbar decompression at L5-S1 with foraminotomy and facetectomy and L5-S1 

interbody fusion; status post removal of hardware at L5-S1, with exploration of fusion mass and 

L4-5 hemilaminectomy; status post repeat L4-5 laminectomy; and lumbar decompression with 

 2

 Docket No. 13-1639 (issued March 11, 2014). On November 27, 2007 appellant, then a 46-year-old crane 

operator, filed a traumatic injury claim alleging that he injured his lower back when he was knocked back by 

equipment while at work. The claim was accepted for bilateral lumbar radiculitis. On July 24, 2008 appellant 

underwent lumbar surgery at L5-S1. He returned to full-time modified duty on December 17, 2008 and had further 

surgery at L5-S1 on April 2, 2009 and September 16, 2010. OWCP accepted the recurrences of total disability. 

Appellant returned to full-time modified duty after each procedure. His hours were reduced to six per day on 

November 2, 2011, and he received compensation for two hours daily thereafter. On January 9, 2012 appellant 

underwent surgery at the L4-5 level. On May 29, 2012 he returned to modified duty for four hours daily. Appellant 

received compensation based on a four-hour workday thereafter. On October 3, 2012 he filed a recurrence claim. 

Appellant continues to receive four hours of daily compensation. 
3

chronic lumbar low back pain. In response to specific OWCP questions, he advised that all 

surgical procedures were causally related to the November 2007 employment injury, and “his 

current difficulties and need for treatment bear a direct relationship to his November 27, 2007 

injury and are directly caused by it.” Dr. Silver continued that appellant had continuing residuals 

of the 2007 injury, based on symptoms and physical examination findings. He indicated that he 

had reviewed the duties of the supervisory crane operator position and advised that appellant was 

unable to perform these duties and requirements, noting that he had undergone four operative 

procedures to his lower back, none of which had been successful.3

 Dr. Silver concluded that 

appellant’s prognosis was poor. In an attached work capacity evaluation, he indicated that 

appellant had permanent restrictions, including that he was unable to lift greater than 10 pounds 

and was unable to sit more than one hour daily. 

On March 14, 2014 Dr. Pagglioli advised that appellant’s work status should be based on 

Dr. Halperin’s opinion. He continued to submit treatment describing appellant’s pain 

management. 

In correspondence received by OWCP on October 10, 2014, appellant, through counsel, 

timely requested reconsideration of the last merit decision which was the Board’s decision dated 

March 11, 2014. Counsel asserted that the opinion of Dr. Silver established causation and 

documented appellant’s inability to work on his executed OWCP Form 5. 

In a merit decision dated December 17, 2014, OWCP denied modification finding that 

appellant submitted insufficient medical evidence in support of his burden to establish continued 

disability. It noted that it was appellant’s burden to establish continuing disability by submitting 

well-reasoned medical evidence from a treating physician. OWCP found that the opinion from 

Dr. Silver, an OWCP referral physician, did not “substitute or outweigh” Dr. Pagglioli’s opinion, 

which was insufficient to establish that appellant sustained a recurrence of total disability. 

On February 20, 2015 appellant, through counsel, again requested reconsideration and 

submitted additional medical evidence. In a January 14, 2015 form report, Dr. Halperin advised 

that appellant was totally disabled. In a January 26, 2015 report, he reiterated that he had 

requested an FCE and that until it was authorized, he would keep appellant off work. 

Dr. Halperin concluded that appellant had been totally disabled from work since October 2, 2012 

due to injuries that occurred on November 27, 2007. Dr. Pagglioli reiterated his diagnoses and 

described appellant’s pain management on January 22, 2015. 

In a merit decision dated February 25, 2015, OWCP found that the medical evidence 

from Dr. Halperin and Dr. Pagglioli was insufficient to support appellant’s recurrence claim and 

denied modification of the prior decisions. 

 3

 The physical requirements of the supervisory crane operator position appellant was performing at the time he 

stopped work in September 2012 were: stand/walk one hour at a time for a total of four hours per day; sit for one 

hour at a time for a total of four hours a day; drive car/truck for one hour at time for a total of three hours per day; 

occasionally bend, squat, kneel, climb stairs, reach, twist, crawl in confined spaces, with lifting/carrying limited to 

10 pounds frequently and 20 pounds occasionally, and pushing and pulling to a maximum of 40 pounds. No 

ladders.
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.4

 This term also means an inability to work when a light-duty assignment 

made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of 

misconduct, nonperformance of job duties or a reduction-in-force), or when the physical 

requirements of such an assignment are altered so that they exceed his or her established physical 

limitations.5

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.6

 

ANALYSIS 

The Board finds this case is not in posture for decision. In a comprehensive 

December 10, 2013 report, Dr. Silver, an OWCP referral physician, noted the history of injury 

and his review of the medical record. Examination findings included a straight leg raising 

positive at 80 degrees bilaterally, weakness of dorsiflexion of the right and left big toes and right 

ankle, and decreased sensation along the dorsum and plantar aspect of the right foot. Dr. Silver 

diagnosed: status post lumbar decompression at L5-S1; status post repeat lumbar decompression 

at L5-S1 with foraminotomy, and facetectomy and L5-S1 interbody fusion; status post removal 

of hardware at L5-S1, with exploration of fusion mass and L4-5 hemilaminectomy; status post 

repeat L4-5 laminectomy; and lumbar decompression with chronic lumbar low back pain. He 

advised that all surgical procedures and appellant’s current condition and need for treatment 

were directly caused by the November 27, 2007 injury, based on appellant’s symptoms and 

examination findings. Dr. Silver indicated that he had reviewed the duties of the supervisory 

crane operator position that appellant was performing when he stopped work,7

 and advised that 

he was unable to perform these duties and requirements, noting that the four operative 

procedures appellant had to his lower back had not been successful. He concluded that 

appellant’s prognosis was poor. Dr. Silver also provided a work capacity evaluation in which he 

reported that appellant had permanent restrictions, including that he was unable to lift greater 

than 10 pounds and was unable to sit more than one hour daily. 

 4

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

5 Id. 

6 J.F., 58 ECAB 124 (2006); Carl C. Graci, 50 ECAB 557 (1999); Mary G. Allen, 50 ECAB 103 (1998); see also 

Terry R. Hedman, 38 ECAB 222 (1986). 

7 Supra note 3. 
5

Although OWCP briefly mentioned Dr. Silver’s report in its December 17, 2014 

decision, it stated that, as the burden was on appellant to establish continuing disability, 

Dr. Silver’s opinion was insufficient to substitute or outweigh the reports of appellant’s attending 

physicians. It found the reports from the attending physicians insufficient to meet appellant’s 

burden to establish that he sustained a recurrence of total disability on September 28, 2012. 

OWCP did not mention Dr. Silver’s report in the February 25, 2015 decision. 

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility in the development of the evidence. Once it has begun an investigation of a 

claim, it must pursue the evidence as far as reasonably possible. OWCP has an obligation to see 

that justice is done.8

 Moreover, its procedures provide that in a decision denying a claim, OWCP 

should identify and discuss all evidence which bears on the issue at hand and should summarize 

the relevant facts and medical opinions.9

Dr. Silver’s report is certainly relevant to the issue of whether appellant sustained a 

recurrence of total disability on September 28, 2012 and is supportive of his recurrence claim. 

OWCP, however, did not discuss the physician’s findings and conclusions in either the 

December 17, 2014 or February 25, 2015 merit decision. 

The case is remanded to OWCP for consideration and review of all the evidence in the 

record including Dr. Silver’s report. Following this and any further development deemed 

necessary, OWCP shall issue a de novo merit decision which includes findings of fact and a clear 

and precise statement regarding whether all evidence of record establishes that appellant 

sustained a recurrent of total disability on September 28, 2012. 

CONCLUSION 

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

established a recurrence of total disability on September 28, 2012. 

 8 A.A., 59 ECAB 726 (2008). 

9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.144.4.f (February 2013); see

Avalon C. Bailey, 56 ECAB 223 (2004). 
6

ORDER 

IT IS HEREBY ORDERED THAT the February 25, 2015 and December 17, 2014 

decisions of the Office of Workers’ Compensation Programs are set aside and the case is 

remanded to OWCP for proceedings consistent with this opinion of the Board. 

Issued: September 2, 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