United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.G., Appellant

and

U.S. POSTAL SERVICE, CITIGATE 

PROCESSING & DISTRIBUTION CENTER, 

Columbus, OH, Employer

__________________________________________

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Docket No. 17-1179

Issued: February 8, 2018

Appearances: Case Submitted on the Record

Stanley R. Stein, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 8, 2017 appellant, through counsel, filed a timely appeal from a February 22, 

2017 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 established a recurrence of total disability on May 16, 

2015 and partial disability beginning June 25, 2015.

On appeal counsel asserts that the medical evidence of record establishes that appellant 

was unable to perform the duties of the modified position he began on January 26, 2015 due to 

the many accepted bilateral hand conditions. 

FACTUAL HISTORY

On August 29, 2009 appellant, then a 46-year-old maintenance mechanic, filed an 

occupational disease claim (Form CA-2) alleging that his job duties caused right wrist pain. He 

stopped work that day. On September 11, 2009 OWCP accepted bilateral aggravation of carpal 

tunnel syndrome, bilateral aggravation of carpometacarpal (CMC) joint arthropathy of thumbs, 

and bilateral aggravation of trigger finger of long and ring fingers. Appellant stopped work on 

January 30, 2010. He received wage-loss compensation and was placed on the periodic 

compensation rolls in April 2010. Appellant briefly returned to work in June 2010 and was 

returned to the periodic rolls in August 2010.

Appellant began treatment with Dr. Eric A. Schaub, Board-certified in internal and 

occupational medicine, on August 18, 2009. 

Dr. Lawrence M. Lubbers, Board-certified in orthopedic and hand surgery, performed 

trigger finger releases on February 8 and April 6, 2010, a right carpal tunnel release on July 26, 

2010, resection arthroplasty of left thumb CMC joint on September 27, 2010, and the right 

thumb on November 22, 2010. He performed an additional right thumb procedure on 

January 24, 2011, and additional left thumb procedures on February 14, May 9, and 

August 2, 2011. 

OWCP expanded the accepted conditions to include localized primary osteoarthritis of 

the right hand, bilateral closed dislocation of wrist, bilateral closed dislocation of finger, and 

bilateral ulnar nerve lesion. 

On September 11, 2013 Dr. Lubbers performed right cubital tunnel release and cubital 

tunnel release on the left on April 9, 2014. 

A July 17, 2014 functional capacity evaluation (FCE) noted that appellant could 

occasionally lift 15 pounds below waist and to shoulder height, could carry 15 pounds, and could 

push and pull 23 pounds. He was able to constantly perform fingering, simple hand grasping, 

firm hand grasping, and fine/gross manipulation. Bilateral upper and lower extremity active 

range of motion was within functional limits. 

Appellant was referred for vocational rehabilitation services with Gordon McNamee, a 

rehabilitation counselor, in September 2014. 

In a November 5, 2014 report, Dr. Schaub noted 5+ grip strength bilaterally, a negative 

Tinel’s sign bilaterally, and pronounced decreased sensation in the fifth digits bilaterally with 
3

modest decreased sensation in the fourth digits bilaterally. He diagnosed bilateral ulnar 

neuropathy, status post release with persistent pain and paresthesias, bilateral carpal tunnel 

syndrome, and status post release. On a duty status report (Form CA-17) also dated 

November 5, 2014, Dr. Schaub noted that appellant could sit, stand, and walk four to six hours 

daily, could push and pull 23 pounds of force, and could perform simple grasping and fine 

manipulation. He referenced the July 17, 2014 FCE. On December 3, 2014 Bethany Stranges, a 

physician assistant to Dr. Schaub, repeated the restrictions provided by Dr. Schaub. 

On December 29, 2014 Mr. McNamee reported that appellant had a 70 percent Veterans 

Administration disability based on a back injury, post-traumatic stress disorder, and diabetes 

with osteoarthritis. He opined that these conditions, along with appellant’s severe bilateral workrelated arm conditions, rendered him unemployable in the general labor market. 

On January 14, 2015 the employing establishment offered appellant a modified

maintenance mechanic position. Appellant was to perform standard duties of a maintenance 

mechanic for eight hours daily with intermittent sitting, standing, walking, and grasping limited 

to four to six hours daily and a 15-pound weight restriction. Bending and stooping were limited 

to 1 to 3 hours intermittently and he was to have 15-minute breaks twice daily. Appellant 

returned to this position on January 26, 2015.3 

On January 28, 2015 Dr. Schaub reiterated appellant’s physical restrictions. In a 

February 13, 2015 treatment note, he reported appellant’s complaint that he had difficulty with 

pinch grip at work, noting that tightening machine bolts required awkward hand postures that 

caused swelling and pain. Dr. Schaub found questionable swelling on examination, and advised 

that he was adjusting appellant’s restrictions. On a February 13, 2015 duty status report (Form 

CA-17), he advised that appellant’s pinch, grasp, and fine manipulation should be limited to 

occasional as tolerated. On June 3, 2015 Dr. Schaub noted that appellant was off work. He 

noted appellant’s grip strength as 4+ to 5-/5+ and advised that he would reduce appellant’s work 

hours to four hours a day, five days a week, due to increased hand pain and weakness. On a duty 

status report of the same date, Dr. Schaub reiterated that appellant’s pinch, grasp, and fine 

manipulation should be limited to occasional as tolerated. 

On June 25, 2015 the employing establishment offered appellant a modified position for 

four hours daily. Appellant was to scan placards on the dock, coming off and going onto trailers. 

Intermittent standing, sitting, and walking, and simple grasping were limited to four hours with a 

15-pound lifting restriction. He accepted the position on June 26, 2015. 

On July 22, 2015 Dr. Schaub noted that appellant was working reduced hours and that, 

while his hand pain and paresthesias increased by the end of his shift, he could tolerate them. He 

recommended an electromyograph/nerve conduction velocity study (EMG/NCV) to evaluate his 

paresthesias. Dr. Schaub continued to limit appellant to four hours of limited duty daily with 

pinch, grip, and fine manipulation limited to occasional as tolerated.

 

3 Appellant’s effective pay rate was greater than that when injured. On April 7, 2015 OWCP noted that he had 

been working consistently for over 60 days with no wage loss. 
4

An October 14, 2015 EMG/NCV revealed likely significant residual damage from prior 

carpal tunnel on the right and bilateral ulnar neuropathies. On October 30, 2015 Dr. Schaub 

opined that the EMG/NCV findings appeared to be related to appellant’s prior nerve injuries and

surgeries. He recommended pain management and reiterated appellant’s restrictions. On 

December 23, 2015 Dr. Schaub noted that appellant had seen Dr. Kedar K. Deshpande, a Boardcertified physiatrist, for pain management. On January 6, 2016 he noted appellant’s many hand 

surgeries, advising that appellant’s improvement after the surgeries was limited with continued 

hand pain and weakness. 

In a January 5, 2016 report, Dr. Deshpande noted appellant’s complaint of bilateral right 

upper extremity pain radiating from the elbows into the hands. He diagnosed carpal tunnel 

syndrome, lesion of ulnar nerve, and primary localized osteoarthrosis of the hand, and described 

appellant’s pain management. 

On January 11, 2016 appellant filed a claim for compensation (Form CA-7) for the period 

May 16, 2015 to January 8, 2016. Time analysis forms (Form CA-7a), certified by the 

employing establishment, indicated that he did not work from May 16 through June 22, 2015 

when he took annual and sick leave and claimed leave without pay (LWOP). Appellant returned 

to four hours of daily work on June 25, 2015 and claimed approximately four hours of LWOP 

thereafter through January 8, 2016. 

In a January 20, 2016 report, Dr. Schaub noted examination findings of decreased 

sensation in all digits with bilateral paresthesias in the fourth and fifth digits. He recommended 

that appellant apply ice and/or heat throughout the day for additional pain relief and reiterated his 

restrictions. Dr. Schaub continued to submit reports noting decreased sensation in both hands. 

He reiterated his restrictions.4 Dr. Deshpande continued to provide pain management. 

By decision dated April 19, 2016, OWCP denied appellant’s claim for a recurrence of 

total disability beginning May 16, 2015 and partial disability beginning June 25, 2015. It found 

the medical evidence insufficient to establish the disability claimed, noting that pain, without 

more rationale, did not constitute a basis for the payment of compensation. 

Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings 

and Review. Additional medical evidence submitted included pain management treatment notes 

from Dr. Deshpande dated December 16, 2015 to October 4, 2016. On March 2, 2016

Dr. Deshpande noted examination findings of paresthesias in the ulnar distribution of bilateral 

upper extremities. 

Dr. Robin S. Berner, an associate of Dr. Schaub who is Board-certified in occupational 

medicine, saw appellant on April 20, 2016. She described appellant’s history, noting that he 

returned to a mechanic position in January 2015, but could not tolerate that work beyond four 

hours. Examination revealed bilateral well-healed surgical scars at the elbow, wrist, and 

overlying the thumb CMC joint. Appellant was tender to palpation of both wrists with 

diminished sensation in median and ulnar distribution. Carpal tunnel compression test and 

 

4 A March 9, 2016 magnetic resonance imaging scan of the cervical spine demonstrated multilevel degenerative 

changes. 
5

Tinel’s sign at both wrists and elbows were positive. Digit and thumb range of motion were 

diminished. Dr. Berner diagnosed bilateral cubital tunnel syndrome and bilateral primary 

osteoarthritis of both first CMC joints. She advised that appellant had persistent pain and 

functional limitations associated with his multiple upper extremity diagnoses that prevented his 

return to full-time work and substantially impacted his recreational pursuits. Dr. Berner noted

that an EMG/NCV showed chronic and active denervation of the median nerve bilaterally which

was a possible source of the on-going symptoms. She recommended follow-up with Dr. Lubbers

and reiterated Dr. Schaub’s restrictions of limiting pinch and fine manipulation to occasionally as 

tolerated and working up to four hours daily. Dr. Berner restated her conclusions on 

May 23, 2016. 

In a June 27, 2016 report, Dr. Lubbers noted appellant’s complaint of paresthesias and 

dysesthesias. He reviewed the October 14, 2015 EMG/NCV and found a positive Tinel’s sign at 

both wrists on examination with pseudomotor changes present on the left and thenar atrophy of 

40 percent bilaterally. Dr. Lubbers noted that appellant’s bilateral CMC joint surgery limited 

examination of his thenar atrophy, and recommended a diagnostic ultrasound.5 

On June 29, 2016 Dr. Berner noted that appellant had seen Dr. Lubbers. She told 

appellant that she needed specific activity/restriction guidelines from Dr. Lubbers. Dr. Berner 

reiterated her conclusions about appellant’s condition and extended his previous restrictions. On 

July 29, 2016 she indicated that he could work eight hours daily, but should continue to limit 

pinch, fine manipulation, and forceful grip to four hours daily. Dr. Berner reiterated these 

findings and conclusions on September 9, 2016. 

On December 12, 2016 Dr. Jeffrey A. Strakowski, Board-certified in physiatry and pain 

medicine, described appellant’s complaints of chronic arm pain, numbness, and tingling. 

Appellant had right thumb and small finger triggering and pain on the right with Spurling’s 

maneuver. A high frequency ultrasound study showed findings consistent with persistent right 

median nerve entrapment at the carpal tunnel level with overlying scar. Appellant had borderline 

enlargement of the left median nerve at the carpal tunnel, and an anatomic variant of early 

bifurcation of the median nerve above the left carpal tunnel space as well as evidence of 

stenosing tenosynovitis of the right thumb and small finger. Dr. Strakowski opined that these 

were clear signs of persistent median nerve compression on the right and borderline evidence on 

the left. He suggested correlating with EMG studies. 

In a January 4, 2017 report, Dr. Schaub noted the accepted conditions. He advised that 

on June 3, 2015 appellant was having increasing hand pain, weakness, and numbness.

Dr. Schaub felt that this was related to overuse of his hands at work, opining that he felt the 

overuse was aggravating appellant’s arthropathy and possibly was causing increased symptoms 

from his surgically released median and ulnar nerves. He noted that appellant continued to 

attempt to work in spite of pain, weakness, and numbness, but his symptoms increased to the 

point that he stopped work on May 16, 2015. Dr. Schaub indicated that appellant’s examination 

on June 3, 2015 demonstrated impaired grip strength and this objective physical finding in 

addition to reported pain and weakness was enough to recommend a reduction in appellant’s 

 

5 Dr. Lubbers also noted that appellant had associated findings per dictation by his nurse practitioner. The record 

before the Board does not contain this dictation.
6

work hours. He maintained that appellant’s objective hand weakness was sufficient to try a 

reduction in work activity. 

At the hearing, held on January 18, 2017, counsel asserted that appellant’s return to work 

in January 2015 caused his employment-related arm conditions to flare, and Dr. Schaub placed 

additional restrictions. Appellant testified that when he returned to work in January 2015 he was 

doing standard mechanic duties such as vacuuming and cleaning machines and replacing parts 

with nuts and bolts, and this caused his hands to swell with limited range of motion, numbness, 

and cramping. He noted that in June 2015 the employing establishment offered him a part-time 

position that he could tolerate, and in October 2016 began working that job full time. 

By decision dated February 22, 2017, an OWCP hearing representative affirmed the 

denial of the claim for recurrence finding that appellant did not establish total disability 

beginning May 16, 2015 and partial disability beginning June 25, 2015. He found Dr. Schaub’s 

January 4, 2017 report insufficient to establish that appellant sustained a recurrence of disability, 

noting that Dr. Schaub attributed the worsening of appellant’s conditions to overuse of his hands 

at work and not to a recurrence of disability. 

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

made specifically to accommodate an employee’s physical limitations due to the work-related 

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.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 light duty can be performed, the employee has the burden of proof to establish by 

the weight of reliable, probative, and substantial evidence a recurrence of total disability. As part 

of this burden of proof, the employee must show either a change in the nature and extent of the 

injury-related condition, or a change in the nature and extent of the light-duty requirements.8

An individual who claims a recurrence of disability resulting from an accepted 

employment injury has the burden of proof to establish that the disability is related to the 

accepted injury. This burden requires furnishing medical evidence from a physician who, on the 

basis of a complete and accurate factual and medical history, concludes that the disabling 

 

6 20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

7

Id.

8 Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB 

222 (1986).
7

condition is causally related to the employment injury and supports that conclusion with sound 

medical reasoning.9 

ANALYSIS

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

Appellant began treatment with Dr. Schaub in August 2009. On January 14, 2015 the 

employing establishment offered him a modified maintenance mechanic position based on 

restrictions provided by Dr. Schaub in November 2014 of sitting, standing, and walking limits to 

four to six hours daily, pushing and pulling limited to 23 pounds of force. Dr. Schaub also 

advised that appellant could perform simple grasping and fine manipulation. On January 26, 

2015 appellant returned to the modified position that included standard duties of a maintenance 

mechanic for eight hours daily with intermittent sitting, standing, walking, and grasping limited 

to four to six hours daily, with a 15-pound weight restriction. Bending and stooping were limited 

to one to three hours intermittently, and appellant was to have 15-minute breaks twice daily. 

Appellant did not work from May 16 through June 22, 2015. On June 25, 2015 he 

returned to a modified position for four hours daily with duties of scanning placards on the dock, 

coming off and going onto trailers. Intermittent standing, sitting, and walking, and simple 

grasping were limited to four hours with a 15-pound lifting restriction. Appellant claimed total 

disability for the period May 16 through June 22, 2015, and partial disability beginning 

June 25, 2015. 

The medical evidence supporting an increase in disability includes reports from

Dr. Schaub, who began treating appellant in 2009. On February 13, 2015 less than 30 days after 

appellant began his modified position, he reported to Dr. Schaub that the awkward hand postures 

required for repairing machines caused hand swelling and pain. Dr. Schaub found possible

swelling on examination and advised that pinch, grip, and fine manipulation should be limited to 

occasional as tolerated. On June 3, 2015 he noted that appellant’s grip strength, which had been 

5+ bilaterally, was reduced to 4+ to 5-/5+. Dr. Schaub advised that appellant should only work 

four hours daily and reiterated his restrictions on pinch, grip and fine manipulation. On July 22, 

2015 he recommended an EMG/NCV to evaluation appellant’s paresthesias. This was done on 

October 14, 2015 and demonstrated significant residual damage on the right and bilateral ulnar 

neuropathies. 

In a January 20, 2016 report, Dr. Schaub noted decreased sensation in all digits with 

bilateral paresthesias in the fourth and fifth digits. On January 4, 2017 he described appellant’s 

medical and surgical history. Dr. Schaub noted that he felt appellant’s complaints of hand pain, 

weakness, and numbness were related to overuse at work which aggravated his arthropathy and 

that, on June 3, 2015, appellant’s findings included impaired grip strength which, together with 

his reported pain and weakness, was enough to recommend a reduction in work hours. 

Dr. Berner, who began treating appellant in April 2016, also described objective findings 

including wrist tenderness and diminished sensation in the median and ulnar distribution with 

 

9 S.S., 59 ECAB 315 (2008).
8

positive carpal tunnel compression tests and Tinel’s signs. She opined that his pain and 

functional limitations associated with his multiple upper extremity diagnoses prevented his 

return to full-time work and substantially impacted his recreational pursuits. Dr. Berner noted 

the EMG/NCV findings of chronic and active denervation of the median nerve bilaterally and 

opined that this was a possible source of the on-going symptomatology. She recommended that 

appellant see Dr. Lubbers. 

On June 27, 2016 Dr. Lubbers noted examination findings of positive Tinel’s signs at 

both wrists with pseudomotor changes present on the left and thenar atrophy of 40 percent 

bilaterally. He recommended a diagnostic ultrasound. Dr. Strakowski performed an ultrasound 

of both hands and wrists on December 12, 2016. It showed persistent right median nerve 

entrapment at the carpal tunnel level with overlying scar, evidence of borderline enlargement of 

the left median nerve at the carpal tunnel, and an anatomic variant of the early bifurcation of the 

median nerve above the carpal tunnel space on the left, and evidence of right thumb and small 

finger stenosing tenosynovitis. Dr. Strakowski opined that these were clear signs of persistent 

median nerve compression on the right and borderline evidence on the left. 

The Board finds that while these reports, which showed evidence of objective upper 

extremity findings beginning in February 2015, lack detailed medical rationale sufficient to 

discharge appellant’s burden of proof that he was totally disabled for the period May 16 to 

June 22, 2015 and partially disabled beginning June 25, 2015 until he returned to full-time 

modified duty in October 2016, this does not mean that they may be completely disregarded by 

OWCP. It merely means that their probative value is diminished.10 As delineated above, each 

physician described physical findings which could preclude appellant from performing either 

modified machine mechanic position on a part or full-time basis.

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

OWCP is not a disinterested arbiter. While the claimant has the burden of proof to establish 

entitlement to compensation, OWCP shares responsibility in the development of the evidence. It 

has the obligation to see that justice is done.11

The case shall therefore be remanded to OWCP. On remand, OWCP shall refer 

appellant, an updated statement of accepted facts, and the medical evidence of record to an 

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

to whether he was totally disabled from May 16 to June 22, 2015 and partially disabled at any 

time beginning June 25, 2015 due to the accepted conditions. After this and such further 

development deemed necessary, it shall issue a de novo decision.

CONCLUSION

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

established total disability for the period May 16 to June 22, 2015 and partial disability 

beginning June 25, 2015.

 

10 O.P., Docket No. 15-0435 (issued September 22, 2016); John J. Carlone, 41 ECAB 354 (1989).

11 William J. Cantrell, 34 ECAB 1223 (1983).
9

ORDER

IT IS HEREBY ORDERED THAT the February 22, 2017 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: February 8, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board