United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.P., Appellant 

and 

U.S. POSTAL SERVICE, NORTH RICHLAND 

HILLS POST OFFICE, North Richland Hills, TX, 

Employer 

__________________________________________ 

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Docket No. 15-1335 

Issued: October 6, 2016 

Appearances: Case Submitted on the Record

Debra Hauser, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 7, 2014 appellant, through counsel, filed a timely appeal of a November 20, 

2013 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The issue is whether OWCP properly rescinded acceptance of a recurrence of disability 

of May 13, 2013 causally related to appellant’s June 24, 1998 employment injury. 

On appeal, counsel argues that OWCP failed to meet its burden and to follow its 

procedures when rescinding acceptance of the recurrence claim. 

FACTUAL HISTORY 

On January 7, 1999 appellant, then a 42-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that on June 24, 1998 he first became aware of his bilateral 

thumb condition. However, it was not until November 18, 1998 that he realized his condition 

was employment related. OWCP accepted the claim for temporary aggravation of bilateral 

thumb arthritis.3

 Appellant worked light-duty positions until being placed on the periodic rolls 

for temporary total disability effective October 21, 2010. On March 27, 2013 he returned to 

work in a limited-duty carrier position, but stopped work again on March 29, 2013. 

Appellant returned to work again on April 20, 2013 at the employing establishment. A 

rehabilitation counselor was assigned to appellant to ensure a successful return to work. It was 

determined that there was no full-time modified work for him at this station. 

On May 10, 2013 the employing establishment offered appellant the position of modified 

city carrier at the Seminary Hill Station. Work hours were 8:30 a.m. to 5:00 p.m. with rotating 

scheduled days off. The duties of the position included 5.50 hours of delivering mail and 2.50 

hours of lobby assistance. Physical restrictions included 1 to 5.33 hours per day of simple 

grasping/fine manipulation, 1 to 8 hours of standing and walking, 1 to 2 hours of lifting up to 10 

pounds and 1 to 4 hours of pulling/pushing. On May 13, 2013 appellant refused the offered 

position because he believed the park and loop delivery of mail required lifting of more than 10 

pounds. 

By letter of May 22, 2013, appellant was advised that the position was determined to be 

suitable work and that he had 30 days to either accept the position or provide written explanation 

as to why he refused it. In response, he submitted a May 22, 2013 duty status report from 

Dr. Deepak V. Chavda, a treating orthopedic surgeon. In a May 22, 2013 report, Dr. Chavda 

diagnosed bilateral hand and wrist osteoarthritics, bilateral carpal tunnel syndrome more on the 

left than the right, bilateral de Quervain’s syndrome, and left side thenar atrophy. A physical 

examination of the left and right hands and wrists “shows well-healed scar over the 

carpometacarpal joint area extending towards the wrist area,” thenar atropy, normal wrist and 

digits range of motion, and positive Finkelstein’s, Tinel’s, and Phalen’s tests. The right hand and 

wrist physical also reflected grip and pinch weakness. Dr. Chavda’s review of x-ray 

interpretations of both hands showed major carpometacarpal (CMC) joint arthropathy and mild 

interphalangeal and metacarpophalangeal joint arthropathy. He provided recommendations 

 3

 By decision dated October 26, 2007, OWCP granted appellant a schedule award for 11 percent permanent 

impairment of the right upper extremity. 
3

which included bilateral wrist splints, a magnetic resonance imaging (MRI) scan of both hands 

and wrists, and limited or no use of both hands at work. 

On May 28, 2013 OWCP received a May 21, 2013 duty status report from Dr. Chavda. 

Dr. Chavda indicated that appellant had limited use of both his thumbs and that appellant was off 

work pending hand and wrist MRI scans. 

In June 5 and 13, 2013 reports, Dr. Chavda reviewed MRI scans of the hands and wrists. 

He found appellant capable of working with limited use of both hands. Based on a review of the 

MRI scan, he diagnosed bilateral wrist and hand osteoarthritis, clinical bilateral carpal tunnel 

syndrome, bilateral de Quervain’s syndrome, left side thenar atropy, severe left first 

carpometacarpal osteoarthrits, left intercarpal joint effusion, left subchondral cyst in the lateral 

lunate and distal scaphoid, right subchondral edema in the lateral lunate, and right separated bone 

fragment seen anteromedially. 

In a June 5 and 13, 2013 duty status reports, Dr. Chavda indicated that appellant was 

disabled from working, but noted work restrictions of no driving a motor vehicle at work and 

limited to no use of both his wrists/hands. 

In a duty status report and reports dated June 27 and July 18 2013 from OWCP 

Dr. Chavda reiterated prior findings and diagnoses. He again reported that appellant was capable 

of working light duty with limited use of both hands. OWCP also received duty status reports 

dated June 28 and July 17, 2013 from Dr. Chavda restricting appellant’s use of his hands and no 

driving a motor vehicle. 

On August 22, 2013 OWCP terminated appellant’s wage-loss compensation benefits 

effective August 16, 2013 after he refused an offer of suitable work pursuant to 

5 U.S.C. § 8106(c). 

On September 5, 2013 appellant filed a claim for a recurrence of disability beginning 

May 13, 2013 causally related to his accepted June 24, 1998 employment injury. He stated that 

he was unable to use his hands which the job required and that his condition had worsened. 

Appellant related that he had significant pain after being required to use his hand continuously 

upon returning to work. 

Subsequent to appellant filing his recurrence claim OWCP received additional medical 

evidence. OWCP received reports dated July 18 and August 29, 2013 which reiterated physical 

findings and diagnoses from Dr. Chavda’s prior reports. Dr. Chavda reiterated work restrictions 

of limited use of appellant’s hands and wrists. 

By decision dated September 30, 2013, OWCP accepted appellant’s claim for a 

recurrence of disability based on a May 22, 2013 report from Dr. Chavda.4

 

 4

 On September 24, 2013 OWCP recommended converting appellant’s September 5, 2013 claim for a recurrence 

of disability into a new occupational disease claim with a date of injury of May 13, 2013 as a new injury was clearly 

indicated based on the exposure to new work factors. It recommended that, following the creation of the new claim, 

that both claims should be doubled. The new claim was assigned OWCP File No. xxxxxx797. 
4

On October 28, 2013 OWCP received a May 29, 2013 initial evaluation report which was 

signed by Dr. Chavda, Dr. Daniel L. Brown, a chiropractor, and Mark Dodson, a physical 

therapist. The report noted that in 1998 appellant first became aware of his bilateral wrist injury 

due to his repetitive work. Physical examination revealed decreased strength and range of 

motion for both wrists, bilateral pain on Finkelstein’s, Tinel’s, and Phalen’s tests. A three-week 

active rehabilitation exercise program was recommended. 

On October 11, 2013 Dr. Chavda diagnosed bilateral wrist and hand osteoarthritis, 

bilateral de Quervain’s syndrome, left side thenar atrophy, and bilateral carpal tunnel syndrome. 

He noted that appellant’s recurrence claim had been accepted and that appellant remained off 

work pending electromyograph studies. In an attached CA-17 form, Dr. Chavda indicated that 

appellant remained totally disabled from working and requested expansion of his claim to 

include bilateral carpal tunnel syndrome. 

By decision dated November 20, 2013, OWCP rescinded its acceptance of the recurrence 

of disability dated September 30, 2013 as OWCP determined that the case should have properly 

been adjudicated as a new injury claim due to the new work factors. Thus, it converted 

appellant’s claim for a recurrence into a new occupational disease claim under OWCP File 

No. xxxxxx797. 

LEGAL PRECEDENT 

Section 8128 of FECA provides that the Secretary of Labor may review an award for or 

against payment of compensation at any time on his own motion or on application.5 The Board 

has upheld OWCP’s authority to reopen a claim at any time on its own motion under section 

8128 of FECA and, where supported by the evidence, set aside or modify a prior decision and 

issue a new decision.6 The Board has noted, however, that the power to annul an award is not an 

arbitrary one and that an award for compensation can only be set aside in the manner provided 

by the compensation statute.7

Workers’ compensation authorities generally recognize that compensation awards may be 

corrected, in the discretion of the compensation agency and in conformity with statutory 

provisions, where there is good cause for so doing, such as mistake or fraud.8

 It is well 

established that, once OWCP accepts a claim, it has the burden to justify the termination or 

modification of compensation benefits. This holds true where OWCP later decides that it 

erroneously accepted a claim. To establish that its prior acceptance of the recurrence was 

erroneous, OWCP is required to provide a clear explanation of the rationale for rescission.9

 5

 5 U.S.C. § 8128. 

6 L.C., 58 ECAB 493 (2007); D.G., 59 ECAB 74 (2008); John W. Graves, 52 ECAB 160 (2000). 

7

 20 C.F.R. § 10.610. 

8 V.C., 59 ECAB 137 (2007). 

9 S.R., Docket No. 09-2332 (issued August 16, 2010); H.G., 59 ECAB 552 (2008); John W. Graves, supra note 6. 
5

ANALYSIS 

In a September 30, 2013 decision, OWCP accepted appellant’s claim for recurrence 

effective May 13, 2013. On October 9, 2013 it issued a proposal to rescind acceptance of the 

recurrence as it determined that his claim for recurrence should have been handled as a new 

occupational disease claim. By decision dated November 20, 2013, an OWCP hearing 

representative issued a final decision to rescind acceptance of the recurrence of disability and 

converted the May 13, 2013 claim to an occupational disease claim to be adjudicated under 

OWCP File No. xxxxxx797. 

The Board has recognized OWCP’s authority to reopen a claim at any time on its own 

motion. In rescinding a prior acceptance, the Board must provide a clear explanation of the 

rationale for the decision.10 The Board finds that OWCP provided a clear rationale for 

rescinding its prior acceptance of a recurrence of disability. The Board determined that 

appellant’s claim was more appropriately handled as a new claim due to his exposure to new 

employment factors after he returned to work. 

Appellant attributed his inability to work due to a worsening of his conditions as a result 

of being required to use his hand continuously upon returning to work. A recurrence is defined 

as a spontaneous change in a medical condition which resulted from a previous injury or illness 

without an intervening injury or new exposure to the work environment that caused the illness.11 

It does not include a condition that results from a new injury, even if it involves the same part of 

the body previously injured.12 The Board finds that the claimed disability was more 

appropriately considered as an intervening injury and new exposure to work factors which 

negated the causal relationship between the accepted conditions and his condition as of 

May 13, 2013. The Board finds, therefore, that OWCP provided a clear explanation for its 

recisssion.13

In 1999, OWCP had accepted appellant’s occupational disease claim for temporary 

aggravation of bilateral thumb arthritis. The contemporaneous medical evidence includes reports 

from Dr. Chavda diagnosing bilateral hand and wrist osteoarthritis, bilateral carpal tunnel 

syndrome more on the left than the right, bilateral de Quervain’s syndrome, and left side thenar 

atrophy. He provided work restrictions of limited use of appellant’s hands and wrists. These 

were all new injuries and Dr. Chavda did not discuss appellant’s accepted conditon. The Board 

finds that OWCP has met its burden of proof to rescind acceptance of the recurrence. 

 10 Supra note 9. 

11 20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004). 

12 OWCP procedures state that a recurrence of disability includes a work stoppage caused by a spontaneous 

material change, demonstrated by objective findings, in the medical condition that resulted from a previous injury or 

occupational illness without an intervening injury or new exposure to factors causing the original illness. Federal 

(FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2(b) (June 2013). Kenneth R. Love, 50 

ECAB 193 (1998). 

13 See Bryant F. Blackmon, 56 ECAB 752 (2005). 
6

On appeal counsel argues that OWCP failed to meet its burden to rescind acceptance of 

appellant’s claim for a recurrence of disability. In support of this argument he argued that 

OWCP based the rescission on a weighing of evidence already in the record to arrive at a 

different conclusion. Counsel cites to D.M., Docket No. 11-2052 (issued March 14, 2012); A.C., 

Docket No. 07-0224 (issued July 23, 2007); G.L., Docket No. 08-2533 (issued May 11, 2009); 

and George E. Reilly, 44 ECAB 458 (1993). However, as discussed above, OWCP based its 

decision on the fact that it should properly have been handled as a new injury claim, as appellant 

had returned to work in March and April 2013. None of the cases cited by counsel are in accord 

with the facts of this case nor do they disagree with the holding of the Board in this case. In A.C.

and G.L., the Board found that OWCP had properly rescinded acceptance of appellant’s claim 

and, in D.M., although the Board found OWCP had not properly rescinded the acceptance of the 

claim, there had been no intervening work factors. In George E. Reilly,

14 the Board found that 

OWCP had improperly rescinded acceptance of appellant’s claim because it had not provided 

new evidence. OWCP has since changed its regulations, and the Board has affirmed, that OWCP 

need not submit new evidence to meet its burden of proof to rescind.15 

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 OWCP met its burden of proof to rescind acceptance of a recurrence 

of disability of May 13, 2013. 

 14 44 ECAB 458 (1993). 

15 See supra note 7. 
7

ORDER 

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

Compensation Programs dated November 20, 2013 is affirmed. 

Issued: October 6, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board