United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

City of Industry, CA, Employer 

__________________________________________ 

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Docket No. 15-1628 

Issued: October 19, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 27, 2015 appellant filed a timely appeal from a June 19, 2015 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 his burden of proof to establish a recurrence of total 

disability on or after August 26, 2014. 

FACTUAL HISTORY 

On October 24, 2012 appellant, then a 43-year-old retail sales and service clerk, filed an 

occupational disease claim (Form CA-2) alleging that he sustained injury to both shoulders and 

 1

 5 U.S.C. §§ 8101-8193. 
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elbows due to engaging in job duties for 22 years that required repetitive reaching, grabbing, 

lifting, pushing, pulling, and typing. He did not stop work at that time. 

In an October 31, 2012 letter, appellant’s immediate supervisor stated that, for the past 

five years, appellant had been working 20 hours per week in a light-duty position which required 

him to occasionally lift objects weighing up to 10 pounds. He indicated that the job did not 

require appellant to reach above his shoulder level. 

OWCP accepted that appellant sustained bilateral shoulder tendinitis. Appellant later 

stopped work and received partial disability compensation on the daily rolls for four hours per 

workday beginning June 17, 2013. 

In a May 6, 2014 form report, Dr. Charles Herring, an attending Board-certified 

orthopedic surgeon, indicated that appellant could work eight hours per day limited to continuous 

lifting up to 15 pounds and intermittent lifting up to 25 pounds. 

In a July 2, 2014 report, Dr. Edward Mittleman, an attending Board-certified family 

practitioner, indicated that he treated appellant for shoulder and elbow complaints. He reported 

his examination findings and diagnosed bilateral shoulder tenosynovitis (accepted), bilateral 

shoulder adhesive capsulitis, bilateral elbow lateral epicondylitis, and bilateral shoulder 

acromioclavicular joint arthropathy. Dr. Mittleman stated that appellant worked for four hours 

per day and indicated that he could return to modified work with restrictions of lifting and 

carrying up to 25 pounds on an intermittent basis and reaching above the shoulder level for up to 

one hour.2

In August 2014, appellant elected to receive Office of Personnel Management (OPM) 

retirement benefits instead of FECA benefits. He was taken off FECA’s daily compensation 

rolls effective August 25, 2014 and began to receive OPM benefits. 

In a September 4, 2014 report, Dr. Mittleman reported his examination findings and 

diagnosed the same conditions as identified in his July 2, 2014 report. He stated that appellant 

could return to modified work with restrictions of continuously lifting up to 15 pounds and 

intermittently lifting up to 25 pounds. 

In a March 27, 2015 letter to OWCP, appellant reported that he had retired effective 

August 26, 2014 but was now electing to receive FECA benefits instead of OPM benefits 

retroactive to August 26, 2014. On April 21, 2015 he asserted that he was entitled to FECA 

compensation for total disability beginning August 26, 2014. 

In a letter dated April 30, 2015, OWCP noted that appellant had been working in a lightduty position (20 hours per week). By requesting to return to FECA benefits, OWCP determined 

that appellant was effectively claiming a recurrence of total disability due to his accepted work 

injury, bilateral shoulder tendinitis, retroactive to August 26, 2014. OWCP requested that 

 2

 Dr. Mittleman also completed a July 2, 2014 form report indicating that appellant could work eight hours per 

day with restrictions of continuously lifting up to 15 pounds and intermittently lifting of up to 25 pounds. In an 

August 19, 2014 report, Dr. Herring noted that appellant’s work status was “per primary treating physician.” 
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appellant submit additional factual and medical evidence in support of his recurrence of 

disability claim. 

In a May 7, 2015 letter, appellant again asserted that he was entitled to FECA 

compensation for total disability beginning August 26, 2014. He submitted a May 5, 2015 report 

in which Dr. Basimah Khulusi, an attending Board-certified physical medicine and rehabilitation 

physician, reported his examination findings and diagnosed bilateral shoulder tenosynovitis 

(accepted), bilateral shoulder adhesive capsulitis, bilateral elbow lateral epicondylitis, and 

bilateral shoulder acromioclavicular joint arthropathy. Dr. Khulusi stated that appellant could 

return to modified work noting that he would “continue him on the same restrictions on the job.” 

By decision dated June 19, 2015, OWCP denied appellant’s claim because he did not 

submit sufficient medical evidence to establish that he sustained a recurrence of total disability 

on or after August 26, 2014. It indicated that appellant had been working in a modified position 

for four hours per day prior to electing benefits from OPM. OWCP noted that, because appellant 

requested full FECA compensation benefits retroactive to August 26, 2014, he was essentially 

claiming a recurrence of total disability beginning that date. OWCP discussed the medical 

evidence of record and found that appellant had not shown a change in the nature and extent of his 

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

LEGAL PRECEDENT 

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 of record 

establishes that he or she 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 show that he or she cannot perform such light duty. As part of this burden the 

employee must show a change in the nature and extent of the injury-related condition or a change 

in the nature and extent of the light-duty job requirements.3

ANALYSIS 

OWCP accepted that appellant sustained bilateral shoulder tendinitis due to performing 

his work duties over time. Appellant’s claim was accepted in early 2013 when he was working 

20 hours per week in a light-duty position which required him to occasionally lift objects 

weighing up to 10 pounds. He initially received partial FECA disability benefits, but he later 

elected to receive OPM disability benefits. Appellant retired effective August 26, 2014. On 

March 27, 2015 he elected to receive full-time FECA benefits instead of OPM benefits 

 3 S.F., 59 ECAB 525 (2008); Terry R. Hedman, 38 ECAB 222 (1986). 20 C.F.R. § 10.5(x) provides, “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. This term also means 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 (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.” 
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retroactive to August 26, 2014. Appellant asserted that he was entitled to FECA compensation 

for total disability beginning August 26, 2014. 

The Board finds that OWCP properly interpreted appellant’s claim as a claim for a 

recurrence of total disability beginning August 26, 2014. Appellant had not been on total 

disability at the time of his retirement. He has failed to submit sufficient medical evidence to 

establish a recurrence of total disability on or after that date. Appellant failed to establish that, 

on or after August 26, 2014, he was unable to perform his light-duty work due to residuals of his 

accepted work injury. In addition, he failed to show any change in the nature and extent of his 

light-duty job requirements which prevented him from performing his light-duty work. 

In his September 4, 2014 report, Dr. Mittleman found appellant capable of returning to 

modified work with restrictions of continuously lifting up to 15 pounds and intermittently lifting 

of up to 25 pounds. 

As this report contains an opinion that appellant could continue in his modified work, it 

does not show that he sustained a recurrence of total disability due to his accepted work injury. 

The report does not show that there was a change in the nature and extent of appellant’s injuryrelated condition which prevented him from performing his light-duty work. The Board notes that 

Dr. Mittleman’s work restrictions are in accordance with the requirements of the light-duty 

position appellant performed prior to August 26, 2014.4

In the May 5, 2015 report, Dr. Khulusi stated that appellant could return to modified 

work noting that he would “continue him on the same restrictions on the job.” This report also 

confirms that appellant could continue in his modified work and therefore does not establish a 

recurrence of total disability due to his accepted work injury. 

Appellant has not shown a change in the nature and extent of his injury-related condition or 

a change in the nature and extent of his light-duty job requirements. Therefore, OWCP properly 

denied his claim for a work-related recurrence of total disability beginning August 26, 2014. 

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 did not meet his burden of proof to establish a recurrence 

of total disability on or after August 26, 2014. 

 4

 Dr. Mittleman produced a July 2, 2014 report in which he provided a similar description of appellant’s medical 

condition and indicated that he could perform his modified work with restrictions of lifting and carrying up to 25 

pounds on an intermittent basis and reaching above the shoulder level for up to one hour. The record reflects that 

appellant’s modified job duties prior to August 26, 2014 did not require reaching above the shoulder level. 
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ORDER 

IT IS HEREBY ORDERED THAT the June 19, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 19, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board