United States Department of Labor

Employees’ Compensation Appeals Board

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R.W., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

WEST LOS ANGELES VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Los Angeles, CA, Employer

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Docket No. 17-0720

Issued: May 21, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 February 13, 2017 appellant, through counsel, filed a timely appeal from a 

December 27, 2016 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 the claim.

 

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 met her burden of proof to establish a recurrence of disability 

commencing October 15, 2015 causally related to the accepted September 14, 2015 employment 

injury.

FACTUAL HISTORY

On September 18, 2015 appellant, then a 47-year-old food service worker, filed a traumatic 

injury claim (Form CA-1) alleging that on September 14, 2015 her right foot and ankle were struck 

by an electric cart while in the performance of duty. She stopped work on September 16, 2015. 

On September 22, 2015 Dr. David Webb, a critical care specialist, noted that her right ankle strain 

had resolved. Appellant returned to full-duty work on September 22, 2015.

OWCP accepted that appellant sustained a right ankle ligament sprain and a contusion of 

her foot and ankle as a result of the September 14, 2015 employment incident. The record 

substantiates that as of October 12, 2015 appellant’s claim was accepted for medical treatment.

On December 9, 2015 appellant filed a notice of recurrence (Form CA-2a) alleging a 

recurrence of disability due to her September 14, 2015 work injury on October 14, 2015. She 

related that she stopped work on October 15, 2015. Appellant explained that she thought that she 

would be able to perform her work duties when she returned to work, but she was unable to do so. 

She also noted that she was using crutches and that her left knee had given out. 

Appellant filed several claims for compensation (Form CA-7) claiming compensation for 

time lost from work beginning November 18, 2015.

In a January 4, 2015 development letter, OWCP informed appellant that the evidence of 

record was insufficient to support her recurrence claim. Appellant was advised of the medical and 

factual evidence needed and was afforded 30 days to submit the necessary evidence.

Medical evidence from Dr. William C. Kim, a Board-certified orthopedic surgeon, was

received. In a November 11, 2015 report, he noted his examination findings and diagnosed 

contusion strain, right lateral ankle, with strain of the calf. Dr. Kim recommended a right calf and 

ankle magnetic resonance imaging (MRI) scan. He opined that due to painful guarding of her 

ankle, appellant had aggravated her previous left knee condition. Dr. Kim held her off work until 

December 16, 2015 for right lower extremity pain. In a November 11, 2015 attending physician’s 

report (Form CA-20), he indicated that he first examined appellant on November 11, 2015. 

Dr. Kim advised that she was totally disabled for the period October 15 through 

December 16, 2015.

In a December 15, 2015 treatment note, Dr. Kim opined that appellant had right foot 

plantar pain consistent with plantar fasciitis, for which he recommended stretching. He indicated 

that the ankle MRI scan demonstrated osteochondral defect in the talus, for which he recommended 

a podiatry consultation. Dr. Kim held appellant off work for six weeks.
3

In a January 26, 2016 treatment note and attending physician’s report, Dr. Kim diagnosed 

contusion strain right ankle. He noted that appellant had an osteochondral defect and referred her

to podiatry. Dr. Kim continued to hold her off work due to increased pain.

By decision dated February 5, 2016, OWCP denied appellant’s recurrence of disability 

claim as of October 15, 2015 because the medical evidence of record failed to establish disability 

due to a material change/worsening of her accepted work-related conditions. It noted that she did 

not answer the questions in the questionnaire regarding the recurrence. OWCP also noted that the 

medical reports from Dr. Kim held no weight, as he was not her authorized physician. It noted 

that appellant was advised in its October 30, 2015 acceptance letter that the medical reports of

Dr. Webb had established that the accepted right ankle condition had resolved and that the claim 

was considered closed at the time of acceptance.

On February 24, 2016 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative, which was held on October 13, 2016. Appellant testified that she 

had to return to regular-duty work as the employing establishment did not have work available 

within the restrictions recommended by her physician. She further stated that she could not 

perform her duties and was out of work for approximately seven months. Counsel argued that 

appellant was out of work within weeks of her initial injury and stopped work when she was unable 

to perform her assigned duties.

In a January 25, 2016 claim for compensation (Form CA-7), appellant claimed wage loss 

for the period November 18, 2015 through January 21, 2016.

In a March 15, 2016 report, Dr. Kim recommended that appellant have a podiatry 

consultation regarding her right foot. He indicated that she could return to modified duties. In a 

November 8, 2016 report, Dr. Kim reported that appellant had decreased right calf and ankle/foot 

pain. Referrals to podiatry for the right foot and neurology for a lumbar condition were 

recommended.

By decision dated December 27, 2016, an OWCP hearing representative affirmed OWCP’s 

February 5, 2016 decision. The hearing representative found that Dr. Kim had not provided 

objective findings to support a recurrence of disability commencing October 15, 2015.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim, including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury.4 The term disability is 

defined as incapacity, because of employment injury, to earn the wages that the employee was 

receiving at the time of injury.5

 

3

Id.

4 G.T., 59 ECAB 447 (2008).

5 See Prince E. Wallace, 52 ECAB 357 (2001).
4

Whether a particular injury causes an employee to be disabled and the duration of that 

disability are medical issues which must be proven by a preponderance of the reliable, probative, 

and substantial medical evidence.6 Findings on examination are generally needed to support a 

physician’s opinion that an employee is disabled from work. When a physician’s statements 

consist only of a repetition of the employee’s complaints that excessive pain caused an inability to 

work, without making an objective finding of disability, the physician has not presented a medical 

opinion on the issue of disability or a basis for payment of compensation.7 The Board will not 

require OWCP to pay compensation for disability in the absence of any medical evidence directly 

addressing the specific dates of disability for which compensation is claimed. To do so would 

essentially allow employees to self-certify their disability and entitlement to compensation.8

OWCP’s implementing regulations define a recurrence of disability as an inability to work 

after an employee has returned to work, caused by 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.9

OWCP’s procedures require that, in cases where recurrent disability from work is claimed 

within 90 days or less from the first return to duty, the claimant is not required to produce the same 

evidence as for a recurrence claimed long after apparent recovery and return to work. Therefore, 

in cases where recurring disability from work is claimed within 90 days or less from the first return 

to duty, the focus is on disability rather than causal relationship. 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 from work.10

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that she 

sustained a recurrence of disability commencing October 15, 2015 causally related to her 

September 14, 2015 employment injury.

OWCP accepted appellant’s claim for right ankle ligament sprain and a contusion of her 

foot and ankle as a result of the September 14, 2015 employment incident. On September 22, 2015

Dr. Webb noted that her right ankle strain had resolved. Appellant was released to full duty 

without restrictions on September 22, 2015. She subsequently filed a claim for recurrence of 

disability commencing October 15, 2015. 

 

6 See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

7 William A. Archer, 55 ECAB 674 (2004).

8 S.P., Docket No. 16-1384 (issued February 1, 2017).

9 20 C.F.R. § 10.5(x).

10 A.C., Docket No. 17-0384 (issued September 11, 2017); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Recurrences, Chapter 2.1500.5 (June 2013). 
5

The record reflects that appellant sought treatment from Dr. Kim on November 11, 2015. 

In a November 11, 2015 report, Dr. Kim diagnosed contusion strain, right lateral ankle, and a calf 

strain. He opined that appellant had aggravated her previous left knee condition due to guarding 

of her ankle. Dr. Kim held her off work through December 16, 2015 for right lower extremity 

pain, noting that the disability had started on October 15, 2015. In his December 15, 2015 

treatment note, he noted that appellant had right foot plantar pain consistent with plantar fasciitis, 

for which he recommended stretching. Dr. Kim noted that the ankle MRI scan demonstrated 

osteochondral defect in the talus and recommended a podiatry consultation. He continued to hold 

appellant out of work due to increased pain, but released her to modified work on March 15, 2016. 

Dr. Kim continued to report on her right calf and ankle/foot pain. 

At the time of his November 11, 2015 examination, Dr. Kim related that appellant was 

totally disabled from October 15, 2015, the claimed recurrence date. While he noted right lower 

extremity pain in his November and December 2015 treatment notes and diagnosed other 

conditions such as plantar fasciitis and an osteochondral defect in the talus. Dr. Kim’s reports are 

insufficient to establish appellant’s claim for recurrence of disability as he failed to provide 

medical rationale, explaining with objective findings, why the accepted conditions prevented her

from performing her specific employment duties. As previously noted, findings on examination 

are necessary to support a physician’s opinion that an employee is disabled from work. When a 

physician’s statements consist only of a repetition of the employee’s complaints that excessive 

pain caused an inability to work, without making an objective finding of disability, the physician 

has not presented a sufficiently rationalized medical opinion to establish disability.

Additionally, the Board notes that OWCP had not accepted the other conditions diagnosed 

by Dr. Kim.

11

 Dr. Kim has not provided any medical explanation as to how these other conditions 

were causally related to the accepted employment injury. Thus, his reports are insufficiently 

rationalized to establish appellant’s claim for a recurrence.12

For each period of disability claimed, the employee must establish that she was disabled 

for work as a result of the accepted employment injury. Dr. Kim’s reports did not establish with 

objective findings that appellant was disabled from working from October 15, 2015 due to workrelated conditions.

13

 Accordingly, the Board finds that she has not met her burden of proof.14

On appeal, counsel argues that “claimant should have been awarded compensation.” 

However, as discussed above, Dr. Kim’s reports are insufficient to establish that the accepted 

conditions prevented appellant from working commencing October 15, 2015. 

 

11 T.M., Docket No. 08-0975 (issued February 6, 2009) (where a claimant claims that a condition not accepted or 

approved by OWCP was due to an employment injury, the claimant bears the burden of proof to establish that the 

condition is causally related to the employment injury through the submission of rationalized medical evidence).

12 L.G., Docket No. 11-0142 (issued August 12, 2011). 

13 R.A., Docket No. 14-1327 (issued October 10, 2014).

14 L.L., Docket No. 13-2146 (issued March 12, 2014). See also William A. Archer 55 ECAB 674, 679 (2004).
6

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 her burden of proof to establish a recurrence 

of disability commencing October 15, 2015 causally related to the accepted September 14, 2015 

employment injury. 

ORDER

IT IS HEREBY ORDERED THAT the December 27, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 21, 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