United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Washington, PA, Employer

__________________________________________

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Docket No. 19-0413

Issued: August 7, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 18, 2018 appellant, through counsel, filed a timely appeal from a 

November 20, 2018 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 has met her burden of proof to establish a recurrence of 

intermittent disability commencing March 3, 2018.

FACTUAL HISTORY

On January 4, 2018 appellant, then a 52-year-old mail carrier, filed a traumatic injury claim 

(Form CA-1) alleging that she sustained a left-sided back injury on January 3, 2018 when she was 

struck by another vehicle when driving a postal truck while in the performance of duty. By 

decision dated March 1, 2018, OWCP accepted the claim for sprain of ligaments of the lumbar 

spine and sprain of ligaments of the thoracic spine. Appellant was off work intermittently 

following the date of injury. Treating physician, Dr. Michael E. Beane, a Board-certified family 

practitioner, released appellant to full-duty work, without restrictions, on January 21, 2018. 

Appellant returned to full-duty work on January 22, 2018.

Appellant filed claims for wage-loss compensation (Form CA-7) for intermittent disability,

commencing March 3, 2018. She accepted a modified assignment as a city carrier technician 

effective March 19, 2018. The job duties included bending, stooping, pulling, and pushing for 3 

to 5 hours per day, walking for 1 to 3 hours per day, kneeling, reaching, standing, and sitting for 3 

to 5 hours per day, and fine manipulation and overhead reaching for 1.3 hours per day. The 

physical requirements included pickup letter/flats/parcels at/above shoulder level to sort for 1 to 

1.5 hours per day, operating motor vehicle for 6 to 7 hours per day, walking on varied terrain to 

deliver mail to customer mailboxes for 1 to 3 hours per day, and placing mail in boxes from vehicle 

and while also walking for 3 to 7 hours per day.

On April 11, 2018 Dr. Scott Carlos, a Board-certified family and geriatric medicine 

specialist, diagnosed sprain of ligaments of lumbar spine and sprain of ligaments of thoracic spine 

and reported that appellant still had pain from her January 3, 2018 work injury. In a form report

also dated April 11, 2018, he placed appellant on modified duty with the following restrictions: 

bending and stooping for three to five hours per day, pulling and pushing for three to five hours 

per day, walking for one to three hours per day, lifting/carrying up to 10 pounds per day, and no 

operating heavy machinery.

In an April 19, 2018 form report, Dr. Golna placed appellant on modified duty with the 

following restrictions: bending and stooping for one to three hours per day, kneeling for one to 

three hours per day, no walking, lifting/carrying up to five pounds per day, and no operating heavy 

machinery.

In a development letter dated April 30, 2018, OWCP appellant that the evidence of record

was insufficient to support her claims for compensation and afforded her 30 days to submit 

additional evidence in support of the claim.

In a May 8, 2018 prescription note, Dr. Golna indicated that he had reviewed the medical 

records dating back to the date of injury and opined that appellant had been released to full duty 

prematurely, and should have been on modified duty from date of injury.
3

On May 11, 2018 Dr. Carlos reported that appellant continued to have pain and advised 

that she could not dance or walk more than two hours without pain.

By decision dated June 1, 2018, OWCP denied appellant’s claims for intermittent disability 

commencing March 3, 2018, finding that the medical evidence of record was insufficient to 

establish that appellant was disabled from work during the claimed period due to the accepted 

employment injuries.

On June 21, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on 

October 18, 2018. The hearing representative held the case record open for 30 days for the 

submission of additional evidence.

In a prescription note dated October 25, 2018, Dr. Golna reiterated that he had reviewed 

appellant’s visits from March through May 2018 and found that her work restrictions included 

lifting restrictions of 5 to 10 pounds maximum. The lifting restrictions were applicable to any type 

of carrying/lifting objects, which included a mailbag.

By decision dated November 20, 2018, OWCP’s hearing representative affirmed the 

June 1, 2018 decision because appellant’s need for work restrictions and resulting wage loss 

beginning March 3, 2018, which occurred within 90 days of her first return to full duty, and the 

medical evidence of record failed to describe the duties which she was not able to perform during 

the period claimed and failed to demonstrate objective findings to establish a basis for renewed 

disability for work. The hearing representative reiterated that an increase in pain alone was 

insufficient to establish a recurrence of disability and; therefore, appellant was not entitled to 

compensation for disability commencing March 3, 2018.

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 resulted from a previous 

compensable injury or illness and without an intervening injury or new exposure in the work 

environment.3 This term also means an inability to work because a light-duty assignment made 

specifically to accommodate an employee’s physical limitations and which is necessary because 

of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the 

employee’s physical limitations.4

OWCP’s procedures provide that a recurrence of disability includes a work stoppage 

caused by a spontaneous material change in the medical condition demonstrated by objective 

findings. That change must result from a previous injury or occupational illness rather than an 

intervening injury or new exposure to factors causing the original illness. OWCP does not include 

 

3 20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical 

condition as a documented need for medical treatment after release from treatment for the accepted condition).

4

Id.
4

a condition that results from a new injury, even if it involves the same part of the body previously 

injured.5

An employee who claims a recurrence of disability due to an accepted employment-related 

injury has the burden of proof to establish by the weight of the substantial, reliable, and probative 

evidence that the disability for which he or she claims compensation is causally related to the 

accepted injury.6

OWCP’s procedures discuss the evidence necessary if recurrent disability for work is 

alleged within 90 days of the first return to duty. The focus is on disability rather than causal 

relationship of the accepted condition to the work injury.7 The Board has held that, if recurrent 

disability from work is claimed within 90 days or less from the first return to duty, the attending 

physician should describe the duties which the employee cannot perform and demonstrate 

objective medical findings that form the basis for the renewed disability from work.8 When a 

physician’s statements regarding an employee’s ability to work consist only of repetition of the 

employee’s complaints that he hurt too much to work, without objective findings of disability 

being shown, the physician has not presented a medical opinion on the issue of disability or a basis 

for payment of compensation.9

The Board will not require OWCP to pay compensation for disability in the absence of any 

medical evidence directly addressing the particular period of disability for which compensation is 

claimed. To do so would essentially allow employees to self-certify their disability and entitlement 

to compensation.10

ANALYSIS

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

intermittent disability commencing March 3, 2018. 

Appellant was off work intermittently following the date of injury. On January 21, 2018 

Treating Physician Dr. Beane released appellant to full-duty work, without restrictions. Appellant 

returned to full-duty work on January 22, 2018. She filed claims for wage-loss compensation 

(Form CA-7) for intermittent disability commencing March 3, 2018. Appellant accepted a 

modified assignment as a city carrier technician effective March 19, 2018.

 

5 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). Kenneth R. 

Love, 50 ECAB 193, 199 (1998).

6 H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

7 Supra note 5 at Chapter 2.1500.5 (June 2013).

8 See G.P., Docket No. 14-1150 (issued September 15, 2014); R.C., Docket No. 14-0201 (issued May 8, 2014);

J.F., 58 ECAB 124 (2006).

9 See S.E., Docket No. 14-1125 (issued October 1, 2014).

10 Id.
5

As noted above, when the claim for recurrence is within 90 days of a return to work, the 

focus is on disability, rather than causal relationship. Regarding disability, the medical evidence 

must provide a description of the job duties appellant cannot perform and objective evidence 

supporting a finding of disability.

On May 8, 2018 Dr. Golna reviewed appellant’s medical records and opined that appellant 

had been released to full duty prematurely, and should have been on modified duty from the date 

of injury. On October 25, 2018 he reiterated that appellant’s work restrictions included lifting 

restrictions of 5 to 10 pounds maximum, which was applicable to any type of object, including a 

mailbag. However, Dr. Golna failed to demonstrate objective findings to establish a basis for 

appellant’s renewed disability from work. He did not document a spontaneous worsening of 

appellant’s accepted lumbar and thoracic ligament sprains resulting in total disability on or about 

March 3, 2018.11 As Dr. Golna did not relate appellant’s disability to the accepted conditions, his 

reports fail to establish a work-related recurrence of disability.12 

Dr. Carlos diagnosed sprain of ligaments of lumbar spine and sprain of ligaments of 

thoracic spine and reported that appellant was still having pain from her January 3, 2018 work 

injury. He placed appellant on modified duty on April 11, 2018, but failed to describe the duties 

which appellant was unable to perform during the period claimed. Dr. Carlos also failed to 

demonstrate objective findings to establish a basis for renewed disability from work. Moreover, 

the medical evidence from Dr. Carlos failed to provide a medical opinion on whether appellant 

was disabled on the dates at issue. Therefore, his reports are insufficient to establish appellant’s 

claim.

The Board therefore finds that the medical evidence of record is insufficient to establish a 

recurrence of disability commencing March 3, 2018. As such appellant has not met her burden of 

proof. 

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 has not met her burden of proof to establish a recurrence of 

intermittent disability commencing March 3, 2018.

 

11 J.D., Docket No. 18-0616 (issued January 11, 2019).

12 See id.
6

ORDER

IT IS HEREBY ORDERED THAT the November 20, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 7, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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