United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.H., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Philadelphia, PA, 

Employer

__________________________________________

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Docket No. 17-1903

Issued: July 5, 2018

Appearances: Case Submitted on the Record

Thomas R. Uliase, 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 September 11, 2017 appellant, through counsel, filed a timely appeal from a May 18, 

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 to consider the merits of the 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

ISSUES

The issue is whether appellant has established a recurrence of total disability commencing 

July 27, 2004 causally related to his accepted employment injury.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts as presented in the Board’s 

prior decision are incorporated herein by reference. The relevant facts are as follows. 

On November 13, 1999 appellant, then a 52-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that, on October 22, 1999, he first became aware of numbness 

in his right hand and fingers. He related this condition to factors of his federal employment on 

November 12, 1999. On January 20, 2000 OWCP accepted his claim for bilateral carpal tunnel 

syndrome. Appellant underwent right carpal tunnel release surgery on February 11, 2000. He 

returned to full-duty work on June 29, 2000.4

In a report dated March 4, 2003, Dr. Scott M. Fried, an osteopath and a Board-certified 

orthopedic surgeon, noted that appellant reported a return of significant symptomatology and 

discomfort, including numbness in both hands and pain up his arms to his elbows. He diagnosed 

repetitive strain injury, traumatically-induced median and radial neuropathy and brachial plexitis 

right greater than left. On August 4, 2003 Dr. Fried indicated that appellant should work only four 

hours, five days a week. 

Appellant underwent an electromyography (EMG) study on September 30, 2003 which 

demonstrated bilateral brachial plexus neuropathies, bilateral ulnar nerve neuropathies at the 

elbow, right radial nerve neuropathy, and severe bilateral medial nerve neuropathies at the wrist. 

Hisright median nerve was relatively unchanged following surgery, while his left was significantly 

worse. 

On December 4, 2003 Dr. Fried further reduced appellant’s work to four hours a day, two 

days a week.

On February 5, 2004 OWCP referred appellant for a second opinion evaluation with

Dr. Richard Mandel, a Board-certified orthopedic surgeon, to determine appellant’s disability 

status. In a report dated February 26, 2004 Dr. Mandel noted that appellant’s light-duty job of 

working four hours per day entailed modified sorting duties of lifting less than 10 pounds with an 

assistant. He diagnosed chronic bilateral median neuropathies at the level of the carpal canals and 

found that this condition was work related. Dr. Mandel did not find evidence of ulnar neuropathy, 

brachial plexopathy, or any other neuropathy. He concluded that appellant could perform light-

 

3 Docket No. 12-1701 (issued April 24, 2013). Docket No. 09-1270 (issued March 17, 2010). 

4 On March 13, 2003 OWCP granted appellant a schedule award for 10 percent permanent impairment of each 

upper extremity.
3

duty work four hours a day, five days a week with a lifting, pushing, and pulling restriction of five 

pounds.

On March 29, 2004 OWCP accepted the additional condition of bilateral median 

neuropathy at the level of the carpal canals. It further noted that Dr. Mandel found that appellant 

could work four hours a day, five days a week. 

In a note dated April 21, 2004, Dr. Fried found that appellant could work one day a week 

for four hours. On July 27, 2004 he found that appellant continued to be symptomatic at four hours 

a week. Dr. Fried concluded that appellant was totally disabled from work due to his repetitive 

strain jury, traumatically-induced median and radial neuropathy, and brachial plexitis.

On August 13, 2004 appellant filed a claim for recurrence of disability (Form CA-2a) 

alleging that he was totally disabled from work beginning July 2, 2004 due to his accepted 

employment injury.

OWCP found a conflict of medical opinion evidence between Drs. Fried and Mandel and 

referred appellant for an impartial medical examination (IME).

OWCP referred appellant to Dr. Richard G. Schmidt, a Board-certified orthopedic surgeon, 

for an impartial medical evaluation. In a report dated September 13, 2004, Dr. Schmidt found that 

appellant had no residuals or disability causally related to his accepted employment injury. OWCP 

denied appellant’s recurrence claim by decision dated November 30, 2004. 

On December 2, 2004 appellant requested a hearing before an OWCP hearing 

representative. By decision dated November 14, 2005, the hearing representative remanded the 

case for a new impartial medical evaluation. Appellant was subsequently referred to Dr. William 

Kirkpatrick, a Board-certified orthopedic surgeon for an impartial medical evaluation. In a report 

dated June 5, 2006, Dr. Kirkpatrick found no evidence of ongoing carpal tunnel syndrome and 

opined that appellant’s brachial plexopathy was not causally related to the accepted employment 

injury. 

By decision dated September 28, 2006, OWCP found that appellant was entitled to four 

hours of wage-loss compensation per workday. On October 4, 2006 appellant again requested a 

hearing before an OWCP hearing representative. By decision dated June 18, 2007 an OWCP 

hearing representative vacated the September 28, 2006 decision, finding that Dr. Kirkpatrick’s 

June 5, 2006 report was insufficient to resolve the conflict. OWCP subsequently obtained an 

August 6, 2007 supplemental report from Dr. Kirkpatrick. By decision dated August 17, 2007, it

denied appellant’s request to expand the acceptance of his claim to include brachial plexopathy or 

ulnar neuropathy and denied his claim for total disability. 

On August 29, 2007 appellant again requested an oral hearing before an OWCP hearing 

representative. By decision dated February 19, 2008, the hearing representative vacated the prior 

decision and remanded the case for another supplemental report from Dr. Kirkpatrick. In a report 

dated April 24, 2008, Dr. Kirkpatrick opined that appellant could perform his modified duties four 

hours a day, five days a week. OWCP again denied appellant’s recurrence claim by decision dated 

June 3, 2008. Appellant requested a hearing before an OWCP hearing representative on 
4

June 6, 2008. By decision dated February 17, 2009, the hearing representative affirmed the denial 

of appellant’s recurrence claim. 

On April 16, 2009 appellant appealed OWCP’s June 3, 2008 and February 17, 2009 

decisions to the Board. By decision dated March 17, 2010,5the Board found that OWCP had 

properly determined that there was a conflict of medical opinion evidence, but further found that

Dr. Kirkpatrick’s reports were insufficiently rationalized to resolve the conflict between Drs. Fried 

and Mandel on both the issue of recurrence of totally disability commencing on July 27, 2004 and 

the issue of whether additional claimed conditions of ulnar neuropathy and brachial plexopathy

were causally related to the accepted employment injury. The Board remanded the case and 

directed OWCP to obtain rationalized medical opinion from an impartial medical specialist on 

these outstanding issues. 

On return of the case record OWCP referred appellant to Dr. Noubar Didizian, a Boardcertified orthopedic surgeon for an impartial medical evaluation. By report dated October 20, 

2010, Dr. Didizian opined that appellant had not sustained a recurrence of total disability 

commencing July 27, 2004. OWCP thereafter again denied appellant’s recurrence claim on 

January 6, 2011. On January 14, 2011 appellant again requested a hearing before an OWCP 

hearing representative. By decision dated July 5, 2011, the hearing representative again remanded 

the case for preparation of a new statement of accepted facts (SOAF) and a supplemental report. 

In a report dated September 20, 2011, Dr. Didizian again opined that appellant had not sustained 

a recurrence of total disability commencing July 28, 2004 and his brachial plexoplathy was not a 

consequence of the accepted injury. 

By decision dated October 19, 2011, OWCP again denied appellant’s claim for recurrence 

of total disability and found that his brachial plexopathy condition was not a consequence of the 

accepted employment injury. On October 23, 2011 appellant again requested a hearing before an 

OWCP hearing representative. By decision dated May 14, 2012, an OWCP hearing representative 

found that OWCP had properly denied expansion of the acceptance of appellant’s claim to include 

brachial plexopathy and properly denied appellant’s 2004 recurrence of disability claim. 

On August 13, 2012 appellant again appealed to the Board. In its April 24, 2013 decision,6

the Board found that OWCP must further develop the medical evidence and obtain an IME report 

containing medical rationale addressing the outstanding issues of recurrence of total disability on 

July 27, 2004 and the additional condition of brachial plexopathy. The Board set aside OWCP’s 

May 14, 2012 decision and remanded the case for this development.

On remand, in a letter dated August 28, 2013, OWCP referred appellant, a SOAF, and list 

of questions to Dr. Andrew Sattel, a Board-certified orthopedic surgeon, for an IME. In his 

September 18, 2013 report, Dr. Sattel reviewed appellant’s history of injury and medical history. 

He performed a physical examination and found that diagnostic tests for brachial plexopathy were 

negative bilaterally. Tinel’s sign at the right and left cubital tunnel resulted in mild tingling. 

Dr. Sattel found no visible thenar or interosseous atrophy. Appellant provided inconsistent 

 

5 Supra note 3.

6 Docket No. 12-1701 (issued April 24, 2013).
5

responses for both the median and ulnar distributions. Dr. Sattel diagnosed bilateral carpal tunnel 

syndrome and found that appellant’s present clinical examination demonstrated evidence for 

residual median neuropathy on the right. He opined that neither appellant’s described work 

activities nor his clinical evaluation supported a diagnosis of bilateral brachial plexopathy. 

Dr. Sattel opined that, based on appellant’s history and medical records, he “would likely have 

been able to resume at least light-duty status.” He completed a work capacity evaluation (OWCP5c) and determined that appellant could not lift over 20 pounds, but could work eight hours a day.

By decision dated October 10, 2013, OWCP denied appellant’s claim for recurrence of 

total disability on July 27, 2004 and for the additional condition of brachial plexopathy. 

Counsel requested a hearing before an OWCP hearing representative on October 17, 2013.

Dr. Fried completed a report on October 18, 2013 and noted the history of appellant’s 

increasing disability from March 4, 2003 through August 12, 2013. He continued to diagnose

bilateral carpal tunnel and median neuropathy, as well as brachial plexopathy/cervical 

radiculopathy, and radial neuropathy secondary to appellant’s work-related injuries. 

In her May 9, 2014 decision, OWCP’s hearing representative vacated the October 10, 2013 

decision and remanded for a supplemental report from Dr. Sattel. In a letter dated May 21, 2014, 

OWCP requested a supplemental report from Dr. Sattel. Dr. Sattel responded on June 4, 2014 and 

reviewed Dr. Fried’s notes. He again found no physical findings supporting brachial plexopathy 

or other peripheral neuropathies. Dr. Sattel concluded, “In my opinion, no recurrence of disability 

from [appellant’s] modified job.”

By decision dated June 25, 2014, OWCP denied appellant’s claim for total disability 

beginning July 27, 2004 and the additional condition of brachial plexopathy. 

On July 12, 2014 counsel requested an oral hearing before an OWCP hearing 

representative. On October 7, 2014 OWCP’s hearing representative vacated the June 25, 2014 

OWCP decision. He found that Dr. Sattel’s report was insufficiently rationalized and remanded 

for a supplemental report.

In a letter dated October 29, 2014, OWCP requested a supplemental opinion from

Dr. Sattel. Dr. Sattel responded on November 12, 2014, and disagreed with the characterization 

of appellant’s claim as a recurrence of disability. He opined that appellant had not sustained a 

particular new or objective worsening of his condition and noted that he was unable to comment 

regarding appellant’s work status on July 27, 2004.

By decision dated January 14, 2015, OWCP denied appellant’s claim for recurrence of total 

disability on July 27, 2004 as well as his claim for additional employment-related conditions. 

On January 19, 2015 counsel again requested an oral hearing before an OWCP hearing 

representative.

On August 31, 2015 OWCP referred appellant for a second opinion evaluation with

Dr. Raoul Biniaurishvili, a Board-certified neurologist.
6

By decision dated September 9, 2015, OWCP’s hearing representative vacated the 

January 14, 2015 decision, and remanded the case for additional development of the medical 

evidence.

In a report dated September 14, 2015, Dr. Biniaurishvili reviewed appellant’s history of 

injury and medical records. He diagnosed bilateral carpal tunnel syndrome. Dr. Biniaurishvili 

determined that appellant’s severe carpal tunnel syndrome was related to his work as a mail 

handler. He further found that appellant could not return to his date-of-injury position, but could 

perform light-duty desk work for four hours a day. Dr. Biniaurishvili completed a work capacity 

evaluation (OWCP-5) and found that appellant could lift, push, and pull up to 20 pounds four hours 

a day. On November 6, 2015 Dr. Biniaurishvili performed EMG and nerve conduction velocity. 

He found increased distal latencies and decreased amplitudes which was suggestive of median 

nerve compression neuropathy consistent with bilateral carpal tunnel syndrome. Dr. Biniaurishvili 

completed an addendum to his September 14, 2015 report on November 18, 2015 and again 

diagnosed carpal tunnel syndrome. He also found that electrodiagnostic testing supported mild 

ulnar nerve neuropathy at the elbow on the right. Dr. Biniaurishvili recommended additional 

carpal tunnel release surgery. He again concluded that appellant could perform light-duty desk 

work for four hours a day which did not require heavy lifting or repetitive movements involving 

both hands.

In a letter dated December 2, 2015, OWCP requested a supplemental opinion from

Dr. Biniaurishvili addressing possible diagnoses of cubital tunnel syndrome and appropriate

treatments for appellant’s diagnosed employment-related conditions.

On December 3, 2015 OWCP referred appellant, a SOAF, and a list of questions for an 

IME with Dr. Stanley Askin, a Board-certified orthopedic surgeon. Counsel responded on 

December 28, 2015 and requested proof that Dr. Askin was properly selected as an IME.

Dr. Biniaurishvili completed a supplemental report on December 14, 2015 and diagnosed 

severe right carpal tunnel syndrome as well as mild right cubital tunnel syndrome. He 

recommended that right cubital tunnel syndrome should be included in appellant’s accepted 

employment-related conditions. Dr. Biniaurishvili noted that there was no diagnostic evidence 

supporting left cubital tunnel syndrome.

In a January 6, 2016 decision, OWCP listed appellant’s accepted conditions including 

lesion of the right ulnar nerve, bilateral carpal tunnel syndrome, bilateral lesions of the median 

nerve, and the additional condition of right cubital tunnel syndrome.

Dr. Askin completed a report on January 27, 2016. He examined and reviewed appellant’s 

medical treatment and understood that bilateral carpal tunnel syndrome was accepted by OWCP 

as causally related to appellant’s employment activities. Dr. Askin found that this condition did 

not render appellant disabled and further found that the medical evidence did not establish the 

additional conditions of brachial plexopathy or ulnar neuropathy as related to appellant’s 

employment.

On February 2, 2016 OWCP requested clarification from Dr. Askin regarding whether 

appellant was capable of performing light-duty work four hours a day on July 27, 2004. Dr. Askin 
7

responded on February 5, 2016 and opined that appellant was always capable of working including 

June 27, 2004 and onward.

By decision dated February 24, 2016, OWCP denied appellant’s claim for recurrence of 

total disability on July 27, 2004 and further denied his claim for additional employment-related 

conditions. 

On February 29, 2016 counsel requested an oral hearing before an OWCP hearing 

representative. By decision dated August 25, 2016, OWCP’s hearing representative found that

Dr. Askin was improperly selected as the IME. The hearing representative set aside the 

February 24, 2016 decision and remanded the case for OWCP to properly select a new IME.

On October 4, 2016 OWCP referred appellant, a SOAF and a list of questions for an IME

with Dr. David Eingorn, a Board-certified orthopedic surgeon. 

In a report dated November 22, 2016, Dr. Eingorn reviewed appellant’s medical history 

and diagnostic studies. On physical examination he found no tenderness over the brachial plexus 

and full range of motion in his shoulders, elbows, and wrists. Dr. Eingorn noted that appellant 

reported diffuse numbness on sensation examination of his upper extremities from his elbows 

down to his hands in a glove-stocking distribution. He also noted that appellant reported 

nonanatomic numbness with Tinel’s sign over his elbows, bilaterally. Appellant also reported 

nonanatomic numbness after Tinel’s sign over his wrists, bilaterally. He did not exhibit thenar 

atrophy nor interosseous wasting, and his grip strength was normal, bilaterally. Dr. Eingorn found 

that appellant’s examination was hysterical in nature rather than anatomic. He found no objective 

findings of carpal tunnel syndrome. Dr. Eingorn further found that there was no evidence on 

physical examination of ulnar nerve neuropathy or brachial plexopathy.

On December 14, 2016 OWCP requested a supplemental report from Dr. Eingorn 

addressing whether or not appellant sustained a recurrence of total disability on July 27, 2004. It

noted that appellant had been working four hours a day limited duty from February 11, 2000 

through July 27, 2004, when he claimed that he was totally disabled on July 27, 2004.

On January 23, 2017 Dr. Eingorn provided an amended copy of his November 22, 2016 

report in which he found that appellant was currently capable of working four hours a day. He 

responded to the question of whether the evidence supported a recurrence of total disability 

effective July 27, 2004, with “The answer is no. As stated, [appellant] can continue with his 

activities of working [four] hours per day, limited duty with 5 to 10 pounds of lifting. Therefore,

he is not totally disabled.”

By decision dated February 14, 2017, OWCP denied appellant’s claim for recurrence of 

disability on July 27, 2004 based on Dr. Eingorn’s report. 

On February 21, 2017 counsel requested an oral hearing before an OWCP hearing 

representative. By decision dated May 18, 2017, OWCP’s hearing representative found that 

appellant failed to establish a recurrence of disability on July 27, 2004 causally related to his 

accepted bilateral carpal tunnel syndrome.
8

LEGAL PRECEDENT

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 had resulted from a previous injury or illness without an intervening injury or new 

exposure to the work environment that caused the illness.7 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 or 

when the physical requirements of such an assignment are altered so that they exceed his or her 

established physical limitations.8

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 the employee can perform the light-duty position, the employee has the burden of 

proof to establish by the weight of the reliable, probative, and substantial evidence, a recurrence 

of total disability and show that he cannot perform such light duty. As part of this burden of proof, 

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 requirements.9 This burden of proof includes the 

necessity of furnishing medical evidence from a physician who, on the basis of a complete and 

accurate factual and medical history, concludes that the disabling condition is causally related to 

employment factors and supports that conclusion with sound medical reasoning.10

In situations where there are opposing medical reports of virtually equal weight and 

rationale, and the case is referred to an impartial medical specialist for the purpose of resolving 

the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper 

factual background, must be given special weight.11

ANALYSIS

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

In the last appeal, the Board found an unresolved conflict in medical opinion and remanded 

the case to OWCP for proper selection of a referee physician. The most recent referee physician 

properly selected by OWCP is Dr. Eingorn. In his reports dated November 22, 2016 and 

supplemental report of January 23, 2017, Dr. Eingorn found that appellant’s examination was 

hysterical in nature rather than anatomic. He found no objective findings of carpal tunnel 

 

7 20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.a 

(June 2013). See also J.C., Docket No. 17-0955 (issued October 23, 2017); Philip L. Barnes, 55 ECAB 426 (2004).

8

Id. at § 10.5(x); J.C., id.; J.F., 58 ECAB 124 (2006).

9

J.C., id.; Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986).

10 J.C., id.; Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

11 J.N., Docket No. 17-0237 (issued July 13, 2017); L.S., Docket No. 12-0139 (issued June 6, 2012); Gloria J. 

Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001); Nathan L. Harrell, 41 

ECAB 401, 407 (1990).
9

syndrome. In his supplemental report, Dr. Eingorn further responded to the question of whether 

the evidence supported a recurrence of total disability effective July 27, 2004, with “The answer 

is no. As stated, [appellant] can continue with his activities of working [four] hours per day, 

limited duty with 5 to 10 pounds of lifting. Therefore, he is not totally disabled.”

When a case is referred to an IME to resolve a conflict, the resulting medical opinion, if 

sufficiently well reasoned and based upon a proper factual background must be given special 

weight.12 While the Board finds that Dr. Eingorn’s report is based on a proper factual background, 

it lacks the medical reasoning necessary to resolve the existing conflict of medical opinion 

evidence. The Board finds that his opinion and supplemental opinion do not have sufficient 

probative value to resolve the conflict in medical opinion evidence.13 Although Dr. Eingorn 

referenced appellant’s work capabilities, he provided no medical reasoning in support of his 

opinion that appellant did not sustain a recurrence of total disability, effective July 27, 2004, due 

to his accepted employment injuries. To be entitled to special weight, his opinion must contain 

clear, persuasive rationale on the critical issue in the claim.14 However, Dr. Eingorn’s report does 

not contain such rationale. As OWCP relied on his insufficient opinion, the case must be remanded 

for further development.15

On remand, OWCP should obtain a supplemental opinion from Dr. Eingorn regarding the 

issue of appellant’s ability to work as of his date of alleged recurrence of total disability on July 27, 

2004 and continuing. If Dr. Eingorn is unable or unwilling to elaborate on his conclusion that 

appellant was no longer totally disabled from work commencing July 27, 2004, or if his 

supplemental report is also vague, speculative, or lacking in rationale, OWCP must submit the case 

record and a detailed SOAF to a new impartial specialist for the purpose of obtaining a rationalized 

medical opinion on the issue.

16

 Following this and any other development deemed necessary, it

shall issue a de novo decision in the case. 

CONCLUSION

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

 

12 M.W., Docket No. 16-1138 (issued February 22, 2018); Gary R. Sieber, 46 ECAB 215, 225 (1994).

13 D.B., Docket No. 17-1845 (issued February 16, 2018).

14 A.R., Docket No. 17-1358 (issued February 1, 2018).

15 Id.

16 See J.W., Docket No. 15-0020 (issued August 17, 2016); Harold Travis, 30 ECAB 1071, 1078 (1979).
10

ORDER

IT IS HEREBY ORDERED THAT the May 18, 2017 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for additional development 

consistent with this decision of the Board.

Issued: July 5, 2018

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