United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Shenandoah, PA, Employer

__________________________________________

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Docket No. 19-1456

Issued: July 14, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 25, 2019 appellant, through counsel, filed a timely appeal from a May 29, 2019 

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.3

 

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.

3 The Board notes that following the May 29, 2019 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish a recurrence of 

disability commencing July 30, 2018 causally related to her accepted June 15, 2017 employment 

injury. 

FACTUAL HISTORY

On June 15, 2017 appellant, then a 34-year-old city carrier assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she twisted her left ankle as she stepped out of her 

mail truck while in the performance of duty. On July 5, 2017 OWCP accepted sprain of the 

calcaneofibular ligament of the left ankle. On January 5, 2018 it expanded the acceptance of 

appellant’s claim to include strain and laceration of muscles and tendons of peroneal muscle group 

of the lower left leg and laceration of muscle and tendon of the peroneal muscle group at the lower 

left leg. Appellant worked intermittent modified-duty work until January 11, 2018 when

Dr. John J. Stapleton, a podiatrist, performed authorized repair of a left peroneal brevis split tear 

and fibular groove deepening. OWCP paid appellant wage-loss compensation on the supplemental 

rolls from January 20 to April 13, 2018. Appellant returned to full-time, modified-duty work on 

April 17, 2018.4

OWCP subsequently received a May 14, 2018 report wherein Dr. Stapleton described 

physical examination findings and advised that appellant could return to full duty on May 15, 2018,

but that she should wear supportive high-top shoes. On June 13, 2018 Dr. Stapleton noted that she

was progressing well post-surgery, but reported twisting her ankle the previous day and was

experienced pain with weight bearing. He noted that a left ankle x-ray that day showed no evidence 

of fracture and opined that appellant’s recent injury did not do significant damage and 

recommended bracing for strenuous activity. 

A July 24, 2018 magnetic resonance imaging (MRI) scan of the left ankle revealed postsurgical changes, no other tendon or ligament injury, and a stable osteochondral injury along the 

posterior dome of the talus. 

In a July 25, 2018 progress note, Dr. Stapleton noted that appellant had twisted her left 

ankle on June 12, 2018 and subsequently had persistent left ankle pain that was increasing in 

intensity. He described the July 24, 2018 MRI scan findings. Left ankle examination demonstrated 

tenderness over the peroneal tendon, laxity of the peroneal tendon with hypermobility, instability 

to the contralateral ankle, and mild edema. Dr. Stapleton diagnosed acute left ankle pain, 

osteochondral defect, and tendinosis. He recommended conservative treatment. In unsigned 

correspondence of same date, Dr. Stapleton noted that appellant was under his care and advised 

the she should not work due to “medical illness.”

In a July 30, 2018 report, Dr. Daniel Fuchs, an orthopedic surgeon, noted the history of 

appellant’s June 2017 work injury. He described her medical and surgical history, and noted her 

complaint of persistent pain and swelling in the area of the peroneal tendons status post tendon 

 

4 Appellant signed an offer of modified assignment on April 17, 2018. The duties of the position were one to two 

hours each casing mail, administrative duties, and working undeliverable mail with two hours delivering/carrying 

mail. Appellant was restricted to two hours each, standing, walking, and delivering. 
3

repair, and that she had a mild aggravation the previous month when she rolled her left ankle.

Dr. Fuchs indicated that a July 2018 MRI scan demonstrated a small posterolateral osteochondral 

lesion of the talar dome. Findings on left ankle examination included intact sensation to light 

touch, a well-healed surgical incision of the peroneal tendons, mild swelling, and tenderness to 

palpation. Dr. Fuchs diagnosed left lower extremity peroneal tendinitis and recommended 

immobilization in a controlled ankle movement (CAM) boot and physical therapy. He advised 

that appellant was disabled from work. On a form report of same date, Dr. Fuchs diagnosed left 

peroneal tendon tear, recommended a CAM boot, weight bearing as tolerated, and advised that 

appellant could return to modified sedentary work.

On July 31, 2018 appellant filed a notice of recurrence (Form CA-2a). She indicated that 

the recurrence began on July 18, 2018 due to left ankle pain and weakness, and that it was causally 

related to her accepted June 15, 2017 employment injury. Appellant stopped work on 

July 30, 2018.

On August 14, 2018 K.F., an employing establishment human resources specialist, 

indicated that it was controverting appellant’s recurrence claim. She noted that, following surgery, 

appellant had returned to full-duty work on May 15, 2018 and had continued to work without 

incident until July 30, 2018 when she was placed on sedentary duties. K.F. indicated that appellant 

had been treated by a new physician, and that she had not submitted medical evidence regarding 

the cause of the recurrence. She maintained that appellant had not met her burden of proof to 

establish a recurrence.

By report dated September 4, 2018, Dr. Fuchs noted appellant’s complaint of continued 

ankle soreness with weight bearing, and that she had recently reaggravated the peroneal tendon 

area. Left ankle examination revealed mild instability to the anterior drawer and mild swelling 

about the peroneal tendons. Dr. Fuchs reiterated his diagnoses, prescribed a CAM boot, 

recommended an ultrasound of the peroneal tendons, and a course of physical therapy. On a form 

report of same date, he advised that appellant should continue modified duty, and on a duty status 

report (Form CA-17) of same date, he diagnosed peroneal tendon instability and advised that she

could work full time with restrictions that she could only stand three hours and walk one hour 

daily.

By development letter dated September 13, 2018, OWCP provided a definition of a 

recurrence of disability. It advised appellant of the type of factual and medical evidence necessary 

to establish her claim, provided a questionnaire for her completion, and afforded her 30 days to 

submit additional evidence.

In correspondence dated September 19, 2018, K.F. updated the employing establishment’s 

controversion. She noted that appellant had returned to full-duty work on May 15, 2018 with an 

accommodation of wearing a high-top boot and related that she worked four hours on July 18, 

2018 due to prescheduled leave and continued to work without incident, including overtime, until 

she filed the recurrence claim on July 31, 2018. K.F. attached a copy of appellant’s work schedule. 

Appellant subsequently submitted her completed recurrence claim development 

questionnaire, dated October 12, 2018. She indicated that, since the January 11, 2018 surgery, her 

left ankle was weak and had been giving out. Appellant noted that she had been released to fullduty work without limitation in May 2018, but wore a high-top boot, and that on June 12, 2018 

she twisted her left ankle while delivering mail. She reported filing an additional claim for a 
4

November 24, 2017 incident when she twisted her left ankle stepping off the sidewalk while 

delivering mail. That claim was denied by OWCP.5 Appellant reported no hobbies outside of 

work. She also submitted a July 30, 2018 employing establishment form in which she requested 

four weeks of light-duty work beginning July 30, 2018 due to the June 15, 2017 work injury. In a 

handwritten statement dated July 31, 2018, appellant indicated that her left ankle was weak and 

sore in the location of her original injury. She maintained that walking on uneven surfaces for six 

hours a day and standing for two hours a day irritated her left ankle condition.6

In a September 5, 2018 report, Dr. Stapleton noted appellant’s complaint of significant left 

ankle pain with no improvement since her last visit on July 25, 2018. He reiterated his diagnoses 

and opined that appellant’s recalcitrant pain over the peroneal tendon was secondary to tendinosis. 

Dr. Stapleton recommended resection of the diseased portion of the peroneal brevis. 

OWCP also received an October 12, 2018 Form CA-17 report by Dr. Stapleton which 

indicated that she could not work. 

By decision dated October 19, 2018, OWCP denied appellant’s claim, finding that she 

sustained a recurrence of disability commencing July 30, 2018 causally related to her June 15, 

2017 employment injury.

On October 31, 2018 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

Additional medical evidence submitted included an October 12, 2018 progress note in 

which Dr. Stapleton noted seeing appellant following the September 27, 2018 left ankle surgery.7 

In procedure notes dated November 5, 2018 and January 7, 2019, Dr. Stapleton noted seeing 

appellant in follow-up. He opined that her current condition was clearly related to the initial work 

injury, noting that, after she had repair of her peroneal brevis tendon, her symptoms continued and 

were secondary to tendinosis and scarring from this repair and that she required revision surgery.

In the January 7, 2019 report, Dr. Stapleton advised that appellant could return to modified-duty

work for four hours a day on January 28, 2019 and could return to full-time regular duty on 

March 11, 2019. On March 4, 2019 he noted that appellant was doing well, but had a complaint 

of mild, intermittent pain over the medial aspect of her left ankle, worsened with extended activity, 

and that ankle range of motion was still limited due to pain. Dr. Stapleton diagnosed status postsurgery and a low-grade osteochondral defect. He reiterated his opinion that appellant’s current 

condition was due to the June 15, 2017 employment injury.

During the March 14, 2019 hearing, appellant testified that, after the June 15, 2017 

employment injury, she always wore a high-top boot when working and continued to roll and twist 

her left ankle. She reported at least one incident in November 2017, for which she had filed a 

claim that had been denied. Appellant stated that she was off work beginning June 30, 2018 

 

5 OWCP adjudicated the November 24, 2017 claim under File No. xxxxxx563. 

6 Appellant also submitted copies of reports from Dr. Stapleton, previously of record. 

7 A copy of the operative report is not found in the case record.
5

because no light duty was available, and that she returned to work on February 4, 2019 and was

working full duty at present.

Medical evidence submitted subsequent to the hearing included a March 21, 2019 progress 

note in which Dr. Stapleton noted appellant’s persistent left ankle pain after being on her feet all 

day at work. He diagnosed a symptomatic low-grade osteochondral defect of the left ankle.

In an April 10, 2019 report, Dr. Mitchell E. Cooper, a Board-certified orthopedic surgeon, 

noted appellant’s complaint of a two-year history of left ankle pain with current complaints of 

lateral midfoot pain, aggravated by direct pressure and weight bearing. He noted the 

September 27, 2018 surgery and that appellant reported that she had twisted her ankle the previous 

week and had some increased pain since. Examination demonstrated a nontender ankle joint, no 

left ankle pain with range of motion, and nontender ankle ligaments, but tenderness more distal 

toward the lateral foot incision and calcaneal cuboid. Dr. Cooper reviewed the July 24, 2018 left 

ankle MRI scan and advised that he was not sure that appellant was symptomatic from 

osteochondritis dissecans that day. He recommended a new left ankle MRI scan. 

On April 15, 2019 Dr. Stapleton provided a narrative of his treatment for appellant’s 

June 15, 2017 employment injury. He described her medical and surgical history and advised that 

she was taken out of work in July 2018 because she required revision surgery to repair her peroneal 

tendons due to the employment injury and to the initial surgery, and continued to be unable to 

work to recover from this revision surgery. Dr. Stapleton noted that appellant continued to 

complain of intermittent ankle pain with prolonged activities and had a low-grade osteochondral 

defect. 

An April 17, 2019 MRI scan of left ankle demonstrated subchondral edema in the talar 

dome medially, suggesting a stage 1 and possibly a slight stage 2 osteochondral injury, with 

thinning of overlying hyaline cartilage suggested; no definite full-thickness defect; no unstable 

fragment or loose body; and mild peroneal tenosynovitis and postoperative changes. 

On May 22, 2019 Dr. Cooper reviewed the MRI scan findings and discussed surgical 

options with appellant who continued to complain of left ankle pain.

By decision dated May 29, 2019, an OWCP hearing representative affirmed the 

October 19, 2018 decision. The hearing representative recommended that OWCP combine the 

instant case, File No. xxxxxx157, with File No. xxxxxx563.8

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 resulted from a previous injury or illness without an intervening injury or new exposure to 

the work environment.9

 

8 The case record indicates that OWCP has not, in fact, administratively combined OWCP File No. xxxxxx563 with 

the present claim.

9 20 C.F.R. § 10.5(x).
6

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. This burden of proof requires that a claimant furnish medical evidence from a 

physician who, on the basis of a complete and accurate factual and medical history, concludes that, 

for each period of disability claimed, the disabling condition is causally related to the employment 

injury, and supports that conclusion with medical reasoning.10 Where no such rationale is present, 

the medical evidence is of diminished probative value.11

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. 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

ANALYSIS

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

The medical evidence contemporaneous with the claimed recurrence includes a July 24, 

2018 left ankle MRI scan that demonstrated a stable osteochondral injury along the posterior dome 

of the talus. On July 25, 2018 Dr. Stapleton noted that appellant had again twisted her left ankle 

on June 12, 2018 and subsequently had increasing left ankle pain. He described the MRI scan 

findings and advised that appellant could not work. On July 30, 2018 Dr. Fuchs noted appellant’s 

report that she had aggravated her left ankle condition at work the previous month. He noted the 

MRI scan findings diagnosed tendinitis, and recommended that appellant not work. Dr. Stapleton 

performed a second left ankle procedure on September 27, 2018. In reports dated November 5, 

2018 to March 4, 2019, he consistently opined that appellant’s current condition was clearly related 

to the initial work-related injury, noting that after she had surgical repair of her peroneal brevis 

tendon, her symptoms continued and were secondary to tendinosis and scarring from this repair 

such that she required surgical revision.

It is well established that proceedings under FECA are not adversarial in nature and, while 

appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.13 OWCP has an obligation to see that justice is 

done.14 

 

10 See J.S., Docket No. 19-1035 (issued January 24, 2020).

11 Id.

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); D.T., Docket 

No. 19-1064 (issued February 20, 2020).

13 T.L., Docket No. 19-1572 (issued March 12, 2020).

14 Id.
7

The Board finds that, although Dr. Stapleton’s opinion was insufficiently rationalized to 

meet appellant’s burden of proof to establish that her claimed recurrence was due to the June 15, 

2017 employment injury, it is sufficient to require further development of the case by OWCP.15 

Thus, the Board will remand the case to OWCP for further development of the medical evidence 

to obtain a rationalized medical opinion as to whether the accepted June 15, 2017 employment 

injury caused additional left ankle conditions and/or whether continued job duties aggravated her 

left ankle condition such that she required a second surgical procedure. On remand OWCP shall 

administratively combine OWCP File No. xxxxxx157 and File No. xxxxxx563, as suggested by 

OWCP’s hearing representative in her May 29, 2019 decision. It shall then prepare a statement of 

accepted facts, which includes the accepted condition, and then obtain a second opinion 

examination as to whether the June 15, 2017 employment injury caused or aggravated additional 

left ankle conditions which required additional surgery, and if she had any ensuing employmentrelated disability.16

 After such further development as may be deemed necessary, OWCP shall 

issue a de novo decision regarding whether appellant established a recurrence of disability on 

July 30, 2018.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the May 29, 2019 decision of the Office of Workers’

Compensation Programs isset aside, and the case is remanded to OWCP for proceedings consistent 

with this decision of the Board.

Issued: July 14, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

15 See M.H., Docket No. 18-1068 (issued June 2, 2020); John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 

29 ECAB 820 (1978).

16 Id.