United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Palatine, IL, Employer

__________________________________________

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Docket No. 18-1489

Issued: June 25, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 31, 2018 appellant, through counsel, filed a timely appeal from an April 30, 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.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 April 30, 2018 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 total 

disability commencing January 7, 2017 causally related to her accepted employment-related

conditions.

FACTUAL HISTORY

On February 10, 2006 appellant, then a 47-year-old postage due clerk, filed an occupational 

disease claim (Form CA-2) alleging that she developed lower back, bilateral knee, bilateral leg, 

and buttocks conditions due to factors of her federal employment. OWCP accepted the claim for 

displaced lumbar intervertebral disc and aggravation of sprain/strain of the bilateral knees. It also 

authorized an arthroscopic surgery of the right knee on May 11, 2006 and an arthroscopic surgery 

of the left knee on July 28, 2006. OWCP placed appellant on the supplemental compensation rolls 

effective March 1, 2006 and on the periodic compensation rolls effective August 6, 2006. 

Appellant underwent an unauthorized plasma disc decompression herniated lumbar disc 

L5-S1 surgery on January 15, 2010. 

On February 26, 2013 the employing establishment offered appellant a modified manual 

distribution clerk position effective that date. The duties included distributing, weighing, 

computing, and processing all classes and types of postage due mail, maintaining accounts and 

records, and verifying mail. The physical requirements included lifting and carrying up to 30 

pounds for 2 to 4 hours per day, standing and walking intermittently for 6.5 hours per day, bending, 

stooping, and twisting intermittently for 4 to 6 hours per day, and simple grasping, fine 

manipulation, and reaching above shoulders continuously for 8 hours per day. Appellant accepted 

the job offer and returned to work on February 26, 2013. 

In an August 31, 2016 report, Dr. Robert James Fink, an orthopedic surgeon, noted that 

appellant was seen for follow-up care for both knees. He diagnosed degenerative joint disease of 

the bilateral knees and found that x-rays revealed positive tricompartmental degenerative joint 

disease of the bilateral knees. 

In three form reports -- a work status form, attending physician’s report (Form CA-20) and 

duty status report (Form CA-17) -- all dated January 11, 2017, Dr. Fink took appellant off work 

beginning January 6, 2017. He also indicated by checking a box marked “yes” on the Form CA-20 

that appellant’s arthritis, back pain, and herniated nucleus pulposus (HNP) of the L4-5 and L5-S1 

levels were employment related. Dr. Fink explained that she worked on her feet all day and walked 

in her capacity as a postage due clerk. 

Appellant stopped work on January 7, 2017 and filed claims for wage-loss compensation 

(Form CA-7) for the period January 7 to 20 and January 21 to February 3, 2017. She later filed 

claims for the periods February 4 to 17 and February 18 to March 3, 2017. 

In a February 1, 2016 work status form, Dr. Fink took appellant off work from February 1 

to March 6, 2017. 

By development letter dated February 9, 2017, OWCP notified appellant that it had 

received her claims for compensation and it appeared that she was claiming disability due to a 
3

material change or worsening of her accepted work-related conditions. It noted that she was 

“unclear” why she had stopped work on January 7, 2017 and advised her of the factual and medical 

deficiencies of her claim. OWCP afforded appellant 30 days to submit additional evidence and 

respond to its inquiries. 

In response, appellant submitted a January 13, 2017 report from Dr. Fink who related that 

appellant’s bilateral knee pain and low back pain had worsened. He diagnosed three-compartment 

arthritis, left knee greater than right, and advised that she “may be now in need of total knee 

replacement.” Dr. Fink further advised that appellant “may have more intradis[c]al disease in her 

low back.” 

On February 22, 2017 Dr. Fink reported that appellant had been his patient for several years

and her job required a considerable amount of time walking, standing, lifting, carrying packages, 

and pushing and pulling carts. He opined that, because of the amount of repetitive work that was 

performed, there was a causal relationship between her low back pain as well as the degenerative 

arthritis in both knees. Dr. Fink noted that a magnetic resonance imaging (MRI) scan of the left 

knee was positive for a torn anterior crucial ligament as well as medial and lateral menisci and 

appellant had a positive MRI scan for HNP at the L5-S1 and L4-5 levels. He recommended a total 

left knee replacement and advised that she was not capable of performing her duties of standing, 

carrying, twisting, and turning. 

In work status forms dated February 27 and March 6, 2017 and a duty status report (Form 

CA-17) dated March 20, 2017, Dr. Fink continued to advise that appellant was “off work.” 

On February 27, 2017 Dr. Fink reported that an MRI scan of the lumbar spine showed an

extruded lumbar disc at L5-S1 with right-sided spinal stenosis and right lateral recess stenosis at 

L4-5. 

By decision dated April 7, 2017, OWCP denied appellant’s recurrence claim, finding that 

the evidence of record was insufficient to establish a change in the nature and extent of the injuryrelated conditions or a change in the nature and extent of the limited-duty job requirements. It 

noted that, if she was alleging a new injury or new work factors, she had the right to file a new 

claim. 

On April 11, 2017 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

In an August 30, 2017 report, Dr. Fink related that appellant was experiencing increased 

pain in her low back and left knee, as well as swelling in both legs “possibly due to meloxicam.” 

He diagnosed torn cartilage, left knee, and gave her a prescription for physical therapy to her left 

knee. 

A telephonic hearing was held before an OWCP hearing representative on 

October 16, 2017. Appellant provided testimony and the hearing representative held the case 

record open for 30 days for the submission of additional evidence. 

In response, appellant submitted a work status form dated December 4, 2017 from Dr. Fink 

who provided work restrictions of no lifting more than 10 pounds, alternate sitting and standing, 

minimum walking only, no bending/twisting at the waist, and no squatting/kneeling on knees. 
4

By decision dated January 2, 2018, OWCP’s hearing representative affirmed the April 7, 

2017 decision, finding that the evidence of record was insufficient to establish a change in the 

nature and extent of appellant’s accepted conditions or a change in the nature and extent of her 

limited-duty job requirements. 

On January 31, 2018 appellant, through counsel, requested reconsideration and submitted 

an October 16, 2017 report from Dr. Fink who reiterated his medical opinions and opined that he 

could state with “absolute medical certainty that [appellant] has causal relationship with her knee 

condition related to the work she did as a postage due clerk, which required considerable amount 

of time walking, standing, lifting, and carrying packages as well as pushing and pulling carts.” 

By decision dated April 30, 2018, OWCP denied modification of its prior decision. 

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 has resulted from a previous 

injury or illness without an intervening injury or new exposure to the work environment that caused 

the illness.4 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 her workrelated 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 the established physical 

limitations.5

When an employee who is disabled from the job he or she held when injured on account 

of employment-related residuals returns to a limited-duty position or the medical evidence of 

record establishes that he or she can perform the limited-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 to show that he or she cannot perform such limited-duty work. 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 limited-duty job requirements.6 This burden 

includes the necessity of furnishing evidence from a qualified physician who concludes, on the 

basis of a complete and accurate factual and medical history, that the disabling condition is causally 

related to the employment injury. The medical evidence must demonstrate that the claimed 

recurrence was caused, precipitated, accelerated, or aggravated by the accepted injury.7

Causal relationship is a medical issue and the medical evidence required to establish causal 

relationship is rationalized medical opinion evidence.8 The opinion of the physician must be based 

 

4

Id. at § 10.5(x). See T.S., Docket No. 09-1256 (issued April 15, 2010).

5

Id.

6 See A.M., Docket No. 09-1895 (issued April 23, 2010).

7 See L.F., Docket No. 14-1817 (issued February 2, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Causal Relationship, Chapter 2.805.2 (January 2013).

8 See I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).
5

on a complete factual and medical background of the employee, must be one of reasonable medical 

certainty, and must be supported by medical rationale explaining the nature of the relationship 

between the diagnosed condition and the specific employment factors identified by the employee.9

ANALYSIS

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

total disability commencing January 7, 2017 causally related to her accepted employment-related 

injuries.

Appellant has not alleged a change in the nature and extent of her light-duty job 

requirements. Therefore, she must thus provide medical evidence establishing that she was 

disabled due to a worsening of her accepted work-related conditions.10 The Board finds that 

appellant did not submit medical evidence to establish that she was disabled due to a worsening of 

her accepted work-related conditions commencing January 7, 2017.

In his August 31, 2016 and February 22, 2017 reports, Dr. Fink diagnosed arthritis and 

degenerative joint disease of the bilateral knee, recommended a total left knee replacement, and 

took appellant off work beginning January 6, 2017. He advised that she was not capable of 

performing her duties of standing, carrying, twisting, and turning, and provided work restrictions 

of no lifting more than 10 pounds, alternate sitting and standing, minimum walking only, no 

bending/twisting at the waist, and no squatting/kneeling on knees as a result of her diagnosed 

conditions. However, OWCP did not accept arthritis or degenerative joint disease conditions in 

the current claim. Appellant thus has the burden of proof to establish causal relationship.11 

Additionally, Dr. Fink did not adequately explain how her disability on or after January 7, 2017 

was due to a worsening of her accepted work-related lumbar disc condition and bilateral knee 

sprain/strain. Moreover, he did not explain how appellant’s other diagnosed conditions were due 

to a worsening of her accepted work-related conditions. Without such an explanation, the reports 

of Dr. Fink are insufficient to establish a recurrence of disability. 

Dr. Fink did not provide an opinion on causal relationship either in his work status form or

Form CA-17, both dated January 11, 2017. The Board has held that medical evidence that does 

not offer an opinion regarding the cause of an employee’s condition or disability is of no probative 

value on the issue of causal relationship.12 As such, these reports are insufficient to meet 

appellant’s burden of proof.

Dr. Fink opined in the January 11, 2017 Form CA-20 that appellant’s arthritis, back pain, 

and HNP of the L4-5 and L5-S1 levels were employment related because she stood all day and 

walked while performing her employment duties. However, he did not provide sufficient rationale 

explaining the pathophysiological process by which the accepted employment factors caused or 

 

9 See I.J., 59 ECAB 408 (2008); see also Victor J. Woodhams, 41 ECAB 465 (2005).

10 Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

11 E.M., Docket No. 17-1683 (issued January 4, 2019).

12 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
6

aggravated the back conditions.13 The Board finds that this report is also insufficient to establish 

appellant’s recurrence claim.

In his October 16, 2017 report, Dr. Fink opined that he could state with “absolute medical 

certainty that [appellant] has causal relationship with her knee condition related to the work she 

did as a postage due clerk, which required considerable amount of time walking, standing, lifting, 

and carrying packages as well as pushing and pulling carts.” However, he did not explain how 

appellant was disabled on or after January 7, 2017 due to a worsening of her accepted work-related 

conditions or specifically explain whether she sustained a recurrence of disability.

14

 Without such 

an explanation, this report from Dr. Fink is also insufficient to establish a recurrence of disability, 

as alleged.

The Board has held that the issue of disability from work can only be resolved by competent 

medical evidence.15 Whether a claimant’s disability is related to an accepted condition is a medical 

question which must be established by a physician who, on the basis of a complete and accurate 

factual and medical history, concludes that the disability is causally related to employment factors 

and supports that conclusion with sound medical reasoning.16 The record does not contain a 

medical opinion of sufficient rationale to establish a recurrence of disability commencing 

January 7, 2017 causally related to appellant’s accepted employment-related conditions.

17

 

Consequently, 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 

total disability commencing January 7, 2017 causally related to her accepted employment-related 

conditions. 

 

13 See M.W., Docket No. 18-1555 (issued March 20, 2019).

14 E.B., Docket No. 17-1467 (issued July 26, 2018); D.H., Docket No. 18-0129 (issued July 23, 2018); see 

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (issued February 6, 2009).

15 R.C., 59 ECAB 546 (2008).

16 M.C., Docket No. 18-0919 (issued October 18, 2018); see also Sandra D. Pruitt, 57 ECAB 126 (2005).

17 Supra note 11.
7

ORDER

IT IS HEREBY ORDERED THAT the April 30, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 25, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board