United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.W., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, FCI TERMINAL 

ISLAND, San Pedro, CA, Employer

__________________________________________

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Docket No. 20-1481

Issued: December 1, 2021

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On August 3, 2020 appellant filed a timely appeal from a February 6, 2020 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 February 6, 2020 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 his burden of proof to establish a recurrence of 

disability commencing March 21, 2016 causally related to his accepted March 9, 2011 

employment injury.

FACTUAL HISTORY

On March 11, 2011 appellant, then a 44-year-old utility systems repairer/operator, filed a 

traumatic injury claim (Form CA-1) alleging that on March 9, 2011 he was struck in the head by 

a steel hatch and knocked to the ground while in the performance of duty. OWCP accepted the 

claim for neck sprain and brachial neuritis or radiculitis not otherwise specified.4 It subsequently 

expanded its acceptance of the claim to include cervical disc displacement at C6-7, an acceleration 

of cervical disc degeneration, muscle contraction headache. Appellantstopped work on March 10, 

2011 and returned to his date-of-injury employment on April 8, 2012. 

On August 17, 2016 appellant filed a claim for compensation (Form CA-7) for disability 

from work for the period March 21 to August 17, 2016 “and continuing.”

In a development letter dated December 22, 2016, OWCP advised appellant of the 

definition of a recurrence of disability and requested that he provide additional factual and medical 

evidence in support of his claim. It afforded him 30 days to respond.

Thereafter, OWCP received a July 11, 2016 report from Dr. Roger Epstein, a Boardcertified psychiatrist, who opined that appellant’s work duties had aggravated his depression and 

anxiety disorder. Dr. Epstein noted that appellant’s work on the night shift had caused sleep 

difficulties and that his work with prisoners required constant vigilance. He discussed appellant’s 

history of being struck by a steel hatch in 2011, followed by a year of both “physical and brain 

rehabilitation.” Dr. Epstein opined that appellant had developed post-traumatic stress disorder 

(PTSD). He related that, in July 2015, appellant had what seemed to be a stroke, but that further 

evaluation had shown to be myasthenia gravis, “a neurologic condition that is characterized by 

marked muscle weakness along with decreases in vision, concentration, speech, and stamina.”

In a statement dated January 6, 2017, appellant attributed his condition to “repetitive 

activities and cumulative trauma, which exacerbated the original injuries.” He advised that he had 

last worked on October 21, 2015. Appellant described his work duties and indicated that his 

original injuries had worsened such that he could not work, noting that he had sustained emotional 

and physical trauma.

4 OWCP assigned the claim OWCP File No. xxxxxx575. On March 28, 2016 appellant filed an occupational 

disease claim (Form CA-2) alleging that he sustained physical and emotional conditions due to factors of his federal 

employment. He noted that he first became aware of his condition and its relation to his federal employment on 

February9, 2016. OWCP assigned that claim OWCP File No. xxxxxx510 and accepted it for bilateral carpal tunnel 

syndrome; anxiety disorder, unspecified; and major depressive disorder, single episode, unspecified. Appellant’s 

claims have been administratively combined,with OWCP File No. xxxxxx575 serving as the master file. 
3

By decision dated February 16, 2017, OWCP found that appellant had not established a 

recurrence of disability commencing March 21, 2016 causally related to his accepted employmentrelated conditions. 

In a report dated January 12, 2018, Dr. Mark N. Monroe, a physician specializingin family 

medicine, evaluated appellant for his March 9, 2011 traumatic injury. He advised that appellant’s

condition had not improved. Dr. Monroe opined that appellant was permanently disabled from 

appellant’s usual employment due to his cervical disc displacement/bulging at C5-6,C6-7, chronic 

trapezius muscle strain/sprain headaches chronic cervical sprain, cervical radiculopathy, and 

bilateral carpal tunnel syndrome. 

On February 13, 2018 appellant, through counsel, requested reconsideration. 

In a work capacity evaluation (Form OWCP-5c) dated February 12, 2018, Dr. Monroe 

found that appellant was permanently disabled from employment. 

By decision dated February 27, 2018, OWCP denied modification of its February 16, 2017 

decision. 

Under OWCP File No. xxxxxx510, on March 7, 2018 OWCP referred appellant to

Dr. Stephan Simonian, a Board-certified psychiatrist, for a second opinion examination. It also 

referred appellant to Dr. Robert A. Moore, a Board-certified neurologist, for a second opinion 

examination. 

In a report dated April 16, 2018, Dr. Simonian provided his review of a March 1, 2018

statement of accepted facts (SOAF) and the medical evidence of record.5 He discussed appellant’s 

history of a work injury on March 9, 2011. Appellant advised that symptoms of the condition had 

begun in 2015. He had a “major attack of myasthenia gravis, which required intubation.”

Dr. Simonian noted that appellant had stopped work in November 2016 due to myasthenia gravis 

and neck pain causing headaches and radiculopathy. He diagnosed depressive disorder and anxiety 

disorder, not otherwise specified. Dr. Simonian advised that the cause of appellant’s disc disease, 

transient ischemic attacks, and myasthenia gravis, should be addressed by appropriate specialists. 

He opined that appellant’s employment injury had permanently aggravated appellant’s anxiety and 

depression. Dr. Simonian found that appellant was unable to perform his usual employment and 

was also “not able to function with restrictions or limitations.”

On May 3, 2018 OWCP expanded its acceptance of appellant’s claim under OWCP File 

No. xxxxxx575 to include an aggravation of anxiety disorder and an aggravation of major 

depressive disorder. 

In a report dated May 8, 2018, Dr. Moore discussed the appellant’s history of a 2011 injury 

when he was struck by a metal hatch. He diagnosed bilateral carpal tunnel syndrome, neck sprain, 

brachial neuritis or radiculitis not otherwise specified (cervical radiculopathy), myasthenia gravis, 

and a history of a cerebral vascular accident. Dr. Moore attributed appellant’s cerebral vascular 

event to a combination of his high blood pressure, obesity, and sleep apnea. He opined that 

appellant’s myasthenia gravis was unrelated to his employment, noting that it was autoimmune 

5 While the claims had not yet been administratively combined, the SOAF referenced appellant’s accepted 

conditions under both OWCP File Nos. xxxxxx510 and xxxxxx575.
4

disorder of uncertain etiology. Considering the accepted conditions, Dr. Moore noted functional 

limitations, including restrictions of pushingand pullingfor 2 hours each day and pushing, pulling, 

lifting, and carrying 10 to 25 pounds. He advised that, if the condition of myasthenia gravis was 

considered as an accepted condition, appellant was not capable of working in a full or part-time 

basis. In a work capacity evaluation (Form OWCP-5c) of even date, Dr. Moore found that 

appellant could work eight hours per day with restrictions not considering his myasthenia gravis. 

He indicated that appellant could reach for 2 hours per day, performing repetitive wrist and elbow 

movements for 2 hours per day, and push, pull, and lift up to 25 pounds for 2 hours per day.

On June 5, 2018 appellant, through counsel, requested reconsideration. Counsel asserted 

that Dr. Simonian had found that appellant was disabled from his regular employment.

On October 10, 2018 OWCP requested thatDr. Simonian review Dr. Moore’s May 8, 2018 

report and address whether appellant was disabled from work commencing March 21, 2016 due to 

his accepted injuries.

In a supplemental report dated October 30, 2018, Dr. Simonian related that appellant had 

diagnosed anxiety disorder and depressive disorder, due in part to appellant’s stroke and in part to 

his pain, headaches, and injury to his cervical spine. He noted that Dr. Moore found that 

appellant’s employment-related condition had partially resolved such that appellant could resume 

work and that the main issue was myasthenia gravis, which was not due to his federal employment. 

Dr. Simonian opined that the “psychiatric component of depression and anxiety in relation to the 

work injury that happened on March 9, 2011 now is partially resolved to the extent that by itself it 

is not inhibiting [appellant]to return back to work.” He found that appellant was currently disabled 

due to myasthenia gravis. Dr. Simonian related that appellant’s inability to work commencing 

March 21, 2016 was “in relation to the development of an illness, myasthenia gravis, and the 

physiological concern that followed, and is not industrial.”

By decision dated November 19, 2018, OWCP denied modification of its February 27, 

2018 decision. 

OWCP subsequently received an October 16, 2018 impairment evaluation performed by

Dr. Mark Bernhard, an osteopath. Electrodiagnostic testing performed on that date revealed 

findings “consistent with axonal and demyelinating neuropathies of the upper extremities....” 

In a report dated January 26, 2019, submitted under OWCP File No. xxxxxx510, Dr. Seth 

Bricklin, a psychologist, diagnosed recurrent, severe major depressive disorder and PTSD causally 

related to the accepted employment injuries.6 

In a supplemental report dated May 8, 2019, Dr. Bernhard reviewed a January 29, 2019 

magnetic resonance imaging scan of the cervical spine, which he noted showed an increase in the 

size of the disc protrusion at C6-7 with cord impingent. He advised that the findings were 

“consistent with cervical radiculopathy.” Dr. Bernhard described appellant’s work duties and 

noted that electrodiagnostic testing had revealed moderately severe carpal tunnel syndrome. He 

opined that appellant was unable to perform the duties of his usual employment. Dr. Bernhard 

related, “[Appellant] has conditions that present a synergistic effect in terms of pain, weakness, 

6 The case record indicates that OWCP File Nos. xxxxxx510 and xxxxxx575 were administratively combined as of 

March 22, 2019. 
5

and instability, namely the bilateral carpal tunnel with the cervical spine conditions resulting in a 

greater degree of weakness than either of those conditions in isolation.” 

Under OWCP File No. xxxxxx510, on May 23, 2019 OWCP referred appellant, along with 

a May 13, 2019 updated SOAF, to Dr. Simonian for a second opinion examination to determine 

whether appellant had sustained an emotional condition causally related to his employment duties. 

In a report dated June 30, 2019, Dr. Simonian diagnosed depressive disorder and anxiety 

disorder with features of PTSD. He found that appellant was temporarily totally disabled 

beginning October 21, 2015 due to appellant’s myasthenia gravis attack, but that other symptoms 

also contributed, including headaches, hand numbness and tingling due to carpal tunnel syndrome 

and his neck injury, and symptoms of PTSD due to his work for the employing establishment. 

Dr. Simonian related, “Therefore, it is my opinion that the period of total temporary disability from 

October 21, 2015 onward is partly justified on an industrial basis, and partly on the basis of 

myasthenia gravis, which happened about a year ago and the claimant states that has not been a 

problem anymore and it has not repeated its attack.” He opined that appellant was unable to return 

to his usual employment “because of the symptoms of depression and anxiety as well as physical 

pain that exacerbates the psychiatric findings and symptoms.” Dr. Simonian asserted that 

appellant was totally disabled from employment.

On November 5, 2019 appellant, through counsel, requested reconsideration. 

By decision dated February 6, 2020, OWCP denied modification of its November 19, 2018 

decision. It found that the June 30, 2019 report from Dr. Simonian, its referral physician, was 

insufficiently reasoned to establish disability from work commencing March 21, 2016.

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.7 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. A recurrence does not occur when such withdrawal occurs for 

reasons of misconduct, nonperformance of job duties, or a reduction-in-force.8

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 

7

20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

8

Id.
6

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

injured.9

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 

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or impartial medical specialist) who shall 

make an examination.12 This is called a referee examination and OWCP will select a physician 

who is qualified in the appropriate specialty and who has no prior connection with the case.13

ANALYSIS

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

Dr. Monroe, a treating physician, opined in a January 12, 2018 report that appellant was 

totally disabled from employment due to his cervical disc displacement/bulging at C5-6, C6-7, 

chronic trapezius muscle strain/sprain headaches chronic cervical sprain, cervical radiculopathy, 

and bilateral carpal tunnel syndrome. In contrast, on May 8, 2018 Dr. Moore, an OWCP referral 

physician, diagnosed bilateral carpal tunnel syndrome, cervical sprain, brachial neuritis or 

radiculitis, myasthenia gravis, and a history of a cerebral vascular event. He attributed the cerebral 

vascular event to appellant’s high blood pressure, obesity, and sleep apnea and found that his 

myasthenia gravis was unrelated to his employment. Dr. Moore found that, considering only the 

accepted conditions, appellant work full time with restrictions, including pushing, pulling, and 

lifting up to 25 pounds for 2 hours per day, and reaching, reaching above the shoulder, and 

performing repetitive movements for 2 hours per day. The Board finds that there is an unresolved 

conflict of medical opinion between Dr. Monroe, for appellant, and Dr. Moore, for the

government, regarding whether appellant sustained a recurrence of disability beginning March 21, 

2016 causally related to appellant’s accepted March 9, 2011 employment injury.14

9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket 

No. 18-0334 (issued December 4, 2018).

10 L.O., Docket No. 19-0953 (issued October 7, 2019); J.D., Docket No. 18-0616 (issued January 11, 2019).

11 M.G., Docket No. 19-0610 (issued September 23, 2019); G.G., Docket No. 18-1788 (issued March 26, 2019).

12 5 U.S.C. § 8123(a);see J.S., Docket No. 17-0626 (issued January 22, 2019).

13 20 C.F.R. § 10.321.

14 See S.C., Docket No. 20-0856 (issued August 26, 2021); D.N., Docket No. 19-1344 (issued November 6, 2020).
7

OWCP’s regulations provide that, if a conflict exists between the medical opinion of the 

employee’s physician and the medical opinion of either a second opinion physician or an OWCP 

medical adviser, OWCP shall appoint a third physician to make an examination. 15 The Board will 

therefore remand the case to OWCP for referral to an impartial medical examiner regarding 

whether appellant has submitted sufficient evidence to establish a recurrence of disability 

beginning March 21, 2016 due to the accepted March 9, 2011 employment injury. OWCP should 

additionally further develop the issue of whether appellant sustained disability due to his 

aggravation of anxiety disorder and major depressive disorder and whether acceptance of his claim 

should be expanded to include PTSD.16 Following this and other such further development as 

deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

15 5 U.S.C. § 8123(a); K.C., Docket No. 19-0137 (issued May29, 2020).

16 The Board notes that OWCP found that the June30, 2019 report from Dr.Simonian, a referral physician on the 

issue of appellant’s psychological condition, was insufficiently rationalized. However, if OWCP found deficiencies 

in Dr. Simonian’s report, it should have sought clarification or referred appellant for a new second opinion evaluation. 

See D.G., Docket No. 20-1183 (issued May 26, 2021); M.S., Docket No. 19-0282 (issued August2, 2019).
8

ORDER

IT IS HEREBY ORDERED THAT the February 6, 2020 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: December 1, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board