United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.M., Appellant

and

U.S. POSTAL SERVICE, WEST MILWAUKEE 

POST OFFICE, Milwaukee, WI, Employer

__________________________________________

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Docket No. 22-0346

Issued: August 9, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 5, 2022 appellant filed a timely appeal from a December 16, 2021 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 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 this case.

1 The Board notes that,following the December 16, 2021 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

5 U.S.C. § 8101 et seq.
2

ISSUE

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

disability, commencing October 8, 2021, causally related to his December 18, 2019 employment 

injury.

FACTUAL HISTORY

On February 11, 2020 appellant, then a 50-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging on December 18, 2019 he injured his left knee when he slipped off 

the bottom step, while ascending stairs, and fell forward twisting his leg and hitting his knee on 

the stairs while in the performance of duty. He stopped work on December 23, 2019. OWCP 

accepted appellant’s claim for contusion of the left knee. It later expanded acceptance of the claim 

to include tear of the left medial meniscus. OWCP paid appellant wage-loss compensation from 

December 23, 2020 through October 8, 2021.

On May 12, 2020 appellant underwent an OWCP-authorized surgery to repair a left knee 

medial meniscus tear, grade 4 chondromalacia of the medial femoral condyle and grade 3 

chondromalacia of the medial tibial plateau. On June 3, 2021 he underwent an OWCP-authorized 

left knee medial unicondylar arthroplasty.

In a note dated October 1, 2021, Dr. Paul R., Miller, a Board-certified orthopedic surgeon,

released appellant to return to work on October 4, 2021 with restrictions of lifting no greater than

30 pounds and walking and standing for no more than 15 minutes without a rest break.

On October 4, 2021 the employing establishment offered appellant a limited-duty job offer

which required working eight hours a day while writing, sitting, intermittently standing, and 

walking for 15-minute intervals with a 5-minute rest break. The job offer did not include a specific 

lifting weight restriction. The listed duties included second notices, filing, lobby assistant, 

throwing hot case, casing mail, setting up routes, and updating edit books. Appellant accepted this 

position on October 8, 2021 and returned to work on that date. 

In an October 16, 2021 statement, appellant’s supervisor, K.P., noted that appellant had 

reported to work on October 8, 2021. While she was determining what work he would be 

performing and whether he was to be sent to another location to set routes, she walked away from 

her desk for a short period. When K.P. returned, appellant had left the building before performing 

any work duties.

In a compensation termination sheet dated October 7, 2021, OWCP determined that 

appellant was not entitled to further wage-loss compensation after that date as he had returned to 

full-time employment with no wage loss.

In an October 28, 2021 memorandum of telephone call (Form CA-110), appellant reported 

that the employing establishment was requiring him to work outside his medical restrictions.

On October 20, 2021 the employing establishment offered appellant a second limited-duty 

job working eight hours a day standing and walking for 15 minutes with breaks and pushing, 

pulling, and lifting no more than 30 pounds.
3

In an October 29, 2021 narrative statement, appellant noted that he reported to work on 

October 8, 2021. He asserted that he worked approximately 1.5 hours, while his supervisor 

attempted to find further appropriate work. K.P. had indicated that appellant might be required to 

deliver packages and/or go to another station where help was needed. Appellant responded by 

informing her of his 30-pound lifting restrictions. He waited for one hour for an additional 

assignment and then left the employing establishment.

Beginning on November 2, 2021, appellant filed claimsfor compensation (Form CA-7) for 

disability from work for the period October 8 through November 5, 2021.

On November 9, 2021 the employing establishment asserted that appropriate limited-duty 

work had been available for appellant since October 8, 2021.

In a November 10, 2021 development letter, OWCP advised appellant that the evidence of 

record was insufficient to establish his claim for disability beginning October 8, 2021. It requested 

additional factual and medical evidence in support of the claimed period of work-related disability

beginning October 8, 2021. OWCP advised that a limited-duty assignment was available within 

appellant’s medical restrictions during the period claimed and that there was conflicting evidence 

of whether he had returned to work. It afforded him 30 days to submit additional evidence.

On December 3, 2021 Dr. Miller indicated that appellant had reached maximum medical 

improvement and discharged him from care. He provided restrictions of lifting up to 20 pounds 

and occasionally walking, standing, lifting, and/or carrying light tools and files. Dr. Miller found 

that appellant could perform sedentary work with occasional walking and standing.

By decision dated December 16, 2021, OWCP denied appellant’s claim for disability from 

work beginning October 8, 2021 due to his accepted employment injury.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury. 4 Under FECA the term 

disability means incapacity, because of an employment injury, to earn the wages that the employee 

was receiving at the time of injury.5 For each period of disability claimed, the employee has the 

burden of proof to establish that he or she was disabled from work as a result of the accepted 

employment injury.6 Whether a particular injury causes an employee to become disabled from 

3

Id.

4 M.M., Docket No. 21-0590 (issued December 2, 2021); D.S., Docket No. 20-0638 (issued November 17, 2020); 

F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn 

Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).

6 T.W., Docket No. 19-1286 (issued January 13, 2020).
4

work, and the duration of that disability, are medical issues that must be proven by a preponderance 

of probative and reliable medical opinion evidence.7

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 that had resulted from a previous 

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

the illness. The term also means an inability to work when a light-duty assignment made 

specifically to accommodate an employee’s physical limitations due to the work-related 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 his or her established physical limitations. 8 If the 

claim for recurrence of disability for work is based on modification of the claimant’s duties or 

physical requirements of the job, the claimant should be asked to describe such changes. If the 

evidence establishes that the limited-duty position has changed such that it no longer 

accommodates the claimant’s work restrictions, OWCP should accept the recurrence.9

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 light duty can be performed, the employee has the burden of proof to establish by 

the weight of reliable, probative, and substantial evidence a recurrence of total disability. As part 

of this burden of proof, the employee must show either a change in the nature and extent of the 

injury-related condition, or a change in the nature and extent of the limited-duty requirements.10

OWCP’s procedures require that, in cases where recurrent disability for work is claimed 

within 90 days or less from the first return to duty, the claimant is not required to produce the same 

evidence as a recurrence claimed long after apparent recovery and return to work. 11 Thus, in cases 

where a recurrence is claimed within 90 days of the first return to duty, the focus is on disability 

rather than causal relationship of the accepted condition(s) to the work injury. 12

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 

7

S.G., Docket No. 18-1076 (issued April11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

20 C.F.R. § 10.5(x); see D.T., Docket No. 19-1064 (issued February 20, 2020).

9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6.a(3) (June 2013); J.T., 

Docket No. 15-1133 (issued December 21, 2015).

10 See C.B., Docket No. 19-0464 (issued May 22, 2020); R.N., Docket No. 19-1685 (issued February 26, 2020); 

Terry R. Hedman, 38 ECAB 222 (1986).

11 Supra note 9 at Chapter 2.1500.5 (June 2013); see also L.L., Docket No. 20-0956 (issued October 19, 2021); 

R.E., Docket No. 20-0421 (issued May 17, 2021); R.W., Docket No. 17-0720 (issued May 21, 2018).

12 R.E., id.; K.R., Docket No. 19-0413 (issued August7, 2019).
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cannot perform and demonstrate objective medical findings that form the basis for the renewed 

disability from work.13

ANALYSIS

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

Appellant returned to a full-time limited-duty position on October 8, 2021 and worked no 

more than a few hours. The evidence of record contemporaneous to the claimed recurrence 

includes Dr. Miller’s October 1, 2021 report in which he released appellant to return to work on 

October 4, 2021 with restrictions of lifting no greater than 30 pounds and walking and standing 

for no more than 15 minutes without a rest break. The October 4, 2021 limited-duty job offer 

entailed working eight hours a day while writing, sitting, intermittently standing, and walking for 

15-minute intervals with a 5-minute rest break. However, the job offer did not specify any lifting

requirements or restrictions. Appellant alleged that when he returned to work on October 8, 2021 

the employing establishment had no work available within his restrictions and that his supervisor 

attempted to assign him work that he believed exceeded his lifting restriction. The employing 

establishment contended that he reported to work on October 8, 2021, but left without performing 

any duties. 

As appellant claimed a recurrence of disability within 90 days of his first return to duty, 

OWCP should have developed and decided the claim under the proper recurrence standard, 

emphasizing disability rather than causal relationship.14 However, the November 10, 2021 OWCP 

development letter improperly concluded that the October 6, 2021 offered position was within his

work restrictions without considering or developing the evidence to determine what the lifting 

requirement of that limited-duty position was and whether the employing establishment, in fact,

had work available that met all of his work restrictions on October 8, 2021.

OWCP’s procedures provide that OWCP is responsible for requesting evidence.15 Its 

procedures further provide that the claims examiner should contact the claimant and employing 

establishment in writing to obtain evidence and should specifically request the information needed, 

tailored to the specifics of the individual case.16 If a claimant accepts a job offer, but does not 

return to work, OWCP’s procedures require the weight of the medical evidence must establish that 

the claimant is physically capable of carrying out any physical requirements of the job. 17 In this 

instance, OWCP improperly denied appellant’s recurrence claim without considering whether the 

medical evidence established that the October 8, 2021 position was within all of his medical 

restrictions. The Board finds that this case must be remanded for further clarification of the 

13 M.H., Docket No. 19-1552 (issued February 2, 2021); A.B., Docket No. 18-0978 (issued September 6, 2019); 

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

14 L.L., supra note 11.

15 Supra note 9 at Chapter 2.800.4c(2) (June 2011).

16 Id. at Chapter 2.800.5. See also V.R., Docket No. 16-1167 (issued December 22, 2016).

17 Id. at Chapter 2.814.4c(6)(June 2013).
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limited-duty job requirements and the specific employment duties available for him on 

October 8, 2021. Following this and any further development as deemed necessary, OWCP shall 

issue a de novo decision.

CONCLUSION

The Board finds that the case is not in posture for decision regarding whether appellant has 

met his burden of proof to establish a recurrence of disability beginning October 8, 2021 due to 

his accepted December 18, 2019 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the December 16, 2021 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: August 9, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board