United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Corpus Christi, TX, Employer

__________________________________________

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Docket No. 18-0527

Issued: July 29, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 18, 2018 appellant, through counsel, filed a timely appeal from a December 8, 

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 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 December 8, 2017 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 June 1, 2015, causally related to his accepted employment injury.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On June 14, 2013 appellant, then a 50-year-old city carrier, filed an occupational disease 

claim (Form CA-2) alleging that on or about May 26, 2012 he sustained a herniated disc (L5) as a 

result of driving a mail truck as a duty of his federal employment.

5 On July 31, 2013 OWCP 

accepted his claim for lumbar intervertebral disc displacement and thoracic or lumbosacral neuritis 

or radiculitis. It paid wage-loss compensation benefits on the supplemental rolls beginning 

August 1, 2013. On August 20, 2013 appellant accepted a part-time modified letter carrier 

position working six hours per day.6 OWCP paid wage-loss compensation for the remaining two 

hours per day. 

In a June 1, 2015 progress note and duty status report (Form CA-17), Dr. Thomas Martens, 

an osteopath specializing in family medicine, related appellant’s complaints of increased lumbar 

pain. He indicated that appellant had been working limited duty for six hours per day since 

September 2013, but appellant believed that his condition had worsened when the new Postmaster 

instructed him to carry his mailbag and dismount with the bag while delivering mail. Dr. Martens 

noted examination findings of decreased range of motion of the lumbar spine and positive straight 

leg raise testing on the right. He diagnosed displacement of the lumbar intervertebral disc without 

myelopathy, thoracic or lumbosacral neuritis or radiculitis, right shoulder internal derangement, 

and right knee internal derangement. Dr. Martens recommended that appellant work limited duty 

for four hours per day with restrictions of lifting, carrying, simple grasping, and sitting for four 

hours per day; fine manipulation for two hours per day; and standing, walking, bending, stooping, 

twisting, pushing, pulling, and driving a vehicle for one hour per day. 

On June 15, 2015 appellant filed a claim for compensation (Form CA-7) claiming 

additional wage-loss for the period May 30 to June 12, 2015. On the accompanying time analysis 

form (Form CA-7a) he claimed four hours of daily leave without pay (LWOP) beginning 

June 3, 2015. Appellant remarked that the reason for leave use was “working (Limited Duty).” 

 

4 Docket No. 16-1811 (issued May 17, 2017).

5 On April 3, 2013 appellant underwent lumbar surgery. 

6 The part-time modified-duty assignment was based on the medical restrictions of Dr. Francisco Batlle, a 

neurosurgeon. In an August 12, 2013 duty status report (Form CA-17), Dr. Batlle advised that appellant could return 

to work with restrictions of driving up to seven hours, simple grasping up to six hours, standing, walking, climbing, 

and fine manipulation up to three hours, sitting, twisting, and reaching above the shoulder up to two hours, bending, 

stooping, pushing, and pulling up to one hour, and lifting and carrying up to 20 pounds. 
3

He continued to file additional CA-7 forms claiming wage-loss compensation for four hours of 

LWOP. 

By decision dated July 28, 2015, OWCP denied appellant’s claim for wage-loss 

compensation beginning on May 16, 2015 and continuing. By decision dated June 24, 2016, an 

OWCP hearing representative affirmed the July 28, 2015 decision in part and denied claim for 

recurrent disability and wage-loss compensation beginning June 1, 2015. She found that the 

medical evidence of record was insufficient to establish that appellant’s reduction in work hours 

was causally related to his accepted lumbar and thoracic conditions. 

Appellant filed an appeal to the Board. 

By decision dated May 17, 2017, the Board affirmed the June 24, 2016 decision denying 

appellant’s recurrence of disability claim.

7

 The Board determined that the evidence of record was 

insufficient to establish a recurrence of disability beginning June 1, 2015 due to a worsening or 

change of his accepted conditions. 

On June 5, 2017 appellant, through counsel, requested reconsideration. OWCP received 

additional evidence regarding the claimed June 1, 2015 recurrence of disability, which included

progress notes and duty status reports (Form CA-17) dated June 27, 2016 to August 17, 2017 by

Dr. Martens. Dr. Martens noted clinical findings and a diagnosis of lumbar disc displacement and 

indicated that appellant could work limited duty for four hours per day with restrictions of: lifting 

and carrying up to 20 pounds intermittently, sitting, and simple grasping for four hours per day;

fine manipulation for two hours per day; standing, walking, bending, stooping, twisting, pushing, 

pulling, reaching above the shoulder, and driving a vehicle for one hour per day; and no operating 

of machinery. 

In an August 29, 2016 narrative report and letter, Dr. Batlle, a neurosurgeon, described the 

May 26, 2012 employment injury and the medical treatment that appellant had received. He 

reported that appellant had experienced a resolution of his symptoms until he “returned to work 

modified, then my new supervisor changed the routine and I had to do a [park-and-] loop for two 

hours delivering mail.” Dr. Batlle noted appellant’s current complaints of primary low back pain 

radiating into the bilateral lower extremities, right side greater than left. Upon examination of 

appellant’s lumbar spine, he observed decreased range of motion and positive straight leg raise 

testing. Dr. Batlle diagnosed recurrent lumbar radiculitis and lumbago, status post lumbar surgery. 

He reported that appellant had “recurrent symptomatology beginning May 29, 2015.” 

The record also contains several e-mails from the employing establishment regarding 

appellant’s modified-duty position. In an e-mail dated December 27, 2016, an OWCP claims 

examiner requested information from the employing establishment relative to when appellant 

began to work four hours per day and whether there was a limited-duty job offer at that time. It 

also requested a copy of the most recent limited-duty job offer. 

In a separate e-mail dated February 28, 2017, an OWCP claims examiner again requested 

that the employing establishment provide a copy of the last signed job offer. She also requested 

 

7 Supra note 4.
4

information regarding appellant’s pay rate and actual earnings. In an e-mail dated April 17, 2017, 

a health and resource management specialist for the employing establishment provided his pay 

rate and earnings information. 

A June 12, 2017 functional capacity evaluation report demonstrated that appellant could 

work part time at a light physical demand level. 

On July 6, 2017 OWCP received a report from Dr. James E. Butler, III, and a Boardcertified orthopedic surgeon serving as an OWCP second-opinion examiner. In a May 18, 2017 

report, Dr. Butler noted appellant’s current complaints of lower back pain radiating down the leg, 

knees, neck, and shoulders. Upon examination of appellant’s lumbar spine, he observed tenderness 

upon palpation from L4-S1 and restricted range of motion. Dr. Butler diagnosed thoracic or 

lumbosacral neuritis or radiculitis and displacement of lumbar intervertebral disc without 

myelopathy. He reported that appellant’s work-related conditions had not resolved and that he 

remained disabled due to his accepted conditions. In an attached work capacity evaluation form 

(OWCP-5c), Dr. Butler indicated that appellant could work with restrictions of: driving up to four

hours; lifting, pushing, or pulling no more than 20 pounds up to two hours; standing and walking 

up to two hours; squatting, kneeling, and climbing up to one hour; and no bending, twisting, or 

stooping. 

In a July 28, 2017 report and work excuse note, Dr. Johnny White, an anesthesiologist,

indicated that appellant worked as a part-time mail carrier and currently complained of neck and 

right arm pain. He provided examination findings and diagnosed lumbar radiculopathy and 

chronic myofascial pain. 

In an August 17, 2017 report, Dr. Clayton Adams, a Board-certified anesthesiologist, noted 

appellant’s 2012 work-related injury. Upon examination of appellant’s lumbar spine, he reported 

no spasms, tenderness, or trigger points. Dr. Adams diagnosed chronic pain syndrome, lumbar 

radiculopathy, postlaminectomy syndrome, and other intervertebral disc degeneration of the 

lumbar region. 

By decision dated August 29, 2017, OWCP denied modification of the May 17, 2017 

decision. It found that the medical evidence of record was insufficient to establish that appellant 

was unable to work his part-time limited-duty assignment for six hours per day beginning June 1, 

2015 due to the accepted conditions in his claim. 

On September 11, 2017 appellant, through counsel, requested reconsideration. Counsel

submitted additional medical reports relative to treatment for appellant’s continued back and neck 

symptoms.

OWCP received several reports by Dr. Carl J. D’Agostino, a pain management specialist. 

In reports dated August 25, 2016 through September 21, 2017, Dr. D’Agostino conducted an 

examination of appellant’s lumbar and cervical spine and diagnosed lumbar displacement, L5 

vertebral fracture, annular tear of the L5-S1, left L5-S1 radiculopathy, and cervical displacement 

with radiculitis. 
5

In reports dated August 28 to October 24, 2017, Dr. White provided examination findings 

and diagnosed lumbar radiculopathy and chronic myofascial pain. He completed a September 22, 

2017 work excuse note which requested that appellant be excused from work that day. 

In reports dated August 17 to October 24, 2017, Dr. Adams noted appellant’s complaints 

of worsening low back pain radiating down the bilateral lower extremities. He provided 

examination findings and diagnosed lumbar radiculopathy, chronic pain syndrome, 

postlaminectomy syndrome, and other intervertebral disc degeneration. 

By decision dated December 8, 2017, OWCP denied modification of the August 29, 2017 

decision. It found that the medical evidence of record was insufficient to establish that appellant 

sustained a recurrence of disability causally related to his accepted conditions such that he was 

unable to perform his modified duty six hours per day beginning June 1, 2015. 

LEGAL PRECEDENT

An employee seeking benefits under FECA8 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence.9 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.10 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.11

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 had resulted from a previous 

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

the illness.12 The term also means an inability to work because a modified-duty or 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 reduction-in-force.13

The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is 

 

8 Supra note 2.

9 See B.K., Docket No. 18-0386 (issued September 14, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005); 

Nathaniel Milton, 37 ECAB 712 (1986).

10 W.H., Docket No. 19-0168 (issued May 10, 2019); see D.G., Docket No. 18-0597 (issued October 3, 2018).

11 J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

12 20 C.F.R. § 10.5(x).

13 Id. 
6

claimed. To do so would essentially allow an employee to self-certify his or her disability and 

entitlement to compensation.14

ANALYSIS

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

The Board finds that it is unnecessary to consider the evidence appellant submitted prior 

to the issuance of OWCP’s June 24, 2016 decision because the Board has already considered this 

evidence in its May 17, 2017 decision. Findings made in prior Board decisions are res judicata 

absent any further review by OWCP under section 8128 of FECA.15

OWCP accepted appellant’s occupational claim for lumbar intervertebral disc 

displacement and thoracic or lumbosacral neuritis or radiculitis. Appellant stopped work and 

returned to modified-duty work on August 21, 2013 working six hours per day. OWCP paid wageloss compensation for the remaining two hours per day. On June 1, 2015 appellant began to work 

four hours per day and filed various Forms CA-7 claiming compensation for the remaining four 

hours of LWOP. In a June 1, 2015 progress note, Dr. Martens related that appellant had been 

working limited duty for six hours per day, but recently the new Postmaster had asked appellant 

to carry and dismount with his mailbag. He updated appellant’s work restrictions, which included 

limiting appellant to working four hours per day. In his August 29, 2016 report, Dr. Batlle 

recounted that appellant’s new supervisor had changed his routine and required that he perform 

park and loop duties while delivering mail. 

The Board finds that factual evidence of record is insufficient to determine whether 

appellant is claiming a recurrence of disability due to a change in his light-duty position or because

Dr. Martens increased her work restrictions and limited her to working four hours.16 As noted 

above, OWCP’s regulations allow for appellant to establish a recurrence of disability under either 

scenario.17 Accordingly, the evidence of record must contain accurate information regarding his

claim in order for the Board to determine whether he sustained a recurrence of disability beginning 

June 1, 2015 because of a change in his limited-duty assignment or because of a change and 

worsening of his accepted conditions.

18

 

The record indicates that, in e-mails dated December 27, 2016 and February 28, 2017, 

OWCP requested information from the employing establishment regarding appellant’s limitedduty assignment. The Board finds, however, that the employing establishment did not respond to 

OWCP’s e-mails dated December 27, 2016 and February 28, 2017 when it requested a copy of his

 

14 See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon 

Kharabi, 52 ECAB 291 (2001).

15 See K.K., Docket No. 17-1061 (issued July 25, 2018). The Board will, therefore, not review the evidence 

addressed in the prior appeal.

16 See A.W., Docket No. 18-0589 (issued May 14, 2019).

17 Supra note 12.

18 See J.G., Docket No. 17-0910 (issued August 28, 2017); M.A., Docket No. 16-1602 (issued May 22, 2017). 
7

most recent modified job offer and also sought clarification on when he began to work four hours 

per day. 

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

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

responsibility in the development of the evidence.19 Once OWCP undertook development of the 

evidence by requesting additional information from the employing establishment, it had a duty to 

secure appropriate information addressing the relevant issues.20 Accurate information regarding 

appellant’s work status and whether his limited-duty assignment had changed is essential to 

determine whether he sustained a recurrence of disability beginning on June 1, 2015. OWCP must, 

therefore, make proper factual findings as to whether appellant’s limited-duty assignment had 

changed and resulted in a recurrence of disability beginning June 1, 2015.21 His evidence is of the 

character normally obtained by the employing establishment and is more readily accessible to 

OWCP than to appellant.22 Upon remand, OWCP should request that the employing establishment 

furnish documentation regarding appellant’s work status for the applicable period and also clarify 

whether appellant’s modified-duty assignment had changed to include park and loop duties.

The Board further finds that additional development of the medical evidence is also 

required. In March 2017, OWCP referred appellant for a second-opinion examination. In a 

May 18, 2017 report, Dr. Butler discussed appellant’s history of injury and provided examination 

findings. He reported that appellant’s work-related conditions had not resolved and that appellant 

remained disabled due to his accepted conditions. In an attached work capacity evaluation form 

(OWCP-5c), Dr. Butler indicated that appellant could work with restrictions of: driving up to four

hours, lifting, pushing, or pulling no more than 20 pounds up to two hours; standing and walking 

up to two hours; squatting, kneeling, and climbing up to one hour; and no bending, twisting, or 

stooping. His second-opinion report related that appellant still had residuals and disability causally 

related to his accepted conditions. Furthermore, Dr. Butler provided increased work restrictions 

and seemed to suggest that appellant was only capable of working four hours. The Board finds 

that his opinion supports that appellant work-related conditions had worsened such that his work 

restrictions had changed and he was no longer able to work limited duty for six hours per day.

23

 

As previously noted, OWCP shares responsibility in the development of the evidence.24 

Once it undertook development of the evidence by referring appellant to a second opinion 

physician, it has a duty to secure an appropriate report addressing the relevant issues.25 While

Dr. Butler’s opinion supports that appellant’s work-related conditions had worsened, he did not 

 

19 Donald R. Gervais, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

20 Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).

21 See Y.R., Docket No. 10-1589 (issued May 19, 2011).

22 J.T., Docket No. 15-1133 (issued December 21, 2015); J.S., Docket No. 15-1006 (issued October 9, 2015).

23 See B.B., Docket No. 18-1321 (issued April 5, 2019); J.D., Docket No. 17-1520 (issued February 20, 2018).

24 Supra note 19.

25 Supra note 20.
8

address whether appellant sustained a recurrence of disability commencing June 1, 2015. 

Accordingly, his report requires clarification regarding whether appellant was unable to work his 

part-time limited-duty position for six hours per day, commencing June 1, 2015.

26

 

The Board, therefore, will remand the case for OWCP to obtain a supplemental report from

Dr. Butler addressing appellant’s ability to work and restrictions commencing June 1, 2015. After 

such further development as deemed necessary, it shall issue a de novo decision. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the December 8, 2017 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: July 29, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

26 See B.B., supra note 23.