United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.H., Appellant

and

DEPARTMENT OF THE AIR FORCE, AIR 

NATIONAL GUARD, Schenectady, NY, 

Employer

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Docket No. 21-0139

Issued: October 26, 2021

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 November 3, 2020 appellant filed a timely appeal from a September 24, 2020 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the September 24, 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 recurrences of 

disability commencing April 8, 2002 and September 20, 2006 causally related to his accepted 

January 3, 1996 employment injury.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

as set forth in the Board’s prior decisions and order are incorporated herein by reference. The 

relevant facts are as follows.

On January 16, 1996 appellant, then a 46-year-old aircraft mechanic foreman, filed a notice 

of traumatic injury (Form CA-1) alleging that on January 3, 1996 he sustained a back injury when

moving lockers while in the performance of duty.4 He stopped work on January 8, 1996. OWCP 

initially accepted the claim for lumbosacral strain and subsequently expanded acceptance of the 

claim to include displacement of a lumbar intervertebral disc without myelopathy and other 

acquired deformities of the ankle and foot, bilateral. On August 14, 1996 appellant underwent a 

hemilaminotomy and microdiscectomy at L4-5. He worked intermittently before returning to fullduty work on October 5, 1998. Appellant was suspended without pay effective April 21, 2002 and 

terminated for cause effective September 12, 2002. After his suspension, he worked in private 

sector employment. Appellantwasincarcerated from November 17, 2003 until September 5, 2006 

for reasons unrelated to his compensation claim. He did not return to work. 

On April 13, 2007 appellant filed a notice of recurrence (Form CA-2a) claim. He alleged 

that the recurrence occurred on September 20, 2006 when he was playing with his grandchildren 

and he felt a sharp low back pain and a loss of strength in his low back and left leg, which caused 

him to fall. Appellant explained that he had numbness and pain in his toes, low back pain radiating 

down his left leg, and sharp left buttock pain. He advised that he had never fully recovered from 

his work injury, which had worsened over time, disabled him, and limited his activity. 

On February 18, 2010 appellant filed another Form CA-2a. He alleged that his recurrence 

occurred on April 8, 2002. Appellant alleged that two or three times a month he experienced sharp 

pain in his left buttock which radiated down his left leg to his left heel and caused him to fall. He 

indicated that the pain worsened each time and the falls were occurring more often. 

Following further development, by decision dated August 11, 2016, the Board reversed 

OWCP’s February 9, 2016 decision, which affirmed the rescission of acceptance of appellant’s 

recurrence of disability claim beginning September 20, 2006 causally related to his accepted 

January 3, 1996 employment conditions.5 The Board found that OWCP had not met its burden of 

3 Order Remanding Case, Docket No. 19-0346 (issued November 26, 2019); Docket No. 17-1390 (issued April23, 

2018); Docket No. 16-0715 (issued August 11, 2016).

4 Appellant sustained prior injuries to his back. OWCP File No. xxxxxx757 pertains to a January 12, 1983 back 

injury and OWCP File No. xxxxxx431 pertains to a July 6, 1994 back injury. 

5 Docket No. 16-0715, supranote 3.
3

proof to rescind acceptance of the recurrence claim as it should have analyzed the medical evidence 

to determine whether he had sustained 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 that caused the illness. 

By decision dated April 23, 2018, the Board affirmed OWCP decisions dated May 1, 2017 

and two decisions dated April 28, 2017.6 The Board found that OWCP had met its burden of proof 

to rescind its acceptance of the September 20, 2006 recurrence claim. The Board also found that 

appellant had not met his burden of proof to establish a recurrence of total disability commencing 

either April 8, 2002 or September 20, 2006 causally related to his January 3, 1996 employment 

injury. 

During the pendency of appellant’s prior appeal to the Board, OWCP, in a letter dated 

July 13, 2017, requested that Dr. Kevin Scott, a Board-certified orthopedic surgeon, review an 

updated statement of accepted facts (SOAF) dated July 13, 2017 and provide a supplemental report 

regarding appellant’s lumbar condition.7 It inquired as to the cause of appellant’s disability and 

whether or not his accepted conditions or the aggravations had resolved. In a July 18, 2017 

addendum to his January 18, 2017 report, Dr. Scott indicated that his opinion on causality 

remained unchanged. He opined that appellant’s current disability was related to appellant’s

January 3, 1996 employment injury as it was his most significant injury and caused him to have a 

discectomy at that level. Dr. Scott explained that appellant did well for a while but, according to 

the most recent magnetic resonance imaging (MRI) scan, appellant has a paracentral disc extrusion 

at the previous level of L3-4 and a left sided lateral recess impingement of the L4 nerve root, where 

the extruded disc was back in 1996. He noted that, while he would like to see documentation that 

appellant actually performed the exercises noted on the SOAF during his incarceration, he did not 

think it would change his opinion. Dr. Scott reiterated that, for now, his opinion remained 

unchanged. 

On August 17, 2018 appellant, through his then-representative, requested reconsideration 

and submitted additional evidence. OWCP received treatment notes from Dr. Paul Salerno, a 

Board-certified physiatrist, dated May 1, 2017 through October 18, 2018. Dr. Salerno provided

assessments of lumbosacral region intervertebral disc degeneration, postlaminectomy syndrome, 

muscle spasm back, and lumbar region spinal enthesopathy. He opined that appellant’s current 

disability was related to appellant’s original work injury and subsequent surgery. Duplicative 

copies of health records dated January 21, 2004 through July 31, 2006 from the State of New York 

Department of Correctional Services, signed by registered nurses and a nurse practitioner, were 

also received. 

6 Docket No. 17-1390, supranote 3.

7 The SOAF noted that on or about March or April2006, while incarcerated, appellant’s right hand slipped while 

going onto the bunk and he reached for a bar and he felt a tear. It also noted that appellant’s physical activities while 

incarcerated included: 400 sit ups/day, running 4 miles/day, and pushups. 
4

By decision dated October 30, 2018, OWCP denied modification of its April 28 and May 1, 

2017 decisions. It noted that medical evidence was submitted, but did not reference the July 18, 

2017 addendum from Dr. Scott. 

On December 3, 2018 appellant appealed to the Board. In an order dated November 26, 

2019, the Board set aside OWCP’s October 30, 2018 decision and remanded the case for further 

development.8 The Board found that Dr. Scott’s July 18, 2017 addendum report was received, but 

not reviewed by OWCP prior to the issuance of its October 30, 2018 decision. It remanded the 

case for a proper review of all the evidence of record followed by the issuance of a de novo

decision. 

OWCP received additional reports from Dr. Salerno dated November 15, 2018 through 

January 9, 2020, in which he continued to opine that appellant’s current disability was related to 

appellant’s original work injury and subsequent surgery. It also received letters dated August 20 

and November 25, 2018 from appellant’s then-representative which presented arguments 

pertaining to the violation of appellant’s privacy rights regarding the use of his medical records 

from the State of New York Department of Corrections. 

By decision dated February 25, 2020, OWCP denied modification of its prior decision. It 

found that the medical evidence did not contain a rationalized medical opinion based on a complete 

and accurate history with supporting objective findings which explained how appellant’s disability 

was caused by a change/worsening of his accepted conditions during the periods claimed. 

On July 14, 2020 appellant requested reconsideration. He submitted additional reports 

from Dr. Salerno dated February 20, March 19 and May 6, 2020. In a July 15, 2020 12 page letter, 

appellant’s then representative, went over the procedural history of the claim and set forth several 

arguments where he alleged OWCP erred in each of its decisions. With regard to appellant’s 

recurrence claims, the representative alleged, in relevant part, that OWCP should have requested 

a supplemental opinion from Dr. Scott as it knew that his second opinion reports were of limited 

probative value as they did not address appellant’s claims of recurrence on the dates in question. 

By decision dated September 24, 2020, OWCP denied modification of its February 25, 

2020 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 resulted from a previous 

compensable injury or illness and without an intervening injury or new exposure in the work 

environment.9 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 

8 Order Remanding Case, Docket No. 19-0346, supra note 3.

9

20 C.F.R. § 10.5(x); see A.E., Docket No. 20-0259 (issued April28, 2021); J.D., Docket No. 18-1533 (issued 

February27, 2019).
5

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.10

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.11

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.12 Where no such rationale is present, 

the medical evidence is of diminished probative value.13

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. 14 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 claimed. To do so 

would essentially allow an employee to self-certify their disability and entitlement to 

compensation.15

ANALYSIS

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

Initially, the Board notes that it is unnecessary to consider the evidence appellant submitted 

prior to the issuance of OWCP’s May 1, 2017 and the two April 28, 2017 decisions, which was 

considered by the Board in its April 23, 2018 decision. Findings made in prior Board decisions 

are res judicata absent further merit review by OWCP under section 8128 of FECA.16

10 Id.

11 Federal (FECA) Procedure Manual, Part 2 --Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket 

No. 18-0533 (issued August 27, 2018).

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

13 H.T., Docket No. 17-0209 (issued February 8, 2018).

14 See B.D., Docket No. 18-0426 (issued July 17, 2019);Amelia S. Jefferson, 57 ECAB 183 (2005).

15 Id., Fereideoon Kharabi, 52 ECAB 291 (2001).

16 C.M., Docket No. 19-1211 (issued August 5, 2020).
6

OWCP has accepted that appellant, as a result of his January 3, 1996 employment injury, 

sustained displacement of lumbar intervertebral disc without myelopathy; other acquired 

deformities of ankle and foot, bilateral; and sprain of lumbosacral joint/ligament. Following the 

Board’s November 26, 2019 order remanding the case for consideration of Dr. Scott’s July 18, 

2017 addendum report, OWCP issued a de novo decision dated February 25, 2020 denying 

appellant’s recurrence claims and a September 24, 2020 decision denying modification of its 

February 25, 2020 decision. Itfound that the medical evidence submitted in support of appellant’s 

alleged recurrence failed to provide a well-rationalized opinion supported by objective findings 

that his work-related condition had materially changed or worsened without an intervening injury 

or exposure to work factors and which prevented him from performing work during the claimed 

period of disability. 

OWCP undertook development of the claim by referring appellant for a second opinion 

examination with Dr. Scott. On July 13, 2017 it requested a supplemental report from Dr. Scott 

based on an updated SOAF. In its July 13, 2017 letter, OWCP inquired as to the cause of 

appellant’s disability and whether or not his accepted conditions or the aggravations had resolved. 

It did not inquire as to whether he sustained a recurrence of disability commencing April 8, 2002 

and September 20, 2006 causally related to his accepted January 3, 1996 employment injury. 

OWCP then found Dr. Scott’s July 18, 2017 addendum report of limited probative value as it failed 

to address the relevant issue of whether or not appellant sustained a recurrence of disability on the 

dates in question. 

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares the responsibility in the development of the evidence to see that 

justice is done.17 Accordingly, once OWCP undertakes to develop the medical evidence further, 

it has the responsibility to do so in a manner that will resolve the relevant issues in the case. 18 

Because Dr. Scott, serving as OWCP’s second opinion examiner, has not specifically addressed 

whether or not appellant sustained a recurrence of disability on the dates in question, the case must 

be remanded to OWCP.19

On remand OWCP shall request a supplemental report from Dr. Scott to obtain a 

rationalized medical opinion on whether or not appellant sustained a recurrence of disability on 

April 8, 2002 and September 20, 2006 causally related to his accepted January 3, 1996 

employment injury. If Dr. Scott is unavailable or unwilling to provide a supplemental opinion, 

OWCP shall refer appellant, together with a SOAF and a list of specific questions, to another 

second opinion physician in the appropriate field of medicine to resolve the issue. Following this 

and other such further development as deemed necessary, OWCP shall issue a de novo decision.

17 C.R., Docket No. 20-1102 (issued January 8, 2021); K.P.,Docket No. 18-0041 (issued May 24, 2019).

18 M.T., Docket No. 20-0321 (issued April26, 2021); T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket 

No. 17-1906 (issued January 10, 2018).

19 M.T., id.
7

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the September 24, 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: October 26, 2021

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