United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.F., Appellant

and

U.S. DEFENSE AGENCIES, LAKEHURST 

COMMISSARY, Lakehurst, NJ, Employer

__________________________________________

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Docket No. 19-0493

Issued: September 4, 2019

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 3, 2019 appellant, through counsel, filed a timely appeal from a July 16, 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.

 

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.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish an injury causally 

related to the accepted factors of his federal employment. 

FACTUAL HISTORY

On September 22, 2017 appellant, then a 68-year-old sales store checker, filed a notice of 

recurrence (Form CA-2a) of medical care beginning on July 15, 2017 from the accepted June 30, 

2017 employment injury under OWCP File No. xxxxxx417. He explained that he returned to 

light-duty employment following his June 30, 2017 employment injury and that, after working two 

eight-hour shifts at the self-checkout, he experienced increased back, arm, knee, and shoulder pain. 

Appellant stopped work on July 18, 2017. OWCP converted the recurrence claim seeking further 

medical treatment into an occupational disease claim. It assigned the present claim OWCP File 

No. xxxxxx152.

3

OWCP received August 10, September 14, and October 19 and 30, 2017 reports from

Dr. Laura E. Ross, an osteopath Board-certified in orthopedic surgery, who noted the history of

appellant’s June 30, 2017 employment injury and opined that the diagnosed conditions were 

causally related to the June 30, 2017 employment injury. 

OWCP also received work excuse notes from Dr. Ross dated August 10 and October 19, 

2017 and from Dr. Nishi Sahay, a Board-certified internist, dated July 18 and August 2, 2017; a 

September 8, 2017 diagnostic report; and physical therapy reports dated September 18 through 

November 21, 2017. It also received multiple claims for compensation (Form CA-7) from 

appellant for the period August 15, 2017 onward.

In a December 13, 2017 development letter, OWCP informed appellant that it had 

administratively converted the claim for recurrence for further medical care into a new 

occupational disease claim. It advised him of the factual and medical deficiencies in the evidence 

of record for a new occupational disease to be accepted. OWCP requested additional factual and 

medical evidence, including appellant’s responses to a questionnaire. In a separate December 13, 

2017 letter, it requested information from the employing establishment pertaining to his

employment duties following his return to work. OWCP afforded both appellant and the 

employing establishment 30 days for the submission of the additional evidence.

No further evidence was received from either appellant or the employing establishment

regarding appellant’s alleged employment factors of July 14 and 15, 2017.

By decision dated January 31, 2018, OWCP denied the claim finding that the factual 

component of fact of injury had not been met. It noted that appellant had not provided a clear 

 

3 Under OWCP File No. xxxxxx417, OWCP accepted the conditions of right knee laceration and sprain, and right 

elbow laceration, fracture and abrasion from a June 30, 2017 traumatic injury which occurred when appellant tripped 

on a sidewalk and fell while in the performance of duty. It has administratively combined the present claim with File 

No. xxxxxx417, with the latter designated as the master file. 
3

description of the particular duties he was performing during the two eight-hour shifts on July 14 

and 15, 2017 and that he had not responded to the December 13, 2017 development letter.

On February 14, 2018 OWCP received appellant’s request for a hearing before an OWCP 

hearing representative. 

A video hearing was held on May 23, 2018. Appellant testified that on July 14 and 15, 

2017 he was working light duty using only one arm and that he was either seated or assisting 

customers with machine glitches, and opening bags, amongst other duties. Counsel argued that 

OWCP erred in converting the recurrence claim into a new occupational disease claim. No 

additional evidence was submitted.

By decision dated July 16, 2018, the hearing representative modified the prior decision to 

accept that the factors of employment occurred as alleged, but affirmed the denial of appellant’s 

claim finding that the medical component of fact of injury had not been met as appellant had 

submitted no medical evidence containing a diagnosis in connection with the accepted 

employment factors he set forth in his hearing testimony.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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, including that an injury was sustained in the performance of duty as alleged, and that 

any specific condition or disability from work for which he or she claims compensation is causally 

related to that employment injury.5

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.6 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.7 OWCP’s 

procedures require that where recurrent disability from work is claimed within 90 days of the first 

return to duty, the focus is on disability rather than causal relationship.

8

 OWCP regulations define 

an occupational illness as a condition produced by the work environment over a period longer than 

 

4 See supra note 1.

5 20 C.F.R. § 10.115(e), (f); A.R., Docket No. 18-1728 (issued March 19, 2019); T.O., Docket No. 18-1012 (issued 

October 29, 2018); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6 20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical 

condition as a documented need for medical treatment after release from treatment for the accepted condition).

7

Id.; see also R.L., Docket No. 19-0444 (issued July 29, 2019).

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013).
4

a single workday or shift.9 To establish an occupational disease claim, appellant’s burden requires 

submission of the following: (1) a factual statement identifying employment factors alleged to 

have caused or contributed to the presence or occurrence of the disease or condition; (2) medical 

evidence establishing the presence or existence of the disease or condition for which compensation 

is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related 

to the employment factors identified by the employee.10

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

relationship is rationalized medical evidence.11 The opinion of the physician must be based on a 

complete factual and medical background of the claimant, 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.12

ANALYSIS

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

Appellant filed a notice of recurrence of disability for medical care after working two eighthour shifts following a return to limited-duty work from an accepted June 30, 2017 employment 

injury. He thereafter filed wage-loss compensation claims for total disability. In a claim 

development letter, OWCP informed appellant that it had sua sponte converted his claim from a 

recurrence claim into an occupational disease claim for a new injury. 

OWCP’s procedures provide the proper steps required for the conversion of a claim for 

FECA benefits when it determines that a claimant has filed an improper claim form.13 This 

procedure requires that the claim be developed on the claim form filed by claimant with questions 

sent to him or her to determine the type of benefits actually sought. The Board finds that OWCP 

failed to follow its procedures when it administratively converted appellant’s claim from a 

recurrence claim to a new occupational disease claim without development of the issue of what 

benefits had been requested. As appellant filed a notice of recurrence and subsequent claims for 

wage-loss compensation within 90 days of his return to work, and because he noted no new 

 

9

Id. at § 10.5(ee).

10 S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 

623 (2000).

11 B.J., Docket No. 19-0417 (issued July 11, 2019); A.M., Docket No. 18-0685 (issued October 26, 2018).

12 B.J., id.; E.V., Docket No. 18-0106 (issued April 5, 2018).

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.3(c)(2) (June 2011); 

Richard D. Wray, 45 ECAB 758 (issued July 8, 1994) (If the actual benefits claimed by the claimant cannot be 

determined from review of the form, OWCP should develop the claim based upon the claim form filed and direct 

questions to the claimant to determine the type of benefits claimed. Based upon the response to the development 

letter, it should make a determination as to whether the correct claim was established and, if not, OWCP should convert 

the claim to the proper type of claim and notify the claimant and employing establishment of the conversion.); C.f. 

S.N., Docket No. 12-1814 (issued March 11, 2013).
5

conditions following this return to a limited-duty position, OWCP should have developed the claim 

as one for a recurrence under OWCP File No. xxxxxx417. 

Proceedings under FECA are not adversarial in nature nor is OWCP a disinterested arbiter. 

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

responsibility in the development of the evidence. It has the obligation to see that justice is done.14 

Consequently, the Board will remand the case for OWCP to properly adjudicate the claim for 

recurrence applying the appropriate procedures for a claimed recurrence within 90 days of a return 

to work. After such further development as may be deemed necessary, the Board shall issue a 

de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the July 16, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further action consistent with 

this decision of the Board.

Issued: September 4, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

14 O.S., Docket No. 18-1549 (issued February 7, 2019); G.C., Docket No. 18-0842 (issued December 20, 2018);

see also Jimmy A. Hammons, 51 ECAB 219 (1999).