United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

CHEYENNE VA MEDICAL CENTER, 

Cheyenne, WY, Employer

__________________________________________

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Docket No. 21-0590

Issued: December 2, 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 March 7, 2021 appellant filed a timely appeal from a February 17, 2021 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

ISSUE

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

disability commencing June 26, 2020, causally related to her November 1, 2019 employment 

injury.

1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the February 17, 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

FACTUAL HISTORY

On November 4, 2019 appellant, then a 58-year-old administrative officer, filed a traumatic 

injury claim (Form CA-1) alleging that on November 1, 2019 she slipped walking from the parking 

lot and fell injuring her left hand, knee, and jerking her neck while in the performance of duty. 

She stopped work on November 1, 2019. OWCP accepted appellant’s claim for aggravation of 

cervical disc herniation. It paid her wage-loss compensation on the supplemental rolls beginning 

January 31, 2020 and on the periodic rolls beginning June 7, 2020.

On April 7, 2020 appellant’s attending physician,Dr. Jason Caswell, a surgeon, opined that 

she was totally disabled as a result of her accepted November 1, 2019 employment injury due to 

debilitating pain, loss of mobility, and decreased sensation in her left arm. He noted that she was 

unable to turn her neck without increased pain such that she could not perform light-duty. 

On June 15, 2020, an employing establishment physician, Dr. Kirby Duvall, a Boardcertified family practitioner, completed a work capacity evaluation (Form OWCP-5c) and advised 

that appellant could return to work eight hours a day with restrictions on lifting and pushing more 

than five pounds.

On June 25, 2020 appellant accepted an eight-hour restricted-duty work assignment lifting, 

carrying, pushing, and pulling up to five pounds intermittently. She noted that her acceptance was 

pending further medical review.

On June 29, 2020 Dr. Duvall completed an additional OWCP-5c and indicated that 

appellant was unable to work because of pain and numbness with movement. He noted that she 

could not work, had a “failed return to work,” and that her neurosurgeon had opined thatshe was 

totally disabled until after surgery.

In a series of July 1, 2020 notes, Dr. Donn M. Turner, a neurosurgeon, advised that 

appellant could return to work four hours a day lifting no more than 5 pounds frequently and 10 

pounds infrequently. He further advised that she could not perform any repetitive motion with her 

upper extremities including no overhead reaching, and no reaching above the shoulders.

Dr. Turner reported that appellant had difficulty working on a computer for eight hours a day due 

to weakness in her arms. He also noted that she did not believe that she could perform part-time 

work.

On July 7, 2020 the employing establishment informed appellant that she was allowed to 

move about the office and stretch in an effort to try to keep from becoming uncomfortable due to

staring at a screen for eight hours.

In a July 10, 2020 report, Dr. Turner attributed appellant’s current cervical disc herniations 

to the accepted aggravation of her preexisting cervical condition. He opined that she had exhausted 

all conservative measures. Dr. Turner noted that appellant had difficulties working even in a 

sedentary capacity due to her accepted condition.

On July 13, 2020 appellant filed a claim for compensation (Form CA-7) requesting wageloss compensation for the period June 26 through July 4, 2020.
3

In a July 22, 2020 letter, OWCP noted that appellant had been provided with a light-duty 

job offer, which comported with the restrictions provided by Dr. Duvall on June 15, 2020. It found 

that this position was appropriate in accordance with 20 C.F.R. § 10.500(a). OWCP directed 

appellant to accept the assignment and report to duty. It afforded her 30 days to provide a written 

explanation of her reasons for failing to accept the assignment.

On August 10, 2020 Dr. Duvall noted that appellant was reporting headaches. He 

diagnosed spinal stenosis and cervical disc disorder. Dr. Duvall noted that appellant was unable 

to work due to worsening neck pain and headaches. He indicated that she was instructed by her 

neurosurgeon not to work until she was evaluated by an OWCP second opinion physician.

On July 16, 2020 the employing establishment offered appellant a light-duty assignment 

working four hours per day utilizing a computer to enter documentation into the employing 

establishment system. Appellant returned to four hours of sedentary work on July 20, 2020. She

stopped work again on August 10, 2020.

In a September 11, 2020 note, Dr. Caswell found that appellant’s accepted condition had 

deteriorated. He noted that her cervical radiculopathy had increased with greater muscle weakness 

and that he feared permanent damage would result without surgery. Dr. Caswell also found that 

appellant’s neuropathic pain had increased. He additionally diagnosed adjustment disorder with

mixed anxiety and depressed mood and anxiety.

By decision dated September 18, 2020, OWCP denied appellant’s claimed total disability 

commencing June 26, 2020. It found that there was insufficient medical evidence to establish a 

change in the nature and extent of her injury-related condition such that she became totally disabled

on or after June 26, 2020.

In a letter dated September 22, 2020, OWCP referred appellant, a statement of accepted 

facts (SOAF), and a series of questions for a second opinion evaluation with Dr. Lloyd W. Mobley, 

a Board-certified neurosurgeon.

On September 21, 2020 Dr. Duvall noted that appellant had been taken off work by her 

neurosurgeon in order to avoid worsening her accepted condition. He agreed with this approach.

In a September 16, 2020 report, Dr. Turner listed appellant’s symptoms of intermittent 

numbness and tingling involving the ulnar two fingers of both hands. He related that she tried to 

work for eight hours a day, and was then bedridden due to neck pain. On examination Dr. Turner 

found that appellant had loss of range of motion in her neck of 50 percent. He reported normal 

motor strength testing, normal sensory examination, and symmetric reflexes.

On October 16, 2020 appellant requested a telephonic hearing from a representative of 

OWCP’s Branch of Hearings and Review.

In an October 15, 2020 report, Dr. Mobley described appellant’s history of injury, medical 

treatment, and accepted conditions. He related that she attempted to return to work on June 25, 

2020, but was bedridden the next day due to pain. Dr. Mobley also noted that appellant attempted 

to work four hours a day, but could not tolerate sitting, lying, or standing to use her computer. He 

diagnosed cervical radiculopathy due to spondylosis due to aggravation of appellant’s preexisting 

cervical disc herniation caused by her accepted employment injury and recommended surgery. 
4

Dr. Mobley found that appellant could return to work eight hours per day within the restrictions of 

the June 25, 2020 light-duty position, which included lifting, carrying, pushing, and pulling up to 

five pounds intermittently. He also completed an OWCP-5c and further found that she could work 

8 hours per day with frequent breaks of 10 minutes every 2 hours. Dr. Mobley provided work 

restrictions of sitting and standing for four hours each, walking for two hours, reaching, reaching 

above the shoulder, twisting, bending, stooping, climbing, and lifting up to five pounds for one 

hour each, and pushing and pulling up to 10 pounds for four hours each.

Appellant returned to full-time light-duty work on December 3, 2020. On December 23, 

2020 Dr. Turner found that appellant was totally disabled from December 9, 2020 through 

February 15, 2021 in preparation for her approved spine surgery. He also noted that she was 

experiencing increased bilateral arm and shoulder muscle spasms and bilateral hand numbness

such that she could not perform her light-duty work.

On December 31, 2019 appellant underwent C3-4 and C4-5 anterior microdiscectomies 

and disc arthroplasties.

Appellant testified before an OWCP hearing representative on January 14, 2021. She 

asserted that when she returned to work on June 25, 2020 she worked an eight-hour shift on the 

computer resulting in burning pain in her neck down to her right hand. Appellant contended that 

working on a computer was her biggest problem causing headaches, severe stiffness, and soreness.

In a report dated January 21, 2021, Dr. Turner diagnosed a bulging disc with osteophyte 

formation and spinal stenosis at C3-4 and C4-5 above a preexisting anterior cervical fusion. He 

attributed appellant’s neck pain and headaches to these conditions. Dr. Turner noted that she had 

reported that working on the computer caused her a great deal of discomfort with tightness and 

pain in her neck and shoulders resulting in numbness in her fingers and hands. He attributed these 

symptoms to appellant’s accepted diagnosed conditions.

By decision dated February 17, 2021, OWCP’s hearing representative affirmed the 

September 16, 2020 decision finding that appellant had not established a recurrence of total 

disability commencing June 26, 2020.

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 

3

Supra note 1.

4 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).
5

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

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

An employee who claims a recurrence of disability resulting from an accepted employment 

injury has the burden of proof to establish that the disability is related to the accepted injury. This 

burden requires furnishing medical evidence from a physician who, on the basis of a complete and 

accurate factual and medical history, concludes that the disabling condition is causally related to 

the employment injury and supports that conclusion with sound medical reasoning. 11.

If an appellant is receiving wage-loss compensation on the periodic rolls and makes a brief 

attempt to return to work, the claim for compensation after the return to work should not be 

characterized as a claim for recurrence of total disability. Characterizing the claim as a claim for 

recurrence of disability inappropriately places the burden of proof on appellant. A short-lived 

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

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 Id.
6

return to work does not shift the burden of proof regarding employment-related disability. The 

burden of proof remains with OWCP.12

ANALYSIS

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

OWCP accepted appellant’s claim for aggravation of cervical disc herniation due to a 

November 1, 2019 employment injury. The record reflects that appellant was on the periodic rolls 

when she initially returned to light-duty work for eight hours a day on June 25, 2020 and stopped 

work on June 26, 2020. OWCP characterized her claim for compensation on or after June 25, 

2020 as a claim for recurrence of total disability due to her employment injury. The Board finds, 

however, that OWCP inappropriately placed the burden of proof for continuing compensation on 

appellant, indicating that she had the burden of proof to show that she was totally disabled from 

light-duty work. OWCP then found that she did not meet this burden of proof and did not pay her 

compensation after June 26, 2020.

Since OWCP retained the burden of proof, it should have provided appellant with notice 

that it intended to terminate her compensation and provided her an opportunity to submit evidence 

supporting continuing employment-related disability before stopping periodic roll compensation 

payments.13 In this case, there is no indication that OWCP followed its procedures and issued a 

pretermination notice. 

On return of the case record, after any further development as deemed necessary, OWCP 

shall issue a notice of proposed termination of compensation benefits, to be followed by a de novo

decision as to whether OWCP met its burden of proof to terminate appellant’s compensation 

benefits. 

CONCLUSION

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

12 P.S., Docket No. 20-0714 (issued May 24, 2021); P.T., Docket No. 12-1325 (issued January 18, 2013); see 

Janice F. Migut, 50 ECAB 166 (1998) (the Board found that, although appellant returned to work for two days, the 

burden remained on OWCP to justify termination of benefits); see also Cheryl A. Weaver, 51 ECAB 308 (2000) 

(claimant returned to work for one day); Carl C. Graci, 50 ECAB 557 (1999) (claimant returned to work for one day).

13 See P.S., id.; Donna R. Schlenkrich, Docket No. 06-411 (issued April12, 2006); WintonA. Miller, 52 ECAB 

405 (2001).
7

ORDER

IT IS HEREBY ORDERED THAT the February 17, 2021 decision of the Office of 

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

proceedings consistent with this decision of the Board.

Issued: December 2, 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