United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

BATH VETERANS ADMINISTRATION 

MEDICAL CENTER, Bath, NY, Employer

__________________________________________

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Docket No. 19-1055

Issued: January 10, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 12, 2019 appellant, through counsel, filed a timely appeal from a February 25, 

2019 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 her burden of proof to establish a recurrence of

disability commencing November 14, 2015 causally related to her accepted employment injury.

FACTUAL HISTORY

On April 5, 2010 appellant, then a 49-year-old mail clerk, filed a notice of recurrence (Form 

CA-2a) claiming disability beginning March 4, 2010 causally related to a May 12, 2008 

employment injury.3 She attributed her recurrence of disability to performing repetitive work 

duties in the course of her federal employment. On April 19, 2010 OWCP advised appellant that 

it was adjudicating her notice of recurrence as a new occupational disease claim as she had 

attributed her condition to new work factors. It accepted the occupational claim, assigned OWCP 

File No. xxxxxx010, for right lateral epicondylitis.

On April 6, 2010 appellant accepted a limited-duty position with the employing 

establishment, offered under OWCP File No. xxxxxx501. In a duty status report (Form CA-17) 

dated August 9, 2010, Dr. Carol Holobinko, an osteopath, found that appellant could resume her 

usual employment. In a claim for compensation (Form CA-7) dated December 17, 2010, 

submitted under OWCP File No. xxxxxx010, the current file, the employing establishment 

indicated that appellant had returned to her regular employment.

On November 14, 2015 the Office of Personnel Management (OPM) determined that 

appellant was disabled from employment “due to carpal tunnel syndrome, tendinitis, epicondylitis, 

sacroiliitis, disc disease, and lumbar sprains.”

On October 18, 2016 appellant filed a notice of recurrence (Form CA-2a) claiming 

disability beginning November 14, 2015 causally related to her accepted employment injury.4 She 

advised that she had retired on disability. The employing establishment indicated that appellant 

had performed her usual employment following her original injury.

In a development letter dated December 7, 2016, OWCP advised appellant of the definition 

of a recurrence of disability and the type of evidence required to establish her claim. It noted that 

the current medical evidence was insufficient to meet her burden of proof as it predated her alleged 

November 14, 2015 recurrence of disability. OWCP afforded appellant 30 days to submit 

additional evidence.

By decision dated January 13, 2017, OWCP found that appellant had not established a 

recurrence of disability commencing November 14, 2015 due to her accepted employment injury.

 

3 OWCP had previously accepted appellant’s May 12, 2008 occupational disease claim for right lateral 

epicondylitis, assigned OWCP File No. xxxxxx501. It additionally accepted that she sustained lumbar sprain due to 

a traumatic injury on October 24, 2013, assigned OWCP File No. xxxxxx929. OWCP has not administratively 

combined appellant’s claims.

4 On September 16, 2016 appellant filed a claim for compensation (Form CA-7) from November 14, 2015 to 

September 3, 2016. OWCP advised her to file a notice of recurrence.
3

Thereafter, appellant submitted a modified job offer effective April 20, 2015 from the 

employing establishment, noting that her work restrictions had changed. The job offer provided 

that the relevant date of injury or recurrence was April 1, 2015. Appellant accepted the position 

on May 8, 2015.

In an April 27, 2016 agency certification of reassignment and accommodation efforts form, 

the employing establishment asserted that it was not possible to reassign appellant to another 

position or accommodate her due to the severity of her medical condition.

On November 7, 2017 appellant, through counsel, requested reconsideration. In an 

accompanying October 11, 2017 statement, she related that she had initially performed limitedduty work after an October 24, 2013 employment injury, assigned OWCP File No. xxxxxx929. 

On February 11, 2015 appellant began working limited duty under the current OWCP File No. 

xxxxxx010. She sustained an injury to her back in April 2015, and a supervisor had recommended 

that she apply for disability retirement. The supervisor had told appellant that she could also elect 

workers’ compensation. Appellant accepted a limited-duty position in April 2015, but was unable 

to perform the duties of the position. She maintained that her physician had found that she required 

light-duty employment under both OWCP File Nos. xxxxxx010 and xxxxxx929. Appellant 

asserted that the employing establishment told her that she had to retire after OPM approved her 

application for disability retirement as it had no position within her restrictions.

In support of her reconsideration request, appellant submitted February 11 and June 19, 

2015 duty status reports (Form CA-17) from a physician diagnosing strain and carpal tunnel 

syndrome and providing work restrictions.5 In a report of employee’s emergency treatment form 

dated July 28, 2015, a physician listed work restrictions.

By decision dated February 13, 2018, OWCP denied modification of its January 17, 2017 

decision.6

In a progress report dated August 21, 2018, Dr. Elizabeth M. Stein, Board-certified in 

preventive medicine, evaluated appellant for a right wrist and elbow injury that had occurred in 

January 2014. She noted that appellant had “retired with disability for her carpal tunnel syndrome 

and low back pain in November 2015.” Dr. Stein diagnosed employment-related right carpal 

tunnel syndrome, right medial epicondylitis, resolved right lateral epicondylitis from “an

established workers’ comp[ensation] case from 2014,” and resolved low back pain.

On December 28, 2018 appellant, through counsel, requested reconsideration. Counsel 

contended that the employing establishment had withdrawn her limited-duty employment and thus 

she had established an employment-related recurrence of disability.

 

5 The name of the physician is not legible.

6 By decision dated October 10, 2017, OWCP denied appellant’s claim for a schedule award. Following a 

preliminary review, by decision dated January 18, 2018, an OWCP hearing representative set aside the October 10, 

2017 decision. By decision dated July 19, 2018, OWCP granted appellant a schedule award for three percent 

permanent impairment of the right upper extremity.
4

By decision dated February 25, 2019, OWCP denied modification of its February 13, 2018 

decision. It found that appellant had not provided medical evidence supporting that she was 

disabled due to her accepted condition of lateral epicondylitis beginning November 14, 2015. 

OWCP further determined that she had not been working in a light-duty assignment at the time of 

the alleged recurrence of disability as she had resumed her usual employment on August 9, 2010.

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.7 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.8

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.9

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.10 Where no such rationale is present, 

the medical evidence is of diminished probative value.11

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a recurrence of

disability commencing November 14, 2015 causally related to her accepted employment injury.

 

7 20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

8

Id.

9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket 

No. 18-0334 (issued December 4, 2018).

10 L.O., Docket No. 19-0953 (issued October 7, 2019); J.D., Docket No. 18-0616 (issued January 11, 2019).

11 M.G., Docket No. 19-0610 (issued September 23, 2019); G.G., Docket No. 18-1788 (issued March 26, 2019).
5

Appellant asserted that she had sustained a recurrence of disability due to the employing 

establishment’s withdrawal of her limited-duty assignment. The employing establishment, 

however, indicated that she had resumed her regular work duties following her employment injury 

and there is no evidence in the case record establishing that she worked limited duty under OWCP 

File No. xxxxxx010 after August 9, 2010. Appellant accepted a modified job offer from the 

employing establishment effective April 20, 2015 that indicated that the date of injury or 

recurrence was April 1, 2015. She related that she had sustained an injury to her back in 

April 2015. While appellant submitted duty status reports (Form CA-17) from a physician who 

diagnosed strain and carpal tunnel syndrome and listed work restrictions, there is no evidence that 

she was working limited duty at the time of her claimed recurrence of disability on November 15, 

2015 due to her accepted right lateral epicondylitis. The issue, consequently, is whether the 

medical evidence establishes that she was disabled from her usual employment beginning that 

date.12

In an August 21, 2018 report, Dr. Stein noted that appellant had injured her right elbow 

and wrist in January 2014. She indicated that she had retired in November 2015 due to low back 

pain and carpal tunnel syndrome. Dr. Stein diagnosed employment-related right carpal tunnel 

syndrome, right medial epicondylitis, resolved right lateral epicondylitis from a 2014 workers’

compensation case, and resolved low back pain. She did not, however, find that appellant’s right 

lateral epicondylitis had worsened such that she was disabled from employment beginning 

November 14, 2015. As Dr. Stein failed to address the relevant issue of whether she had sustained 

an employment-related recurrence of disability, her report is insufficient to meet appellant’s 

burden of proof.13

On appeal counsel asserts that appellant had sustained a recurrence of disability as a matter 

of law. As found above, however, appellant has not demonstrated that she stopped work on 

November 14, 2015 due to the withdrawal of limited-duty employment due to her accepted 

employment injury of right lateral epicondylitis or due to a worsening of her employment-related 

condition and thus has failed to establish a recurrence of disability.14

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish a recurrence of 

disability commencing November 14, 2015 causally related to her accepted employment injury.

 

12 Moreover, these reports are of no probative value as the signature is illegible and, thus, the author cannot be 

determined to be a physician. See C.S., Docket No. 19-0999 (issued October 10, 2019); J.B., Docket No. 19-0568 

(issued August 19, 2019); Merton J. Sills, 39 ECAB 572, 575 (1988).

13 See A.A., Docket No. 19-0957 (issued October 22, 2019); D.B., Docket No. 19-0481 (issued August 20, 2019).

14 Supra note 7.
6

ORDER

IT IS HEREBY ORDERED THAT the February 25, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 10, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board