United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.H., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Philadelphia, PA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-0102

Issued: July 28, 2021

Appearances: Case Submitted on the Record

Russell T. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 29, 2020 appellant, through counsel, filed a timely appeal from a May 27, 2020 

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 to consider 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 issuance of the May 27, 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 a recurrence of 

intermittent disability for the period September 30, 2019 through April 10, 2020, causally related 

to his accepted December 12, 2017 employment injury.

FACTUAL HISTORY

On December 12, 2017 appellant, then a 59-year-old mail handler equipment operator, 

filed a traumatic injury claim (Form CA-1) alleging that, on that day, he sustained a left upper back 

strain as a result of pulling and pushing bulk mail carriers and all-purpose containers while in the 

performance of duty. He stopped work on the date of the alleged injury and returned to full-duty 

work on December 14, 2017. In a statement of even date, appellant related that he sustained a left 

shoulder injury due to the claimed work incident. 

OWCP, by decision dated January 31, 2018, initially denied appellant’s traumatic injury 

claim, but on June 1, 2018 accepted the claim for left thoracic strain and left upper arm and 

shoulder strain.

OWCP subsequently received a May 16, 2019 medical report by Dr. Scott M. Fried, an 

attending osteopath Board-certified in orthopedic surgery. Dr. Fried noted a history of the 

December 12, 2017 employment injury and appellant’s medical treatment. He also noted his 

cervical and left shoulder elbow, and hand complaints. Dr. Fried reported findings on examination 

diagnosed right and left median neuropathy; radial neuropathy of the left radial tunnel; left ulnar 

neuropathy; left brachial plexopathy/cervical radiculopathy with long thoracic neuritis; grade 2 

and vascular scapular winging; and cervical strain and sprain with left radiculopathy, and noted a 

date of injury as December 12, 2017. He related that appellant was able to continue working with 

activity modifications, but there was no question that the nature of his work activities was such 

that he continued to reaggravate and exacerbate these issues with the more aggressive portions of 

his work activities. 

On September 17, 2019 OWCP authorized physical therapy from September 9 to 

November 30, 2019.

Appellant thereafter filed several claims for compensation (Form CA-7) for intermittent 

disability from work during the period July 6, 2019 through January 1, 2020. In attached time 

analysis forms (Form CA-7a), he noted eight hours of leave without pay (LWOP) used on 

September 30 and October 7, 12, 13, 19, 21, 27, 28, and 30, November 2 through 6, 2019, and 

December 1, 7, 9, 11, and 14 through 18, 2019, two hours of LWOP used on October 2, 9, 16, and 

23, 2019, 2.99 hours of LWOP used on December 2, 2019, and three hours of LWOP used on 

December 4, 2019 to attend physical therapy. OWCP paid appellant wage-loss compensation on 

the supplemental rolls for the period July 8 through September 25, 2019. 

In disability certificates dated September 30 through October 31, 2019, Dr. Fried indicated

that appellant had been under his care for his work-related injuries and that he remained disabled 

from work He placed him off work on intermittent dates from September 30 to November 25, 

2019 due to symptoms from his work activities. 
3

On December 4, 2019 OWCP referred appellant, together with a statement of accepted 

facts, the medical record, and a set of questions, to Dr. Steven J. Valentino, an osteopath

Board-certified in orthopedic surgery, for a second opinion to determine the nature and extent of 

his work-related disability. 

In a January 8, 2020 medical report, Dr. Valentino noted appellant’s history of the 

December 12, 2017 employment injury, medical treatment, and complaints related to his neck and 

right shoulder. He noted that appellant was released to full-duty work on February 7, 2018. 

Appellant worked until October 12, 2019 when his symptoms worsened, attributed to the repetitive 

activities involved with his work, and he had not returned to work. On physical examination,

Dr. Valentino reported normal findings with the exception of limited range of motion of the 

cervical and left shoulder, and mild spasm of the cervical spine. He also reported a normal 

neurological examination. Dr. Valentino provided impressions of the accepted conditions of left 

thoracic, left upper arm, and left shoulder strain. He related that, while the record documented 

periods of total disability from October 12, 2019 through the date of his January 8, 2020 

examination, appellant’s total disability ceased as of the date of his examination. Dr. Valentino

advised that appellant was capable of returning to gainful employment with modifications. He 

noted, however, that based on his findings of residuals of the accepted conditions, appellant could 

not return to his full-duty, date-of-injury position. Dr. Valentino noted that his prognosis was good 

given his normal neurological examination. He recommended a treatment plan and related that 

appellant’s condition would possibly improve in time. In an accompanying work capacity 

evaluation (Form OWCP-5c), Dr. Valentino reiterated his opinion regarding appellant’s inability 

to perform his usual job, but noted that he could work eight hours per day with restrictions. 

By decision dated January 21, 2020, OWCP denied appellant’s claims for disability from 

work for the period commencing September 30, 2019. However, it authorized payment of 

compensation for two hours of physical therapy treatment on October 2, 9, 16, and 23, 2019, 

totaling eight hours. 

On January 27, 2020 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

Appellant continued to file Form CA-7 claims, requesting compensation for LWOP for the 

period January 4 through April 24, 2020. 

OWCP received additional reports by Dr. Fried. In a March 23, 2020 report, Dr. Fried 

advised that appellant’s symptoms fluctuated and were definitely affected by use and activities. In 

reports dated May 5 and 18, 2020, he reiterated a history of appellant’s December 12, 2017 

employment injury and related a history of his own treatment of appellant beginning 

May 16, 2019. Dr. Fried discussed examination findings and reiterated his prior diagnoses of 

median neuropathy of the left and right carpal tunnel, radial neuropathy of the left radial tunnel,

left ulnar neuropathy, left brachial plexopathy/cervical radiculopathy with long thoracic neuritis,

grade 2 and vascular scapular winging, and cervical strain and sprain with left radiculopathy. He 

also diagnosed aggravation and progressive traumatic median neuropathy of the bilateral carpal 

tunnel and progression of a left brachial plexus injury. Dr. Fried advised that the diagnosed 

conditions were secondary to appellant’s accepted work injuries. He noted that, although appellant 

attempted to continue work activity through 2019, he became progressively more symptomatic 

over the course of that time. Dr. Fried maintained that it was clear that his highly repetitive and 

aggressive regular work activities, which included gripping, grasping, pulling, pushing, reaching, 
4

and vibration exposure resulted in traumatic carpal tunnel median neuropathy and the left 

progression of his double crush with his C5, C6, and C7 nerve root involvement at the left brachial 

plexus, long thoracic nerve, and down through the hand and wrist in the arm to the median nerve 

proper at the wrist at the carpal tunnel aggravated and worsened his underlying injuries. He 

restated that appellant remained limited, but related that being able to rest and off work certainly 

helped him. Dr. Fried related that continued physical therapy and treatment programs would 

stabilize appellant’s conditions and allow him to return to part-time work with modifications.

In a May 27, 2020 decision, an OWCP hearing representative affirmed in part and reversed 

in part the January 21, 2020 decision. She found that the weight of the medical evidence rested 

with Dr. Valentino’s January 8, 2020 second opinion, which established that appellant did not 

sustain a recurrence of disability commencing September 30, 2019 causally related to his accepted 

December 12, 2017 employment injury without an intervening cause. The hearing representative 

recommended that appellant consider filing an occupational disease claim (Form CA-2) as the 

reports of Dr. Valentino and Dr. Fried attributed the worsening of his symptoms to his repetitive 

work duties. Further, she authorized payment for two hours of physical therapy on September 30 

and October 7 and 21, 2019, which were not previously paid.

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.4 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.5

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. The change must result from a previous injury or occupational illness rather than an 

intervening injury or new exposure to factors causing the original illness. OWCP does not include 

a condition that results from a new injury, even if it involves the same part of the body previously 

injured.6

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 employment 

 

4 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).

5

Id.

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); Kenneth R. 

Love, 50 ECAB 193, 199 (1998).
5

injury and supports that conclusion with medical reasoning.7 Where no such rationale is present, 

the medical evidence is of diminished probative value.8

ANALYSIS

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

intermittent disability for the period September 30, 2019 through April 10, 2020, causally related 

to his accepted December 12, 2017 employment injury.

Second opinion physician Dr. Valentino, in his January 8, 2020 report, concluded that 

appellant’s disability from work from October 12, 2019 until the date of appellant’s examination 

was related to his repetitive work duties, and while he could not return to his usual job as he had 

residuals of his accepted conditions, he could work eight hours per day with restrictions. He related 

that his prognosis was good given his normal neurological examination and advised that with the 

recommended treatment plan his condition would possibly improve in time. As Dr. Valentino 

reviewed the medical record and supported his conclusion with medical rationale, the Board finds 

that his report represents the weight of the medical evidence and establishes that appellant did not 

sustain a recurrence of disability commencing September 30, 2019 causally related to the 

December 12, 2017 employment injury.

In support of his claim, appellant submitted reports dated March 23 and May 16, 2019, and 

May 5 and 18, 2020 from Dr. Fried. Dr. Fried diagnosed: median neuropathy of the left and right 

carpal tunnel; radial neuropathy of the left radial tunnel; left ulnar neuropathy; left brachial 

plexopathy/cervical radiculopathy with long thoracic neuritis; grade 2 and vascular scapular 

winging; cervical strain and sprain with left radiculopathy; aggravation and progressive traumatic 

median neuropathy of the bilateral carpal tunnel; and progression of a left brachial plexus injury 

secondary to the December 12, 2017 employment injury. He attributed the diagnosed conditions 

and a worsening of the employment-related conditions to appellant’s aggressive and repetitive 

regular work duties. Additionally, Dr. Fried advised that appellant remained physically limited 

and totally disabled from work. The Board has held, however, that a report is of limited probative 

value regarding causal relationship if it does not contain medical rationale explaining how a given 

medical condition/disability was related to employment factors.9 While Dr. Fried opined that 

appellant was totally disabled from work, he did not explain, with rationale, whether that disability 

was causally related to the accepted employment injury. For this reason, the Board finds that

Dr. Fried’s reports are insufficient to establish appellant’s recurrence of disability claim.

Similarly, in disability certificates dated September 30 to October 31, 2019, Dr. Fried 

attributed appellant’s total disability from work on intermittent dates from September 30 to 

November 25, 2019 to his work-related activities rather than the accepted employment injury.

10

 

 

7 H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

8 E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

9 See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value 

regarding causal relationship if it does not contain medical rationale describing the relation between work factors and 

a diagnosed condition/disability).

10 Supra note 4.
6

Thus, the Board finds that this evidence is insufficient to establish appellant’s recurrence of 

disability claim.

As appellant has not submitted sufficient medical evidence to establish that he was disabled 

from work for the period September 30, 2019 through April 10, 2020, due to a spontaneous change 

or worsening of his December 12, 2017 employment injury, the Board finds that he has not met 

his burden of proof to establish his claim.11

On appeal, counsel contends that appellant sustained an employment-related recurrence of 

disability. However, as explained above, the medical evidence of record is insufficient to establish 

a recurrence of intermittent disability causally related to his accepted December 12, 2017 

employment injury.

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 his burden of proof to establish a recurrence of 

intermittent disability for the period September 30, 2019 through April 10, 2020, causally related 

to his accepted December 12, 2017 employment injury.

 

11 See E.M., supra note 8; R.A., Docket No. 19-1595 (issued August 13, 2020).
7

ORDER

IT IS HEREBY ORDERED THAT the May 7, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 28, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board