United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.G., Appellant

and

U.S. POSTAL SERVICE, BROADWAY 

STATION, Astoria, NY, Employer

__________________________________________

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Docket No. 21-0904

Issued: May 11, 2022

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

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 May 3, 2021 appellant, through counsel, filed a timely appeal from a January 4, 2021 

merit decision and a March 29, 2021 nonmerit 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. 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 March 29, 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

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish a recurrence 

of disability commencing June 6, 2020 causally related to her accepted December 21, 2017 

employment injury; and (2) whether OWCP properly denied appellant’s request for 

reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On December 21, 2017 appellant, then a 47-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that day she fell and hit the back of her head, back, and wrist 

when she descended stairs and the last step crumbled, while in the performance of duty. She

stopped work on that date. OWCP accepted the claim for concussion without loss of 

consciousness, cervical and lumbar strain, cervical and lumbar myofascial derangement, lumbar 

derangement with disc involvement, right elbow tear, and adjustment disorder with anxiety. It 

paid appellant wage-loss compensation for disability on the supplemental rolls from March 17 

through November 10, 2018, on the periodic rolls from November 11, 2018 through December 7, 

2019, and again on the supplemental rolls from December 8 through 13, 2019.

On June 11, 2019 appellant underwent OWCP-authorized procedures of C4-6 anterior 

cervical discectomy, fusion with allograph and instrumentation, and right iliac crest aspiration.

On September 3, 2019 OWCP referred appellant to Dr. Stanley Askin, a Board-certified 

orthopedic surgeon, for a second opinion examination. In a report dated September 27, 2019,

Dr. Askin reviewed a statement of accepted facts (SOAF), conducted a physical examination and

reviewed appellant’s medical records. He determined that appellant’s presentation was nonphysiological in that she offered limitations that she clearly did not have and he stated that the only 

objective finding was that her cervical spine had been altered. Dr. Askin noted that appellant had 

fully recovered from her accepted work injury such that there was no work-related diagnosis, but 

that it was appropriate to await full healing from her unnecessary fusion procedure before 

concluding that her capacity to work unrestricted was restored. At that time he opined that she 

was currently capable of work at the sedentary level. In a work capacity evaluation (Form OWCP5c) of even date, Dr. Askin found that appellant could return to work at a sedentary level with 

restrictions of no reaching above the shoulder, operating a motor vehicle at work no more than 

three hours per day, and operating a motor vehicle to and from work for no more than three hours 

per day.

On October 29, 2019 the employing establishment offered appellant a modified limitedduty assignment as a city carrier with physical requirements of sitting and use of a computer and 

telephone for six to eight hours per day and intermittent standing/walking and lifting of up to 10

pounds from one to two hours per day.

In a duty status report (Form CA-17) dated November 20, 2019, Dr. Steven Ross, an 

osteopath Board-certified physiatrist, indicated that appellant was totally disabled from work due 

to work-related diagnoses of cervical and lumbar myofascial derangement with cervical and 

lumbar disc herniations and disc bulges, bilateral wrist pain, left ankle pain, and a right elbow tear 

with post-traumatic headaches.

Appellant returned to full-time limited-duty work on December 14, 2019.
3

In a report dated May 21, 2020, Dr. Peter Passias, a Board-certified orthopedic surgeon, 

related that he had examined appellant for complaints of lumbar radiculopathy and lower back 

pain. On physical examination, he observed painful and reduced range of motion with tenderness 

to palpation. Dr. Passias diagnosed cervicalgia, low back pain, and thoracolumbar and cervical 

radiculopathy, and recommended that appellant undergo L2-S1 fusion and decompression.

On June 24, 2020 appellant filed a claim for compensation (Form CA-7) for leave without 

pay (LWOP) claiming disability from June 6 through 19, 2020. He continued to file CA-7 forms 

for LWOP.

In a development letter dated June 30, 2020, OWCP advised appellant that she should

provide additional medical evidence to establish disability from work for the claimed period, 

noting that she had previously resumed full-time limited-duty employment on December 16, 2019, 

and thus it was unclear why she had stopped work. It afforded her 30 days to submit the necessary 

information.

In a Form CA-17 dated June 23, 2020, Dr. Ross indicated that appellant remained totally 

disabled from work due to her work-related diagnoses.

In a Form CA-17 dated July 8, 2020, Dr. Passias advised that appellant was not advised to 

return to work. However, he also noted appellant’s medical restrictions including sitting and 

walking no more than four hours per day; simple grasping, fine manipulation, and reaching above 

the shoulder no more than two hours per day, and driving a vehicle no more than one hour per day. 

In an attached letter of even date, Dr. Passias explained that appellant suffered from significant 

lumbar spine pathology as a result of her work-related injury on December 21, 2017. He noted 

that diagnostic findings demonstrated multiple disc herniations from L2-L5 and physical 

examination demonstrated weakness into her bilateral lower extremities, left more than right, and 

diminished sensation throughout the lower extremities. Dr. Passias recommended spinal fusion 

surgery and stated that appellant was currently unable to return to work as she was 100 percent 

temporarily totally disabled from gainful employment.

In a development letter dated July 8, 2020, OWCP advised appellant that additional 

medical evidence was necessary to establish continued disability from work subsequent to June 20, 

2020, noting it had not received any evidence to support the claim. It requested that she provide a 

complete and comprehensive narrative medical report, including a history of her injury and a 

thorough examination with objective findings, as to how her condition worsened such that she was 

unable to perform duties of her position after returning to limited-duty work on December 16, 2019 

and stopping work on June 6, 2020. OWCP afforded appellant 30 days to submit the necessary 

information.

In a note dated May 29, 2020, Dr. Ross stated that appellant presented on that date with 

increased pain as a result of her work-related activities. Appellant recounted to Dr. Ross that she 

had to perform work activities going beyond those stated in her duty status report, and that these 

increased activities had caused increased pain. Dr. Ross advised that he had taken appellant off 

work to allow time to heal and decrease further risk of injury.

In a report dated June 23, 2020, Dr. Ross examined appellant and diagnosed cervical and 

lumbar myofascial derangement with cervical disc herniations and disc bulges post-anterior 

cervical discectomy and fusion (ACDF) on June 11, 2019; and lumbar disc herniations, disc bulge 
4

with lumbar radiculopathy, bilateral wrist pain, left ankle pain, and right elbow tear with posttraumatic headaches. He advised that she remained temporarily totally disabled.

In a report dated June 23, 2020, Dr. Joel King, a Board-certified psychiatrist, evaluated 

appellant for diagnoses of depressive disorder and anxiety disorder. He reviewed her history of 

injury, noting that after returning to light-duty work in June 2019, she continued working despite 

significant pain until May 29, 2020, when her back pain became too severe to continue working. 

Appellant reported symptoms of anxiety and depression. On psychiatric examination, Dr. King 

observed a dysphoric and anxious mood.

In a report dated July 8, 2020, Dr. Passias advised that appellant was post cervical fusion 

surgery which had been performed in 2019, however magnetic resonance imaging (MRI) scans 

and x-rays revealed multiple disc herniations from L2-L5. He also noted that appellant’s physical 

examination revealed weakness in her bilateral lower extremities and diminished sensation. 

Dr. Passias recommended that appellant undergo lumbar fusion and he related that appellant was 

totally temporarily disabled from employment.

On July 14, 2020 OWCP referred appellant to Dr. Askin for a second opinion examination 

as to authorization for a surgical procedure of spinal fusion and as to whether she had ongoing 

residuals due to injuries sustained on December 21, 2017.

By decision dated August 11, 2020, OWCP denied appellant’s claim for compensation for 

disability from work for the period June 6 through 19, 2020, finding that she had not established 

disability from work for that period causally related to the accepted December 21, 2017 

employment injury.

On August 13, 2020 OWCP received a report dated August 7, 2020, from Dr. Askin. 

Dr. Askin reviewed a SOAF, conducted a physical examination and reviewed appellant’s medical 

records. He determined that appellant no longer had objective findings related to her accepted 

physiological conditions and that they had resolved. Dr. Askin noted thatMRI scans of appellant’s 

lumbar spine demonstrated age-appropriate degenerative changes. He opined that she was capable 

of returning to her date-of-injury position as a city carrier. In an attached Form OWCP-5c,

Dr. Askin indicated that maximum medical improvement had been reached and that she was 

capable of performing her usual job without restriction. He further opined that authorization for 

additional surgical procedures involving lumbar spinal fusion were not necessary and would be 

medically negligent if performed.

By decision dated August 13, 2020, OWCP denied appellant’s claim for compensation for 

disability from work for the period June 20, 2020 and continuing, finding that she had not 

established disability from work for that period causally related to the accepted December 21, 2017 

employment injury. In a separate decision of even date, it denied medical authorization for the 

requested lumbar spinal fusion procedure, finding that it was not medically necessary to address 

the effects of her work-related condition.

On August 18, 2020 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review regarding the August 13, 2020 decision 

denying authorization for lumbar fusion surgery.
5

In a report dated August 18, 2020, Dr. King examined appellant for depressive disorder 

and anxiety disorder. He noted that appellant’s mood was dysphoric and anxious during their 

session. Dr. King opined that her current psychiatric symptoms were causally related to her 

accepted work-related injury and that she was totally disabled on the basis of psychiatric illness. 

He continued to opine that appellant was totally disabled on the basis of psychiatric illness in 

reports dated September 8 and October 7, 2020.

In a report dated August 19, 2020, Dr. Ross examined appellant for complaints of pain in 

the low back, bilateral wrists, left ankle, right elbow, and neck, as well as post-traumatic 

headaches. He noted that she was currently out of work due to her injuries and that she was 

temporarily totally disabled. On physical examination of the cervical and lumbar spine, bilateral 

wrists, right elbow, and left ankle, Dr. Ross observed painful and reduced range of motion. He 

continued to opine that appellant was temporarily totally disabled in a report dated 

October 14, 2020.

In a letter dated September 9, 2020, Dr. Passias noted that she was under his care for her 

spine as a result of a work-related injury on December 21, 2017. He noted that she continued to 

suffer from worsening lumbar spine symptoms and left lower extremity paraesthesia, and that upon 

physical examination, he observed significant range of motion limitations of the lumbar spine and 

bilateral lower extremity weakness. Dr. Passias explained that based upon appellant’s physical 

examination, objective findings, and diagnostic imaging, it was medically necessary that appellant 

proceed with lumbar spinal fusion surgery. He explained that without this procedure, he expected 

her condition to worsen and that she would suffer permanent disability.

The telephonic hearing before a representative of OWCP’s Branch of Hearings and Review 

was held on October 27, 2020.

On December 4, 2020 appellant, through counsel, requested reconsideration of the 

decisions dated August 11 and 13, 2020, which denied her claim for wage-loss compensation. 

Attached to the request was a statement from appellant that her job duties had been changed and 

that she was required to exceed her work restrictions for the limited-duty position she was 

supposed to perform.

By decision dated December 17, 2020, the hearing representative vacated the August 13, 

2020 decision denying authorization for a lumbar spinal fusion procedure. It found that there 

remained an unresolved conflict of medical opinion between Dr. Askin and Dr. Passias regarding 

whether appellant’s requested lumbar spinal fusion surgery was medically warranted and causally 

related to her accepted claim. The hearing representative remanded the case file to an impartial 

medical examiner (IME) to resolve the outstanding conflict in medical opinion, to be followed by 

a de novo decision.

In questions to the IME dated December 21, 2020, OWCP requested that the physician 

opine as to whether appellant’s work-related conditions had resolved, whether appellant was 

capable of returning to her date-of-injury position, and, if she was unable to return to her date-ofinjury position, whether work restrictions were medically warranted. It also requested that the 

IME complete an attached Form OWCP-5c.

By decision dated January 4, 2021, OWCP reviewed the merits of its August 11 and 13, 

2020 decisions and denied modification. It explained that appellant had not submitted medical 
6

reports containing a well-rationalized opinion from a qualified physician explaining how her 

condition worsened such that she could no longer continue working in a restricted-duty capacity 

beginning June 6, 2020.

On January 20, 2021 appellant, through counsel, requested reconsideration of the 

January 4, 2021 decision. Counsel argued that her period of disability claim came about as a result 

of withdrawal of a light-duty assignment made specifically to accommodate appellant’s condition 

due to her accepted work-related injury.

In a letter dated January 29, 2021, a supervisor at the employing establishment disputed 

appellant’s claim that she was required to perform tasks outside her limited-duty medical 

restrictions. The employing establishment submitted additional statements dated January 29 and 

February 1, 2021 from supervisors stating that appellant was not required to perform tasks outside 

her limited-duty medical restrictions.

In a report dated February 3, 2021, Dr. Ross examined appellant for complaints of pain in 

the low back, bilateral wrists, left ankle, right elbow, and neck, as well as post-traumatic 

headaches. He noted that she was currently out of work due to her injuries and that she was 

temporarily totally disabled. On physical examination of the cervical and lumbar spine, bilateral 

wrists, right elbow, and left ankle, Dr. Ross observed painful and reduced range of motion. He 

diagnosed cervical and lumbar myofascial derangement with cervical disc herniations and disc 

bulges post-anterior cervical discectomy and fusion (ACDF) on June 11, 2019; and lumbar disc 

herniations, disc bulge with lumbar radiculopathy, bilateral wrist pain, left ankle pain, and right 

elbow tear with post-traumatic headaches.

In a report dated February 16, 2021, Dr. King examined appellant and observed that her 

mood was mild-to-moderately dysphoric and anxious, exacerbated by pain. He diagnosed 

depressive disorder with a major depressive-like episode and anxiety disorder due to another 

medical condition. Dr. King opined that her current psychiatric symptoms were causally related 

to her accepted work-related injury and that she was totally disabled on the basis of psychiatric 

illness.

By decision dated March 29, 2021, OWCP denied appellant’s request for reconsideration 

of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

LEGAL PRECEDENT -- ISSUE 1

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

When an employee who is disabled from the job he or she held when injured on account 

of employment-related residuals returns to a limited-duty position, or the medical evidence of 

record establishes that he or she can perform the limited-duty position, the employee has the burden 

of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence 

4

20 C.F.R. § 10.5(x); A.V., Docket No. 20-0486 (issued June 20, 2021); J.D., Docket No. 18-1533 (issued 

February27, 2019).
7

of total disability and to show that he or she cannot perform such limited-duty work.5 As part of 

this burden, the employee must show a change in the nature and extent of the injury -related 

condition or a change in the nature and extent of the limited-duty job requirements.6

The medical evidence required to establish causal relationship between a claimed period 

of disability and an employment injury is rationalized medical opinion evidence. 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 claimed disability and the accepted employment injury. 7 

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 his or her disability and entitlement 

to compensation.8

ANALYSIS -- ISSUE 1

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

OWCP found that a conflict in the medical opinion evidence existed between appellant’s 

treating physician Dr. Passias, and OWCP’s second opinion physician Dr. Askin, as to whether 

appellant required authorization for further surgical treatment of her lumbar spine. While OWCP 

had not determined that a conflict existed regarding appellant’s ability to work after June 6, 2020, 

in questions to the IME dated December 21, 2020, OWCP also requested that the physician opine 

as to whether appellant’s work-related conditions had resolved, whether appellant was capable of 

returning to her date-of-injury position, and, if she was unable to return to her date-of-injury 

position, whether work restrictions were medically warranted. It also requested that the IME

complete an attached Form OWCP-5c. However, OWCP did not receive the completed IME 

report and Form OWCP-5c, containing answers to these questions regarding appellant’s work 

status, prior to issuance of its January 4 or March 29, 2021 decision on reconsideration.

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.9 Once it undertakes development of the record, it must do a complete job in 

5

See D.W., Docket No. 19-1584 (issued July 9, 2020); S.D., Docket No. 19-0955 (issued February 3, 2020); Terry 

Hedman, 38 ECAB 222 (1986).

6

Id.

7 R.C., Docket No. 20-1637 (issued September 24, 2021); Y.S., Docket No. 19-1572 (issued March 12, 2020).

8

J.B., Docket No. 19-0715 (issued September 12, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

9 L.F., Docket No. 20-0459 (issued January 27, 2021); J.R., Docket No. 19-1321 (issued February7, 2020); S.S., 

Docket No. 18-0397 (issued January 15, 2019).
8

procuring medical evidence that will resolve the relevant issues in the case.10 Accordingly, the 

Board finds that the case must be remanded to OWCP.11

On remand, OWCP shall conduct a complete merit review of the medical evidence of 

record, including any report of record containing answers to the questions posed on December 21, 

2020 regarding appellant’s work status beginning June 6, 2020. It shall then determine whether 

an unresolved conflict of medical opinion exists regarding appellant’s ability to work and any work 

limitations relative to her accepted physiological and psychiatric conditions. After this and other 

such further development as deemed necessary, OWCP shall issue a de novo decision.12

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the January 4 and March 29, 2021 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

proceedings consistent with this decision of the Board.

Issued: May 11, 2022

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

10 Id.; see also R.M., Docket No. 16-0147 (issued June 17, 2016).

11 J.R., supra note 9; J.T., Docket No. 18-1300 (issued March 22, 2019).

12 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.