United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.H., Appellant

and

U.S. POSTAL SERVICE, ELIZABETH POST 

OFFICE, Elizabeth, NJ, Employer

__________________________________________

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Docket No. 21-0969

Issued: August 24, 2023

Appearances: Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 7, 2021 appellant, through counsel, filed a timely appeal from a March 31, 2021 

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 the 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 31, 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

ISSUE

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

disability commencing June 9, 2020 causally related to her accepted December 23, 2019 

employment injuries.

FACTUAL HISTORY

On January 2, 2020 appellant, then a 36-year-old mail carrier, filed a traumatic injury claim 

(Form CA-1)4 alleging that on December 23, 2019 she injured her left knee, right leg, and lower 

back when she tripped and fell while ascending stairs in the performance of duty. She stopped 

work on December 23, 2019 and returned to full-time light-duty work on December 28, 2019.

OWCP accepted the claim for internal derangement of the left knee, abrasion of the right lower 

leg, and strain of the muscle, tendon, and fascia of the lower back.

On May 6, 2020 Dr. Naomi Gold, an osteopath, Board-certified in physical medicine and 

rehabilitation, examined appellant for back pain resulting from her December 23, 2019 

employment injury. She diagnosed low back pain, lumbago with sciatica, bilaterally, and strain 

of the muscle, fascia, and tendon of the lower back. Dr. Gold noted that appellant was “full duty”

considering only her low back.

In a May 12, 2020 note, Dr. David E. Rojer, a Board-certified orthopedic surgeon, 

examined appellant due to bilateral knee pain and severe back and neck pain due to her 

December 2019 employment injury. He indicated that she was working with restrictions and 

advised that there was no “change in work status.”

Appellant received physical therapy from May 2020 through March 2021. 

On June 3, 2020 Dr. Kumar Sinha, a Board-certified orthopedic surgeon, noted appellant’s

history of injury in December 2019 with resultant knee and back pain. He also indicated that 

appellant fell at work on May 15, 2020 and that since that time she had experienced worsening 

back, left upper extremity, and neck pain. Dr. Sinha diagnosed a cervical sprain and opined that 

the initial fall had caused a lower back injury and that the second fall resulted in a “worsening of 

the lower back symptomatology.”

On June 9, 2020 Dr. Rojer examined appellant and noted that she sustained an additional 

injury on May 15, 2020 when she fell at work. 

4 Appellant filed a second traumatic injury claim on May 19, 2020 alleging that on May 15, 2020 she injured her 

upper back and neck when she tripped over several buckets while in the performance of duty. OWCP assigned this 

claim OWCP File No. xxxxxx108. Appellantstopped work on May 16, 2020. By decision dated August 20, 2020, 

OWCP denied this claim finding that she had not established causal relationship between her diagnosed conditions 

and her accepted May 19, 2020 employment incident. Appellant requested a review of the written record by a 

representative of OWCP’s Branch of Hearings and Review on September 1, 2020. By decision dated January 19, 

2021, OWCP’s hearing representative affirmed the August 20, 2020 OWCP decision. Counsel did not request review 

by the Board of the January 19, 2021 decision in the June7, 2021 appeal, and this issue is not currently before the 

Board. 20 C.F.R. § 501.3(c). On January 20, 2021 OWCP File Nos. xxxxxx108 and xxxxxx586 were administratively 

combined with the latter claim serving as the master file.
3

In a June 23, 2020 note, Dr. Rojer observed diffuse sensitivity in the left knee, as well as 

the cervical and lumbar spine. He opined that appellant was totally disabled.

Beginning on July 1, 2020 appellant filed claimsfor compensation (Form CA-7) requesting 

wage-loss compensation starting June 9, 2020. The employing establishment noted that she 

returned to full-time, light-duty work on December 28, 2020 and had worked until she experienced 

another employment incident on May 15, 2020. On June 9, 2020 appellant reported thatshe was 

totally disabled.

On July 7, 2020 appellant filed a notice of recurrence (Form CA-2a) for medical treatment 

and disability beginning June 9, 2020 causally related to her December 23, 2019 employment 

injury. She stopped work on June 9, 2020. Appellant alleged that she experienced increased pain 

and disability in her left knee, lower back, and right leg. She also indicated that she had injured 

her neck and upper back on May 15, 2020 in the performance of duty.

In a July 10, 2020 development letter, OWCP advised appellant of the definition of a 

recurrence of disability and requested that she provide additional factual and medical evidence in 

support of her claim. It provided a questionnaire for her completion and afforded her 30 days to 

submit the necessary information.

Subsequently, OWCP received a June 9, 2020 note from Dr. Rojer, who diagnosed left 

knee pain, contusion, and effusion, as well as synovial cyst of the popliteal space. Dr. Rojer also 

diagnosed low back pain and intervertebral disc disorders with radiculopathy, lumbosacral region. 

He found that appellant was totally disabled.

On July 8, 2020 Dr. Rojer noted that he was treating appellant for her left knee condition 

and not for low back pain. In a separate report of even date, he diagnosed left knee pain, contusion, 

and effusion with synovial cyst of the popliteal space and low back pain with a new diagnosis of 

intervertebral disc disorders with radiculopathy in the lumbosacral region. In a duty status report 

(Form CA-17) of even date, Dr. Rojer opined that appellant was disabled from employment. 

In a July 10, 2020 report, Dr. Sinha discussed appellant’s complaints of neck and low back 

pain and noted that at the last evaluation he had attributed the injury to the cervical spine to a fall 

in May 2020. He noted that she had originally sustained an injury in 2019. Dr. Sinha indicated 

that appellant related that her neck and lumbar pain increased after her fall in May 2020 but advised 

that he was only treating her upper back. He opined that her neck and upper back condition were 

due to the fall and found that she could perform light-duty work.

On July 22, 2020 Dr. Rojer discussed appellant’s history of injuries in December 2019 and 

May 2020. He provided findings on examination of the left knee. Dr. Rojer noted that clarification 

was required regarding whether her lumbar spine condition was covered under workers’

compensation. 

On August 5, 2020 appellant completed the development questionnaire and asserted that 

she sought treatment from Dr. Rojer on June 9, 2020 due to increased pain from her left knee and 

lower back, the same areas injured on December 23, 2019. She also reported her May 15, 2020 

employment incident.
4

In an August 25, 2020 development letter, OWCP requested that appellant submit 

additional evidence in support of her claim for wage-loss compensation, including medical 

documentation supporting that she was disabled from work beginning June 9, 2020 due to the 

accepted December 23, 2019 employment injury. It afforded her 30 days to submit the requested 

evidence.

Thereafter, OWCP received an August 24, 2020 report from Dr. James E. Patti, a Boardcertified orthopedic surgeon, who examined appellant due to her December 23, 2019 low back 

injury. Dr. Patti reported that appellant had fallen down three flights of stairs on that date. He

diagnosed lumbar sprain and right-side sciatica. Dr. Patti attributed these conditions to appellant’s

December 23, 2019 employment injury and opined that she was totally disabled. 

On September 8, 2020 appellant underwent a lumbar magnetic resonance imaging (MRI) 

scan which demonstrated no disc bulges or herniations. Her MRI scan demonstrated mild facet 

hypertrophy at L3-4 and L4-5 with mild neural foraminal narrowing.

In a note dated September 23, 2020, Dr. Rojer found that appellant had reached maximum 

medical improvement with regard to her left knee injury that had occurred in December 2019. He 

reported that she could return to try to resume full duty with no restrictions within two weeks. 

On September 24, 2020 counsel discussed the medical evidence submitted and asserted 

that appellant had established that she sustained a recurrence of disability beginning June 9, 2020 

due to a worsening of her lumbar spine condition. 

On October 1, 2020 appellant submitted an undated narrative statement and attributed the 

recurrence of her low back pain and development of sciatica to the six-month delay in treatment. 

She noted that she returned to limited duty until May 15, 2020, when she fell at work injuring her 

upper extremities. Appellant reported that after May 15, 2020 her back pain increased and traveled 

to her right leg in the form of sciatica. She stopped work due to these conditions.

By decision dated October 8, 2020, OWCP denied appellant’s claimed recurrence of 

disability finding that she had not submitted medical evidence establishing total disability from 

work due to a material change in her accepted December 23, 2019 employment injury.

In work notes dated October 7, and 21, 2020, Dr. Patti opined that appellant was totally 

disabled due to her diagnosed conditions of lumbar sprain and right sciatica related to her 

December 23, 2019 employment injury which he described as falling down three flights of stairs. 

He released appellant to return to light-duty work on October 28, 2020.

On October 22, 2020 appellant, through counsel, requested a review of the written record 

by a representative of OWCP’s Branch of Hearings and Review.

In a report dated December 14, 2020, Dr. Patti advised that he was treating appellant for a 

lumbar spine injury that occurred when she fell down three flights of stairs at work. He diagnosed 

right sciatica and persistent lumbar pain. Dr. Patti provided work restrictions. He opined that 

appellant’s lumbar pain and sciatica was caused by the mechanism of the fall which created 

postural changes beyond the normal physiological limits leading to injury. Dr. Patti concluded

that appellant’s lumbar conditions were precipitated by her fall on December 23, 2019 and required 

further medical treatment.
5

In a supplemental report dated January 5, 2021, Dr. Patti clarified that appellant did not fall 

down the stairs, but instead tripped and fell forward. He amended his prior reports, but noted that 

his opinions remained unchanged.

The record also contains unrelated medical reports dated January 22, February 8, March 6 

and 11, May 18, September 23, November 2, and December 14, 2020 from Dr. Patti regarding a 

different patient. These notes are erroneously associated with this OWCP file.

In a note dated February 24, 2021, Dr. Patti again provided a history of appellant sustaining 

an injury on December 23, 2019 when she fell down three flights of stairs. He reviewed appellant’s 

September 8, 2020 MRI scan and found no herniated disc and no fractures. Dr. Patti diagnosed 

lumbar sprain, right sciatica, and other intervertebral disc disorders, lumbar region.

By decision dated March 31, 2021, OWCP’s hearing representative affirmed the 

October 8, 2020 OWCP decision. He improperly reviewed the January 22, February 8, March 6 

and 11, May 18, September 23, November 2, and December 14, 2020 notes from Dr. Patti 

regarding a different patient in evaluating the medical evidence in appellant’s claim. The hearing 

representative noted that appellant sustained a new traumatic back and upper extremity injury on 

May 15, 2020 which constituted an intervening event that had been inadequately addressed by the 

medical evidence.

5

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.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 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 

5

In a letter dated March 25, 2021, counsel requested that appellant’s claim be expanded to include the additional 

conditions of right sciatica, other intervertebral disc disorders, lumbar regions, lumbar disc displacement without 

myelopathy, and lumbar radiculopathy. OWCP’s hearing representative explicitly provided that he had not considered 

appellant’s claim for expansion and directed her to pursue this claim through OWCP.

6

20 C.F.R. § 10.5(x); T.H., Docket No. 21-0751 (issued September 29, 2021); J.D., Docket No. 18-1533 (issued 

February 27, 2019).

7

Id.
6

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

injured.8

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. 9 

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.10

ANALYSIS

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

Appellant stopped work on December 23, 2019 and returned to full-time modified 

employment on December 28, 2019. She has not contended, and there is no evidence, that the 

employing establishment changed or withdrew her limited-duty position. Appellant, therefore, has 

the burden of proof to provide medical evidence that she was disabled from work due to her 

accepted December 23, 2019 employment injury.11 

OWCP’s hearing representative, however, inappropriately relied uponDr. Patti’s unrelated 

medical reports dated January 22, February 8, March 6 and 11, May 18, September 23, 

November 2, and December 14, 2020, which discuss the physical findings of a different patient,

in reaching the March 31, 2021 decision.

The Board finds that the evidence upon which OWCP explicitly relied in denying 

appellant’s claim was not in fact medical evidence related to appellant, but rather was evidence 

erroneously submitted by Dr. Patti regarding an altogether different patient and completely 

unrelated and irrelevant to appellant’s medical history and condition.

Accordingly, the Board will remand the case for OWCP to review only the evidence 

submitted in support of appellant’s alleged recurrence of disability commencing June 9, 2020 

causally related to her accepted December 23, 2019 employment injuries and to make findings of 

fact based on the evidence properly before it and issue an appropriate decision. After this and 

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

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); R.E., Docket 

No. 20-0421 (issued May 17, 2021); F.C., Docket No. 18-0334 (issued December 4, 2018).

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

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

11 See S.P., Docket No. 21-0380 (issued November 22, 2022); N.B., Docket No. 21-0710 (issued August19, 2022); 

Cecelia M. Corley, 56 ECAB 662 (2005).
7

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the March 31, 2021 decision of the Office of 

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

consistent with this decision of the Board.

Issued: August 24, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board