United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Duluth, GA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 20-0021

Issued: September 10, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 2, 2019 appellant, through counsel, filed a timely appeal from a July 1, 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 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 July 1, 2019 decision, OWCP received additional evidence. 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 disabled recurrence 

of disability commencing August 30 2018 due to her accepted June 12, 2015 employment injury.

FACTUAL HISTORY

On June 12, 2015 appellant, then a 40-year-old postal support employee clerk, filed a 

traumatic injury claim (Form CA-1) alleging that on that date she sustained a right upper extremity 

condition when moving a mail rack while in the performance of duty. OWCP accepted the claim 

for a right shoulder sprain. 

On January 5, 2016 Dr. Neil Negrin, a Board-certified orthopedic surgeon, performed an 

authorized arthroscopic repair of the right glenoid labrum. 

The employing establishment indicated that appellant had bid on a full-time permanent job 

and was hired on April 30, 2016 as a full-time, full-duty mail processing clerk. 

In a September 20, 2017 report, Dr. Negrin diagnosed possible right ulnar neuropathy and 

cervical radiculopathy affecting the right upper extremity. He provided work restrictions on 

October 2, 2017 limiting lifting, carrying, pulling, and pushing to 30 pounds and restricting 

appellant from performing certain work tasks and machines. 

Appellant accepted a modified-duty position on October 4, 2017. 

In a February 5, 2018 report, Dr. Christopher Haraszti, a Board-certified orthopedic 

surgeon, noted that appellant was involved in a November 2016 motor vehicle accident with 

subsequent cervical spine pain. He diagnosed a degenerative tear of the glenoid labrum of the 

right shoulder, right hand numbness consistent with cubital tunnel syndrome versus cervical 

radiculopathy, and cervical radiculopathy at C5.

4

In an August 9, 2018 report, Dr. Haraszti returned appellant-to-modified light-duty work 

with no overhead lifting or lifting more than 10 pounds with the right arm, no working the delivery 

bar code sorter, flat sequencing system, or automatic induction machines, and limiting use of the 

“Speedy” machine to three hours. He prescribed physical therapy and stated that appellant would 

be reevaluated in six weeks. 

In a September 20, 2018 report, Dr. Kevin G. McCowan, a Board-certified surgeon, 

recounted appellant’s history of injury and treatment. He diagnosed a right shoulder sprain and 

labral tear and provided work restrictions. 

On September 22, 2018 appellant filed several claims for compensation (Form CA-7) for 

the period August 30 to September 7, 2018, alleging that she was “sent home” as there was no 

work available within her medical restrictions. 

 

4 Appellant participated in physical therapy treatments from May to July 2018. 
3

In a September 22, 2018 letter, an employing establishment supervisor, noted that the 

employing establishment had accommodated appellant’s work restrictions since October 2, 2017. 

She referred appellant to the accommodations committee “for a potential light[-]duty assignment. 

However, [appellant] reported back to work with a letter from” OWCP “reflecting approval status 

dated August 16, 2018.” The supervisor noted that appellant was off work from August 31 

through September 7, 2018. 

On October 9, 2018 OWCP expanded its acceptance of the claim to include a glenoid 

labrum tear of the right shoulder. 

In a development letter dated October 9, 2018, OWCP informed appellant that the evidence 

of record was insufficient to establish her claim for compensation for the dates August 30 to 

September 7, 2018. It advised her of the type of factual and medical evidence needed, including 

clarification of the dates of disability claimed, and whether she was claiming a spontaneous 

worsening of the accepted right shoulder injury or a new injury or condition caused by subsequent 

occupational exposure. OWCP afforded appellant 30 days to submit the necessary evidence. 

In response, appellant submitted a November 8, 2018 statement asserting that management 

had made copies of her work limitations and had sent her home as there was no work available 

within those restrictions. She submitted additional evidence. 

In a report dated January 5, 2018, Dr. Awais Butt, a chiropractor, noted that appellant 

sustained back injuries in an October 5, 2017 motor vehicle accident.5

In a May 31, 2018 report, Dr. Haraszti returned appellant to light-duty work with no 

overhead lifting or lifting more than 10 pounds with the right upper extremity, no or limited use 

of various machines. OWCP also received reports from Dr. McCowan dated September 20 to 

October 18, 2017. 

Dr. Ellis Efobi, a general practitioner, in a November 19, 2018 report, provided work 

restrictions. 

By decision dated November 30, 2018, OWCP denied appellant’s Form CA-7 claims for 

compensation for the period August 30 to September 7, 2018. It found that there was no medical 

documentation of record establishing that she was disabled from work for the claimed period due 

to her accepted employment injury. 

On December 11, 2018 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review which was conducted April 17, 2019. 

During the hearing, appellant testified that her physicians modified her work restrictions in 

August 2018 because of an increase in pain symptoms. She contended that the employing 

establishment sent her home from work from August 30 to September 7, 2018. Appellant returned 

to limited-duty work on September 7, 2018 and continued on modified duty. 

 

5 Appellant also submitted an October 31, 2017 magnetic resonance imaging scan study of the cervical spine 

demonstrating an acute C5-6 disc herniation superimposed on multi-level degenerative changes. 
4

OWCP received a December 17, 2018 report by Dr. McCowan, December 27, 2018 and 

February 1, 2019 reports by Dr. Charles E. Willis, a pain management specialist, and a 

February 18, 2019 report from Dr. Efobi noting continuing right upper extremity symptoms.6 

By decision dated July 1, 2019, an OWCP hearing representative affirmed the 

November 30, 2018 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA7 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence.8 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 employment injury.9 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

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.11 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.12

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.13

 

6 Appellant also submitted a March 12, 2019 functional capacity evaluation pursuant to a schedule award claim 

then under development by OWCP. 

7

Supra note 2.

8

See D.M., Docket No. 18-0527 (issued July 29, 2019); B.K., Docket No, 18-0386 (issued September 14, 2018); 

see also Amelia S. Jefferson, 57 ECAB 183 (2005).

9 W.H., Docket No. 19-0168 (issued May 10, 2019); see D.G., Docket No. 18-0597 (issued October 3, 2018).

10 J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

11 20 C.F.R. § 10.5(x); see V.H., Docket No. 18-0456 (issued August 9, 2019).

12 Id.

13 See S.G., Docket No. 18-1076 (issued April11, 2019); WilliamA. Archer, 55 ECAB 674 (2004); Fereidoon 

Kharabi, 52 ECAB 291 (2001).
5

ANALYSIS

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

OWCP accepted appellant’s June 12, 2015 claim for right shoulder sprain. On 

October 4, 2017 she returned to light-duty work based on his physician’s restrictions. Appellant 

thereafter filed claims for wage-loss compensation. 

In a September 22, 2018 letter, an employing establishment supervisor, noted that the 

employing establishment had accommodated appellant’s work restrictions since October 2, 2017. 

She referred appellant to the accommodations committee “for a potential light[-]duty assignment. 

However, [appellant] reported back to work with a letter from” OWCP “reflecting approval status 

dated August 16, 2018.” She noted that appellant was off work from August 31 through 

September 7, 2018. 

In response to OWCP’s compensation claim development letter, appellant submitted a 

November 8, 2018 statement asserting that management had made copies of her work limitations 

and had sent her home as there was no work available within those restrictions.

The Board finds that the evidence of record is insufficient to determine whether, at the

time, a light-duty job remained available for appellant to perform or whether it had been withdrawn 

resulting in a recurrence of disability. As noted above, OWCP’s regulations allow her to establish 

a recurrence of disability when a light-duty job is withdrawn or when there is a change in her work 

restrictions.14 Accordingly, the evidence of record must be fully developed so that it contains 

accurate information regarding appellant’s claim in order to determine whether she sustained a 

recurrence of disability.

15

It is well established that, proceedings under FECA are not adversarial in nature and, while 

the employee has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.16 Accurate information regarding whether 

appellant’s limited-duty assignment remained available, is essential to determine whether she 

sustained a recurrence of disability. OWCP must, therefore, make proper factual findings of 

whether her limited-duty assignment was still available, and resulted in a recurrence of disability. 17 

This evidence is of the character normally obtained from the employing establishment and is more 

readily accessible to OWCP than to appellant.18 On remand, OWCP shall request that the 

employing establishment clarify the circumstances of appellant’s cessation of work and whether 

her modified-duty assignment remained available or had been withdrawn on or about

 

14 Supra note 12.

15 See D.M.,Docket No. 18-0527 (issued July 29, 2019); J.G., Docket No. 17-0910 (issued August28, 2017); M.A.,

Docket No. 16-1602 (issued May 22, 2017).

16 D.M., id.; DonaldR. Gervais, 57 ECAB 281, 286 (2005); WilliamJ. Cantrell, 34 ECAB 1233 (1983).

17 See D.M., id.; Y.R.,Docket No. 10-1589 (issued May 19, 2011).

18 D.M., id.; J.T., Docket No. 15-1133 (issued December 21, 2015); J.S., Docket No. 15-1006 (issued 

October 9, 2015).
6

August 30, 2018.

19

 Following this and other such further development as deemed necessary, 

OWCP shall issue a de novo decision. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the July 1, 2019 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: September 10, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees' Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees' Compensation Appeals Board

 

19 K.T., Docket No. 17-0009 (issued October 8, 2019).