United States Department of Labor

Employees’ Compensation Appeals Board

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T.H., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

Baltimore, MD, Employer

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Docket No. 21-0751

Issued: September 29, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

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 April 9, 2021 appellant filed a timely appeal from a November 5, 2020 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.

ISSUE

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

disability beginning June 7, 2019 causally related to her accepted December 20, 2018 employment 

injury.

FACTUAL HISTORY

On December 21, 2018 appellant, then a 58-year-old contact representative, filed a 

traumatic injury claim (Form CA-1) alleging that on December 20, 2018 she injured her ankle, 

 

1

5 U.S.C. § 8101 et seq.
2

foot, arm, neck, legs, and back when she fell on a wet surface while in the performance of duty. 

The employing establishment advised that the injury had occurred after she had left work for the 

day and was walking up the stairs to the parking garage. Appellant stopped work on 

December 21, 2018. OWCP accepted the claim for a sprain of an unspecified ligament of the right 

ankle. It paid appellant wage-loss compensation for total disability on the supplemental rolls from 

February 4 to April 15, 2019. Appellant returned to her full-time date-of-injury employment on 

April 15, 2019.

An after visit summary dated May 17, 2019 indicated that Dr. Katherine Clair Shaw, a 

Board-certified internist, treated appellant on that date for right ankle stiffness.

On June 7, 2019 appellant filed a notice of recurrence (Form CA-2a) for medical treatment 

and of disability beginning April 17, 2019 causally related to her December 20, 2018 employment 

injury. She indicated that she had stopped work the evening of June 6, 2019 and that her pay had 

ceased on June 7, 2019. Appellant related that, after working for three days, she began to 

experience right ankle pain. She also asserted that she had injured her back when her right ankle 

slipped. The employing establishment advised that it had not adjusted appellant’s regular work 

duties as a result of her injury.

Appellant submitted physical therapy reports dated June 7, 2019. She also submitted a 

June 11, 2019 note from a nurse practitioner who indicated that she had been seen for an 

appointment on that date.

In a development letter dated June 18, 2019, OWCP advised appellant of the definition of 

a recurrence of disability and requested that she provide additional factual and medical information 

in support of her claim. It noted that she had returned to full-time employment without restrictions 

on April 15, 2019 and had stopped work on June 6, 2019. OWCP requested that appellant submit 

an opinion from her physician explaining the relationship between her disability and the accepted 

injury and how the accepted condition had materially worsened such that she was disabled from 

employment. It afforded her 30 days to submit the necessary information. 

Thereafter, OWCP received after-visit summaries indicating that appellant had received 

treatment from a nurse practitioner on April 10, 2019 for a right ankle sprain and on May 13, 2019 

for right ankle and dental pain.2

In a report dated May 17, 2019, Dr. Shaw noted appellant’s history of falling in a garage 

in December 2018 and her continued complaints of right ankle tightness that improved with 

stretching. On examination she found no erythema or effusion, but slight pain to palpation of the 

lateral malleolus and tenderness with range of motion. Dr. Shaw diagnosed right ankle stiffness 

and recommended physical therapy. She indicated that it was “likely a fairly severe ankle sprain 

with prolonged recovery” and referred appellant for an orthopedic evaluation.

In a report dated June 17, 2019, Dr. Richard Andrew Schaefer, a Board-certified orthopedic 

surgeon, obtained a history of appellant falling twice in the parking lot after work in 

 

2 Appellant also submitted physical therapy reports dated June and July 2019.
3

December 2018.3 The next day, her right ankle was swollen. Dr. Schaefer noted that appellant 

complained of “chronic stiffness and giving way” and also had some symptoms in the left lower 

extremity. He diagnosed bilateral ankle pain of unspecified chronicity and chronic right ankle 

pain. Dr. Schaefer ordered a magnetic resonance imaging (MRI) scan.

In an undated statement received by OWCP on June 25, 2019, appellant advised that, while 

walking back to her desk on April 17, 2019, she had experienced swelling, pain, and stiffness in 

her ankle. She related that she sought medical treatment two days later and was given days off 

work and a referral for physical therapy.

By decision dated July 22, 2019, OWCP found that appellant had not established a 

recurrence of disability causally related to her accepted employment injury. It noted that she 

remained entitled to medical benefits for her accepted condition.

In a note dated July 29, 2019, Dr. Shaw advised that she had evaluated appellant on 

May 17, 2019 and referred her to an orthopedic surgeon.

On July 30, 2019 appellant requested reconsideration.

By decision dated October 25, 2019, OWCP denied modification of its July 22, 2019 

decision.

In a report dated January 27, 2020, Dr. Schaefer indicated that he had evaluated appellant 

for right ankle pain on June 17, 2019 and obtained a history of her falling twice in the parking lot 

after work. He noted that her right ankle had improved with physical therapy though she had 

continued stiffness. Dr. Schaefer diagnosed improved symptoms after a right ankle injury, and 

possible posterior tibial talar arthritis with possible prior posterior malleolus trauma. He advised 

that appellant could perform activities of daily living avoiding high heels and periodically standing 

and stretching.

On February 3, 2020 appellant requested reconsideration.

By decision dated May 1, 2020, OWCP denied modification of its October 25, 2019 

decision.

In a report dated July 8, 2020, Dr. Schaefer indicated that he had initially evaluated 

appellant on June 17, 2019. He provided his review of the records and his examination findings. 

Dr. Schaefer noted that he had referred appellant for an MRI scan of the right ankle, but that it was 

not performed. He related that he did not see appellant again until January 13, 2020 at which time 

she advised that her ankle had improved to 75 percent of normal. Dr. Schaefer indicated that an 

x-ray revealed “continued irregularity of the posterior tibial lip possibl[y] consistent with prior 

subtle fracture.” He diagnosed a “possible subtle posterior right distal tibia fracture as described 

in the radiology reports and/or sprain after [a] reported fall in the garage at work in 

December 2018. She reported persistent symptoms for several months and received multiple 

 

3 The record also contains an after-visit summary form, dated June 17, 2019, noting that appellant had received 

treatment fromDr. Schaefer on that date.
4

sessions of physical therapy.” Dr. Schaefer again noted that he had only evaluated appellant on 

June 17, 2019 and January 13, 2020.

On July 13, 2020 appellant requested reconsideration.

By decision dated November 5, 2020, OWCP denied modification of its May 1, 2020 

decision.

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. A recurrence does not occur when such withdrawal occurs for 

reasons of misconduct, nonperformance of job duties, or a reduction-in-force.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. 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.6

OWCP’s procedures discuss the evidence necessary if recurrent disability for work is 

alleged within 90 days of return to duty.7 The focus is on disability rather than causal relationship 

of the accepted condition to the employment injury.8

The Board has held that, if recurrent disability from work is claimed within 90 days or less 

from the first return to duty, the attending physician should describe the duties, which the employee 

cannot perform, and demonstrate objective medical findings that form the basis for the renewed 

disability from work.9

 

4

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

5

Id.

6 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).

7

Id at Chapter 2.1500.5(a) (June 2013); see also K.D., Docket No. 19-0628 (issued November 5, 2019); B.R.,

Docket No. 18-0339 (issued January 24, 2019).

8

Id.

9 M.H., Docket No. 19-1552 (issued February 2, 2021); A.B., Docket No. 18-0978 (issuedSeptember 6, 2019); J.F., 

58 ECAB 124 (2006).
5

ANALYSIS

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

Initially, the Board notes that appellant alleged a recurrence of the need for medical 

treatment beginning April 17, 2019 and a recurrence of total disability beginning June 7, 2019. As 

OWCP noted in its July 22, 2019 decision, however, she remained entitled to medical treatment 

for her accepted work injury. Consequently, the issue is whether appellant sustained a recurrence 

of disability beginning June 7, 2019.

OWCP’s procedures provide that, in cases where recurrent disability from work is claimed 

within 90 days or less from the first return to duty, the claimant is not required to produce the same 

evidence as for a recurrence claimed long after apparent recovery and return to work. 10 In cases 

where recurring disability from work is claimed within 90 days or less from the first return to duty, 

the focus is on disability rather than causal relationship.11 The attending physician should describe 

the duties which the employee cannot perform and the demonstrated objective medical findings 

that form the basis for the renewed disability from work.12

Appellant stopped work on December 21, 2018 and returned to her date-of-injury 

employment on April 15, 2019. She stopped work again on June 7, 2019. As appellant claimed a 

recurrence of disability within 90 days of her first return to duty, OWCP should have developed 

and decided the claim under the proper recurrence standard, emphasizing disability rather than 

causal relationship.13 However, the June 18, 2019 OWCP development letter improperly 

instructed her to provide medical evidence in accordance with the standard for a recurrence of 

disability claim after 90 days of her return to duty, which required that she establish a change in 

her medical condition.14

OWCP’s procedures provide that OWCP is responsible for requesting evidence.15 Its 

procedures further provide that the claims examiner should contact the claimant in writing to 

obtain evidence and should specifically request the information needed, tailored to the specifics of 

the individual case.16 In this instance, OWCP improperly developed appellant’s claim solely under 

the standard for a recurrence of disability claim after 90 days from return to duty.17 As she failed 

to receive the proper guidance from OWCP regarding the specific evidence required to establish a 

recurrence claim within 90 days of her return to duty, the Board finds that this case must be 

 

10 Supra note 6at Chapter 2.1500.5(a); see R.W., Docket No. 17-0720 (issued May 21, 2018).

11 Id. at Chapter 2.1500.5(b) (June 2013); K.R., Docket No. 19-0413 (issued August 7, 2019).

12 Id.; see A.C., Docket No. 17-0384 (issued September 11, 2017).

13 Id.; see M.H., supra note 9.

14 Id. at Chapter 2.1500.6 (June 2013).

15 Id. at Chapter 2.800.4(c)(2) (June 2011).

16 Id. at Chapter 2.800.5; see also V.R., Docket No. 16-1167 (issued December 22, 2016).

17 M.H., supra note 9.
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remanded for further development.18 Following such further development as it deems necessary, 

OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the November 5, 2020 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 29, 2021

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

 

18 Id.