United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.V., Appellant

and

U.S. POSTAL SERVICE, JFK 

INTERNATIONAL SERVICE CENTER, 

Jamaica, NY, Employer

__________________________________________

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Docket No. 20-1251

Issued: January 28, 2021

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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 1, 2020 appellant, through counsel, filed a timely appeal from a January 21, 2020 

merit decision and an April 14, 2020 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. 

 

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.
2

ISSUES

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

of disability commencing July 26, 2017 causally related to his accepted August 9, 2011 

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

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

FACTUAL HISTORY

On August 10, 2011 appellant, then a 38-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on August 9, 2011 he sustained injuries when he was struck by a 

piece of equipment towing postal containers while in the performance of duty.3 He stopped work 

on August 10, 2011. OWCP accepted the claim for lumbosacral strain and neck sprain.4 On 

September 21, 2011 appellant accepted a limited-duty mail handler position at the employing 

establishment. OWCP paid wage-loss compensation for intermittent time lost from work from

October 8, 2011 until February 25, 2012. 

A magnetic resonance imaging (MRI) scan of the cervical spine, obtained on July 11, 2016, 

revealed a large central disc herniation at C5-6 impinging the thecal sac, central cord, and 

intervertebral foramina, a left-sided disc herniation at C7 to T1 with impingement, posterior and 

central disc herniations at C3-4, C4-5, and C6-7 with impingement, marked narrowing of the canal 

with stenosis at C5-6 and C4-5, and central cord compression at C5-6.

In a report dated August 4, 2016, Dr. Demetrios Mikelis, an internist and physiatrist, 

evaluated appellant for complaints of back and neck pain.5 He noted that appellant had a history 

of an August 9, 2011 employment injury. Dr. Mikelis diagnosed herniated cervical and lumbar 

discs with radiculopathy. He discussed treatment options, including surgery, and opined that 

appellant could not perform heavy lifting, carrying, or bending.

In a November 3, 2016 report, Dr. Erich G. Anderer, a Board-certified neurosurgeon, 

recounted appellant’s history of a 2011 employment injury and current symptoms of neck pain, 

bilateral arm numbness, and bilateral leg pain. He advised that a cervical MRI scan had 

demonstrated “a congenitally narrow canal with central disc herniation and spinal cord 

compression at C4-5 and a large left paracentral disc herniation causing severe spinal cord 

compression with intrinsic signal change within the cord at C5-6.” Dr. Anderer advised that a 

 

3 On the CA-1 form, appellant indicated the date of injury as August 10, 2011. It appears, however, that he was 

injured at 11:30 p.m. on August 9, 2011. 

4 By decision dated September 30, 2011, OWCP denied appellant’s traumatic injury claim as the medical evidence 

was insufficient to establish that he sustained a medical condition causally related to the accepted employment 

incident. By decision dated January 26, 2012, an OWCP hearing representative affirmed the September 30, 2011 

decision as modified to find that appellant had not factually established the employment incident due to a discrepancy 

in dates. By decision dated August 6, 2012, OWCP vacated the January 26, 2012 decision and accepted the claim for 

lumbosacral strain and neck sprain. 

5 On July 31, 2016 appellant filed a notice of recurrence of a medical condition (Form CA-2a). By letter dated 

August 19, 2016, OWCP advised that his claim remained open for medical treatment and that it would thus take no

action of his Form CA-2a. 
3

lumbar MRI scan had shown mild degenerative changes without significant neural compression or 

instability. He noted that appellant had “a history of neck and back pain with slow development 

of cervical myelopathy, all of which started after a work injury in 2011.” Dr. Anderer 

recommended surgery.

On December 2, 2016 Dr. Anderer requested surgical authorization from OWCP to 

perform a spinal fusion. 

On January 6, 2017 Dr. Todd Fellars, a Board-certified orthopedic surgeon serving as a 

district medical adviser (DMA), opined that the requested cervical spinal fusion was medically 

necessary, but not causally related to the accepted condition of a neck sprain. He advised that the 

medical evidence showed disc degeneration which was “largely a genetic condition and not 

activity related.”

On September 5, 2017 OWCP referred appellant to Dr. Leon Sultan, a Board-certified 

orthopedic surgeon, for a second opinion examination. It requested that he evaluate whether 

appellant had residuals or disability from appellant’s accepted employment injury and whether the 

requested cervical spinal fusion was causally related to his accepted condition. 

In a report dated October 30, 2017, Dr. Sultan reviewed appellant’s history of injury and 

resulting medical treatment. On physical examination, he found intact sensory testing of the upper 

extremities and dull reflexes of the biceps and triceps. Dr. Sultan advised that appellant had 

negative straight leg test bilaterally and intact sensation of the bilateral lower extremities. He 

diagnosed status post-traumatic derangement of the cervical and lumbar spine with aggravation of 

preexisting cervical disc disease at multiple levels. Dr. Sultan opined that his physical examination 

demonstrated “positive objective examination findings in regard to the accepted compensable 

injuries involving [appellant’s] cervical spine and lumbar spine.” He related, “[Appellant’s]

current residuals include low grade cervical spine motion restriction with him being status post 

cervical disc surgery without the upper extremity neurological impairment. In regard to his lower 

back he is noted to be status post lumbar derangement with low grade lumbar spine motion 

restriction without any lower extremity neurological impairment.” Dr. Sultan found that appellant 

had not fully recovered from the September 18, 2017 surgery of his cervical spine. He asserted 

that the September 18, 2017 cervical discectomy and fusion was “appropriate for the claimant’s 

accepted condition,” noting that diagnostic studies and examination findings supported disc 

herniations necessitating surgery. Dr. Sultan determined that appellant could perform sedentary 

or light employment duties with restrictions of lifting and carrying up to 20 pounds at a time using 

both hands.

On October 21, 2019 appellant filed a notice of recurrence (Form CA-2a) claiming 

disability beginning July 2017 causally related to his June 9, 2011 employment injury. The 

employing establishment advised that he had performed modified employment subsequent to his 

injury and that his last day working was July 26, 2017. 

In a November 12, 2019 development letter, OWCP advised appellant of the definition of 

a recurrence of disability and requested that he submit a report from his physician explaining how 

his disability was causally related to his accepted employment injury. It provided a questionnaire 

for his completion. OWCP afforded appellant 30 days to submit the necessary information.
4

Counsel responded on November 27, 2019 submitting a September 18, 2017 operative 

report from appellant’s cervical discectomy and fusion at C4-5 and C5-6 and the October 30, 2017 

report from Dr. Sultan. He further submitted an August 28, 2018 report from Dr. Michael 

Rosenberg, Board-certified occupational medicine. Dr. Rosenberg discussed appellant’s history 

of cervical surgery one year earlier. He diagnosed sensory neuropathy of the bilateral hands, legs, 

and feet, mild bilateral wrist and hand pain, and a balance disturbance. Dr. Rosenberg advised that 

appellant had moderate-to-severe restrictions in activities that required walking, standing, and 

using fine manipulation using the hands and feet.

By decision dated January 21, 2020, OWCP found that medical evidence was insufficient 

to establish an employment-related recurrence of disability beginning July 26, 2017 causally 

related to appellant’s August 9, 2011 employment injury. It noted that he had alleged a recurrence 

of disability two months prior due to an unauthorized surgery on his cervical spine. 

On April 6, 2020 appellant, through counsel, requested reconsideration. Appellant asserted 

that OWCP should have authorized the cervical spinal fusion based on the opinion of Dr. Sultan. 

Counsel further contended that OWCP should pay disability compensation beginning July 26, 

2017, noting that appellant’s condition had worsened such that he required surgery.

By decision dated April 14, 2020, OWCP denied appellant’s request for reconsideration of 

the merits of his claim as he had not submitted evidence or raised an argument sufficient to warrant 

reopening of his case for further review of the merits under 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.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 

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

injured.8

 

6 20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

7

Id.

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

No. 18-0334 (issued December 4, 2018).
5

ANALYSIS -- ISSUE 1

The Board finds that the case is not in posture for decision regarding whether appellant has 

met his burden of proof to establish a recurrence of disability commencing July 26, 2017 causally

related to his accepted August 9, 2011 employment injury.

On November 3, 2016 Dr. Anderer found that appellant had neck and back pain that had 

begun after a 2011 employment injury and had developed into cervical myelopathy. He requested 

authorization from OWCP for a spinal fusion. 

Dr. Fellars, a DMA, opined that the requested spinal fusion was not causally related to the 

accepted condition of a neck sprain. OWCP referred appellant to Dr. Sultan for a second opinion 

examination to determine whether he had continued residuals of his accepted employment-related 

conditions and whether the proposed spinal fusion was causally related to appellant’s August 9, 

2011 employment injury.

On October 30, 2017 Dr. Sultan discussed appellant’s history of an August 9, 2011 

employment injury and September 18, 2017 cervical discectomy and fusion. He contended that 

appellant had continued residuals of his accepted employment-related conditions. Dr. Sultan 

diagnosed status post-traumatic derangement of the cervical and lumbar spine and aggravation of 

preexisting disc disease at multiple levels. He opined that the cervical discectomy and fusion 

performed on September 18, 2017 was causally related to the accepted condition. Dr. Sultan 

further found that appellant could perform light or sedentary work duties lifting and carrying up to 

20 pounds. 

Appellant filed a notice of recurrence of disability beginning July 26, 2017 causally related 

to his June 9, 2011 employment injury. OWCP found that he had not met his burden of proof to 

establish a recurrence of disability, noting that he had undergone unauthorized surgery in 

September 2017. As noted, however, it had referred appellant to Dr. Sultan for an opinion on 

whether the September 2017 surgery should be authorized. OWCP did not, however, consider his

findings that appellant had sustained additional employment-related conditions due to appellant’s

accepted employment injury and that the September 18, 2017 cervical discectomy and fusion 

resulted from the accepted work injury in finding that he had not established a recurrence of 

disability.

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

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

shares responsibility in the development of the evidence in order to see that justice is done.9 Once 

OWCP undertakes development of the medical evidence, it has the responsibility to do so in a 

manner that will resolve the relevant issues in the case.10 Further, when adjudicating a claim, 

OWCP is obligated to consider all evidence properly submitted by a claimant and received prior 

 

9 See N.L., Docket No. 19-1456 (issued July 14, 2020); T.L., Docket No. 19-1572 (issued March 12, 2020).

10 See K.S., Docket No. 18-0845 (issued October 26, 2018).
6

to the issuance of its final decision.11 In this case, OWCP adjudicated appellant’s recurrence of 

disability claim without determining whether Dr. Sultan’s opinion supported that it should expand 

acceptance of appellant’s claim to include additional employment-related conditions and authorize 

appellant’s September 18, 2017 cervical surgery. The case, therefore, will be remanded for OWCP 

to consider Dr. Sultan’s October 30, 2017 report.12 After this and such further development as 

deemed necessary, it should issue a decision regarding the issues of claim expansion and surgical 

authorization and a de novo decision regarding whether appellant has met his burden of proof to 

establish a recurrence of disability beginning July 26, 2017.13

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 14 and January 21, 2020 decisions of the 

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

proceedings consistent with this opinion of the Board.

Issued: January 28, 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

 

11 J.R., Docket No. 18-1177 (issued July 25, 2019); William A. Couch, 41 ECAB 548 (1990).

12 J.R., id.

13 In view of the Board’s disposition of Issue 1, Issue 2 is rendered moot.