United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Shenandoah, PA, Employer

__________________________________________

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Docket No. 21-1131

Issued: March 2, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 20, 2021 appellant, through counsel, filed a timely appeal from a May 6, 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 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 May 6, 2021 decision, appellant submitted additional evidence to OWCP.

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 July 30, 2018, causally related to her accepted June 15, 2017 employment 

injury.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows. 

On June 15, 2017 appellant, then a 34-year-old city carrier assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she twisted her left ankle as she stepped out of her mail 

truck while in the performance of duty. On July 5, 2017 OWCP accepted sprain of the 

calcaneofibular ligament of the left ankle.5 On January 5, 2018 it expanded the acceptance of 

appellant’s claim to include strain and laceration of muscles and tendons of peroneal muscle group 

of the lower left leg and laceration of muscle and tendon of the peroneal muscle group at the lower 

left leg. Appellant worked intermittent modified-duty work until January 11, 2018 when Dr. John J. 

Stapleton, a podiatrist, performed authorized repair of a left peroneal brevis split tear and fibular 

groove deepening. OWCP paid her wage-loss compensation on the supplemental rolls from 

January 20 through April 13, 2018. Appellant returned to full-time, modified-duty work on 

April 17, 2018.6

A July 24, 2018 magnetic resonance imaging (MRI) scan of the left ankle revealed 

postsurgical changes, no other tendon or ligament injury, and a stable osteochondral injury along 

the posterior dome of the talus.

In a July 25, 2018 progress note, Dr. Stapleton noted that appellant had twisted her left ankle 

on June 12, 2018 and subsequently had persistent left ankle pain that was increasing in intensity.

Left ankle examination demonstrated tenderness over the peroneal tendon, laxity of the peroneal 

tendon with hypermobility, instability to the contralateral ankle, and mild edema. Dr. Stapleton 

diagnosed acute left ankle pain, osteochondral defect, and tendinosis. In an unsigned 

correspondence of even date, he noted that appellant was under his care and advised thatshe should 

not work due to medical illness.

In a July 30, 2018 report, Dr. Daniel Fuchs, an orthopedic surgeon, noted the history of 

appellant’s June 15, 2017 work injury. He described her medical and surgical history, and noted 

4 Docket No. 19-1456 (issued July 14, 2020).

5 On November 24, 2017 appellant filed a Form CA-1 alleging that on that date she twisted her left ankle as she 

stepped off the sidewalk while in the performance of duty. OWCP assignedOWCP File No. xxxxxx563. By decision 

dated January 8, 2018, it denied appellant’s traumatic injury claim,finding that the evidence of record was insufficient 

to establish that the injury and/or events occurred as she described. OWCP explained that she had not submitted factual 

evidence to support that she experienced a work-related injury on November 24, 2017. 

6 Appellant signed an offer of modified limited-duty assignment on April17, 2018. The duties of the position were 

one to two hours each casing mail, administrative duties, and working undeliverable mail with two hours 

delivering/carrying mail. Appellant was restricted to two hours each, standing, walking, and delivering.
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her complaint of persistent pain and swelling in the area of the peroneal tendons status post tendon 

repair, and that she had a mild aggravation the previous month when she rolled her left ankle.

Dr. Fuchs indicated that a July 2018 MRI scan demonstrated a small posterolateral osteochondral 

lesion of the talar dome. Findings on left ankle examination included intact sensation to light touch, 

a well-healed surgical incision of the peroneal tendons, mild swelling, and tenderness to palpation.

Dr. Fuchs diagnosed left lower extremity peroneal tendinitis and recommended immobilization in a 

controlled ankle movement (CAM) boot and physical therapy. He advised that appellant was 

disabled from work. On a form report of same date Dr. Fuchs diagnosed left peroneal tendon tear, 

recommended a CAM boot, weight bearing as tolerated, and advised that appellant could return to 

modified sedentary work.

On July 31, 2018 appellant filed a notice of recurrence (Form CA-2a). She indicated that 

the recurrence began on July 18, 2018 due to left ankle pain and weakness, and that it was causally 

related to her accepted June 15, 2017 employment injury. Appellant stopped work on July 30, 2018.

By decision dated October 19, 2018, OWCP denied appellant’s claim, finding that she had 

notsustained a recurrence of disability commencing July 30, 2018 causally related to her June 15, 

2017 employment injury.

On October 31, 2018 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review.

In procedure notes dated November 5, 2018 and January 7, 2019, Dr. Stapleton treated

appellant in follow up. He opined that her current condition was clearly related to the initial work 

injury, noting that, after she had repair of her peroneal brevis tendon, her symptoms continued and 

were secondary to tendinosis and scarring from this repair and that she required revision surgery. 

On March 4, 2019 Dr. Stapleton noted that appellant was doing well, but had a complaint of mild, 

intermittent pain over the medial aspect of her left ankle, worsened with extended activity, and that 

ankle range of motion was still limited due to pain. He diagnosed status post-surgery and a lowgrade osteochondral defect. Dr. Stapleton reiterated his opinion that appellant’s current condition 

was due to the June 15, 2017 employment injury.

In an April 10, 2019 report, Dr. Mitchell E. Cooper, a Board-certified orthopedic surgeon, 

noted appellant’s complaint of a two-year history of left ankle pain with current complaints of lateral 

midfoot pain, aggravated by direct pressure and weight bearing. He noted the September 27, 2018 

surgery and that appellant reported that she had twisted her ankle the previous week and had 

increased pain since that time. Dr. Cooper reviewed the July 24, 2018 left ankle MRI scan and 

advised that he was not sure that appellant was symptomatic from osteochondritis dissecans.

By decision dated May 29, 2019, OWCP’s hearing representative affirmed the October 19, 

2018 decision.

On June 25, 2019 appellant, through counsel, appealed to the Board. By decision dated

July 14, 2020, the Board set aside the May 29, 2019 decision and remanded the case for further 

medical development. The Board found Dr. Stapleton’s opinion sufficient to require further 
4

development of the medical evidence. The Board further instructed OWCP to administratively 

combine OWCP File No. xxxxxx157 and File No. xxxxxx563.7

OWCP received additional evidence. On May 24, 2019 Dr. Cooper treated appellant in 

follow up for left ankle pain, which she attributed to an injury in June 2017. He noted that she was 

status post peroneal brevis to longus transfer with tenodesis performed on September 27, 2018. 

Dr. Cooper diagnosed persistent left ankle pain, deep ankle pain slightly lateral, and small 

osteochondritis dissecans (OCD) post lateral talus. He continued appellant’s work restrictions.

On March 2, 2021 OWCP referred appellant, the case record and a SOAF for a second 

opinion examination to Dr. Noubar A. Didizian, a Board-certified orthopedic surgeon. It requested 

that Dr. Didizian evaluate appellant’s current disability status in connection with the June 15, 2017 

date of injury and need for treatment medically connected to this injury. 8

In a March 18, 2021 report, Dr. Didizian discussed appellant’s factual and medical history 

and reported physical examination findings. Examination of both ankles revealed no synovitis, 

effusion, or crepitation, full range of motion of both ankles, intact peripheral pulses, no atrophic 

changes, intact sensation in both ankles, reflexes present and equal, and negative pivot test of the 

left ankle. Dr. Didizian diagnosed sprain of the calcaneofibular ligament, left ankle, strain of 

muscles and tendons of the peroneal muscle group at lower left leg, laceration of the muscles and 

tendons of the peroneal muscle group, and osteochondritis dissecans. He noted that the June 15, 

2017 employment injury did not cause or aggravate an additional left ankle condition causing 

surgery on September 27, 2018 and did not cause recurrent employment-related disability. 

Dr. Didizian noted that appellant currently worked as a postmaster with no difficulty and opined 

that she would not be able to go back to her original job because of multiple surgeries and ongoing 

symptomology. He indicated that appellant continued to have residuals of her work-related injury 

and was not fully recovered. In a work capacity evaluation (Form OWCP-5c), Dr. Didizian noted 

appellant could perform light-duty work with restrictions on standing, walking, pushing, pulling, 

and lifting.

By decision dated May 6, 2021, OWCP expanded the acceptance of appellant’s claim to 

include osteochondritis dissecans of the left ankle.

By a second decision dated May 6, 2021, OWCP denied appellant’s recurrence claim, 

finding that she did not sustain a recurrence of disability commencing July 30, 2018 causally related 

to her June 15, 2017 employment injury. It found that the weight of the medical evidence rested 

with Dr. Didizian, the OWCP referral physician.

LEGAL PRECEDENT

OWCP’s implementing regulations define a recurrence of disability as an inability to work 

after an employee has returned to work, caused by a spontaneous change in a medical condition, 

7 OWCP administratively combined OWCP File No. xxxxxx157 and OWCP File No. xxxxxx563, with the former 

serving as the master file, in accordance with the Board’s decision dated July 14, 2020.

8 OWCP received additional evidence. Appellant attended physical therapy treatment on January 14 through 

23, 2020. Also submitted was a September 9, 2020 pathology report for a thigh biopsy.
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which resulted from a previous injury or illness without an intervening injury or new exposure to 

the work environment.9

An employee who claims a recurrence of disability due to an accepted employment-related 

injury has the burden of proof to establish by the weight of the substantial, reliable, and probative 

evidence that the disability for which he or she claims compensation is causally related to the 

accepted injury. 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 Where no such rationale is present, 

the medical evidence is of diminished probative value.11

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.12

ANALYSIS

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

Initially, the Board notes that it is unnecessary to consider the evidence appellant submitted 

prior to the issuance of OWCP’s May 29, 2019 decision, which was considered by the Board in its 

July 14, 2020 decision. Findings made in prior Board decisions are res judicata absent further merit 

review by OWCP under section 8128 of FECA.13

In a March 18, 2021 report, second opinion physician, Dr. Didizian, conducted an 

examination of both ankles and reported no abnormalities. He diagnosed sprain of the 

calcaneofibular ligament, left ankle, strain of muscles and tendons of the peroneal muscle group at 

lower left leg, laceration of the muscles and tendons of the peroneal muscle group, and 

osteochondritis dissecans. Dr. Didizian noted that the June 15, 2017 employment injury did not 

cause or aggravate an additional left ankle condition resulting in surgery on September 27, 2018,

and did not cause recurrent employment-related disability. He noted that appellant currently worked 

as a postmaster with no difficulty and opined that she would not be able to go back to her original 

job because of multiple surgeries and ongoing symptomology. Dr. Didizian opined that appellant 

continued to have residuals of her work-related injury and was not fully recovered. In a Form 

9

20 C.F.R. § 10.5(x).

10 See J.S.,Docket No. 19-1035 (issued January 24, 2020).

11 Id.

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June2013); D.T., Docket 

No. 19-1064 (issued February 20, 2020).

13 C.M., Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
6

OWCP-5c, he noted that appellant could perform light-duty work with restrictions on standing, 

walking, pushing, pulling, and lifting.

Dr. Didizian, however, provided only conclusory responses to the questions posed by 

OWCP with regard to whether appellant sustained a recurrence of disability on July 30, 2018 due 

to a material change or worsening of her June 15, 2017 employment injury; whether she sustained 

an aggravation of her accepted injury; and/or whether the September 27, 2018 left ankle surgery 

was related to her work injury.

14

 The Board has held that a report is conclusory and of limited 

probative value regarding causal relationship if it does not contain medical rationale.15 As

Dr. Didizian did not provide a rationalized medical opinion explaining how the claimed recurrence 

was causally related to the accepted June 15, 2017 employment injury, his report was insufficient 

to establish causal relationship. 

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. 16 

While the claimant has the responsibility to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence. It has the obligation to see that justice is done.17 

Accordingly, once OWCP undertakes to develop the medical evidence further, it has the 

responsibility to do so in a manner that will resolve the relevant issues in the case.18

On remand OWCP shall provide an updated SOAF request a supplemental report from

Dr. Didizian thoroughly addressing the issues and providing medical rationale in support of his 

opinion. Following any necessary further development, OWCP shall issue a de novo decision.

CONCLUSION

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

14 See D.M., Docket No. 19-1181 (issued December 2, 2019). See alsoP.R., Docket No. 19-1313 (issued August 11, 

2020); see also S.S., Docket No. 18-0397 (issued January 15, 2019).

15 See R.W., Docket No. 19-1733 (issued April13, 2021); D.W., Docket No. 18-1139 (issued May21, 2019); Y.D.,

Docket No. 16-1896 (issued February 10, 2017).

16 N.L., Docket No. 19-1592 (issued March 12, 2020); M.T.,Docket No. 19-0373 (issued August22, 2019); B.A.,

Docket No. 17-1360 (issued January 10, 2018).

17 Id.;see also DonaldR. Gervasi, 57 ECAB 281, 286 (2005); WilliamJ. Cantrell, 34 ECAB 1233, 1237 (1983).

18 T.K., Docket No. 20-0150 (issued July 9, 2020); T.C.,Docket No. 17-1906 (issued January10, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the May 6, 2021 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings co nsistent 

with this decision of the Board.

Issued: March 2, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board