United States Department of Labor

Employees’ Compensation Appeals Board

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P.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION AND CUSTOMS 

ENFORCEMENT, ENFORCEMENT AND 

REMOVAL OPERATIONS, New York, NY, 

Employer

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Docket No. 23-0845

Issued: November 15, 2023

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 5, 2023 appellant, through counsel, filed a timely appeal from a February 8, 2023 

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.

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

ISSUE

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

intermittent disability commencing August 2, 2017, causally related to his accepted July 12, 2016 

employment injury.

FACTUAL HISTORY

On July 23, 2018 appellant, then a 29-year-old deportation officer, filed an occupational 

disease claim (Form CA-2) alleging that he developed an emotional condition causally related to 

factors of his federal employment. He indicated that he first became aware of the condition on 

July 12, 2016, and he realized that the condition was caused or aggravated by his federal 

employment on July 12, 2018. Appellant explained that on July 12, 2016 he worked the nightshift

and drove to pick up a detainee in gridlocked traffic. His supervisor repeatedly called him while 

he was in gridlocked traffic to tell him that he had to drive back to an airport to handle an arriving 

flight, which required him to remain on duty and work overtime. 

In an August 1, 2018 statement, appellant described his duties involving driving to pick up 

detainees in county jails in different states and up to 60 miles away. He further explained that in 

January or February 2017 he was reassigned from the transportation section to the docket section, 

where he was assigned a case load of around 4,000 cases and, in the third week of July 2017, about 

10,000 additional cases were added to his docket.

On August 2, 2017 appellant stopped work. He returned to work in September 2017. 

Appellant noted that in September 2017 he was moved to another work location where he had a 

case load of around 64 cases instead of thousands.

Following further development, OWCP prepared an April 3, 2019 statement of accepted 

facts (SOAF) and accepted as factual appellant’s allegations regarding his work on July 12, 2016

and his allegations regarding his case load following his transfer in early 2017 to in the docket 

section. The April 3, 2019 SOAF noted that appellant was hospitalized twice in the past due to 

his mood disorder related to bipolar disorder.

On May 17, 2019 OWCP referred appellant to Dr. Ravinder Bhalla, a Board-certified 

psychiatrist, for a second opinion examination. It asked Dr. Bhalla to address whether the accepted 

factors of employment caused or aggravated appellant’s medical condition, and if so, to 

characterize appellant’s current disability status. 

In a report dated June 12, 2019, Dr. Bhalla noted appellant’s current job duties and his 

current examination findings regarding mental status. He indicated that appellant had experienced 

emotional problems since childhood, and had been diagnosed with bipolar disorder. Dr. Bhalla

opined that while appellant was working his work conditions and demands had exacerbated his 

bipolar disorder and he had been temporarily disabled due to work-related stresses, which included 

nightshift work and overtime work. He further opined that after appellant’s employment-related 

stress was accommodated, he still could not concentrate due to his preexisting condition. Despite 

these accommodations, appellant’s workload and work conditions were too difficult for him to 

cope due to his bipolar disorder. Work conditions and his psychiatric condition interacted in a 
3

way that he was not successful. Appellant’s employment-related condition was therefore a 

mismatch of his psychiatric disorder and the work he was expected to do. The exacerbation of his 

bipolar disorder continued even after the employment-related stresses had been accommodated. 

Dr. Bhalla opined that appellant “is disabled due to bipolar disorder, not directly related to the 

accepted factors of employment listed in the SOAF, but the demands of his work are too stressful 

that these contribute and exacerbate his symptoms.”

By decision dated July 15, 2019, OWCP accepted the claim for aggravation of bipolar 

disorder. The acceptance was based upon the June 12, 2019 second opinion report from

Dr. Bhalla.

OWCP continued to receive evidence. In a September 1, 2017 note, Dr. Paul Gordon a

Board-certified internist specializing in cardiology, indicated that appellant needed a flexible work 

schedule, and that he needed to work closer to home. He asked that appellant be excused from 

work from September 1 through 15, 2017. 

Appellant was hospitalized from September 14 through October 5, 2017 for bipolar 

disorder. In a note dated October 6, 2017, Dr. Shimon Schwartz, a Board-certified psychiatrist, 

related that appellant had been hospitalized from September 15 through October 5, 2017. He 

requested that appellant be excused from work during this time. 

In an August 14, 2019 report, Dr. Gusta Shurdut, a Board-certified psychiatrist, indicated 

that appellant had been seen at a psychiatric outpatient clinic since May 2018 for treatment of 

bipolar disorder, and that he had been her patient since July 2019. She explained that bipolar 

disorder can restrict the speed of thought processes (while at work) and cause interference while 

staying focused if the volume of work was very large. Dr. Shurdut opined that his work-related 

job duties overwhelmed appellant and exacerbated his condition. Due to a work-related 

aggravation of appellant’s bipolar disorder, Dr. Shurdut opined that appellant was totally disabled

from work on August 24, August 28 through 31, September 18 through 22, September 25 through 

29, October 2 through 10, October 11 through 13, October 16 through 20, October 23 through 27,

and October 30, 2017.

In a December 16, 2019 report, Dr. Martin A. Hurwitz, a Board-certified psychiatrist,

reported that appellant was referred to him by a psychiatric clinic for continued treatment of 

appellant’s bipolar disorder. He noted that appellant was diagnosed with this disorder over 10 

years ago, and had been treated with psychopharmacological regimen and psychotherapeutically 

with various modalities for a considerable period of time. After reviewing medical reports by 

appellant’s previous psychiatrist and current therapist and having conducted a thorough history,

Dr. Hurwitz opined that appellant’s condition was greatly exacerbated by his work environment. 

Particularly detrimental to appellant’s condition was mandatory overtime with unsustainable 

workloads. Dr. Hurwitz noted that appellant’s requests for accommodation were met with hostility 

from supervisors (i.e., 12,000 additional cases assigned to appellant), which he opined was a 

retaliatory event. He noted that appellant was currently totally disabled and not able to perform 

the regular duties of his occupation, and that it was not clear at this point whether a change in the 

work environment would be beneficial. 
4

OWCP received forms dated from January 31, 2020 onward from a licensed social worker, 

bearing an illegible signature which noted appellant’s continued psychiatric treatment for bipolar 

disorder. 

The record reflects that on June 26, 2020 appellant’s application for disability retirement 

was approved by the Office of Personnel Management. 

On September 3, 2020 OWCP received two notices of recurrence (Form CA-2a) for 

recurrences on August 2, 2017, and September 11, 2017, wherein appellant claimed disability from 

work due to a change or worsening of his accepted work-related condition. Appellant alleged that 

his symptoms returned spontaneously without any intervening cause. The first form indicated that 

he had stopped work on August 2, 2017, and returned on September 5, 2017. The second form 

indicated that appellant stopped work again on September 11, 2017, and returned on 

December 13, 2017. 

In a developmental letter dated September 24, 2020, OWCP provided the definition of a 

recurrence of disability. It advised appellant of the type of factual and medical evidence necessary 

to establish his claim, provided a questionnaire for his completion, and afforded him 30 days to 

submit additional evidence.

In response, OWCP received a November 9, 2020 report from Dr. Hurwitz who reviewed 

appellant’s medical records and opined that appellant’s work environment, particularly the 

assignment of 10,000 additional cases, severely exacerbated appellant’s bipolar disorder,for which 

he has had two prior psychiatric hospitalizations. Dr. Hurwitz explained that this exacerbation 

was the reason appellant was disabled, because the manner in which his workload was scheduled 

made it impossible to regulate his sleep with any of the medications commonly used to treat bipolar 

disorder. That factor alone made the recurrence of a manic episode more likely. Dr. Hurwitz also 

opined that appellant was currently totally and permanently disabled and required twice weekly 

psychotherapy and a constant regulation of his psychopharmacological regimen.

By decision dated April 30, 2021, OWCP denied appellant’s recurrence claim. It found 

that it had not received sufficient evidence to establish that the accepted condition worsened as of 

August 2, 2017, without intervening cause, such that he became totally disabled from work.

On May 25, 2021 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review, which was held on September 9, 2021. He provided an additional 

statement and submitted additional medical reports. In a September 14, 2017 emergency 

department note, Dr. Rose Anna Roantree, an osteopath Board-certified in emergency medicine, 

diagnosed bipolar 1 disorder. 

In an undated report, Dr. Shurdut discussed how bipolar disorder can limit major life 

activities. She indicated, per appellant, that his work became problematic when he began 

experiencing continual stress during the performance of his job duties, and was then assigned to 

monitor over 10,000 cases. Dr. Shurdut noted that appellant had a history of testing modifications 

and could not successfully complete this task. She explained that, as part of a mood disorder 

diagnosis, appellant periodically requires extra time to complete tasks. Dr. Shurdut opined that 

appellant’s disability was permanent.
5

In an October 4, 2021 report, Dr. Hurwitz opined that appellant’s ongoing difficulties from 

2017 to the present were directly related to the work duties he described, and which overwhelmed 

him causing manic episodes in 2017 that required hospitalization. He indicated that the medical 

records showed that appellant was experiencing work stress in 2016 and 2017, and it was only 

after those work stressors became severe that he required in-patient treatment and changes in his 

medications. Dr. Hurwitz noted that appellant was hospitalized in September, October, and 

November 2017 and opined that those hospitalizations were directly attributable to his workrelated circumstances and were necessary for treatment of the manic episodes that were caused by 

his assigned duties. He noted that although appellant attempted to return to work, he still had 

difficulty concentrating, sleep problems, and continued to have a difficult time functioning. 

Dr. Hurwitz indicated that bipolar disorder is treated on an individual basis and even now, several 

years after appellant’s stress resulted in hospitalizations, he was not sure that appellant was capable 

of any gainful employment. Thus, he opined that the aggravation of appellant’s bipolar disorder 

was permanent.

By decision dated November 23, 2021, an OWCP hearing representative affirmed 

OWCP’s April 30, 2021 decision. 

On November 21, 2022 appellant, through counsel, requested reconsideration. 

In an undated report, Dr. Nader Okby, a Board-certified anatomic and clinical pathologist, 

indicated that he had been in regular contact with Dr. Cesar Rojas, appellant’s attending 

psychiatrist, while appellant was hospitalized from September to October 2017. He recalled 

significant work stressors and appellant’s perseveration on tensions at his place of employment, 

including a very heavy caseload on top of a hectic schedule and midnight duties, which he opined 

led to detrimental effects compounded by underlying mental illness. Dr. Okby opined that a mere 

shift change would not improve appellant’s mental condition. He noted that at no time was there 

any indication that appellant’s condition and hospitalizations were solely related to personal 

relationships.

By decision dated February 8, 2023, OWCP denied modification of its November 23, 2021 

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.3

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 

3

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

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

injured.4

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.5 Where no such rationale is present, 

the medical evidence is of diminished probative value.6

ANALYSIS

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

In his June 12, 2019 second opinion report, Dr. Bhalla opined that appellant’s bipolar 

disorder was exacerbated while he was working, and that he had been temporarily disabled due to 

work-related stresses. He further opined that the exacerbation of appellant’s bipolar disorder had 

continued even after the employment-related stresses had been accommodated. Dr. Bhalla, 

however, was not asked to address and he did not specifically discuss the dates appellant was 

disabled due to the accepted factors of employment. 

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

is not a disinterested arbiter. The claimant has the burden of proof to establish entitlement to 

compensation. However, OWCP shares responsibility in the development of the evidence to see 

that justice is done.7 Once it undertakes development of the record, OWCP must do a complete 

job in procuring medical evidence that will resolve the relevant issues in the case. 8

OWCP shall prepare an updated SOAF and obtain a supplemental opinion from Dr. Bhalla, 

or if Dr. Bhalla is unavailable, from another physician in the appropriate field of medicine, to 

determine whether appellant’s intermittent disability from work commencing August 2, 2017 was 

causally related to his accepted employment conditions. Following this and other such further 

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

4 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

J.D., Docket No. 18-0616 (issued January 11, 2019).

6 G.G., Docket No. 18-1788 (issued March 26, 2019).

7

See C.L., Docket No. 20-1631 (issued December 8, 2021); J.C., Docket No. 20-0064 (issued September 4, 2020);

L.B., Docket No. 19-0432 (issued July 23, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

8

Id.;see also J.C., Docket No. 21-1216 (issued April19, 2022); S.A., Docket No. 18-1024 (issued March 12, 2020).
7

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the February 8, 2023 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: November 15, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board