United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.S., Appellant

and

U.S. POSTAL SERVICE, MERRIFIELD POST 

OFFICE, Merrifield, VA, Employer

__________________________________________

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Docket No. 23-0343

Issued: August 14, 2023

Appearances: Case Submitted on the Record

Wayne Johnson, 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 January 10, 2023 appellant, through counsel, filed a timely appeal from a July 14, 2022 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

Federal Employees’ Compensation Act3(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 The Board notes that a December 21, 2022 decision is also within the Board’s jurisdiction. However, appellant, 

through counsel, has only sought appeal from the July 14, 2022 decision. Thus, the December 21, 2022 decision is 

not properly before the Board and will not be addressed in this decision. See 20 C.F.R. § 501.3.

3

5 U.S.C. § 8101 et seq.
2

ISSUE

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

disability, commencing December 2, 2020, causally related to her accepted January 17, 2019 

employment injury.

FACTUAL HISTORY

On January 24, 2019 appellant, then a 27-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on January 17, 2019 she sustained an injury to her left 

ankle when she twisted her left ankle descending steps on her delivery route and fell to the ground 

while in the performance of duty. She stopped work on January 17, 2019. OWCP accepted 

appellant’s claim for left ankle sprain and tarsal tunnel syndrome of the left foot. It paid her wageloss compensation on the supplemental rolls, effective March 5, 2019, and on the periodic rolls, 

effective February 2, 2020.

An October 24, 2019 magnetic resonance imaging (MRI) scan of appellant’s left ankle 

revealed trace fluid in the tibiotalar and subtalar joints with no significant tear or sprain of the 

ligaments of the ankle and no acute displaced fracture or dislocation. 

On March 11, 2020 Dr. Jay D. Ryan, a podiatrist, performed OWCP-authorized left ankle 

surgery, including anterior ankle arthroscopy with debridement of synovitic tissue, posterior ankle 

arthroscopy with debridement of synovitic tissue, and excision of os trigonum. 

On September 25, 2020 OWCP referred appellant and the case record, including a 

statement of accepted facts (SOAF) and a series of questions, for a second opinion examination 

and evaluation with Dr. Chester DiLallo, a Board-certified orthopedic surgeon. It requested that 

he provide an opinion on her employment-related condition and her ability to work. 

In an October 27, 2020 report, Dr. DiLallo discussed appellant’s factual and medical 

history and reported the findings of his physical examination. He diagnosed neurapraxia of the 

left ankle posterior tibial nerve, contractures of the left ankle external ligamentous complex, and 

status postarthroscopic surgery of the left ankle. In a November 1, 2020 work capacity evaluation 

(Form OWCP-5c), Dr. DiLallo indicated that appellant could work for 8 hours per day, with 

restrictions from sitting and walking more than 2.6 hours, and pushing, pulling, or lifting more 

than 20 pounds. Appellant could not engage in squatting or climbing. 

Appellant returned to full-time modified work on December 1, 2020 in a position with 

work restrictions that were in accordance with those recommended by Dr. DiLallo. She worked 

that day and stopped work on December 2, 2020. Appellant later claimed that she sustained a 

recurrence of disability on December 2, 2020 causally related to the accepted January 17, 2019 

employment injury. 

In a January 29, 2021 development letter, OWCP informed appellant of the deficiencies in 

her recurrence claim. It advised her of the factual and medical evidence necessary to establish her 

claim and provided a questionnaire. OWCP afforded appellant 30 days to respond.

In a February 8, 2021 statement, appellant indicated that her left foot/ankle symptoms had 

progressively worsened. 
3

Appellant submitted a December 11, 2020 report, from Dr. Ryan who reported physical 

examination findings, noting that she had 5/5 strength in her lower extremity muscle groups. 

Dr. Ryan indicated that she exhibited limitations of range of motion in the left ankle. He noted 

that appellant reported that she tried to work for 2 hours and 49 minutes, and experienced worse 

pain. Dr. Ryan diagnosed arthralgia of the left foot and neuropathy, neuritis, and edema of the left 

ankle. On February 4, 2021 he diagnosed arthralgia of the left foot and neuritis of the left ankle. 

In a February 8, 2021 report, Dr. Ryan diagnosed left metatarsophalangeal joint sprain and, in a 

February 9, 2021 note, he ordered diagnostic testing.

In a February 16, 2021 duty status report (Form CA-17), Dr. Ryan indicated that there was 

no change in appellant’s condition with respect to work restrictions, and noted, “Cont[inue] same 

restrictions as on file from Dr. DiLallo.” In an attending physician’s report (Form CA-20) of the 

same date, he indicated, “Same restrictions as per Dr. DiLallo on [January 1, 2020].” In an undated 

narrative report received by OWCP on February 16, 2021 Dr. Ryan advised that appellant should 

remain under Dr. DiLallo’s restrictions from January 2020.

OWCP referred appellant and the case record, including a SOAF and a series of questions, 

for a second opinion examination and evaluation with Dr. John C. Barry, a Board-certified 

orthopedic surgeon. It requested that he provide an opinion on her employment-related condition 

and her ability to work. In a March 9, 2021 report, Dr. Barry maintained that appellant’s accepted 

January 17, 2019 employment-related conditions, i.e., left ankle sprain and tarsal tunnel syndrome,

had resolved.

By decision dated April 16, 2021, OWCP denied appellant’s claim for a recurrence of 

disability, finding that the medical evidence of record was insufficient to establish a worsening of 

her accepted January 17, 2019 employment injury such that she was disabled from her work duties 

commencing December 2, 2020. 

On June 14, 2021 appellant returned to work in a full-time position. 

On April 16, 2022 appellant, through counsel, requested reconsideration of her claim.

Appellant submitted July 8, 2021 and May 19, 2022 reports, from Dr. Eric G. Dawson, a 

Board-certified orthopedic surgeon, who reported her symptoms and detailed physical 

examination findings. In the May 19, 2022 report, Dr. Dawson indicated that it was appropriate 

for her to be in “light[-]duty status.” In August 25, 2021 and June 13, 2022 reports, he discussed 

schedule award ratings for lower extremity permanent impairment. 

Appellant also submitted numerous records from a March 2020 hospitalization, and other 

medical records produced between late-2019 and mid-2020.

By decision dated July 14, 2022, OWCP denied modification of its April 16, 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 exposu re in the work 
4

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

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.7 Where no such rationale is present, 

the medical evidence is of diminished probative value.8

When an employee who is disabled from the job he or she held when injured on account 

of employment-related residuals returns to a limited-duty position or the medical evidence of 

record establishes that he or she can perform the limited-duty position, the employee has the burden 

of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence 

of total disability and to show that he or she cannot perform such limited-duty work.9 As part of 

this burden, the employee must show a change in the nature and extent of the injury -related 

condition, or a change in the nature and extent of the limited-duty job requirements.10

4

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

5

Id.

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket 

No. 18-0533 (issued August 27, 2018).

7

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

8 H.T., Docket No. 17-0209 (issued February 8, 2018).

9

See D.W., Docket No. 19-1584 (issued July 9, 2020); S.D., Docket No. 19-0955 (issued February3, 2020); 

Terry R. Hedman, 38 ECAB 222 (1986).

10 C.B., Docket No. 19-0464 (issued May 22, 2020); Terry R. Hedman, id.; R.N., Docket No. 19-1685 (issued 

February 26, 2020).
5

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that she 

sustained a recurrence of disability, commencing December 2, 2020, causally related to the 

accepted January 17, 2019 employment injury.

In a December 11, 2020 report, Dr. Ryan reported physical examination findings, and

diagnosed arthralgia of the left foot and neuropathy, neuritis, and edema of the left ankle. He noted

that appellant reported that she tried to work for 2 hours and 49 minutes and experienced worse 

pain. On February 4, 2021 Dr. Ryan diagnosed arthralgia of the left foot and neuritis of the left 

ankle. In a February 8, 2021 report, he diagnosed left metatarsophalangeal joint sprain and, in a 

February 9, 2021 note, he ordered diagnostic testing. However, Dr. Ryan did not provide an 

opinion on appellant’s ability to work or disability from work in these reports. The Board has held 

that medical evidence that does not offer an opinion regarding the cause of an employee’s 

condition or disability is of no probative value on the issue of causal relationship .

11

 Therefore, 

these reports are insufficient to establish appellant’s claim.

In a February 16, 2021 Form CA-17, Dr. Ryan indicated that there was no change in 

appellant’s condition with respect to work restrictions and noted, “Cont[inue] same restrictions as 

on file from Dr. DiLallo.” In a Form CA-20 of the same date, he indicated, “Same restrictions as 

per Dr. DiLallo on [January 1, 2020].” In an undated narrative report received by OWCP on 

February 16, 2021 Dr. Ryan advised that appellant should remain under Dr. DiLallo’s restrictions 

from January 2020. However, these reports show no change in appellant’s work restrictions from 

the time she was last working, and thus would not demonstrate a worsening of her work-related 

left foot/ankle condition such that she sustained a recurrence of disability. Therefore, these reports 

also are insufficient to establish her claim. 

Appellant submitted July 8, 2021 and May 19, 2022 reports from Dr. Dawson who 

reported her symptoms and detailed physical examination findings. In the May 19, 2022 report,

Dr. Dawson indicated that it was appropriate for her to be in “light[-]duty status.” In August 25, 

2021 and June 13, 2022 reports, he discussed schedule award ratings for lower extremity 

permanent impairment. However, these reports do not contain an opinion that appellant sustained 

a recurrence of disability on or after December 2, 2020 causally related to the accepted January 17, 

2019 employment injury. As noted above, medical evidence that does not offer an opinion 

regarding the cause of an employee’s condition or disability is of no probative value on the issue 

of causal relationship.

12

 Therefore, these reports are insufficient to establish appellant’s claim.

Appellant submitted numerous records from a March 2020 hospitalization, and other 

medical records produced between late-2019 and mid-2020. However, these reports do not relate 

to the period of her claimed recurrence of disability. Therefore, these reports are of no probative 

value and are insufficient to meet appellant’s burden of proof. 

11 See F.S., Docket No. 23-0112 (issued April26, 2023); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., 

Docket No. 17-1549 (issued July 6, 2018).

12 Id.
6

Appellant also submitted a March 9, 2021 report of Dr. Barry, an OWCP referral physician. 

However, Dr. Barry provided an opinion that her accepted January 17, 2019 work-related 

conditions, i.e., left ankle sprain and tarsal tunnel syndrome, had resolved. Therefore, this report 

is of no probative value and insufficient to meet appellant’s burden of proof.

As the medical evidence of record is insufficient to establish a recurrence of disability,

commencing December 2, 2020, causally related to the accepted January 17, 2019 employment 

injury, the Board finds that appellant has not met her burden of proof to establish a recurrence claim.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607. 

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish a recurrence of 

disability, commencing December 2, 2020, causally related to her accepted January 17, 2019 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the July 14, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 14, 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