United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.A., Appellant

and

U.S. POSTAL SERVICE, CHANTILLY POST 

OFFICE, Chantilly, VA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 23-0483

Issued: December 26, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

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 February 15, 2023 appellant filed a timely appeal from a January 4, 2023 merit decision 

and two January 20, 2023 merit decisions 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. 2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 20, 2023 decisions, appellant submitted additional evidence to the 

Board on appeal. 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 evidence for the first time on appeal. Id.
2

ISSUE

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

disability from work commencing September 21, 2022, causally related to his accepted 

employment injury.

FACTUAL HISTORY

On August 9, 2014 appellant, then a 57-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on that day he sustained neck, back, and left shoulder 

injuries when he loaded trays of mail into his long-life vehicle while in the performance of duty. 

He stopped work on the date of injury. OWCP accepted the claim for a right shoulder rotator cuff 

tear.3 It paid appellant compensation on the supplemental rolls, effective October 4, 2014. On 

December 12, 2014 appellant underwent OWCP-authorized right shoulder arthroscopy, 

once-anchor superior labrum anterior to posterior tear, subacromial bursectomy, four-anchor 

rotator cuff repair, and right shoulder biceps tenodesis. He remained off work. 

On February 19, 2016 OWCP obtained a second opinion on the nature and extent of the 

accepted conditions by Dr. Chester Dilallo, a Board-certified orthopedic surgeon, who found 

appellant able to perform modified work as of April 16, 2015. In an accompanying work capacity 

evaluation (Form OWCP-5c) dated February 19, 2016, he found appellant able to perform fulltime work with permanent restrictions against reaching, reaching above shoulder level, or 

operating a motor vehicle. Dr. Dilallo permanently restricted driving to and from work to two 

hours a day, limited pulling and pushing to 20 pounds, and limited lifting to 30 pounds. 

OWCP paid appellant compensation on the periodic rolls, effective April 3, 2016. 

Appellant returned to work on September 19, 2016, in a modified position as a webcam 

observer at the employing establishment. The position required sitting, intermittent fine 

manipulation, and intermittent simple grasping for up to eight hours per day. 

On October 11, 2017 OWCP expanded the acceptance of appellant’s claim to include left 

biceps tendon tear and lumbar strain. 

On October 12, 2017 OWCP granted appellant a schedule award for 14 percent permanent 

impairment of the right upper extremity. The period of the award ran for 43.68 weeks from 

February 7 through December 19, 2017. 

Appellant again stopped work on January 24, 2018. 

3 Prior to the present claim, under OWCP File No. xxxxxx791, OWCP accepted that on January 26, 2011 appellant 

sustained sprains of the right elbow, forearm, and ulnar collateral ligament, synovitis and tenosynovitis of the right 

elbow, and a lumbar sprain when he slipped on ice and fell backwards while in the performance of duty. On July 26, 

2011 appellant underwent OWCP-authorized resection and repair of right medial elbow tendinosis, partial medial 

condylectomy with removal of major osteophytic spur, ulnar nerve decompression, and a Nirschl procedure. On 

October 20, 2017 OWCP administratively combined OWCP File Nos. xxxxxx791 and xxxxxx432, with the latter 

designated as the master file. 
3

In a January 25, 2018 form report, Dr. Homaira Behsudi-Walli, Board-certified in family 

practice, recounted appellant’s symptoms of right acromioclavicular joint pain with limited 

motion. She diagnosed a right rotator cuff tear and held appellant off work. 

In a June 17, 2019 report, Dr. Taeho Kim, a Board-certified internist, diagnosed a complex 

right rotator cuff and biceps tendon tear. He found that appellant had reached maximum medical 

improvement (MMI) on February 19, 2016. 

On November 6, 2019 OWCP expanded the acceptance of appellant’s claim to include 

right ulnar collateral ligament sprain, right radial collateral ligament sprain, and other synovitis 

and tenosynovitis of the right upper extremity. 

On September 21, 2020 appellant accepted a full-time modified-duty positionas a webcam 

observer at a new employing establishment office. The position required observing webcams and 

calling or sending e-mails about alerts and failures for up to eight hours a day. The physical 

demands included sitting, fine manipulation, and simple grasping for up to eight hours a day. 

In reports dated November 6, 2020, Dr. Kim recounted appellant’s increased right shoulder 

and lumbar pain symptoms. He administered an intra-articular injection to the right shoulder. 

Dr. Kim diagnosed a suspected exacerbation of underlying tendinitis/arthritis of the right shoulder, 

and chronic low back pain due to lumbar degenerative disc disease and lumbar strain. 

Appellant continued performing the modified-duty position at the new employing 

establishment office. OWCP paid him wage-loss compensation on the supplemental rolls for

intermittent work absences from January 2, 2021 through September 17, 2022. 

On September 21, 2022 the employing establishment offered appellant a modified position 

as a rural carrier at the employing establishment’s Fairfax, VA office. The job required observing 

webcams, calling or e-mailing alerts, and answering telephones for up to eight hours a day. The 

physical requirements included sitting, fine manipulation, and simple grasping for up to eight hours 

a day. Appellant stopped work on September 21, 2022.

OWCP received Form CA-17 reports dated August 30 and September 13, 2022 by

Dr. Kim, limiting driving to one hour a day. 

On October 1, 2022 appellant refused the offered position. On the job offer form, and in a 

September 27, 2022 statement, he contended that the employing establishment had abolished the 

webcam position, that managers informed him on September 21, 2022 that the duties of the offered 

position were substantially different from those of a webcam observer, that the commute to this 

new employing establishment office exceeded his one-hour driving limitation, and that the salary 

was lower than his current wage.4

4

In an October 4, 2022 letter, OWCP advised the employing establishment that the modified position offered 

appellant “cannot be considered appropriate” under 20 C.F.R. § 10.500(a) as it was temporary in nature although 

appellant had permanent work limitations, the description of the job assignment was unclear, and the work schedule 

was incomplete. 
4

On October 11, 2022 appellant filed a Form CA-7 for disability from work for the period 

September 21 through 30, 2022. 

In a development letter dated October 13, 2022, OWCP advised appellant of the 

deficiencies of his claim. It advised him of the type of additional evidence needed. OWCP 

afforded appellant 30 days to respond.

On October 28, 2022 appellant filed a Form CA-7 for disability from work for the period 

October 3 through 21, 2022.5

On October 30, 2022 appellant accepted the modified rural carrier position at the new 

employing establishment office. He returned to work on October 30, 2022 at the new employing

establishment office. 

In a September 22, 2022 report, Dr. Kim limited appellant to driving no more than one 

hour a day. He explained that additional driving time worsened weakness, pain, and mobility in 

appellant’s right upper extremity. 

On October 16, 2022 OWCP referred appellant and the case record, including a statement 

of accepted facts (SOAF) and a series of questions, to Dr. Randy Davis, a Board-certified 

orthopedic surgeon, for a second opinion regarding the extent of appellant’s work capacity and the 

question of whether he had residuals of the accepted employment conditions.

In a November 16, 2022 statement, appellant contended that the offered modified-duty 

position exceeded his one-hour driving limitation. 

In a development letter dated December 7, 2022, OWCP advised appellant of the 

deficiencies of his claim for wage-loss compensation for the period October 3, 2022 and 

continuing. It advised him of the type of additional evidence needed. OWCP afforded appellant

30 days to respond. 

In a development letter dated December 15, 2022, OWCP advised appellant that the 

evidence of record indicated that he may have sustained a recurrence of disability due to 

withdrawal of a modified-duty position. It described the additional factual and medical evidence 

needed. OWCP afforded appellant 30 days to respond. 

In a separate development letter also dated December 15, 2022, OWCP requested that the 

employing establishment provide comments from a knowledgeable supervisor. It afforded the 

employing establishment 30 days to respond. 

In a December 20, 2022 report, Dr. Davis noted his review of the medical record and 

SOAF. On examination he observed an old biceps tendon rupture at the left elbow with decreased 

biceps strength, well-healed surgical scars on the right shoulder, and significantly restricted range 

of motion of the right shoulder. Dr. Davis diagnosed a history of old left biceps rupture, right 

5 On November 29, 2022 appellant filed a series of Form CA-7for disability for the periods October 22 through 29, 

2022 and November 4 through 18, 2022. 
5

rotator cuff tear with superimposed degenerative arthritis, and lumbar strain with preexisting 

degenerative arthritis. He opined that the accepted conditions remained active and partially 

disabling, and that appellant had attained MMI. Dr. Davis found appellant able to perform the 

duties of a webcam observer. In an attached December 20, 2022 Form OWCP-5c, he limited 

lifting, pulling, and pushing to 10 pounds, operating a motor vehicle to and from work to one hour, 

and operating a motor vehicle at work to one hour.

In a December 21, 2022 report, Dr. Kim recounted that on October 31, 2022 appellant had 

been “required to work at a different facility, much longer drive from [appellant’s] home, and 

asked to move and lift heavy boxes, contrary to” his work restrictions. After a brief period of 

performing the new duties, appellant experienced “acute worsening of the right shoulder and arm 

pain,” with weakness and numbness of the arm and hand. Appellant did not work on November 1, 

2022, returned to work on November 2, 2022, and experienced significant worsening of high right 

upper extremity symptoms. He presented for examination on November 3, 2022 with marked 

weakness in right hand grip and forearm supination and pronation, decreased sensation to touch in 

the right hand and forearm, and limited motion of the right shoulder. Dr. Kim opined that appellant 

“sustained an acute worsening of [an] already compromised [right] shoulder joint.” He held 

appellant off work. A subsequent magnetic resonance imaging scan of the right shoulder 

demonstrated a severe full thickness tear of the supraspinatus tendon, tear of the anterior two thirds 

of the infraspinatus tendon, full thickness tear of the biceps tendon, and superior labral tear. 

Dr. Kim noted that appellant was a candidate for complete shoulder arthroplasty. He opined that 

the tasks appellant performed at work on October 31 and November 2, 2022 clearly exceeded his 

work restrictions. Dr. Kim held appellant off work. 

In response to OWCP’s December 7, 2022 development letter, appellant submitted a 

December 27, 2022 statement. He alleged that on September 21, 2022, a manager told him to 

leave the office as the webcam observer position had been abolished. An injury compensation 

manager then informed him of a position in a different employing establishment office as a 

webcam observer, but refused to provide a position description. Appellant contended that driving 

to this new office took longer than one hour, thus exceeding his driving limitation. He then left 

work. On October 29, 2022 appellant received an official job offer dated September 21, 2022 for 

a rural carrier position, but with the duties of a webcam observer. He reported for duty on 

October 31, 2022. A manager allegedly informed appellantthat the webcam observer position had 

been abolished and assigned him to stand behind a window clerk to assist customers picking up 

parcels and held mail. Appellant was required to lift heavy boxes and pull parcel hampers in 

violation of his work limitations. He then experienced severe right shoulder pain and numbness 

in the right upper extremity. 

OWCP received photographs of October 30, 2022 text messages between appellant and a 

supervisor accepting the September 21, 2022 job offer and November 7, 2022 text messages 

between appellant and a supervisor in which appellant alleged that his physician had held him off 

work. 

By decision dated January 4, 2023, OWCP denied appellant’s claim for compensation for 

the period September 21 through 30, 2022. It found that the duties of the offered modified rural 

carrier position were within his medical restrictions. 
6

OWCP received a November 3, 2022 report by Dr. Kim, recounting that appellant had 

taken a taxicab to the appointment as he could not drive himself due to his inability to grip the 

steering wheel with his right hand. He noted that as there was no longer light-duty work within 

his restrictions available at the prior employing establishment’s office, he had been transferred to 

a new employing establishment office. On October 31, 2022 at the new employing establishment 

office, appellant lifted and moved heavy boxes and pushed boxes out of the way with his arms. 

He developed increased right shoulder and upper back pain, and numbness in the right forearm 

and hand. These symptoms continued to worsen. Dr. Kim diagnosed “[n]ew onset right arm and 

hand numbness and weakness since [October 31, 2022], most likely due to using injured right 

shoulder at work to move and lift objects,” and suspected nerve impingement in the right brachial 

plexus or cervical spine. He held appellant off work. 

In a January 5, 2023 statement in response to OWCP’s December 15, 2022 development 

letter, appellant alleged that, on October 31 and November 2, 2022 while at work at the Chantilly, 

VA office, he lifted and carried heavy boxes, bound “hold mail,” and pushed and pulled an 

all-purpose container and a mail hamper with heavy boxes, causing a worsening of his symptoms. 

On January 13, 2023 OWCP received a response to its December 15, 2022 development 

letter to the employing establishment, including copies of personnel documents and an updated 

permanent modified job offer. The employing establishment confirmed that appellant’s modified 

position had been withdrawn due to “need of business.” It indicated that he would perform the 

“same duties as before, web cam,” but at a different location.

By decision dated January 20, 2023, OWCP denied appellant’s claim for compensation for 

the period October 3, 2022, and continuing. It found that the duties of the modified rural carrier 

position were within his medical restrictions. 

By a separate decision also dated January 20, 2023, OWCP denied appellant’s claim for a 

recurrence of disability commencing September 21, 2022,

6

finding that he did not submit sufficient 

evidence to support a change or withdrawal of his light-duty position, or that he was forced to 

perform duties exceeding his work limitations.

LEGAL PRECEDENT

An employee seeking benefits under FECA7 has the burden of proof to establish the

essential elements of his or her claim including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury. 8 Under FECA the term 

disability means incapacity, because of an employment injury, to earn the wages that the employee 

6

In the second January 20, 2023 decision, OWCP referred to appellant’s October 11, 2022 Form CA-7 claiming 

compensation commencing September 21, 2022. 

7

Supra note 1.

8 M.M.,Docket No. 21-0590 (issued December 2, 2021); D.S.,Docket No. 20-0638 (issued November 17, 2020);

F.H., Docket No. 18-0160 (issued August 23, 2019); C.R.,Docket No. 18-1805 (issued May 10, 2019); Kathryn 

Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
7

was receiving at the time of injury.9 For each period of disability claimed, the employee has the 

burden of proof to establish that he or she was disabled from work as a result of the accepted 

employment injury.10 Whether a particular injury causes an employee to become disabled from 

work, and the duration of that disability, are medical issues that must be proven by a preponderance 

of probative and reliable medical opinion evidence.11

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 that had resulted from a previous 

injury or illness without an intervening injury or new exposure to the work environment that caused 

the illness. The term also means an inability to work when a light-duty assignment made 

specifically to accommodate an employee’s physical limitations due to the work-related injury or 

illness is withdrawn (except when such withdrawal occurs for reasons of misconduct, 

nonperformance of job duties or a reduction-in-force), or when the physical requirements of such 

an assignment are altered so that they exceed his or her established physical limitations. 12 If the 

claim for recurrence of disability for work is based on modification of the claimant’s duties or 

physical requirements of the job, the claimant should be asked to describe such changes. If the 

evidence establishes that the limited-duty position has changed such that it no longer 

accommodates the claimant’s work restrictions, OWCP should accept the recurrence.13

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 

establishes that, limited duty can be performed, the employee has the burden of proof to establish 

by the weight of reliable, probative, and substantial evidence a recurrence of total disability. As 

part of this burden of proof, the employee must show either a change in the nature and extent of 

the injury-related condition, or a change in the nature and extent of the limited-duty requirements.14

ANALYSIS

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

Appellant alleged a recurrence of disability commencing September 21, 2022, as his 

modified-duty positionas a webcam observer at the employing establishment had been withdrawn, 

and the September 21, 2022 modified job offer exceeded his one-hour driving limitation as 

provided by Dr. Kim as of August 30, 2022. The Board has held that, if a claimant’s limited-duty 

assignment changed such that he could no longer commute to work, this would constitute a 

9

20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).

10 T.W., Docket No. 19-1286 (issued January 13, 2020).

11 S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

12 20 C.F.R. § 10.5(x); see D.T., Docket No. 19-1064 (issued February 20, 2020).

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(3) (June 2013);

J.T., Docket No. 15-1133 (issued December 21, 2015).

14 F.M., Docket No. 22-0346 (issued August 9, 2022); see C.B.,Docket No. 19-0464 (issued May 22, 2020);

R.N., Docket No. 19-1685 (issued February 26, 2020); Terry R. Hedman, 38 ECAB 222 (1986).
8

recurrence of disability.15 The employing establishment confirmed that it withdrew appellant’s 

modified position due to business needs. It asserted that the modified position offered to him on 

September 21, 2022 was for the same duties as a webcam observer, but the employing 

establishment did not explain why the job title was “rural carrier” and not “webcam observer.”

Appellant also claimed disability commencing November 3, 2022, as he was allegedly 

required to perform tasks exceeding his work limitations at his new duty station on October 31 and 

November 2, 2022. In support of his recurrence claim, appellant submitted a December 21, 2022 

report from Dr. Kim who indicated that he examined appellant on November 3, 2022 for an “acute 

worsening of an already compromised right shoulder joint” after appellant had driven in excess of 

his restrictions, and lifted and pushed heavy objects while at work on October 31 and 

November 2, 2022. Dr. Kim found appellant disabled from work. 

As appellant has established the withdrawal of his modified-duty position by 

September 21, 2022, the question remains whether appellant’s work duties on and after that, date 

exceeded his work restrictions, the case will be remanded for additional development. The Board 

notes that proceedings under FECA are not adversarial in nature, and OWCP is not a disinterested 

arbiter.16 While the claimant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence and to see that justice is done. 17 

On remand, OWCP shall obtain a statement from a knowledgeable supervisor or 

supervisors regarding the commuting distance from appellant’s home to the new employing 

establishment office, and the duties appellant performed on October 31 and November 2, 2022. 

After securing this response, it shall prepare an updated SOAF, including the duties appellant 

performed on October 31 and November 2, 2022, and refer him to a specialist in the appropriate 

field of medicine for a second opinion examination and an evaluation regarding whether appellant 

sustained a recurrence of disability on and after September 21, 2022. Following this and any other 

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

CONCLUSION

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

15 K.E., Docket No. 13-0296 (issued June 6, 2013).

16 V.D., Docket No. 21-1053 (issued March 20, 2023); R.M., Docket No. 20-0486 (issued June 9, 2021); Vanessa 

Young, 56 ECAB 575 (2004).

17 V.D., id., K.T., Docket No. 19-1436 (issued February 21, 2020); Jimmy A. Hammons, 51 ECAB 219 (1999);

William J. Cantrell, 34 ECAB 1233, 1237 (1983).
9

ORDER

IT IS HEREBY ORDERED THAT the January 4 and 20, 2023 decisions of the Office 

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

consistent with this decision of the Board.

Issued: December 26, 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