United States Department of Labor

Employees’ Compensation Appeals Board

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D.G., Appellant

and

DEPARTMENT OF THE NAVY, FLEET 

CYBER COMMAND, Fort Meade, MD, 

Employer

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Docket No. 23-0448

Issued: October 12, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 13, 2023 appellant filed a timely appeal from a January 26, 2023 merit 

decision 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 26, 2023decision, 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 his burden of proof to establish a recurrence of 

disability commencing October 25, 2022, causally related to his accepted July 12, 2022

employment injury.

FACTUAL HISTORY

On July 21, 2022 appellant, then a 47-year-old information technology manager, filed a 

traumatic injury claim (Form CA-1) alleging that on July 12, 2022 he aggravated his chronic back 

and neck nerve injuries when involved in an automobile accident while in the performance of duty. 

He stopped work on that date. By decision dated September 1, 2022, OWCP accepted appellant’s 

claim for strain of muscle, fascia, and tendon of the lower back, and sprain of ligaments of the 

thoracic spine. It paid him wage-loss compensation on the supplemental rolls, effective 

August 29, 2022.

On September 21 and October 19, 2022 Dr. Frederic L. Salter, a Board-certified 

orthopedic surgeon, released appellant for light-duty work, noting that he should work from home 

and take breaks as needed for walks. In the September 21, 2022 report, Dr. Salter indicated that 

appellant should use a standing desk.

In an October 7, 2022 statement, J.B., an employing establishment injury compensation 

specialist, indicated that appellant had an existing medical accommodation of permanent telework 

prior to the accepted injury. In an October 14, 2022 email to J.B., appellant stated that he did not 

recall ever receiving a written job offer. He noted that his supervisor told him to stay home and 

removed him from his responsibilities. 

In an October 25, 2022 report, Dr. Salter related that appellant reported persistent pain and 

stiffness in the lower back, as well as recent increasing pain radiating down both legs. He noted 

that appellant had been working at home, and explained that sitting and standing at work had 

significantly increased his pain recently and made it difficult for him to complete his workdays. 

Dr. Salter’s examination revealed moderate restriction of lumbar motions, as well as tenderness 

and spasm in the mid-to-lower lumbar paraspinal region, increasing with increasing motions. He 

diagnosed lumbosacral strain with bilateral lumbar radiculopathy as a direct result of the accepted 

July 12, 2022 injury. Dr. Salter held appellant off of work for two days due to his increasing 

symptoms, indicating that he could return to work on October 27, 2022, with restrictions that he

could work four hours each day from home with stretching breaks. In an October 25, 2022 work 

restriction note, he advised the same. 

On November 10, 2022appellant filed claimsfor compensation (Form CA-7) for disability 

for the periods October 19 through November 4, 2022 and November 7 through 11, 2022. On the 

reverse side of each claim form, A.T., an employing establishment official, indicated that he had 

returned to his predate-of-injury job on September 22, 2022.
3

In a November 18, 2022 development letter, OWCP informed appellant of the deficiencies 

of his claim for wage-loss compensation commencing October 25, 2022.

3

 It advised him of the 

type of medical evidence required and afforded him 30 days to submit the requested evidence.

Appellant continued to submit Form CA-7 claims and medical evidence. In a 

November 23, 2022 report, Dr. Salter noted that appellant reported he had been working four hours 

each day with stretching and walking breaks, and his pain was more tolerable than when he was 

working eight-hour days. He also related that appellant stated he was unable to work in a highsecurity, in-office position in his current condition. In a December 14, 2022 letter, Dr. Salter 

reiterated the subjective complaints and objective findings from his October 25, 2022 report, and 

opined that it had been medically reasonable to hold appellant off of work for two days and then 

allow him to return to work from home for four hours each day with stretching breaks.

In a January 11, 2023 letter, OWCP requested additional information from the employing 

establishment, including a copy of appellant’s position description with physical requirements.

In a January 25, 2023 offer to be considered for reassignment, A.T. noted that appellant 

had requested a reasonable accommodation on October 28, 2022, including telework, a sit/stand 

desk, and the ability to take periodic stretch breaks as needed. He indicated that appellant had 

been provided telework as an interim accommodation. A.T. advised appellant that the employing 

establishment could no longer provide this accommodation as his position of record required him 

to work full-time and regularly access classified systems, which could not be done while 

teleworking due to security requirements.

By decision dated January 26, 2023, OWCP denied appellant’s claim for compensation for 

disability from work for the period October 25, 2022 and continuing.

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.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.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. The 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 

3 OWCP authorized payment for four hours on October 19, 2022.

4

20 C.F.R. § 10.5(x); T.J., Docket No. 18-0831 (issued March 23, 2020); J.D., Docket No. 18-1533 (issued 

February 27, 2019).

5

Id.
4

does not include a condition that results from a new injury, even if it involves the same part of the 

body previously injured.6

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.7 As part of 

this burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the limited-duty job requirements.8

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.9 Where no such rationale is present, 

the medical evidence is of diminished probative value.10

ANALYSIS

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

On October 7, 2022 J.B., an employing establishment injury compensation specialist, 

indicated that appellant had an existing medical accommodation of permanent telework prior to 

the accepted injury. In an October 14, 2022 e-mail, appellant stated that he did not recall ever 

receiving a written job offer. He noted that his supervisor told him to stay home and removed him 

from his responsibilities. On November 14, 2022 appellant filed claims for compensation for 

disability for the periods October 19 through November 4, 2022 and November 7 

through 11, 2022.11

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

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

7 C.L., Docket No. 20-1631 (issued December 8, 2021); D.W., Docket No. 19-1584 (issued July 9, 2020); S.D., 

Docket No. 19-0955 (issued February 3, 2020); Terry R. Hedman, 38 ECAB 222 (1986).

8

Id.

9

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

Ronald A. Eldridge, 53 ECAB 218 (2001).

10 E.M., Docket No. 19-0251 (issued May 16, 2019); H.T., Docket No. 17-0209 (issued February 8, 2019);MaryA. 

Ceglia, Docket No. 04-0113 (issued July 22, 2004).

11 The Board notes that, as of January 25, 2023, the employing establishment indicated it was unable to 

accommodate appellant’s restriction of working from home.
5

The Board finds that, in this case, the factual evidence of record is insufficient to determine 

whether appellant is claiming a recurrence of disability due to a withdrawal of his light-duty 

position, or because of a change in his accepted July 12, 2022 employment injury.12 As noted 

above, a recurrence of disability can be established under either scenario.

13

 As appellant alleged 

that the employing establishment never provided him a written job offer and that his supervisor 

removed him from his responsibilities, OWCP should have requested that the employing 

establishment provide any applicable description of appellant’s modified duties and any written 

job offer for the period October 25, 2022 and continuing.

14

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

appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in 

the development of the evidence.15 It has an obligation to see that justice is done.16 Thus, the 

Board will remand the case to OWCP to obtain a statement from a knowledgeable supervisor as 

to appellant’s allegation that the employing establishment was unable to accommodate his work 

restrictions. Following this and any necessary further development, OWCP shall issue a de novo

decision.

CONCLUSION

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

12 See L.F., Docket No. 19-0519 (issued October 24, 2019); see also M.S., Docket No. 18-0130 (issued 

September 17, 2018).

13 Supra notes 4 and 5.

14 See T.R., Docket No. 19-1611 (issued October 26, 2020); see also P.H., Docket No. 20-0039 (issued 

April 23, 2020).

15 See e.g.,M.G., Docket No. 18-1310 (issued April16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985);

Michael Gallo, 29 ECAB 159, 161 (1978);WilliamN. Saathoff, 8 ECAB 769-71;Dorothy L. Sidwell, 36 ECAB 699, 

707 (1985).

16 See A.J., Docket No. 18-0905 (issued December 10, 2018); WilliamJ. Cantrell, 34 ECAB 1233, 1237 (1983);

Gertrude E. Evans, 26 ECAB 195 (1974).
6

ORDER

IT IS HEREBY ORDERED THAT the January 26, 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: October 12, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board