United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.M., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, NEW YORK STEWART 

INTERNATIONAL AIRPORT, 

New Windsor, NY, Employer

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Docket No. 22-0229

Issued: March 29, 2023

Appearances: Case Submitted on the Record

Paul Kalker, 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 November 29, 2021 appellant, through counsel, filed a timely appeal from a July 1, 

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.

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 her burden of proof to establish a recurrence of 

disability commencing September 4, 2014 causally related to her accepted May 5, 2014 

employment injury. 

FACTUAL HISTORY

This case has previously been before the Board.3 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 March 23, 2015 appellant, then a 45-year-old lead transportation security officer, filed 

an occupational disease claim (Form CA-2) alleging that she developed an emotional condition in 

the performance of duty on or about May 5, 2014. She described her condition as depression, 

anxiety, panic, and post-traumatic stress disorder (PTSD). Appellant did not specifically identify 

what caused her condition(s) other than noting “It was almost traumatic ....” She stopped work on 

September 4, 2014.

Appellant subsequently explained that the employing establishment retaliated against her 

for filing an Equal Employment Opportunity (EEO) complaint against a supervisor, which was 

protected activity. She was then wrongfully terminated from employment and denied 

unemployment benefits, in retaliation. The record reflects that appellant was removed from 

employment on January 10, 2014. Appellant was reinstated to her position on April 2, 2014 and 

returned to full-time full-duty capacity work on June 1, 2014. She stopped work on September 4, 

2014 and resumed employment in the private sector on February 1, 2016. 

By decision dated October 16, 2015, OWCP denied the claim, finding that appellant failed 

to establish a compensable employment factor. On May 26, 2016 appellant requested 

reconsideration. By decision dated March 23, 2017, OWCP denied modification of its prior 

decision. 

On April 17, 2017 appellant, through counsel, appealed to the Board. By decision dated 

November 14, 2018, the Board found that appellant established a compensable employment factor 

and remanded the case to OWCP for further development. The Board found that the evidence 

established that the employing establishment unreasonably removed appellant from her 

employment as an act of discipline and unreasonably sought to deny her claim for unemployment 

compensation. The Board concluded that the administrative decision and the subsequent actions 

by the employing establishment were unreasonable.4

3 Docket No. 17-1076 (issued November 14, 2018), granting petition for recon. and modifying prior Board 

decision, Docket No. 17-1076(issued June 11, 2019). 

4

Id.
3

On December 10, 2019 OWCP accepted the condition of major depressive disorder, single 

episode, severe without psychotic features. 

In an October 5, 2020 claim for compensation (Form CA-7) and an accompanying 

October 21, 2020 time analysis form (Form CA-7a), appellant claimed wage-loss compensation 

for the period May 5, 2014 through October 23, 2018.5 She noted that she had worked for New 

York Metropolitan Transportation Authority (NYMTA) from February 1 through April 30, 2016. 

The employing establishment contested, without specifying, the information provided by 

appellant.

On February 4, 2021 appellant filed a notice of recurrence (Form CA-2a) claiming 

disability from work commencing September 1, 2014 due to a change or worsening of her accepted 

work-related conditions. She alleged that her emotional condition affected her ability to perform 

her employment duties and she experienced difficult relations with her supervisors. Appellant also 

noted that she returned to work elsewhere on February 1, 2016. 

In a September 22, 2014 report, Dr. Joseph R. Agyemang, an internal medicine specialist, 

noted appellant was seen for “medical reasons” and indicated that she was unable to work from 

September 22 to October 6, 2014. On October 8, 2014 he referred her to a psychiatrist to be treated 

for depression. In a January 15, 2015 report, Dr. Agyemang indicated that appellant had been 

under his care since May 2014 for post-traumatic stress disorder (PTSD) and anxiety. 

Appellant began treatment with Martin Ogulnick, Ph.D., a licensed clinical psychologist.

In a report dated March 23, 2016 and in office notes from September 21, 2015 through March 8, 

2016, Dr. Ogulnick noted a complete history of appellant’s emotional condition and provided 

extensive progress reports regarding her emotional status. He diagnosed major depression, single 

episode, severe, and related appellant’s condition to her being wrongfully terminated and 

unreasonably bullied. Dr. Ogulnick indicated that appellant stopped working due to the series of 

events at the employing establishment and she was unable to continue to work due to her diagnosed 

conditions. 

In a November 21, 2014 report, a psychiatric nurse practitionerindicated that appellant had 

been under her care since June 11, 2014. She provided diagnoses of depression, panic attacks and 

PTSD and opined that appellant was totally disabled as a result of such conditions.

By letter dated April 12, 2021, OWCP found thatDr. Ogulnick’s March 23, 2016 narrative 

report supported disability from work from September 21, 2015 to March 23, 2016. It requested 

a medical report from a psychiatrist or clinical psychologist in support of her inability to perform 

the date-of-injury job she held on May 5, 2014 during the period claimed from May 5, 2014 

through October 23, 2018. OWCP also noted that clarifying information as well as evidence to 

verify the period of employment appellant worked for NYMTA was needed. It afforded her 30 

days to submit additional evidence. 

In a separate developmental letter also dated April 12, 2021, OWCP provided the definition 

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

5 OWCP paid appellant wage-loss compensation for the period May 5 through 31, 2014. 
4

necessary to establish her claim, provided a questionnaire for her completion, and afforded her 30 

days to submit additional evidence.

By letter also dated April 12, 2021, OWCP requested additional information from the 

employing establishment with regard to appellant’s pay status during the period claimed, including 

the date of last exposure and the first date she stopped work. 

OWCP received an April 24, 2021 statement from appellant. Appellant indicated that her 

disability was for the period September 1, 2014 through February 1, 2016 and that she received 

ongoing medical care through the period of disability. 

OWCP also received medical evidence. In a May 12 and June 3, 2015 reports, Dr. Lydia 

Fazzio, a Board-certified psychiatrist, diagnosed PTSD and other unspecified depressive disorder. 

In the May 12, 2015 report, she indicated that residual symptoms impacted appellant’s ability to 

perform/return to work. In a June 10, 2015 report, Dr. Fazzio opined that appellant could return 

to work. In reports dated July 1 and August 5, 2015, she reported that appellant had some anxiety 

about returning to work, but otherwise had resolution of depressive symptoms. Appellant

diagnosed PTSD, other unspecified depressive disorder, and major depressive disorder, recurrent 

episode, in full remission. 

Progress reports from a licensed social worker dated June 25, July 2 and 30, August 14, 

and 19, 2015 were received along with a June 16, 2016 reportfrom a psychiatric nurse practitioner, 

in which she opined that appellant was unable to perform any of her job functions due to her 

diagnosed major depressive disorder and anxiety.

In a November 7, 2020 report,Dr. Ogulnick diagnosedchronic PTSD and major depressive 

disorder, single episode, and opined that appellant was permanently disabled due to the severity 

and intransigence of her symptoms. He reported that when she was seen on September 21, 2015 

she was severely depressed and had uncontrolled ruminations due to the abusive behavior she 

suffered at her job at the employing establishment which led to her being fired and then rehired. 

Dr. Ogulnick noted that during that period appellant took another job and then again worked for 

the employing establishment. He indicated that, despite working on and off, she was battling 

severe depression and anxiety while being prescribed a series of psychotropic medications that 

were only partially successful. Dr. Ogulnick noted that when she was last seen on November 3, 

2020, appellant continued to manifest all of the significant symptoms of PTSD and major 

depressive disorder. 

On May 27, 2021 the employing establishment indicated that appellant’s last exposure and 

first date she stopped work was on May 4, 2014. Appellant returned to work on June 1, 2014 and 

was off work again on September 4, 2014. Pay information was also provided. 

By decision dated July 1, 2021, OWCP denied appellant’s recurrence claim. 

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 
5

compensable injury or illness and without an intervening injury or new exposure in the work 

environment.6

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.7

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.8 Where no such rationale is present, 

the medical evidence is of diminished probative value.

9

ANALYSIS

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

The record supports that appellant underwent continuing psychiatric treatment during the 

recurrence period claimed. The Board notes that OWCP, in its letter of April 12, 2021, found that

Dr. Ogulnick’s March 23, 2016 narrative report supported disability from work from 

September 21, 2015 to March 23, 2016. The Board further notes that in his November 7, 2020 

report, Dr. Ogulnick opined that appellant was disabled. OWCP, however, failed to sufficiently 

discuss or analyze this evidence or the other evidence submitted in support of the recurrence claim. 

FECA provides that OWCP shall determine and make findings of fact in making an award 

for or against payment of compensation after considering the claim presented by the employee and 

after completing such investigation as OWCP considers necessary with respect to the claim. 10 Its 

regulations at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain 

findings and facts and a statement of reasons.11 As well, OWCP’s procedures provide that the 

6

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

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

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

8

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

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

10 5 U.S.C. § 8124(a)(2).

11 20 C.F.R. § 10.126.
6

reasoning behind OWCP’s evaluation should be clear enough for the reader to understand the 

precise defect of the claim and the kind of evidence which would overcome it. 12

As noted above, in the July 1, 2021 decision, OWCP listed, but failed to sufficiently 

analyze the evidence appellant submitted in support of her recurrence claim. Thus, appellant did 

not know the precise defect in her claim.

The Board will therefore set aside OWCP’s July 1, 2021 decision and remand the case for 

a de novo decision on appellant’s claim which considers and addresses the evidence submitted.

13

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the July 1, 2021 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: March 29, 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

12 Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all 

decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the 

disallowance).

13 See Order Remanding Case, A.J., Docket No. 21-0944 (issued March 23, 2022).