United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. IMMIGRATION AND CUSTOMS 

ENFORCEMENT, Lords Valley, PA, Employer

__________________________________________

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Docket No. 23-0395

Issued: October 2, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 17, 2023 appellant filed a timely appeal from an August 25, 2022 merit 

decision and a December 22, 2022 nonmerit 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

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish a recurrence 

of disability commencing July 6, 2022, causally related to his accepted January 7, 2005 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the December 22, 2022 decision and on appeal, OWCP received additional 

evidence. However, the Board’s Rules of Procedureprovides: “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

employment injury; and (2) whether OWCP properly denied appellant’s request for an oral hearing 

as untimely filed, pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On January 10, 2005 appellant, then a 37-year-old immigration enforcement agent, filed a 

traumatic injury claim (Form CA-1) alleging that on January 7, 2005 he sustained back and neck 

injuries when he fell on ice in the parking lot while in the performance of duty. He stopped work 

on January10, 2005. OWCP accepted the claim for sprain/strain of neck; sprain/strain of back,

thoracic region; other syndromes affecting cervical region; brachial neuritis or radiculitis; pain in 

limb; cervicocranial syndrome; degeneration of cervical intervertebral disc; intervertebral disc 

disorder with myelopathy, cervical region; and occipital neuralgia. It paid appellant wage-loss 

compensation on the supplemental rolls from March 28 through May 14, 2005, and on the periodic 

rolls from May 15, 2005.

On July 26, 2011 appellant underwent OWCP-authorized surgery for cervical spondylosis 

with disc herniation at C5-6 and C6-7, anterior cervical discectomy, instrument fusion with 

polyetheretherketone (PEEK) cage and Atlantis plate, and microdissection. 

Following successful participation in the vocational rehabilitation process, appellant 

returned to full-time work on August 5, 2019 with the Veterans Health Administration (VHA) as 

a medical support assistant. Thereafter OWCP paid appellant wage-loss compensation based on 

his loss of wage-earning capacity. 

In a February 28, 2020 medical report, Dr. Mahesh Chhabria, a neurologist, related that 

appellant was doing well, and had begun work at the Department of Veterans Affairs; however, 

two weeks prior, appellant began experiencing pain on the right lumbar region, occasionally 

radiating down the right leg, but otherwise denied any motor or sensory symptoms in the lower 

extremities. He indicated that prior to this recurrence, appellant had discontinued medication and 

muscle relaxers. Dr. Chhabria noted that appellant had a history of cervical postlaminectomy 

syndrome, experienced constant neck pain, and had recovered from a right shoulder replacement. 

He diagnosed lumbosacral strain with recent worsening and chronic cervical strain. Dr. Chhabria 

opined that appellant’s back and neck pain were related to a work injury that occurred several years 

prior.

In a memorandum of telephone call (Form CA-110) dated July 8, 2022, appellant notified 

OWCP that his condition had worsened, and he was off work. 

By development letter dated July 8, 2022, OWCP advised appellant that it appeared that 

he was claiming a disability due to a material change or worsening of his accepted work-related 

conditions. It explained that its records indicated that on September 29, 2019, he was reemployed 

as a medical support assistant at the VHA. OWCP informed appellant of the definition of a 

recurrence of disability and requested that he provide medical evidence supporting that his 

accepted condition had worsened such that he was disabled from employment or required 

additional medical treatment. It also provided a questionnaire for his completion. OWCP afforded 

appellant 30 days to respond.
3

In a July 6, 2022 report, Dr. Rajkumar Katara, a neurologist Board-certified in sleep 

medicine, noted that appellant was seen for neck and low back conditions and noted that he had a 

history of cervical postlaminectomy syndrome, right shoulder replacement, and midback pain. He 

related that appellant had been working on a computer and was able to manage, but in the prior

several months had experienced worsening neck pain radiating to both arms, with associated 

numbness and tingling sensation, and also had midback pain, and was unable to sit in front of the 

computer and work. Dr. Katara diagnosed cervical radiculopathy, chronic thoracic spine pain, and 

cervical postlaminectomy syndrome. He recommended a magnetic resonance imaging (MRI) 

scan, an electromyography (EMG), and a pain management regimen.

In a July 20, 2022 report, Dr. Sanket Pathak, Board-certified in anesthesiology and pain 

medicine, noted that appellant was treated for chief complaints of neck tightness, burning thoracic 

pain, and pain down the bilateral upper extremities, described as numbness and tingling. He 

indicated that there was no inciting event. Dr. Pathak noted that in 2011 appellant had anterior 

cervical discectomy and fusion at C5-6 and C6-7, and he was “ok” until the last six months when 

he started to have increased pain in the neck and pain in the arms. He related that appellant reported 

fine motor issues in the fingertips, pressure pain in the neck, and burning pain in the thoracic area. 

Dr. Pathak diagnosed cervical paraspinal muscle spasm, cervical radiculopathy, cervical 

postlaminectomy syndrome, myofascial pain syndrome, and chronic pain syndrome.

OWCP received appellant’s statement in response to its questionnaire and an initial pain 

questionnaire dated July 21, 2022. Appellant noted that for the prior three months, he experienced 

a lot of pain and numbness in his neck, spine, and arms. He related that his condition worsened 

with sitting at the computer for eight hours per day, working as a call center medical support 

assistant at the VHA. Appellant explained that he was able to work the first 24 months with his 

disability; however, his original injury worsened such that the symptoms were continuous. He 

explained that his injury never went away and sitting for long periods of time and typing on the 

computer caused his condition.

In an undated attending physician’s report (Form CA-20), Dr. Katara reiterated his 

diagnoses of cervical radiculopathy and postlaminectomy syndrome. In response to the question 

of whether he believed the conditions were caused or aggravated by an employment activity,

Dr. Katara noted that it was “possible.”

OWCP received a July 22, 2022 EMG scan of appellant’s bilateral upper extremities read 

by Dr. James Kerrigan, a Board-certified neurologist. The scan revealed abnormal findings of a 

localized neuropathic process involving the ulnar nerve at the elbow bilaterally consistent with 

bilateral cubital tunnel syndrome, as well as concomitant entrapment of the ulnar at the wrist 

bilaterally, left greater than right. Dr. Kerrigan also noted that a more diffuse peripheral 

neuropathy was suspected, and there were chronic denervation changes in the C6-7 distribution 

bilaterally.

By decision dated August 25, 2022, OWCP denied appellant’s claim for a recurrence of 

disability, finding that he did not establish disability due to a material change or worsening of his 

accepted January 7, 2005 employment-related conditions.

Appellant submitted additional evidence following the August 25, 2022 decision, including 

a notice of recurrence (Form CA-2a) alleging a recurrence of the accepted January 7, 2005 
4

employment injury as of July 6, 2022; a request for authorization for multiple procedures to the 

neck and spine, and progress notes, medical reports, and diagnostic tests dated July to 

October 24, 2022. 

On December 5, 2022 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review.

By decision dated December 27, 2022, OWCP denied appellant’s request for an oral 

hearing, finding that it was untimely filed. It further exercised its discretion and determined that 

the issue in the case could equally well be addressed by a request for reconsideration and the 

submission of new evidence supporting that he had sustained a recurrence of disability.

LEGAL PRECEDENT -- ISSUE 1

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 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.4

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.5

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, based on 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 

3

20 C.F.R. § 10.5(x);see A.H., Docket No. 22-0978 (issued January 24, 2023); J.D.,Docket No. 18-1533 (issued 

February 27, 2019).

4

Id.

5 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

injury, and supports that conclusion with medical reasoning.6 Where no such rationale is present, 

the medical evidence is of diminished probative value.7

ANALYSIS -- ISSUE 1

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

disability commencing July 6, 2022, causally related to his accepted January 7, 2005 employment 

injury.

In a February 28, 2020 report, Dr. Chhabria diagnosed lumbosacral strain with recent 

worsening and chronic cervical strain. He opined that appellant’s back and neck pain were related 

to a prior work-related injury. However, this report predates the alleged recurrence of disability 

commencing July 6, 2022, and does not address the relevant claimed time period. As such, the 

Board finds that Dr. Chhabria’s report is insufficient to establish appellant’s recurrence claim.8

The July 6, 2022 report from Dr. Katara noted that appellant had been working on a 

computer at the VHA, and during the prior several months had experienced worsening neck pain 

and midback pain and was unable to sit in front of the computer and work. He diagnosed cervical 

radiculopathy, chronic thoracic spine pain, and cervical postlaminectomy syndrome. However,

Dr. Katara did not provide an opinion regarding the cause of appellant’s conditions or disability 

commencing July 6, 2022. 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.

9

 As noted, a claim for recurrence requires evidence that appellant’s current 

conditions are not the result of an intervening injury, and a recurrence does not include a condition 

that results from a new injury, even if it involves the same part of the body previously injured. 10 

For these reasons, the Board finds that Dr. Katara’s report is insufficient to establish appellant’s

recurrence claim.

Dr. Katara’s remaining undated report reiterated his diagnoses of cervical radiculopathy 

and postlaminectomy syndrome. In response to a question regarding causality, he noted that it was 

“possible” that the diagnosed conditions were related to an employment injury. The Board has 

6 C.Y., Docket No. 22-0474 (issued November 14, 2022); L.O.,Docket No. 19-0953 (issued October 7, 2019);

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

7 L.C., Docket No. 20-1679 (issued October 20, 2022); M.G.,Docket No. 19-0610 (issued September 23, 2019);

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

8

See P.R., Docket No. 20-0596 (issued October 6, 2020); M.L., Docket No. 18-1058 (issued November 21, 2019); 

A.P., Docket No. 19-0446 (issued July 10, 2019); D.J., Docket No. 18-0200 (issued August 12, 2019).

9

J.V., Docket No. 22-1347 (issued May 1, 2023); A.H., supra note 3; K.G., Docket No. 22-0970 (issued 

February24, 2023); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued 

July 6, 2018).

10 Supra note 5.
6

long held that medical opinions that are speculative or equivocal are of diminished probative 

value.11 Thus, the Board finds that this evidence is insufficient to meet appellant’s burden of proof.

The July 20, 2022 report from Dr. Pathak found that there was no inciting event for 

appellant’s diagnosed conditions of cervical paraspinal muscle spasm, cervical radiculopathy, 

cervical postlaminectomy syndrome, myofascial pain syndrome, and chronic pain syndrome. 

Dr. Pathak did not however, provide a rationalized opinion explaining with objective findings why 

appellant’s accepted conditions caused a recurrence of disability as of July 6, 2022.12 Therefore,

the Board finds this evidence is insufficient to establish appellant’s burden of proof.

The record also contains a July 22, 2022 EMG scan of the bilateral upper extremities read 

by Dr. Kerrigan. The Board has held that diagnostic reports, standing alone, lack probative value 

on the issue of causal relationship, as they do not address whether the accepted employment 

injuries resulted in appellant’s claimed disability.13 Consequently, this evidence is insufficient to 

establish appellant’s recurrence claim.

As appellant has not submitted any rationalized medical evidence establishing a recurrence 

of disability commencing July 6, 2022, causally related to his accepted January 7, 2005

employment injury, the Board finds that he has not met his burden of proof.

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.

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with 

a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance 

of the decision, to a hearing on his or her claim before a representative of the Secretary.”

14

 Sections 

10.617 and 10.618 of the federal regulations implementing this section of FECA provide that a 

claimant shall be afforded a choice of an oral hearing or a review of the written record by a 

representative of the Secretary.15 A claimantis entitled to a hearing or review of the written record 

as a matter of right only if the request is filed within the requisite 30 days as determined by 

postmark or other carrier’s date marking and before the claimant has requested reconsideration.16 

Although there is no right to a review of the written record or an oral hearing if not requested 

11 M.D., Docket No. 21-0080 (issued August 16, 2022); R.B., Docket No. 19-0204 (issued September 6, 2019);see 

N.B., Docket No. 19-0221 (issued July 15, 2019).

12 H.C., Docket No. 22-0844 (issued December 5, 2022); L.A., Docket No. 18-1570 (issued May 23, 2019).

13 A.D., Docket No. 22-1264 (issued May15, 2023); B.W.,Docket No. 21-0721 (issued February 14, 2023); O.C., 

Docket No. 20-0514 (issued October 8, 2020); R.J., Docket No. 19-0179 (issued May 26, 2020). 

14 5 U.S.C. § 8124(b).

15 20 C.F.R. §§ 10.616, 10.617, and 10.618.

16 Id. at § 10.616(a).
7

within the 30-day time period, OWCP may within its discretionary powers grant or deny 

appellant’s request and must exercise its discretion.17

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for an oral hearing as 

untimely filed, pursuant to 5 U.S.C. § 8124(b).

On December 5, 2022 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review.

18

 However, this request was made more than 30 days 

after OWCP’s August 25, 2022 decision. Section 8124(b)(1)is unequivocal on the time limitation 

for filing a request for a hearing.19 As such, the Board finds that the request was untimely filed, 

and appellant was not entitled to an oral hearing as a matter of right. 20

The Board further finds that OWCP, in its December 27, 2022 decision, properly exercised 

its discretionary authority, by explaining that it had considered the matter and denied appellant’s 

request for an oral hearing as the issue in the case could be equally well addressed through a request 

for reconsideration, along with the submission of additional evidence.

The Board has held that the only limitation on OWCP’s authority is reasonableness. An 

abuse of discretion is generally shown through proof of manifest error, clearly unreasonable 

exercise of judgment, or actions taken which are contrary to both logic and probable deductions 

from established facts.21 The Board finds that the evidence of record does not establish that OWCP 

abused its discretion in denying appellant’s request for an oral hearing.22

CONCLUSION

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

disability commencing July 6, 2022, causally related to his accepted January 7, 2005 employment 

17 G.H., Docket No. 22-0122 (issued May 20, 2022); M.F.,Docket No. 21-0878 (issued January 6, 2022);

W.H., Docket No. 20-0562 (issued August 6, 2020); P.C.,Docket No. 19-1003 (issued December 4, 2019); Eddie 

Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

18 Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis 

of the postmark of the envelope containing the request, if available. Federal (FECA) Procedure Manual, Part 2 --

Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4a (October 2011). Otherwise, the date of the 

letter itself should be used. See J.H., Docket No. 06-1565 (issued February 20, 2007); James B. Moses, 52 ECAB 465 

(2001), citing WilliamJ. Kapfhammer, 42 ECAB 271 (1990); see also Douglas McLean, 42 ECAB 759 (1991).

19 5 U.S.C. § 8124(b); see V.S., Docket No. 22-1325 (issued December 16, 2022); K.N.,Docket No. 22-0647;

G.H., supra note 17; William F. Osborne, 46 ECAB 198 (1994).

20 See S.N., Docket No. 22-1048 (issued April3, 2023); D.R., Docket No. 22-0361 (issued July 8, 2022);

D.S., Docket No. 21-1296 (issued March 23, 2022); P.C., supra note 17.

21 See S.I., Docket No. 22-0538 (issued October 3, 2022); T.G., Docket No. 19-0904 (issued November 25, 2019);

Daniel J. Perea, 42 ECAB 214 (1990).

22 S.N., supra note 20; J.G., Docket No. 19-0555 (issued March 14, 2019).
8

injury. The Board further finds that OWCP properly denied appellant’s request for an oral hearing 

as untimely filed, pursuant to 5 U.S.C. § 8124(b).

ORDER

IT IS HEREBY ORDERED THAT the August 25 and December 27, 2022 decisions of 

the Office of Workers’ Compensation Programs are affirmed.

Issued: October 2, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board