United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, EAST TEXAS
PROCESSING & DISTRIBUTION CENTER,
Tyler, TX, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-2394
Issued: May 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 24, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ hearing representative’s June 25, 2007 merit decision finding that he
had received an overpayment of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $11,308.08 for the period January 1, 2001 to July 5, 2002 and an overpayment in the
amount of $570.45 for the period July 6 to November 2, 2002; and (2) whether appellant was at
fault in the creation of the overpayments such that they are not subject to waiver.
FACTUAL HISTORY
On September 12, 2000 appellant, then a 45-year-old flat sorter operator, sustained injury
to his left shoulder, arm and hand while lifting a tub of flats in the performance of duty. On

February 12, 2001 the Office accepted appellant’s claim for thoracic strain and herniated disc at
C5-6 and C6-7.
Appellant filed a claim for wage-loss compensation from December 16, 2000 to
May 4, 2001. He indicated that he worked outside his federal job. On June 19, 2001 appellant
stated that he wrote contracts outside his federal employment as a Texas realtor on February 6,
16 and June 6, 2001. On July 11, 2001 the Office entered appellant on the periodic rolls at the
augmented compensation rate based on one or more dependants and on a weekly pay rate of
$797.77 per week. An accompanying Form EN1049 informed appellant that he must submit
information regarding other employment to the Office at once including the pay rate, the date he
returned to work and the name of the employer including any wages from self-employment in
order to minimize the possibility of an overpayment. The Form EN1049 stated: “Each payment
shows the period for which payment is made. If you have worked for any portion of this period
return the payment to this Office, even if you have already advised the Office that you are
working.” Appellant filed an additional claim for compensation covering the period
June 2 to 29, 2001 and stated that he did not work outside his federal employment. He requested
compensation from May 5 to June 1, 2001 on June 19, 2001.
On November 26, 2001 appellant completed an EN1032 form, noting that he was not
married and claimed no dependants. He stated that he had earnings from self-employment on
June 6 and October 2001. Appellant stated that he was a realtor and sold houses receiving a
percentage of the sale price as a commission. He reported earnings of $14,000.00.
The employing establishment submitted a July 16, 2002 investigative memorandum and
reported that appellant worked as realtor beginning in 1996. Appellant’s employer, Dale Reel,
submitted a statement that appellant earned $6,201.00 in real estate commissions in 2000, earned
$16,793.90 in 2001 and earned $1,676.25 in 2002.
The Office issued a preliminary overpayment finding on November 6, 2002 in the
amount of $7,582.19.1
Appellant completed an EN1032 form on November 14, 2002 and stated that he was selfemployed and had earnings of $2,000.00.
He accepted a modified job offer on
December 13, 2002. By decision dated August 15, 2003, the Office found that appellant’s actual
earnings as a modified flat sorter machine clerk of $209.70 per week fairly and reasonable
represented his wage-earning capacity effective December 16, 2002.
The Office completed an overpayment work sheet and noted that appellant received
compensation in the amount of $41,120.10 from July 1, 2001 to July 5, 2002. The Office
calculated that, based on appellant’s sporadic actual earnings of $18,470.15, he had actual
earnings of $231.35 per week for the 79-week period January 1, 2001 to July 2, 2002. Appellant
was entitled to receive $29,812.02 in compensation from July 1, 2001 to July 5, 2002 based on
his actual earnings of $231.35 per week. He therefore received an overpayment in the amount of
$11,308.08. The Office found that appellant received compensation at the augmented rate of 3/4
1

The Office has not issued a final decision addressing this alleged overpayment and the Board will not address
this issue on appeal. 20 C.F.R. § 501.2(c).

2

from July 6 to November 2, 2002 rather than the statutory 2/3 rate, as he claimed no dependants
and therefore received an overpayment in the amount of $570.45.
The Office issued a preliminary determination of overpayment on July 27, 2004. It found
that appellant received an overpayment in the amount of $11,878.53 for the period July 1, 2001
through November 2, 2002. The Office found that appellant was at fault in the creation of the
overpayment. The Office stated: “Receipt of this additional income was not reported to this
Office in a timely manner in order that we may offset your workers’ compensation benefits from
this Office; and you received compensation paid at a higher rate than you should have known
was incorrect.” In a memorandum to file dated July 27, 2004, the Office noted that appellant
knew he was not entitled to the entire amount of compensation for the period January 1, 2001 to
November 2, 2002 due to the need of timely reporting additional income for offset. Therefore,
he accepted payments that he knew or should have known to be incorrect. The Office listed the
overpayment amount as $7,582.19.
Appellant requested a preoverpayment hearing on the issue of fault on August 18, 2004.
On September 13, 2004 he responded to the Office’s preliminary determination of overpayment
and questioned the amount of the overpayment. Appellant advised that he did not receive
continuous compensation from January 1, 2001 to November 2, 2002. He stated that he was
unaware that he was inappropriately receiving compensation at the augmented rate. Appellant
requested waiver of the overpayment and alleged that he could not afford to repay the amount.
He submitted financial information and a completed overpayment recovery questionnaire.
By decision dated June 1, 2006, the hearing representative found that appellant had
received an overpayment from January 1, 2001 to November 2, 2002 and that he was at fault in
the creation of the overpayment. Appellant appealed this decision to the Board. By Order
Remanding Case dated March 23, 2007, the Board remanded the case for the Office to
reassemble the record as the transcript of the oral hearing was not of record.2
The record currently contains the transcript of the oral hearing which took place on
March 22, 2005. Appellant described his employment injury and stated that he began working
eight hours a day in February 2004. He stated that he did not actively solicit real estate business
and merely completed contracts during the period covered by the overpayment.
By decision dated June 25, 2007, the hearing representative found that appellant was at
fault in the creation of the overpayment as he was aware that he was not entitled to the full
amount of compensation while receiving income from another source and that he should have
been paid at the statutory 2/3 compensation rate instead of the augmented compensation rate for
the period July 2 to November 2, 2002. She noted that the overpayment was $11,308.08 for the
period January 1, 2001 to July 5, 2002 and $570.45 for the period July 6 to November 2, 2002.
The hearing representative determined that appellant should repay the overpayment at the rate of

2

Docket No. 06-2022 (issued March 23, 2007).

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$300.00 per month.3 She found that the dates of the overpayment were from January 1, 2001 to
November 2, 2002.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act4 provides that the United
States “shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of his duty. A
claimant, however, is not entitled to receive temporary total disability and actual earnings for the
same period.5 Office procedures provide that an overpayment in compensation is created when a
claimant returns to work but continues to receive wage-loss compensation.6
Under sections 8110(a)(1) and 8101(17) of the Act, an employee is entitled to
compensation at the augmented rate of 3/4 of his weekly pay if he has one or more dependents.7
If a claimant receives augmented compensation during a period where he has no eligible
dependents, the difference between the compensation he was entitled to receive at the statutory
2/3 compensation rate and the augmented 3/4 rate constitutes an overpayment of compensation.8
ANALYSIS -- ISSUE 1
The record establishes that appellant received an overpayment of compensation in the
amount of $11,308.08 for the period July 1, 2001 to July 5, 2002 and an overpayment in the
amount of $570.45 for the period July 6 to November 2, 2002. Neither the Office nor the
hearing representative submitted any support for the finding that the overpayment covered the
period January 1, 2001 to November 2, 2002. The overpayment recovery work sheets completed
by the Office provide that the period of the overpayment was from July 1, 2001 to July 5, 2002
and from July 6 to November 2, 2002.
Appellant had actual earnings during a period for which he received wage loss for total
disability. When an employee has earnings from employment, he is not entitled to receive
temporary total disability benefits and actual earnings for the same time period.9 Under these
3

The Board notes that it does not have jurisdiction to review the Office’s finding that the overpayment would be
recovered in payments of $300.00 per month. The Board’s jurisdiction is limited to reviewing those cases where the
Office seeks recovery from continuing compensation under the Act. Judith A. Cariddo, 55 ECAB 348, 353 (2004).
4

5 U.S.C. §§ 8101-8193, 8102(a).

5

5 U.S.C. § 8116(a).

6

Danney E. Haley, 56 ECAB 393, 400 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.2(a) (September 1994).
7

5 U.S.C. §§ 8110(a)(1) and 8101(17); 20 C.F.R. § 10.405.

8

Diana L. Booth, 52 ECAB 370 (2001) (the Board held that as the claimant received compensation at the
augmented rate for certain periods, even though she had no dependents, she received an overpayment of
compensation).
9

L.S., 59 ECAB ___ (Docket No. 07-1961, issued February 14, 2008); Daniel Renard, 51 ECAB 466 (2000);
20 C.F.R. § 10.403(c).

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circumstances, the Office offsets actual earnings pursuant to the Shadrick formula. If a reduction
of benefits based upon actual earnings is not accompanied by a determination that the earnings
“fairly and reasonably” represent the employee’s wage-earning capacity, an informal reduction
of benefits utilizing the Shadrick formula is proper rather than a formal loss of wage-earning
capacity determination. The Office did not find that appellant’s actual earnings as a realtor fairly
and reasonably represented his wage-earning capacity. Therefore, it properly provided an
informal determination of the amount owed based on his actual earnings using the Shadrick
formula.10
In determining the amount of the overpayment, the Office found that appellant’s actual
earnings from January 1 to July 2, 2002 were $18,470.15 or $231.35 per week. Using the
Shadrick formula, the Office found that he was entitled to compensation during this period based
on his actual earnings in the amount of $29,812.02. The Office subtracted the amount of
compensation owed, $29,812.02 from the amount of compensation received $41,120.10, to find
an overpayment of $11,308.08. Appellant has not submitted any evidence to show that he did
not receive this overpayment of compensation or contested the amount of the overpayment. The
Board finds that he received an overpayment of compensation in the amount of $11,308.08 for
the period July 1, 2001 to July 5, 2002.
In regard to the overpayment of $570.45 for the period July 6 to November 2, 2002, the
record establishes that the Office entered appellant on the periodic rolls at the augmented 3/4
rate. Because appellant had no dependants and was entitled to compensation at the statutory 2/3
rate. The difference between the amount he received in augmented compensation and the
amount that he was entitled to at the basic rate for the period July 6 to November 2, 2002 is
$570.45. The evidence establishes that appellant received this overpayment of compensation.
The Board finds that he received an overpayment of compensation in the amount of $570.45 for
the period July 6 to November 2, 2002.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act11 provides: Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act of would be against equity and
good conscience.”
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
received from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events, which may affect entitlement to or the amount of benefits. A
recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; (2) Failed to provide information which he or she knew or
10

5 U.S.C. § 8106(a); see id.

11

5 U.S.C. § 8129(b).

5

should have known to be material; or (3) Accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).12
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.13
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayments under the
third standard listed above. The record establishes that the Office informed appellant that he was
receiving compensation at the augmented rate based on one or more dependents on
July 11, 2001. Appellant completed a EN1032 form on November 26, 2001 and indicated that
he did not have any dependents. These documents establish that he knew or should have known
that he was not entitled to receive compensation at the augmented rate and was therefore not
without fault in the creation of the $570.45 overpayment of compensation.
Appellant has also complied with the Office’s request for information regarding his
outside earnings on his initial CA-7 and on Forms EN1032 dated November 26, 2001 and
November 14, 2002. This establishes that he was aware that he was required to report outside
earnings to the Office. The Form EN1049 clearly explained that appellant should return any
payment that covered a period during which he worked, including self-employment. Based on
the evidence of record, he knew or should have know that he was not entitled to the entire
amount of the compensation payments that he received from the Office during the period which
he also had outside earnings. The evidence establishes that appellant was at fault in the creation
of the overpayment totaling $11,878.53. He is not entitled to waiver of the overpayment.14
With respect to recovery of the overpayments in compensation, the Board’s jurisdiction is
limited to reviewing cases where the Office seeks recovery from continuing compensation
benefits under the Act. As appellant is no longer receiving wage-loss compensation, the Board
does not have jurisdiction with respect to the recovery of the overpayment under the Debt
Collection Act.15
CONCLUSION
The Board finds that the Office properly determined that appellant was at fault in the
creation of overpayments totaling $11,878.53 for the period July 1, 2001 to July 5, 2002 and
from July 6 to November 2, 2002.

12

20 C.F.R. § 10.433(a).

13

Id. at § 10.433(b).

14

E.V., 59 ECAB ___ (Docket No. 07-1733, issued December 11, 2007).

15

Id.

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ORDER
IT IS HEREBY ORDERED THAT the June 25, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: May 5, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alhambra, CA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 13-450
Issued: April 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 18, 2012 appellant filed a timely appeal from a June 22, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration as untimely filed and failing to demonstrate clear evidence of error. Because
more than 180 days has elapsed from the last merit decision dated February 17, 2011 to the filing
of this appeal, the Board lacks jurisdiction to review the merits of his claim pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 15, 2009 appellant, then a 54-year-old custodian laborer, filed an
occupational disease claim alleging that he developed grade 2 spondylolisthesis of L5 as well as
arthritis and degeneration of his hips due to lifting, carrying and pushing heavy containers. He
noted that his position required him to bend, lift, twist, pull and push as well as use a heavy
machine to clean floors. Appellant stated that he first became aware of his condition in
December 1989 and first attributed his condition to his employment in April 1991. He also
submitted a statement describing his work duties as a part-time flexible carrier beginning in
1988. Appellant noted that his back condition was first diagnosed in April 1991. He returned to
work at the employing establishment on June 25, 1994 as a custodian laborer. Appellant stated
that his condition worsened and that he currently required a hip replacement.
In a note dated December 15, 2009, Dr. Scott Goldman, a Board-certified orthopedic
surgeon, diagnosed osteoarthritis and spondylolisthesis of the lumbar spine and osteoarthritis of
the bilateral hips as a result of repetitive bending, stooping and lifting in the performance of his
job duties.
OWCP requested additional factual and medical information in support of appellant’s
claim in a letter dated January 25, 2010. Dr. Goldman completed a report dated February 8,
2010 and noted appellant’s employment duties.
He diagnosed osteoarthritis and
spondylolisthesis of the lumbar spine as well as osteoarthritis of both hips. Dr. Goldman opined
that appellant would have had some arthritis and spondylolisthesis without working at the
employing establishment. He stated, “However, the severity of arthritis in the lower back and
hips is not consistent with his age had he not worked for the [employing establishment]. It is my
opinion that his severe conditions, including arthritis of the lower back and both hips, are the
result of the repetitive bending, stooping and lifting activities he has performed with working at
the [employing establishment] since 1988.”
By decision dated April 28, 2010, OWCP denied appellant’s claim on the grounds that
Dr. Goldman’s reports were not based on a complete factual background. Dr. Goldman
completed an additional report on May 24, 2010 and opined that appellant’s conditions were due
to repetitive trauma that occurred while working at the employing establishment.
Appellant requested a review of the written record by an OWCP hearing representative
on May 26, 2010. By decision dated February 17, 2011, the hearing representative found that
Dr. Goldman did not provide the necessary factual background to support his opinion that
appellant’s current conditions were due to his employment. The hearing representative stated,
“Dr. Goldman provided a conclusion without sufficient explanation of the nature of the repetitive
motions required by the claimant’s duties in 2010, when the claim was filed, or why, over a
period of time, the identified work activities caused the diagnosed conditions.”
In a letter dated July 14, 2011 and including his claim number, appellant stated that he
disagreed with the denial of his claim. He stated that he was submitting more information and
stated, “I’m hoping that the doctors’ reports will help with your final decision concerning the
claim I have submitted. Truly the reports show that the work I have performed with the
[employing establishment] has been the contributor to my conditions of grade 2

2

spondylolisthesis, lumbar disc disease and hip degenerative joint disease which resulted in total
left hip replacement and future right hip replacement.” With his letter, appellant included a copy
of the first page of the February 17, 2011 decision, circled the appeal rights paragraph and noted,
“I do disagree.”
Appellant submitted notes from a chiropractor, Dr. Gary Spunt, dated April 11, 2011
diagnosing degenerative joint disease in the lower back and hip region. On December 6, 1993 he
had undergone a fitness-for-duty examination due to intermittent lower back pain resulting in a
diagnosis of spondylosis. Dr. Thomas W. Jackson, a Board-certified orthopedic surgeon, stated
that appellant had preexisting spondylolisthesis at L5-S1 which was being aggravated by his
work activities. He found that appellant’s spondylolisthesis was stable and would likely result in
a spontaneous fusion. Dr. Jackson stated that appellant was capable of work. Dr. Randy Jones, a
physician Board-certified in emergency medicine, examined appellant on April 18, 1993 and
diagnosed severe spondylosis at L5-S1. He opined that appellant was totally disabled and that
his condition was not due to his employment. Dr. Steven M. Ma, a Board-certified orthopedic
surgeon, examined appellant on April 23, 1993 and diagnosed grade 2 spondylolisthesis of L5 on
S1 with significant sclerosis and loss of L5-S1 disc space. He recommended work restrictions
including lifting no more than 25 pounds. Appellant also submitted a July 14, 2010 medical note
indicating that he had undergone a posterior left hip replacement.
In response to a telephone call, OWCP advised appellant to select the type of appeal he
wished to pursue. Appellant requested reconsideration on March 26, 2012. He stated that the
July 14, 2011 letter was a request for reconsideration.
By decision dated June 22, 2012, OWCP declined to review the merits of appellant’s
claim on the grounds that his request for reconsideration was not timely filed and did not
demonstrated clear evidence of error. It performed a limited review of the evidence received
after the hearing representative’s February 17, 2011 decision and determined that there was no
evidence of error on the part of OWCP.
LEGAL PRECEDENT
Under section 8128(a) of FECA2 OWCP has the discretion to reopen a case for review on
the merits, on its own motion or on application by the claimant. It must exercise this discretion in
accordance with section 10.607 of the implementing federal regulations. Section 10.607 provides
that “An application for reconsideration must be sent within one year of the date of OWCP’s
decision for which review is sought.”3 In Leon D. Faidley, Jr.,4 the Board held that the imposition
of the one-year time limitation for filing an application for review was not an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA. The one-year time
limitation period set forth in 20 C.F.R. § 10.607 does not restrict OWCP from performing a limited
review of any evidence submitted by a claimant with an untimely application for reconsideration.
2

Id. at § 8128(a).

3

20 C.F.R. § 10.607.

4

41 ECAB 104, 111 (1989).

3

OWCP is required to perform a limited review of the evidence submitted with an untimely
application for review to determine whether a claimant has submitted clear evidence of error on the
part of OWCP thereby requiring merit review of the claimant’s case.
Thus, if the request for reconsideration is made after more than one year has elapsed from
the issuance of the decision, the claimant may only obtain a merit review if the application for
review demonstrates “clear evidence of error” on the part of OWCP.5
ANALYSIS
The only decision before the Board on this appeal is that of OWCP dated November 1,
2012 in which it declined to reopen appellant’s case on the merits because the request for
reconsideration was not timely filed and did not show clear evidence of error.
The one-year time limitation begins to run on the date following the date of the original
OWCP decision. A right to reconsideration within one year accompanies any subsequent merit
decision on the issues.6 Therefore appellant had one year from February 17, 2011 to submit a
timely request for reconsideration. OWCP received appellant’s March 26, 2012 request for
reconsideration on that date. Because the request was received more than one year after the
February 17, 2011 merit decision, OWCP found the request to be untimely.
However, the Board notes that OWCP also received a letter from appellant dated July 14,
2011 which pertained to the status of his claim. For the reasons notes below, the Board finds that
appellant’s July 14, 2011 letter constituted a timely request for reconsideration.
Although the July 14, 2011 letter did not mention the word reconsideration, the Board has
held that there may be a request for reconsideration in situations where a letter does not contain
the word reconsideration. In Vicente P. Taimanglo,7 Gladys Mercado8 and Jack D. Johnson9 the
Board found that letters written by the employees constituted timely requests for reconsideration
even though they did not mention the word reconsideration. In Taimanglo, the Board stated that,
while no special form is required, the request must be made in writing, identify the decision and
the specific issue(s), for which reconsideration is being requested and be accompanied by
relevant and pertinent new evidence or argument not considered previously.10 In Taimanglo, the
claimant had identified OWCP’s decision in his letter, indicated that additional medical evidence
had been submitted and stated that he was waiting for a response. The Board found that the
letter constituted a timely request for reconsideration. In Mercado, the claimant asked OWCP to
5

20 C.F.R. § 10.607; Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

6

Jack D. Jackson, 57 ECAB 593 (2006).

7

45 ECAB 504 (1994).

8

52 ECAB 255 (2001).

9

Supra note 6.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2 (January 2004);
supra note 7.

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help her reopen her case, provided her case number and submitted additional medical evidence.
The Board found that the claimant’s letter constituted a timely request for reconsideration. In
Johnson, appellant advised that he was enclosing pertinent information related to his claim and
provided his file number as well as submitting medical evidence.
In its February 17, 2011 decision, OWCP advised appellant that, if he disagreed with the
attached decision, he had the right to submit new evidence to OWCP and request reconsideration
of the case or, if he had no additional evidence, he could appeal the decision to the Board. In the
letter of July 14, 2011, appellant included his claim number and stated that he disagreed with the
denial of his claim. He also included the front page of the February 17, 2011 decision and wrote
on it; “I do disagree.” Appellant also stated that he was submitting more medical information.
With this letter, he submitted a series of medical reports. Considering these factors, the Board
finds that appellant’s July 14, 2011 letter constituted a request for reconsideration and that new
medical evidence was submitted in support of the request.
As appellant timely requested reconsideration, OWCP improperly denied his
reconsideration request by applying the legal standard reserved for cases where reconsideration
is requested after more than one year. The Board will remand the case to OWCP for review of
the new medical evidence under the proper standard of review for a timely reconsideration
request and to undertake any appropriate additional development it deems necessary, to be
followed by the issuance of an appropriate decision.
CONCLUSION
The Board finds that appellant’s July 14, 2011 letter constituted a request for
reconsideration which was timely filed within one year of the February 17, 2011 merit decision.
The Board will remand the case for review of this evidence under the proper standard of review
for a timely reconsideration request.

5

ORDER
IT IS HEREBY ORDERED THAT the June 22, 2012 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded to OWCP for further
proceedings consistent with this opinion of the Board.
Issued: April 26, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbia, SC, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 14-514
Issued: July 9, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 6, 2014 appellant filed a timely appeal from an October 30, 2013 merit
decision of the Office of Workers’ Compensation Programs’ (OWCP) hearing representative.
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.
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability from November 27, 2012 to January 10, 2013 causally related to his accepted
February 7, 2009 employment injury.
FACTUAL HISTORY
On February 7, 2009 appellant, then a 45-year-old tractor trailer operator, filed a
traumatic injury claim alleging that he sustained injuries to his left leg, right hand, waist and
1

5 U.S.C. § 8101 et seq.

center back as a result of a motor vehicle accident. He stopped work. OWCP accepted
appellant’s claim for lumbar strain, chest contusion and right forearm contusion.
On March 26, 2009 Dr. J. Robert Alexander, Jr., Board-certified in physical medicine and
rehabilitation, authorized appellant to return to limited duty with restrictions of lifting not to
exceed 15 pounds. On April 1, 2009 appellant returned to limited duty at the employing
establishment.
On August 14, 2009 OWCP expanded appellant’s claim to include left labral rotator cuff
tears.
On August 31, 2009 appellant underwent authorized arthroscopic surgery to his left
shoulder and left rotator cuff. He stopped work and received disability compensation. On
December 8, 2009 appellant returned to modified duty. He received medical treatment and
physical therapy.
In a February 25, 2010 work capacity evaluation, Dr. William Estes, a Board-certified
orthopedic surgeon, noted that appellant was capable of performing his usual job. On March 1,
2010 appellant returned to full duty.
On April 27, 2010 appellant requested a schedule award. On September 16, 2011 OWCP
granted him a schedule award for seven percent impairment of the left arm.
On September 27, 2011 appellant began to work for Southern Tank Transport, a private
company.
In a December 3, 2012 diagnostic report of the lumbar spine, Dr. George Michael Niggel,
a radiologist, observed loss of disc height and small osteophytes at L3-4 and L4-5. He noted
satisfactory alignment.
In a December 3, 2012 progress note, Justin S. Fulkerson, a nurse practitioner, advised
appellant not to return to work until December 10, 2012.
In a January 7, 2013 work restriction note, Dr. Charles F. Way, a Board-certified family
practitioner, stated that appellant had been out of work since November 27, 2012 for back and
sciatic nerve dysfunction. He authorized appellant to return to work on January 8, 2013 without
restrictions.
In a January 22, 2013 statement, appellant noted that his claim was still open for medical
treatment. He requested a Form CA-7 to fill out for time out of work. Appellant reported that he
was treated by his physician, Dr. Way, and also sought treatment from the Veterans’ Affairs
Hospital and from Dr. Alexander.
In a February 1, 2013 report, Dr. Alexander stated that he had not seen appellant since
December 9, 2010. He related that appellant was doing well except for a recent exacerbation of
lumbar pain, specifically in the intermittent right lower extremity radiating to the level of the foot
along a suspect L5, S1 distribution. Dr. Alexander noted that appellant missed one month of
work due to the severity of his symptoms. Upon examination, he observed tenderness of the

2

lumbar paraspinals. Lower extremity motor was 5/5 and straight leg raise testing was mildly
positive on the right. Dr. Alexander diagnosed chronic lumbar pain with new complaint of
intermittent right lower extremity pain and disc bulges with annular tears L3-4, L4-5. He listed a
February 7, 2009 work injury.
In a February 18, 2013 magnetic resonance imaging (MRI) scan of the lumbar spine,
Dr. Monty Smith, a radiologist, related appellant’s complaints of chronic back pain and radiation
down the right leg with weakness. He observed evidence of degenerative disc disease with disc
flattening and modic endplate change at L3-4 and trace disc bulge, endplate osteophyte and facet
degenerative joint disease. Dr. Smith also noted broad-based disc bulge with degenerative
narrowing, modic endplate changes and osteophytic ridging at L4-5, small annular tear disc and
facet degenerative joint disease. He reported no evidence of direct nerve root impingement.
On February 24, 2013 OWCP noted that appellant had been working as a truck driver for
a private company since he left federal employment in 2010. It advised him that if he was
claiming a recurrence of his work-related injury he needed to complete a Form CA-2a and
provide medical evidence in support of his claim.
On March 6, 2013 appellant filed a recurrence of disability claim alleging that from
November 27, 2012 to January 10, 2013 he was unable to work as a result of the February 7,
2009 employment injury. He had worked for a private trucking company since September 2011
as a tractor trailer operator. Appellant’s duties involved climbing in and out of a tractor to
prepare for cement bulk loads, climbing stairs to open and close the hatch for loads, driving to a
location to hook up production hose and unloading cement. He worked 60 to 70 hours a week by
load percentage. Appellant noted that he was also a licensed residential and commercial pest
exterminator. He stated that, after returning to work following the original injury, he was on
light duty for approximately 60 days with restrictions of no driving a tractor trailer, no climbing,
no standing for long periods of time and no lifting more than 15 pounds. Appellant explained
that, after the February 7, 2009 injury, he continued to experience moderate pain in his shoulder
and lower back. He continued to undergo medical treatment, which included a shoulder
operation of his rotator cuff, block shots in his back and taking pain medication. On
November 27, 2012 when appellant tried to get out of bed to go to work, he felt lower back pain
and could not stand up. He described the pain as a level 10. Appellant reported that he went to
the emergency room and was given the same diagnosis as before.
By letter dated March 21, 2013, OWCP advised appellant that the medical evidence was
insufficient to establish that he sustained a recurrence of his original work injury. It requested
additional information to establish his claim.
In a March 25, 2013 report, Dr. Alexander related that appellant’s leg pain was currently
more isolated to the anterior thigh. Examination revealed tenderness of the lumbar paraspinals.
Appellant’s lower extremities were intact. Dr. Alexander diagnosed chronic lumbar and recent
onset of right lower extremity pain and paresthesias, disc protrusions with annular tears at L3-4
and L4-5 and modic endplate changes and bilateral foramina stenosis. He noted a February 7,
2009 work injury.

3

In an April 8, 2013 report, Dr. Alexander examined appellant status post a second
transforaminal epidural. Examination revealed decreased lumbar tenderness and intact lower
extremities. Dr. Alexander diagnosed chronic lumbar radiculopathy, disc protrusions with
annular tears at L3-4, L4-5 and radiation right lower extremity with foramina stenosis. He also
noted a work injury of February 7, 2009. Dr. Alexander opined that appellant had improved but
was still symptomatic. He scheduled appellant for a third epidural injection.
In an April 8, 2013 narrative report, Dr. Alexander stated that appellant had a history of
chronic lumbar radiculopathy and degenerative disc disease following a February 7, 2009 work
injury. He reported that a February 18, 2013 MRI scan demonstrated disc protrusions with
annular tears at L3-4, L4-5 and bilateral foraminal stenosis. Dr. Alexander noted that recent
exacerbation of symptoms resulted in treatment regimen including oral medications, topical pain
patches and three transforaminal epidural injections performed under fluoroscopy. He opined
that as a direct result of symptomatic exacerbation appellant missed work from November 27,
2012 to January 7, 2013. Dr. Alexander stated that appellant continued to receive medical
treatment as needed and was cleared to return to full duty on January 8, 2013.
By decision dated May 13, 2013, OWCP denied appellant’s recurrence claim. It found
insufficient medical evidence to establish that he was unable to work beginning November 27,
2012 as a result of his accepted February 7, 2009 employment injury.
In an appeal request form dated June 6, 2013, appellant requested a review of the written
record. He resubmitted medical reports from 2009 and 2010 and Dr. Alexander’s April 8, 2013
report.
In a decision dated October 30, 2013, an OWCP hearing representative affirmed the
May 13, 2013 decision. She found that the medical evidence was insufficient to establish that
appellant sustained a recurrence of disability causally related to the February 7, 2009
employment injury.
LEGAL PRECEDENT
The term disability as used in FECA means the inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition, which resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.2 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated 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 established physical
limitations.3

2

20 C.F.R. § 10.5(x).

3

Id.

4

An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden to establish by the weight of the reliable, probative and
substantial evidence a recurrence of total disability and show that he or she cannot perform such
light duty. As part of this burden, 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 light-duty
requirements.4 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes, on the basis of a complete and accurate factual and medical history,
that the disabling condition is causally related to the employment injury. The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
OWCP accepted that on February 7, 2009 appellant sustained a lumbar strain, chest and
right forearm contusion and left shoulder rotator cuff tear. Appellant stopped work and returned
to limited duty. On August 31, 2009 he underwent authorized arthroscopic surgery to his left
shoulder and left rotator cuff repair and stopped work again. On December 8, 2009 appellant
returned to limited duty and to full duty on March 1, 2010.
On September 27, 2011 appellant began to work at a private trucking company. On
November 27, 2012 he stopped work and returned on January 10, 2013. Appellant filed a claim
for a recurrence of disability. OWCP denied his claim finding insufficient medical evidence to
establish that he was unable to work beginning November 27, 2012 as a result of the accepted
February 7, 2009 employment injury. The Board finds that appellant did not meet his burden of
proof to establish that he sustained a recurrence of disability for the period November 27, 2012
to January 10, 2013.
Appellant provided several reports over the years from Dr. Alexander. In a February 1,
2013 report, Dr. Alexander stated that he had not examined appellant since December 9, 2010.
He reported that appellant was doing well except for recent lumbar pain and had missed one
month of work due to the severity of the symptoms. Dr. Alexander conducted a physical
examination and diagnosed chronic lumbar pain with new complaint of intermittent right lower
4

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (January 2013).

6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

5

extremity pain and disc bulges with annular tears at L3-4, L4-5. He listed a February 7, 2009
work injury. Dr. Alexander provided medical treatment and administered epidural injections. In
an April 8, 2013 narrative report, he diagnosed chronic lumbar radiculopathy, disc protrusions
with annular tears at L3-4, L4-5 and radiation right lower extremity with foraminal stenosis.
Dr. Alexander related that appellant had a history of chronic lumbar radiculopathy and
degenerative disc disease following a February 7, 2009 work injury. He opined that as a direct
result of symptomatic exacerbation appellant missed work from November 27, 2012 to
January 7, 2013.
Dr. Alexander reported that appellant was unable to work from November 27, 2012 to
January 7, 2013 as a result of the severity of his symptoms. He conducted an examination and
diagnosed chronic lumbar pain with new complaint of intermittent right lower extremity pain,
disc bulges with annular tears at L3-4, L4-5 and chronic lumbar radiculopathy. Although
Dr. Alexander addressed the period of disability commencing November 27, 2012, he attributed
appellant’s inability to work due to lumbar pain, as well as new complaints of right lower
extremity pain and disc bulges with annular tears. The Board notes that Dr. Alexander did not
relate appellant’s incapacity for work to any of the accepted conditions of lumbar strain, chest
and right forearm contusion and left shoulder rotator cuff tear. Dr. Alexander failed to explain
how appellant’s complaints of right lower extremity pain and disc bulges were a result of change
in the nature and extent of his February 7, 2009 employment injury. The Board has held that a
recurrence of disability does not occur where the claimant’s work stoppage is caused by a new or
intervening injury, even if the new injury involves the same part of the body previously injured.8
Dr. Alexander did not provide sufficient medical rationale to support any objective worsening of
appellant’s accepted lumbar condition which caused his inability to work. Accordingly, his
reports are insufficient to establish that appellant’s claimed disability from November 27, 2012
to January 10, 2013 is causally related to his original February 7, 2009 work injury.
Similarly, the Board finds that Dr. Way’s January 7, 2013 work restriction note also fails
to establish appellant’s recurrence claim as he does not attribute his inability to work to the
February 7, 2009 employment injury. Dr. Way reported that appellant was out of work
beginning November 27, 2012 for back and sciatic nerve dysfunction. He does not provide any
medical explanation for how appellant’s back and sciatic nerve dysfunction developed from his
accepted lumbar strain condition and caused any recurrence of disability.
The additional diagnostic reports by Drs. Niggel and Smith are also insufficient to
establish appellant’s claim. While they provide findings related to appellant’s back condition,
none of the physicians provided any opinion on whether appellant’s current lumbar condition
was causally related to the original February 7, 2009 employment injury and resulted in his
inability to work from November 27, 2012 to January 10, 2013. The Board has found that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.9

8

L.R., Docket No. 10-744 (issued October 25, 2010).

9

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

6

Appellant also submitted a December 3, 2012 progress note by Mr. Fulkerson, a nurse
practitioner that advised him not to work until December 10, 2012. Because nurse practitioners
are not “physicians” as defined under FECA, his opinion is of no probative value.10
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 did not meet his burden of proof to establish a recurrence
of disability from November 27, 2012 to January 10, 2013 causally related to his accepted
February 7, 2009 employment conditions.
ORDER
IT IS HEREBY ORDERED THAT the October 30, 2013 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: July 9, 2014
Washington, DC

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

10

Section 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, NORTHERN NEW
JERSEY PERFORMANCE CLUSTER,
Kearney, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1308
Issued: September 9, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 22, 2020 appellant, through counsel, filed a timely appeal from a March 17, 2020
merit decision and a May 29, 2020 nonmerit 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. 3
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.

3
The Board notes that, following the March 17, 2020 decision, OWCP received additional evidence. 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of disability on or after March 4, 2017 causally related to her accepted employment conditions;
and (2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board on a different issue.4 The facts and
circumstances of the case as set forth in the Board’s prior decision are incorporated herein by
reference. The relevant facts are as follows.
On June 23, 2011 appellant, then a 38-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that she sustained a lumbar sprain due to her work duties, which
included prolonged standing, engaging in lifting, pushing, and bending. She indicated that she
first became aware of her claimed condition on June 13, 2011. Appellant stopped work on
June 14, 2011 and returned to limited-duty work on July 23, 2011. OWCP accepted that she
sustained thoracic or lumbosacral radiculitis/neuritis and lumbar radiculopathy, and it paid wageloss compensation on the supplemental rolls for disability from work.
The findings of a July 20, 2011 magnetic resonance imaging (MRI) scan of the lumbar
spine contained an impression of disc herniation at L5-S1 with annular tear and bilateral posterior
bulging of the annulus fibrosus at L4-5. In a January 10, 2012 report, Dr. Allen Glushakow, an
attending Board-certified orthopedic surgeon, reported physical examination findings and
diagnosed lumbosacral radiculitis, herniated L5-S1 disc, and significant bulging at L4-5.
OWCP referred appellant to Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, for
an examination and second opinion regarding whether she continued to have residuals of her
accepted employment conditions. In a February 17, 2012 report, Dr. Lakin reported findings on
physical examination, noting that appellant had minimal tenderness in her lower paralumbar
musculature bilaterally with no spasms. Appellant had 5/5 strength in her legs and a normal
neurological examination with minimal tenderness in the lumbar spine. Dr. Lakin opined that
appellant’s employment-related conditions had resolved, that she had no concurrent nonworkrelated disability, and that she could perform her regular-duty work.
In a May 15, 2012 letter, OWCP advised appellant that it proposed to terminate her wageloss compensation and medical benefits based on Dr. Lakin’s February 17, 2012 report. It afforded
appellant 30 days to submit evidence or argument challenging the proposed action. In response,
appellant submitted April 17, May 24, and June 8, 2012 reports from Dr. Glushakow. In his
June 8, 2012 report, Dr. Glushakow diagnosed lumbosacral radiculitis, herniated L5-S1 disc, and
probable disc protrusion at L4-5, and noted, “In my opinion, [appellant’s] diagnoses are causally
related to the accident of June 13, 2011 and represent an aggravation of a previous condition as
well.”

4

Docket No. 13-2049 (issued February 12, 2014).

2

By decision dated July 5, 2012, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective July 5, 2012, based on Dr. Lakin’s February 17, 2012 report.
Appellant subsequently submitted November 13 and December 12, 2012 reports in which
Dr. Glushakow opined that her herniated lumbar disc and lumbar radiculopathy conditions were
greatly accelerated by the performance of her repetitive work duties. He indicated that she
continued to have disability due to the effects of this work-related aggravation.
By decision dated March 7, 2013, OWCP’s hearing representative affirmed the July 5,
2012 termination decision. Appellant appealed to the Board and, by decision dated February 12,
2014,5 the Board affirmed the March 7, 2013 termination decision.
In early-2017 appellant was working in a full-time limited-duty position at the employing
establishment. She stopped work on March 4, 2017.
In a March 21, 2017 report, Dr. Sayed Bakhaty, a Board-certified anesthesiologist ,
indicated that appellant presented on that date and reported worsening symptoms of lower back
pain, which radiated into both lower extremities down to the feet (right more than left). He noted
that, upon physical examination, appellant’s lumbar spine flexion was restricted by 45 degrees and
her extension was restricted by 15 degrees. Appellant exhibited tenderness/spasm along the
paraspinal muscles at L3 through S1 and the neurological examination revealed diminished
sensation to light touch/pinprick bilaterally. Dr. Bakhaty noted that appellant had a weakness
grade of 4/5 associated with the right L5 nerve, and that her left ankle dorsiflexion and knee
extension also had a weakness grade of 4/5. He diagnosed status post work-related injury in
June 2011 with exacerbation of previous back injuries, which was stabilized prior to the injury,
status post lumbar discography with positive concordant pain emanating from L5-S1 and L4-5
with evidence of annular tear at both levels and right foraminal stenosis/herniation, post-traumatic
lumbar radiculopathy (persistent and recurrent), post-traumatic lumbar facet joint pain syndrome ,
and post-traumatic myofascial pain syndrome. Dr. Bakhaty opined that all these diagnoses were
causally and directly related to the work-related injury in June 2011, which exacerbated a previous
work-related injury at the lower back, thereby causing a worsening of symptoms. He noted that,
in the prior few weeks, she had experienced a recent exacerbation, warranting increased treatment,
and he maintained that appellant sustained permanent injuries, which continued to interfere with
her daily living activities, working activities, and sleep pattern. Dr. Bakhaty recommended that
appellant undergo selective disc decompression at L4-S and L5-1 with right foraminal
decompression, including facetectomy, laminotomy, herniectomy, and annuloplasty at both levels.
In a March 31, 2017 report, Dr. Francis A. Pflum, a Board-certified orthopedic surgeon,
indicated that appellant was seen on that date and complained of low back pain that radiated into
her right lower extremity. Appellant reported that she stopped work on February 4, 2017 due to
increased weakness in her right lower extremity. Dr. Pflum noted that, upon physical examination,
appellant exhibited diffuse tenderness and a marked decrease in range of motion of the lumbosacral
spine, as well as decreased sensation in the entire right lower extremity. He reported that appellant
had a mild decrease in strength in the extensor hallucis longus on the right side and unequivocal
weakness of plantar ﬂexion at both ankles (more on the right than the left). Dr. Pflum noted that
appellant was markedly disabled and was a candidate for surgery. He indicated, however, that he

5

Id.

3

was waiting for a new MRI scan to be obtained and advised that appellant would be reevaluated
after it was obtained.
On April 7, 2017 appellant filed a notice of recurrence (Form CA-2a) alleging that she
sustained a recurrence of total disability on March 4, 2017 causally related to her accepted
employment conditions. She asserted that she had been working in a limited-duty position on a
full-time basis and was operating a flat sorting machine at the beginning of March 2017 when,
over the course of a week, she started having back pain that radiated into her right leg. Appellant
believed that her current condition was related to her original employment injury because she was
experiencing the same symptoms, including an inability to put pressure on her right leg due to
pain. On the reverse side of the form a supervisor indicated that appellant’s limited-duty job
restricted her from lifting more than 10 pounds or engaging in climbing or kneeling.
In support of her recurrence claim, appellant submitted a March 8, 2017 note from
Dr. Glushakow who placed her off work beginning March 4, 2017 due to incapacitation from an
L5 radiculopathy. Dr. Glushakow indicated that on March 13, 2017 appellant would be able to
perform light-duty work, which did not require lifting more than 10 pounds. In a March 21, 2017
note, Dr. Bakhaty noted that appellant was seen with severe lower back pain and had been advised
to stay off work for two weeks pending reevaluation. In a March 22, 2017 note, Dr. Glushakow
advised that appellant was totally incapacitated from work for two weeks beginning
March 13, 2017. In an April 11, 2017 note, Dr. Bakhaty indicated that appellant underwent a
lumbar epidural injection on April 6, 2017 and was scheduled for another on April 12, 2017. He
indicated that appellant had been advised to stay off work in order to treat the worsening symptoms
of “her previous work-related injury.”
An April 21, 2017 MRI scan of appellant’s lumbar spine revealed an impression of
posterior disc herniation at L5-S1, ventral herniation at L4-5 with an associated annular tear, and
umbilical hernia containing omental adipose tissue.
In an April 25, 2017 report, Dr. Bakhaty diagnosed status post work-related accident in
June 2011 with multiple injuries most marked at the lower back, which persisted despite the
prolonged course of conservative measures, status post lumbar sensory transforaminal epidural
injection with moderate improvement of pain and then recurrence of symptoms interfering with
daily living activities, working activities, and sleep pattern. post-traumatic lumbar disc herniation
more signiﬁcant at L5-S1 and L4-5 with evidence of herniation, annular tear, foraminal stenosis,
and persistent post-traumatic lumbar radiculopathy; and post-traumatic myofascial pain syndrome.
He asserted that all these diagnoses were causally and directly related to the June 2011 accident.
In a May 18, 2017 report, Dr. Pflum discussed the April 21, 2017 MRI scan report and
opined that appellant’s low back/lower extremity pain and right lumbar radiculopathy (secondary
to herniated discs) were related to the June 13, 2011 employment injury. He indicated that most
of appellant’s problems stemmed from the L5-S1 discs and some stemmed from the L4-5 discs.
Dr. Pflum requested authorization for low back surgery, including a discectomy from the right side
at L4-5 (far lateral approach at L5) with foraminotomy and annuloplasty, as well as discectomy at

4

L5-S1 (posterior approach) with a laminotomy, disc excision, and a post-discectomy treatment.
He advised that appellant had an intubation problem during a previous attempt at surgery. 6
In a development letter dated September 14, 2017, OWCP requested that appellant submit
additional factual evidence in support of her recurrence of disability claim, including a physician’s
opinion supported by a medical explanation regarding the relationship between the claimed
disability and the accepted employment conditions. It provided a questionnaire for her completion,
which posed questions regarding why she believed she sustained an employment-related
recurrence of disability. OWCP afforded her 30 days to respond.
In response, appellant submitted a September 13, 2017 of Dr. Bakhaty, which was similar
to his April 25, 2017 report. Dr. Bakhaty again opined that appellant’s multiple diagnoses were
causally related to the June 2011 employment injury. He advised that appellant’s pain symptoms
grossly affected her daily living activities, working activities, sleep pattern, and overall quality of
life.
In a September 14, 2017 report, Dr. Pflum indicated that he had recommended that
appellant undergo low back surgery.
In a September 28, 2017 report, Dr. Pflum advised that when he evaluated appellant on
March 31, 2017 she had stopped working due to an exacerbation of pain symptoms related to her
June 13, 2011 employment injury, which had never gone away. He indicated that after lateFebruary 2017 the symptoms became so severe that she had to stop working on March 4, 2017.
Dr. Pflum maintained that the reason appellant stopped working had to do with her previous injury
and noted that there was no intervening injury or new exposure to the factors causing the original
illness. With respect to the March 4, 2017 work stoppage, he further noted, “[T]he reason that she
stopped working was because of the fact that she had an exacerbation of her symptoms and she
had increased pain and increased weakness of her right upper extremity which precluded her from
working. At that time, it appeared that she was markedly disabled…. She is unable to continue to
work.” Dr. Pflum indicated that, due to appellant’s disability, he had requested authorization for
surgical intervention.
By decision dated October 16, 2017, OWCP denied appellant’s recurrence of disability
claim, finding that she had not submitted sufficient medical evidence to establish a recurrence of
disability commencing March 4, 2017 causally related to her accepted employment conditions.
On February 22, 2018 appellant, through counsel, requested reconsideration of the
October 16, 2017 decision.
In an undated response to OWCP’s development questionnaire, appellant indicated that in
early March 2017 she experienced a worsening of the same type of back and right lower extremity
pain she had experienced since her original employment injury. She asserted that she had been
totally disabled from work since stopping work on March 4, 2017.
Appellant submitted October 19 and November 30, 2017 reports in which Dr. Pflum noted
that she continued to exhibit examination findings of sensory loss and decreased strength in her
6

In July 27 and August 24, 2017 reports, Dr. Pflum again noted that he had recommended that appellant undergo
low back surgery.

5

right lower extremity. In a January 16, 2018 report, Dr. Bakhaty diagnosed status post workrelated injury in June 2011, with multiple injuries most marked at the lower back, status post
lumbar transforaminal epidural injection with moderate improvement of leg symptoms and
persistent recurrent axial lower back pain, post-traumatic bilateral lumbar facet joint pain
syndrome, post-traumatic lumbar radiculopathy, improving following injections, with recurrent
disc herniation awaiting surgery, and post-traumatic myofascial pain syndrome. He opined that
these conditions were causally related to the June 2011 accident.7
In a January 18, 2018 report, Dr. Pflum discussed appellant’s medical history, including
the findings of the examination he conducted on April 7, 2016. He opined that appellant was
disabled due to L4-5 and L5-S1 disc pathologies and lumbar radiculopathies, which were causally
related to her June 13, 2011 employment injury. In April 5 and 19, August 16, and December 20,
2018 reports, Dr. Pflum indicated that appellant continued to be disabled and in need of surgical
intervention.8 In his December 20, 2018 report, he again requested authorization for low back
surgery, including discectomy from a posterior approach with laminotomy at L5-S1, and
discectomy from the right side from a far lateral transforaminal/transpedicular approach with
foraminotomy and discectomy on the right side at L4-5.
By decision dated January 30, 2019, OWCP denied modification of its October 16, 2017
decision.
On January 10, 2020 appellant, through counsel, requested reconsideration of the
January 30, 2019 decision.
Appellant submitted April 4, August 28, and November 6, 2019, and February 12, 2020
reports from Dr. Pflum who indicated that she was totally disabled from work and in need of
surgical intervention.
In a February 19, 2020 report, Dr. Kenechukwu Ugokwe, a Board-certified neurosurgeon,
serving as an OWCP district medical adviser, indicated that he had reviewed Dr. Pflum’s most
recent report and agreed with his opinion that appellant’s current medical condition was causally
related to the original employment injury. He noted that appellant did not have back and leg pain
prior to the original work injury. Dr. Ugokwe opined that the proposed discectomy from a
posterior approach with laminotomy at L5-S1 was necessitated by the accepted employment
conditions.
By decision dated March 17, 2020, OWCP denied modification of the January 30, 2019
decision.
By separate decision dated March 17, 2020, OWCP authorized lumbar surgery, including
discectomy from a posterior approach with laminotomy at L5-S1, and discectomy from the right

7

Dr. Bakhaty produced a similar report on May 22, 2018.

8

In an April 19, 2018 duty status report (Form CA-17), Dr. Pflum listed the date of injury as June 13, 2011,
provided a diagnosis “due to injury” of herniated lumbar discs, and found that appellant was totally disabled from
work.

6

side from a far lateral transforaminal/transpedicular approach with foraminotomy and discectomy
on the right side at L4-5.
On May 26, 2020 appellant, through counsel, requested reconsideration of the March 17,
2020 decision. Counsel noted that OWCP had approved lumbar surgery on March 17, 2020, but
advised that appellant had not yet undergone the surgery due to the COVID-19 pandemic. He
asserted that Dr. Pflum’s reports and other medical evidence showed that appellant was “very
disabled” and required lumbar surgery.
Appellant submitted copies of reports dated August 24, September 14 and 28, October 19,
and November 30, 2017 by Dr. Pflum and a July 20, 2011 MRI scan of the lumbar spine, which
had previously been submitted to OWCP.
By decision dated May 29, 2020, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).9
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.10 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.11
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.12
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
9

It is noted that there is no indication in the case record that, by the time OWCP issued the May 29, 2020 decision,
appellant had undergone the lumbar surgery authorized by OWCP on March 17, 2020.
10

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

11

Id.

12

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

injury, and supports that conclusion with medical reasoning. 13 Where no such rationale is present,
the medical evidence is of diminished probative value. 14
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.15 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.
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
Appellant submitted a September 28, 2017 report from Dr. Pflum who advised that when
he evaluated appellant on March 31, 2017 she had stopped working due to an exacerbation of pain
symptoms related to her June 13, 2011 employment injury, which had never gone away. 16 He
indicated that after late-February 2017 the symptoms became so severe that she had to stop
working on March 4, 2017. Dr. Pflum maintained that the reason appellant stopped working had
to do with her previous injury and noted that there was no intervening injury or new exposure to
the factors causing the original illness. With respect to the March 4, 2017 work stoppage, he
further noted, “[T]he reason that she stopped working was because of the fact that she had an
exacerbation of her symptoms and she had increased pain and increased weakness of her right
upper extremity which precluded her from working. At that time, it appeared that she was
markedly disabled…. She is unable to continue to work.” Dr. Pflum indicated that, due to
appellant’s disability, he had requested authorization for surgical intervention.
In a January 18, 2018 report, Dr. Pflum discussed appellant’s medical history, including
the findings of the examination he conducted on April 7, 2016. He opined that appellant was
disabled due to lumbar radiculopathies, as well as L4-5 and L5-S1 disc pathologies, which were
casually related to her June 13, 2011 employment injury. Appellant also submitted a March 8,
2017 report from Dr. Glushakow who placed her off work beginning March 4, 2017 due to
incapacitation from her lumbar radiculopathy. In an April 11, 2017 report, Dr. Bakhaty indicated
that appellant should stay off work in order to treat the worsening symptoms of her employmentrelated injury. Further, the DMA indicated that he had agreed with Dr. Pflum’s opinion that
appellant’s current medical condition was causally related to the original employment injury. He

13

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

14

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

15

See 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).
16

OWCP accepted that appellant sustained thoracic or lumbosacral radiculitis/neuritis and lumbar radiculopathy.
Appellant had indicated that she sustained these conditions by performing her work duties over a period of time and
that she first became aware of them on June 13, 2011.

8

opined that the proposed discectomy from a posterior approach with laminotomy at L5-S1 was
necessitated by the accepted employment conditions.
The Board notes that proceedings under FECA are not adversarial in nature, and OWCP is
not a disinterested arbiter. 17 The Board finds that while the reports of appellant’s attending
physicians, Drs. Pflum, Glushakow, and Bakhaty, are insufficient to meet appellant’s burden of
proof, they raise an uncontroverted inference of causal relation between her claimed recurrence of
disability and her accepted federal employment conditions. Further development of appellant’s
claim is therefore required.18
On remand OWCP shall prepare a statement of accepted facts and refer appellant to an
appropriate Board-certified specialist for a second opinion examination and an evaluation
regarding whether she sustained a recurrence of disability on or after March 4, 2017 causally
related to her accepted employment conditions. If the physician opines that appellant did not have
employment-related disability on or after March 4, 2017, he or she must explain with rationale
how or why the opinion differs from those of Drs. Pflum, Glushakow, and Bakhaty.19 Following
any necessary further development, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

17

See B.B., Docket No. 18-1321 (issued April 5, 2019).

18

See C.M., Docket No. 17-1977 (issued January 29, 2019); John J. Carlone, 41 ECAB 354 (1989).

19

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

9

ORDER
IT IS HEREBY ORDERED THAT the March 17 and May 29, 2020 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded to OWCP for
further proceedings consistent with this decision of the Board.
Issued: September 9, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 16-0457
Issued: June 6, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 8, 2016 appellant filed a timely appeal of a July 14, 2015 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)(1) and 501.3, the Board has jurisdiction
to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
her medical conditions on January 27, 2015 causally related to her 2001 accepted lumbar strain.
FACTUAL HISTORY
On August 1, 2001 appellant, then a 41-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she developed back spasm on the left side of her spine
due to her employment duties of pushing and pulling carts of mail, unloading mail while lifting,
1

5 U.S.C. § 8101 et seq.

bending, and squatting. She first became aware of her condition on July 23, 2001 and also first
attributed her condition to her employment duties on that date. Appellant stopped work on
July 17, 2002. OWCP accepted appellant’s claim for lumbar strain on October 17, 2001. On
July 30, 2002 appellant’s physician released her to return to work. Appellant returned to work
eight hours a day on September 23, 2002 with restrictions in her capacity as a modified mail
handler.
By decision dated September 16, 2003, OWCP reduced appellant’s wage-loss
compensation benefits to zero as her position as a modified letter carrier effective September 23,
2002 fairly and reasonably represented her wage-earning capacity. It noted that appellant’s
actual earnings met or exceeded the current wages of her date-of-injury position.2 She continued
to receive medical benefits. Physical therapy was authorized and in 2006 and 2007 she was
authorized to receive facet injections for pain.
Appellant was later, in 2009, authorized to receive acupuncture treatment. However,
after a period of time, OWCP denied any further medical treatment without a statement on causal
relationship.
Accordingly, OWCP referred appellant for a second opinion evaluation on March 11,
2011 with Dr. Marvin Van Hal, a Board-certified orthopedic surgeon. In a report dated
March 31, 2011, Dr. Van Hal diagnosed lumbar strain/sprain without radiculopathy with
prolongation of symptoms greater than what would be physiologically reasonable. He opined
that appellant had no need of further physical therapy or other formal care. Dr. Van Hal found
that appellant was at maximum medical improvement, that she had no permanent impairment,
and that he was unable to determine why she continued to require limited duty.
Dr. Van Hal’s report was forwarded to appellant’s attending physician, Dr. Louis D.
Zegarelli, an osteopath, for review. He completed a report on June 8, 2011 and explained
appellant’s chronic pain and requested that her conditions be upgraded to include chronic
mechanical lumbosacral sprain syndrome, posterior facet syndrome, and lumbar myofibrositis.
Accordingly, OWCP referred appellant for an impartial medical examination with
Dr. Bernie L. McCaskill, a Board-certified orthopedic surgeon, to resolve the conflict between
Drs. Zegarelli and Val Hal. In his August 2, 2011 report, Dr. McCaskill diagnosed
spondylogenic lumbosacral spine pain associated with bilateral lower extremity symptoms,
anatomic etiology undetermined. He opined that appellant’s lumbar sprain/strain had resolved as
there was no objective evidence of injury. Dr. McCaskill recommended no further treatment.
On December 5, 2011 appellant filed a recurrence claim (Form CA-2a) claiming
weakness in his hands and problems with his knee due to no modified job. She stopped work on
November 4, 2011 as the employing establishment indicated that no work was available for her.
By decision dated December 13, 2011, OWCP denied appellant’s claim for recurrence of
disability finding that the weight of the medical evidence rested with Dr. McCaskill, the

2

Appellant accepted modified mail handler positions on February 2, 2005 and July 28, 2009.

2

impartial medical examiner who found that appellant’s work-related condition had resolved and
that she could return to her date-of-injury position.
Appellant continued to submit requests for authorization of various medical procedures
and treatment but, by letter dated July 21, 2014, OWCP denied authorization as the requests had
not been accompanied by a statement on causal relationship to the 2001 lumbar strain.
On March 2, 2015 appellant again filed a claim for recurrence of disability (Form CA-2a)
alleging on January 27, 2015 her condition worsened with more pain, stiffness, and tingling in
her lower back and leg. She did not stop work and noted that she had performed various
modified jobs with restrictions since July 23, 2001. Appellant claimed medical treatment only
and noted that her condition had never ceased, but that OWCP had closed her claim as her
physician failed to change her medical code to upgrade her injury status. She asserted that she
had changed physicians.
The most recent medical report in the record is dated November 11, 2014 from Dr. Jeff
Fritz, a Board-certified anesthesiologist, He described appellant’s symptoms of low back pain
and tightness, noted her accepted condition of lumbar sprain, and diagnosed chronic low back
injury. Dr. Fritz recommended therapy, orthotics, and weight loss.
In a letter dated June 8, 2015, OWCP requested additional supporting documentation
including medical evidence to support her claim. It allotted her 30 days to submit supporting
evidence. Appellant did not respond within the time allotted.
By decision dated July 14, 2015, OWCP denied appellant’s claimed recurrence as there
was insufficient medical evidence to support the need for continuing medical treatment of her
2001 accepted lumbar strain.
LEGAL PRECEDENT
A recurrence of a medical condition is defined as a documented need for further medical
treatment after release from treatment for the accepted condition or injury.3 Continuous
treatment for the original condition or injury is not considered a recurrence of a medical
treatment nor is an examination without treatment.4 As distinguished from a recurrence of
disability, a recurrence of a medical condition does not involve an accompanying work
stoppage.5
It is the employee’s burden to establish that the claimed recurrence is causally related to
the original injury.6 Causal relationship is a medical issue that can generally be resolved only by
3

20 C.F.R. § 10.5(y).

4

Id.

5

Id. at § 10.5(x).

6

Id. at § 10.104. See also D.T., Docket No. 15-1114 (issued February 1, 20016); Mary A. Ceglia, 55 ECAB 626,
629 (2004).

3

rationalized medical opinion evidence. A medical report is of limited probative value on a given
medical question if it is unsupported by medical rationale.7 Medical rationale includes a
physician’s detailed opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment activity. The opinion of the
physician must be based on a complete factual and medical background of the claim, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment activity or
factors identified by the claimant.8
In order to establish that a claimant’s alleged recurrence of the condition was caused by
the accepted injury, medical evidence of bridging symptoms between her present condition and
the accepted injury must support the physician’s conclusion of a causal relationship.9
ANALYSIS
OWCP accepted that appellant’s August 1, 2001 employment injury resulted in a lumbar
strain. Appellant returned to modified work beginning September 23, 2002 and reported on
March 2, 2015 that she continued to perform various modified jobs with restrictions. Her claim
alleged that her medical condition deteriorated on January 27, 2015 requiring further treatment.
Appellant has the burden of establishing by the weight of the substantial, reliable, and
probative evidence, a causal relationship between the recurrence of her medical condition and
need for further medical treatment on January 27, 2015 and her July 23, 2001 employment
injury.10 Although the record does include medical evidence submitted prior to January 27,
2015, the date her disability allegedly began, she has submitted no medical evidence in support
of a change in the nature and extent of her injury-related condition or the need for further
medical treatment to support this current claim.
The Board finds that the evidence submitted by appellant is not sufficient to establish a
causal connection between the alleged recurrence of her medical conditions and the accepted
employment injury. Appellant has the burden of submitting sufficient medical evidence to
document the need for further medical treatment. She did not submit such evidence as required
and failed to establish a need for continuing medical treatment.
On appeal appellant notes her frustration with OWCP’s decision to close her claim and
her desire to reopen her claim to receive further medical treatment. As noted, OWCP denied
appellant’s recurrence claim as there was no medical evidence establishing a causal connection
between the alleged recurrence of her medical condition and the accepted employment injury.

7

T.F., 58 ECAB 128 (2006).

8

A.D., 58 ECAB 149 (2006).

9

D.T., and Mary A. Ceglia, supra note 5.

10

Dominic M. DeScala, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-09 (1982).

4

Appellant may submit new evidence or argument as part of a formal 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 her medical conditions as of January 27, 2015 causally related to her 2001 accepted lumbar
strain.
ORDER
IT IS HEREBY ORDERED THAT the July 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 6, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

5