United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 12-1751
Issued: February 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 13, 2012 appellant filed a timely appeal from a May 8, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability for the period
September 6 to October 7, 2011 causally related to his October 21, 2010 employment injury.
FACTUAL HISTORY
On October 21, 2010 appellant, then a 45-year-old laborer, filed a traumatic injury claim,
alleging that he pulled on a rope to a garage door that day, which broke, causing him to fall on
the cement floor. He stopped work that day and returned to work on November 7, 2010. OWCP
1

5 U.S.C. § 8101 et seq.

accepted appellant’s claim for left ankle sprain, right lateral epicondylitis, right bicipital
tendinitis and a right shoulder/upper arm supraspinatus sprain.
Dr. John K. Head, a Board-certified emergency medicine physician, treated appellant for
his October 21, 2010 injury. In a report dated December 6, 2010, he released appellant to full
duty.
In a report dated September 7, 2011, Dr. Head related appellant’s medical history, which
included two prior incidents: an injury in 1988 when he was struck by a car when employed at a
Sears automobile repair shop and a 1999 injury which occurred in the course of his postal service
employment. He indicated that in 1999 appellant’s then treating physician, opined that appellant
was unable to work for one month on account of the injuries to his right wrist, elbow and
shoulder occurring due to his postal service employment. Dr. Head related that appellant had a
history of ongoing pain in his neck, back, knee and calves. Appellant contemplated a disability
retirement. He did not address appellant’s disability for work.
On September 26, 2011 appellant filed a claim for wage loss for the period September 6
to October 7, 2011.
OWCP notified appellant in an October 3, 2011 letter that additional medical evidence
was needed to substantiate his disability for the claimed period. It did not receive a response.
In a November 7, 2011 decision, OWCP denied appellant’s recurrence claim on the
grounds that he did not submit medical evidence to establish his disability for work during the
claimed period.
Appellant disagreed with the decision and on November 21, 2011 requested an oral
hearing. The hearing was held on March 5, 2012.
In a medical note dated September 12, 2011, received by OWCP on November 15, 2011,
Dr. Head related that appellant’s right wrist, right elbow and right shoulder injuries occurred at
work. He diagnosed tendinitis and stated that appellant was unable to grip, lift trash cans, sweep
or use the grabber. Therefore, he should remain off work for a period of a month.
Dr. Samy F. Bishai, a Board-certified orthopedic surgeon, reported on October 13, 2011
that appellant’s medical history included a 1988 nonfederal injury, the accepted 1999 and
October 21, 2010 injuries, as well as a separate September 5, 2011 work incident. He opined
that the October 21, 2010 and September 5, 2011 incidents exacerbated conditions referable to
the 1988 injury. Dr. Bishai also noted that a 2008 lumbar magnetic resonance imaging (MRI)
scan disclosed a disc herniation. He diagnosed appellant with a work-related aggravation of
lumbar disc herniation, cervical and lumbar sprains, cervical and lumbar disc syndrome, as well
as bilateral lower extremity radiculopathy. Dr. Bishai concluded that appellant had been unable
to work since September 5, 2011.
Dr. Gary K. Arthur, a Board-certified physician in psychiatry and neurology, submitted a
report dated November 23, 2011. He listed appellant’s nonfederal 1988 injury. Dr. Arthur
diagnosed appellant with mood disorder, generalized anxiety disorder with panic attacks, as well
as substance dependence.
2

In reports dated January 5 and February 6, 2012, Dr. Bishai presented a history of
appellant’s employment duties. He noted that appellant stopped work on September 5, 2011.
Dr. Bishai reaffirmed his diagnosis of cervical and lumbar sprain, disc conditions, as well as
radiculopathy. He stated that work activities such as lifting and bending aggravated appellant’s
back such that he had to stop work on September 5, 2011.
At the hearing, appellant testified that he returned to full duty on November 7, 2010 and
stopped work on September 6, 2011. He stated that on September 5, 2011, the pain in his right
arm and shoulder was aggravated as a result of performing work tasks such as sweeping, lifting
and grabbing. Appellant asserted that his work tasks aggravated the conditions accepted in
connection with the October 21, 2010 injury. Appellant’s representative argued that Dr. Bishai’s
February 21, 2012 report supported disability for work during the period claimed.
In a February 21, 2012 report, Dr. Bishai noted appellant’s 1988 nonfederal employment
injury and the accepted October 21, 2010 work injury. He made findings of right shoulder
diminished range of motion, as well as right elbow and wrist tenderness and diminished range of
motion, and diagnosed appellant with right shoulder supraspinatus sprain, right bicipital
tendinitis, right lateral epicondylitis, right wrist sprain and left ankle sprain. Dr. Bishai stated
that appellant would undergo further MRI scan evaluations and then return for a follow up
examination. He opined that appellant was unable to work as of September 6, 2011 and
continuing due to these conditions.
In an April 25, 2012 report, Dr. Bishai explained that appellant had missed three weeks of
work following his right shoulder, wrist, elbow and left ankle injuries of October 21, 2010.
Appellant returned to work for nine months, but his conditions worsened until he was unable to
use his arm and he had to stop working on September 5, 2011. Dr. Bishai stated that an MRI
scan performed on March 13, 2012 showed that appellant’s condition had objectively worsened
and he had developed right shoulder impingement syndrome, mild AC joint arthropathy, rotator
cuff tendinosis without tear, but with subchondral erosion of the humeral head, associated with
impingement. Dr. Bishai concluded:
“These findings indicate that [appellant] had suffered aggravation of his existing
condition of the injury that occurred on October 21, 2010 and that this
aggravation of September 5, 2011 was caused by acceleration of [appellant’s]
symptoms to a point where [he] was simply unable to return to work because he
could not use his right shoulder and arm. It also should be noted that the
aggravation of the preexisting condition was caused by the patient performing his
duties as a custodian … which includes the movements of grasping, sweeping,
lifting above his shoulder repetitively and months of this type of work has caused
this aggravation of the preexisting condition and it is indeed a permanent
aggravation of his existing injury.”
In a May 8, 2012 decision, the hearing representative denied appellant’s claim finding
that the medical evidence did not support disability commencing September 6, 2011 causally
related to the accepted October 21, 2010 injury.

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LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.2 Where an employee claims a recurrence of disability due to an accepted
employment-related injury, he or she has the burden of establishing that the recurrence of
disability is causally related to the original injury.3 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 condition is causally related to the employment
injury.4 The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.5
ANALYSIS
In the May 8, 2012 decision, OWCP’s hearing representative found that appellant failed
to establish entitlement to wage-loss compensation for the period September 6 through
October 7, 2011. Appellant contended that his accepted condition worsened such that he was
unable to perform his work duties. The Board finds that the medical evidence of record,
however, fails to establish that he sustained a recurrence of disability due to his accepted injury.
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 resulting from a previous injury or
illness without a new or intervening injury.6 Appellant did not submit sufficient medical
evidence to establish that he became disabled commencing September 6, 2011 due to his
accepted injury; he testified at the hearing and to his physicians that his pain was exacerbated by
the activities required by his work duties.
Dr. Bishai’s October 13, 2011 medical report noted that appellant’s neck and back
conditions resulted from “an accident” on September 5, 2011, and that his conditions were an
aggravation of his preexisting conditions. He did not explain the nature of the incident of
September 5, 2011. Dr. Bishai’s February 21, 2012 medical report attributed the cause of
appellant’s diagnosed conditions to his continued employment duties, without further medical
2

20 C.F.R. § 10.5(x).

3

20 C.F.R. § 10.104(b); Carmen Gould, 50 ECAB 504 (1999); Helen K. Holt, 50 ECAB 279, 382 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992). OWCP’s procedure manual provides that, after 90 days of release from
medical care (based on the physician’s statement or instruction to return PRN [as needed], or computed by the
claims examiner from the date of last examination), a claimant is responsible for submitting an attending physician’s
report which contains a description of the objective findings and supports causal relationship between the claimant’s
current condition and the previously accepted work injury. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Recurrences, Chapter 2.1500.5(b) (September 2003).
4

See Helen K. Holt, supra note 3.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

6

Mary A. Ceglia, 55 ECAB 626 (2004).

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rationale. In an April 25, 2012 report, Dr. Bishai explained that appellant’s conditions had
worsened, based upon MRI scans, but that the aggravation, which caused his disability, was due
to his continued performance of his work duties. The Board notes that appellant testified that
performance of tasks such as grabbing, lifting, and sweeping at work aggravated his right arm
and shoulder conditions. As the hearing representative pointed out in the May 8, 2012 decision,
appellant did not establish a recurrence of disability due to a spontaneous change, but addressed
new exposures to work factors based on his full-duty employment between November 7, 2010
and September 5, 2011. As such, the Board finds that his claim does not meet the definition of a
recurrence of disability.7
The medical evidence of record does not support a finding of a spontaneous recurrence of
disability. Following the October 21, 2010 injury, Dr. Head released appellant to full duty on
December 6, 2010. In a report dated September 7, 2011, he noted appellant’s continuing
complaints following injuries in 1988 and 1999 and related that appellant’s ongoing pain in his
neck, back, knee and calves made appellant contemplate disability retirement. Dr. Head did not
address whether appellant had sustained a spontaneous return of disability caused by the
accepted October 21, 2010 injury.
Dr. Arthur, a psychiatrist, diagnosed mood disorder, generalized anxiety disorder and
substance dependence in a report dated November 23, 2011. He noted appellant’s 1988 injury
but offered no explanation as to how the diagnoses were consequential or causally related to the
accepted employment injury of October 2010, rather than due to the other injuries.
On appeal, appellant argues that both Dr. Bishai’s medical reports and his testimony
establish his disability as causally related to his federal work duties. As noted, the medical
evidence of record suggests that his condition was aggravated by new exposures to work factors
after his return following his accepted October 21, 2010 injury.8
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability from September 6 through October 7, 2011.

7

See W.S., Docket No. 10-1103 (issued on February 22, 2011) (appellant developed lumbar and pelvic
dysfunction as a result of her work activities after she returned to duty; the Board found that her claim did not
constitute a recurrence of disability); see also Bryant F. Blackmon, 56 ECAB 752 (2005).
8

In addition, Dr. Arthur’s medical report lacks relevance to the present case because it attributed appellant’s
mental conditions solely to his 1988 nonfederal work injury.

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ORDER
IT IS HEREBY ORDERED THAT the May 8, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.9
Issued: February 5, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9

As noted in the hearing decision, appellant may elect to file a new claim for an occupational disease accruing as
of September 6, 2011.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Statesboro, GA, Employer
__________________________________________

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Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1650
Issued: April 11, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 29, 2018 appellant, through counsel, filed a timely appeal from an April 12,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective January 21, 2017; and (2) whether

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.

appellant has met her burden of proof to establish continuing residuals or disability after
January 21, 2017.
FACTUAL HISTORY
On June 20, 2015 appellant, then a 42-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a dog bite to her right foot and heel3 while
delivering a package that day in the performance of duty. She stopped work on the date of injury
and received treatment in a hospital emergency department for a dog bite to the right posterior
tibular-fibular area.4
In a report dated July 2, 2015, Dr. Sidney J. Morgan, Jr., a treating Board-certified family
practitioner, noted a small, well-healed puncture wound of the right ankle without swelling or
restricted motion. He restricted appellant to sedentary work for one week.
In a report dated August 3, 2015, Dr. Steven Shapiro, an attending Board-certified
orthopedic surgeon, diagnosed right foot pain and right Achilles tenosynovitis caused by the
June 20, 2015 dog bite. In a report dated August 25, 2015, he diagnosed post-traumatic insertional
tendinitis of the right Achilles tendon.5 Dr. Shapiro limited appellant to sedentary work, then held
appellant off work effective November 2, 2015. Appellant remained off work.6
On July 16, 2015 OWCP accepted that appellant sustained an “open wound of leg, and
ankle with complications, right (Achilles).” It paid her wage-loss compensation for total disability
commencing September 19, 2015. Appellant remained off work.
On December 15, 2015 Dr. Shapiro performed an authorized right gastrocnemius
lengthening and injection to address tightness of the Achilles and gastrocnemius tendons. He
prescribed physical therapy.7 Dr. Shapiro continued to submit periodic progress reports. In a
report dated April 12, 2016, he diagnosed possible neuritis to the cutaneous nerve of the right great
toe, with improving range of motion in the right ankle.
In a report dated May 24, 2016, Dr. Jonathan Shults, a treating physician Board-certified
in orthopedic surgery, noted that appellant’s condition had worsened following the December 15,
2015 surgery. On examination of the right lower extremity, he observed mild tenderness over the
distal Achilles tendon and mild numbness in the plantar aspect of the great toe. Dr. Shults
diagnosed an open wound of the right knee and/or leg and/or ankle with complication, and Achilles
3

The claim form of record is a copy submitted for legibility. On its face, the form notes that appellant sustained a
dog bite to her left foot in the June 20, 2015 incident. As the remainder of the evidence of record addresses a dog bite
to the right foot and heel, the reference to the left foot is likely a typographical error.
4

On June 20, 2015 the employing establishment completed and issued an authorization for examination and
treatment (Form CA-16).
5
An October 20, 2015 magnetic resonance imaging (MRI) scan of the right ankle showed focal inflammation within
Kager’s fat pad. The Achilles tendon was unremarkable.
6

Appellant received medical management nurse services from September 2015 to February 2016.

7

Appellant participated in physical therapy treatments from February to May 2016.

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tenosynovitis. He ordered an electromyography and nerve conduction velocity (EMG/NCV)
studies to rule out possible neuropathy.
OWCP, by letter dated August 16, 2016, referred appellant, together with a statement of
accepted facts (SOAF), the medical record, and a series of seven questions, to Dr. Henry Clark
Deriso, a Board-certified orthopedic surgeon, for a second opinion examination to determine
whether she continued to suffer from residuals of her work-related condition. Question five asked
Dr. Deriso about appellant’s physical limitations. Question six requested that he assess appellant’s
work capacity. Question seven asked Dr. Deriso whether appellant continued “to suffer residuals
of the injury” and to explain his medical rationale for the opinion expressed.
In a report dated September 1, 2016, Dr. Deriso provided a history of injury and treatment.
He noted that appellant exhibited some symptoms of reflex sympathetic dystrophy (RSD) Type 1,
but did not meet the diagnostic criteria. On examination, Dr. Deriso found a small scar on the right
anterior gastrocnemius, limited ankle motion due to pain, two centimeters of atrophy ten
centimeters below the inferior pole of the patella, and hypersensitivity to palpation of the right
forefoot and midfoot. He diagnosed a history of right lower leg, ankle, and foot pain, and “[d]oubt
RSD.”
Dr. Deriso responded to the first four of OWCP’s seven questions. In his answers, he
opined that appellant was “post-op dog bite” with no residuals from the injury or surgery.
Dr. Deriso explained that appellant did not have Type 1 RSD as her symptoms had persisted longer
than the expected duration for the condition. The final line of his report is “… continued.”
Dr. Deriso appended a work capacity evaluation for musculoskeletal conditions (Form OWCP-5c)
dated September 1, 2016 indicating that appellant could resume full-time, full-duty work with no
restrictions.
On November 15, 2016 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits based on Dr. Deriso’s opinion. It noted that Dr. Shults based his opinion
only on appellant’s subjective complaints without reference to objective test results documenting
the presence of Type 1 RSD or a neurologic condition. OWCP afforded appellant 30 days to
submit additional evidence or argument.
In response, appellant submitted a November 22, 2016 report from Dr. Shapiro diagnosing
possible right tarsal tunnel syndrome.
By decision dated January 20, 2017, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective January 21, 2017. It found that the weight of the
medical evidence rested with Dr. Deriso’s opinion and established that appellant no longer had
disability or residuals due to her accepted injury.
On January 19, 2018 appellant, through counsel, requested reconsideration. He contended
that OWCP erred in terminating appellant’s compensation and medical benefits as Dr. Deriso’s
opinion was incomplete, failed to directly reference the SOAF, and lacked clear medical rationale.
Counsel submitted additional evidence.
In reports dated November 21, 2016 to February 16, 2017, Dr. Shapiro related appellant’s
complaints of significant pain in the toes of her right foot into the arch with numbness and
paresthesias. On examination, he noted a one-centimeter atrophy in the right calf, and a positive
3

percussion test over the right proximal tarsal tunnel radiating into the right great and second toes.
Dr. Shapiro diagnosed right tarsal tunnel syndrome.
In a report dated August 27, 2017, Dr. Shapiro reviewed Dr. Deriso’s report. He concurred
that appellant did not have RSD, but questioned why Dr. Deriso had not observed the objective
signs of tarsal tunnel syndrome. Dr. Shapiro noted that EMG/NCV studies performed on April 12,
2017 confirmed moderately severe right tarsal tunnel syndrome. He recommended a right tarsal
tunnel release.
By decision dated April 12, 2018, OWCP affirmed the January 20, 2017 termination
decision, finding that the medical evidence of record was insufficient to overcome the weight
accorded to Dr. Deriso’s opinion.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP has accepted a claim it has the burden of justifying termination
or modification of compensation benefits.8 OWCP may not terminate compensation without
establishing that the disability has ceased or that it was no longer related to the employment.9
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.10 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 21, 2017.
OWCP terminated appellant’s wage-loss compensation and medical benefits based on the
second opinion report of Dr. Deriso. In his September 1, 2016 report, Dr. Deriso opined that the
accepted injury had ceased without residuals. He responded to the first four of seven questions
from OWCP, followed by the word “… continued.” However, there is no response to questions
five to seven. This suggests that Dr. Deriso did not provide answers to OWCP’s questionnaire in
its entirety or his complete report is not present in the electronic case record as transmitted to the
Board.
Once OWCP undertakes development of the medical evidence, it has the responsibility to
do so in a manner that will resolve the relevant issues in the case.12 The Board finds that, once
8

G.C., Docket No. 18-0842 (issued December 20, 2018); I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB
541, 546 (1986).
9

Charles E. Minniss, 40 ECAB 708, 716 (1989).

10

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

11

G.C., supra note 8; Calvin S. Mays, 39 ECAB 993 (1988).

12

G.C., supra note 8.

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OWCP undertook development of the evidence by referring appellant to a second opinion
physician, it had an obligation to obtain a sufficiently reasoned report.13 This includes requesting
a supplemental report if the opinion is missing pages.14 However, OWCP did not request a
supplemental report in this case. Instead, it terminated appellant’s wage-loss compensation and
medical benefits predicated on Dr. Deriso’s incomplete report. As OWCP failed to obtain a
complete, probative second opinion report, the Board finds that it has not met its burden of proof
to terminate appellant’s wage-loss compensation and medical benefits.15
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective January 21, 2017.
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2018 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: April 11, 2019
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

13

M.E., Docket No. 18-0808 (issued December 7, 2018).

14

See H.Y., Docket No. 12-0969 (issued February 26, 2013) (the Board held that where a second opinion report had
pages missing, OWCP should have requested a supplemental opinion).
15

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER,
Colorado Springs, CO, Employer
__________________________________________

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

Docket No. 15-0996
Issued: October 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 25, 2015 appellant filed a timely appeal from a December 18, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he was disabled and entitled to
wage-loss compensation for the period November 18 to 21, 2011.
FACTUAL HISTORY
On October 4, 2012 appellant, then a 51-year-old clerk/mail processor, filed an
occupational disease claim (Form CA-2) alleging that he first became aware of his cervical spine
1

5 U.S.C. § 8101 et seq.

and upper back conditions and its relationship to his employment on November 18, 2011.2 By
decision dated May 24, 2013, OWCP vacated a January 24, 2013 decision denying his claim and
accepted the conditions of C3-4, C4-5, and C5-6 cervical spine degenerative disc disease
aggravation and C3-4 and C4-5 cervical spine arthropathy aggravation, which was subsequently
expanded to include other psychogenic pain. In the May 24, 2013 decision, it noted that a
January 13, 2009 loss of wage-earning capacity decision had been issued under OWCP File
No. xxxxxx509 which remained in effect and that claims for disability benefits could be
considered3 relevant to appellant’s claim for wage-loss compensation for the period
November 18 to 21, 2011, which was initially submitted under OWCP File No. xxxxxxx509, is
set forth below.
In a December 6, 2011 report, Dr. Jack L. Rook, a treating Board-certified physiatrist,
noted that appellant was seen for a three-month follow-up evaluation and that he was working
full-time on the night shift including overtime work. Appellant related that his neck and
shoulder/back pain was progressively worsening which resulted in missing work.
In a December 6, 2011 disability note, Dr. Rook indicated that appellant was disabled
from working on November 18 and 19, 2011 due to shoulder, neck, and back pain which the
doctor attributed to OWCP File No. xxxxxx509.
Following the acceptance of his claim on May 31, 2013, appellant submitted medical
evidence including diagnostic testing, injection notes, and reports from Dr. Rook and Dr. Jeffrey
Bruce Kleiner, an examining Board-certified orthopedic surgeon, covering the period
December 16, 2011 through June 19, 2013. In progress reports for the period February 15, 2012
to June 19, 2013, Dr. Rook reviewed magnetic resonance imaging (MRI) scans, provided
physical examination findings and diagnoses of multiple level cervical degenerative disc disease
and facet degeneration.
Dr. Kleiner, in a February 15, 2012 report, provided physical examination findings and
attributed appellant’s symptoms to cervical facet arthropathy and possibly internal cervical disc
disruption.
In a letter dated January 25, 2014, appellant requested that he be paid for the time
itemized on the Form CA-7 he submitted under OWCP File No. xxxxxxx509 under the current

2

Appellant noted November 15, 2011 as the date he first became aware of the relationship of his condition to his
employment duties. OWCP used November 18, 2011 as the date-of-injury as that is the date he identified as first
being aware of his condition. On July 24, 2012 appellant filed a claim for a recurrence of disability for the period
November 18 to 21, 2011 under OWCP File No. xxxxxx509. He also stated that due to the neck strain from his
work, he was forced to remove his name from the overtime list. By decision dated March 9, 2012, OWCP denied
appellant’s claim for a recurrence of disability for the period November 18 to 21, 2011 under OWCP File
No. xxxxxx509. By decision dated January 25, 2013, it denied modification.
3

On May 31, 2013 OWCP combined the current claim under OWCP File No. xxxxxx697 with OWCP File
No. xxxxxx509, with the latter number listed as the Master File No. Under OWCP File No. xxxxxx509 the accepted
conditions were right shoulder and upper arm rotator cuff sprain, right rotator cuff tear, and closed dislocation
thoracic vertebra with November 13, 2005 noted as the date of injury.

2

claim. He stated that the disability for the period in question was due to his cervical condition
which OWCP accepted under the current claim.
In the current claim, on February 25, 2014 appellant filed a claim for wage-loss
compensation (Form CA-7) for the period November 18 to 21, 2011. He also submitted a leave
analysis for this period.
Appellant submitted medical evidence in the form of physical therapy notes and doctors
reports.
By letter dated March 28, 2014, OWCP informed appellant that it was unable to process
his claim for wage-loss compensation starting November 18, 2011 due to the lack of any
contemporaneous medical evidence supporting disability for the period claimed due to the
accepted employment conditions.
In response to OWCP’s request, appellant submitted additional reports from Drs. Rook
and Kleiner and diagnostic testing from December 6, 2011 to May 29, 2014. Dr. Rook, in
progress reports dated March 13 and June 10, 2014, provided physical examination findings and
related that appellant stated that his neck was progressively worsening. In a May 29, 2014
report, Dr. Kleiner noted that appellant returned for an updated evaluation with his last visit
several years ago. A physical examination revealed limited cervical range of motion.
By decision dated June 30, 2014, OWCP denied appellant’s claim for wage-loss
compensation for the period November 18 to 21, 2011 due to the lack of any supporting medical
evidence.
Subsequent to the June 30, 2014 decision, OWCP received additional medical evidence
including diagnostic testing for the period December 6, 2011 to May 29, 2014, physical therapy
reports for the period August 27 to November 3, 2014, and other medical reports.
In reports dated April 4, 2012, August 22, 2013, September 10, October 21 and
November 10, 2014, Dr. Rook provided physical examination findings and noted the treatment
appellant was receiving. On September 10 and October 21, 2014 he provided work restrictions
in duty status reports (Form CA-17).
In a letter dated December 12, 2014, appellant’s then-counsel requested reconsideration
and submitted a reconsideration request from appellant dated December 10, 2014.4 Appellant
related that he was taken off work for the period November 18 to 21, 2011 by Dr. Rook due to
exacerbation of neck pain which was documented by magnetic resonance imaging scans. In
concluding, he stated that the evidence he submitted supports his claim for wage-loss
compensation due to his accepted neck injury for the period in question.
By decision dated December 18, 2014, OWCP denied modification.

4

Appellant’s prior counsel withdrew his representation on April 16, 2015.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.6 For each period of
disability claimed, the employee has the burden of establishing that he was disabled for work as
a result of the accepted employment injury.7 Whether a particular injury causes an employee to
become disabled for work, and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.8
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.9 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.10 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.11 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his employment, he is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.12
ANALYSIS
OWCP accepted appellant’s claim for C3-4, C4-5, and C5-6 spine degenerative disc
disease aggravation and C3-4 and C4-5 spine arthropathy aggravation. Appellant filed a
Form CA-7 claiming wage-loss compensation for the period November 18 to 21, 2011. OWCP
denied his claims for wage-loss compensation for the period in question as it found the medical
evidence of record insufficient to establish any disability causally related to the accepted
conditions. It informed appellant that pain was a symptom, not a diagnosed medical condition.
5

5 U.S.C. §§ 8101-8193.

6

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
7

See Amelia S. Jefferson, id; see also David H. Goss, 32 ECAB 24 (1980).

8

See Edward H. Horton, 41 ECAB 301 (1989).

9

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
10

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

11

Merle J. Marceau, 53 ECAB 197 (2001).

12

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

4

The Board finds that appellant failed to meet his burden of proof to establish entitlement
to compensation for the period November 18 to 21, 2011. The record is devoid of any medical
evidence supporting appellant’s contention that he was disabled from working for this period.
OWCP advised him regarding the need to submit medical evidence supporting his disability.
The relevant evidence submitted by appellant was a December 6, 2011 report and December 6,
2011 disability note from Dr. Rook. In the report, he related to Dr. Rook that he was missing
work due to progressively worsening neck, shoulder, and back pain. Dr. Rook, in the disability
note reported that appellant was disabled from working on November 18 and 19, 2011 due to
shoulder, neck, and back pain. He did not, however, explain how or why residuals of the
employment injury caused appellant’s disability for the period November 18 to 21, 2011 other
than to note that he was disabled due to neck, shoulder, and back pain. Additionally, findings on
examination are needed to justify a physician’s opinion that an employee is disabled for work.13
The record also contains medical evidence from 2013 and 2014 including reports from
Dr. Rook for the period February 15, 2012 to November 10, 2014 and reports for the period
February 15, 2012 to May 29, 2014 from Dr. Kleiner. These reports are irrelevant to the issue at
hand as they postdate the period in question and do not contain any information to support
disability for the claimed period.14
In summary, the medical evidence of record is unsupported by sufficient medical
rationale or reasoning which explains why the claimed disability for the period November 18
to 21, 2011 was caused or aggravated by the accepted C3-4, C4-5, and C5-6 cervical spine
degenerative disc disease aggravation and C3-4 and C4-5cervical spine arthropathy aggravation.
The Board finds that the evidence submitted was insufficient to establish entitlement to
wage-loss compensation for the period claimed and OWCP properly denied appellant’s claim.
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 failed to establish he is entitled to wage-loss compensation
for the period November 18 to 21, 2014.

13

Laurie S. Swanson, 53 ECAB 517 (2002).

14

See James W. Scott, 55 ECAB 606 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 24, 2015 and December 18, 2014 are affirmed.
Issued: October 21, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kokomo, IN, Employer
__________________________________________

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

Docket No. 17-0596
Issued: June 15, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 23, 2017 appellant filed a timely appeal from an October 21, 2016 merit
decision and a December 27, 2016 nonmerit decision of the Office of Workers’ Compensation
Programs1 (OWCP). Pursuant to the Federal Employee’s Compensation Act2 (FECA) and 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 met her burden of proof to establish an injury
causally related to the accepted August 3, 2016 employment incident; and (2) whether OWCP
properly denied appellant’s request for an oral hearing before an OWCP hearing representative.
On appeal, appellant contends that her medical documentation establishes that her
injuries occurred while she was performing her employment duties.
1

While appellant initially timely requested oral argument before the Board, pursuant to 20 C.F.R. § 501.5(b),
appellant withdrew her request on February 21, 2017.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 3, 2016 appellant, then a 44-year-old carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she injured her left knee when it gave out while she was
walking down steps. She stopped work on August 3, 2016.
With her claim, appellant submitted an August 10, 2016 attending physician’s report
(Form CA-20) wherein Dr. Courtney A. Holland, a Board-certified orthopedic surgeon, indicated
that she treated appellant on July 14, and August 10, and 19, 2016. Dr. Holland diagnosed knee
pain/swelling for four to six weeks, exacerbated by impact activities (prolonged standing/stairs).
She noted that appellant’s knee gave out, and that she was using a knee brace. Dr. Holland
found moderate effusion and mild arthritis, and diagnosed internal derangement of the knee. She
further opined that appellant was able to return to light work, with walking as tolerated.
On September 7, 2016 appellant submitted Dr. Holland’s progress reports. In a July 14,
2016 progress report, Dr. Holland diagnosed left knee effusion, knee internal derangement, and
left knee pain. She noted that appellant had a four- to six-week history of left knee pain with an
insidious onset. Dr. Holland indicated that appellant’s pain was over her medial knee and was
exacerbated with impact activities, prolonged standing, and stairs. She noted that appellant was
employed as a postal worker, which required 8 to 12 hours of standing and up to 12 miles of
walking per day. Dr. Holland noted frequent episodes of appellant’s knee buckling and giving
out on her. She recommended conservative treatment. Dr. Holland indicated that x-rays were
taken of appellant’s left knee which showed moderate effusion, decreased joint space within the
medial compartment, secondary changes of medial femoral condyle and medial plateau to
include squaring and sclerosis, and mild arthritis in the patellofemoral compartment. She noted
that she had given appellant an injection on that date and that appellant noted immediate relief.
In an August 10, 2016 progress note, Dr. Holland repeated appellant’s history and
diagnoses. She also noted that on the day of injury appellant was walking when her knee gave
out and she fell. In an August 25, 2016 report, Dr. Holland noted that appellant had a magnetic
resonance imaging (MRI) scan on that date. She diagnosed chondromalacia of medial femoral
condyle, knee pain, and medial meniscus tear. Dr. Holland noted that appellant had failed
conservative treatment and recommended left knee arthroscopy with meniscal debridement or
repair, chondroplasty, and evaluation for possible chondral restoration procedure.
In a September 16, 2016 letter to appellant, OWCP indicated that when it first received
appellant’s claim, it appeared to be a minor injury that resulted in minimal or no lost time from
work and a limited amount of medical expense, so it was administratively approved without a
full merit review. However, as appellant had not returned to work in a full-time capacity, OWCP
opened the claim for consideration of the merits. OWCP noted that it had reviewed the claim
and determined that the evidence of record was insufficient to support her claim. It afforded
appellant 30 days to submit the necessary medical evidence.
In a September 23, 2016 report, Dr. Holland noted that appellant was initially injured
after a fall that occurred in May 2016 while performing her employment duties. She noted that
the injury was reported to her supervisor, but a formal incident report was never filed. Appellant
advised her that a second injury occurred on August 3, 2016, which also resulted from a fall

2

while working. She summarized her previously submitted medical reports. Dr. Holland noted
that she recommended a left knee arthroscopy with medial debridement and chondroplasty, and
asked for authorization for that procedure.
By decision dated October 21, 2016, OWCP denied appellant’s claim because she had
not established a causal relationship between the accepted employment incident and the accepted
diagnosis.
Appellant submitted a request for a review of the written record by an OWCP hearing
representative on an appeal request form dated November 21, 2016. However, the postmark for
mailing this document was November 28, 2016.
By decision dated December 27, 2016, OWCP denied appellant’s request for a review of
the written record by an OWCP hearing representative as untimely filed. It also reviewed
appellant’s request at its discretion, and denied the request as it determined that the issue in the
case could be equally well addressed by requesting reconsideration and submitting new
evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was caused in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.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

3

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Id.

3

condition and the specific employment factors identified by the employee.7 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.8
ANALYSIS -- ISSUE 1
Appellant filed a traumatic injury claim alleging injuries to her left knee when, on
August 3, 2016, it gave out on her while she was walking down steps during the performance of
her federal duties. OWCP denied her claim because she had not established a causal relationship
between the accepted employment incident and the accepted diagnosis.
The Board finds that appellant did not meet her burden of proof in that she did not submit
medical evidence establishing that her diagnosed left knee conditions were causally related to her
August 3, 2016 employment incident.
In support of her claim appellant submitted multiple reports by Dr. Holland. Dr. Holland
diagnosed chondromalacia of the medial femoral condyle and medial meniscus tear, and
recommended a left knee arthroscopy with medial meniscal debridement and chondroplasty.
However, she did not provide a rationalized medical opinion establishing how these diagnosed
conditions were causally related to appellant’s fall during her employment as a letter carrier on
August 3, 2016. The Board has held that a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is
unsupported by medical rationale.9
Dr. Holland first discussed appellant’s symptoms in her left knee in a July 14, 2016
progress report, which was prior to the date of the August 3, 2016 alleged traumatic injury. In
her August 10, 2016 report, she indicated that appellant had fallen on that date, not one week
earlier. Dr. Holland first noted appellant’s August 3, 2016 fall in her September 23, 2016 report.
However, she failed to provide medical rationale as to why appellant’s knee giving out on
August 3, 2016 caused the left knee diagnoses for which she required surgery. In fact,
Dr. Holland noted that appellant had a previous employment-related fall in May 2016. A mere
conclusion without the necessary rationale explaining how and why the physician believes that
the accepted incident resulted in a diagnosed condition is not sufficient to meet appellant’s
burden of proof.10 Neither the fact that a disease or condition manifests itself during a period of
employment nor the belief that the disease or condition was caused or aggravated by an
employment incident is sufficient to establish causal relationship.11 The Board finds that
appellant did not meet her burden of proof.
7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 4.

8

James Mack, 43 ECAB 321 (1991).

9

L.H., Docket No. 16-194 (issued October 27, 2016).

10

G.M., Docket No. 14-2057 (issued May 12, 2015).

11

T.E., Docket No. 16-1090 (issued February 24, 2017).

4

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 10.607.12
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 her claim before a representative of the Secretary.13
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.14 A claimant is 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 carriers’ date marking and before the claimant has requested
reconsideration.15 Although there is no right to a review of the written record or an oral hearing
if not requested within the 30-day time period, OWCP may within its discretionary powers grant
or deny a hearing when the request is untimely or made after reconsideration under section
8128(a).16
ANALYSIS -- ISSUE 2
Appellant’s request for oral hearing was dated November 21, 2016. However, the
postmark indicates that the request was mailed on November 28, 2016. The time limitation to
request an oral hearing before OWCP expired on November 21, 2016 since November 20, 2016
fell on a Sunday.17 However, the date of the postmark, November 28, 2016, is the date
considered as the date of filing.18 Accordingly, appellant’s request is found to have been made
more than 30 days after the issuance of OWCP’s most recent decision on October 21, 2016.

12

The Board notes that appellant submitted a reconsideration request on December 27, 2016. On January 23,
2017 appellant requested an appeal before this Board. By letter dated February 28, 2017, OWCP properly informed
appellant that no action would take place on her reconsideration request as the Board was considering appellant’s
claim. It and the Board may not simultaneously have jurisdiction over the same issue. As the Board had jurisdiction
over the traumatic injury claim, OWCP could not issue decision regarding the same issue on appeal before the
Board. See Terry L. Smith, 51 ECAB 182 (1999); Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman, 43
ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990), 20 C.F.R. § 501.2(c)(3).
13

5 U.S.C. § 8124(b)(1).

14

20 C.F.R. §§ 10.626, 10.617.

15

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

16

See M.W., Docket No. 12-1267 (issued November 2, 2012); Federal (FECA) Procedure Manual, Part 2 -Claims, Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).
17

See T.T., Docket No. 15-1397 (issued December 3, 2015).

18

Supra note 15.

5

Therefore, OWCP properly found that appellant was not entitled to an oral hearing as a matter of
right.19
OWCP then properly exercised its discretion by stating that it had considered the matter
and had denied appellant’s request for a hearing because the issue could be addressed through a
request for reconsideration.20 The Board has held that the only limitation on OWCP’s authority
is reasonableness and 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 deduction from established facts.21 In this case, the evidence of record does not
indicate that OWCP abused its discretion in its denial of appellant’s request for an oral hearing.
Accordingly, the Board finds that OWCP properly denied her request.22
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an injury
causally related to the accepted August 3, 2016 employment incident. The Board further finds
that OWCP properly denied appellant’s request for an oral hearing before an OWCP hearing
representative.

19

C.C., Docket No. 16-1581 (issued February 17, 2017).

20

M.H., Docket No. 15-0774 (issued June 19, 2015).

21

Daniel J. Perea, 42 ECAB 214, 221 (1990).

22

R.P., Docket No. 16-0554 (issued May 17, 2016).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 27 and October 21, 2016 are affirmed.
Issued: June 15, 2017
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Riverdale, GA, Employer
__________________________________________

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

Docket No. 17-0050
Issued: August 2, 2017

Case Submitted on the Record

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

JURISDICTION
On October 14, 2016 appellant filed a timely appeal from a July 26, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability commencing November 5, 2015, causally related to her accepted emotional conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances outlined in
the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
Appellant, a 38-year-old former part-time flexible city carrier, has an accepted
occupational disease claim for generalized anxiety disorder and major depression (single
episode), which arose on or about November 19, 2009. OWCP accepted that she had been
subjected to three unjustified disciplinary actions that occurred on September 17, November 9,
and 19, 2009.3 Appellant stopped work on November 19, 2009 and received disability
compensation on the daily rolls beginning February 4 until June 6, 2010 when she was placed on
the periodic rolls.
On January 23, 2012 appellant returned to work in a part-time (four hours/day), limitedduty capacity. She eventually increased to a six-hour workday, but then stopped work entirely
on June 28, 2012. OWCP paid disability compensation.
In a March 5, 2014 decision, OWCP terminated appellant’s wage-loss compensation
effective March 9, 2014 because she had no disability due to her accepted work injury after that
date. It based its termination action on a June 28, 2012 report of Dr. David W. Aycock, Ph.D.,
an attending psychologist, and a June 19, 2012 report of Dr. Kenneth E. Goolsby, a Boardcertified psychiatrist and OWCP referral physician.
By decision dated September 12, 2014, the Board reversed OWCP’s March 5, 2014
termination decision.4 It found that OWCP had not met its burden of proof to terminate
appellant’s wage-loss compensation, effective March 9, 2014, because the June 28, 2012 report
of Dr. Aycock and the June 19, 2012 report of Dr. Goolsby were not sufficient to establish that
appellant’s accepted work conditions no longer caused disability. The Board’s September 12,
2014 decision is incorporated herein by reference. Appellant was returned to the periodic rolls.
On February 4, 2015 appellant returned to work in a full-time position as a billing clerk
with Arrowhead Clinic, a private employer providing chiropractic services, and she received
compensation for loss of wage-earning capacity from OWCP. The position involved entering
data into a computer, updating and maintaining patient records, mailing claims to insurance
companies, and verifying insurance information.
In a September 15, 2015 report, Dr. Aycock noted that appellant’s current diagnoses were
depressive disorder, not otherwise specified, and anxiety disorder, not otherwise specified, and
2

Docket No. 14-1161 (issued September 12, 2014).

3

In the first incident, the employing establishment charged appellant for absence without leave (AWOL), and in
the latter two incidents appellant had been cited for failure to follow instruction(s) and unsatisfactory performance.
The employing establishment’s dispute resolution team determined that the above-noted incidents were unjustified,
and therefore, rescinded all three disciplinary actions.
4

See supra note 2.

2

indicated that these conditions were not aggravations of any preexisting conditions. He advised
that appellant had been able to function appropriately in an accommodating position as a billing
clerk for Arrowhead Clinic. Dr. Aycock noted that another attending physician prescribed
psychotropic medication for her.
Appellant stopped work on November 5, 2015 and filed a claim for a recurrence of
disability (Form CA-2a) alleging that she sustained a recurrence of disability that date due to her
accepted emotional conditions. On the Form CA-2a she indicated that her original injury had
never resolved and she noted that her symptoms of depression and anxiety “increased in severity
and became overwhelming” while she worked for the Arrowhead Clinic.
In a November 5, 2015 report, Dr. Aycock indicated that appellant was suffering from the
accepted depression and anxiety conditions and noted that she had been working in an
accommodating position on a full-time basis at the Arrowhead Clinic. He indicated that her
condition had deteriorated and that she was experiencing a recurrence of the symptom complex
of her original injury. Dr. Aycock reported that appellant’s current symptoms included
depression, anxiety, sleep disturbance, fear, worry, concentration and memory deficits,
motivational deficits, lethargy, and sadness for no apparent reason. He advised that these
symptoms had once again become debilitating and that an attending physician from the
Department of Veterans Affairs was managing her medication which she needed to take daily
“merely to cope.” Dr. Aycock noted that appellant continued to suffer from the same depressive
and anxiety disorders that “have resulted in her accepted injury-related condition.” He indicated
that it was his professional opinion that appellant’s depressive and anxiety disorders were
directly caused by “her treatment on the job” at the employing establishment. Dr. Aycock
advised that he based his opinion on the return of her symptom complex that occurred in
response to harassment by her postmaster. He noted that appellant was progressing very well
until she was “once again exposed to the hostile work environment.” Appellant’s depressive and
anxiety disorders could not be reasonably attributed to any other cause except her mistreatment
by the employing establishment. Dr. Aycock indicated that appellant could not cope with the
demands of any work environment, including her billing clerk job, and posited that she was
totally disabled as a result of the original injury.
In a November 25, 2015 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of her recurrence claim. It advised that a recurrence of
disability was defined, in part, as a work stoppage caused by a spontaneous change in the
medical condition which resulted from a previous injury or occupational illness without an
intervening injury or new exposure to factors causing the original illness. OWCP requested that
appellant complete and return a development questionnaire that asked her to describe her work
activities since returning to work on February 4, 2015 and to detail what events caused her to
stop work on November 5, 2015.
In response to the development letter, appellant submitted a November 30, 2015 report
from Dr. Aycock noting that he first saw appellant on April 18, 2011 after she had sustained an
injury in her letter carrier job due to “systemic harassment by her supervisor that did not relent
until she was forced to file” an OWCP claim. Dr. Aycock indicated that appellant’s symptom
pattern at her first appointment included depression, anxiety, sleep disturbance, concentration
and memory deficits, fear of being mistreated at work, reliving her workplace trauma, worry,

3

lethargy, short temper, motivational deficits, and sadness. He noted that these symptoms
precluded her from performing any work activities and required her to take psychotropic
medication. Dr. Aycock reported that appellant’s current symptoms included depression,
anxiety, sleep disturbance, dreams of her workplace trauma, fear, worry, concentration and
memory deficits, motivational deficits, lethargy, and sadness for no apparent reason. He found
that she was having a recurrence of her original 2009 symptom pattern that was caused by the
treatment from her supervisors at the employing establishment, including the inability to retain
information well enough to complete work tasks, to generate enough energy to maintain
concentration for any appreciable period, and to maintain appropriate relationships with
coworkers and supervisors.
Dr. Aycock felt that appellant’s current inability to function in any job was a direct result
of her 2009 employment injury. He indicated that she had returned to a private-sector job and
worked there on a full-time basis for nine months. Dr. Aycock noted that appellant reported that
she enjoyed her job and performed it well until October 2015 when her depressive and anxiety
symptoms returned with memories and dreams of her original work-related injury. He indicated
that there was no reason to suspect that issues related to her current job intervened to cause the
relapse. Dr. Aycock noted that appellant’s current job was a source of encouragement rather
than a stressor. He advised that she “began to experience the same symptoms that debilitated her
in 2009 with no other explanation beyond a spontaneous recurrence of the injury-related
condition.” Dr. Aycock determined that appellant had to remain on her psychotrophic
medication and continue with psychotherapy.
Appellant also submitted notes from her psychotherapy treatment sessions. In notes from
a November 2, 2015 session, Dr. Aycock indicated that she reported that she received a
performance evaluation from the Arrowhead Clinic containing a rating of three out of five in all
but one area. He noted that appellant reported that her functioning was deteriorating and that her
depression and anxiety were returning. Appellant worried that her disability was returning to a
more intense level. Dr. Aycock indicated that she reported that she was not working as quickly
or proficiently as her supervisor wished and that she felt overwhelmed in her job each day. On
November 5, 2015 he indicated that appellant reported that her symptoms were intensifying and
he believed that she was now disabled from work. On November 30, 2015 Dr. Aycock noted
that appellant reported that she was still struggling with intensified depressive and anxiety
symptoms related to her 2009 workplace injury. Appellant reported having intermittent dreams
of the mistreatment from the employing establishment.
Appellant completed and submitted the development questionnaire that OWCP sent her
on November 25, 2015. She noted that there were no recent events occurring at the Arrowhead
Clinic that caused her to stop working on November 5, 2015 and asserted that she stopped work
due to suffering a recurrence of her 2009 symptoms of depression and job-related stress caused
by the employing establishment. Appellant indicated that she enjoyed working for Arrowhead
Clinic and reported that her duties included entering data into a computer, filing, verifying
insurance, answering telephones, and engaging in other clerical work. She asserted that these
activities had nothing to do with her recurrence of disability. Appellant felt that her current
disability was due to her original 2009 illness because she was doing well in her new job and
there were no new stressors from the job that caused her to dislike or leave her new employer.

4

She indicated that symptoms from her accepted depression and anxiety conditions never resolved
and that they worsened over time.
In a January 20, 2016 decision, OWCP denied appellant’s claim finding that she failed to
meet her burden of proof to establish a recurrence of disability on or after November 5, 2015 due
to her accepted emotional conditions. It determined that Dr. Aycock’s reports did not contain
sufficient medical rationale to establish such a recurrence of disability. OWCP indicated that a
recurrence of disability was defined as a spontaneous change in the medical condition which
resulted from a previous injury or occupational illness without an intervening injury or new
exposure to factors causing the original illness. It noted that the medical evidence of record,
including treatment notes from November 2015, supported that there were intervening causes
that contributed to appellant’s inability to continue working at the Arrowhead Clinic such that
there was no spontaneous recurrence of the accepted work-related condition, as had been opined
by Dr. Aycock in his November 30, 2015 report. OWCP indicated that the evidence of record
showed that appellant had been exposed to new factors following her return to private
employment on February 4, 2015.
Appellant disagreed with OWCP’s January 20, 2016 decision and, on February 10, 2016,
she requested a review of the written record by an OWCP hearing representative. She asserted
that her current disabling problems constituted a spontaneous change in her accepted emotional
conditions without an intervening injury.
In a February 1, 2016 report, Dr. Aycock indicated that he was dismayed by OWCP’s
January 20, 2016 decision and posited that appellant’s condition exactly corresponded with a
definition of recurrence of disability contained in that decision, namely a spontaneous change in
the medical condition which resulted from a previous injury or occupational illness without an
intervening injury or new exposure to factors causing the original illness. He noted that the
recurrence of her accepted conditions was not a result of her experiences at the Arrowhead Clinic
and indicated that her experiences at the clinic were “uniformly positive.” Dr. Aycock noted that
appellant’s recurrence was caused by a spontaneous return of her symptom complex that was
precipitated by her original employment injury. Appellant’s symptom complex had again
become overwhelming and she could not cope with the demands of any employment setting,
including her work as billing clerk. Dr. Aycock found that she was totally disabled as a result of
the original 2009 injury at the employing establishment.
By decision dated July 26, 2016, OWCP’s hearing representative affirmed OWCP’s
January 20, 2016 decision. She determined that appellant failed to meet her burden of proof to
establish a recurrence of disability on or after November 5, 2015 due to her accepted emotional
conditions. The hearing representative found that Dr. Aycock did not provide adequate medical
rationale in support his opinion that appellant sustained such a recurrence of disability on
November 5, 2015. She indicated that Dr. Aycock failed to adequately explain why appellant’s
current symptoms were completely a result of her 2009 injury, rather than being related to a new
intervening exposure in her private employment. The hearing representative noted that
Dr. Aycock did not address the psychotherapy notes which indicated that appellant did, in fact,
react to her performance evaluation at the Arrowhead Clinic.

5

LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.5 Recurrence of disability also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.6 Generally, a withdrawal of a light-duty assignment would constitute a recurrence of
disability where the evidence established continuing injury-related disability for regular duty.7 A
recurrence of disability does not apply when a light-duty assignment is withdrawn for reasons of
misconduct, nonperformance of job duties, downsizing, or the existence of a loss of wageearning capacity determination.8 Absent a change or withdrawal of a light-duty assignment, a
recurrence of disability following a return to light duty may be established by showing a change
in the nature and extent of the injury-related condition such that the employee could no longer
perform the light-duty assignment.9
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of establishing that the recurrence is causally related to
the original injury.10 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes that the condition is causally related to the employment injury.11 The
physician’s opinion must be based on a complete and accurate factual and medical history and
supported by sound medical reasoning.12
ANALYSIS
Appellant’s accepted conditions include generalized anxiety disorder and major
depression (single episode), which arose on or about November 19, 2009. She established that
her former employer subjected her to three unjustified disciplinary actions that occurred on
September 17, November 9, and 19, 2009.
Appellant last worked for the employing
5

20 C.F.R. § 10.5(x).

6

Id.

7

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).

8

20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, Part 2 -- Claims,
Recurrences, Chapter 2.1500.2b (June 2013).
9

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

10

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5
and 2.1500.6 (June 2013).
11

See S.S., 59 ECAB 315, 318-19 (2008).

12

Id. at 319.

6

establishment in June 2012. On February 4, 2015 she returned to work as a full-time, billing
clerk with the Arrowhead Clinic, a private employer providing chiropractic services. Appellant
stopped work on November 5, 2015 and soon afterward filed a claim for recurrence of disability
(Form CA-2a) seeking lost wages beginning November 5, 2015. She explained that the original
employment injury never resolved, and over time her symptoms increased in severity and
became too overwhelming. OWCP denied appellant’s recurrence claim by decisions dated
January 20 and July 26, 2016.
The Board finds that appellant has failed to submit medical evidence sufficient to
establish a recurrence of disability on or after November 5, 2015 due to her accepted emotional
conditions. She did not submit a medical report containing a rationalized opinion that related the
claimed recurrence of disability to her accepted employment injury.
In support of her claim for a recurrence of disability due to her accepted emotional
conditions, appellant submitted several reports from her psychologist, Dr. Aycock.
In a November 5, 2015 report, Dr. Aycock indicated that appellant was suffering from the
accepted depression and anxiety conditions and noted that she had been working in an
accommodating position on a full-time basis at the Arrowhead Clinic. He indicated that
appellant’s condition had deteriorated and that she was experiencing a recurrence of the
symptom complex of her original injury.13 Dr. Aycock noted that appellant continued to suffer
from the same depressive and anxiety disorders that “have resulted in her accepted injury-related
condition” and posited that her depressive and anxiety disorders were directly caused by “her
treatment on the job” at the employing establishment. He advised that he based his opinion on
the return of her symptom complex that occurred in response to harassment by her postmaster
and indicated that her depressive and anxiety disorders could not be reasonably attributed to any
other cause except her mistreatment by the employing establishment. Dr. Aycock found that
appellant was totally disabled as a result of the original injury.
The Board notes that Dr. Aycock failed to provide a rationalized medical opinion in this
report explaining his conclusion that appellant’s claimed recurrence of disability beginning
November 5, 2015 was due to her accepted emotional conditions, major depression (single
episode) and generalized anxiety disorder. The Board has held that a medical report is of limited
probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale.14 Dr. Aycock did not describe appellant’s
accepted depression and anxiety conditions in any detail or explain the medical process through
which they could have caused disability on or after November 5, 2015. He indicated that his
opinion was supported by the fact that appellant’s symptom complex in late-2015 was similar to
her symptom complex in 2009, but he did not adequately explain why appellant’s symptom
complex was not related to factors other than those associated with the accepted work conditions.

13

Dr. Aycock reported that appellant’s current symptoms included depression, anxiety, sleep disturbance, fear,
worry, concentration and memory deficits, motivational deficits, lethargy, and sadness for no apparent reason.
14

C.M., Docket No. 14-88 (issued April 18, 2014).

7

In OWCP’s regulations, a recurrence of disability is defined, in part, as “an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which had resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.”15 Dr. Aycock did not adequately
describe her work circumstances at the Arrowhead Clinic and he did not discuss his own
psychotherapy notes from November 2015 in which appellant reported events suggesting she
might have reacted to factors associated with her work at the Arrowhead Clinic.16 In this regard,
Dr. Aycock’s November 5, 2015 report is of limited probative value regarding appellant’s
recurrence claim because it is not based on a complete and accurate factual and medical
history.17 The Board has held that a report on a medical question is of limited probative value if
it is not based on a complete and accurate factual and medical history.18
In a November 30, 2015 report, Dr. Aycock noted that he first saw appellant on April 18,
2011 after she sustained an injury in her letter carrier job due to “systemic harassment by her
supervisor that did not relent until she was forced to file” an OWCP claim. He found that she
had a totally disabling recurrence of her original 2009 symptom pattern that was caused by the
treatment from her supervisors. Dr. Aycock noted that appellant reported that she enjoyed her
new job and performed it well until October 2015 when her depressive and anxiety symptoms
returned with memories and dreams of her original work-related injury. He indicated that there
was no reason to suspect that issues related to her current job intervened to cause the relapse.
Dr. Aycock noted that appellant’s current job was a source of encouragement rather than a
stressor. He advised that she “began to experience the same symptoms that debilitated her in
2009 with no other explanation beyond a spontaneous recurrence of the injury-related
condition.”
In a February 1, 2016 report, Dr. Aycock posited that appellant’s condition exactly
corresponded with the definition of a recurrence of disability, namely a spontaneous change in
the medical condition which resulted from a previous injury or occupational illness without an
intervening injury or new exposure to factors causing the original illness. He noted that the
15

See supra note 6.

16

For example, in notes from a November 2, 2015 psychotherapy session, Dr. Aycock indicated that appellant
reported that she received a performance evaluation from the Arrowhead Clinic containing a rating of three out of
five in all but one area and that she was not working as quickly or proficiently as her supervisor wished.
17

Moreover, Dr. Aycock suggested that appellant’s accepted emotional conditions, major depression (single
episode) and generalized anxiety disorder were caused by harassment from a postmaster in 2009. The Board notes,
however, that it has not been established that a postmaster harassed appellant in 2009. It has only been accepted that
a postmaster committed error/abuse in administrative matters by issuing appellant wrongful disciplinary actions on
September 17, November 9, and 19, 2009. See generally Matilda R. Wyatt, 52 ECAB 421 (2001); David W. Shirey,
42 ECAB 783, 795-96 (1991).
18

E.R., Docket No. 15-1046 (issued November 12, 2015). Dr. Aycock indicated that appellant was progressing
very well until she was “once again exposed to the hostile work environment,” but he did not describe the particular
hostile work environment to which he referred. In a September 15, 2015 report, Dr. Aycock had noted that
appellant’s current diagnoses were depressive disorder (not otherwise specified) and anxiety disorder (not otherwise
specified), and indicated that these conditions were not aggravations of any preexisting conditions. However, he did
not provide any further discussion in support of his suggestion that these conditions were related to appellant’s
accepted emotional conditions.

8

recurrence of her accepted conditions was not a result of her experiences at the Arrowhead Clinic
and indicated that her experiences at the clinic were “uniformly positive.”
The Board notes that Dr. Aycock’s November 30, 2015 and February 1, 2016 reports are
of limited probative value regarding appellant’s claimed recurrence of disability because they
contain deficiencies similar to those noted in Dr. Aycock’s November 5, 2015 report.
Dr. Aycock did not completely and accurately describe the accepted work injuries and their
cause(s). He made reference to harassment from supervisors that has not been accepted by
OWCP. Dr. Aycock also did not completely and accurately describe appellant’s work
circumstances at the Arrowhead Clinic and he did not adequately explain why her problems in
November 2015 were not due to an intervening injury or new exposure from her private
employment at the Arrowhead Clinic. He did not describe the medical process through which
appellant’s accepted medical conditions could have caused disability on or after
November 5, 2015.19
For these reasons, appellant failed to submit sufficient medical evidence to establish a
recurrence of disability on or after November 5, 2015 due to her accepted emotional conditions.
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 has not met her burden of proof to establish a recurrence
of disability commencing November 5, 2015, causally related to her accepted emotional
conditions.

19

On appeal appellant argues that Dr. Aycock’s reports are sufficient to establish her claim for a recurrence of
disability, but the Board has explained why they lack adequate medical rationale on causal relationship to establish
her claim.

9

ORDER
IT IS HEREBY ORDERED THAT the July 26, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 2, 2017
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10