S.B. and U.S. Postal Service, International Service Center New York (Board decision, March 28, 2024)

ECAB remand decision. The Board set aside OWCP’s July 17, 2023 decision and remanded for evidence about the availability of modified work. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A postal mail handler claimed renewed disability after working in a modified position for an accepted back injury. He said the employer withdrew that assignment and placed him on standby duty that exceeded his restrictions. The record lacked the employer’s account of the assignment change. The Board directed OWCP to obtain documentation about available work within his limits before deciding the recurrence claim.

Decision snapshot

• Authority: FECA recurrence of disability when a limited duty assignment changes or ends.
• Outcome: July 17, 2023 decision set aside and case remanded.
• Key point: OWCP needs accurate employer records on modified work availability to decide a recurrence claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.B., Appellant
)
)
and ) Docket No. 23-0999
) Issued: March 28, 2024
U.S. POSTAL SERVICE, INTERNATIONAL
)
SERVICE CENTER NEW YORK, JOHN F.
)
KENNEDY INTERNATIONAL AIRPORT,
)
Jamaica, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 22, 2023 appellant filed a timely appeal from a July 17, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the July 17, 2023 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedures 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. ISSUE

The issue is whether appellant has met his burden of proof to establish a recurrence of disability for the period commencing May 31, 2023, causally related to his accepted August 11, 2021 employment injury.

FACTUAL HISTORY

On August 17, 2021 appellant, then a 35-year-old mail handler assistant, filed a traumatic injury claim (Form CA-1) alleging that on August 11, 2021 he sustained a left-side low back injury when the trailer he was loading pulled away suddenly, causing him to lose his balance and strike his back against a conveyor belt while in the performance of duty. He stopped work on August 11, 2021. OWCP accepted the claim for contusion of lower back and pelvis, strain of muscle, fascia, tendon of lower back, and sprain of ligaments of lumbar spine. It later expanded the acceptance of the claim to include aggravation of other intervertebral disc displacement, lumbar region. OWCP paid appellant wage-loss compensation on the supplemental rolls, effective September 26, 2021, and on the periodic rolls, effective June 19, 2022.

Appellant continued to receive medical treatment.

In an August 16, 2022 report, Dr. Mark Goodstein, a Board-certified anesthesiologist, diagnosed lumbago with lumbar spine sprain and strain, lumbar disc displacement with herniated nucleus pulposus at L3-4, L4-5, and L5-S1, severe stenosis at L3-4 and L4-5, bilateral lumbar radiculopathy, left greater than right, and lumbar facet joint syndrome.

On September 15, 2022 Dr. Goodstein performed a lumbar intra-articular injection at L5- S1 with lumbar epidurogram. On October 25, 2022 he returned appellant to restricted-duty work.

In a November 15, 2022 report, Dr. Riaz Ahmad, a Board-certified internist, returned appellant to light-duty work effective November 23, 2022, with lifting limited to no more than 15 pounds, and standing and sitting up to 40 minutes continuously.

In a November 22, 2022 duty status report (Form CA-17), Dr. Ahmad returned appellant to light-duty work effective November 23, 2022, with lifting limited to no more than 15 pounds, and standing, walking, bending, stooping, twisting, pulling, pushing, simple grasping, fine manipulation, reaching above shoulder level, driving a vehicle, and operating machinery restricted to no more than 30 to 40 minutes continuously.

In a January 10, 2023 report, Dr. Ahmad found appellant disabled from work due to persistent lumbar pain. In a Form CA-17 of even date, he indicated that appellant could perform light-duty work and renewed the November 22, 2022 work restrictions.

On January 18, 2023 the employing establishment offered appellant a full-time modified position as a mail handler based on Dr. Ahmad’s November 22, 2022 report. It noted that appellant’s medical restrictions were lifting and carrying up to 15 pounds, standing, walking, bending, stooping, twisting, pulling, pushing, simple grasping, fine manipulation, reaching above the shoulder, and operating machinery for 30 to 40 minutes continuously. The light-duty assignment included lifting letter trays, flat trays, and empty sacks not to exceed 15 pounds,

2 opening and dumping sacks, separating items into categories, preparing letters and flat-sized mail, placing letters in trays, placing flats in flat trays in hampers, and placing small parcels into postal containers. Appellant could alternate sitting, standing, walking, and bending.

On January 21, 2023 appellant accepted the offered position and returned to full-time modified work with restrictions.

In a report dated February 6, 2023, Dr. Goodstein diagnosed cervicalgia with cervical spine sprain and strain, cervical disc displacement with herniated nucleus pulposus at C2-3, large disc herniation at C3-4 and C4-5, broad disc herniation on the left at C5-6 and C6-7, lumbago with lumbar spine sprain and strain, lumbar disc displacement with herniated nucleus pulposus at L4- 5, a large left-sided disc herniation at L5-S1 with severe stenosis, disc bulges at L2-3 and L3-4, bilateral lumbar radiculopathy, left greater than right, and lumbar facet joint syndrome.3

In a February 21, 2023 report, Dr. Ahmad held appellant off work. He diagnosed lumbar spine sprain/strain as causally related to the August 11, 2021 employment injury, and noted that appellant was unable to work due to persistent pain which limited his ability to perform his job.4

In reports dated March 24 and May 5, 2023, Dr. Ahmad found appellant partially disabled from work.

On June 3, 2023 appellant filed a notice of recurrence (Form CA-2a) claiming disability beginning May 31, 2023 causally related to his August 11, 2021 employment injury. He alleged that his light-duty position had changed, as he had been restricted to a room where he was required to sit on uncomfortable chairs for the duration of his eight-hour shift. Prolonged sitting had decreased appellant’s lumbar range of motion and aggravated his sciatica.

OWCP received a June 2, 2023 Form CA-17 bearing an illegible signature.
The
practitioner held appellant off work due to a lumbar sprain.

In a June 6, 2023 development letter, OWCP advised appellant of the deficiencies of his recurrence claim. It advised him of the type of medical evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond.

3
A January 26, 2023 scan of the cervical spine demonstrated developmental narrowing of the cervical canal, small central disc herniation magnetic resonance imaging (MRI) scan at C2-3, moderately large disc herniations causing mild-to-moderate cord compression at C3-4 and C4-5, moderate sized broad-based disc herniation at C5-6 mildly compressing the spinal cord, severe foraminal and central canal stenosis at C5-6, disc herniation mildly indenting the spinal cord at C6-7, and straightening of the cervical spine suggesting muscle spasm. January 26, 2023 x-rays of the cervical spine demonstrated hypertrophic changes at multiple levels, decreased disc space at C5-6, and no evidence of fracture. A January 26, 2023 MRI scan of the lumbar spine demonstrated sclerosis of vertebral endplates at L4-5 and L5-S1, a large central disc bulge at L5-S1 with left lateral herniation of the nucleus pulposus, bulging of the L4- 5 disc with central herniation of the nucleus pulposus, nerve root impingement and central stenosis, and bulging of the annulus fibrosus at L2-3 and L3-4 with central stenosis. 4 A March 17, 2023 electromyogram/nerve conduction velocity (EMG/NCV) study of the lower extremities demonstrated right L5-S1 radiculopathy.

3
 In a June 1, 2023 work slip, Dimitri Lafortune, a physician assistant, noted treating appellant in an emergency department that day. He returned appellant to work effective June 3, 2023.5

In a June 2, 2023 report, Dr. Ahmad recounted appellant’s symptoms of constant, sharp lumbar pain. On examination, he observed restricted lumbar motion in all planes, spinal point tenderness on palpation, and tenderness on palpation of the lower paraspinal muscles. Dr. Ahmad diagnosed lumbar spine sprain/strain. He recommended continued physical therapy.6 Dr. Ahmad opined that the objective physical findings and diagnoses were causally related to the August 11, 2021 employment injury. He found appellant totally disabled from work.

In response to OWCP’s development letter dated June 12, 2023, appellant submitted a completed development questionnaire. He alleged that due to low mail volume, he and other limited-duty personnel were confined to a room and required to sit for the duration of their work shift. Appellant contended that prolonged sitting caused lumbar strain, sciatica, numbness in his lower extremities, and aggravated his lumbar disc bulges. He also alleged that while performing the light-duty position, that he had been made to lift greater than 15 pounds in violation of his medical restrictions.

Commencing June 21, 2023, appellant filed a series of claims for compensation (Form CA-
7) for disability from work for the period June 6 through 30, 2023.

     In a June 22, 2023 report, Dr. Abdalla Adam, Board-certified in physiatry, recounted that

appellant had returned to limited-duty work in January 2023, but was then placed on standby duty, “sitting in a room on a hard metal chair” or on a couch attached to the wall. Appellant alleged that he had been required to sit there for eight hours a day for approximately 30 days. His lower back pain worsened, causing him to seek treatment at a hospital emergency department on June 1, 2023. On examination, Dr. Adam observed restricted lumbar motion in all planes, severe tenderness of the lumbar paraspinals, a positive right straight leg raising test, antalgic gait, decreased pinprick and light touch sensation in the right L4, L5, and S1 distributions, an absent right ankle reflex, and diminished left ankle and bilateral patella reflexes. He diagnosed exacerbation of a lumbar spine strain, herniated nucleus pulposus, and radiculopathy. Dr. Adam recommended continued physical therapy and prescribed medication and a back brace. He opined that appellant’s objective findings and diagnosis were causally related to the August 11, 2021 employment injury. Dr. Adam held appellant off work.

    By decision dated July 17, 2023, OWCP denied appellant’s recurrence claim, finding that

he failed to submit sufficient evidence to establish a recurrence of total disability, commencing May 31, 2023, causally related to his accepted August 11, 2021 employment injury.

5
OWCP also received a June 1, 2023 unsigned after visit summary for back pain and sciatica.
6
OWCP also received physical therapy treatment notes dated June 2 and 16, 2023.

                                                      4

LEGAL PRECEDENT

    An employee seeking benefits under FECA7 has the burden of proof to establish the

essential elements of his or her claim, including the fact that any disability or specific condition for which compensation is claimed is causally related to the employment injury.8 The term disability is defined as the incapacity, because of an employment injury, to earn the wages the employee was receiving at the time of the injury.9 For each period of disability claimed, the employee has the burden of proof to establish that he or she was disabled from work as a result of the accepted employment injury.10 Whether a particular injury causes an employee to become disabled from work, and the duration of that disability, are medical issues that must be proven by a preponderance of the reliable, probative, and substantial medical evidence.11

    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 that had resulted from a previous compensable injury or illness and without an intervening injury or new exposure in the work environment. 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.12

    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. As part of this burden of proof, 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 limited-duty job requirements.13

    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 7
Supra note 1.
8
C.B., Docket No. 20-0629 (issued May 26, 2021); D.S., Docket No. 20-0638 (issued November 17, 2020); S.W., Docket No. 18-1529 (issued April 19, 2019); Elaine Pendleton, 40 ECAB 1143 (1989); see also Nathaniel Milton, 37 ECAB 712 (1986). 9
20 C.F.R. § 10.5(f); S.T., Docket No. 18-412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).
10
K.C., Docket No. 17-1612 (issued October 16, 2018); William A. Archer, 55 ECAB 674 (2004).
11
S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291-92 (2001).
12
20 C.F.R. § 10.5(x); see D.T., Docket No. 19-1064 (issued February 20, 2020).
13
G.P., Docket No. 21-0112 (issued July 14, 2021); J.S., Docket No. 19-1402 (issued November 4, 2020); S.D.,
Docket No. 19-0955 (issued February 3, 2020); Terry R. Hedman, 38 ECAB 222 (1986).

                                                      5

physician who, on the basis of a complete and accurate factual and medical history, concludes that, for each period of disability claimed, the disabling condition is causally related to the employment injury and supports that conclusion with medical reasoning.14 Where no such rationale is present, the medical evidence is of diminished probative value.15

                                              ANALYSIS

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

     Commencing January 21, 2023, appellant performed a full-time light-duty position as a

modified mail handler, within medical restrictions provided by Dr. Ahmad on November 22, 2022 limiting lifting and carrying to no more than 15 pounds, with changes of position every 30 to 40 minutes. In his June 12, 2023 response to OWCP’s development questionnaire and his June 22, 2023 statement to Dr. Adam, appellant alleged that the employing establishment withdrew his light-duty position and reassigned him to standby duty, which required him to sit for eight hours a day. He also alleged that while performing the light-duty position, the employing establishment had required him to lift more than 15 pounds. Dr. Adam diagnosed exacerbation of a lumbar spine strain, herniated nucleus pulposus, and radiculopathy.

    The Board finds that the factual evidence of record is insufficient to determine whether

appellant sustained a recurrence of disability due to a withdrawal of his light-duty position.16 The employing establishment has not provided information regarding the alleged withdrawal of the light-duty position and reassignment to standby duty. Accordingly, the evidence of record must be fully developed so that it contains accurate information regarding appellant’s claim in order to determine whether he was disabled from work commencing May 31, 2023 because of a change or withdrawal of his limited-duty assignment due to the accepted August 11, 2021 employment injury.17

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

appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in the development of the evidence.18

    Accurate information regarding whether a limited-duty assignment was available during

the claimed periods of disability is essential to determine whether appellant sustained a recurrence

14
H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).
15
G.S., Docket No. 23-0056 (issued July 3, 2023); E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A.
Ceglia, Docket No. 04-0113 (issued July 22, 2004).
16
G.P., supra note 13; I.G., Docket No. 20-0034 (issued April 23, 2021); M.W., Docket No. 20-0881 (issued
January 13, 2021); L.F., Docket No. 19-0519 (issued October 24, 2019). 17
G.P., id.; see P.H., Docket No. 20-0039 (issued April 23, 2020); D.M., Docket No. 18-0527 (issued July 29,
2019); J.G., Docket No. 17-0910 (issued August 28, 2017); M.A., Docket No. 16-1602 (issued May 22, 2017). 18
See e.g., M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985);
Michael Gallo, 29 ECAB 159, 161 (1978); William N. Saathoff, 8 ECAB 769-71; Dorothy L. Sidwell, 36 ECAB 699, 707 (1985).

                                                    6

of disability.19 This evidence is of the character normally obtained from the employing establishment and is more readily accessible to OWCP than to him.20 On remand, OWCP shall request that the employing establishment furnish documentation clarifying whether modified-duty work within appellant’s restrictions was available to him for the period commencing May 31, 2023, and the alleged reassignment from the limited-duty position described in the January 18, 2023 job offer to standby duty. Following any further development as deemed necessary, OWCP shall issue a de novo decision.

                                             CONCLUSION

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

                                                 ORDER

    IT IS HEREBY ORDERED THAT the July 17, 2023 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded for further proceedings consistent with this decision of the Board.

Issued: March 28, 2024
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

19
G.P., supra note 13; see K.T., Docket No. 17-0009 (issued October 8, 2019); Y.R., Docket No. 10-1589 (issued May 19, 2011).
20
J.T., Docket No. 15-1133 (issued December 21, 2015); J.S., Docket No. 15-1006 (issued October 9, 2015).

7