United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.M., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

JACKSON VETERANS ADMINISTRATION 

MEDICAL CENTER, Jackson, MS, Employer 

__________________________________________ 

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Docket No. 14-1494 

Issued: October 27, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 16, 2014 appellant, through his attorney, filed a timely appeal from a 

May 2, 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 established a recurrence of total disability on June 4, 2013. 

On appeal, counsel asserts that the May 2, 2014 decision is contrary to law and fact. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On November 15, 2007 appellant, then a 44-year-old human resources specialist, fell 

down three stairs at work. OWCP accepted the claim for sprain of hip, iliofemoral, right and 

displacement of lumbar herniated discs at L4-5 and L5-S1. On December 12, 2007 appellant 

underwent lumbar discectomy at L5-S1. He returned to regular duty on September 8, 2008 with 

the accommodation of an ergonomic chair. 

On November 13, 2012 appellant filed a Form CA-7 claim for compensation, indicating 

that he stopped work on October 29, 2012. OWCP accepted the recurrence of disability and paid 

wage-loss compensation. 

In a work capacity evaluation dated April 4, 2013, Dr. John B. Adams, Board-certified in 

family and pain medicine, indicated that appellant could return to four hours of modified duty 

daily with no twisting and a 10-pound lifting restriction. Sitting limited to 30-minute intervals 

and standing to 15-minute intervals and appellant was to be allowed breaks. Appellant returned 

to four hours of modified duty on May 1, 2013. The position description indicated that he would 

work four hours a day, five days a week and would be able to perform his regular job duties as a 

human resources specialist, with a modification that he could sit and stand as needed and was not 

required to lift anything over 10 pounds or to walk for more than 15 minutes intermittently.2

 

Appellant continued to receive appropriate compensation for four hours daily. 

On June 12, 2013 appellant filed a Form CA-7 claim for compensation, noting that he 

stopped work on June 4, 2013. A May 6, 2013 report of contact advised that he called Patricia 

Till, a human resources specialist, to report that his ergonomic chair had been used by an 

extremely obese person in his absence. It was disfigured and did not support appellant’s back, 

such that he had to get up every 30 minutes due to pain. Appellant received compensation for 

four hours a day. 

In a treatment note dated June 4, 2013, Dr. Adams advised that appellant was seen for 

continued radiating low back pain. Appellant reported that he tried to return to work but, in his 

absence, his chair was given to someone who was morbidly obese, which disfigured his chair, 

making it no longer useful. Dr. Adams provided physical examination findings and diagnosed 

lumbar spondylosis and lumbar post-laminectomy syndrome. He stated that, due to the lack of a 

recommended ergonomic chair and apparent difficulty with accommodation, appellant should 

not work until after a functional capacity evaluation. 

By report dated June 19, 2013, Dr. Carmela G. Osborne, a Board-certified physiatrist, 

noted the history of injury and appellant’s complaint of low back pain with radiation to the left 

lower extremity. She reported that when he returned to work in 2008, he used an ergonomic 

chair until he stopped work in 2012 due to an increase in pain. After his return to work in 

May 2013, appellant had a significant amount of desk work and noted increasing pain. 

Dr. Osborne indicated that he had an antalgic gait and walked with a cane. Straight leg raise was 

 2

 On May 20, 2013 OWCP finalized an overpayment of compensation of $193.20 that occurred because appellant 

received wage-loss compensation after his return to work. 
3

negative bilaterally. Dr. Osborne diagnosed radiating low back pain, status post lumbar fusion 

and recommended a functional capacity evaluation. 

By letter dated July 8, 2013, OWCP informed appellant that the evidence submitted was 

insufficient to establish his claim. The medical evidence established that he could not perform 

the duties of his part-time work. Appellant was asked to provide a comprehensive narrative 

report from his physician that included specific work duties he could not perform and the 

relationship between the claimed disability and his employment injury. 

A functional capacity evaluation was completed on July 22 and 23, 2013. It determined 

that appellant was functioning at a sedentary/light level of work and that, due to his complaint of 

pain. It was recommended that he be allowed to switch positions after sitting for 20 minutes or 

so and, if possible, that he be accommodated with a table that would elevate to his standing 

height so that he could continue to work while standing. 

In a July 25, 2013 report, Dr. Adams advised that appellant continued to have 

lumbosacral pain in the moderate to severe range with limited lumbar flexion and extension. On 

his last evaluation, appellant had exquisite tenderness over the left sacroiliac joint. Dr. Adams 

diagnosed lumbar postlaminectomy syndrome, lumbosacral spondylosis without myelopathy, 

chronic pain syndrome and therapeutic drug monitoring, due to the 2007 employment injury and 

noted that appellant also had concomitant depression. He had not reviewed the functional 

capacity evaluation and would defer a description of duties appellant could perform to 

Dr. Osborne. On August 5, 2013 Dr. Adams recommended a radiofrequency thermocoagulation 

neurotomy for therapeutic benefit. 

The Office of Personnel Management approved appellant’s disability retirement 

application on August 7, 2013. Appellant stated that his retirement was effective 

August 8, 2013. His partial disability compensation continued through July 26, 2013. 

By decision dated August 13, 2013, OWCP denied appellant’s total disability claim. It 

found that the medical evidence did not establish that he was unable to perform the duties of his 

modified position. OWCP noted that appellant remained entitled to partial disability 

compensation and medical benefits. 

A conference call was held between an OWCP claims examiner, appellant’s supervisor, 

and Valerie Palmer of the employing establishment on August 13, 2013. Ms. Palmer noted that 

when appellant reported that his chair was no longer useful, she advised him to present medical 

documentation and another chair would be purchased. She also stated that the occupational 

health specialist found no problems with his chair. 

In reports dated August 15, 2013, received by OWCP on September 9, 2013, Dr. Osborne 

reviewed the functional capacity evaluation. Appellant had permanent restrictions of no lifting 

greater than 10 pounds occasionally; no repetitive bending, twisting or stooping; and that he be 

allowed to change position sitting to standing every 20 minutes, with rest breaks. 

On August 16, 2013 OWCP referred appellant to Dr. Byron Thomas Jeffcoat, a Boardcertified orthopedic surgeon, for a second opinion. Dr. Jeffcoat was provided a statement of 

accepted facts, a list of questions and the medical record. In a September 12, 2013 report, he 
4

noted the history of injury and appellant’s complaint of increasing back pain. Examination of the 

back demonstrated that appellant was able to stand on his heels and his toes; could flex his toes 

back and forth; could fully squat and recover; had two plus reflexes in his knees and ankles; and 

that straight leg raise caused some back pain but no radicular pain on either side. When lying 

prone and flexing his knees, he complained of back pain and he was tender over his right 

sacroiliac joint. Motor and sensory functions were normal and he had no calf atrophy. In answer 

to specific OWCP questions, Dr. Jeffcoat found that appellant could return to full duty as a 

human resource specialist, based on the medical history and physical examination that day, 

which was fairly normal. He advised that no work restrictions or accommodations were 

necessary. Dr. Jeffcoat noted that appellant had a history of back problems prior to the 

November 7, 2007 employment injury, as characterized by magnetic resonance imaging (MRI) 

scan and computerized tomography studies dated April 28 to August 10, 2007. In an attached 

work capacity evaluation, he listed that appellant could push, pull and lift 25 to 30 pounds for 

four hours daily. 

Appellant, through his attorney, timely requested a hearing. In a January 16, 2014 report, 

Dr. Adams noted that appellant reported that his light-duty job had changed and had become 

more demanding such that more exertion was required, which he could not tolerate. He 

recommended that appellant return to work at a sedentary level with frequent opportunities to 

stand and stretch, to begin four hours a day. It was Dr. Adams’ understanding that appellant’s 

light-duty position was no longer available and further recommended that, because appellant’s 

ergonomic chair was no longer usable, a new chair be obtained. 

At the February 13, 2014 hearing, appellant testified that his back pain became so severe 

in June 2013 that he could no longer work and that he was now retired on disability. 

By decision dated May 2, 2014, an OWCP hearing representative affirmed the 

August 13, 2013 decision. She determined that the medical evidence did not establish that 

appellant was unable to perform his light-duty job. 

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 had resulted from a 

previous injury or illness without an intervening injury or new exposure to the work environment 

that caused the illness.3

 This term also means an inability to work when a light-duty assignment 

made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of 

misconduct, nonperformance of job duties or a reduction-in-force) or when the physical 

requirements of such an assignment are altered so that they exceed his or her established physical 

limitations.4

 3

 20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004). 

4 Id. 
5

When an employee, who is disabled from the job he or she held when injured on account 

of employment-related residuals, returns to a light-duty position or the medical evidence 

establishes that light duty can be performed, the employee has the burden to establish by the 

weight of reliable, probative and substantial evidence a recurrence of total disability. 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 light-duty requirements.5

ANALYSIS 

The Board finds that appellant did not establish a recurrence of total disability on 

June 4, 2013 causally related to the accepted, iliofemoral right hip sprain and displacement of 

lumbar herniated discs at L4-5 and L5-S1 caused by the November 15, 2007 employment injury. 

Appellant did not establish that the nature and extent of his injury-related condition changed so 

as to prevent him from continuing to perform his modified part-time assignment. 

A partially disabled claimant who returns to a light-duty job has the burden of proving 

that he or she cannot perform the light duty, if a recurrence of total disability is claimed.6 The 

issue of whether an employee has disability from performing a modified position is primarily a 

medical question and must be resolved by probative medical evidence.7 A claimant’s burden 

includes the necessity of furnishing medical evidence from a physician who, on the basis of a 

complete and accurate factual and medical history, concludes that the condition is causally 

related to the employment injury and supports that conclusion with sound medical rationale. 

Where no such rationale is present, the medical evidence is of diminished probative value.8

Based on an April 4, 2013 work capacity evaluation, appellant returned to four hours of 

modified duty on May 1, 2013. The job duties of the part-time position were within the 

restrictions provided by Dr. Adams who advised that appellant would work four hours a day, five 

days a week and was able to perform his regular job duties as a human resources specialist, with 

a modification that he could sit and stand as needed. Appellant was limited from lifting anything 

over 10 pounds or walk for more than 15 minutes intermittently. He continued to receive 

wage-loss compensation for four hours a day. 

On August 15, 2013 Dr. Osborne advised that appellant had permanent restrictions of no 

lifting greater than 10 pounds occasionally; no repetitive bending, twisting or stooping; and that 

he be allowed to change positions from sitting to standing every 20 minutes, with rest breaks. 

While the modified position appellant was performing when he stopped work on June 4, 2013 

did not specifically limit twisting, bending and stooping; his position as a human resources 

specialist was sedentary. The position description noted that normal body mechanics should be 

used for these functions. The other restrictions provided by Dr. Osborne are in accordance with 

appellant’s modified job duties. Dr. Osborne did not state whether she was familiar with 

 5 Shelly A. Paolinetti, 52 ECAB 391 (2001); Terry R. Hedman, 38 ECAB 222 (1986). 

6 See William M. Bailey, 51 ECAB 197 (1999). 

7 Cecelia M. Corley, 56 ECAB 662 (2005). 

8 Mary A. Ceglia, 55 ECAB 626 (2004). 
6

appellant’s job duties other than to note he had a significant amount of desk work. Her reports 

are insufficient to establish a recurrence of disability on June 4, 2013. 

Dr. Adams submitted reports from June 4, 2013 to January 16, 2014, but his opinion is 

also insufficient to establish appellant’s claim. He diagnosed lumbar spondylosis and lumbar 

postlaminectomy syndrome, neither of which are accepted conditions. On June 4 and July 2, 

2013 Dr. Adams indicated that, due to the lack of a recommended ergonomic chair and apparent 

difficulty with accommodation, appellant should not work until a functional capacity evaluation 

was completed. The testing was completed on July 22 and 23, 2013 and determined that 

appellant was functioning at a sedentary/light level of work. Due to his complaint of pain, it was 

recommended that he be allowed to switch positions after sitting for 20 minutes or so and, if 

possible, that he be accommodated with a table that would elevate to his standing height so that 

he could work while standing. As of July 25, 2013 Dr. Adams had not reviewed the functional 

capacity evaluation and deferred a description of duties appellant could perform to Dr. Osborne. 

On January 16, 2014 he noted that appellant reported that his light-duty job had changed and had 

become more demanding such that more exertion was required, which he could not tolerate. 

Dr. Adams recommended that appellant return to work at a sedentary level with frequent 

opportunities to stand and stretch, to begin four hours a day. Further, because appellant’s 

ergonomic chair was no longer usable, a new chair was obtained. 

Although Dr. Adams recommended the functional capacity evaluation, in none of his 

reports did he acknowledge the results of the examination. Moreover, the restrictions provided 

in his January 16, 2014 report are within the modified duties of the part-time position appellant 

accepted on May 6, 2013. While Dr. Adams indicated that a new ergonomic chair was obtained, 

when appellant informed the employing establishment that his chair was no longer usable, he 

was told to present medical documentation and another chair would be purchased. The 

employing establishment further noted that an occupational health specialist found no problem 

with appellant’s chair despite his allegation that it had been broken. There is no evidence in the 

record that appellant ever complied with this recommendation and no indication, as maintained 

by Dr. Adams, that appellant’s modified part-time job duties required more exertion. Dr. Adams 

did not relate appellant’s total incapacity to any of the accepted conditions and failed to explain 

how appellant’s complaints of low back pain were a result of change in the nature and extent of 

his November 15, 2007 employment injury. He did not provide sufficient medical rationale to 

support any objective worsening of appellant’s accepted lumbar condition which caused his 

inability to work. Accordingly, appellant’s reports are insufficient to establish that his claimed 

disability beginning June 4, 2013 was due to the November 15, 2007 employment injury. 

In a September 12, 2013 report, Dr. Jeffcoat, an OWCP referral physician, advised that 

appellant could return to full duty as a human resource specialist, based on appellant’s medical 

history and his physical examination that day, which was fairly normal. He indicated that no 

work restrictions or accommodations were necessary. 
7

As appellant did not submit sufficient medical evidence to establish that he sustained a 

recurrence of total disability on June 4, 2013 causally related to the November 5, 2007 

employment injury, he did not meet his burden of proof.9 

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish that he 

sustained a recurrence of total disability on or after June 4, 2013 caused by the 

November 15, 2007 employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated May 2, 2014 is affirmed. 

Issued: October 27, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 9 Id.