United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Harrisburg, PA, Employer 

__________________________________________ 

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Docket No. 15-0665 

Issued: August 10, 2015 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 11, 2015 appellant, through counsel, filed a timely appeal from August 26 

and December 17, 2014 merit decisions 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 met her burden of proof to establish a recurrence of 

disability on June 17, 2014. 

FACTUAL HISTORY 

On July 10, 2012 appellant, then a 55-year-old mail clerk, filed a traumatic injury claim 

alleging that on July 7, 2012 she experienced low back and right leg pain as a result of bending 

down and lifting a parcel weighing approximately 15 to 20 pounds. She stopped work on 

 1

 5 U.S.C. § 8101 et seq.
2

July 10, 2012. On August 11, 2012 appellant returned to part-time light duty and on 

September 10, 2012 she returned to full-time light duty.2 OWCP accepted her claim for 

aggravation of L4-5 disc herniation. 

On May 28, 2013 appellant stopped work again and filed a claim for recurrence. OWCP 

accepted her recurrence claim because the employing establishment no longer had work 

available for her within her restrictions. It reinstated appellant’s disability compensation 

benefits. On December 13, 2013 OWCP placed her on the periodic rolls. 

On January 8, 2014 OWCP referred appellant, along with the medical record and 

statement of accepted facts (SOAF), to Dr. Peter A. Feinstein, a Board-certified orthopedist, for a 

second opinion examination to determine whether appellant’s recurrence had ended or lessened 

or whether she was capable of returning to work. In a February 14, 2014 report, Dr. Feinstein 

reviewed the statement of accepted facts and the medical record. Appellant related that her 

lumbar condition felt the same as it did six months ago and she felt that she could not return to 

work. Upon examination, Dr. Feinstein observed that her neck and upper extremities appeared 

to be grossly intact. He noted that appellant’s right paravertebral, buttocks, and sacroiliac (SI) 

joint area showed discomfort to palpation, with minimal discomfort on the left side. 

Dr. Feinstein stated that forward flexion of her lumbar spine was limited to approximately 60 

degrees, with some right paravertebral muscular discomfort. Straight leg raise testing was 

positive in both lower extremities radiating to the right buttocks, even in the left lower extremity. 

Dr. Feinstein stated that appellant’s aggravation had not ended or lessened. He reported that she 

was capable of returning to work at a sedentary capacity, with the option to sit and stand at her 

own discretion, for four hours per day. Dr. Feinstein recommended that appellant continue 

taking anti-inflammatories and muscle relaxants. 

In a February 14, 2014 work capacity evaluation form, Dr. Feinstein reported that 

appellant could work four hours per day with restrictions of sitting, walking, and standing for 

two hours, pulling, and lifting for one hour, and no bending, stooping, twisting, squatting, or 

kneeling. He stated that she needed to be able to sit and stand at her discretion. 

In reports dated March 27 to May 29, 2014, Dr. Avner R. Griver, Board-certified in 

physical medicine and rehabilitation, related appellant’s complaints of constant low back and left 

leg pain as a result of a July 7, 2012 injury when she bent down to lift an object at work. He 

reviewed her history and reported that overall her low back pain had not significantly improved. 

Dr. Griver noted that appellant returned to limited duty, but stopped work again in June 2013. 

Upon examination of the lumbar spine, he observed tenderness of the lumbar paraspinal area 

bilaterally and left sciatic notch tenderness, but no tenderness of the costovertebral angle. 

Dr. Griver also reported obvious and new spasm of the lumbosacral spine, right greater than left. 

He found full extension and mildly limited flexion with discomfort. Dr. Griver noted no 

instability or scoliosis. Straight leg raise testing was positive bilaterally. Dr. Griver stated that 

appellant appeared to have a flare up of lower back pain. He diagnosed lumbago, intervertebral 

 2

 Appellant’s modified distribution clerk position involved throwing letters and flats for 2 hours at 30-minute 

intervals and working shared services accounting. The physical requirements of the job were sitting and standing 

for 30 minutes intermittently and working 4 hours for the first two weeks and slowly increasing the number of total 

hours worked. 
3

disc disorder, neuritis or radiculitis of the lumbosacral spine, spasm muscle, and intervertebral 

lumbar disc degeneration. Dr. Griver recommended that appellant “continue off work for now 

and be reevaluated in two to three months.” He noted that appellant was capable of work with 

restrictions. 

On May 28, 2014 the employing establishment offered appellant a part-time modifiedduty assignment with duties of assisting customers at automated self-service unit in the lobby 

area and verbally providing customer assistance. The physical requirements of the job included 

sitting, standing, and walking as comfortable for up to two hours and speaking and explaining for 

four hours. 

In a June 9, 2014 report, Dr. Griver stated that appellant was under his care and could 

return to work on July 9, 2014 with her prior restrictions and limitations. 

On June 16, 2014 appellant returned to part-time limited duty. She worked two hours 

before going home. On June 17, 2014 appellant briefly returned to work and worked 1.38 hours 

before stopping work again. 

In a June 18, 2014 statement, appellant noted that on May 28, 2014 she went to the 

employing establishment and accepted a job offer for a modified position. She explained that 

she gave a start date of June 16, 2014, but she did not know if Dr. Griver would release her on 

that date. Appellant stated that at her next appointment on May 29, 2014, Dr. Griver wanted to 

schedule her for an emergency procedure. She then informed the employing establishment that 

she could not start work on June 16, 2014 due to the procedure. Appellant reported that she did 

not refuse the job offer. She explained that on June 16, 2014 she reported to work with leg and 

back pain and was only able to work two hours. On June 17, 2014 appellant attempted to work 

again and only worked one and a half hours. 

In a June 17, 2014 report, Dr. Griver examined appellant for complaints of increased pain 

in her low back and left leg. He related that she was having difficulty at work with the time off 

note that he had given her and wanted to give her another note to enforce his first note of being 

off work. Dr. Griver noted that appellant tried to work yesterday and today, but experienced 

increased pain. Upon examination, he observed pain but no swelling. Dr. Griver reported that 

appellant walked with a slightly antalgic gait. He related that she denied anxiety, depression, or 

mood changes. Dr. Griver diagnosed lumbago and lumbosacral neuritis or radiculitis. He 

indicated that he would issue an out of work note until he evaluated appellant on June 23, 2014. 

In a June 26, 2014 report, Dr. Griver related that appellant developed an acute flare up of 

low back pain which radiated across the low back and into her legs. He noted that she had a 

work-related injury in July 2012 and complained of constant low back and left leg pain since that 

time. Upon examination of her lumbar spine, Dr. Griver observed left antalgic gait and a notable 

extension posture. The left hamstring reflex was absent and right reflex was normal. Straight 

leg raise testing was positive on the left. Dr. Griver also noted positive left sciatic notch 

tenderness and notable left-sided lumbar tenderness. He diagnosed lumbago, intervertebral disc 

displacement lumbar without myelopathy, and intervertebral disc degeneration. 
4

In a June 26, 2014 work note, Dr. Griver indicated that appellant could not work from 

June 26 to July 26, 2014 due to illness or injury. 

In a CA-7 form dated July 3, 2014, appellant requested wage-loss compensation for the 

period June 14 to 27, 2014. She continued to submit CA-7 forms for wage-loss compensation 

until November 28, 2014. 

In a July 8, 2014 report, Dr. Griver stated that appellant was under his care for a lumbar 

herniated disc and radiculopathy. He related that she had improved and was authorized to work 

restricted duty. Dr. Griver reported that appellant had a recent flare up in April 2014 and he had 

taken her temporarily off work. When he examined her on May 29, 2014 he recommended that 

she try to comply with Dr. Feinstein’s recommendation of four hours a day of restricted duty. 

Dr. Griver stated that when appellant could not work even at a part-time basis, he further 

restricted her to be completely off work beginning June 9, 2014. He explained that she was 

currently undergoing a regimen of treatment that would hopefully resolve her flare up and allow 

her to return to work at a part-time or full-time basis. Dr. Griver recommended that appellant be 

off work through July 26, 2014 in order to allow her to receive proper treatment. 

By letter dated July 10, 2014, OWCP stated that it received appellant’s informal claim for 

recurrence of disability beginning June 16, 2014. It advised her that no supporting 

documentation was submitted along with her CA-7 form and requested additional evidence to 

establish that she was unable to work limited duty due to a material worsening or change in her 

accepted lumbar condition. 

On July 11, 2014 appellant filed a recurrence claim alleging that on June 17, 2014 she 

sustained a recurrence of disability. She stated that after returning to work she was able to sit, 

stand, and walk up to two hours per shift. Appellant reported that her condition was the same as 

the original July 7, 2012 injury and that the pain was continuous. She explained that on June 17, 

2014 she sat, stood, and walked as she needed to be comfortable but she was still aggravated, 

which made it difficult to continue to work. 

On July 16, 2014 appellant responded to OWCP’s development letter. She stated that on 

June 17, 2014 she was standing and walking on a concrete floor, which aggravated her left foot 

and lower back and made it difficult to continue working. Appellant noted that she stood, sat, 

and walked as needed but her condition was still aggravated. She explained that she believed her 

disability was due to her original condition because her flare up was exactly the same as the 

original July 7, 2012 injury. Appellant stated that she did not see it as a recurrence but as 

continuous pain since July 7, 2012. 

In July 17 and 24, 2014 reports, Dr. Griver stated that appellant had a history of constant 

low back and left leg pain since a July 7, 2012 work injury. He noted that she experienced an 

acute flare up of pain beginning in April 2014. Dr. Griver related that a magnetic resonance 

imaging (MRI) scan examination was done on June 5, 2014 and showed a central herniated disc 

at L3-4 and L4-5 levels. He reported that appellant’s workload was adjusted to try to give her 

some relief but she continued to experience significant pain. Upon examination, Dr. Griver 

observed signs and symptoms of radiculitis with an absent left hamstring reflex. Straight leg 

raise testing was positive on the left. Dr. Griver also noted sciatic notch tenderness. He stated 
5

that appellant’s extension posture was notable and reflexes were normal. Dr. Griver diagnosed 

lumbago, lumbosacral neuritis, and intervertebral disc disorder with myelopathy. 

In an August 22, 2014 report, Dr. Akash Agarwal, a Board-certified neurological 

surgeon, noted that he examined appellant at his neurosurgery clinic. He related that she had a 

long history of back pain due to bending and picking up packages at work. Dr. Agarwal reported 

that the back pain worsened in 2012 and began to radiate into her left leg. He reviewed her 

history and conducted an examination. Dr. Agarwal observed mild-to-moderate discomfort on 

palpation of her lumbar spine. Deep tendon reflexes were 1+ throughout. Toes were downgoing 

bilaterally with no Hoffman sign. Dr. Agarwal reported that he reviewed appellant’s MRI scan 

of the lumbar spine and found mild arthritic changes and a small central disc protrusion at L3-4, 

which is less pronounced, but with no known neural foraminal narrowing. He also noted a small 

central disc protrusion at L4-5 but this did not impinge on the existing nerve root. 

In a decision dated August 26, 2014, OWCP denied appellant’s recurrence claim because 

the evidence of record failed to demonstrate a change in the nature and extent of appellant’s 

injury-related disability or the nature and extent of her limited-duty position. The decision noted 

that appellant failed to present any rationalized medical evidence to establish that she could not 

perform her part-time light-duty assignment.3

On September 18, 2014 OWCP received appellant’s request for reconsideration. 

In August 29 and September 30, 2014 reports, Dr. Griver related that appellant 

experienced an acute flare up of low back pain in April 2014. He reported that she was trying 

various accommodations at work but was getting a hard time from her employer due to her 

limitations. Dr. Griver noted that appellant had been off work since June 2013. He stated that 

she returned to work in June 2014 on a part-time basis but had to stop working because of pain 

and difficulty dealing with customers. Upon examination, Dr. Griver observed that appellant’s 

lumbar spine was notable for extension posture and decreased left hamstring reflex. Straight leg 

raise testing was positive on the left at 70 degrees and negative on the right. Dr. Griver also 

reported positive left sciatic notch tenderness and notable left-sided lumbar tenderness with no 

formal spasm. Lumbar flexion was limited to 30 degrees. Dr. Griver diagnosed lumbago, 

lumbosacral neuritis or radiculitis, intervertebral disc displacement, and muscle spasm. He 

stated that appellant “definitely had an exacerbation of her lumbar pain and worsening of her 

examination in April ... therefore, I feel the issue is related to her original injury.” Dr. Griver 

reported that she could return to a sedentary part-time position, but explained that her 

psychiatrists felt that the issues from a psychiatric standpoint were too severe for her to return to 

work. 

In a handwritten September 8, 2014 report, Dr. Robert E. Griffin, a psychologist, stated 

that appellant was under his care for anxiety and depression in response to her disability. He 

reported that appellant needed to be excused from work until her symptoms were less severe. 

 3

 The decision stated that appellant was still entitled to medical benefits and four hours of wage-loss 

compensation per day. 
6

In a September 9, 2014 statement, appellant’s counsel noted that he provided medical 

documentation which explained that appellant was unable to work due to her accepted medical 

conditions. He explained that while the reports may not be sufficiently detailed to establish a 

causal relationship between the aggravation of her preexisting depression and anxiety, these 

reports were sufficient to describe an aggravation of a preexisting condition which prevented her 

from being able to work. Counsel pointed out that according to OWCP’s procedure manual if 

medical reports show that a condition has arisen or worsened since the accepted injury and the 

condition disabled the employee from the offered job, then the offered job is considered 

unsuitable. 

In a September 9, 2014 report, Dr. Philip J. Mertz, a clinical psychologist, related that 

appellant was under his care for a condition which limited her ability to function without proper 

pharmaceutical intervention. He requested that appellant take a leave of absence until a 

specialist was able to evaluate her and develop an appropriate medication regimen. 

In reports dated September 23 and October 7, 2014, Dr. Mark J. Saxon, a psychiatrist, 

stated that appellant had severe anxiety and depression due to reported high pain levels. He 

reported that appellant could not perform her duties at work at this time and would be 

reevaluated on November 12, 2014 for possible return to work. 

In an October 30, 2014 statement, appellant’s counsel related that documentation from 

appellant’s physicians and psychologist explained that she was unable to work at the present time 

due to a consequential emotional condition. He contended that the medical reports were 

sufficiently detailed to establish causation with regard to the aggravation of her preexisting 

depression and anxiety and were sufficient to establish that these conditions prevented her from 

being able to perform the allegedly suitable job. 

By decision dated December 17, 2014, OWCP denied modification of the August 26, 

2014 denial decision. 

LEGAL PRECEDENT 

OWCP’s implementing regulations define a recurrence of disability as 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.4

 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 work-related injury or illness is withdrawn (except when such 

withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reduction-inforce) or when the physical requirements of such an assignment are altered so that they exceed 

his or her established physical limitations.5 

 4

 20 C.F.R. § 10.5(x). 

5 Id. 
7

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 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 the limited-duty position. As part of 

this burden, the employee must show either a change in the nature and extent of the injuryrelated condition or a change in the nature and extent of the limited-duty requirements.6

 

OWCP’s procedures provide that if a claim of recurrence of disability is made within 90 

days or less following the first return to duty, the focus is on disability, rather than causal 

relationship.7

 The attending physician should describe the duties which the employee cannot 

perform and the demonstrated objective medical findings that form the basis for the renewed 

disability for work.8

ANALYSIS 

OWCP accepted that on July 7, 2012 appellant sustained an aggravation of L4-5 disc 

herniation in the performance of duty. Appellant stopped work and returned to full-time light 

duty on September 10, 2012. OWCP accepted that on May 28, 2013 she stopped work again 

because the employing establishment could no longer accommodate her work restrictions. On 

June 16, 2014 appellant returned to part-time light duty. She stopped work again on June 17, 

2014 and filed a claim for recurrence of disability. 

Appellant does not allege and the record does not reflect that any of her light-duty job 

requirements had changed. Rather, she attributes her disability on June 17, 2014 to her July 7, 

2012 employment injury such that she could not perform the light-duty job requirements. As 

noted above, when the claim for recurrence is within 90 days of a return to work, the focus is on 

disability, rather than whether appellant continues to have an employment-related condition. 

Regarding disability, the medical evidence must provide a description of the job duties she 

cannot perform and the objective findings that support disability.9 The Board finds that appellant 

has failed to provide sufficient medical evidence showing how or why her accepted back 

condition objectively worsened such that she was unable to work her part-time limited-duty 

assignment as of June 17, 2014. 

Appellant submitted several reports by Dr. Griver dated March 27 to September 30, 2014. 

Dr. Griver related her complaints of constant low back and lower extremity pain as a result of a 

July 7, 2012 employment injury. He reviewed appellant’s history and provided findings on 

examination. Dr. Griver stated that she appeared to have a flare up of lower back pain. He 

diagnosed lumbago, intervertebral disc disorder, neuritis or radiculitis of the lumbosacral spine, 

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

222 (1986). 

7 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500(5) (June 2013). 

8 Id. 

9 Id. 
8

spasm muscle, and intervertebral lumbar disc degeneration. In a June 17, 2014 report, Dr. Griver 

related that appellant had returned to work but continued to experience increased pain. He 

recommended that she be off work until he reevaluated her on June 23, 2014. In a June 26, 2014 

return to work note, Dr. Griver indicated that appellant could not work from June 26 to July 26, 

2014 due to illness or injury. In August 29 and September 30, 2014 reports, he related that she 

returned to part-time duty in June 2014 but had to stop working due to pain and difficulty dealing 

with customers. Dr. Griver opined that appellant “definitely had an exacerbation of her lumbar 

pain.” 

The Board notes that Dr. Griver provides findings on examination and an opinion that 

appellant sustained an exacerbation of lumbar pain. In a June 17, 2014 report, Dr. Griver 

recommended that she be off work until he reevaluated her. Although he opines that appellant 

was unable to work on June 17, 2014, he failed to provide any detailed explanation or medical 

rationale to support his opinion. Dr. Griver does not explain how his findings on examination 

supported that her accepted condition of aggravation of L4-5 disc herniation had worsened to the 

point where she could not perform part-time limited duty. He merely states that appellant had an 

exacerbation of lumbar pain. The Board notes Dr. Grivers’ opinion is not based on objective 

medical findings but on appellant’s complaints of too much pain, which is insufficient to 

establish a recurrence of disability.10 Dr. Griver fails to provide any explanation, based on 

objective medical evidence, of why appellant was unable to perform her part-time light-duty 

assignment. 

Appellant also submitted an August 22, 2014 report by Dr. Agarwal who related that 

appellant had a long history of back pain due to bending and picking up packages at work. 

Dr. Agarwal reviewed her history and conducted an examination. He reported that he reviewed 

appellant’s MRI scan of the lumbar spine and found mild arthritic changes and a small central 

disc protrusion at L3-4, which is less pronounced but with no known neural foraminal narrowing. 

Dr. Agarwal also noted a small central disc protrusion at L4-5 but this did not impinge on the 

existing nerve root. The Board notes that Dr. Agarwal did not provide any opinion on the cause 

of appellant’s inability to work beginning June 17, 2014. His report, therefore, is insufficient to 

establish her recurrence claim.11

The numerous psychologist reports are also insufficient to establish appellant’s claim as 

they do not attribute appellant’s inability to work to a worsening or change in her accepted 

July 7, 2012 injury. In a September 8, 2014 report, Dr. Griffin noted that appellant was under his 

care for anxiety and depression. He requested that appellant be excused from work until her 

symptoms were less severe. The Board notes that Dr. Griffin relates appellant’s disability to 

anxiety and depression, which are not accepted conditions by OWCP. Similarly, Drs. Mertz and 

Saxon also report that appellant was under their care for anxiety and depression and was unable 

to perform her work duties. The Board has found that when a claimant stops work for reasons 

unrelated to the accepted employment injury, there is no disability within the meaning of 

FECA.12 An employee who claims a recurrence of disability due to an accepted injury has the 

 10 See V.T., Docket No. 14-1251 (issued April 28, 2015). 

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

12 A.M., Docket No. 09-1895 (issued April 23, 2010). 
9

burden of establishing by the weight of the evidence that the disability for which she claims 

compensation is causally related to the accepted injury.13 None of these physicians have 

provided probative evidence that appellant was unable to work beginning June 17, 2014 as a 

result of her accepted lumbar condition.14 

On appeal, counsel contends that the medical evidence documented a worsening of both 

her physical and emotional conditions that OWCP failed to adjudicate and established a 

recurrence of disability. In the alternative, he alleges that the medical evidence was sufficient 

that OWCP should have undertaken the development of the medical evidence by referring 

appellant to a directed medical examination with an orthopedist. As explained above, however, 

the medical reports submitted failed to contain rationalized medical opinion, with objective 

findings, explaining why appellant was unable to work her part-time light-duty job beginning 

June 17, 2014. The Board also notes that the medical reports lack probative value and are 

therefore insufficient to require OWCP to refer appellant’s claim to a second opinion examiner. 

The Board finds the medical evidence in this case insufficient to meet appellant’s burden 

of proof to establish a recurrence of disability. Focusing on the issue of disability, the evidence 

does not contain an opinion supported by objective findings and discussing specific job duties, 

establishing a recurrence of disability commencing June 17, 2014. 

Appellant may submit new evidence or argument as part of a formal written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

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

of disability on June 17, 2014. 

 13 Ronald A. Eldridge, 53 ECAB 218 (2001). 

14 The Board notes that appellant has not filed a claim alleging that she sustained an emotional condition causally 

related to her accepted July 7, 2014 injury or any other factor of employment. OWCP has, therefore, never accepted 

anxiety or depression as compensable conditions. Appellant may file a claim alleging that her anxiety and 

depression were consequential to her accepted July 7, 2014 employment injury. See S.S., 59 ECAB 315 (2008). 
10

ORDER 

IT IS HEREBY ORDERED THAT the December 17 and August 26, 2014 merit 

decisions of the Office of Workers’ Compensation Programs are affirmed. 

Issued: August 10, 2015 

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