United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.B., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, West Palm Beach, FL, 

Employer 

__________________________________________ 

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Docket No. 14-1065 

Issued: October 3, 2014 

Appearances: Case Submitted on the Record

Martin Kaplan, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 7, 2014 appellant, through his attorney, filed a timely appeal from the 

December 10, 2013 and March 10, 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 sustained a recurrence of disability beginning January 24, 

2013 causally related to his May 13, 2008 employment injury. 

FACTUAL HISTORY 

On May 15, 2008 appellant, then a 57-year-old transportation security screener, filed a 

traumatic injury claim alleging that on May 13, 2008 he injured his lower back in the 

 1

 5 U.S.C. § 8101 et seq. 
2

performance of duty. OWCP accepted the claim, assigned file number xxxxxx191, for lumbar 

sprain. Appellant did not stop work. 

On October 17, 2008 Dr. Scott D. Norris, an osteopath, diagnosed lumbar sprain/strain 

and resolving radiculitis. He found that appellant could resume his usual work duties. 

On August 17, 2011 appellant filed a traumatic injury claim alleging that he sustained an 

injury to his lower back on August 4, 2011. OWCP assigned the claim file number xxxxxx626 

and accepted the claim for lumbar strain. Appellant returned to modified employment on 

September 14, 2011 under file number xxxxxx626. 

On January 23, 2013 the employing establishment removed appellant from employment 

due to medical disqualification. It noted that October 18, 2011 and October 29, 2012 reports 

from Dr. Craig Lichtblau, a Board-certified physiatrist, established that he was disabled from 

employment due to “flares of low back pain since August 2011.”2

On May 24, 2013 appellant filed a claim for compensation on account of disability (Form 

CA-7) from January 24 to May 23, 2013. The form noted that he had been released to his 

regular employment on January 5, 2010. In an accompanying letter dated May 24, 2013, 

appellant’s attorney argued that the employing establishment had withdrawn his limited-duty 

position. On October 22, 2013 appellant filed a claim for compensation from May 24 to 

July 10, 2013. 

By letter dated November 1, 2013, OWCP advised appellant of the requirements to 

establish a recurrence of disability. It requested that he submit a detailed report from his 

attending physician addressing the causal relationship between his disability and the accepted 

employment injury. 

In a report dated November 20, 2013, Dr. Ramon Berenguer, a Board-certified internist, 

noted that appellant received a diagnosis of lumbar strain and radiculitis due to a May 13, 2008 

work injury. He worked limited duty and then returned to his usual employment. Dr. Berenguer 

related that appellant sustained “a second low back injury in 2011 and a recurrence in 2012.” He 

diagnosed lumbar sprain and radiculitis and indicated that he required an “assessment to 

determine if he can resume limited work duties.” In a duty status report dated November 20, 

2013, Dr. Berenguer found that appellant was disabled from employment. 

By decision dated December 10, 2013, OWCP found that appellant had not established a 

recurrence of disability from January 24 to July 10, 2013. It determined that the medical 

evidence was insufficient to show that he was disabled from employment. 

 2

 The October 18, 2011 and October 29, 2012 reports from Dr. Lichtblau are not in the case record. In a progress 

report dated October 31, 2012, Dr. Lichtblau diagnosed lumbar myofascial pain syndrome due to an August 4, 2011 

work injury. He found that appellant could resume work without restrictions but may have “acute intermittent 

exacerbations of chronic pain and discomfort....” 
3

In a duty status report dated December 28, 2013, Dr. Berenguer diagnosed lumbar sprain, 

checked “yes” that the history corresponded to that provided on the form and opined that 

appellant was totally disabled.3 

On January 23, 2014 appellant, through his attorney, requested reconsideration. Citing 

OWCP’s procedures, counsel contended that he had established a recurrence of disability as the 

employing establishment withdrew his limited-duty position. 

In a report of telephone call dated March 7, 2014, the employing establishment related 

that, under the current file number, appellant resumed his usual employment on 

November 12, 2008. 

By decision dated March 10, 2014, OWCP denied modification of its December 10, 2013 

decision. It noted that appellant had filed a claim for a new traumatic injury occurring on 

August 4, 2011, which it assigned file number xxxxxx643 and accepted for lumbar strain. On 

September 4, 2011 appellant accepted a limited-duty job offer under that file number. OWCP 

found that there was no evidence that he was performing limited-duty employment under the 

current file number at the time the employing establishment removed him from work. It further 

determined that the medical evidence did not show that appellant was disabled as a result of his 

May 13, 2008 work injury. 

On appeal appellant’s attorney, citing OWCP’s procedures, contends that the employing 

establishment withdrew his limited-duty position for reasons unrelated to a reduction-in-force or 

for cause. He relates that the medical evidence from September 2008 and January 2010 supports 

that appellant had continuing disability causally related to his injury. 

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.4

Appellant has the burden of establishing by the weight of the substantial, reliable and 

probative evidence a causal relationship between his recurrence of disability and his employment 

injury.5

 This 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 

disabling condition is causally related to employment factors and supports that conclusion with 

sound medical reasoning.6

 3

 The duty status report did not contain a description of injury. The record also contains the first page of a 

progress report from Dr. Berenguer dated December 18, 2013. 

4

 20 C.F.R. § 10.5(x). 

5 See Carmen Gould, 50 ECAB 504 (1999). 

6 See Mary A. Ceglia, 55 ECAB 626 (2004). 
4

ANALYSIS 

OWCP accepted that appellant sustained lumbar sprain due to a May 13, 2008 

employment injury. On October 17, 2008 Dr. Norris released him to resume his regular work 

duties. Appellant returned to his usual employment on November 12, 2008. OWCP further 

accepted that he sustained an injury to his low back on August 4, 2011 under file number 

xxxxxx626. Appellant resumed modified employment on September 14, 2011 under file number 

xxxxxx626. 

On January 23, 2013 the employing establishment found that appellant was medically 

disqualified from employment. On May 24, 2013 he filed a claim for compensation from 

January 24 to May 23, 2013 due to disability resulting from his May 13, 2008 employment 

injury. Appellant’s attorney argued that he had established a recurrence of disability based on 

the employing establishment’s withdrawal of his limited-duty position. A recurrence of 

disability includes 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, (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.7

 

Subsequent to his May 13, 2008 employment injury, however, appellant resumed his usual work 

duties. At the time the employing establishment removed him from employment on January 23, 

2013, he was working limited duty as the result of another work injury. Consequently, appellant 

has not established a recurrence of disability based on the withdrawal of his limited-duty 

employment due to his May 13, 2008 employment injury. 

Further, the medical evidence is insufficient to show that he was unable to work 

beginning January 24, 2013. On November 20, 2013 Dr. Berenguer noted that appellant 

sustained a work injury to his low back on May 13, 2008 and was diagnosed with a lumbar strain 

and radiculitis. He worked limited duty after his injury but was “reincorporated to work full 

duty.” Dr. Berenguer indicated that appellant had another back injury in 2011 and a recurrence 

of disability in 2012 as let go from work because he could not perform his duties. He diagnosed 

lumbar sprain and radiculitis and found that he should be assessed to determine whether he could 

work limited-duty employment. Dr. Berenguer did not address the relevant issue of whether 

appellant sustained a recurrence of disability on January 24, 2013 due to his May 13, 2008 

employment injury. Thus, his opinion is insufficient to meet appellant’s burden of proof. 

In a December 28, 2013 form report, Dr. Berenguer diagnosed lumbar strain and found 

that appellant was totally disabled. He checked “yes that the history provided by appellant 

corresponded to that of the form. The form, however, did not contain a history of injury. 

Further, the Board has held that an opinion on causal relationship which consists only of a 

physician checking “yes” to a medical form question on whether the claimant’s condition was 

related to the history given is of little probative value. Without explanation or rationale for the 

conclusions reached, such report is insufficient to establish causal relationship.8

 7

 20 C.F.R. § 10.5(x). 

8 Cecelia M. Corley, 56 ECAB 662 (2005); Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box “yes” 

in a form report, without additional explanation or rationale, is insufficient to establish causal relationship). 
5

On appeal appellant’s attorney argues that the employing establishment withdrew his 

limited-duty position. As discussed, the record on appeal reflects that he was working limitedduty as a result of another employment injury at the time he stopped work in January 2013. 

Counsel further contends that medical reports from September 2008 and January 2010 show that 

appellant had continuing work restrictions. However, he was released to resume his regular 

employment in October 2008. There is no evidence that appellant was working with restrictions 

due to his May 13, 2008 work injury at the time the employing establishment terminated his 

employment. 

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 and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has not established that he sustained a recurrence of 

disability beginning January 24, 2013 causally related to his May 13, 2008 employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the March 10, 2014 and December 10, 2013 

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

Issued: October 3, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board