United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.T., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, McCLELLAN AIR FORCE BASE, 

CA, Employer 

__________________________________________ 

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Docket No. 15-0634 

Issued: September 9, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 27, 2015 appellant filed a timely appeal from an August 12, 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 to review the merits of this case. 

ISSUE 

The issue is whether appellant has established a recurrence of his accepted medical 

condition. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On August 14, 2003 appellant, a 49-year-old dentist, filed an occupational disease claim 

alleging that repetitive twisting and bending in the course of his employment had injured his low 

back. He underwent a lumbar fusion that same month. In April 2005, OWCP accepted his claim 

for permanent aggravation of spondylolisthesis at L2-3. 

On January 17, 2006 appellant saw Dr. Rupina K. Mann, a Board-certified physiatrist at 

the occupational medicine clinic. Dr. Mann found that appellant had reached maximum medical 

improvement. Appellant’s gait was normal. He was able to bend forward and touch his toes, 

though he complained of discomfort. Extension was limited. The left knee jerk was almost 

absent. No atrophy of the leg muscles was seen. Appellant was able to walk on his heels and 

toes. Future medical care was described as follows: “This continues to be the same with 

medical management with pain medications, physical therapy, and as seen fit by the treating 

physician.” 

Dr. Mann completed a primary treating physician’s progress report on January 17, 2006 

releasing appellant from care. It was noted however that appellant would be requiring future 

medical care. 

Appellant saw Dr. Glenn R. Thorp, his Board-certified internist, on October 26, 2006 for 

a health maintenance visit. He was to return to the clinic in one year for another health 

maintenance check and as needed. 

Appellant returned to Dr. Thorp for a health checkup on September 11, 2007. He had no 

complaints, with the exception of periodic back pain. “He states that it is better than prior to his 

lumbar fusion however after twisting motions he does notice periodic leg pain. Currently, his 

symptoms are quiet.” Appellant was noted to have no active medications on file as of 

September 11, 2007. He was again advised to return for a yearly health check. 

Appellant saw Dr. Mann on August 20, 2009 with some questions about his private 

insurance. Dr. Mann noted that appellant was there to address the issues about the paperwork 

“otherwise [appellant] is stable and states that he has learn[ed] to adapt to his disability.” 

On January 21, 2011 appellant wrote to Dr. Thorp asking to initiate therapy: “I am 

covered by the US Dept of Labor via a workman’s comp claim to have treatment paid to Kaiser 

for tx of my back but have never utilized it. Occupational Medicine performed by post op PT in 

2004 and I would like to initiate therapy again.” Dr. Thorp made a referral to the occupational 

medicine department. 

Appellant advised on February 17, 2011 that his symptoms were worsening. He began 

receiving physical therapy for his low back to help decrease pain, improve range of motion, and 

increase strength. It was noted that if appellant elected to discontinue physical therapy prior to 

attaining the agreed upon goals and treatment plan of care, he would be considered discharged to 

a self-management status. Further, he would be discharged from physical therapy services if he 

was not seen for treatment within 30 days after the last visit. 
3

The last physical therapy note, on October 21, 2011, indicated that appellant’s low back 

pain was much better without right lower extremity radiation. He was watching posture and 

body mechanics for the low back so as not to aggravate the symptoms. Appellant was to 

continue with treatment in a month when he returned from a trip abroad. 

Appellant saw Dr. Thorp in 2012 and 2013 for his routine health checkup. He had no 

complaints. 

On January 8, 2014 appellant first saw Dr. Peter W. Yip, who was Board-certified in 

occupational medicine. Dr. Yip related appellant’s history and presenting symptoms. Factors 

that increased pain included driving, prolonged sitting, twisting, and pulling weeds. Factors that 

decreased pain included physical therapy and medication. Dr. Yip described his findings on 

physical examination and diagnosed personal history of lumbar fusion and herniation of 

intervertebral disc. He indicated that he would seek authorization for acupuncture treatment and 

a water aerobics program. He noted that the stated mechanism was consistent with his clinical 

examination findings, and no information was presented to indicate a cause other than the 

alleged employment event or exposure. 

Appellant explained that Dr. Yip was unable to obtain authorization for additional 

medical treatment because OWCP had closed appellant’s case due to inactivity. He submitted 

medical records in an attempt to show that he had been under continuous care for the accepted 

injury since 2003. Appellant noted that his symptoms had increased, which prompted him to 

contact the occupational medicine department in the summer of 2013 for other avenues of 

treatment, “which is when I found out Dr. Mann had retired.” He then came under the care of 

Dr. Yip, whom he first saw in January 2014. 

OWCP acknowledged appellant’s request to reopen his case. As it appeared appellant 

was claiming a need for additional medical care for the accepted condition of permanent 

aggravation of spondylosis at L2-3,2

 OWCP explained that after being released from care or after 

not receiving care for a significant period of time, he had to provide evidence to support that his 

need for treatment was due to a worsening of the accepted medical condition without intervening 

cause. According to the medical records received by OWCP, he last received medical care for 

his work-related condition on March 10, 2011. Appellant was found to be permanent and 

stationary in 2006 and did not receive continuous medical treatment for the accepted condition. 

There appeared to be a break in treatment from 2006 to 2009 and from 2001 to 2014, with the 

exception of pain medication, for which there was a refill once a year. OWCP asked appellant to 

provide, among other things, a physician’s medical explanation as to the relationship between his 

current condition and need for treatment and the original work injury. It advised that the 

physician must demonstrate that the accepted condition materially worsened, without intervening 

cause, to the point that appellant required additional medical treatment. 

Dr. Yip responded with a report dated July 1, 2014. He noted that appellant had chronic 

low back pain since his lumbar surgery in 2003 with occasional pain radiating to his right 

anterior thigh to knee level. Appellant had constant low back pain with waxing and waning 

severity. He would use Vicodin twice a day and naproxen daily. Appellant awakened with 

 2

 The accepted condition was permanent aggravation of spondylolisthesis at L2-3. 
4

much low back pain with spasms in his right leg. Nonetheless, he continued to work as a dentist 

and tried to remain active, exercising four to five times a week with a stair master for cardio 

fitness, but no heavy lifting. Appellant felt that his low back pain had progressively worsened 

over the last year without any new injuries. He had worsening pain and progressively worsening 

weakness in his low back. 

Current objective findings on physical examination were minimal. There was slight 

tenderness at the left lumbosacral paraspinal with evidence of moderate spasm. There was pain 

with extension to 20 degrees. There was no reflex at the left patellar tendon. 

Dr. Yip opined that appellant’s low back pain with lumbar radiculopathy symptoms were 

definitely related to his original injury. Although appellant’s low back pain and lumbar 

radiculopathy symptoms improved after the lumbar fusion surgery, the symptoms never 

resolved. He had ongoing and worsening chronic and constant low back pain and on-and-off 

radiculopathy ever since the original injury. Appellant had received ongoing treatment from the 

occupational medicine department by Dr. Mann until she retired in 2011. He had documented 

occupational medicine and physical therapy visits through October 21, 2011. After Dr. Mann 

retired, appellant had documented treatments from his primary care physician for chronic low 

back pain management with monthly refills of prescriptions from December 2011 to the present. 

In a decision dated August 12, 2014, OWCP denied the claimed recurrence of medical 

condition. It found that the evidence was not sufficient to establish that appellant required 

additional medical treatment due to a worsening of his accepted low back condition. OWCP 

explained that he had not proved that he received continuous treatment for his work-related 

condition. There were no medical reports from 2006 to 2009 or from 2012 to 2014 to prove that 

appellant was being treated for his accepted condition during those periods. OWCP advised that 

his claim remained closed for medical care. 

On appeal, appellant argues that he has been continuously treated since his surgery in 

2003 by occupational medicine and several other departments, and he requires treatment now 

more than ever. He submits a newly dated copy of a statement he submitted to OWCP in 2014. 

LEGAL PRECEDENT 

The United States shall furnish to an employee who is injured while in the performance 

of duty the services, appliances, and supplies prescribed or recommended by a qualified 

physician that the Secretary of Labor considers likely to cure, give relief, reduce the degree or 

the period of any disability, or aid in lessening the amount of any monthly compensation.3

“Recurrence of medical condition” means a documented need for further medical 

treatment after release from treatment for the accepted condition or injury when there is no 

accompanying work stoppage. Continuous treatment for the original condition or injury is not 

 3

 5 U.S.C. § 8103(a). 
5

considered a “need for further medical treatment after release from treatment,” nor is an 

examination without treatment.4

An employee has the burden of establishing that he or she sustained a recurrence of a 

medical condition that is causally related to his accepted employment injury. To meet this 

burden, the employee must submit medical evidence from a physician who, on the basis of a 

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

and supports his or her conclusion with sound medical rationale.5

ANALYSIS 

It appears that appellant was released from care for the accepted condition on 

January 17, 2006. He saw his treating physiatrist at the occupational medicine clinic, Dr. Mann. 

Dr. Mann examined appellant and found that he had reached a permanent and stationary status. 

She completed a primary treating physician’s progress note that day releasing him from care, 

although it was noted that treatment would continue as seen fit by the treating physician. 

Appellant had reached maximum medical improvement, or a point at which his recovery had 

plateaued and continuing active medical attention was no longer expected to improve his status. 

Further, treatment would continue on an as-needed basis. Appellant would no longer require 

regular medical appointments. 

The medical records submitted show very little activity over the next several years related 

to the accepted condition. Appellant saw Dr. Thorp, his internist, for a health maintenance visit 

in 2006 and 2007. On the latter visit, he had no complaints with the exception of periodic back 

pain. Appellant’s symptoms were noted to be quiet and he was noted to have no active 

medications on file as of September 11, 2007. 

Appellant returned to see Dr. Mann in 2009 with some insurance questions. He was 

noted to be stable and indicated that he had learned to adapt to his disability. 

It was not until 2011 that appellant asked Dr. Thorp to initiate physical therapy once 

again. He last received physical therapy on October 21, 2011, at which time his low back pain 

was much better without right lower extremity radiation. According to the records in appellant’s 

case file he would not receive physical therapy again until 2014. 

In light of this evidence, it appears that appellant was released from active care in 2006 

and that he received little if any medical attention for his accepted low back condition until 2011, 

when he asked that physical therapy be initiated again. It also appears that he received little if 

any medical attention for his accepted low back condition from 2012 to 2014. Appellant 

contends on appeal that the treatment for his accepted medical condition has been continuous 

since 2003, but this is not borne out by the record before OWCP. In this regard, he stated that 

when his symptoms worsened in the summer of 2013, and he contacted the occupational 

medicine clinic for other avenues of treatment, he found out that Dr. Mann had retired. 

 4

 20 C.F.R. § 10.5(y). 

5 O.H., Docket No. 15-0778 (issued June 25, 2015). 
6

However, Dr. Mann retired in 2011, according to Dr. Yip, the specialist in occupational medicine 

who assumed the role of primary treating physician on January 8, 2014. 

The release from active treatment in 2006 and the periods of relative inactivity beginning 

at that time and after 2011 justify OWCP’s request that appellant submit a reasoned medical 

opinion establishing that the additional medical treatment he currently seeks is causally related to 

an objective worsening of the accepted medical condition without intervening cause. In short, 

appellant bears the burden of establishing a recurrence of medical condition. 

In response to OWCP’s request for a reasoned medical opinion, Dr. Yip submitted his 

July 1, 2014 report. Although he noted that appellant felt that his low back pain had been 

progressively worsening over the last year, he did not explain whether this worsening was due to 

the natural progression of the accepted aggravation of spondylolisthesis at L2-3, and if so, what 

objective evidence documented the source of appellant’s complaints. On physical examination 

appellant had slight tenderness at the left lumbosacral paraspinal with evidence of moderate 

spasm, while the accepted medical condition was located somewhat higher at the L2-3 level. 

OWCP must be able to determine whether this worsening was the result of the accepted medical 

condition or whether it was a reflection of some other low back condition. It must also be able to 

determine whether this worsening was brought about by some intervening injury or cause. 

Dr. Yip reasoned that appellant’s current symptoms were related to the original injury 

because his symptoms never resolved. The evidence must explain why appellant requires 

renewed active medical treatment after being released from medical care in 2006 and after not 

receiving active medical treatment since his physical therapy sessions in 2011. Dr. Yip did not 

address these matters. He stated that appellant received ongoing treatment from Dr. Mann until 

she retired in 2011, but this does not square with the medical record, which shows that she 

released appellant from her care in 2006, after which he received little if any care for his 

accepted medical condition until 2011. The Board has held that medical conclusions based on 

inaccurate or incomplete histories are of little probative value.6

Refills of prescriptions for narcotic pain relievers since December 2011 do not establish 

the reason appellant needed to renew active medical treatment for his accepted condition in 2013 

or 2014. What exacerbated his low back pain, and whether that exacerbation involved the 

accepted spondylolisthesis at L2-3, remain unknown. More rational is necessary for approving 

the expenses associated with a resumption of active medical treatment. It will be up to Dr. Yip 

to provide that basis. 

The Board finds that the medical opinion evidence is insufficient to establish a recurrence 

of medical condition. Accordingly, the Board will affirm OWCP’s August 12, 2014 decision. 

CONCLUSION 

The Board finds that appellant has not established a recurrence of medical condition. 

 6 James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the 

history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing 

factors that bear on the probative value of medical opinions). 
7

ORDER 

IT IS HEREBY ORDERED THAT the August 12, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 9, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board