United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.G., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Milwaukee, WI, Employer 

__________________________________________ 

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Docket No. 14-45 

Issued: March 26, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 17, 2013 appellant, through her attorney, filed a timely appeal from an 

August 23, 2013 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 disability commencing May 5, 

2011 causally related to her March 5, 2010 employment injury. 

On appeal, appellant’s attorney contends that OWCP’s decision is contrary to fact and 

law. 

 1

 5 U.S.C. § 8101-8193. 
2

FACTUAL HISTORY 

This case has previously been before the Board. In a July 5, 2013 decision, the Board set 

aside a January 30, 2013 OWCP decision denying reconsideration.2

 The Board found that, while 

the basis for OWCP’s January 30, 2013 decision was not clear, OWCP did not evaluate the 

probative value of the evidence submitted or make findings on appellant’s claim for recurrence. 

The Board further found that appellant had filed a March 29, 2012 request for reconsideration, 

but OWCP had delayed a decision on this beyond 90 days, which had jeopardized her right for 

review of the merits of the case by this Board. The Board remanded the case to OWCP to 

conduct a merit review of her recurrence claim and to consider the evidence that had been 

submitted with her request. The facts of the case as set forth in the Board’s prior decision are 

incorporated herein by reference. 

The relevant facts are as follows: on March 5, 2010 appellant, a 58-year-old tax 

consultant, sustained a traumatic injury in the performance of duty while moving 70 laptops from 

the basement, packing them three to a box and taking them to the mailroom. OWCP accepted 

her claim for a temporary aggravation of preexisting lumbar spinal stenosis. Appellant stopped 

work and received compensation for temporary total disability beginning April 25, 2010. 

On October 18, 2010 appellant returned to work for four hours a day. On January 31, 

2011 she increased her workday to five hours. On March 28, 2011 appellant accepted a full-time 

limited-duty position as a stakeholder relationship tax consultant. 

Appellant again stopped work on July 11, 2011. On July 29, 2011 she filed a recurrence 

of disability and claim for compensation alleging a recurrence on May 5, 2011 that caused her to 

stop work on July 11, 2011. Appellant explained that her back became more painful on May 4, 

2011 while she was typing on her laptop. She got out of her seat several times that day to stand 

up. Appellant took medication and tried heat and cold that evening, but she had a flare up the 

following morning. She could not straighten up. Appellant stated: “My back was so painful I 

had to call my daughter to take the bus to my job and drive my car to take me to my doctor 

appointment.” She also stated: “I believe my condition is related to the original injury because 

the sitting, reaching and repetitive getting up and down at work has aggravated my back.” 

On May 10, 2011 Dr. Daryl J. Melzer, a Board-certified internist, diagnosed an 

exacerbation of low back pain, degenerative disc disease and lumbar radiculopathy and took her 

off work for two days. 

On May 16, 2011 Dr. Dale E. Bauwens, an attending Board-certified orthopedic surgeon, 

noted that appellant had a flare up of back and leg pain that caused her to miss several days of 

work. He continued her on the limitations under which she was currently working. On May 23, 

2011 Dr. Bauwens advised that appellant was off work that day due to back pain. He excused 

her from work from June 21 to 22, 2011 with a diagnosis of low back pain and sciatica. On 

June 13, 2011 Dr. Bauwens indicated that appellant had continued complaints of lumbar 

radiculitis. He told her she should consider applying for medical retirement as he did not think 

 2

 Docket No. 13-852 (issued July 5, 2013). 
3

her symptoms were going to change. Dr. Bauwens indicated that he would continue her on 

limitations. 

On June 14, 2011 appellant notified the employing establishment that she applied for 

disability retirement. She continued to work eight hours a day with intermittent time off for 

illness, medical appointments and family medical leave. 

On July 11, 2011 Dr. Bauwens stated: “[Appellant] tells me today [that] she can no 

longer work. [She] explained that her pain and stress levels were so high, she was convinced 

that she could not manage work and decided to apply for medical retirement.” Dr. Bauwens 

described his findings on physical examination, including range of motion, diffuse lumbar 

tenderness, left sciatic notch tenderness and positive straight leg raising. He found no 

measurable motor, sensory or reflex deficit. Dr. Bauwens recommended medical retirement. 

In an August 23, 2011 report, Dr. Bauwens discussed his findings on examination, which 

were essentially the same as the last several months. Based on appellant’s chronic complaints of 

low back pain, her inability to deal with the pain and her inability to function in an effective 

manner with her current symptoms, he indicated that she should seek medical retirement. 

Dr. Bauwens continued to provide intermittent treatment, noting appellant’s condition was 

unchanged. 

By decision dated September 1, 2011, OWCP denied appellant’s recurrence claim. It 

found that the evidence did not establish that the claimed recurrence of disability resulted from 

the accepted work injury or that her accepted work injury materially changed or worsened and 

rendered her totally disabled from her limited-duty job effective October 18, 2010. Appellant’s 

entitlement to medical treatment remained unaffected. 

Appellant requested a telephonic hearing before an OWCP hearing representative. On 

October 18, 2011 Dr. Bauwens stated that appellant remained disabled from her work based on 

the chronicity of her back problems and failure to respond to any other treatment. He continued 

to provide impressions of chronic low back pain. 

During the December 22, 2011 hearing, appellant testified that she became unable to 

work in July 2011 due to sitting stating: “When I was working the four or five hours I never felt 

comfortable. But when I started working the eight hours the sitting became really bad for me.” 

She noted that she had undergone a cervical fusion in 2001 and an L4-5 laminectomy in 2003. 

On January 4, 2012 Dr. Bauwens related appellant’s March 5, 2010 history of injury and 

medical treatment. He noted that diagnostic testing in 2010 confirmed degenerative disc disease, 

facet arthropathy and foraminal encroachment at L4-5 and L5-S1. Dr. Bauwens stated that 

appellant continued to have chronic pain, radicular symptoms and numbness and tingling. It was 

his opinion that she had preexisting asymptomatic degenerative changes in her lumbar spine that 

became symptomatic in March 2010 when lifting computers at work. Other medical reports for 

continued treatment by Dr. Bauwens discussed appellant’s continued condition and treatment. 

They did not discuss disability subsequent to July 11, 2011. 

In a February 14, 2011 report, Dr. Steven J. Donatello, a Board-certified pain 

management specialist, noted the history of injury and appellant’s medical course. Examination 
4

findings were noted and diagnosis of lumbago, lumbosacral disc degeneration, sciatica and brief 

depressive reaction was provided. 

By decision dated February 29, 2012, the hearing representative affirmed the 

September 1, 2011 decision. She noted that the full-time work appellant performed after 

March 28, 2011 was within the medical limitations recommended by her treating physician. The 

hearing representative further noted that none of Dr. Bauwens’ reports provided objective 

findings to support a worsening of appellant’s accepted condition or an increase in her disability 

for work. When appellant told him that she was no longer able to work because her pain and 

stress levels were too high, his findings on examination were essentially the same as his prior 

findings. The hearing representative reviewed the medical evidence, including Dr. Bauwens 

January 4, 2012 report and a February 14, 2011 report from Dr. Donatello. She found that 

appellant had not submitted sufficient medical evidence to support that her disability from work 

after July 11, 2011 was causally related to and necessitated by the March 5, 2010 work injury. 

On March 21, 2012 Dr. Bauwens advised that appellant was not fit for work due to her 

back and leg pain. 

On April 2, 2012 OWCP received appellant’s reconsideration. Appellant submitted a 

copy of Dr. Bauwens January 4, 2012 report. Her representative argued that, based on this new 

evidence, OWCP’s decision should be vacated. 

OWCP also received a copy of Dr. Donatello February 14, 2011 report as well as 

additional treatment notes from Dr. Bauwens. In an August 15, 2012 report, Dr. Bauwens stated 

that there has been no significant change in his recommendations. He opined that appellant 

remained impaired from her regular work activities. 

Appellant took disability retirement effective April 7, 2012. 

Following the Board’s decision, OWCP acknowledged appellant’s reconsideration 

request of March 29, 2012 along with all the medical evidence received. This included 

numerous reports from Dr. Bauwens, which noted her continued treatment of her work-related 

condition. It additionally acknowledged an October 9, 2012 operative report pertaining to hallux 

rigidus, right first metatarsophalangeal, a September 27, 2012 report of work status, an April 10, 

2012 Form SF-40 and a March 30, 2012 letter from the Office of Personnel Management. 

By decision dated August 23, 2013, OWCP denied appellant’s reconsideration request. It 

found that the evidence was insufficient to establish that she sustained a recurrence of disability 

or a material worsening of her condition on or about May 5, 2011 as a result of her March 5, 

2010 work injury. 

LEGAL PRECEDENT 

OWCP’s regulations define the term recurrence of disability as follows: 

“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 
5

exposure to the work environment that caused the illness. This term also means 

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 ... or when the physical requirements 

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

physical limitations.”3

 

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 of 

record establishes that he or she can perform the light-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 show that he or she cannot perform such light duty. As part of this burden, 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.4 To establish a change in the 

nature and extent of the injury-related condition, there must be probative medical evidence of 

record. The evidence must include a medical opinion, based on a complete and accurate factual 

and medical history and supported by sound medical reasoning, that the disabling condition is 

causally related to employment factors.5

 

ANALYSIS 

OWCP accepted that appellant sustained temporary aggravation of preexisting spinal 

stenosis in the lumbar region on March 5, 2010. Appellant was off work and eventually returned 

to work part time with restrictions. Her work hours gradually increased until she was working 

full time, eight hours a day with restrictions on or after March 28, 2011. Appellant continued to 

work full-time modified duty until July 11, 2011, when she stopped work. She filed a claim for 

medical retirement as well as a claim for recurrence of disability from May 5, 2011. Appellant 

must demonstrate either that her condition has changed such that she could not perform the 

activities required by her modified job or that the requirements of the modified job changed. 

The Board finds that the record contains no evidence that the modified job requirements 

were changed or withdrawn. The evidence does support that the work appellant performed from 

March 28, 2011 was within the medical limitations recommended by Dr. Bauwens. She worked 

in the position from March 28, 2011 until she stopped work on July 11, 2011 due to her own 

belief that she could no longer perform the position because her pain and stress levels were too 

high. Prior to stopping work, appellant saw Dr. Bauwens on June 13, 2011. This report noted 

that she had continued complaints of lumbar radiculitis and her symptoms were unchanged. 

While Dr. Bauwens thought appellant should consider applying for medical retirement, he stated 

that she could continue on limitations. In his July 11, 2011 report, he noted that she told that him 

she could no longer work because of her pain and stress levels. While Dr. Bauwens 

 3

 20 C.F.R. § 10.5(x). 

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

222 (1986). 

5 Maurissa Mack, 50 ECAB 498 (1999). 
6

recommended medical retirement, he provided no opinion that appellant could no longer perform 

the modified job or that her condition had changed. 

The Board further finds that the medical record lacks a well-reasoned narrative from 

appellant’s physicians relating her claimed recurrent disability to her accepted employment 

injury. There is no evidence that appellant incurred a material worsening of her condition as a 

result of the alleged recurrence of disability on or about May 5, 2011. As noted, Dr. Bauwens 

reported on June 13, 2011 that her symptoms were unchanged and that she could continue on 

limitations. In his July 11, 2011 report, Dr. Bauwens stated that appellant advised him that she 

could no longer work because of her pain and stress levels. His findings on examination were 

essentially the same as in prior examinations. While Dr. Bauwen’s opined in this report, as well 

as in other reports, that appellant should medically retire, he merely noted that she felt she was 

unable to work because of her pain. He continued to advise her condition of chronic lower back 

pain and chronic lumbar radiculitis was unchanged. 

When a physician’s statements regarding an employee’s ability to work consist only of 

repetition of the employee’s complaints that he or she hurt too much to work, without objective 

findings of disability being shown, the physician has not presented a probative medical opinion 

on the issue of disability or a basis for payment of compensation.6

 In his January 4, 2012 report, 

Dr. Bauwens stated that appellant continued to have chronic pain, radicular symptoms and 

numbness and tingling. While his report supported that she suffered an aggravation of a 

preexisting condition as a result of her work injury of March 5, 2010, he did not provide any 

opinion as to whether she had incurred a material worsening of her condition as a result of the 

alleged recurrence of disability on or about May 5, 2011. Additional evidence from 

Dr. Bauwens noted appellant’s treatment, but showed no evidence of disability or an increase in 

severity of the accepted condition. While he opined that she remained impaired from her regular 

work activities in his August 15, 2012 report, he failed to provide any objective evidence to 

support disability from performing the modified position or to support a material worsening of 

appellant’s accepted condition. Dr. Bauwens specifically stated that there has been no 

significant change in his recommendations. Dr. Donatello’s February 14, 2011 report provides 

several diagnoses, but fails to confirm or discuss whether appellant experienced an increase in 

severity of the accepted condition. His report, as well as the October 9, 2012 surgical report, 

also discuss conditions that are not accepted as work related. Thus there is no evidence of record 

to support a worsening of appellant’s back condition to support total disability or any objective 

findings on examination to support a worsening of her back condition on or about May 5, 2011 

causally related to her March 5, 2010 work injury, which would prevent her from working in the 

March 28, 2011 modified position. 

On appeal, counsel argues that OWCP’s decision is contrary to fact and law. However, it 

is not enough that appellant believes that her pain and discomfort prevent her from performing 

her modified job. The medical opinion evidence must soundly explain how a work stoppage for 

which she seeks compensation was a result of an objective change in the nature and extent of her 

accepted condition. As noted, the medical evidence of record does not support that appellant 

sustained a material worsening of her condition on or about May 5, 2011 as a result of her 

 6 G.T., 59 ECAB 447 (2008). 
7

March 5, 2010 work injury or that the modified job requirements were changed or withdrawn. 

As such, there is no merit to counsel’s argument. 

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(a) 

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

CONCLUSION 

The Board finds that appellant has failed to meet her burden of proof to establish that she 

sustained a recurrence of disability causally related to her accepted employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the August 23, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 26, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board