United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.L., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, East Boston, MA, 

Employer 

__________________________________________ 

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Docket No. 14-1450 

Issued: September 11, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 9, 2014 appellant, through counsel, filed a timely appeal from a May 20, 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 sustained a recurrence of disability on June 14, 2013 

causally related to the accepted October 10, 2010 work injury. 

FACTUAL HISTORY 

On October 10, 2010 appellant, a 57-year-old transportation security officer (screener), 

sustained a traumatic injury in the performance of duty while lifting a bag to be searched. The 

 1

 5 U.S.C. § 8101 et seq.
2

bag shifted in his hands, causing him to jerk to the side to avoid dropping it. Appellant stopped 

work and returned to limited duty later that month. OWCP assigned File No. xxxxxx049 and 

accepted his claim for lumbar sprain. 

On August 15, 2012 appellant filed a traumatic injury claim alleging that he experienced 

pain in his lower back up to his neck, as well as a hernia in his chest, when he tried to grab a beer 

keg that had fallen off a cart at work on August 14, 2012; OWCP File No. xxxxxx985.2

 OWCP 

denied this claim on May 30, 2013. An OWCP hearing representative affirmed on 

November 27, 2013. Appellant appealed to the Board on February 4, 2014. On appeal, the 

Board found that, while there was no dispute that appellant tried to grab a falling beer keg at 

work on August 14, 2012, the medical evidence was insufficient to establish that the incident had 

caused a back injury.3

On June 17, 2013 appellant filed a claim for a recurrence of total disability beginning 

June 14, 2013 due to his October 10, 2010 lumbar sprain. He explained that his condition 

progressively worsened to the point that the employing establishment could no longer 

accommodate his restrictions. 

In May 2013 appellant was diagnosed with lumbar neuritis and lumbosacral disc 

degeneration. In June 2013 he was diagnosed with depression, facet syndrome, lower back pain, 

and lumbosacral disc degeneration. On August 26, 2013 Dr. Polly D. Fraga, the attending 

Board-certified internist, noted that appellant had a number of bulging discs from L2-4 and 

severe left-sided facet arthropathy at L5, mild at L4. 

In a decision dated September 13, 2013, OWCP denied appellant’s recurrence claim 

finding that the medical evidence failed to establish a worsening of the accepted medical 

condition. It found that Dr. Fraga had not explained how appellant’s current disability was due 

to the original injury, and failed to demonstrate with clinical findings that the accepted condition 

had materially worsened/changed, without an intervening cause, to warrant total disability. 

OWCP received additional medical evidence after its September 13, 2013 decision. The 

submitted evidence included an October 19, 2010 note by Gail Spellman, a nurse practitioner, 

describing the history of injury; a November 2, 2012 note by Ms. Spellman describing 

appellant’s fall down a flight of stairs, causing his back to go out again for a couple of days; a 

November 4, 2012 imaging study ordered by Ms. Spellman showing L5-S1 severe left-sided fact 

arthropathy and other degenerative changes; and a December 3, 2012 note of Ms. Spellman 

indicating that she provided appellant with a work note and advice on posture and body 

mechanics. 

A March 11, 2011 report by Dr. Sharon Bassi, a Board-certified physiatrist, noted the 

history of the October 10, 2010 injury as well as a February 2011 slip and fall incident in which 

appellant landed on his back. An October 2, 2013 treatment note of Dr. Bassi discussed 

appellant’s back pain. 

 2

 Seven kegs of beer were being moved on a cart through the exit lane for screening. When the cart hit the 

threshold, one of the kegs fell off. Appellant reacted by attempting to grab it before it hit the floor. The case files 

for OWCP File Nos. xxxxxx049 and No. xxxxxx985 were combined in 2013. 

3

 Docket No. 14-676 (issued July 16, 2014). 
3

Philip Ruckel, a physician assistant, submitted an August 16, 2012 report, noting a new 

onset of pain across appellant’s shoulders and neck following the beer keg incident at work. 

A June 25, 2013 treatment note from Dr. Fraga noted bulging discs at L2-3, L3-4, and 

L4-5, in addition to minimal canal stenosis at L4-5 with foraminal narrowing and severe leftsided facet arthropathy at L5-S1. An August 26, 2013 follow-up note from Dr. Fraga diagnosed 

facet syndrome. His September 16, 2013 note discussed further management. A September 26, 

2013 note from Dr. Fraga noted appellant’s difficulty getting his disability claim approved. 

A July 25, 2013 note by Sarah Zappala, a nurse practitioner, followed appellant’s 

progress. In a December 16, 2013 note she delineated restrictions for lower back pain resulting 

from appellant having lifted a heavy suitcase over three years prior. 

In a telephonic hearing held before an OWCP hearing representative on March 11, 2014, 

counsel agreed that the disability claimed was not caused by the accepted lumbar sprain. 

Instead, it was his view that the October 10, 2010 work injury resulted in a herniated disc at the 

L4-5 level encroaching on the L4 nerve root and that this herniated disc appeared to have 

progressively worsened over time. 

In a decision dated May 20, 2014, an OWCP hearing representative affirmed the denial of 

appellant’s recurrence claim. She found that the evidence failed to establish that his recurrent 

disability beginning June 14, 2013 was causally related to the accepted work injury of 

October 10, 2010. 

LEGAL PRECEDENT 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of duty.4 “Disability” means the incapacity, because 

of an employment injury, to earn the wages the employee was receiving at the time of injury. It 

may be partial or total.5

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.6

When an employee who is disabled from the job he held when injured on account of 

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

establishes that he can perform the light-duty position, the employee has the burden of 

establishing by the weight of the reliable, probative, and substantial evidence a recurrence of 

total disability, and show that he cannot perform such light duty. As part of his burden, the 

 4

 5 U.S.C. § 8102(a). 

5

 20 C.F.R. § 10.5(f). 

6 Id. at § 10.5(x). 
4

employee must show a change in the nature and extent of the injury-related condition or a change 

in the nature and extent of the light-duty job requirements.7

ANALYSIS 

OWCP accepts that appellant sustained a lumbar sprain in the performance of duty on 

October 10, 2010 while lifting a bag to be searched. Appellant returned to limited duty later that 

month. In 2013, he filed a claim alleging that his October 10, 2010 work injury caused total 

disability for work beginning June 14, 2013. Appellant, therefore, has the burden to show a 

change in the nature and extent of his accepted lumbar sprain such that he could no longer 

perform his limited-duty assignment.8

Appellant has submitted a number of progress reports, but he has not submitted a 

physician’s opinion on the issue of causal relationship. No physician has addressed his claim 

that his total disability beginning June 14, 2013 was the result of a worsening of his October 10, 

2010 lumbar sprain, without an intervening injury or new exposure to the work environment. In 

fact, counsel concedes that the disability claimed was not caused by the accepted lumbar sprain. 

Dr. Fraga, the attending internist, diagnosed a number of bulging discs from L2-4 and 

severe left-sided facet arthropathy at L5, mild at L4. She did not attribute appellant’s total 

disability beginning June 14, 2013 to the accepted lumbar sprain in 2010. Dr. Fraga only 

addressed his difficulty getting approval of his disability claim. 

Although Dr. Bassi noted a history of appellant having injured his back while lifting a 

heavy suitcase over three years prior to her October 2, 2013 report, she did not address whether 

appellant was disabled as a result of her employment injury during the period in question. 

The treatment notes from Mr. Ruckel, the physician assistant, as well as those from Nurse 

Practitioners Spellman and Zappala are of no probative value as they are not physicians as 

defined under FECA.9

The diagnostic studies do not provide a physician’s opinion addressing the issue of 

disability. Without more, these tests are insufficient to establish employment-related disability. 

As the medical opinion evidence does not support that appellant sustained a recurrence of 

disability on June 14, 2013 causally related to the accepted October 10, 2010 lumbar sprain, the 

Board will affirm OWCP’s May 20, 2014 decision denying appellant’s recurrence claim. 

 7 Terry R. Hedman, 38 ECAB 222 (1986). 

8

 Appellant does not argue, and the record does not reflect, a change in the nature and extent of his limited-duty 

job requirements. 

9 See e.g., David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses 

and physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this 

subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, 

and osteopathic practitioners within the scope of their practice as defined by State law). 
5

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 not met his burden to establish that he sustained a 

recurrence of disability on June 14, 2013 causally related to the accepted October 10, 2010 work 

injury. 

ORDER 

IT IS HEREBY ORDERED THAT the May 20, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 11, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board