United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

North Metro, GA, Employer 

__________________________________________ 

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Docket No. 15-729 

Issued: June 3, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 4, 2015 appellant filed a timely appeal from a January 16, 2015 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 met his burden of proof to establish that he sustained a 

recurrence of total disability on or after November 18, 2014 due to his March 2, 2005 work 

injury. 

FACTUAL HISTORY 

OWCP accepted that on March 2, 2005 appellant, then a 48-year-old tractor trailer 

operator, sustained a lumbar strain and herniated lumbar disc at L2-3 without myelopathy due to 

 1

 5 U.S.C. §§ 8101-8193. 
2

positioning a heavy dock board inside his tractor trailer at work.2

 Appellant did not stop work at 

that time, but began working in a limited-duty position for the employing establishment. 

On March 8, 2006 OWCP granted appellant a schedule award for two percent permanent 

impairment of his left leg. The award ran for 5.76 weeks from December 28, 2005 to 

February 6, 2006. Appellant continued to complain of back and leg pain and his attending 

physicians provided conservative medical care with pain medication. 

In August 2011 appellant was referred to Dr. Marc J. Kornfield, an attending Boardcertified physical medicine and rehabilitation physician, for chronic pain management. In a 

June 27, 2013 report, Dr. Kornfield stated that appellant reported that he continued to experience 

back and leg pain after engaging in pushing and pulling at work. He recommended that he use a 

back brace. 

On July 18, 2013 appellant filed a claim for recurrence of disability (Form CA-2a) 

alleging that he sustained a recurrence of total disability on July 11, 2013 due to his March 2, 

2005 work injury. 

In a September 13, 2013 decision, OWCP denied appellant’s claim as he did not submit 

sufficient medical evidence to establish that he sustained a recurrence of total disability on or 

after July 11, 2013 due to his March 2, 2005 work injury. 

In a report dated July 25, 2014, Dr. Kornfield indicated that appellant reported that his 

back pain was 7 out of 10, but that he continued to work on a full-time basis at the employing 

establishment. He noted that appellant would continue with his medication regimen. On 

August 22 and October 15, 2014 Dr. Kornfield provided a similar assessment of appellant’s 

condition. 

Appellant stopped work on November 18, 2014. On December 3 and 24, 2014 he filed 

CA-7 claim forms alleging that he sustained total disability beginning on November 18, 2014 

and continuing as a result of his March 2, 2005 work injury. In a development letter dated 

December 8, 2014, OWCP advised appellant of the evidence needed to establish his claim. It 

provided him with a questionnaire form to complete. 

In support of his claim, appellant submitted a December 10, 2014 report in which 

Dr. Kornfield stated that another attending physician had recommended that he undergo back 

fusion surgery. Dr. Kornfield noted that he told appellant that he could not render an opinion 

regarding whether the proposed surgery was advisable. He told appellant that he should not 

work more than 40 hours per week in his job. 

On December 15, 2014 Dr. Gower, an attending Board-certified neurosurgeon, performed 

decompressive laminectomies at L1-2, L2-3, L3-4, L4-5, and L5-S1. This surgery was not 

 2

 Evidence of record suggests that appellant was involved in a vehicular accident at work on January 20, 2010, 

but it is unclear whether a medical condition was accepted in connection with this incident. OWCP later accepted 

that he sustained a work-related left knee injury on May 20, 2012 which was developed under a different claim file 

number xxxxxx159. These matters are not the subject of the present appeal. 
3

authorized by OWCP and there is no indication in the record that OWCP accepted that it was 

necessitated by residuals of the March 2, 2005 work injury. 

In a duty status report dated December 16, 2014, Dr. Gower indicated that appellant 

could not perform any work. He listed clinical findings of postoperative five level 

decompression and stated “2005” in the portion of the form report for “diagnosis due to injury.” 

In a January 7, 2015 report, Dr. Kornfield indicated that appellant did not appear for a visit 

scheduled for that date. 

Appellant submitted a questionnaire form, signed on December 24, 2014, in which he 

asserted that his work necessitated his December 15, 2014 surgery. In an undated handwritten 

notation on the questionnaire, Dr. Gower stated: 

“[Appellant] demonstrates five levels of severe spinal stenosis requiring him to 

have an [L1 through S1] lumbar laminectomy. Please excuse him from work. 

The effective start date is November 16, 2014 through May 16, 2015. I will be 

happy to fill out any [Family and Medical Leave Act and Short Term Disability] 

benefits packets.” 

By decision dated January 16, 2015, OWCP denied appellant’s claim as he did not submit 

sufficient medical evidence to establish that he sustained a recurrence of total disability on or 

after November 18, 2014 due to his March 2, 2005 work injury. 

LEGAL PRECEDENT 

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 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.3

ANALYSIS 

OWCP accepted that on March 2, 2005 appellant sustained a lumbar strain and herniated 

lumbar disc at L2-3 without myelopathy due to positioning a heavy dock board inside his tractor 

trailer at work. Appellant did not stop work at that time but began working in a limited-duty 

position for the employing establishment. He stopped work on November 18, 2014 and filed 

 3 S.F., 59 ECAB 525 (2008); Terry R. Hedman, 38 ECAB 222 (1986). 20 C.F.R. § 10.5(x) provides, “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 

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 (except when such withdrawal occurs for reasons of misconduct, 

non-performance 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.” 
4

claim forms alleging that he was totally disabled beginning on November 18, 2014 and 

continuing as a result of his work injury. By decision dated January 16, 2015, OWCP denied 

appellant’s claim that he sustained a recurrence of total disability on or after November 18, 2014 

due to his March 2, 2005 work injury. 

The Board finds that appellant did not submit sufficient medical evidence to establish that 

he sustained a recurrence of total disability on or after November 18, 2014 due to his March 2, 

2005 work injury. 

In a December 10, 2014 report, Dr. Kornfield, an attending Board-certified physical 

medicine and rehabilitation physician, stated that appellant reported that another attending 

physician had recommended that he undergo back fusion surgery. However, the submission of 

this report would not support appellant’s claim for a recurrence of total disability on or after 

November 18, 2014 due to his March 2, 2005 work injury. Dr. Kornfield noted that he told 

appellant that he could not render an opinion regarding whether the proposed surgery was 

advisable. He did not provide any opinion that appellant was disabled from his modified work 

due to his March 2, 2005 work injury and, in fact, he told appellant that he could work 40 hours 

per week in his job. 

On December 15, 2014 Dr. Gower, an attending Board-certified neurosurgeon, performed 

decompressive laminectomies at L1-2, L2-3, L3-4, L4-5, and L5-S1. In a duty status report 

dated December 16, 2014, he indicated that appellant could not perform any work, but he did not 

provide any clear opinion for the cause of this disability.4

 In an undated handwritten notation on 

a questionnaire appellant signed on December 24, 2015, Dr. Gower stated that appellant 

demonstrated five levels of severe spinal stenosis requiring him to have an L1 through S1 lumbar 

laminectomy. He indicated that appellant should be excused from work from November 16, 

2014 through May 16, 2015 and noted, “I will be happy to fill out any [Family and Medical 

Leave Act and Short Term Disability] benefits packets.” 

The evidence of Dr. Gower does not establish that appellant sustained a recurrence of 

total disability on or after November 18, 2014 due to his March 2, 2005 work injury. The Board 

notes that the December 15, 2014 surgery at multiple levels was not authorized by OWCP and 

there is no indication in the record that OWCP accepted that it was necessitated by residuals of 

the March 2, 2005 work injury. Appellant’s March 2, 2005 injury was only accepted for lumbar 

strain and herniated lumbar disc at L2-3 without myelopathy. Dr. Gower has not provided a 

rationalized medical opinion that the surgery or any disability was due to the March 2, 2005 

work injury.5

 In fact, he has not provided any meaningful discussion of the March 2, 2005 work 

injury. Dr. Gower mentioned spinal stenosis as a contributor to the need for surgery but he did 

not provide an opinion that this condition was related to the March 2, 2005 work injury. He 

performed surgery at multiple levels of appellant’s back and there is no compelling medical 

evidence of record showing that the March 2, 2005 work injury contributed to the need for the 

surgery and resultant disability. 

 4

 Dr. Gower stated “2005” in the portion of the form report for “diagnosis due to injury.” 

5 See supra note 3. 
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 did not meet his burden of proof to establish that he 

sustained a recurrence of total disability on or after November 18, 2014 due to his March 2, 2005 

work injury. 

ORDER 

IT IS HEREBY ORDERED THAT the January 16, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 3, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board