United States Department of Labor 

Employees’ Compensation Appeals Board 

R.H., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Atlanta, GA, 

Employer 

__________________________________________ 

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Docket No. 15-1696 

Issued: April 7, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On August 6, 2015 appellant, through counsel, timely appealed the July 1, 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.2

ISSUE 

The issue is whether appellant is entitled to wage-loss compensation for the period 

June 28 through July 25, 2014. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The case record provided to the Board includes evidence received after OWCP issued its July 1, 2015 decision. 

The Board is precluded from considering evidence that was not in the case record at the time OWCP rendered its 

final decision. 20 C.F.R. § 501.2(c)(1) (2014). 
2

FACTUAL HISTORY 

On June 9, 2013 appellant, then a 46-year-old tractor-trailer operator, injured his low 

back pulling a fifth wheel pin from beneath his tractor-trailer. By letter dated July 11, 2013, 

OWCP initially accepted the claim for lumbar sprain/strain (ICD-9 847.2). A July 8, 2013 

lumbar magnetic resonance imaging (MRI) scan revealed a disc bulge with desiccation at L4-5 

and superimposed right asymmetric mild extrusion. On August 2013 Dr. Radhakrishnan V. 

Nair, a Board-certified orthopedic surgeon, recommended L4-5 laminectomy, discectomy, and 

possible interbody fusion.3

 OWCP initially declined the request for surgery as lumbar fusion 

was not an appropriate treatment for a sprain. Appellant received wage-loss compensation 

beginning October 29, 2013, and OWCP placed him on the periodic rolls. The employing 

establishment had been unable to accommodate his work restrictions. 

By letter dated February 25, 2014, OWCP referred appellant along with a statement of 

accepted facts (SOAF), for a second opinion examination with Dr. Raju M. Vanapalli, a Boardcertified orthopedic surgeon and OWCP referral physician. 

In an undated report received on March 4, 2014, Dr. Stephen A. Dawkins, Board-certified 

in occupational medicine, requested that appellant’s claim be expanded to include “lumbar 

extruded disc.” He and Dr. Nair are noted as colleagues at Caduceus Occupational Medicine 

where appellant had been a patient since June 9, 2013. Dr. Dawkins noted that appellant injured 

his lower back after reaching beneath his trailer to pull a pin away from the fifth wheel. It was 

stuck and appellant had to forcefully remove the pin. Dr. Dawkins noted that appellant was 

initially diagnosed with a lumbar sprain/strain, which OWCP accepted. However, a subsequent 

MRI scan revealed an extruded lumbar disc. As such, Dr. Dawkins formally requested that 

lumbar extruded disc be added to appellant’s accepted conditions. 

Dr. Howard P. Hogshead, a Board-certified orthopedic surgeon and district medical 

adviser (DMA), was asked to review the medical record and the report from Dr. Dawkins to 

determine if any other conditions should be accepted. He recommended expansion of the claim 

to include degenerative disc disease. On March 6, 2014 OWCP informed appellant that his 

claim had been expanded to include lumbar degenerative disc disease (ICD-9 722.52).4

 

Dr. Vanapalli examined appellant on March 24, 2014. He diagnosed right side L5 

radiculitis, L4-5 right herniated nucleus pulposus, and lumbar sprain/strain. Dr. Vanapalli found 

that appellant’s lumbar sprain had resolved. His report preceded the expansion of the claim.5

 

According to Dr. Vanapalli, appellant was unable to resume his regular duties as a tractor-trailer 

operator. However, appellant could perform full-time, sedentary work with restrictions that 

 3

 In his August 16, 2013 report, Dr. Nair noted that appellant’s lumbar disc “herniation appears secondary to the 

job[-]related injury....” He further noted that appellant’s lumbar degenerative disc disease was unrelated to his 

workers’ compensation injury. 

4

 In a report dated March 5, 2014, Dr. Hogshead, the DMA, advised OWCP that the accepted condition could be 

expanded to include lumbar degenerative disc disease. 

5

 The February 25, 2014 SOAF OWCP that was provided to Dr. Vanapalli identified lumbar sprain/strain as the 

only accepted condition. 
3

included intermittent walking, a two-hour limitation on standing, and a three-hour, 10-pound 

weight restriction with respect to pushing, pulling, and lifting. 

In an April 4, 2014 report, Dr. Nair diagnosed lumbar herniated disc (L5) with right 

radiculopathy and superimposed degenerative disc disease. He recommended a lumbar 

laminectomy with discectomy, and possible lumbar fusion with instrumentation. Dr. Nair also 

advised that appellant had a 20-pound lifting restriction and could perform “Sit down work 

only.” 

In two separate decisions dated April 4, 2014, OWCP declined to authorize lumbar disc 

surgery and lumbar spine fusion. Both decisions correctly noted that appellant’s accepted 

conditions included lumbar sprain and degenerative disc disease. Although appellant’s claim 

had since been expanded, OWCP continued to rely on an October 11, 2013 report from Dr. Nair, 

who advised that a surgical fusion was not appropriate for lumbar sprain. 

On April 21, 2014 appellant advised OWCP that Drs. Dawkins and Nair had released him 

from their care following OWCP’s most recent refusal to authorize lumbar surgery. Appellant’s 

physicians reportedly believed that, absent surgical intervention, there was nothing else they 

could do for him. 

Appellant’s counsel requested a hearing regarding OWCP’s refusal to authorize surgery. 

Dr. Lee A. Kelley, a Board-certified orthopedic surgeon, examined appellant on 

May 15, 2014. OWCP would later recognize him as appellant’s new treating physician. 

Dr. Kelley noted a June 9, 2013 history of injury when appellant reached underneath his truck to 

pull out the fifth wheel pin and began experiencing lower back pain. After the initial injury, 

appellant continued to work. Approximately, one week later, he experienced significant lower 

back pain after pulling up a dock plate to unload his truck. Dr. Kelley reported that appellant had 

since undergone epidural steroid injections, physical therapy, and was considered a candidate for 

lumbar surgery. He also reviewed appellant’s July 8, 2013 lumbar MRI scan, which 

demonstrated a moderately-sized central right disc herniation at L4-5, with right L5 nerve root 

compression. Based on his physical examination and review of appellant’s medical records, 

Dr. Kelley diagnosed L4-5 disc herniation, which he attributed to the June 9, 2013 on-the-job 

injury. He further indicated that appellant had not responded to appropriate conservative 

treatment, and thus, was a candidate for surgical treatment. Appellant’s surgical options 

included laminectomy and disc excision, with or without lumbar fusion. Dr. Kelley expressed a 

preference for anterior lumbar interbody fusion with complete discectomy. He further advised 

that appellant remain off work given his diagnosis of symptomatic disc herniation, and current 

physical findings of significant pain and limitation of motion. 

On June 6, 2014 the employing establishment offered appellant a full-time limited-duty 

assignment as a tool and parts assistant. Appellant was responsible for managing an inventory of 

parts, tools, and supplies required for motor vehicle maintenance. The physical requirements of 

the modified assignment included sitting and standing as needed, simple grasping, 

pushing/pulling, and basic computer skills, including use of a mouse. There was a 10-pound 

restriction with respect to lifting tools and parts, and there was to be no overhead activity. 
4

Appellant was also permitted to use a step stool if needed. The June 6, 2014 limited-duty 

assignment was patterned after Dr. Vanapalli’s March 24, 2014 findings. 

Appellant accepted the limited-duty assignment and returned to work on June 17, 2014. 

OWCP removed him from the periodic compensation rolls effective that date. However, on 

June 28, 2014 appellant stopped work again due to his low back condition. He reportedly went 

to an urgent care center after leaving work early on June 28, 2014. Appellant alleged that some 

of the automotive parts he was required to handle exceeded the job’s 10-pound weight 

restriction. He also reported difficulty performing other assigned duties, such as opening file 

cabinet drawers and sweeping. 

On June 30, 2014 appellant advised OWCP that the employing establishment told him 

not to return to work until he could provide medical documentation. He later filed a claim (Form 

CA-7) for wage-loss compensation for the period June 28 through July 25, 2014. 

On July 14, 2014 appellant returned to Dr. Kelley for a follow-up examination. He 

diagnosed lumbar intervertebral disc displacement without myelopathy (ICD-9 722.10). 

Dr. Kelley noted that appellant’s condition was work related and that he was currently unable to 

work. Since his last visit on May 15, 2014, appellant reportedly had ongoing center-right 

lumbosacral pain radiating down his right posterior lower extremity and continuing into the 

plantar right foot. Dr. Kelley also noted that, although appellant had been advised to remain off 

work, the employing establishment provided him light-duty work, which appellant attempted for 

one week. He explained that when appellant returned to work his pain increased. Dr. Kelley 

noted that appellant continued to complain of severe back and leg pain, primarily in the right leg. 

Appellant’s physician again recommended L4-5 anterior lumbar interbody fusion with hardware 

and requested authorization from OWCP. 

In follow-up treatment notes dated September 4, 2014, Dr. Kelley indicated that appellant 

remained symptomatic from a central disc herniation at L4-5. He diagnosed work-related lumbar 

intervertebral disc displacement without myelopathy and continued to recommend surgery. 

Dr. Kelley also advised that appellant was currently unable to return to work. 

By decision dated September 25, 2014, OWCP’s Branch of Hearings & Review vacated 

the April 4, 2014 decisions denying lumbar surgery. The hearing representative determined that 

further development was necessary to properly address appellant’s request for surgery. She 

noted that the requested surgery was for treatment of L4-5 disc herniation/extrusion, a condition 

OWCP had not formally accepted. The hearing representative questioned why the DMA had 

advised OWCP to accept lumbar degenerative disc disease when Dr. Dawkins had requested 

acceptance of “lumbar extruded disc.” She also noted that Dr. Nair had found the lumbar 

degenerative disc disease was not work related. Under the circumstances, it was unclear why 

OWCP had accepted lumbar degenerative disc disease rather than lumbar disc 

herniation/extrusion.6

 

 6

 With respect to Dr. Vanapalli’s March 24, 2014 second opinion report, the hearing representative noted that he 

was unaware that lumbar degenerative disc disease was an accepted condition. She also noted that OWCP had not 

specifically asked him to comment on the recommended surgery. 
5

The hearing representative remanded the case to OWCP with instructions to refer 

appellant’s medical records back to the DMA, along with Dr. Kelley’s May 15, 2014 surgery 

request. On remand, the DMA was instructed to provide medical rationale for his 

recommendation to include lumbar degenerative disc disease as an accepted condition. 

Additionally, the DMA was to address whether appellant’s L4-5 lumbar disc bulge, as 

demonstrated on the July 8, 2013 MRI scan, was causally related to the June 9, 2013 work 

injury. Lastly, the DMA was instructed to address whether Dr. Kelley’s proposed surgery was 

medically warranted to treat appellant’s work injury. 

On September 30, 2014 OWCP wrote to Dr. Kelley requesting additional information 

regarding appellant’s injury-related condition(s) and whether he was able to resume his regular 

duties as a driver or any other type of gainful employment in a limited-duty capacity. The claims 

examiner also prepared a September 30, 2014 memorandum for the DMA in accordance with the 

hearing representative’s September 25, 2014 decision. She specifically asked the DMA to 

address whether appellant’s L4-5 disc bulge was causally related to the June 9, 2013 work injury. 

OWCP also issued a September 30, 2014 decision denying compensation for the period 

June 28 through July 25, 2014. The claims examiner reviewed Dr. Kelley’s July and 

September 2014 reports, including his request for surgery, and noted that the diagnosed 

condition -- lumbar intervertebral disc displacement -- had not been accepted by OWCP. She 

also indicated that appellant’s limited-duty assignment as a tool and parts assistant was 

“suitable” based on Dr. Vanapalli’s March 24, 2014 report, which represented the weight of the 

medical evidence. Lastly, the claims examiner noted that appellant had not provided sufficient 

evidence that his limited-duty assignment was not suitable. She explained that the limited-duty 

assignment “was deemed suitable and [appellant] stopped work on [June 28, 2014] without 

providing sufficient medical evidence or a work excuse for [his] continued absence....” 

Consequently, OWCP found that appellant was not entitled to wage-loss compensation pursuant 

to 20 C.F.R. § 10.500(a).7

 Appellant’s counsel timely requested a hearing. 

On October 1, 2014 DMA Dr. Hogshead responded to the claims examiner’s 

September 30, 2014 request for clarification. As to his rationale for recommending acceptance 

of lumbar degenerative disc disease, the DMA referenced Dr. Dawkins’ March 4, 2014 report, 

noting that appellant’s physician “explain[ed] the injury, the symptoms and subsequent MRI 

scan findings.” Regarding the relationship between appellant’s L4-5 disc bulge and the June 9, 

2013 employment incident/injury, the DMA indicated that one could not state with certainty 

whether a bulging disc was directly related to a specific circumstance or injury. He explained 

that it was unlikely one would have MRI scan studies immediately before and immediately after 

a specific activity or injury. The DMA further explained that under the circumstances, the best 

one could do was to gather the facts and make an “assumption.” Lastly, he indicated that 

Dr. Kelley’s May 15, 2014 request for surgery was reasonable and should be approved. 

 7

 Compensation for wage loss due to disability is available for periods during which an employee’s work-related 

medical condition prevents him from earning the wages earned before the work-related injury. 20 C.F.R. 

§ 10.500(a). An employee is not entitled to compensation for any wage-loss claimed on a Form CA-7 to the 

extent: (1) evidence contemporaneous with the claimed period establishes that an employee had medical work 

restrictions in place; (2) light duty within those work restrictions was available; and (3) the employee was previously 

notified in writing that such duty was available. Id. 
6

Dr. Kelley provided follow-up treatment notes dated October 9 and November 13, 2014. 

He indicated that appellant remained symptomatic from an L4-5 disc herniation and was still 

awaiting approval for surgery. Dr. Kelley diagnosed lumbar intervertebral disc displacement 

without myelopathy (ICD-9 722.10) and lumbar intervertebral disc degeneration (ICD-9 722.52). 

He advised appellant to continue with his current medications and to remain off work. 

On January 8, 2015 the claims examiner informed appellant that the DMA had approved 

Dr. Kelley’s request for surgery. On February 2, 2015 OWCP formally authorized lumbar spinal 

fusion with hardware implementation.8

 

Dr. Kelley saw appellant again on January 22, 2015. He continued to diagnose lumbar 

intervertebral disc displacement without myelopathy (ICD-9 722.10) and lumbar intervertebral 

disc degeneration (ICD-9 722.52). Dr. Kelley noted that, since his last examination on 

November 13, 2014, appellant continued to complain of significant lower back pain, which 

radiated into the right leg. Appellant also reported significant problems with daily activities, and 

difficulty bending, twisting, lifting, and any type of prolonged standing. Dr. Kelley indicated 

that surgery had been approved and he tentatively scheduled the procedure for mid-March 2015. 

He further indicated that appellant was currently unable to work. 

On June 15, 2015 appellant underwent laser disc (L4-5) surgery. 

In a July 1, 2015 decision, the hearing representative noted that appellant’s June 9, 2013 

traumatic injury claim had not been accepted for disc herniation, and therefore, any related 

disability could not be considered with respect to the claimed recurrence of disability beginning 

June 28, 2014. Consequently, she affirmed OWCP’s September 30, 2014 decision denying 

wage-loss compensation. 

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.9 Recurrence of disability 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.10 Generally, a withdrawal of a light-duty assignment would constitute a recurrence 

of disability where the evidence established continuing injury-related disability for regular 

duty.11 A recurrence of disability does not apply when a light-duty assignment is withdrawn for 

 8

 Appellant later requested alternative laser surgery (percutaneous discectomy) at L4-5, which OWCP denied 

based on the advice of its DMA. Although laser surgery was not authorized, the option of traditional lumbar spinal 

fusion remained available. 

9

 20 C.F.R. § 10.5(x). 

10 Id.

11 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013). 
7

reasons of misconduct, nonperformance of job duties, or other downsizing or where a loss of 

wage-earning capacity determination is in place.12 

Absent a change or withdrawal of a light-duty assignment, a recurrence of disability 

following a return to light duty may be established by showing a change in the nature and extent 

of the injury-related condition such that the employee could no longer perform the light-duty 

assignment.13

Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of establishing that the recurrence is causally related to 

the original injury.14 This burden includes the necessity of furnishing evidence from a qualified 

physician who concludes that the condition is causally related to the employment injury.15 The 

physician’s opinion must be based on a complete and accurate factual and medical history and 

supported by sound medical reasoning.16

ANALYSIS 

The issue currently before the Board is whether appellant is entitled to disability 

compensation beginning June 28, 2014. He sustained a work-related lumbar injury on June 9, 

2013, which OWCP initially accepted for lumbar sprain/strain. A July 8, 2013 lumbar MRI scan 

revealed an L4-5 disc bulge with desiccation, and superimposed right asymmetric mild extrusion. 

As early as August 2013, surgery was recommended to address appellant’s L4-5 disc bulge. 

However, OWCP initially declined to authorize surgery because his claim had only been 

accepted for lumbar sprain/strain. 

In March 2014, appellant’s then-treating physician, Dr. Dawkins, requested that the claim 

be expanded to include “lumbar extruded disc.” On March 6, 2014 based on the advice of its 

DMA, OWCP expanded appellant’s claim to include lumbar degenerative disc disease (ICD-9 

722.52), but despite its recent acceptance of this new condition, OWCP continued to deny the 

requested L4-5 surgery.17 Appellant returned to work in a limited-duty capacity on June 17, 

2014, but stopped work again on June 28, 2014 due to his lumbar condition. He then filed a 

claim for wage-loss compensation. 

When Dr. Kelley initially examined appellant on May 15, 2014 he diagnosed L4-5 disc 

herniation attributable to appellant’s June 9, 2013 on-the-job injury. He also recommended 

surgery and advised that appellant remain off work given his symptomatic disc herniation. On 

 12 20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see id., Chapter 2.1500.2b. 

13 Theresa L. Andrews, 55 ECAB 719, 722 (2004). 

14 20 C.F.R. § 10.104(b); see supra note 11 at, Chapter 2.1500.5 and 2.1500.6. 

15 See S.S., 59 ECAB 315, 318-19 (2008). 

16 Id. at 319. 

17 Following remand for further medical development, OWCP ultimately approved the requested L4-5 spinal 

fusion with hardware. 
8

July 14, 2014 appellant returned for follow up. At that time, Dr. Kelley diagnosed work-related 

lumbar intervertebral disc displacement and he continued to recommend L4-5 surgery. 

Additionally, he reported that although appellant was advised to remain off work, the employing 

establishment provided him light-duty work, which appellant attempted for one week. 

Dr. Kelley further noted that, when appellant returned to work, his pain increased. He advised 

that appellant was currently unable to work. Thus, Dr. Kelley examined appellant both before 

and after his 12 days as a limited-duty tool and parts assistant. His opinion regarding appellant’s 

ability to work differs from Dr. Vanapalli’s March 24, 2014 second opinion. However, 

Dr. Vanapalli had not been fully apprised of appellant’s accepted lumbar conditions. 

In a September 30, 2014 decision, OWCP denied compensation for the 4-week period 

ending July 25, 2014 because the L4-5 disc herniation was not an accepted condition. It issued 

its decision while appellant’s case was still under development regarding the central issue of 

whether his lumbar disc herniation was employment related. As noted, in early 2015, OWCP 

approved L4-5 disc surgery, but it has continued to deny wage-loss compensation on the basis 

that his claim has not been accepted for lumbar disc herniation. To date, it is unclear why 

OWCP accepted lumbar degenerative disc disease rather than L4-5 disc herniation/extrusion. 

Consequently, the Board finds that the case is not in posture for decision. 

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. The claimant has the burden to establish entitlement to compensation; however, OWCP 

shares responsibility in the development of the evidence to see that justice is done.18 

OWCP accepted lumbar degenerative disc disease based on the DMA’s March 5, 2014 

recommendation. However, it is unclear why Dr. Hogshead, the DMA, recommended accepting 

lumbar degenerative disc disease rather than lumbar extruded disc, as requested by appellant’s 

then-treating physician, Dr. Dawkins. The DMA’s choice of lumbar degenerative disc disease 

also conflicts with Dr. Nair’s August 16, 2013 finding. According to Dr. Nair, appellant’s 

lumbar disc herniation appeared to be secondary to his job-related injury, whereas the lumbar 

degenerative disc disease was unrelated to appellant’s workers’ compensation injury. OWCP 

previously sought clarification from Dr. Hogshead, but he had not adequately responded to the 

underlying issue. Although Dr. Hogshead recommended approving the requested L4-5 surgery, 

the DMA was equivocal as to whether appellant’s L4-5 disc bulge was employment related, and 

whether it should be accepted as such. Once OWCP undertakes development of the record, it 

must do a complete job in procuring medical evidence that will resolve the relevant issues in the 

case.19

The Board finds that this case must be remanded to refer the case along with a copy of 

the complete medical record and updated SOAF, to a new second opinion as to whether the L4-5 

disc bulge was employment related. After OWCP has developed the medical record it shall issue 

a de novo decision regarding appellant’s entitlement to wage-loss compensation for temporary 

total disability beginning June 28, 2014 due to any accepted conditions. 

 18 William J. Cantrell, 34 ECAB 1223 (1983). 

19 Richard F. Williams, 55 ECAB 343, 346 (2004). 
9

CONCLUSION 

The Board finds that the case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the July 1, 2015 decision of the Office of Workers’ 

Compensation is set aside, and the case is remanded for further action consistent with this 

decision. 

Issued: April 7, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board