United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.V., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Edison, NJ, Employer 

__________________________________________ 

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Docket No. 15-338 

Issued: April 10, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 3, 2014 appellant, through counsel, filed a timely appeal from the 

August 5, 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 over the merits of this case. 

ISSUE 

The issue is whether appellant met her burden of proof to establish a recurrence of total 

disability on or after January 23, 2012 due to her accepted work injuries. 

FACTUAL HISTORY 

OWCP accepted that on February 22, 2008 appellant, then a 59-year-old customer service 

supervisor, sustained a neck sprain, aggravation of displacement of cervical intervertebral disc 

without myelopathy, aggravation of degeneration of lumbar intervertebral disc, aggravation of 

 1

 5 U.S.C. §§ 8101-8193. 
2

brachial neuritis, and aggravation of lumbosacral neuritis/radiculitis due to a vehicular accident 

at work. Her vehicle was struck from behind by another vehicle while she was stopping at a red 

light. Appellant did not stop work at the time of the accident.2 

Appellant received medical care for her February 22, 2008 injury from Dr. Nasser Ani, a 

Board-certified orthopedic surgeon. In an April 8, 2010 report, Dr. Ani opined that the 

February 22, 2008 injury aggravated her preexisting cervical herniation and radiculopathy and 

caused a new disc bulge at C3-4. Appellant’s preexisting lumbar radiculopathy at L4-5 was also 

aggravated by the accident and caused new disc bulges at L2-3 and L3-4. She stopped work on 

August 10, 2010 and Dr. Ani later released her to work for four hours per day. Appellant 

returned to work for four hours per day on December 13, 2010. Beginning August 10, 2010 she 

received partial disability compensation on the daily rolls. 

In a November 9, 2011 report, Dr. Jerome D. Rosman, a Board-certified orthopedic 

surgeon serving as an OWCP referral physician, discussed appellant’s medical history and 

reported findings of his October 26, 2011 examination. He stated that her work-related 

conditions had healed sufficiently for her to return to work on a full-time basis with limitations 

on lifting. Dr. Rosman noted that there were no acute signs of appellant’s injuries. He indicated 

that the work-related aggravation of her neck and back conditions was permanent, but that it had 

stabilized and reached maximum benefit from treatment. 

Appellant stopped work on January 23, 2012. The record contains a January 23, 2012 

report indicating that Dr. Darren Freeman, an attending osteopath, administered left L4 and 

bilateral L5-S1 transforaminal epidural steroid injections on that date. Dr. Freeman stated, 

“[Appellant] tolerated the procedure well and was discharged to the recovery room in stable 

medical condition where [she] will recover from the intravenous conscious sedation and from the 

procedure itself. [She] will be discharged home without any complications to follow up in my 

office in 10 days.” 

In a note dated January 23, 2012, Dr. Freeman indicated that appellant could remain out 

of work until February 1, 2012. No explanation was given for this disability opinion. In a 

January 30, 2012 report, Dr. Freeman stated that appellant had undergone the epidural injections 

on January 23, 2012, but he did not indicate any disability from work. He examined her on 

February 1, 2012 and indicated that she was unable to work from February 1 to 29, 2012. 

Dr. Freeman did not mention any connection to the epidural injections or any other potential 

cause for appellant’s disability. 

On March 2, 2012 Dr. Freeman performed another epidural injection. He stated that 

appellant tolerated the procedure well and that she was discharged home without complications. 

A note signed by Dr. Freeman stated that she should remain out of work until March 31, 2012. 

Dr. Ani examined appellant on March 12, 2012 and indicated that epidural injections should be 

 2

 OWCP previously accepted that on October 21, 1998 appellant sustained a cervical sprain, postconcussion 

syndrome, and left shoulder impingement due to a work-related vehicular accident on that date. The accident 

occurred when the driver of another vehicle cut off her vehicle. The claim was initially developed under a different 

claim file (xxxxxx096) but that file was later doubled into the file for appellant’s February 22, 2008 injury. The 

medical records from the claim do not show that she received medical care for this injury after mid-2007. 
3

tried before surgery was considered. He stated that the prior injections helped and opined that 

she should remain off work until April 12, 2012. 

By decision dated March 20, 2012, OWCP terminated appellant’s wage-loss 

compensation based on the November 9, 2011 report of Dr. Rosman. It did not terminate her 

medical benefits.3

On March 20, 2012 appellant filed a claim (Form CA-2a) alleging that she sustained a 

recurrence of total disability on January 23, 2012 due to residuals of her work injuries. 

On April 4, 2012 Dr. Ani indicated that appellant was unable to work. On May 18, 2012 

he recommended another epidural injection which Dr. Freeman performed on May 21, 2012. On 

May 31, 2012 Dr. Freeman reported that appellant had improved approximately 50 percent due 

to the epidural injection. On June 13, 2012 Dr. Ani stated that she had improved 60 percent 

since the epidural injection and released her to modified duty. 

A hearing was held on July 12, 2012 with an OWCP hearing representative in connection 

with the March 20, 2012 termination decision. Appellant testified that she stopped work on 

January 23, 2012 because she sustained pain and loss of sensation when she was on her way to 

an OWCP-directed examination with Dr. Rosman in October 2011. She stated that she stopped 

her vehicle and took a stretch and that she then “lost all sensation and my left collapsed and I just 

went down.” Appellant indicated that she managed to continue working until early 2012, noting 

that she did not feel well after receiving steroid injections on January 23, 2012 from 

Dr. Freeman. 

In a September 27, 2012 decision, the hearing representative remanded the case to 

OWCP for further development, including the production of an updated statement of accepted 

facts which contained the details of appellant’s October 21, 1998 work injury. The records from 

that injury were to be doubled into the record for the February 22, 2008 injury. OWCP was 

directed to provide these documents to Dr. Rosman and to obtain a supplemental report 

regarding work-related disability. 

After carrying out these instructions, OWCP referred the case to Dr. Rosman for a 

supplemental report. In a January 27, 2013 report, Dr. Rosman stated that appellant “is able to 

and already has returned to work full time” with restrictions on lifting and carrying. He noted 

that further treatment would be palliative and that epidural steroid injections and surgery were 

not indicated or medically necessary. Dr. Rosman indicated that appellant’s complaints were not 

inconsistent with the diagnostic testing, but that they were not supported by objective findings on 

examination. He posited that the type of injury sustained by her in February 2008 typically 

resolves in 12 to 16 weeks. 

By decision dated February 7, 2013, OWCP denied appellant’s claim for recurrence of 

total disability beginning January 23, 2012. It discussed Dr. Rosman’s supplemental report and 

noted that she had not submitted medical evidence to support her claim. In an August 9, 2013 

decision, an OWCP hearing representative instructed OWCP to request another supplemental 

 3

 The record reflects that appellant received disability compensation on the daily rolls through December 6, 2011. 
4

report from Dr. Rosman which specifically addressed whether appellant sustained a work-related 

recurrence of total disability on or after January 23, 2012. 

Dr. Rosman responded in a September 2, 2013 report, noting that he had reviewed the 

relevant medical records and a statement of accepted facts. He commented that appellant did not 

sustain a recurrence of total disability on or after January 23, 2012 and noted that her condition, 

based on objective findings, had been stable and unchanged for years. Dr. Rosman stated: 

“[Appellant] did not become disabled due to the epidural steroid injections she 

received on January 23, March 2, and May 21, 2012. During epidural steroid 

injection treatment physical activity is not significantly affected. If [appellant] is 

active and capable of working, as I believe [that she] was, this activity would 

continue throughout the epidural steroid injection treatment period.” 

By decision dated December 3, 2013, OWCP found that appellant did not meet her 

burden of proof to establish a recurrence of total disability on or after January 23, 2012 due to 

her accepted work injuries. 

Appellant requested a video hearing with an OWCP hearing representative. During the 

May 20, 2014 hearing, appellant’s counsel asserted that her recurrence began on January 23, 

2012 due to adverse effects of the first epidural steroid injections administered by Dr. Freeman. 

Appellant submitted a January 20, 2014 report in which Dr. Ani stated that her accidents 

in 1998 and 2008 were “both cause[s] of current condition.” Dr. Ani indicated that appellant had 

herniated discs at C5-6 which required surgery and that “the need for surgery is related to the 

workman’s comp[ensation] condition.” He stated: 

“[Appellant’s] lower back condition is related to the workman’s comp[ensation]. 

[She] had epidural injection for the radiculopathy and disc herniation at L4 and 

L5 which had helped. If the symptoms reoccur, [appellant] will need surgical 

intervention. [She] has not reached [maximum medical improvement]. 

[Appellant] is unable to work or drive long distances.” 

By decision dated August 5, 2014, the hearing representative affirmed OWCP’s 

December 3, 2013 decision denying appellant’s claim that she sustained a work-related 

recurrence of total disability beginning January 23, 2012. 

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 
5

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.4

ANALYSIS 

OWCP accepted that on October 21, 1998 appellant sustained a cervical sprain, 

postconcussion syndrome, and left shoulder impingement due to a work-related vehicular 

accident on that date. It also accepted that on February 22, 2008 she sustained a neck sprain, 

aggravation of displacement of cervical intervertebral disc without myelopathy, aggravation of 

degeneration of lumbar intervertebral disc, aggravation of brachial neuritis, and aggravation of 

lumbosacral neuritis/radiculitis due to another vehicular accident at work. 

Appellant stopped work on August 10, 2010 and then returned to part-time modified 

work on December 13, 2010. She continued in the position until January 23, 2012. On 

March 20, 2012 appellant filed a claim alleging that she sustained a recurrence of total disability 

on January 23, 2012 due to residuals of her work injuries. She claimed alternately that she 

stopped work due to experiencing a loss of sensation when she was driving to an 

OWCP-required medical appointment on October 26, 2011 with Dr. Rosman, and due to the 

effects of an epidural injection on January 23, 2012. 

The Board notes that no physician has indicated that the reported loss of sensation on 

October 26, 2011 was a cause of total disability beginning in January 2012. Appellant’s 

physicians did not find appellant disabled as a result of the epidural injections, but rather 

indicated that she did well after they were administered and had no complications. Dr. Freeman, 

an attending osteopath, and Dr. Ani, an attending Board-certified orthopedic surgeon, indicated 

that she should stay off work for periods after January 23, 2012, but they did not provide a 

rationalized medical opinion supporting that the work stoppages were necessitated by effects of 

her October 21, 1998 or February 22, 2008 work injury. Most of their disability opinions 

consisted of brief comments delineating periods of disability without explanation for the 

opinions. Dr. Freeman and Dr. Ani did not provide any clear explanation for finding that 

appellant was not able, for any period after January 23, 2012, to perform the restricted duties she 

had been performing for more than a year. Therefore, appellant did not show a change in the 

nature and extent of her injury-related condition such that she could no longer perform this 

restricted work, nor did she argue or show a change in the nature and extent of her light-duty job 

requirements.5

 

 4 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, 

nonperformance 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.” 

5 See id. 
6

In a January 20, 2014 report, Dr. Ani stated that appellant’s accidents in 1998 and 2008 

were “both cause[s] of current condition.” He indicated that she had herniated discs at C5-6, 

which required surgery and that “the need for surgery is related to the workman’s 

comp[ensation] condition.” Dr. Ani stated that appellant’s “lower back condition is related to the 

workman’s comp[ensation].” He noted that she had epidural injection for the radiculopathy and 

disc herniation at L4 and L5 “which had helped” and stated that she “is unable to work or drive 

long distances.” Although Dr. Ani suggested that appellant had disability in January 2014 due to 

the October 21, 1998 and February 23, 2012 work injuries, he did not provide any explanation 

for this opinion. He did not describe the October 21, 1998 or February 23, 2012 work injury in 

any detail or explain how either injury could have caused total disability on or after 

January 23, 2012. With respect to the epidural steroid injections, Dr. Ani actually indicated that 

they provided comfort, rather than caused disability. 

Moreover, Dr. Rosman noted in a September 2, 2013 report that appellant did not sustain 

a recurrence of total disability on or after January 23, 2012 and indicated that her condition, 

based on objective findings, had been stable and unchanged for years. He specifically stated that 

she did not become disabled due to the epidural steroid injections she received on January 23, 

March 2, and May 21, 2012. 

For these reasons, appellant did not establish a work-related recurrence of total disability 

on or after January 23, 2012. 

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 her burden of proof to establish a recurrence 

of total disability on or after January 23, 2012 due to her accepted work injuries. 
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ORDER 

IT IS HEREBY ORDERED THAT the August 5, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 10, 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