United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.G., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

HILL AIR FORCE BASE, UT, Employer 

__________________________________________ 

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Docket No. 16-0216 

Issued: July 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: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 16, 2015 appellant, through counsel, filed a timely appeal from a 

September 28, 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 and 

501.3, the Board has jurisdiction over the merits of the claim. 

ISSUE 

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

disability as of June 12, 2013 causally related to his August 27, 2012 employment injury. 

FACTUAL HISTORY 

On August 29, 2012 appellant, then a 54-year-old police officer, filed a traumatic injury 

claim (Form CA-1) alleging that on August 27, 2012 he aggravated his preexisting disc condition 

while lifting an equipment bag from his vehicle in the performance of his federal duties. He 

 1

 5 U.S.C. § 8101 et seq. 
2

returned to modified-duty work on August 30, 2012. OWCP accepted the claim for lumbar 

sprain and permanent aggravation of degeneration of lumbar or intervertebral disc. Appellant 

had a prior medical history of disc bulge, cervical fracture requiring fusion, and tibia/fibular 

injury. He was released to full-time, regular duty work on September 24, 2012. 

Appellant resigned from federal employment effective June 12, 2013 for personal 

reasons. 

On August 4, 2014 appellant filed a Form CA-2a, notice of recurrence, claiming a 

recurrence of total disability beginning June 12, 2013. He indicated that the nature and extent of 

his injury was unchanged from the date of injury to the present. On the claim form, the 

employing establishment challenged the claim as it had accommodated appellant’s work injury 

until he resigned from his employment. Appellant also filed a Form CA-7 claiming total 

disability from work from June 12, 2013 to August 9, 2014. He claimed no earnings from 

employment during this period. 

On August 25, 2014 OWCP advised appellant of the deficiencies in his claim and 

requested medical evidence that established disability for work during the entire period claimed. 

It also noted that clarification was needed concerning the dates of work stoppage and leave used 

during the period claimed. Appellant was afforded 30 days to provide the requested information. 

In a September 17, 2014 report, Dr. Douglas T. Shepherd, an orthopedist, noted that 

appellant’s primary diagnosis was chronic low back pain, with multilevel imaging changes. He 

noted the history of the August 27, 2012 work injury and that, despite conservative treatment 

including a release for light duty, appellant continued to have persistent symptoms and ongoing 

disability. Dr. Shepherd noted that appellant last worked on June 11, 2013 and that he was 

medically stable as of June 17, 2013. He noted that at the time appellant reached maximum 

medical improvement, it was his understanding that he was unable to perform the essential job 

duties as a police officer and that restrictions were provided at that time. Restrictions were 

imposed related to limitations associated with appellant’s chronic back condition. 

By letter dated October 3, 2014, OWCP again provided appellant an opportunity to 

submit additional evidence in support of his claim for recurrence of disability. 

In an October 20, 2014 letter, counsel for appellant advised that appellant’s recurrence of 

disability was due to his inability to meet the physical requirements of his position. He also 

alleged that appellant’s medical condition had deteriorated to the point he could no longer 

perform the modified position his employing establishment had provided him. 

By decision dated January 23, 2015, OWCP denied appellant’s recurrence claim as the 

medical evidence did not support a material worsening of the accepted work injury. 

On January 27, 2015 appellant requested a telephonic hearing before an OWCP hearing 

representative. At the hearing, held on August 5, 2015, counsel for appellant argued that 

appellant’s light-duty position had been withdrawn based on innuendo and accusations without 

any official finding of wrongdoing. He argued that the case should be decided on the medical 

evidence. Appellant testified that he was placed on light duty when he returned to work three 

days after his work injury. He explained that he performed the same duties as a regular officer, 
3

other than he was disarmed and did not wear body armor. Appellant testified that he worked 

gates to check identification and he was therefore on his feet, although he was not supposed to 

be. He indicated that he had constant pain, which would increase by the end of the day. 

Appellant indicated that the employing establishment had tested him for alcohol six times and 

only had four positive findings. He noted that the employing establishment had an eight-hour 

rule regarding alcohol and he always stopped drinking within eight hours of the beginning of his 

shift. Appellant testified that his back did not get better in the light-duty position and he kept 

reaggravating his injury both at work and at home. He testified that he had no other chronic 

medical conditions. Appellant noted that his Veterans Administration benefits were his current 

source of income. He indicated that since June 2013 he has not worked in any capacity. 

Appellant noted that at home he took care of chickens and rabbits, mowed the lawn, and walked 

for exercise. 

By decision dated September 28, 2015, an OWCP hearing representative affirmed 

OWCP’s January 23, 2015 decision. She found that this was not a case where the employing 

establishment withdrew appellant’s modified job. In this situation, appellant had resigned from 

his federal employment position effective June 12, 2013. 

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 

compensable injury or illness and without an intervening injury or new exposure in the work 

environment.2 This term also means an inability to work because a light-duty assignment made 

specifically to accommodate an employee’s physical limitations and which is necessary because 

of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the 

employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for 

reasons of misconduct, nonperformance of job duties, or a reduction-in-force.3 

OWCP procedures state that a recurrence of disability includes a work stoppage caused 

by a spontaneous material change in the medical condition demonstrated by objective findings. 

That change must result from the previous injury or occupational illness rather than an 

intervening injury or new exposure to factors causing the original illness. It does not include a 

condition that results from a new injury, even if it involves the same part of the body previously 

injured.4

An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable, and 

probative evidence that the disability for which he or she claims compensation is causally related 

to the accepted injury. This burden of proof requires that a claimant furnish medical evidence 

 2

 20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). 

3 Id. 

4

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). Kenneth R. 

Love, 50 ECAB 193, 199 (1998). 
4

from a physician who, on the basis of a complete and accurate factual and medical history, 

concludes that, for each period of disability claimed, the disabling condition is causally related to 

the employment injury, and supports that conclusion with medical reasoning.5 Where no such 

rationale is present, the medical evidence is of diminished probative value.6 

ANALYSIS 

OWCP accepted that appellant’s August 27, 2012 employment injury resulted in lumbar 

sprain and aggravation of degenerative lumbar intervertebral disc. Following the August 27, 

2012 work injury, appellant returned to modified-duty work on August 30, 2012. On June 12, 

2013 he resigned from the employing establishment. Appellant filed a recurrence of disability 

claim, effective June 12, 2013. He has the burden of proof to establish a recurrence of disability 

due to either a change in his injury-related condition, without intervening injury, or withdrawal 

of limited-duty employment subsequent to his June 12, 2013 resignation. 

Appellant argued that the employing establishment effectively withdrew his modified 

assignment on June 12, 2013. The Board, however, has held that, when a claimant stops work 

for reasons unrelated to his accepted employment injury, he has no disability within the meaning 

of FECA.7

 In this case, appellant resigned for personal reasons. His resignation for personal 

reasons does not establish a recurrence of disability on or about June 12, 2013 because it had 

nothing to do with his ability to perform the limited-duty requirements of his position.8 The 

record does not demonstrate that the employing establishment either explicitly or implicitly 

withdrew appellant’s limited-duty assignment due to his accepted medical condition.9 

The record also does not contain any medical opinion evidence, based upon a complete 

and accurate history, to support that appellant sustained a spontaneous material change in his 

accepted injury that would prevent him from performing the modified-duty position he held at 

the time of his resignation from federal employment. 

Dr. Shepherd had an accurate history of appellant’s lower back conditions and he noted 

appellant’s work restrictions. However, he did not explain whether and how appellant’s 

August 27, 2012 work injury caused the need for those work restrictions, and he did not explain 

whether in fact appellant was totally disabled as of June 12, 2013 due to his accepted work 

injury. This explanation is important as appellant sustained several lower back injuries after the 

August 27, 2012 work injury which caused him to seek medical attention, at least one injury 

caused him to return to modified duty, and at least one injury at home caused him to lose time 

from work. 

 5 Ronald A. Eldridge, 53 ECAB 218 (2001). 

6

 Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004). 

7 Supra note 4 at Chapter 2.1500.7 (June 2013), see also John W. Normand, 39 ECAB 1378 (1988); Carolyn R. 

Gray, Docket No. 05-1700 (issued June 20, 2006). 

8 See 20 C.F.R. § 10.5(x); E.S., Docket No. 11-657 (issued February 9, 2012); see also Lester Covington, 47 

ECAB 539, 542 (1996); Major W. Jefferson, III, 47 ECAB 295, 298 (1996). 

9 See G.M., Docket No. 11-961 (issued November 1, 2011). 
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The medical evidence at the time of appellant’s June 12, 2013 resignation establishes that 

he was capable of working eight hours a day with restrictions. Additionally, there is no evidence 

of any spontaneous material worsening, demonstrated by objective findings, without intervening 

injury, to support that appellant’s work injury made him incapable of performing the modifiedduty police officer job effective June 12, 2013 at the date of his resignation from federal 

employment.10 Accordingly, the Board will affirm OWCP’s September 28, 2015 decision. 

Appellant may submit new evidence or argument as part of 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 of proof to establish a recurrence of 

disability as of June 12, 2013 causally related to his August 27, 2012 employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decision dated September 28, 2015 is affirmed. 

Issued: July 7, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 10 E.S., supra note 8; William C. Thomas, 5 ECAB 591 (1994).