United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.B., Appellant 

and 

DEPARTMENT OF COMMERCE, 2010 

DECENNIAL CENSUS, 

Bloomfield, NJ Employer 

__________________________________________ 

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Docket No. 15-0802 

Issued: January 14, 2016 

Appearances: Case Submitted on the Record

Jason S. Lomax, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 20, 20151 appellant through counsel, filed a timely appeal from an 

August 25, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case. 

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of OWCP’s 

decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). The 180th day from August 25, 2014 is February 21, 2015 as this fell on a Saturday, the appeal would 

have been timely if received the next business day, which was February 23, 2015. Since using February 26, 2015, 

the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the 

postmark is considered the date of filing. The date of the U.S. Postal Service postmark is February 20, 2015, which 

renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether appellant has established that she sustained a recurrence of disability 

on March 5, 2012 causally related to her June 5, 2010 employment injury. 

FACTUAL HISTORY 

On June 10, 2010 appellant, then a 46-year-old census enumerator crew leader assistant, 

filed a traumatic injury claim (Form CA-1) alleging that on June 5, 2010, she injured her back, 

spine, and foot while lifting and carrying boxes in the performance of duty. She stopped work 

on June 7, 2010. The employing establishment explained that, when appellant returned to work, 

the job held on the date of injury was no longer available and she was provided a clerk position. 

It advised that her medical restrictions included no lifting over 10 pounds and were “congenial” 

with the date-of-injury position. The employing establishment noted that appellant returned to 

work on July 17, 2010 until the clerk position ended due to lack of work on August 29, 2010.3

 

On July 7, 2010 OWCP accepted the claim for lumbar sprain. A July 12, 2010 magnetic 

resonance imaging (MRI) scan showed moderate-sized L5-S1 herniation and slight disc bulging 

at L3-4 and L4-5. The record indicates that appellant received medical treatment and physical 

therapy until September 2010. 

An April 3, 2012 MRI scan read by Dr. Ross Mondshine, a Board-certified diagnostic 

radiologist revealed an interval increase in the size of the L5-S1 disc herniation, broad-based disc 

bulge at L4-5 with moderate facet joint arthropathy and a superimposed annual fissure. 

In an August 13, 2012 report, Dr. Kevin S. Finnesey, a Board-certified orthopedic 

surgeon, noted that appellant had complaints of high level pain in the low back with radiation 

down the left leg and pain which worsened with activity. He noted that she walked with a cane 

with the right hand. Dr. Finnesey examined appellant and determined: she had a positive leg 

raise on the left at 45 degrees; a left Achilles reflex which was absent; diminished sensation 

about the left lateral foot; tenderness in the left lower lumbar paraspinal muscles; flexion to 60 

degrees, which was painful; and peripheral pulses palpable in the legs. He diagnosed herniated 

lumbar discs and recommended a lumbar microdiscectomy. Dr. Finnesey noted that she had the 

pain for over a year and needed surgery. He advised that she was totally disabled. Dr. Finnesey 

also provided an August 18, 2012 report in which he indicated that appellant injured her back 

carrying a heavy box on June 5, 2010. He diagnosed a herniated lumbar disc L5-S1 on the left. 

Dr. Finnesey noted subjective findings, requested authorization for surgery, and found appellant 

unable to work. 

On September 13, 2012 appellant filed a claim for a recurrence of disability Form CA-2a 

commencing March 5, 2012. She noted experiencing chronic pain in her back and leg since 

June 5, 2010. Appellant advised that she had some physical therapy and took medication, but 

she could no longer tolerate the chronic pain because “it became excruciating and unbearable.” 

The employing establishment indicated that when appellant was released to work after her injury, 

 3

 Appellant’s date-of-injury job was a temporary position that was scheduled to end no later than 

December 31, 2010. She received continuation of pay from June 6 to July 17, 2010. 
3

the date-of-injury job was no longer available so she worked as a clerk from July 17 through 

August 29, 2010, at which point the clerk job ended due to lack of work. It contended that her 

job was consistent with her work restrictions. The employing establishment also related its 

understanding that appellant worked for the YMCA before, during, and after the injury. It noted 

that, prior to the alleged recurrence, she had not sought treatment for the accepted injury for 18 

months (September 2010 through March 2012).4

 

On September 14, 2012 Lorie Plegue, an employing establishment workers’ 

compensation specialist, controverted the claim. She noted that the employing establishment had 

learned that appellant had an auto accident, a disabled daughter, and a job with the YMCA that 

could have caused her current medical condition. 

Dr. Finnesey, in an October 1, 2012 report, advised that appellant was doing well and had 

returned to work. Appellant had some pain, but not severe, and no radiating pain. Dr. Finnesey 

provided findings which included no focal deficits of the extremities on neurologic examination. 

He diagnosed cervical and lumbar soft tissue sprain, and cervical disc protrusion, improving. 

Dr. Finnesey advised that appellant was not a surgical candidate, she was at maximum medical 

improvement, and he would see her on an as needed basis.

By letter dated October 9, 2012, OWCP advised appellant of the evidence needed to 

establish her recurrence of disability claim. It requested that she provide a detailed description to 

explain why she stopped work on March 5, 2012. OWCP requested that appellant specify the 

activity she was engaged in at the moment she suffered the recurrence. It noted that she had not 

worked for the employing establishment since August 29, 2010 and requested an explanation as 

to why she did not seek medical treatment for the accepted injury for 18 months from 

September 2010 to March 2012. OWCP further requested that appellant address whether she 

sustained any injuries while working with the YMCA. 

Appellant subsequently submitted a May 14, 2012 report from Dr. Finnesey. 

Dr. Finnesey indicated that her history included being in a work-related accident on June 5, 2010 

when she was lifting boxes of documents and developed low back pain with eventual radiation 

down into the right leg. Appellant currently had quite severe pain in the left leg for the last few 

weeks. The pain was worse with any activity and inhibited her activities of daily living. 

Dr. Finnesey examined appellant and diagnosed herniated lumbar disc. He found her totally 

disabled and requested authorization for lumbar laminectomy and discectomy. OWCP also 

received copies of previously submitted reports. 

In a November 1, 2012 letter, appellant stated that she had learned to live with chronic 

pain since June 5, 2010, but she reached the point where it was no longer tolerable. She 

indicated that she wanted surgery or spinal injections. Appellant denied that she sustained any 

injuries while working for the YMCA in a light-duty position. 

In a November 6, 2012 report, Dr. Finnesey indicated that appellant continued to have 

severe low back pain radiating down the left buttock and posterior thigh with associated 

 4

 Appellant notes that she was a director of the YMCA aftercare program and supervised counselors and children 

with afterschool activities. She held this position from “October 2008 or 2009” to March 2012. 
4

numbness of the leg, foot, and back, as well as leg tingling and weakness. Appellant’s leg pain 

on the left was greater than the back pain. She also had an episode of right leg pain a few weeks 

earlier. Dr. Finnesey diagnosed herniated lumbar disc at L5-S1 on the left. He questioned the 

extensive delay in appellant’s treatment and advised that appellant had incapacitating pain and 

needed surgery. In a separate November 6, 2012 report, he declared that appellant had subjective 

findings of pain greater than back pain and tenderness at L5-S1, a straight leg raise of 45 

degrees, and full reflexes and he requested authorization for a lumbar discectomy at L5-S1 and 

checked a box marked “yes” in response to whether the injury or illness was the result of a workrelated incident or condition of employment. Dr. Finnesey checked a box marked “no” in 

response to whether appellant reported a preexisting injury and placed her off work. 

In a December 14, 2012 decision, OWCP denied appellant’s claim for a recurrence. It 

found that the factual basis of her claim remained unclear as she did not provide a clear 

statement to explain why she stopped work on March 5, 2012 and why she did not see a doctor 

from September 2010 to March 2012. OWCP also found that the medical evidence of record 

was unclear. 

On January 2, 2013 counsel for appellant requested a telephonic hearing, which was held 

on April 16, 2013. In response to what happened between June 2010 and March 2012, appellant 

reiterated that she was in constant pain and that, as of March 5, 2012, she was unable to tolerate 

the pain. She stated that she had previously tolerated the pain in the hopes that it would get 

better. 

In a February 4, 2013 report, Dr. Finnesey noted reevaluating appellant. Appellant 

continued to complain of high level pain in her low back with radiation down both legs, left 

greater than the right. Dr. Finnesey explained that she had significant difficulty with activities of 

daily living including dressing, bathing, shopping, and caring for her disadvantaged daughter. 

He provided findings which included: left lower lumbar paraspinal tenderness; lumbar flexion of 

45 degrees with pain; a positive straight leg raise on the left at 45 degrees, and negative on the 

right to 60 degrees. Neurologic examination revealed a diminished left Achilles reflex; left calf 

strength of 4/5, and sensation was diminished over the left lateral foot. Regarding appellant’s 

June 5, 2010 work injury, Dr. Finnesey noted that she was carrying two to three boxes filled with 

papers, which weighed 20 pounds each. He indicated that she had to lift the boxes from her 

vehicle and bring them into various buildings. Appellant developed severe low back pain at the 

time with radiation down both legs. An MRI scan showed a disc protrusion at L5-S1 affecting 

both S1 nerve roots. Dr. Finnesey indicated that appellant “specifically denied problems with 

her back prior to this work-related injury.” He opined: 

“[It was his] opinion that the work injury of June 5, 2010, was directly responsible 

for the patient’s medical treatment. I believe it is clear that there is a causal 

relationship between the claimant’s conditions to the injury sustained while in the 

course of employment. My reasoning is that the patient, as I mentioned, had no 

difficulty with her back prior to this injury. Appellant clinical examination along 

with the MRI scan of the lumbar spine supports this opinion. Based upon my 

examination and the objective medical evidence I have outlined, the patient’s 

condition again is causally related to the job duties described. In my opinion as 

provided, it was in a reasonable degree of medical certainty.” 
5

Dr. Finnesey repeated his request for surgery and continued to submit reports. 

In a May 2, 2013 letter, counsel for appellant submitted additional medical evidence. 

This included an April 23, 2013 report from Dr. Finnesey. Appellant related that her pain was 

persisting and worsening, with her activities of daily living becoming more difficult. 

Dr. Finnesey advised that, since the June 5, 2010 lifting injury, there were no other specific 

injuries affecting the problem. He related her symptoms and diagnosed herniated lumbar disc at 

L5-S1 on the left. Dr. Finnesey recommended lumbar discectomy at the L5-S1 level. He 

advised that appellant remained totally disabled. 

By decision dated July 3, 2013, an OWCP hearing representative affirmed the 

December 14, 2012 decision. He found that, while appellant had a herniated disc at L5-S1 on the 

left, there was insufficient evidence to show this was causally related to the accepted work 

trauma, or that the work injury contributed to appellant’s claimed disability. 

A July 26, 2013 electromyography (EMG) study read by Dr. Danielle Groves, Boardcertified in physical medicine and rehabilitation, revealed evidence of bilateral L5 and right S1 

radiculopathies. 

On June 30, 2014 counsel for appellant requested reconsideration and submitted 

additional reports from Dr. Finnesey, who continued to treat appellant.5

 

The reports included a March 1, 2014 operative report, in which Dr. Finnesey performed 

a lumbar laminotomy, foraminotomy, partial facetectomy, and discectomy at L5-S1 on the left. 

On June 26, 2014 Dr. Finnesey noted initially evaluating appellant on May 14, 2012 for a June 5, 

2010 work injury. He advised that she developed acute low back pain and was treated with 

epidural blocks as well as physical therapy and medication. Dr. Finnesey noted that a July 12, 

2010 MRI scan showed a “moderately large disc herniation” at L5-S1, which was contacting the 

L5 and S1 nerve roots. A follow-up MRI scan on April 3, 2012 revealed an “interval increase in 

the size of L5-S1 during disc herniation.” Dr. Finnesey further indicated that an updated study in 

2014 also showed a large disc herniation at L5-S1 which severely impinged on the left lateral 

recess. He advised that conservative treatment failed and that appellant had a lumbar discectomy 

due to the large size of the disc and the incapacitating pain. Regarding causation, Dr. Finnesey 

opined that appellant’s current clinical condition was “directly attributable and causally related to 

the job activities....” He also noted that appellant had a disabled daughter at home and bathing, 

lifting, or carrying her was painful as were other activities of daily living. Dr. Finnesey advised 

that appellant denied any significant episodes of low back pain in the past which needed 

treatment and that she was fully functional before the June 5, 2010 injury. 

In a July 22, 2014 report, Dr. Finnesey examined appellant and noted that appellant was 

gradually improving. He indicated that she had some low back pain, but her radicular pain had 

improved. Dr. Finnesey noted findings which included full strength and sensation in the lower 

extremities. He diagnosed herniated lumbar disc and opined that the disc “herniation and 

subsequent surgery is causally related to the work involving lifting the documents....” In a 

separate July 22, 2014 report, Dr. Finnesey checked a box marked “yes” in response to whether 

 5

 The record contains numerous reports dating from April 23, 2013 to July 22, 2014. 
6

the injury or illness was employment related. He also noted that appellant did not have a 

preexisting injury to the same body area. Dr. Finnesey placed appellant off work. 

By decision dated August 25, 2014, OWCP denied modification of its prior decision. It 

noted that appellant did not submit a clear statement explaining why she stopped work on 

March 15, 2012 and why she sought no medical treatment from September 2010 to March 2012. 

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 resulting from a previous injury or 

illness without an intervening cause or a new exposure to the work environment that caused the 

illness. It can also mean 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.6

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

of employment-related residuals returns to a limited-duty position or the medical evidence of 

record establishes that he or she can perform the limited-duty position, the employee has the 

burden of proof to establish, by the weight of the reliable, probative, and substantial evidence, a 

recurrence of total disability and an inability to perform such limited-duty work. 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 limited-duty job requirements.7 To establish a change 

in the nature and extent of the injury-related condition, there must be a probative medical 

opinion, based on a complete and accurate factual and medical history as well as supported by 

sound medical reasoning, that the disabling condition is causally related to employment factors.8 

In the absence of rationale, the medical evidence is of diminished probative value.9

 While the 

opinion of a physician supporting causal relationship need not be one of absolute medical 

certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a 

reasonable degree of medical certainty.10

ANALYSIS 

OWCP accepted that appellant sustained a lumbar sprain on June 5, 2010. Appellant 

returned to work on July 17, 2010 with a 10-pound lifting restriction. The employing 

establishment accommodated this restriction by providing her a clerical job until August 29, 

 6 J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is 

withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See 

also Richard A. Neidert, 57 ECAB 474 (2006).

7 A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986). 

8 Mary A. Ceglia, 55 ECAB 626, 629 (2004). 

9 Id.; Robert H. St. Onge, 43 ECAB 1169 (1992). 

10 Ricky S. Storms, 52 ECAB 349 (2001). 
7

2010 when the position ended due to lack of work.11 There is no evidence of record that 

appellant was not provided appropriate work within her restrictions while work was available. 

Thus, the question before the Board is whether she experienced a change in the nature and extent 

of the June 5, 2010 employment injury that resulted in recurrence of disability on March 5, 2012. 

Medical evidence of bridging symptoms must demonstrate that the claimed recurrence 

was caused, precipitated, accelerated, or aggravated by the accepted injury.12 The Board notes 

that there is no evidence of record that appellant sought medical treatment from September 2010, 

when she had been cleared to work restricted duty, until March 2012. Although appellant asserts 

that she remained in significant pain during this period, there is no medical evidence between 

these dates documenting that she continued to have significant residuals as she alleges. She 

indicated that she did not seek treatment as she thought her condition would improve without 

medical treatment. The medical evidence from Dr. Finnesey, who did not begin treating 

appellant until May 14, 2012, does not sufficiently explain with sound medical reasoning how 

the June 5, 2010 work injury disabled appellant for work on and after March 5, 2012, the date of 

the alleged recurrence. In the absence of rationalized medical opinion evidence, appellant did 

not meet her burden of proof. 

As noted, Dr. Finnesey provided several reports opining that appellant’s current 

condition, and need for the March 1, 2014 surgery, is causally related to the June 5, 2010 

work injury. They included his May 14, August 13, October 1, November 6, 2012, February 4, 

April 23, 2013, June 26, and July 22, 2014 reports. Dr. Finnesey noted the history of injury of 

the June 5, 2010 work injury, diagnosed a herniated lumbar disc, and found appellant totally 

disabled. He noted that a 2010 MRI scan showed a herniated disc. Dr. Finnesey contended 

that her herniated disc and associated conditions were caused or aggravated by her work injury 

and noted that appellant denied any other similar conditions. However, the only condition 

accepted by OWCP is a lumbar sprain.13 The Board has also held that an opinion that a 

condition is causally related to an employment injury because the employee was asymptomatic 

before an injury but symptomatic after it is insufficient, without supporting rationale, to establish 

causal relationship.14 These numerous reports do not provide sufficient support for a recurrence 

of disability on March 5, 2012 caused by a spontaneous change in the accepted lumbar sprain 

without an intervening injury or new exposure to the work environment that caused the illness. 

The need for detailed medical rationale is particularly important due to the passage of time 

between the original injury and the resumption of treatment.15 Furthermore, appellant also 

 11 As noted, appellant’s date-of-injury job was a temporary position that was scheduled to end no later than 

December 31, 2010. See supra note 3. OWCP procedures explain that a recurrence of disability does not include a 

work stoppage caused by a termination of a temporary appointment, if the claimant was a temporary employee at the 

time of the injury. Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(c)(1) 

(June 2013). 

12 Ricky S. Storms, 52 ECAB 349 (2001). 

13 See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted by 

OWCP, she bears the burden of proof to establish that the condition is causally related to the employment injury). 

14 John F. Glynn, 53 ECAB 562 (2002). 

15 See supra note 12. 
8

worked another job during the period in question in which she helped care for children as well as 

having to care for a disabled child at home. Dr. Finnesey did not sufficiently address how these 

activities would have affected appellant’s condition. 

Dr. Finnesey also provided form reports dated November 6, 2012 and July 22, 2014, in 

which he checked a box marked “yes” in response to whether the injury or illness was the result 

of a work-related incident or condition of employment. The Board has held that the checking of a 

box marked “yes” in a form report, without additional explanation or rationale, is insufficient to 

establish causal relationship.16 

Other medical evidence of record is insufficient to establish a recurrence as these reports 

do not contain a physician’s opinion supporting that disability beginning March 5, 2012 was due 

to a spontaneous change in her accepted condition. 

On appeal, counsel for appellant argues that appellant returned to a light-duty capacity 

and never returned to full duty. He indicated that the entire Census office was let go.17 Counsel 

further argues that appellant addressed why she stopped work and did not seek medical attention 

from September 2010 to March 2012. He contends that the claim should be accepted. In the 

alternative, counsel notes that there was no contradictory medical evidence and the claim should 

be remanded for further development. As found above, the medical evidence of record is 

insufficient to establish appellant’s claim or to require further development. 

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 established that she sustained a recurrence of 

disability on March 5, 2012 causally related to her June 5, 2010 employment injury. 

 16 See Barbara J. Williams, 40 ECAB 649, 656 (1989). 

17 See supra note 11 (a recurrence of disability does not include a work stoppage caused by a termination of a 

temporary appointment). 
9

ORDER 

IT IS HEREBY ORDERED THAT the August 25, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 14, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board