United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Riverview, MI, Employer 

__________________________________________ 

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Docket No. 14-961 

Issued: September 23, 2014 

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 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 17, 2014 appellant, through her attorney, filed a timely appeal from 

October 24, 2013 and January 30, 2014 merit decisions of the Office of Workers’ Compensation 

Programs (OWCP) finding that she did not establish a recurrence of disability. 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 sustained a recurrence of disability on July 6, 2012 

causally related to her January 21, 2008 employment injury. 

FACTUAL HISTORY 

On January 30, 2008 appellant, then a 55-year-old clerk, filed a traumatic injury claim 

alleging that on January 21, 2008 she injured her lower back unloading parcels containing 

 1

 5 U.S.C. § 8101 et seq. 
2

catalogs. OWCP accepted the claim for lumbosacral strain and a herniated disc at L3-4. 

Appellant stopped work on January 21, 2008. 

On January 30, 2008 Dr. Gregory M. Garvin, who specializes in occupational medicine, 

released appellant to return to work lifting, pushing and pulling up to five pounds with no 

prolonged standing or walking more than tolerated. On January 30, 2008 appellant returned to 

work in a full-time modified position. The position required standing at the window for three to 

four hours as tolerated, sitting to answer telephones three to four hours as tolerated and limited 

lifting three to four hours as tolerated. Appellant worked full time in the modified position until 

November 9, 2009, when she began working six hours a day. 

In a decision dated January 29, 2010, OWCP found that appellant did not establish a 

recurrence of disability beginning November 9, 2009. By decision dated June 14, 2010, it 

vacated the January 29, 2010 decision and accepted that she sustained an employment-related 

recurrence of disability such that she could work only six hours a day in her modified position. 

OWCP further accepted appellant’s claim for a herniated disc at L3-4. 

On July 6, 2012 appellant filed a notice of recurrence of disability beginning July 6, 2012 

causally related to her January 21, 2008 employment injury. She related that her condition had 

not improved. 

In a duty status report dated July 6, 2012, Dr. Phillip Friedman, a Board-certified 

neurosurgeon, found that appellant could work six hours a day with restrictions. In a disability 

certificate dated July 6, 2012, he also advised that she was temporarily disabled from 

employment. 

By letter dated July 27, 2012, OWCP requested that appellant submit additional factual 

and medical information supporting that she sustained a recurrence of disability. 

On August 3, 2012 Dr. Friedman related that appellant complained of back pain 

aggravated by walking. He stated: 

“[Appellant] remains extremely despondent about her progressive disability and 

her inability to perform her duties in the [employing establishment]. Despite the 

fact that [the employing establishment] was adherent to restrictions as far as 

bending and lifting, she found herself having to stand extended periods of time. 

[Appellant] would be the only one at the window on Saturdays and she would not 

be given breaks. She would have to be on her feet for six hours and she can no 

longer deal with the level of pain that she is experiencing.” 

Dr. Friedman concluded that, “At this time, I believe that [appellant] is disabled by 

severe mechanical low back pain. While her lumbar disc protrusion did improve, she continues 

to have progressive dysfunction of the disc itself, which is responsible for her mechanical low 

back pain.” 

In a duty status report dated August 3, 2012, Dr. Friedman determined that appellant was 

totally disabled from employment. 
3

In a statement dated August 15, 2012, appellant asserted that the employing 

establishment adhered to her work restrictions with the exception of sitting, standing and 

walking. She related that she had a chair at the window where she worked but if she sat down 

she would have to get up again to help customers. Appellant maintained that she could not take 

breaks when needed. 

In a statement dated August 15, 2012, Francine Smith, a manager, related that she began 

working at appellant’s location in February 13, 2012 and knew of her work restrictions. She 

stated: 

“[Appellant] is well accommodated in regards to her restrictions. She has a chair 

at her station where she sits between customers. Fellow employees as well as 

members of the management staff lifted any heavy packages and moved any 

equipment for [her]. While it is true that [appellant] was the only sales and 

service associate serving customers at the window on several occasions, not once 

did she come to me and state that she could not serve the customers and needed a 

break outside of her regularly scheduled breaks or lunch. Her restrictions simply 

stated ‘as needed’ which is something that cannot be determined by myself or any 

member of my staff, only by [her]. Accordingly, to [appellant’s] statement, it 

appears [that she] took it upon herself to work without additional breaks after 

determining on her own that she had no choice or that we were too short staffed to 

accommodate her.” 

In an August 17, 2012 electronic mail message, Daniel G. O’Donnell, a supervisor, 

maintained that he had not violated appellant’s work restrictions. He related: 

“Since [appellant] is a window clerk, I ask the other window associates to help 

her lift the heavy parcels she cannot lift due to her restrictions. [She] has always 

taken all the breaks due her on a daily basis which includes [two] 10[-]minute 

breaks and a lunch. [Appellant] keeps a chair at her counter to rest in between 

customers to alleviate the constant standing a window clerk does. At no time has 

[she] ever approached me and state that we were violating her restrictions. At no 

time has [appellant] approached me and [stated that] she needed to take an extra 

break to rest. Also when [she] works on Saturday she always asks if she can take 

a no lunch to get out earlier than scheduled.” 

In an e-mail message dated August 20, 2012, Charles Thomas, with the employing 

establishment, questioned how appellant could work as a retail associate given her restriction to 

sit or stand as needed. He noted that she could always state that she needed to sit. 

In a September 5, 2012 duty status report, Dr. Friedman diagnosed mechanical low back 

pain and opined that appellant was disabled from employment. 

By decision dated October 11, 2012, OWCP found that appellant had not established a 

recurrence of disability beginning July 6, 2012 due to her accepted work injury. It determined 

that she had not established that her condition worsened such that she was unable to perform her 
4

part-time modified employment. OWCP also noted that appellant had undergone 

nonemployment-related right hip surgery. 

In a progress report dated October 16, 2012, Dr. Friedman described appellant’s 

complaints of low back pain radiating into the hips and difficulty standing or walking. He found 

that she was disabled from employment. In an October 16, 2012 duty status report, Dr. Friedman 

diagnosed mechanical low back pain and advised that appellant was totally disabled. On 

October 30, 2012 he stated: 

“[Appellant] has suffered a work-related injury, which resulted in anatomical 

alteration with a lumbar disc protrusion resulting in radicular symptoms. While 

the size of [the] lumbar disc protrusion did improve, [she] at this time continues to 

have intractable mechanical low back complaints. The etiology of [appellant’s] 

complaints is work related and her continuing disability relates to a work injury.” 

In a form received by OWCP on November 7, 2012 appellant requested an oral hearing 

before an OWCP hearing representative. In a letter dated November 27, 2012, she asked that 

various individuals testify regarding her work duties and the fact that she was unable to take a 

break. Appellant related that she brought a chair from home because the one provided by the 

employing establishment was unbalanced. She alleged that management told her she could not 

take a break while there were a lot of customers so she was unable to sit and stand as required by 

her medical restrictions. On certain Saturdays, appellant would not be able to take a break for 

five hours. 

In a progress report dated November 28, 2012, Dr. Friedman noted that appellant was 

experiencing increased pain. He stated, “[Appellant] appears neurologically stable; however, she 

continues to have evidence of mechanical low back pain.” Dr. Friedman recommended a 

functional recovery program and extended his finding that appellant was disabled. In a duty 

status report dated January 9, 2013, he found that she was disabled from employment. 

At the telephonic hearing, held on February 11, 2013, appellant related that in 

January 2012 she began getting shots in her back that helped for a few months. In May 2012, 

she was unable to take breaks because of the shortage of help at the employing establishment and 

the effects of the shot wore off. Appellant’s physician determined that appellant was unable to 

work beginning July 6, 2012 because of her bulging discs. The hearing representative explained 

to her the need to submit rationalized medical evidence supporting that her low back condition 

changed at the time of her alleged recurrence of disability. 

In a report dated February 20, 2013, Dr. Friedman diagnosed status post lumbar disc 

protrusion with regression. He noted that appellant’s disc protrusion had improved but that she 

experienced “progressive mechanical low back complaints related to the progressive 

degenerative changes [and] dysfunction of the disc itself as a result of the work injury that 

caused her disc protrusion.” Dr. Friedman related that appellant did not believe that the 

employing establishment complied with her restrictions and that she was thus unable to perform 

the duties of her employment. 
5

On March 1, 2013 appellant alleged that she provided her own chair at work and often 

worked through her breaks. She could not take a break when they were busy. Appellant did not 

ask Mr. O’Donnell for an extra break as she was not able to take normal breaks. She asked to 

take her lunch at the end of Saturday since her supervisor wanted her to take lunch around the 

morning break time. In another March 1, 2013 statement, appellant noted that Mr. Thomas 

confirmed that the employing establishment could not accommodate her sitting requirement. 

She expressed frustration over having a later break but did not feel that she had to tell every 

supervisor about her complaints or ask for extra breaks. Appellant contended that management 

knew they were violating her restrictions by placing her alone at the window. 

By decision dated April 8, 2013, the hearing representative affirmed the October 11, 2012 

decision. 

On July 17, 2013 appellant, through her attorney, requested reconsideration and 

submitted a June 7, 2013 report from Dr. Friedman, who related that he had treated her 

beginning in March 2008 for a January 2008 employment injury.2

 Dr. Friedman opined that 

diagnostic studies showed “a very significant disc protrusion at L3-4 [and] possibly L4-5 on the 

right.” He noted that appellant’s radiculopathy improved but that she had continuing mechanical 

low back pain and hip symptoms due to degenerative disc disease. Appellant underwent a total 

hip replacement. Dr. Friedman related that her back pain continued and that MRI scan studies 

showed “extensive disc desiccation, bulging, facet arthrosis with resolution of previous disc 

herniation.” He opined that appellant’s condition worsened and that she was disabled due to her 

intractable pain complaints. Dr. Friedman attributed her low back condition to the employment 

incident. 

By decision dated October 24, 2013, OWCP denied modification of its April 8, 2013 

decision. 

On November 18, 2013 appellant, through her attorney, again requested reconsideration. 

In progress reports dated December 18, 2013, Dr. Friedman related that appellant was 

“demonstrating increasingly severe chronic pain behavior.” In a duty status report of the same 

date, he stated that she was disabled from employment. 

By decision dated January 30, 2014, OWCP denied modification of its October 24, 2013 

decision. 

LEGAL PRECEDENT 

Where 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 

establishes that the employee 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 

 2

 In progress reports dated April 9 and June 4, 2013 progress report, Dr. Friedman provided findings on 

examination and opined that appellant remained disabled. In progress reports dated August 21 and October 15, 

2013, he found that she had declining function but was neurologically stable. 
6

disability and to 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

OWCP regulations provide that 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 

had resulted from a previous injury or illness without an intervening injury or new exposure to 

the work environment that caused the illness.4 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 reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed 

his or her established physical limitations.5

ANALYSIS 

OWCP accepted that appellant sustained lumbosacral strain and a herniated disc at L3-4 

as the result of a January 21, 2008 employment injury. Appellant stopped work on 

January 21, 2008. On January 30, 2008 Dr. Garvin found that she could return to work lifting, 

pushing and pulling up to five pounds and with no prolonged standing or walking more than 

tolerated. Appellant returned to a modified position with the employing establishment that 

required standing at the window three to four hours a day as tolerated and sitting and lifting three 

to four hours a day as tolerated. OWCP accepted that she sustained a recurrence of disability on 

November 9, 2009 such that she could only work six hours a day. On July 6, 2012 appellant 

stopped work and filed a notice of recurrence of total disability. 

Appellant alleged that the employing establishment required her to work outside of her 

restrictions. She related that she had a chair at the window, which she provided, but that she 

could not always take breaks because she needed to help customers. Appellant indicated that she 

did not ask for extra breaks and requested lunch at the end of her Saturday shift instead of the 

morning break time. She did not feel that it was necessary to complain to her supervisors as they 

knew that they were violating her restrictions by placing her at the window without help. 

The Board finds that appellant has not established that she sustained a recurrence of total 

disability due to a change in the nature and extent of her limited-duty job requirements. In a 

statement dated August 15, 2012, Ms. Smith related that management had complied with 

appellant’s work restrictions. She advised that employees and management lifted any heavy 

packages. Appellant did work the window alone but did not request extra breaks. Ms. Smith 

noted that appellant appeared to believe that she could not take breaks when busy with 

customers. Mr. O’Donnell asserted that appellant did not complain about any violation of 

 3 Richard A. Neidert, 57 ECAB 474 (2006); Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 

222 (1986). 

4

 20 C.F.R. § 10.5(x). 

5 Id. 
7

restrictions. He noted that she had a chair to rest in between customers and always took 

10-minute breaks twice a day and a lunch each day. On Saturday appellant asked to work 

without lunch so that she could leave earlier.6

 The Board finds that she has not established that 

the employing establishment required her to work outside of her restrictions. 

The Board further finds that appellant has not established that the nature and extent of her 

injury-related condition changed on July 6, 2012 such that she could no longer perform her 

part-time limited-duty assignment. On July 6, 2012 Dr. Friedman found that she could continue 

to work six hours a day with restrictions. In a disability report of the same date, he determined 

that appellant was temporarily totally disabled. Dr. Friedman did not provide any rationale for 

his disability finding or explain the discrepancy between his two reports. Consequently, his 

opinion is insufficient to meet appellant’s burden of proof.7

On August 3, 2012 Dr. Friedman related that appellant had to stand for prolonged periods 

and work without breaks on Saturdays at the employing establishment. He advised that she was 

totally disabled by significant low back pain. Dr. Friedman noted that appellant’s disc protrusion 

had improved but the disc had progressive dysfunction causing mechanical low back pain. He 

did not, however, explain how her condition changed such that she was unable to perform the 

duties of her modified position. Medical conclusions unsupported by rationale are of diminished 

probative value.8

On October 30, 2012 Dr. Friedman related that appellant sustained a lumbar disc 

protrusion causing radiculopathy due to her employment injury. The disc protrusion improved 

but that appellant experienced intractable mechanical low back complaints. Dr. Friedman 

attributed the complaints and disability to her employment injury. He did not, however, provide 

a firm diagnosis of her condition other than to note that appellant had low back pain. Further, 

Dr. Friedman did not explain how the accepted work injury resulted in low back pain sufficient 

to cause disability from employment. Without a firm diagnosis supported by medical rationale, 

the report is of diminished probative value.9 Such rationale is particularly necessary given that 

appellant had other medical conditions, including a hip condition necessitating a total hip 

replacement. 

In a report dated February 20, 2013, Dr. Friedman diagnosed status post lumbar disc 

protrusion with regression. He stated that, while appellant’s disc protrusion had improved, she 

had increasing degeneration and disc dysfunction due to her employment injury. Dr. Friedman 

related that she believed that she could no longer be able to perform her modified employment as 

 6

 In an e-mail Mr. Thomas questioned how appellant could work given her requirement to sit or stand as needed 

was something that only she could determine. He did not, however, find that she had been provided work outside 

her restrictions. 

7 See Albert C. Brown, 52 ECAB 152 (2000). (Medical conclusions unsupported by rationale are of diminished 

probative value and insufficient to establish causal relationship). 

8 Jacquelyn L. Oliver, 48 ECAB 232 (1996). 

9 See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease 

was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship). 
8

management did not comply with her restrictions. He did not, however, provide an independent 

determination of disability but instead discussed appellant’s opinion that she was no longer able 

to work. A physician’s report is of reduced probative value when it is based on a claimant’s 

belief rather than the physician’s independent judgment.10

In a report dated June 7, 2013, Dr. Friedman discussed appellant’s history of a 

January 2008 work injury and the results of diagnostic studies showing a disc protrusion at L3-4 

and possibly L4-5. He found that her radiculopathy improved but that she had degenerative disc 

disease causing mechanical pain in her low back and hip. Dr. Friedman determined that 

appellant was totally disabled due to pain and that the low back condition resulted from her 

employment injury. OWCP, however, did not accept that she sustained degenerative disc disease 

due to the January 21, 2008 work injury. Where appellant claims that, a condition not accepted 

or approved by OWCP was due to her employment injury, she bears the burden of proof to 

establish that the condition is causally related to the employment injury through the submission 

of rationalized medical evidence.11 Dr. Friedman did not provide adequate rationale for his 

opinion that the work injury resulted in degenerative disc disease. Medical conclusions 

unsupported by rationale are of little probative value.12 Appellant did not meet her burden of 

proof. 

The record further contains duty status reports and progress reports dated September 5, 

October 16, 2012 and December 18, 2013.13 Dr. Friedman diagnosed low back pain and found 

that appellant was disabled from employment. He checked “yes” that the history of injury 

corresponded to that provided on the form of appellant injuring her lower back lifting. The 

Board has held, however, that an opinion on causal relationship which consists only of a 

physician checking “yes” to a medical form question on whether the claimant’s condition was 

related to the history given is of little probative value. Without any explanation or rationale for 

the conclusion reached, such report is insufficient to establish causal relationship.14 The record 

further contains progress reports from Dr. Friedman dated July 6, 2012 through December 18, 

2013 finding appellant disabled from employment. As he did not address causation in his 

progress reports, they are insufficient to meet her burden of proof.15

An award of compensation may not be based on surmise, conjecture, speculation or upon 

appellant’s own belief that there is a causal relationship between her claimed condition and her 

employment.16 Appellant must submit a physician’s report in which the physician reviews those 

 10 See Earl David Seale, 49 ECAB 152 (1997). 

11 See JaJa K. Asaramo, 55 ECAB 200, 204 (2004). 

12 See Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001). 

13 In a duty status report dated January 9, 2013, Dr. Friedman found that appellant was unable to work but did not 

provide a diagnosis or causation finding. 

14 Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box “yes” in a form report, without additional 

explanation or rationale, is insufficient to establish causal relationship). 

15 See Conard Hightower, 54 ECAB 796 (2003). 

16 D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001). 
9

factors of employment identified by her as causing her condition and, taking these factors into 

consideration as well as findings upon examination and the medical history, explain how 

employment factors caused or aggravated any diagnosed condition and present medical rationale 

in support of his or her opinion.17 She failed to submit such evidence and therefore failed to 

discharge her burden of proof. 

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 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 July 6, 2012 causally related to her January 21, 2008 employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT January 30, 2014 and October 24, 2013 decisions 

of the Office of Workers’ Compensation Programs are affirmed. 

Issued: September 23, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).