United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.C., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS CANTEEN SERVICE, 

Battle Creek, MI, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1143 

Issued: February 13, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 May 10, 2016 appellant, through counsel, filed a timely appeal from an April 1, 2016 

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.3

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 

3

 Appellant submitted additional evidence to OWCP after its April 1, 2016 decision was issued. The Board’s 

jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore, 

the Board lacks jurisdiction to review this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1). 
2

ISSUE 

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

disability commencing March 20, 2015 causally related to her accepted July 7, 1998 employment 

injury. 

On appeal counsel asserts that a new injury constitutes a change in appellant’s medical 

status. 

FACTUAL HISTORY 

On July 10, 1998 appellant, a 31-year-old food service worker, filed a traumatic injury 

claim (Form CA-1), alleging an injury on July 7, 1998 as a result of falling on a wet floor at 

work. OWCP accepted the claim for a cervical strain, post-traumatic headache, left arm 

contusion, and lumbar sprain and placed her on the periodic compensation rolls. Appellant 

returned to full duty on July 20, 1998. She filed a claim for a recurrence (Form CA-2a) in 2002 

due to lifting, bending, and reaching at work, which OWCP initially adjudicated as a new injury 

under File No. xxxxxx132. OWCP later accepted it as a recurrence and administratively 

combined it with the current claim in 2004, with the current claim, File No. xxxxxx966 serving 

as the master claim file. 

OWCP referred appellant, along with a statement of accepted facts, and the medical 

evidence of record to Dr. Robert Franklin Draper, Jr., a Board-certified orthopedic surgeon, for a 

second opinion evaluation to determine the nature and extent of her employment-related 

conditions. In his December 7, 2012 report, Dr. Draper found that she had reached maximum 

medical improvement in the early 2000’s and her employment-related conditions had resolved. 

He explained that strain injuries generally resolve in approximately two or four months after the 

accident and do not last years. Dr. Draper opined that appellant was capable of working full time 

as a food service worker with the following restrictions: lifting no more than 50 pounds 

occasionally and 25 pounds frequently. 

OWCP subsequently referred appellant to vocational rehabilitation services and the 

employing establishment offered her a full-time, limited-duty position as a food service worker 

with the following medical restrictions, as provided by Dr. Draper: lifting no more than 50 

pounds occasionally and 25 pounds frequently. Appellant accepted the position and returned to 

light-duty work on March 11, 2013. 

By decision dated August 9, 2013, OWCP reduced appellant’s wage-loss compensation 

benefits to zero based on its finding that her actual earnings as a food service worker, effective 

March 11, 2013, fairly and reasonably represented her wage-earning capacity.4

 Appellant 

requested reconsideration on September 9, 2013. By decision dated December 6, 2013, OWCP 

denied her request for reconsideration of the merits, finding that she had not submitted relevant 

 4

 Appellant also filed claims for wage-loss compensation (Forms CA-7) for the periods June 3 to July 12, 2013 

and July 15 to 26, 2013. By decision dated April 11, 2014, OWCP denied the claims because she had returned to 

work on March 11, 2013 and the evidence she submitted was insufficient to establish disability for the periods 

claimed. 
3

and pertinent new evidence or show that OWCP erroneously applied or interpreted a point of law 

not previously considered by OWCP. 

On November 12, 2013 appellant filed a recurrence claim (Form CA-2a) alleging that on 

February 12, 2013 she sustained a recurrence of her July 7, 1998 work injury. By decision dated 

June 12, 2014, OWCP denied the November 12, 2013 recurrence claim finding that the claimed 

recurrence could not have occurred on February 12, 2013 as she was not on work status on that 

date. Appellant requested reconsideration on October 7, 2014. In a December 15, 2014 

decision, OWCP denied modification of its prior decision. 

On March 23, 2015 appellant filed a recurrence claim (Form CA-2a) alleging that on 

March 20, 2015 she sustained a recurrence of disability causally related to her July 7, 1998 

employment injury. She asserted that her accepted conditions were exacerbated due to cooking, 

preparing food, lifting a fry basket with both hands, cooking on a grill, serving, getting supplies 

for cooking, and cleaning at work. 

In an April 2, 2015 letter, OWCP advised appellant of the deficiencies of her recurrence 

claim. It requested additional evidence in support of the claim and afforded her 30 days to 

respond to its inquiries. 

By decision dated May 4, 2015, OWCP denied appellant’s March 23, 2015 recurrence 

claim as she had not submitted evidence to establish that she was disabled due to a material 

change or worsening of her accepted conditions. 

On May 28, 2015 counsel requested an oral hearing with a representative of OWCP 

Branch of Hearings and Review. 

Appellant subsequently submitted a position description, an x-ray of her right ankle dated 

April 1, 2015, and a record from Howard University Hospital dated April 1, 2015 indicating that 

she was admitted for lower back pain. 

An April 1, 2015 x-ray of the lumbar spine demonstrated no fracture or spondylolisthesis. 

A July 10, 2015 magnetic resonance imaging scan of the lumbar spine revealed facet arthropathy 

in the mid-to-lower lumbar spine and no central canal or neuroforaminal compromise. 

In a June 5, 2014 disability certificate Dr. Janaki Kalyanam, a Board-certified physiatrist, 

diagnosed cervical and lumbar disc herniation with neck pain, back pain, and paresthesias. She 

noted that appellant’s symptoms were aggravated when her work restrictions were not followed 

strictly. Dr. Kalyanam also noted that appellant had worked without an assistant, repetitively 

walked from the kitchen to the steam line, and rotated in areas other than the steam line causing 

her condition to be exacerbated. Appellant was restricted from lifting more than five pounds at 

work. 

On November 3, 2015 Dr. Beverly Whittenberg, a Board-certified physiatrist, diagnosed 

low back pain secondary to degenerative disc and joint disease and noted that prolonged standing 

was likely to worsen appellant’s low back pain. She advised appellant to adjust her employment 

duties to allow for frequent transitions from sitting to standing. 
4

In a disability certificate dated September 8, 2015 an unidentifiable healthcare provider 

diagnosed cervical and lumbar disc herniation with neck and back pain, carpal tunnel syndrome, 

and trigger finger. The provider opined that appellant was totally incapacitated, but had 

sufficiently recovered to be able to return to light-duty employment on September 14, 2015 with 

restrictions of lifting less than five pounds and reduced frequency of repetitive hand movements. 

A telephonic oral hearing was held before an OWCP hearing representative on 

February 9, 2016. Appellant provided testimony and the hearing representative held the case 

record open for 30 days for the submission of additional evidence. No additional evidence was 

received. 

By decision dated April 1, 2016, OWCP’s hearing representative denied appellant’s 

March 23, 2015 recurrence claim, finding that the medical evidence of record was insufficient to 

establish that she sustained a recurrence of her disability commencing March 20, 2015 causally 

related to her accepted July 7, 1998 employment injury. 

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 has resulted from a previous 

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

caused the illness.5 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.6

When an employee who is disabled from the job he or she had 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 to show that she cannot perform such limited-duty work. As 

part of this burden, the employee must show a change in the nature and extent of the injuryrelated condition or a change in the nature and extent of the limited-duty job requirements.7

 This 

burden includes the necessity of furnishing evidence from a qualified physician who concludes, 

on the basis of a complete and accurate factual and medical history, that the disabling condition 

is causally related to the employment injury. The medical evidence must demonstrate that the 

claimed recurrence was caused, precipitated, accelerated, or aggravated by the accepted injury.8

 5

 20 C.F.R. § 10.5(x). See T.S., Docket No. 09-1256 (issued April 15, 2010). 

6 Id.

7 See A.M., Docket No. 09-1895 (issued April 23, 2010). 

8 See L.F., Docket No. 14-1817 (issued February 2, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Causal Relationship, Chapter 2.805.2 (January 2013). 
5

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.9 The opinion of the 

physician must be based on a complete factual and medical background of the employee, must be 

one of reasonable medical certainty, and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the employee.10

ANALYSIS 

OWCP accepted that appellant sustained a cervical strain, post-traumatic headache, left 

arm contusion, and lumbar sprain on July 7, 1998 in the performance of duty. The record 

establishes that appellant first returned to full duty on July 20, 1998 and OWCP later accepted a 

recurrence of total disability in 2002. OWCP referred her to vocational rehabilitation services 

and thereafter she accepted a full-time, limited-duty position as a food service worker with 

medical restrictions, based on the December 7, 2012 second opinion report from Dr. Draper of 

lifting no more than 50 pounds occasionally and 25 pounds frequently. Appellant returned to 

light-duty work on March 11, 2013. 

On March 23, 2015 appellant filed a recurrence claim alleging that on March 20, 2015 

she sustained a recurrence of her July 7, 1998 employment injury. She asserted that her accepted 

conditions were exacerbated due to cooking, preparing food, lifting a fry basket with both hands, 

cooking on a grill, serving, getting supplies for cooking, and cleaning at work. Appellant has the 

burden of proof to establish that she was totally disabled due to a change in her job duties such 

that she was unable to perform her light-duty work. 

Appellant alleged that her recurrence of total disability was caused by an inability to 

perform her light-duty job requirements. However, she failed to submit sufficient medical 

evidence to establish that her assigned duties had changed such that she was not medically able 

to perform them. Appellant did not submit adequate medical evidence to support that her 

assigned duties exceeded her medical limitations or that she otherwise had a spontaneous change 

in her accepted condition in the present claim. On June 5, 2014 Dr. Kalyanam noted that 

appellant’s symptoms were aggravated when her work restrictions were not strictly followed and 

also noted that she had worked without an assistant, repetitively walked from the kitchen to the 

steam line, and rotated in areas other than the steam line, which caused her condition to be 

exacerbated. However, she failed to provide a rationalized medical opinion explaining how 

appellant’s assigned duties exceeded her physical limitations or caused or aggravated her 

accepted medical conditions. The Board therefore finds that the report of Dr. Kalyanam is 

insufficient to establish that appellant’s light-duty job requirements changed, such that the job 

requirements were no longer within the restrictions provided by Dr. Draper and she was unable 

to perform her position.11

 9 See I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007). 

10 See I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 

11 See J.F., 58 ECAB 124 (2006); see also Terry R. Hedman, 38 ECAB 222 (1986). 
6

In a November 3, 2015 report, Dr. Whittenberg diagnosed low back pain secondary to 

degenerative disc and joint disease, opined that prolonged standing was likely to worsen 

appellant’s low back pain, and advised appellant to adjust her duties to allow for frequent 

transitions from sit to stand. The Board, however, finds that she failed to provide sufficient 

medical rationale explaining how appellant’s symptoms beginning on March 20, 2015 were 

causally related to the July 7, 1998 work injury, without an intervening injury or new exposure. 

Appellant submitted a disability certificate dated September 8, 2015 in support of her 

claim. However, this report is from a healthcare provider whose identity cannot be discerned 

from the record. Because it cannot be determined whether this record is from a physician as 

defined under 5 U.S.C. § 8101(2), it does not constitute competent medical evidence, and lacks 

probative value.12

The diagnostic medical reports of record of are of limited probative medical value as they 

do not specifically address whether appellant’s disability beginning March 20, 2015 was 

attributable to her accepted work injury.13

On appeal, counsel asserts that a new injury constitutes a change in appellant’s medical 

status. As noted above, 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 has resulted 

from a previous injury or illness without an intervening injury or new exposure to the work 

environment that caused the illness.14 Appellant filed a claim for a recurrence and OWCP 

properly adjudicated the claim as a recurrence of total disability. The evidence submitted lacks 

adequate rationale to establish a causal connection between the alleged recurrence of her medical 

condition and the accepted employment injury.15 

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 her disability commencing March 20, 2015 causally related to her accepted July 7, 1998 

employment injury. 

 12 R.M., 59 ECAB 690, 693 (2008). See C.B., Docket No. 09-2027 (issued May 12, 2010) (a medical report may 

not be considered as probative medical evidence if there is no indication that the person completing the report 

qualifies as a physician as defined in 5 U.S.C. § 8101(2) and reports lacking proper identification do not constitute 

probative medical evidence). 

13 See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical 

evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative 

value on the issue of causal relationship). 

14 See supra note 5. 

15 See J.F., supra note 11. 
7

ORDER 

IT IS HEREBY ORDERED THAT the April 1, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 13, 2017 

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