United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.E., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 16-1480 

Issued: March 22, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 11, 2016 appellant, through counsel, filed a timely appeal from a March 23, 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 to consider the merits of this case. 

 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. 
2

ISSUE 

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

disability on August 24, 2015 causally related to the accepted January 26, 2009 employment 

injury. 

On appeal, counsel contends that appellant has provided sufficient evidence to establish a 

recurrence of disability within 90 days of her return to work. He asserts that OWCP’s decision 

should be reversed and the matter remanded for approval of the recurrence of injury. In the 

alternative, counsel suggests that the factual and medical evidence are sufficient to require 

further development and therefore OWCP’s decision must be vacated and the matter remanded 

for such additional development. 

FACTUAL HISTORY 

On January 26, 2009 appellant, then a 57-year-old lead contact representative, filed a 

traumatic injury claim (Form CA-1) alleging that on that date she tripped ascending stairs and 

injured her right leg, knee, and wrist. She stopped work on the date of the injury. On March 29, 

2009 OWCP accepted appellant’s claim for closed dislocation subluxation at L5. Appellant 

received compensation benefits on the periodic rolls as of July 5, 2009. On June 1, 2011 OWCP 

also accepted her claim for sprain of the lumbar region of the back, closed dislocation lumbar 

vertebra, and aggravation of lumbar degenerative disc at L4-L5. OWCP later accepted 

appellant’s claim for chronic pain syndrome. 

In a medical report dated July 17, 2015, Dr. Laura E. Ross, a Board-certified orthopedic 

surgeon, indicated that appellant had spinal restriction/subluxation at T5, T6, T7, T8, L3, L4, L5, 

and the sacrum; thoracolumbar, lumbosacral and sacral pain; moderate muscle spasms mid 

thoracic, lower thoracic, left lumbar, lumbar, right lumbar, sacral, left buttock and right buttock; 

and that the entire spine had moderately reduced range of motion. She noted that appellant was 

improving because she was reporting less discomfort. Dr. Ross indicated that appellant could 

return to work four hours a day, that she had permanent restrictions including sitting, walking, 

standing, and reaching limited to four hours a day, and pushing, pulling and lifting limited to five 

pounds. Dr. Ross indicated that appellant would have these restrictions for eight weeks, after 

which time she would be able to work an eight-hour workday. 

Appellant returned to work on July 17, 2015 at the employing establishment for four 

hours a day working under the restrictions assigned by Dr. Ross. 

Appellant saw her chiropractor, Dr. Saute K. Dean, on July 21, 2015. Dr. Dean 

continued to diagnose subluxations of T1-3, L3-5, as well as shoulder subluxation. At that time, 

appellant complained of aching, numbness, tightness, throbbing, and tingling discomfort in the 

low back, at a level of 8 on a 1 to 10 scale, with 10 being the most severe. She noted that the 

discomfort increased with movement and prolonged sitting, and decreased with rest, ice, and 

heat. On July 28, 2015 Dr. Dean indicated that appellant rated her discomfort as level 8 at rest 

which may increase to a level 10, and that she was able with much difficulty to perform her 

normal job duties. He assessed her as better and with modest improvement. 
3

On September 1, 2015 appellant filed a recurrence of disability (Form Ca-2A) alleging a 

recurrence of her January 28, 2009 injury as of August 24, 2015. She noted that she had been 

released to limited duty for four hours a day for eight weeks, having returned to work on 

July 27, 2015. Appellant alleged that her back pain, numbness, and tingling from her original 

injury never stopped, that she missed work on August 12, 2015 due to work injury pain, and that 

as she was getting dressed on August 24, 2015 for work when she noticed that her pain was 

worse than usual, but that she went to work and was given heat treatment by the employing 

establishment nurse. 

In a September 4, 2015 report, Dr. Ross found limited range of motion of the left hip with 

tenderness to palpitation on the left lateral aspect, spasms in her lumbar spine with tenderness to 

palpitation, and with no new neurovascular findings bilateral lower extremities. She 

recommended a magnetic resonance imaging (MRI) scan of the left hip, and further consultations 

with specialists. 

In a letter dated September 17, 2015, OWCP indicated that appellant’s claim had 

previously been accepted for sprain of the lumbar region of the back, closed dislocation of the 

lumbar vertebra, degeneration of lumbar or lumbosacral intervertebral disc, and chronic pain 

syndrome. It described for appellant the additional evidence that was necessary to support her 

claim for a recurrence of disability. 

A September 17, 2015 MRI scan report was interpreted by Dr. Scott G. Mattox, a Boardcertified radiologist, as evincing no specific findings to suggest femoral acetabular impingement. 

Appellant submitted notes from her August 24, 2015 hospital visit including notes of 

Dr. Ramrakshah Tiwari, an emergency room physician. The notes indicate that appellant’s pain 

level was 10, but that she ambulated slowly with assistance. The diagnoses were sciatica and 

acute exacerbation of chronic back pain. Appellant was instructed to follow up with her 

physician. 

In a statement dated October 6, 2015, appellant alleged that on August 12, 2015 she 

awoke with increased pain in her lower back that was intolerable, and she called her supervisor 

to report her back pain. She indicated that she visited her chiropractor, who treated her with heat 

and stimulation treatment that temporarily lessened her pain and allowed her to return to work 

until August 24, 2015. Appellant alleged that after August 12, 2015 her condition worsened 

daily even though she was working a light-duty schedule. She alleged that, on August 24, 2015, 

she could no longer tolerate the pain, she went to the nurses’ office at the employing 

establishment where she received treatment, and later that day she went to the emergency room 

for pain treatment. Appellant stated that she called her supervisor the next day and told her that 

she was no longer physically able to continue working. She contended that this was not a new 

occupational disease, but rather a recurrence of the pain she had reported on August 12 and 24, 

2015 related to her accepted work injury. Appellant noted that her accepted injury left her with 

constant low back pain that radiated down to her buttocks and both legs with numbness and 

tingling in both legs. She alleged that she never recovered from her original work injury and had 

received treatment from several doctors. Appellant noted that, although Dr. Ross released her to 

work light-duty employment four hours a day for eight weeks, before the eight weeks were 
4

completed the pain from her original injury elevated to the point where she could no longer 

work. 

In an August 26, 2015 note, Dr. Dean indicated that appellant had been under his care 

since January 26, 2009 for work-related injuries. He noted that appellant had been receiving care 

one to two times per week on a consistent basis to manage her chronic low back pain. Dr. Dean 

opined that appellant suffered an exacerbation of her existing lower back condition which led to 

her going to the emergency room to manage the pain on August 24, 2015. He indicated that 

appellant came to his office on August 26, 2015 for further evaluation and treatment. Dr. Dean 

noted an exacerbation of the injuries for which he had been treating her. 

In an August 31, 2015 report, Dr. Susan E. Rowling, a Board-certified radiologist, 

interpreted x-rays of appellant’s left hip as showing no fracture or misalignment. She noted that 

the left hip joint spaces were preserved without significant degenerative changes, but there was a 

persistent accessory ossification center lateral to the acetabulum. Dr. Rowling also noted a 

transition vertebra partially visualized at the lumbosacral junction, similar to previously. 

In an October 7, 2015 report, Dr. Dean noted that appellant ranked her pain at a level 8 

that may increase to a level 10. He opined that she was unable to perform her normal job duties, 

and was currently unable to work. Dr. Dean noted that appellant was approaching maximum 

medical improvement because she was reporting more discomfort. He did note that she had 

modest improvement as indicated in her subjective findings. 

In an October 8, 2015 note, Dr. Ross indicated that appellant was seen in the emergency 

room on August 24, 2015 for an exacerbation of her previous disc problem of her lower back, 

which was a work-related injury that occurred on January 26, 2009. She opined that appellant 

was unable to work in any capacity due to an acute exacerbation of chronic pain syndrome. 

Dr. Ross also noted that appellant had a sprain of the lumbar region, closed dislocation of lumbar 

vertebra, and with degeneration of her lumbosacral intervertebral disc. 

In an October 14, 2015 note, Dr. Stephen Boyajian, an osteopath specializing in pain 

management, noted that appellant had been under his care dating back to April 2009 for a work 

injury that occurred in January 2009. He noted that he had last evaluated appellant in May 2015 

and that she had undergone treatment that only provided her with temporary relief. Dr. Boyajian 

concluded that appellant had since returned to the care of Dr. Ross for further evaluation and 

treatment. 

By decision dated October 28, 2015, OWCP denied appellant’s claim for a recurrence of 

disability. It determined that the evidence of record did not establish that appellant had a return 

of or increase in her disability due to a change or a material worsening of the accepted 

employment-related condition. 

On November 4, 2015 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. 

Appellant continued to submit multiple reports with regard to her chiropractic 

appointments with Dr. Dean, dated from September 9, 2015 through February 11, 2016. In these 

reports Dr. Dean continued to opine that appellant was unable to work. 
5

In a December 11, 2015 report, Dr. Ross noted that appellant was currently out of work 

and that treatment with Dr. Dean was medically necessary and causally related to the accepted 

employment injury of January 26, 2009. In a January 21, 2016 report, she noted that she had 

been treating appellant for several years for an injury to her low back that occurred on 

January 26, 2009. Dr. Ross noted that appellant’s diagnoses were low back injury in the L4-L5 

lumbar region, closed dislocation of lumbar vertebra, degeneration of lumbar/ lumbosacral 

intervertebral discs, and chronic pain syndrome. She opined that all of these conditions related 

to the original injury of January 26, 2009. Dr. Ross discussed her treatment of appellant. She 

noted that appellant went to the emergency room on August 24, 2015 due to an exacerbation of 

her previous, accepted low back work injury and there had been no new injury diagnosed. 

Dr. Ross opined that appellant was unable to work in any capacity at that time due to the 

exacerbation of her chronic pain syndrome and because she also had a sprain in her lumbar 

region, closed dislocation of the lumbar vertebrae, and degeneration of the lumbosacral 

intervertebral discs. She opined that this was not a new occupational disease, but rather the pain 

from her original work injury never stopped and began to increase from August 12 through 24, 

2015 while she continued to try to work in the light-duty employment position at the employing 

establishment. 

Dr. Ross noted that on August 24, 2015 appellant’s pain became intolerable and she 

required further medical treatment at an emergency room. She opined, as appellant’s treating 

medical provider, that her work-related medical condition worsened to a point where she was 

unable to do the modified work and that the worsening of the condition, without a doubt, was 

related to the initial injury. Dr. Ross noted that appellant had the same physical examination 

after August 24, 2015 as she did prior to August 24, 2015, noting that the examination was 

unchanged and was clearly consistent with her previous work-related injury that had occurred on 

January 26, 2009. She reported that no new findings were noted upon examination. Dr. Ross 

explained that the recurrence of appellant’s injury occurred while she was doing her light work 

on August 12, 2015, and that she had been treated by her chiropractor whose treatment helped 

her to return back to work on August 24, 2015, until the pain reached an intolerant level and she 

went to the hospital. In a January 22, 2016 report, she indicated that appellant continued to have 

low back pain with unchanged neurologic findings in her lower extremities. 

At the hearing held on February 17, 2016, appellant testified that she started work for the 

employing establishment on October 11, 1988. She described her employment and noted a prior 

employment injury that occurred in July 1997. Appellant noted that it had been raining and on 

the way back to her office she slipped on the stairs and fell about 15 stairs. She described her 

treatment, and noted that she was able to go back to full-duty work after this accident. Appellant 

noted that on January 26, 2009 she fell on some stairs entering work and hurt her knee, wrist and 

back. She stated that she returned to work in January 2010, but was unable to return to work full 

time, and ceased working on May 25, 2010. Appellant noted that she was under medical care at 

that time which included injections, therapy, chiropractic treatment, acupuncture, and aqua 

therapy. She returned to work in July 2015, when Dr. Ross agreed to allow her to work part 

time. Appellant noted that her doctor had initially placed restrictions on her commute so she did 

not go back, but that she received a letter from the employing establishment indicating that they 

were going to terminate her if she did not return to work immediately. She noted that for the first 

week of work she was getting trained while sitting and that the sitting exceeded her restrictions. 
6

Appellant noted that she missed work on August 12, 2015 because of back numbness. She also 

alleged that the commute to her job exceeded her restrictions. 

By decision dated March 23, 2016, the hearing representative affirmed the October 28, 

2015 decision. He determined that appellant had not met her burden of proof to establish 

recurrent disability as of August 24, 2015. 

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 had resulted from a 

previous injury or illness without at intervening injury or new exposure to the work environment 

that caused the illness.3

 The term also means an inability to work that takes place when a lightduty 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.4

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

of total disability and to show that he or she cannot perform such limited-duty work.5 To show a 

change in the degree of the work-related injury or condition, the claimant must submit 

rationalized medical evidence documenting such change and explaining how or why the accepted 

injury or condition disabled the claimant from work on and after the date of the alleged 

recurrence of disability.6 

OWCP procedures recognize that if an alleged recurrence occurs less than 90 days after a 

return to light or full duty, the claimant is not required to produce the same evidence as for a 

recurrence claimed long after apparent recovery and return to work. Therefore, in cases where 

recurring disability for work is claimed within 90 days or less from the first return to duty, the 

focus is on disability rather than causal relationship.7

 The attending physician should describe 

 3

 20 C.F.R. § 10.5(x). 

4 Id. 

5 Albert C. Brown, 52 ECAB 152, 154-55 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman, 

38 ECAB 222, 227 (1986). 

6 James H. Botts, 50 ECAB 265 (1999). 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(a) (June 2013). See also 

J.S., Docket No. 16-0922 (issued September 22, 2016). 
7

the duties which the employee cannot perform and the demonstrated objective medical findings 

that form the basis for the renewed disability for work.8

ANALYSIS 

OWCP accepted appellant’s claim for a sprain of the lumbar region of the back, closed 

dislocation of lumbar vertebra, aggravation of lumbar degenerative disc at L4-L5, and chronic 

pain syndrome causally related to appellant’s January 26, 2009 employment-related injury. 

Appellant returned to work at the employing establishment for four hours a day on July 17, 2015. 

She alleged that she suffered a recurrence of her accepted employment injury on 

August 24, 2015. Appellant denies that she suffered a new injury. 

The Board finds that appellant has failed to establish a recurrence of disability. OWCP 

procedures provide if a claim for recurrence of disability is made within 90 days or less 

following the first return to duty, the focus is on disability rather than causal relationship.9

 The 

Board finds that there is no objective rationalized medical evidence establishing recurrence of 

disability on August 24, 2015.10

In support of her recurrence claim, appellant submitted medical reports by Dr. Ross, her 

treating orthopedic surgeon. On July 17, 2015 Dr. Ross released appellant to return to work for 

four hours a day with limitations including pushing, pulling, and lifting limited to five pounds. 

She continued to treat appellant after she released her to return to work. In a January 21, 2016 

report, Dr. Ross indicated that appellant was out of work due to the injuries she sustained as a 

result of the employment incident of January 26, 2009. She noted that these diagnoses included 

low back injury in the L4-L5 lumbar region, closed dislocation of the lumbar vertebrae, and 

degeneration of the lumbosacral intervertebral discs. Dr. Ross opined that this was not a new 

injury, but rather that appellant worked until her pain became intolerable on August 24, 2015 and 

she was treated at the emergency room. She opined that the medical reason for this conclusion 

was that appellant’s examination was unchanged, that she had the same physical examination 

after August 24, 2015 as she did before August 24, 2015, and no new findings were noted. This 

report does not, however, demonstrate a recurrence of disability as Dr. Ross did not provide a 

rationalized medical opinion supporting an increase in disability after August 24, 2015. Dr. Ross 

indicated that appellant could return to work on July 17, 2015. Despite the fact that she opined 

that appellant was totally disabled as of August 24, 2015, she provided no objective evidence of 

worsening symptoms. Furthermore, Dr. Ross noted that appellant had the same physical 

examination findings before August 24, 2015 as she did after. Therefore, her report does not 

show that appellant had an onset of disability that prevented her from performing her limitedduty position.11 Rather, Dr. Ross’ report appears to indicate that there was no change in 

appellant’s level of disability before and after the alleged date of recurrence other than subjective 

complaints of pain. 

 8 D.K., Docket No. 15-665 (issued August 10, 2015). 

9 Supra note 7; see also A.P., Docket No. 14-1409 (issued June 17, 2015). 

10 Supra note 8. 

11 Supra note 9.
8

Appellant received chiropractic treatment from Dr. Dean.12 In a report dated August 26, 

2015, Dr. Dean indicated that appellant had been under his care since January 26, 2009 for workrelated injuries. He opined that she suffered an exacerbation of her existing lower back condition 

which led to her going to the emergency room to manage the pain on August 24, 2015. Dr. Dean 

indicated that appellant came to his office on August 26, 2015 for further evaluation and 

treatment at which time he determined that she suffered an exacerbation of the injuries for which 

he had been treating her. However, his reports also show similar physical findings prior to the 

August 24, 2015 alleged recurrence. For example, in an August 17, 2015 report, Dr. Dean 

indicated that appellant rated her discomfort at a level 8 with rest and that it increased to a level 

10 pain with 10 being the most severe. He noted that appellant was able, with much difficulty, to 

perform her normal job duties. Dr. Dean noted that appellant was physically limited while 

lifting, bending, stooping, walking, prolonged sitting, pulling, pushing, and twisting. In his 

August 26, 2015 report, he noted that appellant had a discomfort level of 10 at rest and was 

unable to perform her normal job duties. By the time of his September 2, 2015 report, Dr. Dean 

noted that appellant’s discomfort level was level 8 at rest which may increase to level 10, and 

that she was currently unable to work. He never explained how appellant’s condition had been 

exacerbated on August 24, 2015 such that she sustained recurrent disability. As Dr. Dean’s 

findings before and after August 24, 2015 are similar, and he referenced no objective findings 

showing an increased level of disability it is found that he failed to provide a rationalized 

explanation as to why appellant could perform her job duties, albeit with difficulty, before 

August 24, 2016, but at the time of his August 26, 2015 examination she was no longer able to 

do so. Dr. Dean appears to base appellant’s inability to work solely on her subjective complaints 

of pain. A complaint of too much pain to work, without more, support does not establish 

disability for work.13

The remaining medical evidence does not provide a rationalized medical opinion 

establishing a recurrence of disability. Dr. Mattox merely interpreted a September 17, 2015 MRI 

scan report as evincing no specific MRI scan findings to suggest femoral acetabular 

impingement, his report does not address disability. Dr. Rowling interpreted x-rays of 

August 31, 2015 as evincing no fracture or misalignment of appellant’s hip, and persistent 

accessory ossification center lateral to the acetabulum, and a transition vertebra partially 

visualized at the lumbosacral junction, similar to previously. Her report also does not address 

disability. The hospital report from August 24, 2015 that was signed by Dr. Tiwari indicates that 

appellant suffered from sciatica and an acute exacerbation of chronic back pain. This report does 

not address disability or explain why there was a recurrence of the initial disability. Dr. Boyajian 

noted that he provided treatment for pain relief, but also did not discuss any recurrence on 

August 24, 2015. These medical reports failed to contain rationalized medical opinion, with 

objective findings, explaining why appellant was unable to work her part-time light-duty job 

 12 Under FECA a chiropractor is considered a “physician” only to the extent that the reimbursable services are 

limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by 

x-ray to exist. See Jay K. Tomokiyo, 51 ECAB 361 (2000). 

13 See K.A., Docket No. 15-0665 (issued August 10, 2015). 
9

beginning August 24, 2015. As such these reports lack probative value and are therefore 

insufficient to establish appellant’s claim.14

Accordingly, appellant has submitted no probative medical opinion evidence to support 

her recurrence claim. The medical evidence of record is unsupported by rationalized medical 

evidence to demonstrate a claimed recurrence of total disability on August 24, 2015. 

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 failed to meet her burden of proof to establish a recurrence 

of disability on August 24, 2015 due to the accepted January 26, 2009 employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated March 23, 2016 is affirmed. 

Issued: March 22, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 14 See supra note 8.