United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 17-0240 

Issued: July 25, 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 November 11, 2016 appellant, through counsel, filed a timely appeal from a 

September 12, 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 commencing March 21, 2015, causally related to a January 14, 2009 employment 

injury. 

FACTUAL HISTORY 

This matter has previously been before the Board.3 The facts and circumstances outlined 

in the Board’s prior decision are incorporated herein by reference, the relevant facts are as 

follows. 

On January 14, 2009, appellant then a 40-year-old mail handler, filed traumatic injury 

claim (Form CA-1) alleging that she injured her right leg and back when a coworker ran a power 

jack into the side of a hand jack which struck her in the leg. She did not stop work. 

Appellant was seen in an emergency room on January 15, 2009 by Dr. George Hobbib, 

Board-certified in emergency medicine, for a right lower leg and low back injury. She had a 

history of low back pain, lumbar degenerative disc disease, and a pinched nerve. Dr. Hobbib 

diagnosed leg contusion and back pain. He released appellant to return to work the next day with 

limited right leg use. 

Appellant was treated by Dr. Lisa Affatato, a Board-certified internist, on February 11, 

2009, who returned appellant to work with restrictions. In a duty status form dated August 20, 

2010, Dr. Affatato diagnosed back pain, right leg and ankle contusion. She indicated that 

appellant could return to work eight hours per day with restrictions. 

On October 8, 2010 the employing establishment offered and appellant accepted a 

modified assignment as a regular mail handler, 8:30 a.m. to 5:00 p.m., subject to the restrictions 

set forth by Dr. Affatato. 

The case was dormant until appellant submitted a May 1, 2012 attending physician’s 

report (Form CA-2) from Dr. Affatato, who noted that appellant was hit on the right leg at work 

on January 14, 2009. She diagnosed lumbar herniated disc by magnetic resonance imaging 

(MRI) scan and noted by checking a box marked “yes” that appellant’s condition was caused or 

aggravated by work activity. On March 21, 2013 appellant was treated for back and leg pain. 

Dr. Affatato noted paralumbar tenderness and diagnosed lumbar disc disease and knee pain. 

On March 29, 2013 appellant filed a claim for a recurrence of disability (Form CA-2) 

alleging that on January 9, 2013 she had a recurrence of disability when she was, sitting and 

standing at work which triggered a bad reaction in her back and legs. She noted developing a 

herniated disc in her back and arthritis in her knee due to her work duties. 

On March 21 2013 Dr. Affatato treated appellant for back and leg pain. Appellant 

reported back pain after sitting for any brief period of time as well as swelling of the legs. She 

 3

 Docket No. 14-1619 (issued January 26, 2014). 
3

ordered right knee x-rays and prescribed medication and physical therapy. Appellant submitted a 

return to work slip from Dr. Affatato on April 4 and May 3, 2013, who indicated that appellant 

was disabled from work due to arthritis of the spine and a right leg injury. 

Dr. Affatato noted in a July 8, 2013 report that appellant’s first MRI scan in March 2009 

revealed degenerative disc disease and a subsequent MRI scan in April 2012 revealed significant 

changes at level L5-S1. She opined that the changes may partly be explained by repeated lifting 

of 30 to 50 pounds over multiple years, but the changes were arthritic in nature and may also be 

related to the aging process. Dr. Affatato noted that it was difficult to determine how much of 

appellant’s symptoms were related to what occurred in 2009 since there were significant gaps 

between visits, diagnostic study recommendations, and treatment. 

On May 7, 2013 OWCP advised that appellant’s claim initially appeared to be a minor 

injury that resulted in minimal or no lost time from work and limited medical expenses had been 

administratively paid. It advised that it was reopening the matter since she had claimed a 

recurrence of disability. OWCP informed appellant that her January 14, 2009 traumatic injury 

claim had been accepted for contusions of the right lower leg and back. 

On May 22, 2013 OWCP advised appellant that a new occupational disease claim was 

administratively created using the Form CA-2a she had filed on March 29, 2013, with a date of 

injury of January 9, 2013. On June 11, 2013 it assigned OWCP File No. xxxxxx808. 

Appellant subsequently provided an October 22, 2012 lumbar spine MRI scan which 

showed minimal grade retrolisthesis of L5 on S1 on a degenerative basis and small disc 

herniations at L4-5 and L5-S1. 

In a decision dated July 12, 2013, OWCP denied appellant’s occupational disease claim 

in OWCP File No. xxxxxx808 because she failed to establish that her medical condition was 

causally related to work events. On August 8, 2013 appellant requested an oral hearing which 

was held before an OWCP hearing representative on January 23, 2014. 

In an October 2, 2013 return to work slip, Dr. Affatato returned appellant to work-light 

duty on October 5, 2013 with restrictions of sitting limited to 30 minutes, no lifting, standing 

limited to 20 minutes, and 15 to 20 minutes of walking. In an undated report, she noted that as a 

result of the January 2009 work accident appellant sustained leg and back pain. Dr. Affatato 

advised that appellant’s back pain started in 2002 and her leg pain began after the 2009 accident. 

On February 4, 2014 she opined that the January 2009 injury resulted in ongoing weakness, right 

leg pain with presumed nerve injury based on appellant’s radicular symptoms, right ankle 

tenosynovitis, and chronic pain and swelling. 

On January 27 and 28, 2014 appellant was treated by Dr. Robert Rajczy, a podiatrist, for 

pain on the inside of her foot and ankle. She reported having a 2009 injury at work where she 

was hit with a power jack and was treated for back and leg pain. Dr. Rajczy diagnosed 

tendinitis, nerve entrapment of the foot, and limb pain. He noted that right foot and ankle x-rays 

revealed no arthritic or degenerative changes and no fractures or dislocations. Dr. Rajczy noted 

evidence of pes planus foot type and dispensed an ankle brace. 
4

In a March 24, 2014 decision, an OWCP hearing representative affirmed the July 12, 

2013 decision, which denied appellant’s occupational disease claim. She also instructed OWCP 

to administratively combine File Nos. xxxxxx313 and xxxxxx808 and to develop appellant’s 

claim for a recurrence of disability. On April 2, 2014 OWCP administratively combined the two 

claims. On August 26, 2014 appellant appealed the March 24, 2014 decision to the Board.4

 The 

Board affirmed the March 24, 2014 decision by decision dated August 26, 2014. 

Appellant subsequently submitted reports from Dr. Eric Ratner, a Board-certified 

anesthesiologist, dated July 2 and 9, August 6, and September 10, 2013, in which he 

administered bilateral L3-4, L4-5, and L5-S1 intra articular facet joint injections. Dr. Ratner 

diagnosed bilateral lumbar facet disease causing bilateral axial back pain and bilateral L5-S1 

radiculitis. In his July 2, 2013 report, he noted that appellant presented with low back and lower 

extremity pain. Dr. Ratner indicated that she injured her low back in 2008 and 2009 and was 

diagnosed with a herniated disc in 2009. He noted that a lumbar MRI scan in 2009 revealed a 

disc herniation at L5-S1 and a subsequent MRI scan in October 2012 showed disc herniation at 

L4-5 and L5-S1 with facet inflammation from L3 to S1 bilaterally. Dr. Ratner diagnosed lumbar 

facet inflammation from L3-S1 bilaterally and displaced disc at L4-5 and L5-S1 causing 

discogenic and radiculitis. In July 30 to September 24, 2013 reports, he noted that the bilateral 

lumbar facet injections provided 80 percent pain relief for a brief time. On October 7, 2014 and 

January 13, 2015 Dr. Ratner noted that appellant underwent L5-S1 transforaminal epidural 

injections for leg pain with some relief. 

On March 24, 2015 appellant filed a claim for a recurrence of disability (Form CA-2a) 

alleging a recurrence of disability for which she stopped work on March 21, 2015. The 

employing establishment advised that she worked limited duty after the original injury. 

Appellant submitted a March 24, 2015 note from Dr. Ratner who reported providing right L5-S1 

transforaminal and caudal epidural steroid injections with good relief of pain. 

On April 16, 2015 OWCP advised appellant of the type of evidence needed to establish 

her recurrence claim. It particularly requested that she submit a physician’s reasoned opinion 

addressing the relationship of her claimed recurrent condition and her original injury, along with 

a description of her current symptoms, recent diagnostic studies, a current diagnosis description 

of work duties she was unable to perform on the date of recurrence, and a recommended course 

of treatment. 

Appellant subsequently submitted a March 29, 2015 report from Dr. Ratner who 

diagnosed degenerative disc disease and radiculopathy. Dr. Ratner noted that on March 10, 2015 

she underwent right L5-S1 transforaminal and caudal epidural steroid injections with good pain 

relief. Appellant reported that her condition worsened with prolonged sitting and walking. 

Dr. Ratner noted no changes in her physical examination. Also submitted was a March 4, 2009 

lumbar spine x-ray which revealed a small left paracentral disc herniation at L5-S1. 

In a decision dated June 29, 2015, OWCP denied appellant’s claim for a recurrence of 

disability commencing March 21, 2015. 

 4 Id. 
5

Appellant subsequently submitted a July 16, 2015 report from Dr. Ratner who treated her 

for a displaced disc causing lower back pain and weakness. Dr. Ratner recommended a right L4 

and L5 transforaminal injection and a caudal epidural steroid injection. He further indicated that 

he would refer appellant for a functional capacity evaluation and therapy. 

On August 14, 2015 appellant requested reconsideration. She submitted a March 20, 

2015 e-mail from an employing establishment manager, E.A., to appellant’s supervisor, R.C., 

noting that appellant’s January 14, 2009 injury was the only claim open for medical benefits. 

E.A. indicated that if appellant claimed limitations then she must provide a medical note with her 

limitations as well as a request for light duty from a manager. 

Appellant submitted a July 6, 2015 appeal from a May 19, 2015 decision from a state 

unemployment compensation review board denying her claim for unemployment benefits. She 

asserted that she worked as a limited-duty mail processor since the 2009 work injury until 

March 21, 2015 when R.C. informed her that her compensation claim was closed. Appellant 

contended that her 2009 claim was still open and her restrictions were still in place. 

Appellant filed an Equal Employment Opportunity (EEO) complaint on August 5, 2015. 

On June 16, 2015 E.A. responded to the EEO complaint and indicated that she had only one 

claim that was open which occurred on January 14, 2009 and was accepted for medical benefits 

for a lower leg and back injury. E.A. noted that appellant had no limitations and that there was 

no duty status report (Form CA-17) in the record validating her restrictions. She advised that 

appellant must submit medical documentation, listing her restrictions, along with a letter to the 

plant manager requesting light duty. R.C. noted that, on June 17, 2015, several employees, 

including appellant, whose claims were no longer open were requested to update their workers’ 

compensation paperwork or request light duty. 

In a decision dated November 12, 2015, OWCP denied modification of the June 29, 2015 

decision. 

On June 14, 2016 appellant, through counsel, requested reconsideration. She submitted 

additional evidence and asserted that the employing establishment did not have a limited-duty 

job for her as the limited-duty position was withdrawn. 

Appellant submitted May 12, 2015 transcript excerpts from testimony before an 

unemployment compensation review board. R.C. testified that appellant’s last day of 

employment was March 21, 2015 because her workers’ compensation claim was closed. He 

indicated that on March 21, 2015 he informed her that her claim was closed and requested that 

she provide updated medical evidence which demonstrated her claim was open or request light 

duty through the plant manager. R.C. indicated that appellant did not request light duty from the 

plant manager and did not provide medical information to OWCP. Appellant submitted a 

portion of an August 19, 2015 decision from the Pennsylvania Unemployment Compensation 

Board of Review which determined the employing establishment failed to offer her a limitedduty position, although the employing establishment was aware or should have been aware that 

she had an open claim since 2009 due to work-related injuries. 
6

Appellant provided a March 31, 2016 report in which Dr. Ratner noted providing a right 

L4-5 transforaminal epidural steroid injection. Dr. Ratner noted that she experienced myofascial 

pain superimposed and secondary from the underlying disc and facet pathology which was 

treated with compounded pain cream. In a follow-up assessment note dated March 31, 2016, he 

diagnosed degenerative disc disease and radiculopathy. Dr. Ratner noted that on February 27, 

2016 appellant had right L4-5 transforaminal and caudal epidural steroid injections with good 

relief of pain. Appellant reported that her condition worsened with prolonged standing and 

walking. Dr. Ratner noted no changes in her physical examination. In reports dated 

December 30, 2014, March 10, June 27, and October 31, 2015, and February 27 and July 30, 

2016, he performed bilateral L3-4, L4-5, L5-S1 intra articular facet joint injections. Dr. Ratner 

diagnosed bilateral L4-5, L5-S1 radiculitis due to degenerative disc disease and displaced discs. 

In a decision dated September 12, 2016, OWCP denied modification of its 

November 12, 2015 decision. 

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.5

 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.6 

OWCP procedures provide: 

“It the employing [establishment] has withdrawn a limited[-]duty assignment 

made specifically to accommodate the claimant’s condition due to the workrelated injury, and the withdrawal did not occur for cause, RIF, or closure of the 

facility, the CE [claims examiner] need only establish continuing injury-related 

disability for regular duty to accept the recurrence and begin payment of 

compensation benefits. 

“To do so, the CE will need to ensure that the file contains an accurate description 

of the nature and extent of injury-related disability. It should be clear from the 

medical evidence of record that the claimant continues to suffer residuals of work 

injury that are disabling. If the evidence is insufficient, the CE will need to 

request this information.”7

 

 5 J.F., 58 ECAB 124 (2006). 

6

 20 C.F.R. § 10.5(x). See also Richard A. Neidert, 57 ECAB 474 (2006). 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013). 
7

ANALYSIS 

OWCP accepted that appellant sustained contusions of the right lower leg and back. 

Appellant returned to a light-duty job and continued to work until March 21, 2015 when she 

stopped work. On March 24, 2015 she filed a claim for a recurrence of disability, commencing 

March 21, 2015. The Board finds that the medical record lacks a well-reasoned narrative from 

appellant’s physicians relating appellant’s claimed recurrent disability to her accepted 

employment injury. 

Appellant submitted multiple reports from Dr. Ratner who provided treatment including 

epidural steroid injections in her lumber spine. Dr. Ratner’s diagnoses included degenerative 

disc disease, myofascial pain, and radiculopathy. He related that appellant’s condition worsened 

with prolonged sitting and walking. However, Dr. Ratner did not specifically address whether 

she had a recurrence of disability on or about March 21, 2015 causally related to the accepted 

employment back and right lower leg contusions. He also did not explain how degenerative disc 

disease, radiculopathy, displaced disc was causally related to the accepted conditions of 

contusion of the back and right lower leg.8 

Reports from Dr. Affatato dated July 8, 2013 and February 4, 2014 and Dr. Rajczy dated 

January 27 and 28, 2014 do not establish the claimed recurrent condition since they predate the 

time of the claimed recurrence on or about March 21, 2015 and thus, do not address the relevant 

time period. 

Other medical reports submitted by appellant, including reports of diagnostic testing, 

failed to specifically address whether she sustained a recurrence of disability on or about 

March 21, 2015 causally related to the January 14, 2009 work injury, nor did they note a 

particular change in the nature of appellant’s physical condition, arising from the employment 

injury that prevented her from performing her light-duty position. Therefore, the Board finds 

that appellant has not met her burden of proof to establish disabling employment-related 

residuals. 

Appellant asserted that on March 21, 2015 the employing establishment withdrew her 

limited-duty position. She contends that on March 21, 2015, R.C. incorrectly determined that 

her claim was closed and he did not consider her 2009 work injury which was open for medical 

benefits. However, the Board finds that appellant has not submitted sufficient medical evidence 

to establish work-related disability, on or about March 21, 2015, causally related to her 

January 14, 2009 work injury. The record indicates that OWCP and the employing 

establishment sought updated medical evidence to support the need for continuing restrictions 

due to the accepted work injury. It only stopped providing light duty when it did not receive any 

updated medical evidence supporting a continuing need for light duty. The record does not 

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

approved by OWCP was due to an employment injury, she bears the burden of proof to establish that the condition 

is causally related to the employment injury). 
8

contain current medical records establishing ongoing restrictions as a result of appellant’s work 

injury.9 

Appellant did not otherwise submit medical evidence showing that she sustained a 

recurrence of disability beginning on or about March 21, 2015 causally related to her January 14, 

2009 work injury.10 

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 met her burden of proof to establish that she 

sustained a recurrence of disability causally related to her accepted condition. 

 9 See E.L., Docket No. 10-0196 (issued October 4, 2010) (the record contained no bridging medical evidence to 

establish that appellant’s continuing need for light duty was necessitated by the accepted condition and not due to 

other diagnosed conditions). 

10 Appellant submitted a portion of a Pennsylvania, unemployment compensation review board decision. 

However, the Board has held that the determination of an employee’s rights or remedies under other statutory 

authority does not establish entitlement to benefits under FECA. See Beverly R. Jones, 55 ECAB 411 (2004). 
9

ORDER 

IT IS HEREBY ORDERED THAT the September 12, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 25, 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