United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.J., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Miami, FL, 

Employer 

__________________________________________ 

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Docket No. 14-1595 

Issued: September 16, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On July 16, 2014 appellant filed a timely appeal from a January 27, 2014 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1

 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. 

ISSUE 

The issue is whether appellant has established a recurrence of disability commencing 

August 15, 2013 causally related to her February 22, 2011 employment injuries. 

 1

 Appellant requested oral argument. By Order dated July 13, 2015, the Board, in its discretion, denied oral 

argument as it determined that the issues on appeal could be adequately addressed in a decision based on a review of 

the case record. 

2

 5 U.S.C. § 8101 et seq.
2

On appeal, appellant contends that she sustained a work-related back injury following her 

return to work at the employing establishment. She states that her job did not comply with her 

restrictions. 

FACTUAL HISTORY 

OWCP accepted that on February 22, 2011 appellant, then a 27-year-old mail handler, 

sustained a back sprain and displacement of lumbar intervertebral disc without myelopathy at 

L5-S1. Appellant was placed on the periodic rolls on August 12, 2011. 

In an effort to determine appellant’s work capacity, and after a conflict in medical 

evidence had been created, appellant was referred to Dr. Richard J. Simon, a Board-certified 

orthopedic surgeon and an impartial medical specialist. In his January 16, 2013 medical report, 

Dr. Simon opined that appellant was unable to return to a full-time mail carrier position, but she 

could work eight hours a day based on the results of a functional capacity evaluation. Appellant 

could occasionally lift up to 40 pounds, lift 30 pounds from floor to waist and waist to shoulder, 

carry up to 40 pounds, push 28 pounds of force, and pull 24 pounds of force. She could 

frequently sit, stand, walk, reach at desk and floor levels, balance, and perform firm/simple 

grasping. Appellant could also occasionally reach at overhead level, stoop, kneel, crouch, stair 

climb, crawl, and perform fine/gross hand manipulation. 

After a period of vocational rehabilitation on July 19, 2013, appellant returned to work in 

a full-time modified-duty mail handler position based on the restrictions set forth by Dr. Simon.3

 

On December 2, 2013 appellant filed a claim (Form CA-7) for compensation for leave 

without pay from August 8 to December 2, 2013. She indicated that she stopped work on 

August 8, 2013 and that her last day of pay was August 15, 2013. 

In support of her recurrence of disability claim, appellant submitted medical reports 

including a report from Dr. Andrew S. Ellowitz, an attending Board-certified orthopedic surgeon. 

In an August 28, 2013 narrative report, Dr. Ellowitz provided a history of the February 22, 2011 

employment injury. He also provided a history of a July 2013 incident when appellant reinjured 

her back as a result of pushing and pulling heavy gates. Following the July 2013 incident, 

Dr. Ellowitz noted that appellant immediately experienced low back pain that radiated into her 

mid-back and sought urgent care medical treatment. Appellant’s legs were buckling at work and 

she was having more pain recently secondary to this event. Dr. Ellowitz noted appellant’s 

medical and social background. He listed findings on physical examination and provided an 

impression of back pain. In a Florida workers’ compensation form dated August 28, 2013, 

Dr. Ellowitz indicated a date of injury as February 21, 2011. He advised that appellant had 

work-related low back pain. Dr. Ellowitz stated that she had a preexisting condition that was 

exacerbated by her current condition. He concluded that appellant could return to her activities 

with restrictions. In an industrial pharmacy management report dated September 24, 2013, 

 3

 In a September 9, 2013 decision, OWCP found that appellant received an overpayment of compensation in the 

amount of $1,095.60 because she received total disability compensation from June 30 to July 27, 2013 after she had 

returned to full-time light-duty work. 
3

Dr. Ellowitz noted that appellant was being treated for a work-related injury/illness. He ordered 

medication to treat her condition. 

By letter dated December 17, 2013, OWCP advised appellant that the evidence submitted 

was insufficient to establish her recurrence claim. It noted that Dr. Ellowitz’s August 28, 2013 

report referred to a new injury and advised her that, if it were related to her employment, she 

would need to file a new injury claim. OWCP requested additional medical evidence to establish 

that her condition had worsened such that she was no longer able to perform her job duties when 

she stopped work on August 8, 2013. 

In an August 28, 2013 industrial pharmacy management report, Dr. Ellowitz ordered 

medication to treat appellant’s condition. In narrative reports dated September 24 and 

October 29, 2013 and January 14, 2014, he noted that appellant had low back problems status 

post two work-related accidents. Dr. Ellowitz provided findings on physical and neurological 

examination and listed impressions of chronic lumbar herniated disc and back pain. In his 

October 29, 2013 report, he advised that appellant was unable to perform her normal job which 

required lifting up to 70 pounds. In Florida workers’ compensation forms dated September 24 

and October 29, 2013 and January 14, 2014, Dr. Ellowitz again listed the date of injury as 

February 21, 2011 and reported that appellant was being treated for a work-related injury/illness. 

He advised that there was no change in her capacity to perform functional activities. 

Dr. Ellowitz concluded that appellant had reached maximum medical improvement on 

January 14, 2014. In a January 14, 2014 prescription, he ordered physical therapy to treat her 

chronic low back pain. 

In a January 27, 2014 decision, OWCP denied appellant’s recurrence claim, finding that 

the medical evidence was insufficient to establish a recurrence of disability commencing 

August 15, 2013. It found that she failed to submit the requested medical evidence establishing a 

material worsening, supported by clinical findings, rendering her disabled from her modified job 

as a result of the accepted employment injuries without intervening factors. 

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 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 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.5 

 4

 20 C.F.R. § 10.5(x). 

5 Id. 
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. As part of 

this burden, the employee must show a change in the nature and extent of the injury-related 

condition or a change in the nature and extent of the limited-duty job requirements.6

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 and why the 

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

recurrence of disability.7

 

ANALYSIS 

OWCP accepted appellant’s claim for back sprain and displacement of lumbar 

intervertebral disc without myelopathy at L5-S1. On July 17, 2013 appellant returned to fulltime modified-duty work at the employing establishment. She claimed a recurrence of disability 

on August 15, 2013 due to her accepted injuries. Appellant does not allege that this disability 

was a result of a change in the nature and extent of her limited-duty job requirements. Her 

burden therefore is to show a change in the nature and extent of her injury-related condition. 

The Board finds that appellant has not submitted sufficient medical opinion evidence to 

support her claimed recurrence of disability. Dr. Ellowitz’s narrative reports and Florida 

workers’ compensation forms document that appellant sustained a lumbar herniated disc and low 

back pain status post two work-related accidents. He provided a history of the February 22, 2011 

employment injuries and a July 2013 incident when appellant reinjured her back as a result of 

pushing and pulling heavy gates at work. Dr. Ellowitz advised that her preexisting condition was 

exacerbated by her employment. He opined that appellant could not perform her normal job 

which required lifting up to 70 pounds. The Board finds that Dr. Ellowitz did not establish that 

appellant’s back conditions and resultant disability as of August 15, 2013 were due to a 

recurrence of the accepted February 22, 2011 employment injuries. Dr. Ellowitz reported a 

history of an intervening July 2013 incident due to pushing and pulling heavy gates, rather than 

the accepted condition of back sprain and displacement of lumbar intervertebral disc without 

myelopathy at L5-S1 which occurred on February 22, 2011. Further, his description of 

appellant’s job duties was inaccurate. Dr. Ellowitz reported that she was required to lift 70 

pounds in her position, whereas the actual duties of the June 21, 2013 modified-job offer 

required that appellant be able to lift up to 40 pounds. It is well established that medical reports 

must be based on a complete and accurate factual and medical background and medical opinions 

based on an incomplete or inaccurate history are of little probative value.8

 

 6 Albert C. Brown, 52 ECAB 152, 154-155 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman, 

38 ECAB 222, 227 (1986). 

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

8 Douglas M. McQuaid, 52 ECAB 382 (2001). 
5

Dr. Ellowitz also failed to adequately distinguish the effects of the July 2013 intervening 

event from the continuing effects of the accepted 2011 condition. This intervening event 

contradicts his finding that the current conditions are the result of a spontaneous change in the 

accepted conditions.9

 Without medical reasoning supported by an adequate factual 

understanding of the case, Dr. Ellowitz’s reports and state workers’ compensation forms are 

insufficient to meet appellant’s burden of proof.10 

Dr. Ellowitz’s remaining reports and prescription notes found that appellant had low back 

pain that required treatment with medication and physical therapy. The Board has held that pain 

is a symptom, rather than a firm medical diagnosis.11 Moreover, Dr. Ellowitz did not provide 

any opinion on whether appellant’s condition and disability for work were causally related to the 

accepted employment injuries. The Board has held that 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.12 For the stated reasons, the Board finds that Dr. Ellowitz’s reports and 

prescriptions are insufficient to establish appellant’s claim. 

Appellant failed to submit sufficiently rationalized medical evidence establishing that her 

back condition and resultant disability commencing August 15, 2013 resulted from the residuals 

of her accepted injuries.13 She has therefore not met her burden of proof.14

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 failed to establish that she sustained a recurrence of 

disability commencing August 15, 2013 causally related to her February 22, 2011 employment 

injuries. 

 9 See Robert W. Meesom, 44 ECAB 834 (1993) (where the Board determined that striking a deer in an automobile 

accident constituted an independent intervening cause which broke the chain of causation with respect to a 

claimant’s prior employment back injury); Anthony S. Wax, 7 ECAB 330 (1954). 

10 C.B., Docket No. 08-1583 (issued December 9, 2008). 

11 C.F., Docket No. 08-1102 (issued October 10, 2008). 

12 See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M. 

Miller, 53 ECAB 697 (2002); Michael E. Smith, 50 ECAB 313 (1999). 

13 Cecelia M. Corley, 56 ECAB 662 (2005). 

14 Tammy L. Medley, 55 ECAB 182 (2003). 
6

ORDER 

IT IS HEREBY ORDERED THAT the January 27, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 16, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board