United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.H., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

FACILITIES, Pearl City, HI, Employer 

__________________________________________ 

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Docket No. 16-1824 

Issued: June 2, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 15, 2016 appellant filed a timely appeal from a March 31, 2016 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). 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 established a recurrence of disability commencing July 10, 

2015 due to the accepted September 2, 2014 employment injury. 

FACTUAL HISTORY 

On September 9, 2014 appellant, then a 40-year-old waste water treatment plant operator, 

filed a traumatic injury claim (Form CA-1) alleging that he felt sharp pain in his lower back on 

September 2, 2014 while moving a metal locker onto a truck. On November 4, 2014 OWCP 

 1

 5 U.S.C. § 8101 et seq. 
2

accepted his claim for lumbar sprain. Appellant stopped work on September 2, 2014, but 

returned to limited duty with restrictions on November 12, 2014. 

On December 29, 2014 appellant filed claims for compensation CA-7 forms for 

intermittent leave without pay for November 21, 2014, from November 24 through 

November 26, 2014, on November 28, 2014, from December 1 through December 5, 2014, and 

from December 8, 2014 through 9, 2014. He submitted a note dated December 8, 2014 from 

Dr. Daniel W. Wu, a Board-certified internist, in which he stated that appellant was under his 

professional care and was unable to perform his duties from November 25 through 

December 9, 2014. 

By letter dated January 9, 2015, OWCP notified appellant that, although he had filed 

claims for compensation, it believed that the case would more appropriately be handled as a 

recurrence of disability, as it appeared that disability was due to a material change or worsening 

of the accepted work condition. OWCP advised appellant that he had not submitted sufficient 

evidence to establish a recurrence of disability commencing November 21, 2014. It noted that 

appellant had returned to work on November 18, 2014 in a full-time light-duty capacity, and 

continued working until November 21, 2014 when he stopped work. OWCP requested that 

appellant submit a narrative medical report from his physician, and afforded appellant 30 days to 

submit the requested information. 

On January 30, 2015 appellant filed additional claims for compensation (Form CA-7) for 

intermittent leave without pay due to physical therapy on January 8, 12, 13, 15, and 23, 2015 and 

for leave without pay due to visits to a physician on January 2 and 16, 2015. For each of these 

dates, appellant claimed eight hours of compensation. 

By note dated January 2, 2015, Dr. Craig stated that appellant could return to work on 

that date with restrictions of no lifting, pulling, bending, climbing, squatting, kneeling, or use of 

tools. 

By letter dated February 6, 2015, OWCP informed appellant that it was only able to 

medically verify the claimed dates of January 2, 8, and 12, 2015. It further noted that for these 

dates, appellant was entitled only to four hours of compensation for each medical appointment. 

OWCP declined to pay compensation for the rest of the dates claimed due to lack of medical 

evidence. It afforded appellant 30 days in which to submit medical evidence in support of his 

claims. 

Appellant returned to full-time limited duty on December 9, 2014, but continued to claim 

wage-loss benefits for intermittent medical appointments. 

 By decision dated May 15, 2015, OWCP denied appellant’s claimed intermittent periods 

of disability (recurrence) for the period November 21 through December 9, 2014 because the 

medical evidence was insufficient to establish disability due to the accepted lumbar sprain. 

On July 31, 2015 appellant filed additional claims for compensation (Form CA-7) for 

eight hours of intermittent leave without pay on July 10, 2015 due to being under his physician’s 

care, and for temporary total disability from July 12 through 25, 2015. 
3

A report from Dr. Craig, dated July 6, 2015, released appellant to work on July 7, 2015 

with limitations of no bending, no lifting of over 20 pounds, and no sitting longer than 30 

minutes at a given time. 

In notes dated July 10 and 20, 2015, however, Dr. Craig found appellant totally disabled 

and unable to return to gainful employment. By an undated letter, received on July 28, 2015, 

Dr. Craig noted that appellant had been put on temporary disability until further notice. He 

stated that, upon returning to work, appellant’s therapy sessions had stopped. Dr. Craig noted 

that appellant complained of his pain levels worsening. He recommended that appellant return to 

massage and physical therapy, and that he could return to work with limitations after a period of 

two through four months. 

By letter dated August 7, 2015, OWCP informed appellant that he had submitted 

insufficient evidence to establish a recurrence of disability on July 10, 2015. It noted that 

Dr. Craig’s recommendation that appellant was temporarily totally disabled was based upon 

complaints of pain, and that such complaints were not sufficient in themselves to constitute 

objective evidence of disability. OWCP provided a questionnaire for appellant to complete and 

afforded appellant 30 days to submit additional evidence. 

On August 12, 2015 OWCP scheduled an appointment with a diagnostic second opinion 

physician for a magnetic resonance imaging (MRI) scan and an electromyogram/nerve 

conduction study (EMG/NCV) of his lumbar spine. By letter dated August 26, 2015, it was 

advised that appellant failed to undergo the MRI scan because he was too claustrophobic and 

unwilling to be sedated. Attached to the letter was a June 23, 2015 report from Dr. Richard Y. 

Kimura, a Board-certified orthopedic surgeon. Dr. Kimura diagnosed appellant with lumbar 

radiculopathy. He stated that the objective evidence to support disability was the weakness of 

the right big toe and decreased sensation on the right big toe indicating the lumbar radiculopathy. 

Dr. Kimura further noted that appellant was in need of further physical therapy over the next 

three months. In attached work restrictions dated August 26, 2015, Dr. Kimura stated that 

appellant could return to work on light duty, with restrictions of: no twisting, bending, stopping, 

pushing, pulling, squatting, kneeling, or climbing; no lifting over 20 pounds; and no sitting over 

35 minutes without getting up to stretch. 

By decision dated September 11, 2015, OWCP denied appellant’s claim for recurrence 

beginning July 10, 2015. It noted that, while Dr. Kimura had diagnosed appellant with 

“‘probable’ lumbar radiculopathy,” there was no diagnostic testing used to establish this 

diagnosis. OWCP further noted that there was no objective evidence of record to indicate that 

appellant was temporarily totally disabled or that he was unable to work with restrictions after 

July 10, 2015. 

On October 20, 2015 Dr. Thomas Williams, a diagnostic radiologist, examined the results 

of an MRI scan of appellant’s lumbar spine. He noted impressions of mild degenerative changes 

of the lumbar spine, including a focal right central disc protrusion at T12-L1 causing narrowing 

of the right lateral recess. 

By letter dated November 30, 2015, Dr. Craig stated that appellant sustained his injury 

“pushing the back end of an extremely heavy metal locker while one coworker carried left front 
4

and another held the right front/middle onto the bed of the truck that became suddenly lodged, 

creating acute inertia resulting in significant damage of his lower back.” He noted that the MRI 

scan report contained evidence of a T12-L1 focal right central disc protrusion with narrowing of 

the right lateral recess, an L2-3 shallow disc bulge asymmetric to the right, and mild 

degenerative change of the lumbar spine. Dr. Craig diagnosed appellant with intervertebral disc 

disorder, stenosis of the lateral recess of the lumbar spine, and lumbar sprain. 

On November 30, 2015 appellant replied to OWCP’s questionnaire. He noted that his 

injury was not a recurrence, as his back pain, muscle spasms, and numbness had persisted since 

the date of injury. Appellant stated that he returned to work for financial reasons despite the 

persistence of his symptoms. He continued to submit claims for compensation for temporary 

total disability subsequent to July 10, 2015. 

In a report dated December 22, 2015, Dr. Jeffrey J.K. Lee, a Board-certified orthopedic 

surgeon, provided results on examination. He diagnosed right T12-L1 disc herniation and 

obesity. Dr. Lee noted, “The T12 [herniated nucleus pulposus] is the likely provenance of his 

back and right leg pain and weakness.... Since [appellant] is over [one] year post injury, it is 

unlikely that he will be able to return to work which requires repetitive heavy lifting or bending 

or twisting.” 

On January 12, 2016 appellant requested reconsideration of OWCP’s September 11, 2015 

decision. 

By decision dated March 31, 2016, OWCP denied modification of its decision of 

September 11, 2015. It explained that none of the medical reports of record provided an 

explanation of how the T12-L1 herniation was related to the employment injury of 

September 2, 2014. 

LEGAL PRECEDENT 

Where an employee, who is disabled from the job he or she held when injured due to 

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 of proof to 

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

disability. 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.2

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.3 This term also means an inability to work that 

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

222 (1986). 

3

 20 C.F.R. § 10.5(x). 
5

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.4

An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of proof to establish by the weight of the substantial, reliable, and 

probative evidence that the disability for which he or she claims compensation is causally related 

to the accepted injury. This burden of proof requires that a claimant furnish medical evidence 

from a physician who, on the basis of a complete and accurate factual and medical history, 

concludes that, for each period of disability claimed, the disabling condition is causally related to 

the employment injury and supports that conclusion with medical reasoning.5

 Where no such 

rationale is present, the medical evidence is of diminished probative value.6

ANALYSIS 

OWCP accepted appellant’s claim for lumbar strain on November 4, 2014. It paid for 

intermittent periods of disability. On July 31, 2015 appellant filed a claim for compensation 

commencing July 10, 2015. OWCP adjudicated appellant’s claim as a claim for recurrence of 

disability commencing July 10, 2015, following a return to work at light duty. 

The Board finds that appellant has failed to submit sufficient evidence to establish a 

recurrence of total disability on July 10, 2015 causally related to the September 2, 2014 

employment injury. 

The Board notes that appellant had been working full-time light duty since 

December 9, 2014. It is therefore appellant’s burden of proof to establish total disability causally 

related to the accepted employment injury. The only physician of record who opined that 

appellant was totally disabled after July 10, 2015 due to the accepted injury was Dr. Craig, in a 

July 10, 2015 report. Yet, in a report four days prior, dated July 6, 2015, he found that appellant 

could return to work with limitations, in two to four months. Dr. Craig offered no explanation as 

to how appellant’s accepted condition had worsened sufficiently in those four days to have 

caused total disability, other than to relate that appellant’s pain levels were worsening.7

 

Subjective complaints are insufficient to establish a recurrence of disability.8

 The Board further 

notes that Dr. Kimura and Dr. Lee both found that appellant could return to light duty. 

 4 Id. 

5 Ronald A. Eldridge, 53 ECAB 218, 221 (2001). 

6 Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004). 

7 E.B., Docket No. 16-1468 (issued December 7, 2016). 

8 See P.P., Docket No. 16-1232 (issued December 23, 2016). 
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The Board finds that the evidence of record, therefore, is insufficient to establish total 

disability beginning July 10, 2015 due to the accepted conditions. 

Appellant has also neither alleged nor established that light-duty work was no longer 

available for him after July 10, 2015.9

 

The Board further notes that there is no medical opinion evidence of record linking the 

diagnoses of lumbar radiculopathy or a right T12-L1 disc herniation to the traumatic event of 

September 2, 2014. The only accepted condition in this case is lumbar strain. 

In a June 23, 2015 report, OWCP’s second opinion physician, Dr. Kimura, diagnosed 

lumbar radiculopathy. He stated that the evidence that supported disability was the weakness of 

the right big toe and decreased sensation on the right big toe indicating the lumbar radiculopathy. 

In a report dated December 22, 2015, Dr. Lee diagnosed right T12-L1 disc herniation and 

obesity. He noted, “The T12 [herniated nucleus pulposus] is the likely provenance of his back 

and right leg pain and weakness.... Since he is over [one] year post injury, it is unlikely that he 

will be able to return to work which requires repetitive heavy lifting or bending or twisting.” 

OWCP’s procedures state that a recurrence of disability includes a work stoppage caused 

by a spontaneous material change in the medical condition demonstrated by objective findings. 

That change must result from a previous injury or occupational illness rather than an intervening 

injury or new exposure to factors causing the original illness. It does not include a condition that 

results from a new injury, even if it involves the same part of the body previously injured.10

Therefore, in order to support a claim for recurrence, appellant must submit medical 

evidence from a physician who, on the basis of a complete and accurate factual and medical 

history, concludes that, for each period of disability claimed, the disabling condition is causally 

related to the employment injury and supports that conclusion with medical reasoning.11 

Because the record is devoid of such a statement of causation between his accepted injury on 

September 2, 2014 and the diagnosed conditions of lumbar radiculopathy and right T12-L1 disc 

herniation which disable him from work, appellant has not submitted sufficient evidence to 

support a recurrence of disability. 

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. 

 9 See supra note 2. 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(c)(5) (October 2009). 

11 Id. 
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CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish a recurrence 

of disability commencing July 10, 2015 due to the accepted September 2, 2014 employment 

injury. 

ORDER 

IT IS HEREBY ORDERED THAT the March 31, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 2, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board