United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Trenton, NJ, Employer

__________________________________________

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Docket No. 18-0719

Issued: November 9, 2018

Appearances: Case Submitted on the Record

Jessica Rogers, 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 February 16, 2018 appellant, through counsel, filed a timely appeal from a 

September 8, 2017 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.

 

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 has met her burden of proof to establish a recurrence of total 

disability commencing October 5, 2013 causally related to her accepted brachial, thoracic, and 

lumbosacral neuritis/radiculitis conditions.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

On August 20, 2013 appellant, then a 51-year-old mail processing clerk in light-duty status, 

filed an occupational disease claim (Form CA-2) alleging that sometime before October 1, 2010 

she sustained conditions of her neck, both arms, both wrists, both hands, and back due to repetitive 

reaching, pulling, bending, and lifting while in the performance of her federal employment. She

did not stop work. On September 27, 2013 OWCP accepted the claim for brachial, thoracic, and 

lumbosacral neuritis or radiculitis. Appellant stopped work on October 6, 2013. 

Appellant filed claims for compensation (Form CA-7) for wage loss commencing 

October 5, 2013. 

In a report dated September 23, 2013, Dr. Nasser Ani, an attending Board-certified 

orthopedic surgeon, related that he restricted appellant to light-duty work, with lifting limited to 

15 pounds and driving restricted to 20 minutes at a time. He opined that repetitive upper extremity 

motions at work caused C4-5, C5-6, C6-7, and L3-4 disc herniations, brachial neuritis, thoracic 

and lumbosacral radiculitis, and bilateral carpal tunnel syndrome. On January 15, 2014 Dr. Ani

released appellant to work with restrictions of working no more than four hours a day, with no 

pulling, twisting, bending, repetitive lifting, sitting from a standing position, standing and walking 

for unspecified periods, climbing stairs, or driving for more than 20 minutes at a time. 

By decision dated February 27, 2014, OWCP denied appellant’s claim for ongoing wageloss compensation commencing October 5, 2013, as the medical evidence of record was 

insufficient to support total disability for the claimed period.4

On April 21, 2014 appellant submitted a November 26, 2013 notice of recurrence (Form 

CA-2a) claiming ongoing total disability commencing October 6, 2013. She contended that the 

employing establishment informed her that no work was available within Dr. Ani’s restrictions. 

Appellant submitted notes from Dr. Ani dated from April 16 to June 12, 2014, finding her neck, 

spine, and bilateral carpal tunnel syndrome symptoms unchanged. Dr. Ani released her to limitedduty work for four hours a day. By decision dated July 17, 2014, OWCP denied appellant’s 

 

3 Docket No. 15-1582 (issued November 9, 2015).

4 On March 6, 2014 appellant, through counsel, requested a review of the written record by OWCP’s Branch of 

Hearings and Review. By decision dated July 9, 2014, OWCP’s Branch of Hearings and Review affirmed the 

February 27, 2014 denial of appellant’s claim for compensation.
3

recurrence claim, finding that the medical evidence of record was insufficient to establish that she 

was totally disabled from work commencing October 6, 2013 due to the accepted conditions. 

Appellant subsequently requested an oral hearing. Following a hearing held on 

December 5, 2014, she submitted notes from Dr. Ani dated from July 23, 2013 to November 6, 

2014, finding her condition unchanged. Dr. Ani released appellant to modified-duty work on 

November 6, 2014 within her previous restrictions.

By decision dated February 26, 2015, an OWCP hearing representative affirmed the 

July 17, 2014 decision, finding that the medical evidence of record was insufficient to establish 

the claimed recurrence of disability. Also, appellant had not submitted sufficient evidence to 

establish that she had no other means of commuting to and from work. 

On July 15, 2015 appellant, through counsel, appealed to the Board.5

By decision dated November 9, 2015, the Board affirmed OWCP’s February 26, 2015 

decision, finding that appellant had not established a worsening of the accepted conditions, or that 

her light-duty position had been withdrawn.

On November 25, 2015 appellant, through counsel, requested reconsideration with OWCP.

She contended that the employing establishment had withdrawn appellant’s light-duty position as 

there were no jobs available, within her restrictions, located within a 20-minute drive of her 

residence.

In support of appellant’s request, counsel submitted September 29 and October 30, 2014 

letters from the employing establishment notifying appellant and her elected representative that 

there was no vacancy “in any bargaining unit craft within a 20-minute drive of [appellant’s] 

residence” where she could perform “the essential functions of the position with or without an 

accommodation.” She also provided chart notes from Dr. Ani dated October 28 and November 25,

2015, finding appellant’s condition unchanged.

By decision dated December 8, 2015, OWCP denied reconsideration of the merits of her 

claim as the evidence submitted was irrelevant, immaterial, or repetitious. 

On June 15, 2016 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence.

In notes dated from January 4 to August 8, 2016, Dr. Ani continued to note upper and lower 

back pain, and pain and paresthesias in both wrists and hands. He administered epidural 

injections.6

 

5 During the pendency of the prior appeal, appellant submitted additional chart notes from Dr. Ani dated through 

September 23, 2015. Dr. Ani found her conditions unchanged and recommended bilateral carpal tunnel releases. 

6 Appellant also provided physical therapy notes dated from April through June 2016. A May 14, 2016 lumbar 

magnetic resonance imaging (MRI) scan showed a tiny annular tear at L1-2, L3-4 disc herniation, and bilateral facet 

osteoarthritis at L4-5 and L5-S1 slightly progressed from an August 16, 2013 study.
4

In a report dated May 23, 2016, Dr. Ani explained that his September 23, 2013 work 

restrictions were “medically necessary due to worsening of her work-related injury which she 

sustained at work on October 1, 2010.” He opined that appellant’s neck, back, and bilateral wrist 

conditions were caused by repetitive activities at work.

By decision dated September 8, 2016, OWCP denied modification of its December 8, 2015 

decision, finding that the additional medical evidence submitted was insufficient to establish a 

spontaneous worsening of the accepted conditions or withdrawal of her light-duty position. It

noted that appellant had filed a separate claim under OWCP File No. xxxxxx418 for hand and 

wrist conditions, including carpal tunnel syndrome, and that she should pursue her appeal rights 

under that claim.

On June 12, 2017 appellant, through counsel, requested reconsideration, contending that 

new medical evidence from Dr. Ani established that the increased work restrictions he prescribed 

in September 2013 were necessitated by a worsening of the accepted conditions.

Dr. Ani provided notes dated September 8, 2016 onward noting continued thoracic and 

lumbar spine pain, and bilateral hand and wrist pain. 

In an April 20, 2017 report, Dr. Ani opined that prolonged standing, walking, and repetitive 

upper extremity motions caused appellant’s accepted brachial, thoracic, and lumbosacral neuritis 

or radiculitis, and bilateral carpal tunnel syndrome. He indicated that commencing October 1, 

2010, appellant’s bilateral hand and wrist pain, neck pain, and lumbar pain with radiculopathy had 

worsened. Dr. Ani explained that “decreasing her driving time was medically necessary to 

decrease the compression of the spine.” He opined that, due to appellant’s “accepted conditions 

of brachial neuritis/radiculitis and lumbosacral neuritis/radiculitis, [appellant] has been unable to 

drive more than 20 minutes at a time since September 23, 2013 and remains unable to do so.”

Dr. Ani explained that driving for longer than 20 minutes would “put additional and significant 

pressure on the already weakened and damaged discs in her cervical and lumbar spine,” causing 

increased disc protrusion, “leading to additional compression or impingement of the surrounding 

nerves and increased radiculopathy and loss of function for this patient.” He found appellant able 

to perform light-duty work for four hours a day, with driving to and from work or at work to less 

than one hour.

In a June 2, 2017 statement, appellant contended that, on September 23, 2013, she had 

provided the employing establishment with Dr. Ani’s updated work limitations, which restricted

her to driving no more than 20 minutes continuously. She explained that she had notified the 

employing establishment on October 6, 2013 that OWCP had accepted her claim. The employing 

establishment then advised appellant that it no longer had light-duty work available within her 

restrictions.

An August 19, 2017 lumbar MRI scan showed moderate left and minimal right foramina

stenosis at L3-4, and minimal disc bulges at L4-5 and L5-S1. The remainder of the examination 

was unchanged. 

Appellant also submitted copies of evidence previously of record. 
5

By decision dated September 8, 2017, OWCP denied modification of its September 8, 2016 

decision. It found that the additional medical evidence submitted was insufficient to establish that 

appellant’s claimed disability commencing October 6, 2013 was a result of an objective worsening 

of her condition without intervening case. OWCP further found that the factual evidence of record 

was insufficient to establish that the employing establishment changed or withdrew appellant’s 

light-duty job on October 6, 2013.

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.7 This term also means an inability to work when a light-duty assignment made 

specifically to accommodate an employee’s physical limitations due to the 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.8

When an employee, who is disabled from the job he or she held when injured on account 

of employment-related residuals, returns to a light-duty position or the medical evidence 

establishes that, light duty can be performed, the employee has the burden of proof to establish by 

the weight of reliable, probative, and substantial evidence a recurrence of total disability. As part 

of this burden of proof, the employee must show either a change in the nature and extent of the 

injury-related condition, or a change in the nature and extent of the light-duty requirements.9

An employee who claims a recurrence of disability resulting from an accepted employment 

injury has the burden of proof to establish that the disability is causally related to the accepted 

injury. This burden requires furnishing medical evidence from a physician who, on the basis of a 

complete and accurate factual and medical history, concludes that the disabling condition is 

causally related to the employment injury and supports that conclusion with sound medical 

reasoning.10

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a recurrence of 

total disability commencing October 5, 2013 causally related to her accepted brachial, thoracic, 

and lumbosacral neuritis/radiculitis conditions. Preliminarily, the Board notes that it is 

unnecessary for the Board to consider the evidence appellant submitted prior to the issuance of 

OWCP’s February 26, 2015 decision because the Board has already considered this evidence in 

 

7 20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

8

Id.

9 Shelley A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB 

222 (1986).

10 S.S., 59 ECAB 315 (2008).
6

its November 9, 2015 decision and found that it failed to establish a worsening of the accepted 

conditions, or that her light-duty position had been withdrawn. Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.11

Appellant contended that the opinions of Dr. Ani, her attending Board-certified orthopedic 

surgeon, established that her accepted conditions had worsened as of October 5, 2013 such that 

she was unable to perform her light-duty position. 

Dr. Ani provided notes dated from October 2015 through April 2017 finding appellant’s 

condition had remained stable, with chronic cervical, thoracic, and lumbosacral neuritis or 

radiculitis, and bilateral carpal tunnel syndrome. The Board notes that OWCP has not accepted 

carpal tunnel syndrome as occupationally related. 

In an April 20, 2017 report, Dr. Ani opined that appellant’s cervical, thoracic, and lumbar 

spine pain, as well as bilateral hand and wrist pain, had worsened as of October 1, 2010. He 

therefore decreased her allowed driving time as of September 23, 2013 to no more than 20 minutes 

continuously to avoid additional compressive forces on the spine. Dr. Ani did not indicate that he 

imposed the new driving limitation on September 23, 2013 due to an objective worsening of the 

accepted conditions. The Board has held that medical evidence that does not offer an opinion 

regarding the cause of an employee’s condition is of no probative value on the issue of causal 

relationship.12 Dr. Ani failed to provide any medical explanation, based on medical rationale, as 

to how her accepted condition had materially changed or how her disability arose without 

intervening injury.13 Also, he did not opine that appellant was totally disabled for work 

commencing October 5, 2013.14 As such Dr. Ani did not support appellant’s recurrence claim.

Appellant also asserts that the employing establishment’s withdrawal of her light-duty 

position on October 6, 2013 constituted a recurrence of disability. It is her burden of proof to 

establish that light-duty employment was, in fact, withdrawn.15 However, appellant did not 

provide factual evidence to support this allegation. She submitted September 29 and October 30, 

2014 letters in which the employing establishment notified appellant that there was no work 

available within a 20-minute drive of her residence. However, the 20-minute driving restriction 

prescribed by Dr. Ani on September 23, 2013 was not shown to be related to an objective 

worsening of the accepted conditions. Therefore, the lack of available work within this limitation 

does not constitute a withdrawal of light-duty work.16

 

11 See B.R., Docket No. 17-0294 (issued May 11, 2018).

12 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13 E.B., Docket No. 17-1467 (issued July 26, 2018); see S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., 

Docket No. 08-0975 (issued February 6, 2009).

14 E.B., id.; see Leslie C. Moore, 52 ECAB 132 (2000).

15 L.M., Docket No. 17-0159 (issued September 27, 2017); J.F., 58 ECAB 124 (2006).

16 Terry R. Hedman, supra note 9.
7

On appeal, counsel contends that appellant has established that she sustained a recurrence 

of disability as the medical evidence of record established a worsening of the accepted conditions

such that she could no longer drive herself to and from work. In support of this assertion, she cites 

to the Board’s holding in G.L.,

17 in which the Board found that the claimant asserted a period of 

disability due to a condition not accepted by OWCP. This issue is not relevant to the present claim. 

Counsel also cited to the Board’s decision in E.B.,

18 which involved a refusal of an offered position 

where the position description was too vague for the job to have been deemed suitable work. The 

present claim, however, does not implicate a suitable work issue.

Alternatively, counsel asserts that employing establishment withdrew appellant’s lightduty position on October 6, 2013, entitling appellant to ongoing wage-loss compensation for total 

disability commencing October 6, 2013. In support of this argument, counsel cites to K.J.,

19 in 

which the Board remanded a recurrence claim to OWCP for additional development of the medical 

evidence. The Board notes that K.J. may be distinguished from the case at bar as the claimant had 

not alleged a withdrawal of light duty, whereas appellant does argue that the employing 

establishment withdrew her light-duty position.

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 a recurrence of 

total disability commencing October 5, 2013 causally related to her accepted brachial, thoracic, 

and lumbosacral neuritis/radiculitis.

 

17 Docket No. 13-0975 (issued August 12, 2013).

18 Docket No. 13-0309 (issued May 14, 2013). 

19 Docket No. 10-0457 (issued September 15, 2010).
8

ORDER

IT IS HEREBY ORDERED THAT the September 8, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 9, 2018

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