United States Department of Labor

Employees’ Compensation Appeals Board

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E.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Kissimmee, FL, Employer

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Docket No. 18-0796

Issued: November 7, 2018

Appearances: Case Submitted on the Record

Capp P. Taylor, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 1, 2018 appellant, through counsel, filed a timely appeal from a December 18, 

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 the 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 his burden of proof to establish a recurrence of 

disability commencing November 12, 2016 causally related to his accepted April 25, 2007 

employment injury.

FACTUAL HISTORY

On April 25, 2007 appellant, then a 50-year-old lead sales and service associate, filed a 

traumatic injury claim (Form CA-1) alleging that he slipped and fell on a slippery floor that day 

and injured his right knee and lower back while working. He accepted a full-time modified-duty 

position on May 4, 2007. Appellant subsequently claimed intermittent wage-loss compensation. 

OWCP accepted temporary aggravation of old disruption of anterior crucial ligament 

(ACL) of the right knee, right knee medial meniscus and ACL tears, lumbar strain, and cervical 

sprain. 

Dr. Michael J. Leddy, III, a Board-certified orthopedic surgeon, performed a right knee 

arthroscopic repair on September 17, 2007, and OWCP placed appellant on the periodic 

compensation rolls that day. He returned to a full-time modified position on December 6, 2007. 

By decision dated September 17, 2007, OWCP denied appellant’s compensation claim for 

the period July 16 to 19, 2007. On January 22, 2008 an OWCP hearing representative reversed 

the denial and remanded the case to OWCP for payment of compensation. By decision dated 

March 28, 2008, OWCP denied appellant’s claim for a December 21, 2007 recurrence of 

disability. On December 24, 2008 an OWCP hearing representative affirmed the March 28, 2008 

decision. 

On December 3, 2008 OWCP granted appellant a schedule award for three percent 

permanent impairment of the right lower extremity. Appellant continued modified duty.

On September 28, 2010 appellant accepted a modified position with duties of six hours 

retail sales and lobby assistance, one hour of administrative paperwork, and one hour boxing mail. 

Standing was limited to six hours, sitting to two hours, and pushing/pulling three hours with lifting 

restricted to less than 25 pounds. 

Dr. Markus Kornberg, a Board-certified orthopedic surgeon, began treating appellant in 

January 2008, and appellant continued modified duty. In a February 4, 2013 report, Dr. Kornberg 

noted that appellant had not been seen since November 8, 2011 and reported increased radiating 

back pain. He advised that appellant’s lumbar spine x-rays demonstrated considerable 

degeneration at multiple levels.

A March 4, 2014 magnetic resonance imaging (MRI) scan of appellant’s cervical spine 

demonstrated disc bulges from C3 to T1 and a disc herniation at T1-2 and T2-3. A March 4, 2014 

lumbar spine MRI scan demonstrated disc herniations at L2-3, L3-4, and L4-5 with a disc bulge at 

L5-S1.
3

Appellant began treatment with Dr. Robert Reppy, an osteopath, on September 8, 2014. 

He noted that appellant had not worked since May 2014 and described a complaint of radiating 

back pain. Dr. Reppy diagnosed sciatica, thoracic sprain/strain, and internal derangement of the 

right knee. He advised that appellant could not work due to cervical and lumbar disc herniations. 

An August 18, 2015 MRI scan of appellant’s right knee demonstrated postsurgical changes 

with a torn ACL graft, abnormal menisci, and mild patellar subluxation. A left knee MRI scan of 

that same day demonstrated a tear of the medial meniscus. 

Dr. Reppy continued to submit monthly reports noting increased severity of appellant’s 

back pain and advising that appellant could not work. During this period and continuing, appellant 

underwent extensive physical therapy.

On November 20, 2015 appellant filed claims for compensation (Form CA-7) beginning 

October 31, 2015. He continued to submit monthly reports from Dr. Reppy who advised that 

appellant was totally disabled due to cervical, lumbar, and knee conditions. 

By decision dated February 8, 2016, OWCP denied appellant’s claim for ongoing disability 

compensation for the period commencing October 31, 2015. 

On November 15, 2016 Dr. Reppy reported appellant’s examination findings of no knee 

laxity and reduced lumbar spine range of motion with spasticity. He diagnosed lumbar disc disease 

with radiculopathy of the lower extremities, severe lumbar stenosis, annulus tear at L3-4, right 

knee torn meniscus, left knee chondromalacia, disrupted right ACL graft by history, and chronic 

cervical spine stenosis.

In correspondence dated December 22, 2016, Dr. Reppy indicated that the diagnoses of 

sprain were clearly in error and maintained that OWCP should accept lumbar disc disease with 

radiculopathy of the lower extremities and severe lumbar spinal stenosis.

On December 22, 2016 an OWCP hearing representative affirmed OWCP’s February 8, 

2016 decision. 

On January 18, 2017 appellant filed claims for compensation (Forms CA-7) alleging

disability commencing November 12, 2016. 

By development letter dated January 30, 2017, OWCP informed appellant that the evidence 

submitted was insufficient to establish his recurrence claim and advised him of the evidence 

needed. It afforded him 30 days to submit the necessary evidence.

In reports dated January 10 to March 7, 2017, Dr. Reppy noted appellant’s complaints of 

radiating low back pain and right knee pain. He described examination findings of reduced lumbar 

range of motion and mild crepitus in the left knee. Dr. Reppy diagnosed lumbar disc disease with 

radiculopathy of the lower extremities, severe lumbar spinal stenosis, annulus tear at L3-4, right 

knee torn meniscus, left knee chondromalacia, disrupted right ACL graft by history, and chronic 

cervical stenosis. He continued to advise that appellant was totally disabled.
4

On February 13, 2017 Dr. Reppy pointed out that the diagnosis of sprain/strain was in error 

and had, therefore, never existed. He maintained that the slip and fall on April 25, 2007 aggravated 

appellant’s preexisting degenerative lumbar disc disease and also aggravated a previous injury to 

appellant’s right knee that occurred while he was in the military. Dr. Reppy maintained that the 

compressive force exerted by lifting a heavy object caused the discs to rupture which caused 

radiculopathy of the lower extremities. He concluded that, because appellant’s work required him 

to lift as much as 75 pounds, he could not return to work. 

In a February 16, 2017 statement, appellant described a May 27, 2014 employment 

incident that had been denied by OWCP.3

By decision dated March 14, 2017, OWCP found the medical evidence of record 

insufficient to establish a recurrence of disability commencing November 12, 2016. 

In correspondence dated March 13, 2017, received by OWCP on March 15, 2017,

Dr. Reppy again indicated that the diagnosis of sprain/strain was in error. He maintained that the 

slip and fall on April 25, 2007 aggravated appellant’s preexisting degenerative lumbar disc disease,

but again noted that the compressive force exerted by lifting a heavy object caused the discs to 

rupture which caused radiculopathy of the lower extremities, as shown by lumbar spine MRI scans. 

Dr. Reppy advised that appellant could not stand long enough or lift enough to return to work and 

that additional knee diagnoses should also be added. 

On April 11, 2017 appellant requested a hearing before OWCP’s Branch of Hearings and 

Review. 

In correspondence dated March 27, 2017, Dr. Reppy repeated that the accepted conditions

in appellant’s claim should be expanded. He described the April 25, 2007 employment injury and 

the May 28, 2014 injury that was denied by OWCP. Dr. Reppy described physical examination 

findings and objective studies. He noted that appellant had no back pain prior to May 27, 2014 

and again maintained that lifting a heavy object caused appellant’s disc herniations and that the 

2007 work injury aggravated appellant’s prior service-related right knee injury.

Appellant submitted additional claims for compensation, and Dr. Reppy continued to treat 

appellant on a monthly basis.

At the hearing, held on October 12, 2017, counsel argued that additional conditions should 

be accepted because appellant’s condition worsened after the April 25, 2007 employment injury. 

Appellant testified that in September 2010 he was forced to accept a modified job assignment with 

increased demands. He indicated that he took sick and annual leave until it ran out and was 

currently receiving Office of Personnel Management (OPM) retirement and Social Security 

Administration (SSA) disability benefits. Appellant described his current symptoms and indicated 

that he was totally disabled. The hearing representative noted that the instant claim pertained to 

disability beginning November 12, 2016 and continuing.

 

3 OWCP File No. xxxxxx358 has not been combined with this OWCP file. 
5

Dr. Reppy submitted reports dated November 16 and December 14, 2017 in which he noted 

appellant’s complaint of low back and right knee pain. He reiterated his diagnoses and advised 

that appellant could not work. 

By decision dated December 18, 2017, OWCP’s hearing representative found that the 

medical evidence of record failed to establish that appellant suffered a return of or increase in 

disability effective November 12, 2016 due to a material change or worsening of the accepted 

work-related condition. She affirmed the March 14, 2017 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 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 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.5

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 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 injuryrelated condition, or a change in the nature and extent of the light-duty requirements.6

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

injury has the burden of establishing that the disability is 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.7

ANALYSIS

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

disability commencing November 12, 2016 causally related to his accepted April 25, 2007 

employment injury.

 

4 20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

5

Id.

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

222 (1986).

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

OWCP accepted appellant’s April 25, 2007 claim for temporary aggravation of right knee 

old disruption of anterior crucial ligament (ACL), right knee medial meniscus and ACL tears,

lumbar strain, and cervical sprain. Appellant began to work in a modified position on

September 28, 2010.8

Although appellant alleged a change in his modified-duty requirements after he accepted 

the modified position on September 28, 2010, he continued in that position until he stopped work 

on May 27, 2014. Appellant filed a new claim, alleging that he injured his back on May 27, 2014. 

He has not worked since, but OWCP has denied that claim.9 There is no evidence of record to 

support that the job requirements of his modified position changed.

As to his assertion that he could not work due to a change in the nature and extent of the 

conditions related to the April 25, 2007 employment injury, appellant has the burden of proof to 

provide medical evidence to establish that he was disabled beginning November 12, 2016 due to 

a worsening of the accepted conditions described above.10 Appellant has not submitted probative 

medical evidence demonstrating total disability beginning on November 12, 2016. The Board, 

therefore, finds that appellant has not met his burden of proof to establish his recurrence claim.

Appellant submitted a number of reports from Dr. Reppy beginning on 

November 15, 2016. In that report he noted appellant’s chief complaint of radiating low back pain 

and right knee pain. Physical examination findings included no knee laxity and reduced lumbar 

spine range of motion with spasticity. Dr. Reppy diagnosed lumbar disc disease with 

radiculopathy of the lower extremities, severe lumbar stenosis, annulus tear at L3-4, right knee 

torn meniscus, left knee chondromalacia, disrupted right ACL graft by history, and chronic 

cervical spine stenosis. He also requested that OWCP expand the accepted conditions to include 

lumbar disc disease with radiculopathy of the lower extremities and severe lumbar spinal stenosis. 

On February 13, 2017 Dr. Reppy asserted that the diagnosis of sprain/strain was in error and had 

never existed and maintained that the April 25, 2007 slip and fall aggravated the preexisting 

degenerative disc disease. In describing the mechanics of how this occurred, he maintained that 

the compressive force exerted by lifting a heavy object caused the discs to rupture which caused 

radiculopathy of the lower extremities. Dr. Reppy repeated this assertion on March 13 

and 27, 2017. In the latter report, he indicated that appellant had no back pain prior to 

May 27, 2014. As noted, OWCP had denied appellant’s claim for the May 27, 2014 lifting 

incident under File No. xxxxxx358. Thus, Dr. Reppy’s reports are of diminished probative value 

as to whether any work stoppage commencing November 12, 2016 was related to his slip and fall 

work injury that occurred on April 25, 2007.11

Dr. Reppy also requested that the acceptance of appellant’s claim be expanded to include 

additional knee conditions, asserting that the April 25, 2007 work injury aggravated a previous 

right knee injury that was service related. The accepted conditions include right medial meniscus 

 

8 Supra note 4.

9 Appellant testified at the hearing that he took sick and annual leave for a period after the work stoppage. 

10 Supra note 7. 

11 Supra note 8. 
7

and ACL tears. Dr. Reppy did not indicate what specific additional knee injuries should be 

accepted or provide any type of explanation to support his assertion.

For these reasons, Dr. Reppy’s reports are insufficient to meet appellant’s burden of proof 

to establish total disability commencing November 12, 2016.

12

 

The medical evidence pertaining to the period of claimed disability includes diagnostic 

studies. Diagnostic studies lack probative value as they do not address whether the employment 

injury caused any diagnosed conditions.13

Appellant has failed to establish by the weight of the reliable, probative, and substantial 

evidence, a change in the nature and extent of the injury-related condition resulting in his inability 

to perform his modified duties. He has not submitted sufficient medical evidence showing that he 

sustained a recurrence of disability due to the accepted conditions. The Board, therefore, finds 

that he has not met his 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 not met his burden of proof to establish a recurrence of 

disability commencing November 12, 2016 causally related to his accepted April 25 2017 

employment injury.

 

12 See E.M., Docket No. 18-0275 (issued June 8, 2018).

13 See J.S., Docket No. 17-1039 (issued October 6, 2017). 

14 See H.T., Docket No. 17-0209 (issued February 8, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the December 18, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 7, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board