United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Knoxville, TN, Employer 

__________________________________________ 

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Docket No. 15-1714 

Issued: July 1, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On August 17, 2015 appellant filed a timely appeal from a June 10, 2015 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.2

 

ISSUE 

The issue is whether appellant met her burden of proof to establish a recurrence of total 

disability on April 7, 2014, caused by a May 31, 1989 employment injury. 

 1

 5 U.S.C. § 8101 et seq.

2

 Appellant timely requested oral argument pursuant to section 501.5(b) of Board procedures. 20 C.F.R. 

§ 501.5(b). By order dated February 19, 2016, the Board exercised its discretion and denied the request, finding that 

the arguments on appeal could adequately be addressed based on the case record. Order Denying Request For Oral 

Argument, Docket No. 15-1714 (issued February 19, 2016). 
2

On appeal appellant asserts that she was forced to work outside the restrictions provided 

by her physicians and was scheduled to work outside agreed hours. 

FACTUAL HISTORY 

On May 31, 1989 appellant, then a 30-year-old rural carrier, was injured lifting a bundle 

of mail. The claim was initially accepted for herniated disc at C5-6. Appellant had cervical 

surgery on August 4, 1989. She received wage-loss compensation and returned to limited duty 

for four hours a day on February 5, 1990, and then to full-time work. A May 29, 1991 

rehabilitation job offer, accepted by appellant that day, described general clerical duties of 

typing, filing, copying, data input, answering telephones, and assisting customers with problems. 

Sitting, standing, walking, kneeling, bending, stooping, twisting, and simple grasping were listed 

as intermittently, up to eight hours per day, with no climbing or reaching above the shoulder. 

The claim was expanded to include prolonged depressive reaction due to the accepted 

factors. In two decisions dated September 24, 1990, OWCP denied appellant’s claim for 

additional compensation, and found that her light-duty employment fairly and reasonably 

represented her wage-earning capacity.3

 A recurrent herniated cervical disc was accepted, and 

on February 14, 1992 appellant had additional cervical surgery.4 After rehabilitation, in 1997 

appellant worked as an injury compensation specialist at the employing establishment.5

 She also 

had gastric bypass surgery in 1997. 

Appellant filed a recurrence claim (Form CA-2a) on April 8, 2014, alleging total 

disability as of April 7, 2014. Appellant stated that the employing establishment kept changing 

her work schedule and asked her to work outside her restrictions. She further noted that she 

injured her back and was off three weeks, and when she returned they started “messing” with 

her. The employing establishment noted that it accommodated appellant for years and then she 

was totally off work for about 10 years. On March 3, 2014 appellant injured her back in the 

performance of duty and was off work until March 31, 2014. She returned to work on March 31 

and April 1, 2014 for four hours each day.6 Appellant thereafter stopped work. 

In letters dated April 9 and 11, 2014, OWCP notified appellant of the evidence needed to 

develop her recurrence claim.7

 

 3

 Appellant filed claims for an additional 8 hours weekly, stating that prior to the injury she worked 48 hours a 

week. 

4

 The record is devoid of medical evidence from June 7, 1991 to April 16, 2002. 

5

 The record indicates that on September 18, 1996 OWCP denied appellant’s claim for compensation for the 

period March 4 to April 23, 1996, and in decisions dated October 29, 1996 and September 17, 1997 affirmed the 

denial. The record does not indicate whether appellant’s rehabilitation position was full or part time. 

6

 The March 3, 2014 injury was adjudicated in a separate claim and accepted for lumbar sprain. 

7

 OWCP listed the accepted conditions as sprain of back, lumbar region; displacement of cervical intervertebral 

disc without myelopathy; prolonged depressive reaction; sprain of shoulder and upper arm, acromioclavicular, right; 

postlaminectomy syndrome, cervical region; and brachial neuritis or radiculitis, not otherwise specified. Appellant 

also submitted a CA-7, claim for compensation, for the period April 8 through May 5, 2014. 
3

In an April 15, 2014 statement, appellant related that since returning to work her stress 

and pain increased significantly. She stated that she had to throw parcels and load mail, and 

these repetitive activities had caused great pain which caused emotional stress. Appellant related 

that on March 3, 2014 she injured her back when she lifted a tub of flats. She maintained that 

her work injury consumed her life, restricted her activities of daily living, and made her suicidal. 

By decision dated May 12, 2014, OWCP denied the recurrence claim for resumption of 

total disability compensation because she reported new stressors that were considered 

intervening factors and not related to the May 31, 1989 employment injury. Appellant continued 

to receive medical benefits and partial wage-loss compensation. 

On September 5, 2014, January 5 and April 22, 2015 appellant requested reconsideration. 

In support of her reconsideration requests, she submitted additional medical evidence. On a 

March 4, 2014 Turkey Creek Medical Center emergency department discharge summary, 

Dr. Roger Millwood, Board-certified in emergency medicine, noted that appellant was seen for 

back pain. He diagnosed myofascial lumbar strain. A thoracic spine x-ray that day 

demonstrated scoliosis with minimal degenerative change. Turkey Creek Medical Center 

records show that appellant was admitted on March 17, 2014 for complaints of a one-month 

history of increasing epigastric pain, and that she began vomiting blood on the day of admission. 

The admission history and physical noted appellant’s past medical and surgical history. 

Dr. Harold Steven Silver, Board-certified in internal medicine and gastroenterology, performed 

an endoscopy on March 17, 2014. He diagnosed esophagitis, status post gastric bypass, gastritis, 

and anastomotic ulcer times two. Appellant was seen by Dr. Steve W. Reed, Board-certified in 

internal medicine and cardiology, who noted a history of syncope for several years. Dr. Reed 

ordered more tests. Dr. David W. Brandes, a Board-certified neurologist, saw appellant for 

complaints of headaches and syncope. He reported a long history of neck and right shoulder 

pain, described her prior surgeries and findings. Dr. Brandes diagnosed cervicogenic headaches, 

episodic hypotension and syncope of undetermined original, treated hypertension, chronic right 

arm/shoulder pain syndrome, acute gastrointestinal bleed, and depression. Appellant was 

discharged on March 20, 2014 with diagnoses of syncope secondary to orthostasis secondary to 

blood loss anemia, blood loss anemia secondary to acute anastomotic ulcers, candida esophagitis, 

and severe headache, myogenic, cervicogenic. 

Appellant was seen by Dr. Donald Jones, a Board-certified anesthesiologist, on April 21, 

2014 for pain management. Dr. Jones did not mention the recent hospitalization. 

Hospital records from Physicians Regional Medical Center indicated that appellant was 

admitted on April 22, 2014. Dr. Sharon R. Burnside, a Board-certified psychiatrist, noted that 

appellant had long-standing depression and was admitted for crisis management due to severe 

hopelessness, worsening chronic pain, and an abscessed tooth. She related appellant’s report that 

she was trying to work 12 hours a week, but continued to be asked by other employees to work 

outside her restrictions, and that she recently became suicidal when she had to have an abscessed 

tooth pulled. Dr. Burnside also noted that appellant had regained most of the weight she had lost 

following gastric bypass, and had syncopal episodes with falls. Appellant was discharged on 

April 25, 2014 with diagnoses of major depression, recurrent, severe, without psychotic features, 

syncopal episodes, anemia with blood loss recently from an anastomotic ulcer, chronic 

headaches with cervical spine disease, and prior gastric bypass. 
4

On May 8, 2014 Dr. Kelley D. Walker, a Board-certified psychiatrist, noted the recent 

hospitalization and appellant’s report that it was “more for detox, not suicide.” She found that 

appellant was unable to work. In a May 21, 2014 treatment note, Dr. Jones noted appellant’s 

report that she recently passed out, fell, and was told she had fractured three ribs. He again did 

not mention the April hospitalization. 

Dr. Silver saw appellant in follow-up on May 22, 2014. He noted appellant’s report of no 

further nausea, vomiting, severe abdominal pain, and no evidence of gastrointestinal bleeding. A 

June 2, 2014 endoscopic examination demonstrated status post gastric bypass with three 

anastotic and post-anastomotic ulcers. 

On May 25, 2014 Dr. Millwood reported that appellant was seen in the emergency 

department for a chest contusion due to a fall at home. A chest x-ray demonstrated old right rib 

fractures and a tiny amount of pleural fluid. Appellant was discharged that day. 

In reports dated May 29 to June 11 2014, Dr. Walker noted a history that appellant had 

recently fallen and broken ribs. She reported that appellant was being treated by Dr. Robert 

Dowell for chronic pain.8

 Dr. Walker opined that appellant’s emotional condition was directly 

related to her chronic pain caused by the May 31, 1989 work injury. She noted, “I expect 

[appellant’s] condition to continue to affect her ability to work in any occupation.” On June 11, 

2014 Dr. Walker also noted that appellant reported that she was passing out almost daily and felt 

suicidal. 

In a June 16, 2014 discharge summary, Dr. J. Joseph Kennedy, a Board-certified 

psychiatrist, noted appellant’s admission to Physicians Regional Medical Center on June 13, 

2014 for depression which was worsened by pain and suicidal thinking. He diagnosed major 

depression, recurrent, much improved, anxiety disorder, not otherwise specified, dependent 

traits, headaches, family issues, chronic depression, and medical issues. 

Appellant was next admitted to Physicians Regional Medical Center on June 24, 2014 for 

major depression with suicidal ideation. Dr. Kennedy described appellant’s report that there was 

ongoing family stress because relatives were living with them and that her son wanted her pain 

medication. This caused an altercation between him and her husband, his stepfather. Appellant 

related that she then began cutting her wrists, and then went to stay with her parents. She was 

seen in consultation by Dr. Zakir Hai, a Board-certified internist for hypotension and syncope 

which he advised was multifactorial, likely related to changes in medication. A brain 

computerized tomography (CT) scan on June 30, 2014 was normal. Appellant was discharged 

on July 1, 2014. At that time Dr. Kennedy reported that appellant’s depression was much 

improved. 

Dr. Jones continued to provide pain management on a monthly basis. On August 7, 2014 

Dr. Walker reported that any little thing triggered panic attacks, and that she had two to three 

episodes of suicidal feelings. 

 8

 There are no reports in the record from a Dr. Robert Dowell. 
5

Appellant was again admitted to Physicians Regional Medical Center on 

September 5, 2014. She sought, by Dr. Ashok Shandari, Board-certified in internal medicine, 

clearance to begin electroconvulsive therapy (ECT). In a September 10, 2014 discharge 

summary, Dr. Burnside reported that appellant was seen by Dr. Kenneth Jobson, a Boardcertified psychiatrist, who recommended ECT. Appellant had two ECT treatments while 

hospitalized and was to continue the treatment as an outpatient.9

In reports dated September 20 and October 21, 2014, Dr. Walker noted that appellant had 

completed five ECT treatments, but that she still had suicidal thoughts. In November 18, 2014 to 

February 18, 2015 reports, Dr. Walker noted appellant’s continued ECT treatment with 

Dr. Burnside, advising that it seemed to help her depression. On March 3, 2015 Dr. Walker 

advised that the ECT treatment had helped with appellant’s depression. She related that, 

although appellant attempted to return to work, she continued to have increased pain relating to 

the initial injury and increased severe mood swings with suicidal ideations, and was unable to 

continue to work even with limited duties. Dr. Walker opined that appellant’s emotional 

condition was directly related to her chronic pain caused by the May 31, 1989 cervical injury 

and, due to the nature of her illness, it would continue to affect her ability to work in any 

occupation. On April 15, 2015 she reported that appellant was again depressed and had conflicts 

with family members. 

In correspondence dated May 8, 2015, OWCP asked Dr. Walker to explain the cause of 

appellant’s claimed disability beginning April 7, 2014. Dr. Walker was specifically asked to 

detail what work aspects appellant was unable to perform due to her psychological condition. 

Dr. Walker, in a May 14, 2015 note, indicated that the ECT treatments were helping 

appellant feel better although she still had bad days with increased pain and depression. She also 

noted that appellant broke her right toe when she lifted her grandson. In response to OWCP’s 

inquiry, on June 1, 2015 Dr. Walker advised that appellant was unable to sustain gainful 

employment due at least in part to the 1989 work injury. She concluded that records from her 

office alone showed a woman suffering multiple medical and personal issues who repeatedly 

reported difficulty maintaining a schedule, poor ability to perform a job in a safe and efficient 

manner, plus the constant stress of dealing with her compensation claim.10 

In a June 10, 2015 merit decision, OWCP denied modification of the May 12, 2014 

denial of her recurrence claim. It found that appellant had not established that the claimed 

recurrence, beginning April 7, 2014, was causally related to the 1989 work injury or that her 

light duty had been withdrawn. OWCP noted that she had filed a claim for a new employment 

injury under a separate file number on March 3, 2014,11 and that when she claimed recurrence 

 9

 Appellant was next admitted to Physicians Regional Medical Center on October 26, 2014 for syncope and an 

extensive deep venous thrombosis. An echocardiogram on October 27, 2014 demonstrated normal left ventricular 

function and trace mitral and tricuspid regurgitation. Appellant was discharged on October 29, 2014. 

10 By decision dated June 8, 2015, OWCP found appellant not at fault in creating a $3,613.21 overpayment of 

compensation. The overpayment was created because health benefit premiums were not deducted from April 19, 

2014 to April 4, 2015. As OWCP found appellant not at fault, it therefore denied waiver of recovery of the 

overpayment. This issue is not currently before the Board. 

11 The March 3, 2014 injury was adjudicated in a separate claim and accepted for lumbar sprain. 
6

under the instant claim she alleged that management had changed her work schedule and she was 

asked to work beyond her restrictions. It advised appellant that she could alternatively file a new 

occupational disease claim. 

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

made specifically to accommodate an employee’s physical limitations due to 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.13

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 

injury-related condition, or a change in the nature and extent of the light-duty requirements.14

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

injury has the burden to establish 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.15 

ANALYSIS 

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

of disability on April 7, 2014, caused by the May 31, 1989 employment injury. The accepted 

conditions are cervical strain, herniated disc at C5-6, prolonged depressive reaction to accepted 

factors, recurrence of herniated disc, lumbar sprain, right acromioclavicular joint sprain, 

postlaminectomy syndrome, cervical region, and brachial radiculitis. 

After the 1989 work injury, appellant returned to work in 1997 in a rehabilitation position 

as an injury compensation specialist. She continued in that position until September 26, 2003 

when she stopped work and was placed on the periodic compensation rolls. On August 20, 2013 

 12 20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004). 

13 Id. 

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

222 (1986). 

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

appellant telephoned OWCP, reporting that she would be returning to work. On August 23, 2013 

she advised that she had accepted a modified clerk position. The job offer provided a schedule 

of 3:00 p.m. to 7:00 p.m. on Wednesday, Thursday, and Friday, with duties of checking in 

carriers for 2.5 hours daily, preparing dispatch for 30 minutes daily, and accepting and separating 

shipments. Lifting was limited to 10 pounds. Appellant returned to this position on August 28, 

2013, and continued to receive partial wage-loss compensation for 28 hours per week. 

On April 8, 2014 appellant claimed a recurrence of disability on April 7, 2014. She 

asserted that the employing establishment kept changing her work schedule and asked her to 

work outside her restrictions. Appellant also indicated that she had injured her back and was off 

three weeks and that, when she returned, the employing establishment started “messing” with 

her. In an April 15, 2014 statement, she related that, since returning to work, her stress and pain 

had increased significantly. Appellant maintained that she had to throw parcels and load mail, 

and that these repetitive activities caused great pain which caused emotional stress. She 

described a March 3, 2014 employment back injury, adjudicated separately by OWCP, which 

had been accepted for lumbar sprain.16 Appellant maintained that the work injury had consumed 

her life, restricted her activities of daily living, and made her suicidal several times. The 

employing establishment indicated that, following the March 3, 2014 back injury, she was off 

work until March 31, 2014, and had worked only March 31 and April 1, 2014 for four hours each 

day. 

There is no evidence of record to support that appellant was disabled from performing the 

modified duties from an orthopedic standpoint due to the accepted conditions. While Dr. Jones 

provided pain management, he did not comment on her ability to work. An August 16, 2013 

functional capacity evaluation (FCE) demonstrated that appellant could perform sedentary work 

with lifting limited to 5 pounds frequently and 15 pounds occasionally. 

As to appellant’s allegations of working outside her restrictions, she submitted no 

evidence, such as a witness statement, to verify this contention. Appellant submitted no 

evidence to show that her schedule had been frequently changed, as alleged, such as a 

time/analysis report. There is, therefore, insufficient evidence to demonstrate that she was not 

provided appropriate light-duty work. Likewise, she was nonspecific in her assertion that she 

was being “messed with” at the employing establishment, and reported to Dr. Walker only that 

her new boss “picked on her.” A claimant must establish a factual basis for his or her allegations 

with probative and reliable evidence.17 Appellant did not do so in this case. 

The medical evidence contemporaneous with the claimed April 2014 recurrence includes 

a March 4, 2014 emergency room report in which Dr. Millwood diagnosed myofascial lumbar 

strain. On March 13, 2014 Dr. Walker noted that appellant injured her back at work and was 

told by a physician not to return to work until at least March 26, 2014. Evidence shows that 

appellant was hospitalized on March 17, 2014, when she was vomiting blood, and was 

discharged on March 20, 2014. Dr. Silver diagnosed esophagitis, status post gastric bypass, 

gastritis, and anastomotic ulcer times two. Discharge diagnoses were syncope secondary to 

 16 Supra note 11. 

17 James E. Norris, 52 ECAB 93 (2000).
8

orthostasis secondary to blood loss anemia; blood loss anemia secondary to acute anastomotic 

ulcers; candida esophagitis; and severe headache. On March 21, 2014 Dr. Jones reported that 

appellant was recently hospitalized with pneumonia. 

On April 7, 2014 Dr. Walker indicated that appellant worked Tuesday and Wednesday 

the previous week, but took Thursday off for a family member’s surgery. Appellant reported 

that she was a “basket case” because her work schedule had been changed three times and this 

made her suicidal and depressed because she needed to work three days in a row. Dr. Walker 

also noted that three weeks earlier appellant injured her back at work, and that a new boss picked 

on her. She found appellant unable to work due to her major depression. On June 1, 2015 

Dr. Walker advised that appellant was unable to work due at least in part to the 1989 work 

injury. She opined that appellant was a woman suffering multiple medical and personal issues 

who repeatedly reported difficulty maintaining a schedule, poor ability to perform a job in a safe 

and efficient manner, plus the constant stress of dealing with her compensation claim. 

Dr. Walker merely alluded to stress at work and did not discuss any specific job duties or 

sufficiently explain why appellant could not work her modified part-time position. She did not 

explain from a medical perspective the nature of the relationship between the accepted 

depression and the job duties appellant was performing at the time of the claimed recurrence. 

Dr. Burnside merely noted that appellant reported that she was forced to work outside her 

restrictions. She also reported that appellant had an abscessed tooth, that she had regained most 

of the weight she had lost following gastric bypass, and that she had syncopal episodes with falls. 

Dr. Burnside did not explain how appellant had a spontaneous change in her accepted conditions 

causing total disability. Dr. Kennedy reported that appellant’s depression was worsened by pain 

and that she had suicidal thinking. He also reported that appellant had ongoing family stress. 

Dr. Kennedy provided no opinion regarding appellant’s work abilities. While the evidence 

supports that appellant had four psychiatric hospitalizations in 2014, none of the associated 

medical reports include a specific explanation that she could no longer work 12 hours of 

modified duty weekly beginning April 2014 because of her accepted employment-related 

conditions. 

At the time of the claimed disability, appellant had been hospitalized for a nonworkrelated condition, problems resulting from a gastric bypass. The employing establishment 

thought she was off work due to a March 3, 2014 back injury. Neither Dr. Walker nor Dr. Jones 

reported awareness of this serious medical hospitalization. Moreover, neither exhibited any 

knowledge of appellant’s part-time modified duties. No physician has provided a rationalized 

medical report explaining how a spontaneous change in the accepted conditions caused total 

disability.18 The need for rationale is particularly important since the contemporaneous medical 

evidence indicates that appellant was also treated for many nonemployment-related conditions 

around the time of her claimed recurrence of disability. 

As noted an individual who claims a recurrence of disability has the burden of proof to 

establish that the disability is related to the accepted injury. This requires furnishing medical 

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

 18 See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not 

fortified by medical rationale is of little probative value). 
9

history, concludes that the disabling condition is causally related to the employment injury and 

who supports that conclusion with sound medical reasoning.19 The Board finds insufficient 

medical evidence in this case. Consequently, appellant has not met her burden of proof to 

establish that her claimed April 2014 recurrence of total disability was a result of the accepted 

conditions. 

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 did not meet her burden of proof to establish a recurrence 

of total disability on April 7, 2014, caused by a May 31, 1989 employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the June 10, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 1, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 19 Supra note 15.