United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.T., Appellant

and

U.S. POSTAL SERVICE, MIDDLE VILLAGE 

POST OFFICE, Staten Island, NY, Employer

__________________________________________

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Docket No. 17-1642

Issued: January 17, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 24, 2017 appellant, through counsel, filed a timely appeal from a May 25, 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 met his burden of proof to establish a recurrence of 

disability on March 20, 2016 causally related to the accepted November 12, 2015 employment 

injury.

FACTUAL HISTORY

On November 12, 2015 appellant, then a 54-year-old city letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, he tripped over a postal container and 

sustained an injury to his right side, including injuries to his shoulder, elbow, knee, and hand. 

He stopped work on November 13, 2015. On December 15, 2015 OWCP accepted appellant’s 

claim for sprain of the right middle finger and contusion of the right knee. Appellant received 

continuation of pay benefits and returned to full-duty work on December 10, 2015.

Appellant submitted an unsigned note dated March 7, 2016 indicating that he was 

diagnosed with lumbar radiculopathy/spinal stenosis and would be able to return to work fullduty without restrictions on March 14, 2016. A March 14, 2016 unsigned note indicated that 

appellant could return to work on March 21, 2016.

In reports dated March 7 and 22, and April 19, 2016, Dr. Vasilios Kountis, a Boardcertified physiatrist, diagnosed radiculopathy and spinal stenosis of the lumbar region. He 

treated appellant with a right lumbar epidural steroid injection.

In a March 28, 2016 report, Dr. Yakov Perper, a Board-certified anesthesiologist and pain 

management physician, diagnosed radiculopathy in appellant’s lumbar region and spondylosis 

without myelopathy or radiculopathy, lumbosacral region.

Appellant filed an occupational disease claim (Form CA-2) on April 4, 2016, alleging 

that his lumbar disc bulge from L2-4 and disc herniation from L5-S1 were causally related to 

factors of his federal employment.3

On June 22, 2016 appellant filed a claim (Form CA-2a) alleging a recurrence of the 

November 12, 2015 employment injury. He indicated that he stopped work on March 20, 2016. 

In support of his claim, appellant submitted medical reports from the office of Dr. Nancy 

Lavine, a Board-certified internist, dated from March 7 through April 19, 2016, discussing

treatment for low back pain. In the March 7, 2016 note, Dr. Lavine indicated that appellant had 

fallen at work in November 2015 and injured his whole right side, that he was initially evaluated 

for his right knee, and that some of the pain subsided except for the lower back. Her treatment of 

appellant included an L4-5 transforaminal epidural steroid injection given on April 29, 2015. 

By letter dated August 18, 2016, OWCP informed appellant that further information was 

necessary to support his recurrence claim. Appellant was afforded 30 days to submit this 

information.

 

3 OWCP has not issued a decision regarding this occupational disease claim. 
3

In response, appellant submitted continuing claims for compensation (Form CA-7). He 

also submitted responses to questions propounded by OWCP and discussed the history of his 

injury and medical treatment. Finally, appellant submitted a note by Dr. Kountis wherein he 

advised that appellant had lumbar radiculopathy and was currently out of work.

By decision dated November 28, 2016, OWCP denied appellant’s claim for a recurrence. 

It determined that appellant did not establish a spontaneous change or worsening of his accepted 

conditions.

On January 4, 2017 appellant requested a review of the written record by an OWCP 

hearing representative.

In a February 5, 2016 electromyogram/nerve conduction velocity (EMG/NCV) study 

report, Dr. Florence Shum, an osteopath, found electrophysiologic evidence of a subacute 

bilateral L5 and S1 radiculopathy, worse on the left side.

In a February 19, 2016 report of a magnetic resonance imaging (MRI) scan of the lumbar 

spine, Dr. Ronald Wagner, a Board-certified radiologist, found L1-2 posterior central left 

paracentral disc herniation; L2-3 and L3-4 grade 1 retrolisthesis an L4-5 posterior annular bulge; 

L5-S1 posterior disc herniation; and scoliotic curvature of the lumbar spine convex to the left. 

On April 19, 2016 Dr. Kountis noted that he administered a transforaminal epidural 

steroid injection on April 14, 2016, that appellant reported that he felt significantly better 

immediately after the procedure for the next two days, but that numbness in his right leg had

returned along with the pain and numbness in his lower back.

In May 16 and August 23, 2016 reports, Dr. Kountis diagnosed lumbar region 

radiculopathy and lumbar region spinal stenosis. He administered multiple lumbar epidural

steroid injections from May 16 to August 23, 2016.

In a December 23, 2016 report, Dr. Daniel Savarino, an osteopath, diagnosed 

radiculopathy, lumbar region and spinal stenosis, lumbar region. He noted that appellant was 

complaining of a lot of pain in his lower back. Dr. Savarino noted that appellant had stated that 

the steroid injections only provided relief for about one week at a time.

In an April 5, 2017 discharge note, Dr. John A. Bendo, a Board-certified orthopedic 

surgeon, noted that on April 3, 2017 appellant underwent an L4-5 laminectomy. He indicated 

that appellant was evaluated by physical and occupational therapy and his pain was controlled. 

Dr. Bendo noted that appellant gave a history of a trip and fall on the job, that he initially had 

right leg numbness that progressively worsened, and that in February 2016 his symptoms 

worsened to include lower back pain.

By decision dated May 25, 2017, the hearing representative determined that appellant had 

not met his burden of proof to establish a recurrence of disability due to his November 12, 2015 

employment injury.
4

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 resulting from a previous injury or 

illness, without an intervening cause or a new exposure to the work environment that caused the 

illness. It can also mean an inability to work that 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 or when the physical requirements of such an assignment are

altered so that they exceed his or her established physical limitations.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 of proof to establish, by the weight of the reliable, probative, and substantial evidence, a 

recurrence of total disability and an inability to perform such limited-duty work. As part of its 

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.5 To establish a change 

in the nature and extent of the injury-related condition, there must be a probative medical 

opinion, based on a complete and accurate factual and medical history, as well as supported by 

sound medical reasoning, that the disabling condition is causally related to employment factors.6 

In the absence of rationale, the medical evidence is of diminished probative value.7 While the 

opinion of a physician supporting causal relationship need not be one of absolute medical 

certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a 

reasonable degree of medical certainty.8

ANALYSIS

OWCP accepted that as a result of a November 12, 2015 employment injury, appellant 

sustained a sprain of the right middle finger and a contusion of the right knee. 

On June 22, 2016 appellant filed a claim alleging a recurrence of the November 12, 2015 

employment injury commencing March 20, 2016 when he had stopped work.

The Board finds that appellant has not established a recurrence of disability commencing 

March 20, 2016 causally related to his November 12, 2015 employment injury.

 

4

J.F., 58 ECAB 124 (2006). 

5 M.C., Docket No. 15-1762 (issued August 26, 2016). 

6 Mary A. Ceglia, 55 ECAB 626, 629 (2004). 

7

Id., Robert H. St. Onge, 43 ECAB 1169 (1992). 

8 Ricky S. Storms, 52 ECAB 349 (2001). 
5

The Board has found that, when a claimant stops work for reasons unrelated to the 

accepted employment injury, there is no disability within the meaning of FECA.9

The evidence appellant submitted to support a recurrence is found to discuss diagnoses 

relative to appellant’s back. However, the Board notes that appellant did not mention any injury 

to his back in his original claim form. Furthermore, appellant returned to full-duty work on 

December 10, 2015. 

The first notation of an injury to appellant’s back is a February 5, 2016 EMG/NCV 

report, wherein Dr. Shum found subacute bilateral L5 and S1 radiculopathy, worse on the left 

side. This was followed by a lumbar scan conducted on February 19, 2016, wherein Dr. Wagner 

found L1-2 posterior central-left paracentral disc herniation, L2-3 and L3-4 grade 1 retrolisthesis, 

an L4-5 annual bulge, and L5-S1 posterior disc herniation and scoliotic curvature of the lumbar 

spine convex to the left. These diagnostic studies are of limited probative value. Although these 

opinions establish a medical diagnosis, they do not address any relationship between these 

diagnoses and appellant’s accepted injury of November 12, 2015.10 The issue of whether a 

claimant’s disability is related to an accepted condition is a medical question which must be 

established by a physician who, on the basis of a complete and accurate factual and medical 

history, concludes that the disability is causally related to his or her employment injury and 

supports that conclusion with sound medical reasoning.11 As these reports fail to meet that 

standard, they are insufficient to establish appellant’s claim.

None of the other physicians of record provided support for a recurrence of disability 

related to appellant’s November 12, 2015 accepted employment injury. Although Dr. Kountis 

reported that appellant fell at work in November 2015, he never provided a rationalized medical 

opinion linking this fall to his diagnoses of radiculopathy and spinal stenosis of the lumbar 

region.12

Similarly, Dr. Lavine, although briefly mentioning the November 15, 2015 employment 

injury, does not link appellant’s low back pain to the accepted employment injury. Dr. Bendo 

also briefly notes the employment injury, but fails to discuss causation. Drs. Perper and Savarino 

do not discuss appellant’s employment injury at all. The Board has found that any medical 

evidence that does not offer an opinion regarding the cause of the employee’s condition is of 

limited value on the issue of causal relationship.13 

 

9 A.M., Docket No. 09-1895 (issued April 23, 2010).

10 See G.M., Docket No. 14-2057 (issued May 12, 2015). 

11 See L.M., Docket No. 17-0159 (issued September 27, 2017). 

12 Id. 

13 L.L., Docket No. 17-0908 (issued September 11, 2017). 
6

OWCP also received an unsigned report discussing appellant’s lumbar condition. The

Board, however, has found that unsigned reports are insufficient to meet appellant’s burden of 

proof because they lack identification and cannot be considered probative medical evidence.14

To establish that a claimed recurrence of a condition was caused by the accepted 

employment injury, medical evidence of bridging symptoms between the present condition and 

the accepted injury must support a physician’s conclusion of causal relationship.15 Appellant 

submitted no such evidence in this case and has, therefore, failed to meet his burden of proof.

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 on March 20, 2016 causally related to the accepted November 12, 2015 employment 

injury.

 

14 P.C., Docket No. 17-0880 (issued October 13, 2017).

15 H.D., Docket No. 17-1165 (issued September 8, 2017). 
7

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated May 25, 2017 is affirmed.

Issued: January 17, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board