United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Fairfax, VA, Employer 

__________________________________________ 

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Docket No. 17-0092 

Issued: May 26, 2017 

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 October 24, 2016 appellant, through counsel, filed a timely appeal from an August 25, 

2016 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 to consider 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 met her burden of proof to establish a recurrence of 

disability commencing December 20, 2008 causally related to her accepted November 29, 2005 

employment injury. 

FACTUAL HISTORY 

This case has previously been before the Board.3 The facts of the case as presented in the 

prior Board decision are incorporated herein by reference. The relevant facts are as follows. 

On November 29, 2005 appellant, then a 49-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she injured her lower back and left arm during the 

course of her federal employment. In an accompanying statement she indicated that while she 

was pulling mail a ledge slipped causing her to fall backward and hit her lower back and left arm 

against a metal case. Appellant did not stop work, but she began working in a modified-duty 

position on November 30, 2005. 

In a May 22, 2006 note, Dr. Hien T. Nguyen, appellant’s treating Board-certified family 

practitioner, indicated that appellant could work light duty with no lifting more than 10 pounds, 

no bending, no mail carrying, and no driving. He continued to submit notes indicating ongoing 

treatment of appellant and listing similar restrictions. 

On July 28, 2006 the employing establishment offered appellant a limited-duty position 

as a rural carrier, with lifting limited to less than 10 pounds and reaching above the shoulder 

limited to two hours. Appellant accepted the offered position on August 19, 2006 and returned 

to work. The position was effective August 16, 2006. 

On May 9, 2008 OWCP accepted appellant’s claim for contusion of ribs and aggravation 

of sciatica. 

Appellant worked in a limited-duty capacity for several years, but in August 2008, she 

stopped work entirely. She received continuation of pay from August 2 to December 19, 2008. 

Appellant thereafter filed a recurrence of disability (Form CA-2a) alleging disability 

commencing December 20, 2008. 

In an October 8, 2008 report, Dr. Jeff Jacobson, a Board-certified neurosurgeon, 

indicated that appellant had persistent back and leg pain. He noted that he could find no 

anatomical correlation for her complaints. Dr. Jacobson noted that appellant did have mild 

degeneration of the disc, which was appropriate for her age. He opined that she should resume 

physical therapy and continue with an aggressive home exercise program. 

In progress notes dated from October 21, 2008 through January 16, 2009, Dr. Nguyen 

noted that appellant complained of persistent lower back pain radiating down her left leg. He 

noted that she reported difficulty walking long distances and going up and down steps. 

 3

 Docket No. 14-1281 (issued November 6, 2014). 
3

Dr. Nguyen diagnosed back pain/radicular symptoms, well-controlled hypertension, and 

hyperlipidemia. On January 30, 2009 he responded to OWCP’s questions by noting that 

appellant’s diagnoses were low back pain, sciatica, and limb pain. Dr. Nguyen opined that the 

residuals from her employment injury had not resolved, that she had not reached maximum 

medical improvement, and that she was totally disabled from all work activities. On 

February 23, 2009 he indicated that appellant had chronic lower back pain due to work-related 

injury in 2005 and was unable to work commencing September 2008 due to chronic lower back 

pain/radiculopathy. Dr. Nguyen also excused her from work in notes dated March 12 and 

April 10 and 24, 2009. 

On April 16, 2009 OWCP denied appellant’s recurrence claim. It determined that the 

medical evidence of record failed to demonstrate a relationship between any disability on or after 

December 20, 2008 and her November 29, 2005 employment injury. 

Appellant, through counsel, requested reconsideration on May 11, 2009. 

In a September 3, 2009 report, Dr. Robert W. Freeman, a physician Board-certified in 

pain management, noted that appellant had been his patient since November 4, 2008, that her 

diagnoses were chronic low back pain, status post trauma, and mild lumbar disc disease at L5-S1 

by magnetic resonance imaging (MRI) scan. He discussed her employment injury and noted that 

she had progressive disability since the time of the trauma. Dr. Freeman indicated that appellant 

stopped working when she noted that her leg began to give out on her. He noted that sitting, 

standing, or walking more than 15 minutes at a time and climbing may increase dysfunction and 

pain. Dr. Freeman also noted that twisting, bending, and reaching above appellant’s shoulders 

were activities to be minimized. He opined that the results of her trauma appeared to have 

stabilized, but that unfortunately backs do not improve with age, but rather deteriorated. 

Dr. Freeman opined that the injury had accelerated the deterioration of appellant’s back. 

Appellant continued to submit multiple notes from Dr. Nguyen. Dr. Nguyen submitted 

pairs of notes on multiple dates from February 23, 2009 through February 9, 2011. The first of 

these notes indicated that appellant had chronic lower back pain due to a work-related injury in 

2005 and that she was unable to work, commencing September 2008, due to chronic lower back 

pain/radiculopathy. The second note indicated that she may return to work for financial reasons, 

not medical reasons. In these notes, Dr. Nguyen indicated that appellant had a limitation of 

working five hours a day on a trial basis, and that her limitations included no bending or standing 

or lifting more than 10 pounds. He also recommended that her progress be reviewed on a weekly 

basis by Dr. Freeman. 

In a March 9, 2010 report, Dr. Talal Ghazal, a physician Board-certified in pain 

management, noted that a lumbar spine MRI scan performed on September 23, 2008 showed a 

mild central disc protrusion at L5-S1 with associated disc desiccation, which was consistent with 

the MRI scan performed in November 2007. He also noted that appellant had a computerized 

tomography scan of the lumbar spine with contrast on August 19, 2009 which showed multilevel 

degenerative disc changes, mild facet arthrosis, and thickening of the ligamentum flavum, most 

pronounced at L3-4, L4-5, and L5-S1, with no broken vertebrae. Dr. Ghazal described 

appellant’s her job duties and her injury. He noted that the following activities could increase 

dysfunction and pain: sitting, standing, or walking for more than 15 minutes at a time, climbing, 
4

and twisting motion. Dr. Ghazal also noted that twisting bending and reaching above the 

shoulder should be minimized and recommended a dorsal spinal cord stimulator. 

Appellant, through counsel, requested reconsideration by letter received by OWCP on 

April 20, 2010. She again requested reconsideration on May 27, 2010. 

In an October 6, 2010 decision, OWCP reviewed appellant’s claim on the merits, since it 

had not issued a decision within 90 days of receipt of the reconsideration request, but denied 

modification of its prior decision. It found that she had not established that her work injury of 

November 29, 2005 contributed to her claimed disability for work after December 20, 2008. 

Dr. Nguyen continued to submit dual notes, dated from November 17, 2010 through 

May 4, 2012, indicating both that appellant was disabled, but that she may return to work for 

financial reasons. 

By letter dated July 14, 2011 and received by OWCP on July 18, 2011, appellant, through 

counsel, filed a request for reconsideration and submitted additional evidence. 

In a March 21, 2011 report, Dr. Ghazal listed appellant’s diagnoses as of January 25, 

2011 as chronic axial low back pain with left lumbosacral radiculopathy, MRI scan evidence of 

lumbar disc protrusion at L5-S1 with S1 nerve root abutment, mild facet joint arthropathy of the 

lumbar spine, and status post spinal cord stimulator system implantation on June 29, 2010. He 

noted that there was apparently some confusion because he had not included the word “sciatica” 

or “sciatica pain” as part of his prior diagnoses. Dr. Ghazal explained that sciatica was an older 

generic term for pain in the buttocks region which starts in the back and radiates down the legs. 

He also noted that, concerning the cause of the sciatica, appellant did not have pain in her back 

radiating down her left leg before November 29, 2005 when a heavy object, weighing 

approximately 200 pounds, fell on her and she fell on a table injuring her back. Dr. Ghazal noted 

that her pain had been constant since the incident. 

Counsel submitted letters to OWCP reminding it of the requests for reconsideration dated 

February 8, 2012 and January 15, 2013. However, no action was taken by OWCP on appellant’s 

claim. By letter dated January 17, 2014, received on January 21, 2014, counsel asked OWCP to 

immediately process the request for reconsideration. 

By decision dated April 16, 2014, OWCP denied reconsideration of its October 6, 2010 

decision. It considered counsel’s letter January 21, 2014 to be a request for reconsideration, 

found that it was filed more than one year after the October 6, 2010 merit decision, and 

determined that appellant’s reconsideration request was untimely. OWCP denied her 

reconsideration request as it was untimely filed and failed to establish clear evidence of error. 

Appellant appealed to the Board on May 12, 2014. On November 6, 2014 the Board 

issued an Order Remanding Case. The Board determined that appellant’s request for 

reconsideration was received by OWCP on July 18, 2011, that she had submitted new evidence 

at that time, and that OWCP should consider her reconsideration request as timely. The Board 
5

remanded the case for OWCP to consider appellant’s request under 20 C.F.R. §§ 10.606, 10.608, 

and 10.609.4

 

By letter dated February 24, 2015, counsel asked that OWCP issue a decision pursuant to 

the Board’s remand order. On December 15, 2015 he again asked OWCP to rule, noting that it 

had been over a year since the Board’s order. On May 13, 2016 counsel asked OWCP to issue a 

decision and noted that appellant had waited more than one year for further development of her 

claim. 

By decision dated August 25, 2016, OWCP denied modification of its prior decisions, 

finding that the evidence of record did not establish a recurrence of disability, commencing 

December 20, 2008. 

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 has resulted from a previous 

injury or illness, without an intervening injury or new exposure to the work environment that 

caused the illness.5

 The term also means 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 (except when such withdrawal occurs for reasons 

of misconduct, nonperformance of job duties, or reduction-in-force) or when the physical 

requirements of such an assignment are altered so that they exceed his or her established physical 

limitations.6

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 of 

record establishes that he or she 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 and show that she cannot perform such light duty. 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.7

 The burden includes the 

necessity of furnishing evidence from a qualified physician who concludes, on the basis of a 

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

to the employment injury. The medical evidence must demonstrate that the claimed recurrence 

was caused, precipitated, accelerated, or aggravated by the accepted injury.8

 4 Id. 

5

 20 C.F.R. § 10.5(x). See T.S., Docket No. 09-1256 (issued April 15, 2010). 

6 Id. 

7 S.F., 59 ECAB 525 (2008); Terry R. Hedman, 38 ECAB 222 (1986). 

8 M.P., Docket No. 15-0361 (issued September 27, 2016). 
6

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.9

 The opinion of the 

physician must be based on a complete factual and medical background of the employee, must be 

one of reasonable medical certainty, and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the employee.10

ANALYSIS 

OWCP accepted that on November 29, 2005 appellant sustained a contusion of her ribs 

and aggravation of her sciatica due to an employment incident on that date. Appellant returned 

to modified work the following day. On July 28, 2006 the employing establishment made an 

offer for her to return to work as a rural carrier, with limitation of lifting no more than 10 pounds 

and reaching above the shoulder limited to two hours. This position was within the work 

restrictions set by appellant’s treating physician, Dr. Nguyen. Appellant returned to work in this 

limited capacity until August 2008, when she stopped work. She filed claims for compensation 

commencing December 20, 2008. 

The Board finds that appellant failed to meet her burden of proof to establish a recurrence 

of disability on or after December 20, 2008. In support of her recurrence claim, appellant 

submitted multiple notes from Dr. Nguyen. In some of these notes, Dr. Nguyen indicated that 

she was unable to work commencing September 2008 due to chronic lower back 

pain/radiculopathy, however, he also indicated that for financial reasons she could return to 

work. He set forth limitations, including not lifting more than 10 pounds. On most dates 

Dr. Nguyen submitted a pair of statements, giving both options. In a January 30, 2009 response 

to OWCP’s queries, he indicated that appellant’s diagnoses were low back pain, sciatica, and 

limb pain. Dr. Nguyen opined that she was totally disabled from all work activities. However, 

he failed to provide any explanation as to why appellant could no longer perform her limitedduty position. Dr. Nguyen’s opinions were devoid of findings on examination or any 

explanation as to why she was no longer able to perform her limited-duty work. Medical 

conclusions unsupported by rationale are of little probative value.11 Although the notes of 

Dr. Nguyen generally supported appellant’s claim for recurrence, his opinions were conclusory 

and contained no rationalized explanation as to how or why her conditions caused disability or 

remained symptomatic.12

The remaining physicians also failed to provide a well-rationalized opinion indicating 

that appellant could not perform her limited-duty employment. Dr. Jacobson, in an October 8, 

2008 report, noted that she had persistent back and leg pain, but that there was no anatomical 

correlation for this. He did not provide any opinion with regard to her ability to perform her 

 9 See I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007). 

10 See I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 

11 Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001). 

12 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). 
7

limited work duties. In a September 3, 2009 report, Dr. Freeman opined that appellant’s work 

injury accelerated and focused the deterioration of her back. He noted that certain activities 

could increase dysfunction and pain, including standing sitting, or walking for more than 15 

minutes at a time or climbing. However, Dr. Freeman also never provided an explanation as to 

why appellant could not perform her limited-duty position. Furthermore, his opinion is 

speculative, and is therefore of diminished probative value.13 

Finally, although Dr. Ghazal discussed appellant’s pain in his reports of March 9, 2010 

and March 21, 2011, he did not provide an opinion as to her ability to perform her limited-duty 

work assignment. The Board will not require OWCP to pay compensation for disability in the 

absence of medical evidence directly addressing the specific dates of disability for which 

compensation is claimed. To do so, would essentially allow an employee to self-certify her 

disability and entitlement to compensation.14 

An individual 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.15 In the case at hand, appellant has not submitted medical evidence 

sufficient to show that the claimed recurrence of disability was causally related to the accepted 

employment-related conditions of contusion of ribs and aggravation of sciatica. 

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 failed to meet her burden of proof to establish a recurrence 

of disability on or after December 20, 2008 causally related to her accepted November 29, 2005 

employment injury. 

 13 Ricky S. Storms, 52 ECAB 349, 352 (2001) (the opinion of a physician supporting causal relationship need not 

be one of absolute medical certainty, but must not be speculative or equivocal. The opinion should be expressed in 

terms of a reasonable degree of medical certainty); see also D.D., 57 ECAB 734, 739 (2006). 

14 Y.A., Docket No. 16-0258 (April 13, 2016). 

15 L.B., Docket No. 15-1017 (issued September 19, 2016); see also S.S., 59 ECAB 315 (2008). 
8

ORDER 

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

Compensation Programs dated August 25, 2016 is affirmed. 

Issued: May 26, 2017 

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