United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Elmhurst, IL, Employer

__________________________________________

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Docket No. 19-0481

Issued: August 20, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 2, 2019 appellant, through counsel, filed a timely appeal from a December 7, 

2018 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 

disability, commencing February 16, 2018, causally related to her accepted November 26, 2011 

employment injury.

FACTUAL HISTORY

On November 28, 2011 appellant, then a 42-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on November 26, 2011 she sustained a left arm and shoulder 

injury lifting a mail tray from the back of her mail truck while in the performance of duty. OWCP 

accepted the claim for left upper arm joint pain, neck sprain, C5-6 disc herniation, and right 

brachial neuritis/radiculitis.3It also authorized a May 2, 2012 anterior cervical discectomy and 

fusion at C5-6 performed by Dr. Dalip Pelinkovic, a Board-certified orthopedic surgeon. OWCP 

paid appellant wage-loss compensation for temporary total disability for the period April 12 

through December 24, 2012. In a January 11, 2013 work capacity evaluation (Form OWCP-5c),

Dr. Pelinkovic advised that appellant was capable of performing her usual job. He recommended 

that appellant use a cart to avoid reinjuring her neck.

In March 2018, appellant contacted OWCP regarding the need to file a recurrence claim. 

She reportedly developed a bone growth at the spot of the previously approved cervical fusion.

On March 12, 2018 appellant filed a notice of recurrence (Form CA-2a) claiming disability

beginning February 16, 2018. She stopped work completely as of March 7, 2018. Appellant noted 

that she had stopped delivering mail in January 2016, and was subsequently promoted to a 

supervisor. She explained that on February 16, 2018 she experienced sharp pain in her neck and 

across both shoulders, with numbness and tingling in her hands.

In an attached statement, appellant recounted that she returned to regular duties as a letter 

carrier on December 24, 2012 following her November 26, 2011 employment injury. She reported 

experiencing pain, weakness, and numbness in her hands months after returning to work, which 

became severe in January 2018. On February 16, 2018 appellant left work and sought treatment 

at an urgent care facility. She was referred for physical therapy with no relief in symptoms. 

Appellant noted that she underwent a magnetic resonance imaging (MRI) scan and her physician 

recommended surgery.

In a development letter dated April 26, 2018, OWCP advised appellant of the definition of 

a recurrence of disability and the type of evidence necessary to establish that she had sustained a 

recurrence of employment-related disability. It afforded her 30 days to submit additional evidence.

A March 2, 2018 cervical MRI scan revealed central spinal canal stenosis with cord 

deformity and compression at C3-4 secondary to sizable disc protrusion. There was also evidence 

 

3 On January 13, 2015 appellant sustained another work-related traumatic injury, which OWCP accepted for left 

hip contusion under File No. xxxxxx290. She was released to resume her full-time, regular work duties effective 

February 14, 2015. 
3

of a much smaller disc protrusion at C2-3. At C6-7 there was evidence of a moderate disc 

osteophyte complex with mild deformity of the cord without compression.

In a treatment note dated March 30, 2018, Dr. Vivek Mohan, a Board-certified orthopedic 

surgeon, treated appellant for severe neck pain, numbness in both hands, and weakness in her upper 

extremities. He noted that appellant had a cervical fusion in 2012 and she was currently off work 

due to pain. Appellant reported no recent trauma. Dr. Mohan related the findings of the 2018 MRI 

scan of the cervical spine. Findings on examination revealed paravertebral neck pain at C5-6 and 

decreased sensation in both hands. Dr. Mohan diagnosed cervical disc disorder with myelopathy 

and status post cervical spinal fusion. He recommended a C3-4 fusion, possible fusion of C4-5, 

possible removal of C5-6 anterior cervical hardware due to the severe stenosis with myelopathy at 

C3-4, and large disc herniation.

Dr. Mohan treated appellant in follow-up on May 4, 2018, 10 days status post C3-4 anterior 

cervical discectomy and fusion. Appellant reported improvement in neck pain, intact strength in 

the biceps, triceps, deltoids, mild sensory decrease in the right arm, and good neck range of motion. 

Dr. Mohan indicated that cervical spine x-rays showed the implant in good position at the C3-4 

level. He diagnosed status post C3-4 anterior cervical discectomy and fusion and recommended a 

brace. Dr. Mohan advised that because she was a letter carrier she could not return to work for 

three months. He noted a likelihood that this was a recurrent disc herniation due to prior cervical 

fusions and related to a work injury.

By decision dated June 22, 2018, OWCP denied appellant’s claim for a recurrence of 

disability. It found that the medical evidence of record was insufficient to establish that her 

accepted November 26, 2011 employment injury had worsened to the extent that she was disabled 

from her work duties.

On June 29, 2018 appellant requested an oral hearing before an OWCP hearing 

representative. The hearing was held on October 22, 2018.

Post-hearing, counsel submitted additional medical evidence, including a February 21, 

2018 report from Dr. Pelinkovic who indicated that he had treated appellant for neck pain and right 

shoulder pain radiating over her deltoid and shoulder blade. Appellant completed physical therapy,

which increased her pain. Dr. Pelinkovic noted that appellant had a C5-6 fusion in 2012, which 

resolved her left upper extremity pain. Appellant reported difficulty in maintaining gainful 

employment. Dr. Pelinkovic diagnosed cervical radiculopathy. X-rays revealed a fusion at C5-6 

with C4-5 segment disease. Dr. Pelinkovic returned her to work with restrictions. On March 7, 

2018 appellant presented with neck pain and “clumsiness” in the upper extremity. Dr. Pelinkovic

reviewed the MRI scan findings and diagnosed cervical spinal stenosis with myelopathy, history 

of cervical spinal fusion and extension of fusion by two levels. He took appellant off work until 

her follow-up appointment.

OWCP subsequently received additional medical evidence, including an April 23, 2018

report from Dr. Mohan noting that he performed an anterior cervical discectomy and fusion at C3-

4, interbody cage placement, and anterior spinal instrumentation. He diagnosed right cervical disc 

herniation and radiculomyelopathy.
4

In a June 8, 2018 report, Dr. Mohan noted treating appellant six weeks status post C3-4 

anterior cervical discectomy and fusion. Appellant reported improved neck pain, intact strength, 

improved sensory in the right arm, and good neck range of motion. An x-ray of the cervical spine 

revealed the implant in good position at C3-4 with no sign of hardware breakage or loosening. 

Dr. Mohan diagnosed status post C3-4 anterior cervical discectomy and fusion and advised that 

appellant could not work for three months due to surgery. 

In an August 17, 2018 report, Dr. Mohan noted that appellant reported improved neck pain 

after the C3-4 anterior cervical discectomy and fusion. He recommended physical therapy and 

continued her off work. Appellant again presented on September 7, 2018 with right hand pain and 

difficulty squeezing her hand. Dr. Mohan diagnosed status post cervical fusion and positive 

de Quervain’s tendinitis of the right hand. He returned appellant to work and recommended a 

brace for her right hand and limited her lifting to 20 pounds.

X-rays of the cervical spine dated April 23 to July 17, 2018, revealed status post cervical 

fusion, and stable postoperative findings at C3-4 fusion without complication. Appellant attended 

physical therapy from May 8 to October 17, 2018.

By decision dated December 7, 2018, the hearing representative affirmed the June 22, 2018

OWCP 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 resulted from a previous 

compensable injury or illness and without an intervening injury or new exposure in the work 

environment.4 This term also means an inability to work because a light-duty assignment made 

specifically to accommodate an employee’s physical limitations, and which is necessary because 

of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the 

employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for 

reasons of misconduct, nonperformance of job duties, or a reduction-in-force.5

OWCP’s procedures provide that a recurrence of disability includes a work stoppage 

caused by a spontaneous material change in the medical condition demonstrated by objective 

findings. That change must result from a previous injury or occupational illness rather than an 

intervening injury or new exposure to factors causing the original illness. It does not include a 

condition that results from a new injury, even if it involves the same part of the body previously 

injured.6

 

4 20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019). 

5

Id.

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket 

No. 18-0334 (issued December 4, 2018). 
5

An employee who claims a recurrence of disability due to an accepted employment-related 

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. This burden of proof requires that a claimant furnish medical evidence from a 

physician who, on the basis of a complete and accurate factual and medical history, concludes that, 

for each period of disability claimed, the disabling condition is causally related to the employment 

injury, and supports that conclusion with medical reasoning.7 Where no such rationale is present, 

the medical evidence is of diminished probative value.8

ANALYSIS

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

disability, commencing February 16, 2018, causally related to her accepted November 26, 2011 

employment injury. 

In a report dated February 21, 2018, Dr. Pelinkovic treated appellant for neck pain and 

right shoulder pain radiating over her deltoid and shoulder blade. He noted that appellant had a 

C5-6 fusion in 2012. Dr. Pelinkovic diagnosed cervical radiculopathy and returned her to work 

with restrictions. However, he did not specifically address whether appellant had a recurrence of

disability commencing February 16, 2018 causally related to the accepted employment conditions

or otherwise provide medical reasoning explaining why any current condition or work 

restrictions were due to the accepted November 26, 2011 employment injury.9 

On March 7, 2018 appellant presented with neck pain and clumsiness in the upper 

extremity. Dr. Pelinkovic diagnosed cervical spinal stenosis with myelopathy, history of cervical 

spinal fusion, and extension of fusion by two levels. He held appellant off work until her followup appointment. Without a specific opinion regarding how work factors caused a recurrence of 

disability, his reports are insufficient to meet her burden of proof.10

On March 30, 2018 Dr. Mohan treated appellant for severe neck pain, numbness in both 

hands, and weakness in her upper extremities. He noted that appellant had a cervical fusion in 

2012 and was currently off work due to pain. Dr. Mohan diagnosed cervical disc disorder with 

myelopathy and status post cervical spinal fusion. He opined that due to severe stenosis with 

myelopathy at C3-4 and large disc herniation he recommended surgery at C4-5. Dr. Mohan failed 

to provide a rationalized opinion explaining why appellant’s recurrent disability was due to the 

 

7

J.D., Docket No. 18-0616 (issued January 11, 2019). 

8 G.G., Docket No. 18-1788 (issued March 26, 2019). 

9

Id.

10 See M.B., Docket No. 18-1455 (issued March 11, 2019). 
6

accepted November 26, 2011 employment injury11 and his report is therefore insufficient to meet 

her burden of proof to establish an employment-related recurrence of disability.12

On April 23, 2018 Dr. Mohan performed an anterior cervical discectomy and fusion at C3-

4, interbody cage placement, and anterior spinal instrumentation and diagnosed right cervical disc 

herniation and radiculomyelopathy. However, he did not address appellant’s work status or any 

periods of disability. Without a specific opinion regarding how work factors caused a recurrence 

of disability, Dr. Mohan’s reports are insufficient to meet her burden of proof.13 

Dr. Mohan treated appellant in follow-up on May 4, 2018 and diagnosed status post C3-4 

anterior cervical discectomy and fusion. He advised that she was a postal carrier and could not 

return to work for three months. However, Dr. Mohan did not provide rationale explaining

whether, how, and why appellant’s recurrent disability was causally related to the accepted 

November 26, 2011 employment injury.

14

 He noted a “likelihood” that this was a recurrent disc 

herniation. However, at best, this report provides only speculative support for causal relationship 

as the physician qualifies his support by noting a “likelihood” of a recurrent disc herniation due to 

prior cervical fusions and work injury. Dr. Mohan provided no medical reasoning to support his 

opinion on causal relationship. Therefore, this report is insufficient to meet appellant’s burden of 

proof.15

In reports dated June 8 and August 17, 2018, Dr. Mohan noted that appellant was status 

post C3-4 anterior cervical discectomy and fusion with improved neck pain. He diagnosed status 

post C3-4 anterior cervical discectomy and fusion and advised that appellant could not work due 

to surgery. However, Dr. Mohan did not provide an opinion on whether the accepted employment 

injury caused a recurrence of disability. Consequently, it is of no probative value on the issue of 

causal relationship.16

Appellant presented on September 7, 2018 with right hand pain and Dr. Mohan diagnosed 

status post cervical fusion and positive de Quervain’s tendinitis of the right hand. Dr. Mohan 

returned appellant to work limited duty. However, he did not specifically address whether she had

a recurrence of disability on February 16, 2018 causally related to the accepted employment

conditions or otherwise provide medical reasoning explaining why any current work restrictions 

were due to the accepted November 26, 2011 injury.17 Without a specific opinion regarding how 

 

11 Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are 

entitled to little probative value). 

12 J.D., Docket No. 18-0616 (issued January 11, 2019). 

13 See supra note 10. 

14 See id.

15 Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57 

ECAB 734 (2006).

16 Id.

17 Id. 
7

work factors caused a claimed recurrence of disability, his reports are insufficient to meet her 

burden of proof.18

Appellant attended physical therapy treatment from May 8 to October 17, 2018. The 

Board has held that reports signed by a physical therapist are of no probative value as physical 

therapists are not considered physicians as defined under FECA and they are, therefore, not 

competent to provide a medical opinion.19

Appellant also submitted an MRI scan of the cervical spine dated March 2, 2018 and xrays of the cervical spine dated April 23 to July 17, 2018. The Board has held that reports of 

diagnostic tests lack probative value as they do not provide an opinion on causal relationship 

between the accepted employment factors and a diagnosed condition.20

As the medical evidence of record is insufficient to establish that appellant’s accepted 

cervical condition had worsened to the extent that she was totally disabled commencing 

February 16, 2018 she has not met her burden of proof to establish a recurrence of disability 

causally related to her November 26, 2011 employment injury. 

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 

disability commencing February 16, 2018, causally related to her accepted November 26, 2011 

employment injury. 

 

18 Id.

19 V.W., Docket No. 16-1444 (issued March 14, 2017) (where the Board found that physical therapy reports do not 

constitute competent medical evidence because a physical therapist is not a “physician” as defined under FECA); see 

David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and physical 

therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a 

physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic 

practitioners within the scope of their practice as defined by state law). 

20 See J.M., Docket No. 17-1688 (issued December 13, 2018). 
8

ORDER

IT IS HEREBY ORDERED THAT the December 7, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 20, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board