United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Indianapolis, IN, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-0511

Issued: July 22, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 8, 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 28, 2018 causally related to her December 23, 2008 employment 

injury.

FACTUAL HISTORY

On January 26, 2009 appellant, then a 48-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on December 23, 2008 she injured her right knee, lower back, and hand,

when she fell on ice while in the performance of duty. She stopped work on January 13, 2009 and 

returned to her regular employment on April 6, 2010. OWCP assigned OWCP File No. 

xxxxxx856 and accepted the claim for right knee pain, low back pain, an aggravation of lumbar 

degenerative arthritis, an aggravation of lumbar L5 nerve root impingement, an aggravation of left 

radiculopathy, a temporary aggravation of right knee chondromalacia patella, and a temporary 

aggravation of right knee osteoarthritis.3

On March 20, 2018 appellant filed a claim for wage-loss compensation (Form CA-7) for 

the period from February 17 through March 16, 2018 under OWCP File No. xxxxxx856.

In support of her claim appellant submitted a September 21, 2016 report from Dr. Louis M. 

Wright, a Board-certified internist. Dr. Wright found that appellant should remain off work until 

October 24, 2016.

In a development letter dated March 22, 2018, OWCP notified appellant of the definition 

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

a recurrence of disability causally related to the December 23, 2008 employment injury. It advised 

her that the September 21, 2016 report from Dr. Wright was insufficient to show that she was 

disabled due to her December 23, 2008 employment injury or that she required restrictions after 

she returned to her full-time usual employment on April 6, 2010. OWCP noted that appellant had 

experienced an intervening injury on July 26, 2012 and had performed modified employment due 

to that injury until August 9, 2012, when she resumed her regular work duties. It afforded her 30 

days to submit additional evidence.

On April 2, 2018 appellant filed a notice of recurrence (Form CA-2a) causally related to 

her December 23, 2008 employment injury. The employing establishment indicated on the form 

that she had stopped work on February 28, 2018 and had not returned. It advised that appellant 

had performed modified employment since 2016.

 

3 OWCP subsequently accepted that appellant sustained a right leg open wound and chest wall contusion on July 26, 

2012 and assigned OWCP File No. xxxxxx521. Following her July 26, 2012 employment injury, appellant worked 

limited duty until she returned to her regular employment effective August 9, 2012. By decision dated July 18, 2014, 

OWCP found that appellant had not established that she had sustained a recurrence of disability on April 25, 2014 

causally related to her December 23, 2008 employment injury. By decision dated July 26, 2016, it granted her a 

schedule award for six percent permanent impairment of the left lower extremity and 14 percent permanent impairment 

of the right lower extremity.
3

By decision dated April 25, 2018, OWCP denied appellant’s claim for a recurrence of 

disability. It found that the medical evidence failed to establish that her accepted December 23, 

2008 employment injury had worsened such that she was disabled from her employment. 

Thereafter, appellant submitted a February 15, 2018 disability certificate from Dr. Wright,

opining that she could sit, stand, and walk for one hour a day. She also submitted a February 26, 

2018 letter from the employing establishment informing her that it was unable to accommodate 

her request for a light-duty assignment.

On May 2, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative.

In a report dated June 5, 2018, Dr. Paul Ho, a Board-certified orthopedic surgeon, 

evaluated appellant for right knee pain that had begun in 2008 after she fell at work. He noted that 

she had been working with limitations until February 2018, when the employing establishment 

advised that it could no longer accommodate her restrictions. On examination Dr. Ho found a 

negative straight leg raise, no knee effusion, and mildly limited range of motion of the right knee. 

He diagnosed a history of degenerative disc disease of the right knee and a history on a workers’

compensation form of lumbar stenosis with neurogenic claudication. Dr. Ho discussed treatment 

options.

A telephonic hearing was held on October 3, 2018. The hearing representative noted that 

the record failed to demonstrate that appellant had received medical treatment from 2014 to 2018. 

Counsel argued that she sustained a recurrence of disability as the employing establishment had 

withdrawn her limited-duty employment. The hearing representative advised appellant of the 

evidence needed to establish that she was working with restrictions as a result of her employment 

injury.

Subsequent to the hearing, appellant submitted an e-mail message from the employing 

establishment regarding her request for light-duty employment. It noted that she had applied for 

disability retirement and that there was no light-duty employment available at her facility.

In a medical information and restrictions assessment form dated August 30, 2018,

Dr. Wright diagnosed cervical radiculopathy and lumbar stenosis with neurogenic claudication. 

He provided medical restrictions, including no sitting, standing, walking, or lifting.

By decision dated December 7, 2018, OWCP’s hearing representative affirmed the 

April 25, 2018 decision. She found that there was no evidence showing that appellant was working 

with restrictions in February 2018 due to her December 23, 2008 employment injury, noting that 

the record was devoid of medical evidence from 2014 through 2018.

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 
4

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

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 28, 2018 causally related to her accepted December 23, 2008 

employment injury.

Appellant has alleged that she sustained a recurrence of disability as the employing 

establishment withdrew her limited-duty position. The withdrawal of a limited-duty assignment 

generally would establish disability if the evidence demonstrated continuing disability for regular 

employment due to the accepted employment injury.9 Appellant, however, has the burden of proof 

to establish that the employing establishment withdrew a modified-duty assignment provided due 

to her work injury.10 Following her December 23, 2008 employment injury, she returned to her 

 

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).

7

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

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

9 R.C., Docket No. 18-1695 (issued March 12, 2019).

10 See W.H., Docket No. 19-0168 (issued May 10, 2019).
5

regular work duties on April 6, 2010. Appellant sustained an intervening employment injury on 

July 26, 2012, and returned to her regular employment on August 8, 2012. She has not submitted 

any medical evidence supporting that the modified position in which she worked beginning 2016 

was provided as a result of her December 23, 2008 employment injury, and thus has not 

demonstrated a recurrence of disability based on the employing establishment’s withdrawal of a 

limited-duty position.11

Appellant has failed to submit reasoned medical evidence supporting that she was disabled 

from work beginning February 28, 2018 due to her accepted employment injury. 

In a February 15, 2018 disability certificate, Dr. Wright advised that appellant could sit, 

stand, and walk for one hour a day. His report, however, lacks probative value as it does not 

specifically attribute the work restrictions to the accepted employment injury.12

On June 5, 2018 Dr. Ho discussed appellant’s history of knee pain beginning in 2008 after 

an injury at work. He advised that she had worked with restrictions until February 2018. Dr. Ho 

diagnosed a history of degenerative disc disease of the right knee and a history of lumbar stenosis 

with neurogenic claudication. He did not provide work restrictions or otherwise address whether 

appellant was disabled due to her accepted employment injury during the claimed periods, and 

thus, his opinion is of no probative value.13

In a form report dated August 30, 2018, Dr. Wright diagnosed cervical radiculopathy and 

lumbar stenosis with neurogenic claudication. He provided medical restrictions, including no 

sitting, standing, walking, or lifting. Again, however, Dr. Wright failed to address the cause of the 

employment restrictions. As he did not address the relevant issue of whether appellant was 

disabled from employment during the claimed period due to her accepted employment injury, his 

opinion is of no probative value.14

Appellant failed to submit medical reports from a physician who has explained with 

medical rationale that she sustained a spontaneous worsening of her accepted conditions on or after 

February 28, 2018 as a result of the accepted December 23, 2008 employment injury sufficient to 

cause disability from employment.15 Thus, the Board finds that as she has not established by the 

weight of the reliable, probative, and substantial evidence, a change in the nature and extent of the 

 

11 See R.C., supra note 9.

12 R.G., Docket No. 18-0027 (issued May 13, 2019).

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

of no probative value on the issue of causal relationship. See L.B., Docket No. 18-0533 (issued August 27, 2018); 

D.K., Docket No. 17-1549 (issued July 6, 2018).

14 M.C., Docket No. 18-1391 (issued February 1, 2019).

15 T.S., Docket No. 18-0150 (issued April 12, 2019).
6

injury-related condition resulting in her inability to perform her employment duties,

16 she has not 

met her burden of proof.

Appellant may submit new evidence 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 28, 2018 causally related to her accepted December 23, 2008 

employment injury

ORDER

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

Workers’ Compensation Programs is affirmed.

Issued: July 22, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

16 Id.