United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.L., Appellant

and

U.S. POSTAL SERVICE, FORT HAMILTON 

STATION POST OFFICE, 

Brooklyn, NY, Employer

__________________________________________

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Docket No. 19-0898

Issued: December 5, 2019

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 26, 2019 appellant, through counsel, filed a timely appeal from a November 13, 

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.3

 

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.

3 The Board notes that following the November 13, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

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

disability commencing September 2, 2011, causally related to her original February 5, 1999 

employment injury.

FACTUAL HISTORY

This case has previously been before the Board. The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference.4 The relevant facts 

are as follows.

On February 8, 1999 appellant, then a 33-year-old modified letter carrier,

5

filed a traumatic 

injury claim (Form CA-1) alleging that she injured her back on February 5, 1999 while lifting a 

tray of mail and turning to resume racking while in the performance of duty. OWCP accepted her 

claim for a lumbar back strain. On March 23, 1999 appellant returned to full-time, limited-duty 

work answering telephones. Effective May 22, 1999 she resumed her previous modified letter 

carrier duties. OWCP subsequently accepted a recurrence for medical treatment beginning 

November 24, 2009.6

On September 15, 2011 appellant filed a notice of recurrence (Form CA-2a) claiming 

disability beginning September 2, 2011.7 OWCP initially denied the recurrence claim by decision 

dated November 4, 2011. 

Appellant, through counsel, thereafter filed a number of requests for reconsideration, which 

were denied by OWCP. On August 20, 2014 appellant, through counsel, filed an appeal with the 

Board.8 By decision dated February 13, 2015, the Board affirmed OWCP’s June 10, 2014 

decision, finding that appellant had not met her burden of proof to establish a recurrence of

disability beginning September 2, 2011, causally related to her original February 5, 1999 

employment-related lumbar strain.9 The Board specifically found that she had not alleged a change 

in her light-duty assignment on or about September 2, 2011. Although recent medical evidence 

indicated that appellant was disabled due to lumbar radiculopathy, the evidence then of record 

failed to establish that her lumbar condition, at that time, was causally related to the February 5, 

1999 employment injury. There was diagnostic evidence of disc bulges at L2-3 and L5-S1, 

 

4 Docket No. 16-1542 (issued August 25 2017); Docket No. 14-1844 (issued February 13, 2015). 

5 Appellant had previously fractured her left ankle in the performance of duty on May 27, 1993 (File No. 

xxxxxx863). Her physical limitations included no walking or standing in excess of two hours per day.

6 Appellant did not stop work at the time.

7 OWCP also treated the claim as a new traumatic injury and assigned OWCP File No. xxxxxx169. However, it 

later determined that the case was properly considered a recurrence under OWCP File No. xxxxxx035. The two case 

records were subsequently combined under Master OWCP File No. xxxxxx035.

8 The Board’s decision dated February 13, 2015 presented the procedural development of this case. 

9 Docket No. 14-1844 (issued February 13, 2015). 
3

however, the medical evidence of record failed to establish causal relationship between her multilevel lumbar disc disease and her accepted February 5, 1999 employment injury. 

On February 9, 2016 appellant, through counsel, again requested that OWCP reconsider 

her claim. By decision dated May 6, 2016, OWCP denied appellant’s request for reconsideration.

On July 26, 2016 appellant, through counsel, filed another appeal with the Board. By 

decision dated August 25, 2017, the Board affirmed OWCP’s May 6, 2016 decision finding that 

appellant had not met her burden of proof to establish a recurrence of disability beginning 

September 2, 2011, causally related to her February 5, 1999 employment-related lumbar strain.10 

On August 16, 2018 counsel requested reconsideration of OWCP’s May 6, 2016 decision.

In progress reports dated December 21, 2017 and June 11, July 19, and October 8, 2018,

Dr. Howard I. Baum, a Board-certified orthopedic surgeon, indicated that appellant had received

follow-up orthopedic evaluation of her lumbar spine derangement. He related that she had low 

back pain, which at times radiated to her lower extremities. In his December 21, 2017 report,

Dr. Baum opined that she was totally disabled and he referred her for chiropractic treatment. In 

his June 11, 2018 report, he noted that appellant was working and indicated that she was 

temporarily partially disabled. In his July 19, 2018 report, Dr. Baum found that examination of 

her lumbar spine revealed a positive straight leg raise test and he opined that she was totally 

disabled. In his October 8, 2018 report, he found appellant capable of working her full-time,

modified-duty assignment. 

In a February 27, 2018 narrative report, Dr. Baum documented his understanding of the 

progression of appellant’s lumbar conditions. He indicated that appellant had self-treated for a 

period of 10 to 11 years following her 1999 employment injury. Dr. Baum also noted that she had 

then undergone an August 10, 2010 electromyography (EMG) which revealed a left L5-S1 

radiculopathy, superimposed on a left neuropathy. He indicated that appellant currently had

bulging, as well as protruded discs, and he diagnosed lumbar derangement. Dr. Baum explained

that she had a progressive repetitive overuse event following the 1999 precipitating event and 

that the recurrent cycling and loading of her injured back progressed to radiculopathy in 2010, as 

well as to the bulging and protrude discs as seen in her 2016 magnetic resonance imaging (MRI) 

scan. He opined that appellant’s lumbar conditions related to the 1999 employment event “with 

the resultant effects due to cyclic loading over time as it relates to [appellant’s] job of repetitive 

lifting heavy trays and over the course of many years this was the precipitating cause to a damaged 

and injured back from the 1999 event.”

By decision dated November 13, 2018, OWCP denied modification of its prior decision 

denying appellant’s claimed recurrence of disability beginning September 2, 2011. 

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 

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

 

10 Docket No. 16-1542 (issued August 25, 2017). 
4

caused the illness.11 Recurrence of disability 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 or when the physical requirements of such 

an assignment are altered so that they exceed his or her established physical limitations.12 Absent 

a change or withdrawal of a light-duty assignment, a recurrence of disability following a return to 

light duty may be established by showing a change in the nature and extent of the injury-related 

condition such that the employee could no longer perform the light-duty assignment.13

When an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish that the recurrence is causally related 

to the original injury.14 This burden includes the necessity of furnishing evidence from a qualified 

physician who concludes that the condition is causally related to the employment injury.15 The 

physician’s opinion must be based on a complete and accurate factual and medical history and it 

must be supported by sound medical reasoning.16 Where no such rationale is present, the medical 

evidence is of diminished probative value.17

For each period of disability claimed, the employee has the burden of proof to establish 

that he or she was disabled from work as a result of the accepted employment injury.18 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 their disability and entitlement to 

compensation.19

ANALYSIS

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

disability beginning on September 2, 2011 causally related to her original February 5, 1999 

employment injury.

On prior appeal the Board reviewed the evidence before OWCP at the time it issued its 

decision dated August 25, 2017 and found that it was insufficient to establish a recurrence of

disability beginning September 2, 2011. The Board’s review of the previously submitted medical 

 

11 20 C.F.R. § 10.5(x).

12 Id.

13 G.L., Docket No. 16-1542 (issued August 25, 2017); Theresa L. Andrews, 55 ECAB 719, 722 (2004).

14 20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 

and 2.1500.6 (June 2013). 

15 H.T., Docket No. 17-0209 (issued February 8, 2019); S.S., 59 ECAB 315, 318-19 (2008).

16 Id.

17 E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

18 See B.D., Docket No. 18-0426 (issued July 17, 2019); Amelia S. Jefferson, 57 ECAB 183 (2005).

19 Id.; Fereidoon Kharabi, 52 ECAB 291 (2001).
5

evidence of record is res judicata absent further review by OWCP under section 8128 of FECA 

and therefore the prior evidence need not be addressed again in this decision.20 

OWCP received a number of reports from Dr. Baum. In his most extensive report dated 

February 27, 2018, he documented his understanding of the progression of appellant’s medical 

condition. Dr. Baum related that her 1999 employment injury had progressed to radiculopathy in 

2010 and bulging and protruding discs in 2016, as seen on the MRI scan. While he explained that 

this was due to the recurrent cycling and loading of an injured back over time as it related to 

appellant’s job of repetitive lifting of heavy trays, he did not provide an explanation as to why her 

accepted conditions had suddenly worsened to the extent that she could no longer perform the 

duties of her modified letter carrier position.21 Dr. Baum also failed to provide sufficient medical 

explanation or bridging evidence between that period of time to show a spontaneous worsening of 

her accepted back strain. He did not address why and how appellant’s current lumbar conditions 

were the result of her original February 5, 1999 employment injury. Dr. Baum’s analysis 

regarding additional employment factors causing a worsening of her condition would be 

appropriate for a new occupational injury claim, but was not appropriate to establish a recurrence

of disability.22 Appellant has the burden of proof to establish causal relationship between 

additional conditions not accepted by OWCP and the February 5, 1999 employment injury.23 

Accordingly, the Board finds that Dr. Baum’s opinion is insufficient to establish her recurrence 

claim.

OWCP also received a series of progress reports from Dr. Baum dated from December 21, 

2017 through October 8, 2018. In these reports Dr. Baum diagnosed lumbar spine derangement 

and addressed appellant’s current ability to work. While he noted her continued complaints of 

lumbar spine pain which, at times, radiated to the lower extremities, he did not indicate the cause 

of such complaints or indicate whether her total or partial disability was causally related to her 

February 5, 1999 employment injury.24 Dr. Baum also did not mention or refer to the claimed 

recurrence of September 2, 2011.25 The Board has found that medical evidence that does not offer 

an opinion regarding the cause of an employee’s condition is of limited probative value on the 

issue of causal relationship.26 Accordingly, the Board finds that these reports are insufficient to 

establish appellant’s claimed recurrence.

On appeal counsel contends that Dr. Baum’s February 27, 2018 report supplemented his 

previously submitted medical evidence and bridged the gap by explanation of the time between 

the original 1999 employment injury and the recurrence of disability beginning September 2, 2011. 

 

20 S.C., Docket No. 19-0920 (issued September 25, 2019); W.C., Docket No. 18-1386 (issued January 22, 2019).

21 See V.H., Docket No. 18-0456 (issued August 9, 2019); J.L., Docket No. 15-1951 (issued May 16, 2016).

22 OWCP’s procedures provide that a recurrence of disability does not include a work stoppage caused by a new 

injury, even if it involves the same part of the body previously injured, or by renewed exposure to the causative agent 

of a previously suffered occupational disease. See supra note 14 at Chapter 2.1500.3 (June 2013). See J.S., Docket 

No. 18-0726 (issued November 5, 2018).

23 V.H., supra note 21; Michael S. Mina, 57 ECAB 379 (2006). 

24 See Mary E. Marshall, 56 ECAB 420 (2005).

25 Id.

26 R.E., Docket No. 10-0679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).
6

However, for the reasons set forth above, appellant has not met her burden of proof to establish 

either the claimed recurrence or that her current lumbar conditions are due to her accepted 

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 on or after September 2, 2011, causally related to her original February 5, 1999 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the November 13, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 5, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board