United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Glasgow, KY, Employer

__________________________________________

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Docket No. 19-0263

Issued: June 19, 2019

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

JANICE B. ASKIN, Judge

JURISDICTION

On November 19, 2018 appellant, through counsel, filed a timely appeal from a 

September 14, 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.

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish a recurrence 

of disability, commencing October 24, 2017, causally related to her accepted April 27, 2013

 

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

employment injury; and (2) whether she has met her burden of proof to establish that the 

acceptance of her claim should be expanded to include the additional conditions of cervical 

radiculopathy and cervical degenerative disc disease.

FACTUAL HISTORY

On April 27, 2013 appellant, then a 50-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on that date she sustained a mild laceration of the right 

forearm, a head bump, and neck pain when she was in a motor vehicle accident (MVA) while in 

the performance of duty. OWCP accepted the claim for a sprain of the ligaments of the cervical 

and lumbar spine. Appellant stopped work on April 27, 2013, returned to work with restrictions 

on July 22, 2013, and resumed her usual employment on October 14, 2013.

A magnetic resonance imaging (MRI) scan of the cervical spine obtained on July 12, 2013 

revealed mild degenerative changes at multiple levels without stenosis and mild neuroforaminal 

encroachment without nerve impingement.

In a report dated September 3, 2013, Dr. Barret Lessenberry, a Board-certified orthopedic 

surgeon, discussed appellant’s history of an April 27, 2013 MVA. He related that her symptoms 

were “suggestive of some cervical radiculopathy affecting the C6 nerve root on the right side” and 

possible carpal tunnel syndrome. On December 26, 2013 Dr. Lessenberry determined that an 

electromyogram (EMG) showed no cervical radiculopathy, but that a cervical spine MRI scan 

showed C5-6 disc bulging. He indicated that appellant had improved with conservative treatment 

and found that she could resume her usual activities.

In a report dated April 18, 2017, Dr. Lessenberry evaluated appellant for cervical pain with 

pain and numbness radiating into the right upper extremity. He related that her symptoms had 

begun in 2013 and that she had not sustained a new injury. Dr. Lessenberry recommended 

diagnostic testing. In a May 18, 2017 progress report, he opined that appellant’s symptoms 

suggested right cervical radiculopathy and recommended physical therapy. 

On June 15, 2017 Dr. Lessenberry discussed appellant’s symptoms of intermittent right 

cervical radiculopathy over the past four years. He diagnosed cervical radiculopathy and 

recommended further objective testing. Dr. Lessenberry noted that appellant had worked at the 

employing establishment at the time she was initially injured and remained working there at the 

present time.

A cervical spine MRI scan obtained on September 13, 2017 revealed facet arthroplasty 

particularly at C4-5 and C5-6 on the left side with borderline left neuroforaminal stenosis at C4-5.

In a progress report dated September 6, 2017, Dr. Kimberly Eakle, a Board-certified 

internist, obtained a history of appellant experiencing neck pain radiating into the right shoulder 

beginning four years ago after a MVA. On examination she found spasm and tenderness of the 

paravertebral muscles with reduced grip strength. Dr. Eakle diagnosed cervical radiculopathy and 

an unspecified injury to the muscles, fascia, and tendons of the neck.

On October 5, 2017 appellant filed a notice of recurrence (Form CA-2a) of disability and 

the need for further medical treatment causally related to her April 27, 2013 employment injury. 
3

She asserted that her pain had worsened such that she could not perform her work duties and that 

she had developed arthritis. The employing establishment indicated that appellant had stopped 

work on September 20, 2017.

In a development letter dated October 17, 2017, 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.

In a progress report dated October 24, 2017, Dr. Eakle diagnosed cervical radiculopathy 

and indicated that appellant was off work pending an examination by a chiropractor as delivering 

mail was causing spasms.

On October 30, 2017 appellant advised that she had experienced continuous and worsening

problems with her neck, arm, and head after her MVA.

In a duty status report (Form CA-17) dated November 21, 2017, Dr. Eakle diagnosed 

cervical radiculopathy and found that appellant was unable to work. She indicated by checking a 

box marked “Yes” that the history of injury provided by appellant corresponded to the injury(ies) 

described on the claim form.

By decision dated December 27, 2017, OWCP denied appellant’s claim for a recurrence of 

disability. It found that the medical evidence she submitted failed to establish that her accepted 

April 27, 2013 employment injury had worsened to the extent that she was disabled from her work

duties.

In a progress report dated January 2, 2018, Dr. Todd Shanks, a Board-certified 

neurosurgeon, related that appellant had sustained a MVA five years earlier when she was “struck 

from behind from a car which ejected her from the vehicle.” He noted that at the time of the 

accident she had her arm extended reaching for a mailbox. Dr. Shanks indicated that appellant 

subsequently had experienced neck pain that had worsened with intermittent radiation into the 

right arm. He related that her neck pain was likely due to facet mediated arthritis disease. In a 

January 2, 2018 note, Dr. Shanks opined that appellant should be off work from that date until a 

follow-up appointment.

On January 23, 2018 Dr. Eakle diagnosed cervical radiculopathy due to an April 2013 

MVA at work. She indicated that she had referred appellant to Dr. Shanks given the extent of her 

symptoms. In a duty status report (Form CA-17) dated January 23, 2018, Dr. Eakle provided work 

restrictions.

Appellant, on January 24, 2018, requested an oral hearing before an OWCP hearing 

representative.

In a report dated January 29, 2018, Dr. Daniel Reynolds, a Board-certified 

anesthesiologist, noted that appellant experienced neck pain radiating into the right shoulder and 

sometimes into her right hand and fingers. He provided a steroid injection. In a note of even date,

Dr. Reynolds advised that appellant’s primary physician would determine her work status.
4

On February 15, 2018 Dr. Reynolds diagnosed cervical spondylosis without myelopathy 

or radiculopathy and provided pain management.

On March 27, 2018 counsel requested a telephonic hearing before an OWCP hearing 

representative.

On April 19, 2018 Dr. Shanks found that appellant should remain off work pending 

surgery.

In a report dated April 23, 2018, Dr. Eakle diagnosed increasing chronic neck pain with 

radiculopathy and noted that appellant had a positive right Spurling sign. She related, “[appellant] 

did not have these issues prior to her injury in April of 2013. Her MRI [scan] may have shown 

degenerative changes that may have already been present; however, she was asymptomatic at that 

time. The injuries appellant sustained in April of 2013 only exacerbated the condition.” Dr. Eakle 

recommended a C4 to C6 anterior cervical discectomy and fusion.

At the telephonic hearing, held on July 10, 2018, appellant described her symptoms 

following her employment injury. She noted that she had to stop work because she kept dropping 

mail. Appellant advised that in 2015 she was involved in another MVA at work, but did not file a 

claim as she only cut her nose. She related that she had obtained treatment from a chiropractor. 

Appellant indicated that she had stopped work after she filed her notice of recurrence of disability 

on October 24, 2017 rather than September 22, 2017. She related that she was not ejected from 

her vehicle at the time of the April 2013 MVA. 

In a report dated July 19, 2018, Dr. Lessenberry discussed appellant’s continued 

complaints of neck pain radiating into the right upper extremity which he indicated “was a 

work[-]related problem that occurred back in April 2013.” He noted that her arm had been 

extended out of the window of the vehicle when her vehicle was rear ended. Dr. Lessenberry 

advised that a cervical spine MRI scan showed “multi-level degenerative disc change with disc 

desiccation and bulging at multiple levels.” Dr. Lessenberry related, “I do think [appellant] had 

preexistent cervical degenerative disc change aggravated by the auto accident that occurred while 

at work for the [employing establishment] on April 27, 2013.” He recommended epidurals before 

a surgical procedure. In a July 19, 2018 duty status report (Form CA-17), Dr. Lessenberry found 

that appellant was disabled from employment. 

By decision dated September 14, 2018, OWCP’s hearing representative affirmed the 

December 27, 2017 decision.

LEGAL PRECEDENT -- ISSUE 1

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.

3

 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 

 

3 20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).
5

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.4

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.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.6 Where no such rationale is present, 

the medical evidence is of diminished probative value.7

ANALYSIS -- ISSUE 1

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

disability, commencing October 24, 2017, causally related to her accepted April 27, 2013 

employment injury.

On October 24, 2017 Dr. Eakle diagnosed cervical radiculopathy and found that appellant 

should remain off work until examined by a chiropractor. She noted that delivering mail caused 

spasms. However, Dr. Eakle failed to address the cause of the diagnosed condition of cervical 

radiculopathy. Medical evidence that does not offer any opinion regarding the cause of an 

employee’s condition is of no probative value on the issue of causal relationship.8

In a duty status report dated November 21, 2017, Dr. Eakle diagnosed cervical 

radiculopathy and found that appellant was unable to work. She checked a box “Yes” indicating 

that the history of injury provided by appellant corresponded to the injury(ies) described on the 

claim form. The duty status report is merely a form report and does not contain an opinion on 

 

4

Id.

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

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

6

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

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

8 M.C., Docket No. 18-0919 (issued October 18, 2018).
6

whether the accepted employment injury caused disability from employment; consequently, it is 

of no probative value on the issue of causal relationship.9

In a progress report dated January 2, 2018, Dr. Todd Shanks, a Board-certified 

neurosurgeon, obtained a history of appellant being ejected from her vehicle in an MVA five years 

earlier. He discussed her symptoms of progressively worsening neck pain with occasional 

radiation into her right arm. Dr. Shanks attributed appellant’s neck pain likely to facet mediated 

arthritis disease. He found that she was disabled from employment pending a follow-up 

appointment. As Dr. Shanks failed to relate her disability to the accepted conditions of sprains of 

the ligaments of the cervical and lumbar spine, his report is insufficient to meet her burden of proof 

to establish an employment-related recurrence of disability.10 Additionally, he provided an 

inaccurate history of injury, that of appellant being ejected from her vehicle at the time of the 

April 2013 MVA. Medical opinions based on an incomplete or inaccurate history are of 

diminished probative value.11

On January 23, 2018 Dr. Eakle diagnosed cervical radiculopathy due to an April 2013 

MVA at work. In a duty status report (Form CA-17) of even date, she provided work restrictions. 

As Dr. Eakle has not attributed appellant’s disability to either her lumbar or cervical sprains, the 

conditions accepted by OWCP as employment related, her opinion is not probative to the question 

of whether she has established a recurrence of disability due to her April 27, 2013 employment 

injury.12

Dr. Reynolds provided pain management for appellant on January 28 and February 15, 

2018, but did not address appellant’s work status or any periods of disability. Without a specific 

opinion regarding how work factors caused a claimed period of disability, his reports are 

insufficient to meet her burden of proof.13 

On April 19, 2018 Dr. Shanks found that appellant should remain off work pending 

surgery. As she did not address causation, her report 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 

October 24, 2017 as a result of the accepted April 27, 2013 employment injury sufficient to cause 

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

 

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

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

11 C.B., Docket No. 18-0633 (issued November 16, 2018).

12 See supra note 10.

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

14 See supra note 9.

15 Id.
7

the reliable, probative, and substantial evidence, a change in the nature and extent of the injuryrelated condition resulting in her inability to perform her employment duties.16

LEGAL PRECEDENT -- ISSUE 2

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was filed within the applicable time 

limitation period of FECA,17 that an injury was sustained while in the performance of duty as 

alleged, and that any disability or specific condition for which compensation is claimed is causally 

related to the employment injury.18 These are the essential elements of each and every 

compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an 

occupational disease.19

Where an employee claims that a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.20 To establish causal relationship between the 

condition, as well as any attendant disability claimed and the employment event or incident, the 

employee must submit rationalized medical opinion evidence based on a complete factual and 

medical background, supporting such a causal relationship.21 The opinion of the physician must 

be based on a complete factual and medical background of the claimant, 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 claimant.22 The weight of medical evidence is determined by its reliability, its probative value, 

its convincing quality, the care of analysis manifested, and the medical rationale expressed in 

support of the physician’s opinion.23

 

16 Id.

17 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

18 J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

19 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

20 See T.F., Docket No. 17-0645 (issued August 15, 2018).

21 See S.A., Docket No. 18-0399 (issued October 16, 2018).

22 See P.M., Docket No. 18-0287 (issued October 11, 2018).

23 See F.H., Docket No .18-1238 (issued January 18, 2019).
8

ANALYSIS -- ISSUE 2

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

acceptance of her claim should be expanded to include the additional conditions of cervical 

radiculopathy and cervical degenerative disc disease.

Dr. Lessenberry, in a report dated September 3, 2013, reviewed appellant’s history of a 

MVA at work on April 27, 2013. He found symptoms of radiculopathy at C6 on the right and 

possible carpal tunnel syndrome. On December 26, 2013 Dr. Lessenberry advised that an EMG 

had failed to reveal radiculopathy, but that a cervical spine MRI scan showed bulging of the discs 

at C5-6. He did not, however, directly attribute the cervical radiculopathy to the April 27, 2013 

employment injury, and thus his reports are of diminished probative value.24

Dr. Lessenberry again evaluated appellant on April 18, 2017. He advised that her 

symptoms had begun in 2013. On May 18, 2017 Dr. Lessenberry found cervical radiculopathy on 

the right side and, on June 15, 2017. He noted that appellant’s symptoms had occurred 

intermittently for the past four years. Dr. Lessenberry indicated that she had worked for the 

employing establishment at the time of her original injury. He did not, however, specifically 

attribute the cervical radiculopathy to the April 2013 MVA, and thus his opinion is insufficient to 

meet appellant’s burden of proof.25

Dr. Eakle also diagnosed cervical radiculopathy in reports dated September 16, 2017 to 

January 23, 2018; however, she did not directly address the cause of the radiculopathy and its 

relationship to the April 2013 MVA and thus her reports are of diminished probative value.

26

 

In a report dated April 23, 2018, Dr. Eakle advised that appellant had not experienced 

chronic neck pain with radiculopathy prior to her April 2013 injury. She opined that the April 2013 

injury had aggravated previously asymptomatic preexisting degenerative changes and 

recommended a cervical discectomy and fusion at C4 to C6. Dr. Eakle, however, failed to explain 

the mechanics of how appellant’s April 2013 MVA caused an aggravation of preexisting cervical 

changes as opposed to changes resulting from the normal progression of the preexisting 

conditions.27 

On July 19, 2018 Dr. Lessenberry attributed appellant’s neck pain radiating into the right 

upper extremity to an April 2013 MVA. He noted that her MRI scan revealed disc desiccation and 

bulging at multiple levels with degenerative changes. Dr. Lessenberry found that appellant’s 

April 27, 2013 MVA had aggravated her preexisting cervical disc degeneration. However, he did 

not provide any rationale for his opinion. Medical conclusions unsupported by rationale are of 

 

24 See supra note 8.

25 M.S., Docket No. 17-0105 (issued December 7, 2017).

26 M.B., Docket No. 17-1773 (issued May 24, 2018).

27 T.M., Docket No. 18-1418 (issued February 7, 2019).
9

little probative value.28 Such rationale is particularly warranted when, as here, there is a history 

of a preexisting condition.29

On appeal counsel contends that OWCP failed to apply the appropriate causation standard 

or give proper deference to appellant’s attending physician. He asserts that the medical reports 

contained rationale. As discussed, however, appellant has not submitted sufficient rationalized 

medical evidence supporting that acceptance of her claim should be expanded to include additional 

cervical conditions causally related to her April 27, 2013 employment injury or that she sustained 

an employment-related recurrence of disability.

30

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 October 24, 2017, causally related to her accepted April 27, 2013 

employment injury. The Board further finds that she has not met her burden of proof to establish 

that the acceptance of her claim should be expanded to include the additional conditions of cervical 

radiculopathy and cervical degenerative disc disease.

 

28 See supra note 20.

29 See C.B., Docket No. 18-0633 (issued November 16, 2018).

30 See M.S., Docket No. 17-0105 (issued December 7, 2017).
10

ORDER

IT IS HEREBY ORDERED THAT the September 14, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 19, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board