United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.G., Appellant

and

DEPARTMENT OF JUSTICE, DRUG 

ENFORCEMENT ADMINISTRATION,

Newark, NJ, Employer

__________________________________________

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Docket No. 19-0610

Issued: September 23, 2019

Appearances: Case Submitted on the Record

Michael D. Overman, 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 25, 2019 appellant, through counsel, filed a timely appeal from an August 21, 

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 his burden of proof to establish a recurrence of 

disability commencing February 18, 2016, causally related to his accepted April 23, 2008 

employment injury.

FACTUAL HISTORY

On April 29, 2008 appellant, then a 33-year-old criminal investigator, filed a traumatic 

injury claim (Form CA-1), alleging that on April 23, 2008 while in the performance of duty he 

was conducting a “mobile surveillance/arrest” and hit his head on the roof of the surveillance van 

he was riding in when it went over a large speed bump. He indicated that he sustained a concussion 

and contusions to his head and experienced headaches. By decision dated June 16, 2008, OWCP 

accepted the claim for head contusions.

In a report dated June 29, 2016, Dr. Erin M. Elmore, a Board-certified neurologist, 

indicated that she first saw appellant for a neurological evaluation on April 7, 2015. She explained 

that the consultation was for a one-year duration of weakness in his upper extremities, following 

an incident the summer prior when appellant experienced an acute onset of right-sided neck pain 

with pain radiating down his right arm after turning his head quickly to the side. Dr. Elmore noted 

that he did not seek any immediate medical attention following this incident. She also noted a 

prior injury where he hit his head on a metal shed door while working as a firearms instructor 

without any reported loss of consciousness, but with reports of headaches and increased neck pain. 

She further noted appellant’s April 23, 2008 work-related injury where he hit his head on the 

ceiling of a van after it went over a speed bump. Dr. Elmore indicated that he lost consciousness 

and developed severe headache with neck pain following this incident. She related that appellant

eventually underwent cervical fusion surgery on February 18, 2016, which improved his neck pain, 

migraines, and shooting pains. Dr. Elmore concluded that appellant had a long-standing history 

of neck issues dating back to 2008 when he was originally injured in the van. Magnetic resonance 

imaging (MRI) scans following the 2008 injury revealed damage to the disc at C4-5 and C5-6, 

especially to the left and subsequent worsening disc pathology at C4-6. Dr. Elmore opined that 

appellant’s cervical condition and subsequent surgery was causally related to his accepted 

April 23, 2008 employment injury and advised that his overall recovery from the fusion surgery 

might take a year or more to establish.

On August 26, 2016 appellant filed a notice of recurrence (Form CA-2a), alleging that he 

sustained a recurrence of total disability on February 18, 2016. He explained that, following his 

original injury on April 23, 2008, his pain worsened over time and he lost significant upper body 

strength until he was unable to perform all of his employment duties. On the reverse side of the 

claim form, the employing establishment indicated that appellant underwent surgery to address his

back and neck pain on February 18, 2016, the date in which he alleged a recurrence of disability.

By development letter dated October 3, 2016, OWCP advised counsel that appellant’s

claim had been closed as he had not lost any time from work or sought any medical attention 

following the April 23, 2008 accepted employment injury. It advised that he had another work 

injury on June 8, 2012 under OWCP File No. xxxxxx011 and it might be more appropriate for 

appellant to file a recurrence claim under that case.
3

In a letter dated October 14, 2016, counsel indicated that he had filed a recurrence claim 

under OWCP File No. xxxxxx011 as he had been advised, but suggested that the medical evidence 

supported that the recurrence was related to the April 23, 2008 employment injury.

By letter dated October 20, 2016, counsel reiterated his argument and submitted an 

October 7, 2016 report from Dr. George V. DiGiacinto, a Board-certified neurosurgeon. 

Dr. DiGiacinto indicated that he first saw appellant in February 2008 and he complained about 

chronic pain in his back for about 10 years. Appellant had a history of playing football and 

weightlifting and had been told in the past of “fracture” and disc desiccation. At that time, he

complained primarily of low back pain. Appellant related that he later sustained an employmentrelated head and neck injury on April 23, 2008 while working in a surveillance van. He stated that 

prior to this incident, he had no neck pain or other injury and thereafter, developed progressively 

worsening neck issues and migraines. When Dr. DiGiacinto saw appellant in 2016, appellant 

indicated that he had had an exacerbation of his condition in 2015 while working out and lifting at 

a gym when he felt a “pop” in his neck and developed numbness down his right arm with 

tremendous weakness. An MRI scan at the time demonstrated pathology at C5-6 on the right 

foraminal encroachment at C6-7. Dr. DiGiacinto opined that the accepted April 23, 2008 work 

injury was a major causative factor in appellant requiring a cervical and lumbar spine surgery.

In response to counsel’s October 20, 2016 correspondence, on October 21, 2016, OWCP 

advised counsel that appellant’s case was only accepted for head contusions and there was no 

operative report in the file to support that appellant underwent surgery on February 18, 2016.

In a November 9, 2016 development letter, OWCP advised appellant of the deficiencies of 

his claim and afforded him 30 days to submit the requested evidence.

In response, appellant submitted a copy of an operative report indicating that he had 

undergone an anterior cervical discectomy at C5-6 and C6-7 on February 18, 2016, performed by

Dr. DiGiacinto.

By decision dated February 9, 2018, OWCP denied appellant’s recurrence claim for

disability commencing February 18, 2016, finding that the medical evidence of record was 

insufficient to establish a material change or worsening of his accepted April 23, 2008 employment 

injury.

On February 22, 2018 counsel requested an oral hearing before an OWCP hearing 

representative.

Appellant subsequently submitted a June 2, 2015 report from Dr. John E. Robinton, a 

Board-certified neurologist, who opined that appellant’s electromyography (EMG) and nerve 

conduction studies revealed evidence of polyradiculopathy.

An oral hearing was held before an OWCP hearing representative of the Branch of 

Hearings and Review on June 14, 2018. Appellant provided testimony and the hearing 

representative held the case record open for 30 days for the submission of additional evidence.

Appellant subsequently submitted an addendum report dated July 2, 2018 from Dr. Elmore 

who reiterated her medical opinions.
4

By decision dated August 21, 2018, OWCP’s hearing representative affirmed OWCP’s 

prior decision. She found that the evidence of record was insufficient to establish a return or 

increase of disability due to a consequential injury or condition stemming from his accepted head 

contusions.

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.

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 

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

employee’s physical limitations.4

OWCP 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. OWCP 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

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

disability, commencing February 16, 2018, causally related to his accepted April 23, 2008 

employment injury.

 

3 20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical 

condition as a documented need for medical treatment after release from treatment for the accepted condition).

4

Id.

5 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). Kenneth R. 

Love, 50 ECAB 193, 199 (1998).

6 H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

7 E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).
5

In his October 7, 2016 report, Dr. DiGiacinto indicated that he began treating appellant in 

1998 for ongoing back pain. He recounted appellant’s medical history, including the accepted 

April 23, 2008 employment injury, and opined that that incident was a major causative factor in 

his requiring cervical and lumbar spine surgery. The Board finds that, while Dr. DiGiacinto’s 

opinion is generally supportive of causal relationship, he did not provide sufficient medical 

rationale explaining how appellant’s conditions and cervical spine surgery were causally related 

to the accepted April 23, 2008 employment injury. Further, Dr. DiGiacinto also attributed 

appellant’s disability, in part, to preexisting and other conditions not accepted as work related, 

rendering the cause of his disability unclear. Therefore, the Board finds that this evidence is 

insufficient to establish a recurrence of disability.

8

In her June 29, 2016 and July 2, 2018 reports, Dr. Elmore stated that appellant had a longstanding history of neck issues dating back to 2008 when he was originally injured in the accepted 

April 23, 2008 employment incident. She noted that he underwent an MRI scan that revealed 

damage to the disc at C4-5 and C5-6, especially to the left. Appellant then underwent a repeat 

MRI scan following an injury when he hit his head on a metal shed door while working as a 

firearms instructor without any reported loss of consciousness, but with reports of headaches and 

increased neck pain. Dr. Elmore found that the repeat MRI scan revealed mild interval change 

with worsening disc pathology at C4-6; however, she did not provide a rationalized medical 

explanation to support her conclusion that appellant was disabled as a result of the accepted 

April 23, 2008 employment incident. Therefore, her reports are also insufficient to support a 

worsening of appellant’s accepted employment-related condition to establish a recurrence of 

disability.

9

 

Appellant also submitted a June 2, 2015 report from Dr. Robinton who opined that his 

EMG and nerve conduction studies revealed evidence of polyradiculopathy. However, the Board 

has held that medical evidence that does not offer an opinion regarding the cause of an employee’s 

condition is of no probative value on the issue of causal relationship.10 Therefore, this evidence is 

insufficient to satisfy appellant’s recurrence claim.

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 his burden of proof to establish a recurrence of 

disability, commencing February 18, 2016, causally related to his accepted April 23, 2008 

employment injury.

 

8 See Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements merely asserting causal 

relationship generally do not discharge a claimant’s burden of proof).

9

Id.

10 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
6

ORDER

IT IS HEREBY ORDERED THAT the August 21, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 23, 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