United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.P., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Austin, TX, 

Employer

__________________________________________

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Docket No. 18-1396

Issued: January 23, 2020

Appearances: Case Submitted on the Record

Capp P. Taylor, 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 July 9, 2018 appellant, through his representative, filed a timely appeal from a June 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.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 June 7, 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 met his burden of proof to establish a recurrence of total 

disability commencing January 1, 2013, causally related to his accepted July 5, 2008 employment 

injury.

FACTUAL HISTORY

On July 5, 2008 appellant, then a 37-year-old postal equipment mechanic, filed a traumatic 

injury claim (Form CA-1) alleging that on that date he sustained a concussion as a result of a loose 

vacuum hose striking him on the back of the head while in the performance of duty. OWCP

initially accepted the claim for concussion with loss of consciousness, neck sprain, and lumbar 

sprain. Appellant stopped work on July 2, 2009 and OWCP placed him on the supplemental rolls 

effective that date. On December 10, 2009 he underwent OWCP-approved surgery including L4-5 

total disc replacement, application of an intervertebral device, anterior discectomy and 

decompression, and anterior instrumentation. OWCP placed appellant on the periodic rolls 

effective December 20, 2009. Appellant returned to work on April 28, 2010.

On June 6, 2011 appellant accepted a job offer with the employing establishment as a 

modified mail processing equipment mechanic. The physical requirements of the modified 

assignment included: intermittent fine manipulation up to eight hours per day;sitting at a computer 

up to eight hours per day; lifting trays of mail weighing less than 10 pounds up to seven hours per 

day; and walking to view monitors up to two hours per day. Appellant stopped work on or about 

January 1, 2013. 

On October 1, 2013 appellant filed a claim for compensation (Form CA-7) for temporary 

total disability for the period January 1 through October 1, 2013. 

Appellant was separated from employment with the employing establishment due to 

disability effective August 9, 2014.

By decision dated June 9, 2015, OWCP denied appellant’s claim for compensation on and 

after January 1, 2013. It found that he had not submitted sufficient medical evidence, consisting 

of a detailed report from his treating physician providing a well-reasoned opinion, explaining why 

he was temporarily totally disabled due to his work-related injury.

On May 9, 2017 appellant filed a notice of recurrence (Form CA-2a) commencing 

October 27, 2012. 

By decision dated August 30, 2017, OWCP accepted appellant’s claim for recurrence for 

additional medical care. It listed his accepted conditions as concussion with loss of consciousness, 

neck sprain, lumbar back sprain, lumbar intervertebral disc disorder with myelopathy, thoracic 

spine pain, and degeneration of the lumbar or lumbosacral intervertebral disc. 

On October 12, 2017 appellant filed a claim for compensation (Form CA-7) for temporary 

total disability from January 1, 2013 through September 30, 2017. 

The record contains numerous reports from Dr. Anthony Hicks, a preventative medicine 

specialist. In reports dated November 28, 2012 and February 19, 2013, Dr. Hicks opined that 

appellant could work with restrictions. In a work excuse note dated February 19, 2013, he stated 
3

that appellant missed work from November 28, 2012 through February 19, 2013 due to being 

incapacitated related to injuries sustained while performing his work duties. 

By letter dated February 26, 2013, Dr. Hicks opined that as a direct result of appellant’s 

permanent impairment, he was unable to return to the job for which he was hired, and was placed 

in modified-duty status with permanent physical restrictions. He noted that it was unlikely 

appellant would ever be able to safely perform job duties consistent with viable employment, and 

that as such, appellant could not return to work. 

Appellant submitted a series of work excuse notes from Dr. Hicks dated between April 4 

and September 23, 2013, in which Dr. Hicks stated that appellant missed work from February 19 

through October 1, 2013 due to being incapacitated related to injuries sustained while performing 

his work duties.

In duty status reports dated May 23 and July 23, 2013, Dr. Hicks reported that appellant 

could resume work on May 23, 2013 with restrictions. He also submitted a report dated July 23, 

2013 indicating that appellant should be off work until a follow-up appointment, and that appellant 

was unable to work with restrictions due to severe ongoing physical dysfunction and no available 

work at the employing establishment.

By letter dated July 26, 2013, Dr. Hicks opined that it was unlikely that appellant would 

ever be able to safely perform job duties consistent with viable employment, and that as such, 

appellant was both unable to fulfill the job requirements of his original position and the job 

requirements of modified positions that had attempted to accommodate his physical limitations. 

In duty status reports dated from August 27, 2013 through October 30, 2014, Dr. Hicks 

noted that he advised appellant not to return to work and that he should remain off duty. He noted

that appellant was unable to work with restrictions due to severe ongoing physical dysfunction and 

no available work at the employing establishment. Dr. Hicks posited that appellant would likely 

be able to return to his regular duties within three to six months. 

In a work excuse note dated July 10, 2014, Dr. Hicks recounted that appellant missed work 

from June 6 through July 10, 2014 due to being incapacitated related to injuries sustained while 

performing his work duties. 

By letter dated August 6, 2014, the employing establishment advised that appellant had a 

valid job offer on file for several years, and that the work had been and remained available to him. 

On August 11, 2014 appellant filed a claim for compensation (Form CA-7) for temporary 

total disability for the period January 1, 2013 through July 10, 2014. 

By letter dated September 2, 2014, the employing establishment noted that appellant had 

retired effective August 9, 2014, as he was not medically qualified to perform the duties of his 

position.

Dr. Hicks reiterated that appellant should be off work on December 18, 2014. On 

March 12, 2015 he stated that appellant should be off work and had been accepted for disability 

retirement.
4

Appellant continued to submit reports from Dr. Hicks dated from July 14, 2015 through 

September 14, 2017, which stated that appellant should be off work.

By letter dated March 7, 2017, Dr. Hicks stated that prior to 2013, appellant was restricted 

to sedentary work, but that by 2013, he was unable to work even with those restrictions due to his 

ongoing conditions. He explained that appellant’s degeneration of the lumbosacral spine had 

worsened over time, which was demonstrated by objective results of a March 28, 2012 

electromyogram.

By letter dated July 5, 2017, the employing establishment noted that appellant had a valid 

job offer on file for several years.

On July 13, 2017 Dr. Hicks stated that appellant should be off work and that he had been 

accepted for disability retirement.

In a development letter dated October 30, 2017, OWCP informed appellant that he had not 

submitted sufficient medical evidence to substantiate that his claimed disability was caused by his 

work injury. It requested that he submit a complete and comprehensive narrative report, including 

a history of injury and a thorough explanation with objective findings, as to how his condition 

worsened such that he was no longer able to perform the duties of his position when he stopped 

work on January 1, 2013. OWCP afforded him 30 days to submit the requested evidence. 

Appellant continued to submit progress reports from Dr. Hicks dated from November 16, 

2017 through January 24, 2018, which stated that appellant should be off work.

By decision dated March 5, 2018, OWCP denied appellant’s claim for wage-loss

compensation beginning January 1, 2013.

On March 14, 2018 appellant, through his representative, requested reconsideration of

OWCP’s March 5, 2018 decision. Appellant resubmitted the March 7, 2017 report of Dr. Hicks. 

In a report from Dr. Hicks dated April 5, 2018, he stated that appellant should be off work

due to severe ongoing physical dysfunction. 

By decision dated June 7, 2018, OWCP denied modification of its decision dated 

March 5, 2018.

LEGAL PRECEDENT

When an employee, who is disabled from the job he or she held when injured on account 

of employment-related residuals, returns to a light-duty position or the medical evidence 

establishes that light duty can be performed, the employee has the burden to establish by the weight 

of reliable, probative, and substantial evidence a recurrence of total disability. As part of this 

burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.4

 

4 M.S., Docket No. 19-0609 (issued September 23, 2019); S.H., Docket No. 18-1398 (issued March 12, 2019); 

Terry R. Hedman, 38 ECAB 222 (1986).
5

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. Whether a 

particular injury causes an employee to become disabled from work, and the duration of that 

disability, are medical issues that must be proven by a preponderance of probative and reliable 

medical opinion evidence.5

OWCP’s implementing regulations define a recurrence of disability as 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.6 This term also means an inability to work when a light-duty assignment 

made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of 

misconduct, nonperformance of job duties, or a reduction-in-force) or when the physical 

requirements of such an assignment are altered such that they exceed the employee’s physical 

limitations.7

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 his or her disability and 

entitlement to compensation.8

ANALYSIS

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

total disability commencing January 1, 2013, causally related to the July 5, 2008 employment

injury.

Appellant has not alleged a change in his light-duty job requirements. Instead, he attributed 

his inability to work to a change in the nature and extent of his employment-related conditions. 

Appellant, therefore, has the burden of proof to provide medical evidence that he was disabled due 

to a worsening of his accepted work-related conditions.9

In duty status reports dated November 28, 2012 and February 19, 2013, Dr. Hicks opined 

that appellant could work with restrictions. By letter dated February 26, 2013, he stated that 

appellant could not return to work. In duty status reports dated May 23 and July 23, 2013,

Dr. Hicks indicated that appellant could resume work on May 23, 2013 with restrictions. He also 

submitted a report dated July 23, 2013 noting that appellant should be off work until a follow-up 

appointment, and stating that appellant was unable to work with restrictions. By letter dated 

July 26, 2013, Dr. Hicks stated that appellant could not return to work. The Board notes that

Dr. Hicks did not provide medical rationale for why he found that appellant could work with 

 

5 Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

6 20 C.F.R. § 10.5(x).

7

Id.

8 See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, supra note 5; Fereidoon Kharabi, 52 

ECAB 291 (2001).

9 See R.L., Docket No. 19-0444 (issued July 29, 2019).
6

restrictions on February 19, 2013, but could not return to work as of February 26, 2013, only to be 

able to resume work on May 23, 2013. There is no explanation for the inconsistency between the 

two reports of July 23, 2013 regarding appellant’s ability to work. Dr. Hicks’ reports do not 

provide opinion as to the cause of appellant’s disability and, therefore, are of no probative value. 

As such, these reports are insufficient to establish appellant’s recurrence claim commencing 

January 1, 2013.10

By letter dated March 7, 2017, Dr. Hicks noted that prior to 2013, appellant was restricted 

to sedentary work, but that by 2013, he was unable to work even with those restrictions due to his 

ongoing conditions. He explained that appellant’s degeneration of the lumbosacral spine had 

worsened over time, which was demonstrated by objective results of a March 28, 2012 

electromyogram. This letter did not explain why and how appellant’s accepted conditions had 

worsened to the point he was unable to perform duties of his modified position as of January 1, 

2013, given that he was able to perform such duties from March 2012 through November 28, 2012.

Dr. Hicks did not provide an opinion as to why appellant was disabled from work. 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.11 As such, this evidence is insufficient 

to establish appellant’s recurrence claim commencing January 1, 2013.

In the remainder of the work excuse notes, duty status reports, and medical reports dated 

from August 27, 2013 through April 5, 2018, Dr. Hicks opined that appellant was disabled from 

returning to work. In these notes and reports, he did not explain with specificity how appellant 

was disabled on or after January 1, 2013 due to a worsening of his accepted work-related 

conditions.12 The Board has held that a medical opinion that is not fortified by rationale is of 

diminished probative value. As these reports contain no rationale explaining why appellant was 

disabled as a result of his July 5, 2008 employment injury after working for approximately 18 

months in a limited-duty position, they are insufficient to support a worsening of his accepted 

employment-related conditions to establish a recurrence of disability.13

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

causal relationship between his or her recurrence of disability and his or her accepted employment 

injury.14 Because appellant has not submitted sufficient medical evidence to establish that he was 

unable to work beginning January 1, 2013, due to a spontaneous change or worsening of his

accepted July 5, 2008 employment-related conditions, the Board finds that appellant has not met 

his burden of proof in this case.

 

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

11 Id.

12 E.B., Docket No. 17-1467 (issued July 26, 2018); D.H., Docket No. 18-0129 (issued July 23, 2018); see S.E.,

Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (issued February 6, 2009).

13 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).

14 G.T., Docket No. 18-1369 (issued March 13, 2019); Amelia S. Jefferson, 57 ECAB 183 (2005); William A. 

Archer, 55 ECAB 674 (2004).
7

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 

total disability commencing January 1, 2013, causally related to his accepted July 5, 2008 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the June 7, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 23, 2020

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