United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Flushing, NY, Employer

__________________________________________

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Docket No. 19-0609

Issued: September 23, 2019

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 25, 2019 appellant, through counsel, filed a timely appeal from a November 23, 

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 23, 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

ISSUES

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

of total disability commencing February 17, 2017, causally related to the accepted cervical 

spondylosis without myelopathy.; and (2) whether appellant has met his burden of proof to 

establish a recurrence of total disability commencing July 17, 2017, causally related to the 

accepted cervical spondylosis without myelopathy.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

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

are as follows.

On August 7, 2000 appellant, then a 52-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that federal employment duties, including carrying heavy mail, caused 

upper back pain. His claim was accepted by OWCP for the condition of cervical spondylosis 

without myelopathy. OWCP thereafter accepted four recurrences of disability. In May 2006 

appellant began working three-hours a day in a sedentary position.

5

On November 17, 2013 appellant filed a notice of recurrence (Form CA-2a) claiming

disability commencing October 25, 2013, alleging that he had to handle hundreds of pieces of mail 

causing his neck and shoulders to hurt too much to work. 

By decision dated April 4, 2014, OWCP denied appellant’s claim for a recurrence of total 

disability beginning October 25, 2013, with intermittent periods thereafter until February 20, 2014 

when he again stopped work. 

Appellant continued to request reconsideration of the denial of his October 25 2013 

recurrence claim under OWCP File No. xxxxxx781 and his October 24, 2013 traumatic injury

 

4 Docket No. 08-2473 (issued June 10, 2009); Docket No. 16-1907 (issued August 29, 2017).

5 On October 2, 2007 appellant claimed a recurrence of disability (Form CA-2a), for total disability beginning 

August 3, 2007. On January 3, 2008 OWCP denied his recurrence claim, and an OWCP hearing representative 

affirmed this decision on July 25, 2008. Appellant filed an appeal with the Board, and by decision dated June 10, 

2009, the Board affirmed the September 25, 2008 decision. Docket No. 08-2473 (issued June 10, 2009). Following 

the August 2007 recurrence claim, appellant returned to modified duty for three hours daily on September 26, 2007. 

OWCP adjusted his wage-loss compensation to reflect his modified duties. On August 16, 2010 it accepted a May 10, 

2010 recurrence of total disability. Appellant returned to modified duty as a registry scanner for three hours a day on 

July 12, 2013. Thereafter OWCP paid him compensation for intermittent wage loss.
3

claim under OWCP File No. xxxxxx352. OWCP continued to deny modification of its prior 

decisions.6

By decision dated June 10, 2016, issued under OWCP File Nos. xxxxxx781 and 

xxxxxx352, OWCP determined that File No. xxxxxx352 should be adjudicated as an occupational 

disease claim. It found that the evidence of record was insufficient to establish causal relationship 

under File No. xxxxxx352. OWCP further found that none of the medical evidence submitted 

under either claim was sufficient to explain how employment factors caused or aggravated 

appellant’s condition on October 25, 2013. As such, the claimed recurrence under File No. 

xxxxxx781 remained denied. 

Appellant filed an appeal with the Board. By decision dated August 29, 2017, the Board 

found that appellant had not established a recurrence of total disability beginning October 25, 2013 

in File No. xxxxxx781, and had not established an employment-related injury on October 24, 2013 

in File No. xxxxxx352.7

During the pendency of appellant’s appeal before the Board, appellant filed a notice of 

recurrence (Form CA-2a) on April 3, 2017 indicating that the recurrence occurred on 

February 17, 2017. He wrote that he had upper back pain and weakness. The employing 

establishment indicated that appellant returned to work on March 20, 2017.

Appellant had begun pain management with Dr. Jordan Sudberg, a physiatrist, in 

November 2015 and provided a series of his reports. In a report dated March 18, 2017,

Dr. Sudberg noted that appellant was working as a mailman lobby assistant director and injured 

himself lifting something heavy at work which, he related, was an exacerbation of an October 24, 

2013 injury caused by repetitive use of his upper extremities. He described examination findings 

and diagnosed “rule-out cervical disc herniation, cervical myofascial pain syndrome, and cervical 

radiculopathy” and concluded that, within a reasonable degree of medical certainty, the 

employment incident on August 1, 2000 was the competent producing cause of appellant’s 

condition. On an attached work capacity evaluation (Form OWCP-5c), Dr. Sudberg advised that 

appellant could work three hours of modified duty daily with a five-pound weight restriction. On 

a March 18, 2017 duty status report (Form CA-17), he advised that appellant’s symptoms were 

aggravated on October 24, 2013, and he diagnosed employment-related cervical herniated discs 

and left cubital syndrome, not employment related. Dr. Sudberg also submitted an attending 

physician’s report (Form CA-20) in which he noted neck and shoulder pain and weakness, and 

bilateral wrist weakness. He diagnosed right shoulder impingement and right carpal tunnel 

syndrome. Dr. Sudberg advised that appellant could not return to work. 

In a May 2, 2017 development letter, OWCP advised appellant of the factual and medical 

deficiencies in his April 3, 2017 recurrence claim and requested that he provide medical evidence, 

 

6 On August 28, 2014 appellant filed a traumatic injury claim (Form CA-1) alleging a traumatic injury on 

October 24, 2013 when he put a key scanner to his shoulder and had sudden and severe shoulder and neck pain while 

in the performance of duty. OWCP adjudicated the traumatic injury claim under File No. xxxxxx352. On 

November 7, 2014 it denied appellant’s traumatic injury claim in File No. xxxxxx352, finding that the evidence did 

not support that the injury occurred as alleged as there were significant deficiencies which cast doubt on his account 

of the factual events. 

7 Docket No. 16-1907 (issued August 29, 2017).
4

including a well-rationalized report from his physician which explained how the accepted 

employment injury caused the claimed recurrence. It afforded appellant 30 days to submit the 

requested evidence.

Appellant submitted additional reports by Dr. Sudberg dated April 15 and May 13, 2017 

in which the physician reiterated his prior findings and conclusions. 

By decision dated June 16, 2017, OWCP denied appellant’s April 3, 2017 notice of 

recurrence claim finding that he had not responded to the May 2, 2017 development letter by 

answering the attached questionnaire regarding how the recurrence occurred. It further found that 

the medical evidence from Dr. Sudberg did not provide sufficient rationale explaining how the 

claimed recurrent disability was employment related. 

On June 27, 2017 appellant, through counsel, requested a hearing before an OWCP hearing 

representative. 

On August 14, 2017 appellant filed an additional notice of recurrence (Form CA-2a)

alleging a recurrence commencing on July 17, 2017 when he stopped work because his condition 

had worsened. The employing establishment attached a job offer, accepted by appellant, for a

lobby monitor for four hours daily with physical requirements of sitting and verbally 

communicating with customers.

In a September 28, 2017 development letter, OWCP advised appellant of the factual and 

medical deficiencies in his August 14, 2017 recurrence claim and requested that he provide 

medical evidence, including a well-rationalized report from his physician which explained how 

employment factors caused the claimed recurrence. A questionnaire for completion was attached, 

and OWCP afforded appellant 30 days to submit the requested evidence. 

In a report dated October 21, 2017, Dr. Sudberg provided a history that, while working as 

a lobby assistant, appellant injured himself lifting something heavy. He explained that appellant’s 

symptoms continued to progressively worsen, and that on July 17, 2017 he had a spontaneous 

recurrence of his symptoms which caused constant neck and upper back pain associated with 

muscle spasms and stiffness, bilateral shoulder pain, headaches, radiating bilateral upper extremity 

pain with limited range of motion, and paresthesias and weakness which caused intermittent loss 

of dexterity. Following physical examination, Dr. Sudberg diagnosed cervical sprain/strain, 

cervical myalgia, cervical trigger points, cervicalgia, bilateral cervical radiculopathy, and bilateral 

shoulder pain. He advised that appellant was totally disabled and concluded that, within a 

reasonable degree of medical certainty, the accident on August 1, 2000 was the competent 

producing cause of appellant’s condition. 

Appellant responded to the September 28, 2017 development questionnaire on 

October 25, 2017. He indicated that he had a spontaneous recurrence on July 17, 2017 and 

described job duties that included frequently picking up packages as requested which caused 

constant neck pain, muscle spasm, and radiating pain into both hands such that he could not work. 

By decision dated November 13, 2017, OWCP denied appellant’s claim for a July 17, 2017 

recurrence finding that the medical evidence of record was insufficient to establish that the claimed 

recurrent disability was caused by the accepted employment injury including the condition of 

cervical spondylosis. 
5

On December 4, 2017 appellant requested a review of the written record from an OWCP 

hearing representative following the November 13, 2017 decision. 

Dr. Sudberg continued to submit monthly reports indicating that appellant suffered a 

spontaneous recurrence on July 17, 2017 with increased symptoms that caused him to stop work. 

In reports beginning January 13, 2018, he indicated that appellant’s work stoppage on July 17, 

2017 was solely related to the accepted cervical spondylosis without myelopathy which caused 

worsening neck pain, limited range of motion, paresthesias, and weakness. Dr. Sudberg related 

that appellant’s bilateral shoulder and thoracolumbar pain were not part of the justification of his 

July 17, 2017 recurrence. 

By decision dated March 1, 2018, a hearing representative affirmed the June 16, 2017 

decision, denying appellant’s April 2017 recurrence claim. 

On June 28, 2018 appellant, through counsel, requested reconsideration of the 

November 13, 2017 and March 1, 2018 decisions. 

Dr. Sudberg submitted monthly reports in which he indicated that the July 17, 2017 

recurrence exacerbated appellant’s original August 1, 2000 injury and caused worsening severe 

neck pain, limited range of motion, paresthesias and weakness. He continued to advise that 

appellant could not work. 

By decision dated November 23, 2018, OWCP denied modification of its prior decisions

finding that the medical evidence submitted was insufficient to establish either claimed recurrence. 

LEGAL PRECEDENT -- ISSUES 1 and 2

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 had resulted from a previous 

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

the illness. The term also means an inability to work when a light-duty assignment made 

specifically to accommodate an employee’s physical limitations due to the work-related 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 so that they exceed his or her established physical limitations.8

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.9

An employee who claims a recurrence of disability resulting from an accepted employment 

injury has the burden of establishing that the disability is related to the accepted injury. This 

 

8 20 C.F.R. § 10.5(x); see J.B., Docket No. 1751 (issued May 6, 2019).

9 S.H., Docket No. 18-1398 (issued March 12, 2019); Terry R. Hedman, 38 ECAB 222 (1986).
6

burden requires furnishing medical evidence from a physician who, on the basis of a complete and 

accurate factual and medical history, concludes that the disabling condition is causally related to 

the employment injury and supports that conclusion with sound medical reasoning.10

ANALYSIS -- ISSUE 1

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

total disability commencing February 17, 2017 causally related to his accepted cervical 

spondylosis without myelopathy.

At the time of the alleged February 17, 2017 recurrence, appellant did not allege a change 

in the nature and extent of his light-duty job requirements, rather he indicated that his employment 

duties caused his neck and back pain to worsen. He must, therefore, provide medical evidence 

establishing that he was disabled due to a worsening of his accepted work-related condition.

11

 

While counsel asserts on appeal that the medical evidence of record is sufficient to establish the 

February 17, 2017 recurrence, the Board finds that appellant has not submitted medical evidence 

to establish that he was disabled due to a worsening of his accepted cervical spondylosis without 

myelopathy commencing February 17, 2017.

The medical evidence submitted in support of his alleged recurrence includes numerous 

reports from Dr. Sudberg. The Board, however, finds his opinion of insufficient probative value

to meet appellant’s burden of proof to establish a February 17, 2017 recurrence of total disability. 

In a March 18, 2017 report, Dr. Sudberg diagnosed conditions not accepted under this claim. He 

referenced the alleged October 24, 2013 injury when appellant injured himself lifting something 

heavy at work, and the injury claim previously denied by the Board.

12

 Dr. Sudberg continued to 

repeat this history in monthly reports. 

The Board has held that the issue of disability from work can only be resolved by competent 

medical evidence.13 Whether a claimant’s disability is related to an accepted condition is a medical 

question which must be established by a physician who, on the basis of a complete and accurate 

factual and medical history, concludes that the disability is causally related to the accepted 

condition and supports that conclusion with sound medical reasoning.14 Dr. Sudberg failed to 

provide a rationalized medical opinion that appellant’s inability to work commencing February 17, 

2017 resulted from the August 7, 2000 employment injury which was accepted for the condition 

of cervical spondylosis without myelopathy. Without a rationalized opinion as to how and why 

appellant’s accepted conditions worsened and prevented him from performing his modified-duty 

 

10 Id.

11 S.W., Docket No. 18-1489 (issued June 25, 2019).

12 Id.

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

14 D.J., Docket No. 18-0200 (issued August 12, 2019). 
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position during the claimed period of disability commencing February 17, 2017, the opinions 

expressed by Dr. Sudberg are insufficient to establish his claim for total disability.15

ANALYSIS -- ISSUE 2

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

of total disability commencing July 17, 2017, causally related to his accepted cervical spondylosis 

without myelopathy. 

In a development questionnaire dated October 25, 2017, appellant alleged job duties that 

included picking up packages frequently that caused a spontaneous recurrence of radiating neck 

pain and muscle spasm. He did not allege that his light-duty, accommodated position as a lobby 

monitor was withdrawn by the employing establishment, nor did he provide evidence to support 

that he was working outside of his medical restrictions. 

As previously found by the Board, the medical opinion evidence contained in the reports 

of Dr. Sudberg are of insufficient probative value to establish a July 17, 2017 recurrence of total 

disability. In reports dated August 12 and September 9, 2017, Dr. Sudberg did not mention a 

July 17, 2017 worsening of appellant’s condition, but continued to advise that appellant’s disability 

was due to an October 24, 2013 recurrence. It was not until the September 28, 2017 report that he 

specifically referenced July 17, 2017. On October 21, 2017 Dr. Sudberg noted that on July 17, 

2017 appellant had a spontaneous recurrence of symptoms which caused constant neck and upper 

back pain associated with muscle spasms and stiffness, bilateral shoulder pain, headaches, 

radiating bilateral upper extremity pain with limited range of motion, and paresthesias and 

weakness which caused intermittent loss of dexterity. He diagnosed cervical sprain/strain, cervical 

myalgia, cervical trigger points, cervicalgia, bilateral cervical radiculopathy, and bilateral shoulder 

pain, none of which have been accepted under this claim. Dr. Sudberg opined that appellant was 

totally disabled and concluded that, within a reasonable degree of medical certainty, the accepted 

August 7, 2000 employment injury was the competent producing cause of appellant’s condition. 

In his reports beginning on September 28, 2017, Dr. Sudberg did not provide sufficient 

rationale explaining the objective findings establishing a worsening of appellant’s accepted 

condition, rather than mere worsening of his subjective symptoms.

16

 

In assessing medical evidence, the weight of a physician’s opinion is determined by the 

opportunity for and thoroughness of the examination, the accuracy and completeness of the 

physician’s knowledge of the facts and medical history, the care of analysis manifested and the 

medical rationale expressed in support of the physician’s opinion.

17

 Contrary to counsel’s 

assertions on appeal, Dr. Sudberg’s reports were of insufficient rationale to establish a recurrence 

of total disability commencing July 17, 2017.18

 

15 V.H., Docket No. 18-0456 (issued August 9, 2019). 

16 Id. 

17 See P.S., Docket No. 18-1361 (issued May 20, 2019).

18 The Board notes that appellant continues to receive wage-loss compensation based on four hours of daily 

employment.
8

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 February 17 or July 17, 2017 causally related to his accepted cervical 

spondylosis without myelopathy. 

ORDER

IT IS HEREBY ORDERED THAT the November 23, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 23, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board