United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, GLEN HEAD POST 

OFFICE, Glen Head, NY, Employer

__________________________________________

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Docket No. 20-0617

Issued: May 27, 2021

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 28, 2020 appellant, through counsel, filed a timely appeal from an August 16, 

2019 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 August 16, 2019 decision, appellant submitted additional evidence to OWCP.

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 his burden of proof to establish a recurrence of 

disability, commencing March 22, 2018, causally related to his accepted April 21, 2012

employment injury.

FACTUAL HISTORY

On May 4, 2012 appellant, then a 47-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on April 21, 2012 he sustained a lower back injury when he walked up 

a hill and felt a pull in the right side of his lower back while in the performance of duty. He stopped 

work on April 25, 2012. OWCP initially accepted appellant’s claim for a lumbar sprain and later 

expanded the accepted conditions to include lumbar disc herniation.

4

Appellant returned to work in a limited-duty position on a part-time basis for the employing 

establishment on July 2, 2012 and stopped work on December 11, 2012. Thereafter, he 

intermittently returned to limited-duty positions and stopped work. Appellant returned to a 

limited-duty letter carrier position for five hours per day on November 7, 2016. The position 

primarily involved delivering mail from a postal vehicle and required sitting, standing, and walking 

for up to five hours per day.

In a duty status report (Form CA-17) dated May 11, 2017, Dr. Anthony Petrizzo, an 

osteopath Board-certified in orthopedic surgery, indicated that appellant could walk up to six hours 

per day, and lift up to 35 pounds intermittently. 

Appellant filed a notice of recurrence (Form CA-2) on March 29, 2018 alleging that he 

stopped work and sustained a recurrence of disability on March 22, 2018 due to his accepted 

April 22, 2012 employment injury. He asserted that he experienced increased lumbar pain and 

decreased range of motion of the lumbar spine and that the employing establishment asked him to 

increase his walking duties by one hour per day. 

In support of his recurrence claim, appellant submitted a March 29, 2018 report from

Dr. Petrizzo who indicated that he saw appellant on that date. Dr. Petrizzo noted that appellant 

was “unable to do walking routes of any kind due to his multiple spinal surgeries.” He advised 

that he could only perform driving routes so that he could continue working while minimizing the 

risk of injury. In a Form CA-17 report of even date, Dr. Petrizzo indicated that appellant could 

walk up to five hours per day, lift up to 25 pounds continuously, and lift up to 70 pounds

intermittently.

In an April 12, 2018 report, Dr. Reginald Rousseau, a Board-certified anesthesiologist, 

reported physical examination findings, diagnosed low back pain and sacroiliitis, and noted that a 

sacroiliac epidural steroid injection was performed.

 

4 OWCP paid appellant wage-loss compensation for disability from work on the supplemental rolls commencing 

June 17, 2012 and on the periodic rolls commencing February 9, 2014. Appellant underwent OWCP-authorized 

arthrodesis, facetectomy, and fusion surgery at L5-S1 on January 6, 2014 and fusion mass exploration surgery with 

hardware removal on January 22, 2016. 
3

In a development letter dated April 27, 2018, OWCP requested that appellant submit 

additional factual and medical evidence in support of his recurrence of disability claim. It afforded 

him 30 days to respond. 

In response, appellant submitted a March 13, 2018 statement in which he indicated that the 

employing establishment had attempted to have letter carriers perform a “walking piece” delivery 

route lasting one hour each day. He advised that he had not performed the one-hour walking piece 

route since he returned to work, but that the employing establishment asked him to perform it 

commencing March 20, 2018. In a May 8, 2018 statement, appellant’s union representative 

indicated that appellant had not been performing the one-hour walking piece route because 

management did not allow it in order to keep him within his medical restrictions. He asserted, 

however, that management required appellant to perform the one-hour walking piece route 

commencing March 20, 2018. In a May 22, 2018 statement, counsel argued that a recurrence of 

disability occurred when the employing establishment altered appellant’s work duties such that 

they exceeded his work restrictions. 

Appellant submitted a March 20, 2018 note in which Dr. Petrizzo indicated that he was a 

patient in his orthopedic office and noted, “[i]t is my medical opinion that he is unable to carry 

mail in a mailbag on his back, due to his multiple spinal surgeries.” In a May 22, 2018 note, he 

further indicated that he saw appellant on March 22, 2018. Dr. Petrizzo noted that it was his 

medical opinion that appellant was unable to carry mail in a mailbag on his back. He also opined 

that appellant could not carry mail in his arms and that it was not recommended that he use a push 

cart. Appellant was unable to walk or perform “no park and loop city delivery” and he could only 

perform mounted routes. Dr. Petrizzo noted, “This is due to his multiple spinal surgeries.”

By decision dated May 30, 2018, OWCP found that appellant had not met his burden of 

proof to establish a recurrence of disability on or after March 22, 2018 causally related to his 

accepted April 21, 2012 employment injury. 

On May 18, 2019 appellant, through counsel, requested reconsideration of the May 30, 

2018 decision. In a June 21, 2018 report, Dr. Petrizzo indicated that appellant presented due to 

worsening back pain. He noted that appellant reported he continued working and had difficulty 

carrying items and walking due to worsening pain. Dr. Petrizzo provided examination findings 

and indicated that appellant had mechanical low back pain. He recommended that appellant

continue working with restrictions of no bending, stretching, twisting, or lifting more than 25 

pounds. Dr. Petrizzo noted that appellant was restricted from carrying any sustained load, or using 

a mailbag or push cart.

In reports between April 11, 2018 and June 19, 2019, Dr. Grace Forde, a Board-certified 

neurologist, provided examination findings and collectively diagnosed radiculopathy of

lumbosacral region, lumbar postlaminectomy syndrome, and sacroiliac pain. Dr. Forde noted that 

appellant reported that his low back condition had worsened. She provided epidural steroid 

injections and prescribed medication.

In reports dated June 1 and 29, 2018, Dr. Rousseau noted that appellant presented for 

sacroiliac epidural steroid injections.
4

In November 2018, OWCP referred appellant for a second opinion examination with

Dr. Edward Mills, a Board-certified orthopedic surgeon. It provided Dr. Mills with a copy of the 

case record, including a statement of accepted facts (SOAF), and requested that he provide an 

opinion regarding whether appellant continued to have residuals/disability causally related to his 

accepted April 21, 2012 employment injury. In a January 15, 2019 report, Dr. Mills indicated that 

the April 21, 2012 employment injury had resolved. He noted that appellant could perform fullduty work on a full-time basis and was no longer in need of any further treatment.

In a Form CA-17 report dated January 22, 2019, Dr. Petrizzo indicated that appellant was 

able to return to the full duties of his job on a full-time basis. The case record contains documents 

indicating that appellant returned to regular duty on a full-time basis without restrictions on 

January 23, 2019.

By decision dated August 16, 2019, OWCP denied modification of its May 30, 2018 

decision.

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.5 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.6 A recurrence does not occur when such withdrawal occurs for 

reasons of misconduct, nonperformance of job duties, or a reduction-in-force.7

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.8

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 

 

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

6

Id.

7

Id.

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket 

No. 18-0533 (issued August 27, 2018).
5

injury, and supports that conclusion with medical reasoning.9 Where no such rationale is present, 

the medical evidence is of diminished probative value.10

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

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

record establishes that he or she can perform the limited-duty position, the employee has the burden 

of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence 

of total disability and to show that he or she cannot perform such limited-duty work.11 As part of 

this burden, the employee must show a change in the nature and extent of the injury-related 

condition, or a change in the nature and extent of the limited-duty job requirements.12

ANALYSIS

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

disability, commencing March 22, 2018 causally related to his accepted April 21, 2012

employment injury.

In support of his recurrence claim, appellant submitted a March 29, 2018 report from

Dr. Petrizzo, who indicated that he saw appellant on that date. Dr. Petrizzo noted that appellant 

was “unable to do walking routes of any kind due to his multiple spinal surgeries.” He advised 

that appellant could only preform driving routes so that he could continue working while 

minimizing the risk of injury. In a Form CA-17 report of even date, Dr. Petrizzo indicated 

restrictions of walking up to five hours per day with lifting up to 25 pounds continuously and 70 

pounds intermittently.

The Board finds that, although Dr. Petrizzo’s March 29, 2018 narrative report contains 

increased work restrictions, it is of limited probative because it does not contain a rationalized 

medical opinion explaining that appellant’s need for increased restrictions was due to the April 21, 

2012 employment injury. Dr. Petrizzo did not identify the surgeries that caused the worsening of 

appellant’s condition beginning March 29, 2018. He did not provide any explanation, supported 

by objective findings, of the medical mechanism through which appellant’s OWCP-authorized 

January 6, 2014 and January 22, 2016 surgeries could cause disability on or after March 22, 2018, 

the date of appellant’s claimed recurrence of disability. The Board has held that a report is of 

limited probative value regarding causal relationship if it does not contain medical rationale 

explaining how a given medical condition/level of disability has an employment-related cause.13 

Moreover, the opinion contained in Dr. Petrizzo’s March 29, 2018 narrative report is rendered 

equivocal by the fact that his March 29, 2018 Form CA-17 report indicates that appellant could 

walk for up to five hours per day. The Board has held that an opinion which is equivocal in nature 

 

9

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

10 H.T., Docket No. 17-0209 (issued February 8, 2018).

11 See D.W., Docket No. 19-1584 (issued July 9, 2020); S.D., Docket No. 19-0955 (issued February 3, 2020); 

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

12 C.B., Docket No. 19-0464 (issued May 22, 2020); see R.N., Docket No. 19-1685 (issued February 26, 2020).

13 See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).
6

is of limited probative value regarding the issue of causal relationship.

14

 Therefore, these reports of

Dr. Petrizzo are insufficient to establish appellant’s claim.

Appellant also submitted a March 20, 2018 note in which Dr. Petrizzo indicated that he 

was a patient in his orthopedic office and noted, “[i]t is my medical opinion that he is unable to 

carry mail in a mailbag on his back, due to his multiple spinal surgeries.” In a May 22, 2018 note, 

he further indicated that he saw appellant on March 22, 2018. Dr. Petrizzo noted that it was his 

medical opinion that appellant was unable to carry mail in a mailbag on his back. He also opined 

that appellant could not carry mail in his arms and that it was not recommended that he use a push 

cart. Appellant was unable to walk or perform “no park and loop city delivery” and he could only 

perform mounted routes. Dr. Petrizzo noted, “This is due to his multiple spinal surgeries.”

While the March 20 and May 22, 2018 reports of Dr. Petrizzo contain additional work 

restrictions of no walking, park and loop city delivery, or carrying mail in a mailbag on the back 

or in the arms, the reports do not discuss any clinical findings or contain medical rationale 

explaining how appellant’s work-related condition had worsened and how the increased 

restrictions were causally related to the accepted April 21, 2012 employment injury. Dr. Petrizzo

only indicated that the additional restrictions were “due to multiple spinal surgeries.” He did not 

identify the surgeries that caused the worsening of appellant’s condition beginning 

March 20, 2018. Dr. Petrizzo again failed to provide any explanation, supported by objective 

findings, of the medical mechanism through which appellant’s OWCP-authorized January 6, 2014 

and January 22, 2016 surgeries could cause disability on or after March 22, 2018. Therefore, these 

reports of Dr. Petrizzo also are insufficient to establish appellant’s claim.

The Board notes that counsel has argued that a recurrence of disability occurred when the 

employing establishment altered his work duties such that they exceeded his work restrictions.15 

Appellant has alleged that the employing establishment asked him to perform a “walking piece”

delivery route lasting one hour each day commencing March 20, 2018, thereby increasing his 

walking from five to six hours per day. The Board notes that, regardless of whether the employing 

establishment required such extra walking, appellant’s restrictions prior to stopping work on 

March 22, 2018 allowed him to walk for up to six hours per day and therefore his work restrictions 

would not have been exceeded. In a Form CA-17 report dated May 11, 2017, Dr. Petrizzo had 

indicated that appellant could walk up to six hours per day. For the reasons explained above,

Dr. Petrizzo failed to provide a rationalized medical opinion that his later recommended increases 

in appellant’s work restrictions were causally related to the April 21, 2012 employment injury. 

Appellant also submitted April 12, and June 1 and 29, 2018 reports in which Dr. Rousseau 

indicated that sacroiliac epidural steroid injections were performed. In reports dated between 

April 11, 2018 and June 19, 2019, Dr. Forde provided examination findings and collectively 

diagnosed radiculopathy of lumbosacral region, lumbar post-laminectomy syndrome, and 

sacroiliac pain. She noted that appellant reported that his low back condition had worsened. In a 

June 21, 2018 report, Dr. Petrizzo recommended that appellant continue working with restrictions 

of no bending, stretching, twisting, or lifting more than 25 pounds. He noted that appellant was 

restricted from carrying any sustained load, or using a mailbag or push cart. The Board finds that 

 

14 See E.B., Docket No. 18-1060 (issued November 1, 2018); Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).

15 See supra note 6.
7

these reports are of no probative value regarding appellant’s recurrence of disability claim because 

they do not contain an opinion that appellant suffered a recurrence of disability on or after 

March 22, 2018 causally related to his accepted April 21, 2012 employment injury. The Board 

has held that a medical report is of no probative value on a given medical matter if it does not 

contain an opinion on that matter.16 Therefore, these reports are insufficient to establish appellant’s 

claim.

The case record also contains other reports which would not support appellant’s claim for an 

employment-related recurrence on or after March 22, 2018. In a January 15, 2019 report, Dr. Mills, 

an OWCP referral physician, opined that the April 21, 2012 employment injury had resolved and 

that appellant could perform full-duty work on a full-time basis. In a Form CA-17 report dated 

January 22, 2019, Dr. Petrizzo indicated that appellant was able to return to the full duties of his 

job on a full-time basis.

As appellant has not submitted any rationalized medical evidence establishing a recurrence

of disability commencing March 22, 2018 causally related to his accepted April 21, 2012 

employment injury, he has not met his burden of proof.

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 March 22, 2018 causally related to his accepted April 21, 2012

employment injury.

 

16 T.H., Docket No. 18-0704 (issued September 6, 2018); see also Charles H. Tomaszewski, 39 ECAB 461 (1988).
8

ORDER

IT IS HEREBY ORDERED THAT the August 16, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 27, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board