United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Newark, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 20-1543

Issued: February 2, 2022

Appearances: Case Submitted on the Record

Lawrence Berger, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On August 24, 2020 appellant, through counsel, filed a timely appeal from a May 28, 2020 

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 appellant submitted additional evidence on appeal. 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 her burden of proof to establish a recurrence of total 

disability from work commencing August 3, 2014 causally related to her accepted employment 

injury.

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 April 24, 2003 appellant, then a 41-year-old immigration enforcement agent, filed a 

traumatic injury claim (Form CA-1) alleging that on April 17, 2003 she injured her neck during 

required physical mat room training exercises while in the performance of duty. OWCP assigned 

the claim OWCP File No. xxxxxx260 and accepted ventral disc herniation at C5-6 and cervical 

radiculopathy. Appellant stopped work on May 27, 2003. OWCP paid her wage-loss 

compensation for disability from work on the supplemental rolls commencing July 11, 2003 and 

on the periodic rolls commencing January 27, 2004. On February 28, 2005 Dr. John J. Knightly, 

a Board-certified neurosurgeon, performed an OWCP-authorized anterior cervical discectomy at 

C5-6 and C6-7 with fusion. Appellant returned to a limited-duty position on September 18, 2006,

performing clerical duties and occasional lifting/carrying of articles such as docket files, ledgers, 

and small office tools.

5

Appellant returned to full-duty work on May 22, 2009.

In a November 18, 2011 report, Dr. Knightly diagnosed ulnar neuropathy, anxiety, 

depression, cervical radiculopathy, cervicalgia, history of migraines, fibromyalgia, cervical 

spondylosis, and neuropathy. He noted that appellant’s medications included Xanax twice daily, 

and Vicodin as needed for pain. In November 8, 2012 report, Dr. Dale R. Tidaback, a Boardcertified occupational medicine specialist, assessed appellant’s fitness for duty. He determined 

that, while appellant was physically capable of performing her employment duties, she was not fit 

for duty, including carrying an issued firearm, due to her continued use of narcotics and antianxiety medications on an “as needed” basis as these could cloud hersensorium and affect decision 

making. Dr. Tidaback indicated that there were other equally efficacious pain and anxiety 

medications that did not produce side effects, which could adversely affect her job.

In correspondence dated January 14, 2013, J.M., deputy field office director with the

employing establishment, notified appellant that it proposed to remove her from her position as an

immigration enforcement agent. He indicated that the employing establishment was concerned 

about her ability to perform all essential functions of her position and for her safety and well-being, 

4 Docket No. 08-1481 (issued January27, 2009); Docket No. 18-0130 (issued September 17, 2018).

5 On April 10, 2007 appellant filed a second traumatic injury claim (Form CA-1) alleging that she sustained a neck 

injury on February 17, 2007 during a 14-hour airplane flight from Newark, New Jersey to New Delhi, India when she 

was transporting a prisoner while in the performance of duty. OWCP assigned the claim OWCP File No. xxxxxx616, 

accepted the conditions of cervical strain and cervical muscle spasm, and paid wage-loss compensation for periods of 

disability. On April 20, 2009 it administratively combined OWCP File Nos. xxxxxx260 and xxxxxx616, with the 

current file designated as the master file.
3

and the safety and well-being of her coworkers and the public. J.M. indicated that, during a notice 

period, appellant would remain in her current duty status of performing administrative duties. In 

a January 29, 2013 memorandum, the employing establishment informed appellant that she was 

being placed on administrative duty with no law enforcement duties at the Moore Haven facility

in Florida, effective that date.

In a December 9, 2013 report, Dr. Lowell Davis, an osteopath and Board-certified 

anesthesiologist, diagnosed cervicalgia, cervical myofascial pain, and status post cervical surgery. 

He noted that appellant could return to full-duty work and should continue her current 

pharmacological regimen.

The employing establishment removed appellant effective August 3, 2014 due to her use 

of prescribed narcotic medication, which it asserted was not necessitated by her employment 

injury.

OWCP subsequently received a June 30, 2014 letter, wherein M.M., field office director at 

the employing establishment, advised that the employing establishment had informed appellant by 

letter dated January 14, 2013 that it had proposed to remove her due to medical inability to perform 

the duties of her position as an immigration enforcement agent due to her continued use of narcotic 

and other medications,which he maintained, clouded the sensorium and affected decision making. 6 

He stayed the removal for 30 days to allow appellant time to apply for an enforcement removal 

assistant position.

On October 23, 2014 appellant filed a notice of recurrence (Form CA-2a) alleging that a 

recurrence of her accepted employment injuries occurred on August 3, 2014. She asserted that 

commencing January 29, 2013 she was prevented from performing usual duties until her removal 

from the employing establishment on August 3, 2014 even though her physician had returned her

to full-duty status.

In a development letter dated December 30, 2014, OWCP informed appellant of the 

deficiencies of her recurrence claim. It advised her of the medical evidence needed to establish 

her claim and provided a questionnaire for her completion. OWCP afforded appellant 30 days to 

respond.

In a January 28, 2015 report, Dr. Matthew H. Moretti, an osteopath and Board-certified 

family medicine specialist, noted the history of appellant’s two employment injuries. He indicated 

that appellant reported that she was required to commute 100 miles each way to her job, and noted 

that the stress of this commute caused muscle spasm and neck pain which, in turn, led to severe 

anxiety and migraine headaches. Dr. Moretti opined that appellant’s medical symptoms were all 

caused by and/or stemmed from her employment injuries and were then exacerbated by a daily, 

extremely long commute.

By decision dated April 22, 2015, OWCP denied appellant’s recurrence claim, finding that 

appellant failed to establish that a spontaneous change in her employment-related medical 

condition necessitated a work stoppage on or after August 3, 2014.

6 The position description for an immigration enforcement agent indicates that the agent carries firearms in the 

performance of duty. The record also contains documents concerning employing establishment firearms policy.
4

On October 13, 2015 appellant, through counsel, requested reconsideration of the April 22, 

2015 decision. Medical evidence submitted included a May 12, 2015 report in which Dr. Samy F. 

Bishai, a Board-certified orthopedic surgeon, diagnosed cervical disc syndrome with bilateral 

radiculopathy, and status post disc excision and fusion at C5-6 and C6-7. On May 15, 2015

Dr. Davis diagnosed cervicalgia, myofascial pain syndrome, cervical facet joint mediated pain, 

post cervical laminectomy, and anxiety/depression. In a June 22, 2015 report, Dr. Knightly noted 

that he had not seen appellant since May 2013. He described her complaints of continued neck 

pain and increasing arm pain and numbness with tingling into the hands bilaterally. Following 

physical examination, Dr. Knightly diagnosed deteriorating anxiety and depression, deteriorating 

right cervical radiculopathy, and worsening neck pain. He opined that because appellant was on 

Vicodin and Xanax, she would not be qualified to carry a firearm.

In a May 20, 2015 report, Dr. Moretti indicated that, despite a May 2006 functional 

capacity evaluation (FCE), which found appellant incapable of performing her usual position, she 

was returned to full duty, working eight hours per day, “in fear of retribution or termination,” and 

that an FCE in July 2012 recommended six-hour workdays, but she was forced to work eight-hour 

days with a two-hour commute each way. He opined that appellant’s pain was caused by a workrelated injury, exacerbated by lack of approval for physical therapy and nonadherence by her 

supervisors of medically recommended work restrictions. In an August 25, 2015 report,

Dr. Moretti opined that appellant’s anxiety and depression were due to her employment injuries. 

He advised that she could not perform any work due to chronic pain and secondary severe anxiety.

On September 23, 2015 OWCP referred appellant for a second opinion examination and 

evaluation, along with a statement of accepted facts (SOAF) and a list of questions, to Dr. Peter J. 

Millheiser, a Board-certified orthopedic surgeon. It requested thatDr. Millheiser evaluate whether 

appellant’s accepted employment injuries prevented her from performing her regular duties 

without restrictions. 

In an October 19, 2015 report, Dr. Millheiser advised that the physical examination 

demonstrated moderate restriction of appellant’s cervical spine motion in all planes with no 

tenderness, spasm, or trigger points present. He discussed appellant’s diagnostic testing and 

diagnosed post cervical fusion from C5 to C7. Dr. Millheiser indicated that appellant had a chronic 

pain problem following the cervical fusion and still had neurological findings, including 

hypoesthesia of the left middle finger and slight right thenar atrophy, which were residuals of her

employment injuries. He also noted that appellant suffered from anxiety and should be weaned 

off narcotics. Dr. Millheiser concluded that appellant could not return to regular-duty work 

without restrictions due to the cervical fusion surgery, but could perform modified duty with lifting 

of no more than 30 pounds, and avoidance of neck twisting, running, climbing, and subduing/

lifting uncooperative individuals.

By decision dated November 1, 2016, OWCP denied modification of its April 22, 2015

decision, finding that the medical evidence submitted was insufficient to establish a spontaneous 

worsening of her accepted conditions and that the removal of her limited-duty position was due to 

the daily commute she endured after her return to full-duty work.

On June 12, 2017 appellant, through counsel, requested reconsideration of the November 1, 

2016 decision. Counsel asserted that appellant sustained a recurrence of disability because her 

limited-duty work was withdrawn. In an April 25, 2017 report, Dr. Davis noted that appellant was 

last seen in May 2015. He described her complaint of right-sided neck, shoulder, and upper 
5

extremity pain, managed by medication. Following physical examination, Dr. Davis diagnosed 

cervical spondylosis without myelopathy, post cervical laminectomy syndrome, and right cervical 

radiculopathy.

By decision dated August 23, 2017, OWCP denied modification of its November 1, 2016

decision.

Appellant appealed to the Board and, by decision dated September 17, 2018,7the Board 

set aside the August 23, 2017 decision and remanded the case to OWCP for further development. 

The Board found that it was unclear from the case record whether appellant was prescribed the 

medications Xanax and Vicodin for her accepted employment injuries.

On remand, OWCP referred appellant for a second opinion examination and evaluation, 

along with a SOAF and series of questions, to Dr. Millheiser. It requested that Dr. Millheiser

evaluate whether her use of Xanax and Vicodin was necessitated by the accepted employment 

injuries. 

In a report dated November 5, 2018, Dr. Millheiser reported the findings of his physical 

examination, noting that appellant had a mild restriction of the cervical spine motion and no 

tenderness. He diagnosed post cervical fusion surgery and found that she was able to work. 

Dr. Millheiser advised that, with respect to the use of Xanax, appellant appeared to have had a 

stale cervical fusion and that she had no significant objective findings with respect to neurological 

loss over the years. He indicated that there was no reason for her to be on narcotics for the 13 

years that had elapsed since her surgery. Dr. Millheiser opined that appellant’s use of narcotics 

could not be explained by her physical findings and that it was not necessitated by the conditions 

of cervical radiculopathy and cervical spasm.

By decision dated January 25, 2019, OWCP denied appellant’s claim, finding that she had 

not established a recurrence of disability commencing August 3, 2014 causally related to her 

accepted employment injury.

On February 16, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. Prior to the hearing, OWCP’s hearing 

representative issued a May 2, 2019 decision setting aside the January 25, 2019 decision and 

remanding the case to OWCP for further development. The hearing representative found that

Dr. Millheiser’s November 5, 2018 report did not fully address whether appellant’s use of Vicodin 

was necessitated by work-related residuals and directed OWCP to obtain a supplemental report 

from Dr. Millheiser, which fully addressed appellant’s use of both Vicodin and Xanax. 

On May 15, 2019 OWCP requested a supplemental report from Dr. Millheiser in 

accordance with the May 2, 2019 decision. In a July 5, 2019 report, Dr. Millheiser noted that he 

had reviewed the relevant medical records and indicated that there was no change in his prior 

opinion that there was no need for appellant’s ongoing use of Vicodin. He opined that there was 

no physical problem thatwould have necessitated the use of Xanax or Vicodin and found that these 

medications were not medically necessary for the accepted employment injuries. With specific 

respect to Xanax usage, Dr. Millheiser indicated that appellant had no specific localizing findings 

7

Supra note 4.
6

and there was no specific orthopedic or neurological reason why she needed the medication for 

work-related residuals, including those related to the cervical surgery.

By decision dated July 25, 2019, OWCP denied appellant’s claim, finding that she had not

established a recurrence of disability commencing August 3, 2014 causally related to her accepted 

April 17, 2003 and February 17, 2007 employment injuries.

On April 7, 2020 appellant, through counsel, requested reconsideration of the July 25, 2019 

decision. In an accompanying statement, counsel argued that Dr. Millheiser did not adequately 

address appellant’s need for medication to treat residuals of the accepted employment injuries. 

Appellant submitted an August 22, 2019 report from Dr. Moretti who indicated that he diagnosed 

her with ventral disc herniation at C5-6, cervical radiculopathy, and cervical muscle spasm, and 

that he was prescribing the medications Hydrocodone, Carisoprodol, and Alprazolam (also known 

as Xanax) to treat the conditions. 

By decision dated May 28, 2020, OWCP denied modification. 

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.8 This term also means an inability to work because a limited-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.9 A recurrence does not occur when such withdrawal occurs for 

reasons of misconduct, nonperformance of job duties, or a reduction-in-force.10

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.11

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 rela ted 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 

8

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

9

Id.

10 Id.

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

No. 18-0533 (issued August 27, 2018).
7

injury, and supports that conclusion with medical reasoning.12 Where no such rationale is present, 

the medical evidence is of diminished probative value.13

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.14 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.15

ANALYSIS

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

total disability from work commencing August 3, 2014 causally related to her accepted 

employment injury.

In support of her disability claim, appellant submitted a January 28, 2015 report from

Dr. Moretti who indicated that appellant reported that she was required to commute 100 miles each 

way to her job, and noted that the stress of this commute caused muscle spasm and neck pain 

which, in turn, led to severe anxiety and migraine headaches. Dr. Moretti opined that appellant’s 

medical symptoms were all caused by and/or stemmed from her employment injuries and were 

then exacerbated by a daily, extremely long commute. In a May 20, 2015 report, he indicated that 

an FCE in 2012 recommended six-hour workdays for appellant, but she was forced to work eighthour days with a two-hour commute each way. Dr. Moretti opined that appellant’s pain was caused 

by a work-related injury, exacerbated by lack of approval for physical therapy and nonadherence 

by her supervisors of medically recommended work restrictions. In an August 25, 2015 report, he

opined that appellant’s anxiety and depression were due to her employment injuries. Dr. Moretti

advised that she could not perform any work due to chronic pain and secondary severe anxiety.

Although Dr. Moretti found employment-related disability in these reports, they are of 

limited probative value regarding appellant’s recurrence of disability claim because he did not 

provide medical rationale in support of his opinion that appellant was disabled due to her April 17, 

2003 and February 17, 2007 employment injuries. He did not describe these cervical injuries in 

any detail or explain the medical mechanism through which they would have caused 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 an employment activity could have caused or 

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

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

14 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).

15 C.B., Docket No. 19-0464 (issued May 22, 2020); see R.N., Docket No. 19-1685 (issued February 26, 2020).
8

aggravated a medical condition.16 Therefore, Dr. Moretti’s reports are insufficient to establish 

appellant’s recurrence of disability claim.

In a June 22, 2015 report, Dr. Knightly diagnosed deteriorating anxiety and depression, 

deteriorating right cervical radiculopathy, and worsening neck pain. He opined that because 

appellant was taking Vicodin and Xanax, she would not be qualified to carry a firearm. Although

Dr. Knightly suggested that appellant was disabled due to her use of medications, he did not 

provide a rationalized medical opinion that appellant’s use of medication was necessitated by an 

employment-related condition and, therefore, effectively caused disability by preventing her from 

performing her limited-duty position.17 As noted above, a report is of limited probative value 

regarding causal relationship if it does not contain medical rationale explaining how an 

employment activity could have caused or aggravated a medical condition.18

Appellant also submitted a May 12, 2015 report from Dr. Bishai who diagnosed cervical 

disc syndrome with bilateral radiculopathy, and status post disc excision and fusion at C5 -6 and 

C6-7. In a May 15, 2015 report, Dr. Davis diagnosed cervicalgia, myofascial pain syndrome, 

cervical facet joint mediated pain, postcervical laminectomy, and anxiety/depression. On April 25, 

2017 he diagnosed cervical spondylosis without myelopathy, postcervicallaminectomy syndrome, 

and right cervical radiculopathy. In an August 22, 2019 report, Dr. Moretti indicated that he 

diagnosed appellant with ventral disc herniation at C5-6, cervical radiculopathy, and cervical 

muscle spasm, and that he was prescribing the medications Hydrocodone, Carisoprodol, and 

Alprazolam (also known as Xanax) to treat her conditions. However, these reports are of no 

probative value on the underlying issue of the case because these physicians did not provide an 

opinion that appellant sustained a recurrence of disability commencing on or after August 3, 2014 

causally related to her accepted April 17, 2003 and February 17, 2007 employment injuries. The 

Board has held that 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.

19

 

Therefore, these reports are insufficient to establish appellant’s recurrence of disability claim.

In addition, other medical evidence of record indicates that appellant did not sustain a 

recurrence of disability on or after August 3, 2014 because an employment-related condition 

prevented her from performing her limited-duty job tasks. In an October 19, 2015 report,

Dr. Millheiser, OWCP’s referral physician, acknowledged that appellant had residuals of her 2007 

cervical fusion surgery, which necessitated work restrictions including lifting of no more than 30 

pounds, and avoidance of neck twisting, running, climbing, and subduing/lifting un cooperative 

individuals. However, this report does not support appellant’s claim of a recurrence of total 

disability because these restrictions would not prevent appellant from performing the clerical 

duties of the limited-duty position she returned to after suffering her initial April 17, 2003 

employment injury. In addition, in a supplemental report dated November 5, 2018, Dr. Millheiser 

found that appellant was able to perform limited-duty work and opined that her use of prescription 

medications, specifically Xanax, could not be explained by her physical findings and was not 

16 Supra notes 12 and 13.

17 Id.

18 Id.

19 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
9

necessitated by the accepted work-related cervical conditions. In subsequent supplemental report 

dated July 5, 2019, he opined that appellant’s use of Xanax or Vicodin was not medically necessary 

for the accepted employment injuries. 

As appellant has not submitted rationalized medical evidence establishing causal relationship 

between her claimed recurrence of disability and the accepted April 17, 2003 and February 17, 2007 

employment injuries, the Board finds that she has not met her 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 her burden of proof to establish a recurrence of 

total disability from work commencing August 3, 2014 causally related to her accepted 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the May 28, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 2, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board