United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Manistee, MI, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 20-1399

Issued: March 10, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 July 21, 2020 appellant, through counsel, filed a timely appeal from an April 29, 2020 

merit decision and a May 28, 2020 nonmerit 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.

ISSUES

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

of disability commencing December 8, 2017 causally related to her accepted September 19, 2016 

 

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

employment injury; and (2) whether OWCP properly denied appellant’s request for 

reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

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

follows.

On September 23, 2016 appellant, then a 24-year-old sales, service, and distribution 

associate, filed a traumatic injury claim (Form CA-1) alleging that on September 19, 2016 she 

injured her lower back bending down to retrieve flats while in the performance of duty. OWCP 

accepted the claim for an aggravation of lumbar intervertebral disc displacement -- herniated disc 

at L4-5.4

Appellant stopped work on September 21, 2016 and received wage-loss compensation 

from OWCP for temporary total disability. She returned to modified employment on 

March 18, 2017.

In an emergency department report dated August 30, 2017, Dr. Rick L. Holland, Boardcertified in emergency medicine, evaluated appellant for low back pain that had begun when she 

woke up that morning and increased after she got up from a chair after sitting for an extended 

period of time while at work. He noted that she had a history of low back pain treated with a 

rhizotomy in February 2017. Dr. Holland diagnosed acute low back pain and lumbar 

radiculopathy and provided restrictions.

A magnetic resonance imaging (MRI) scan obtained September 22, 2017 revealed a 

moderate disc herniation at L4-5 on the right causing mild central canal stenosis and seeming to 

abut the right L5 nerve root. 

On October 24, 2017 appellant filed a notice of recurrence (Form CA-2a) for medical 

treatment beginning August 30, 2017 causally related to her accepted employment injury. She 

advised that she had felt a pull in her back when she got up from a seated position. Appellant 

asserted that objective testing had confirmed that she had again herniated her disc.

In an emergency department report dated December 7, 2017, Dr. Holland evaluated 

appellant for severe pain in her low back. He related, “She says she has degenerative disc or 

herniated disc, which occurred in 2015 at some type of a work injury. She reinjured her back in 

September of this year. [Appellant] now has a flare-up of low back pain, which radiates into the 

right buttock area.” Dr. Holland diagnosed an acute flare of chronic back pain.

 

3 Docket No. 19-0957 (issued October 22, 2019).

4 By decision dated November 22, 2016, OWCP denied appellant’s claim as the medical evidence was insufficient 

to show that she sustained a medical condition causally related to the accepted employment incident. By decision 

dated March 8, 2017, it vacated the November 22, 2016 decision and accepted the claim for an aggravation of an L4-5 

herniated disc. 
3

In a December 8, 2017 duty status report (Form CA-17), a physician assistant, Katie Dye,

found that appellant’s restrictions had increased such that she was limited to standing and walking 

for one hour per day and no bending, stooping, or twisting.

On December 22, 2017 appellant filed claims for compensation (Form CA-7) requesting 

intermittent wage-loss compensation for disability beginning December 9, 2017. 

In a development letter dated January 19, 2018, OWCP advised appellant of the definition 

of a recurrence of disability and the type of evidence necessary to establish that she had sustained 

a recurrence of employment-related disability. It afforded her 30 days to submit additional 

evidence.

Subsequently, OWCP received an emergency department report dated January 10, 2018 

from Dr. Matt Flannigan, an osteopath. Dr. Flannigan obtained a history of appellant experiencing 

chronic pain in her low back after a September 2016 injury at work. He diagnosed acute low back 

pain with right sciatica and provided her with a two-day out of work note.

A February 2, 2018 lumbar MRI scan revealed an L4-5 moderate disc protrusion on the 

right side. 

In a February 8, 2018 response to OWCP’s development letter, appellant specified that she 

had sustained a recurrence of disability on August 30, 2017 rather than December 8, 2017.5 She 

related that she had reinjured her back twisting and turning on a route and had immediately sought 

treatment at the emergency department.

In a report dated February 15, 2018, Dr. Mark D’Angelo, an osteopath, evaluated appellant 

for right hip pain and a bulging disc. He obtained a history of her sustaining an injury at work 

when she experienced back pain after bending down. Dr. D’Angelo diagnosed right hip bursitis 

possibly related to appellant’s low back injury and lumbar intervertebral disc displacement. In a 

separate report of even date, he evaluated appellant for right knee pain which could be related to a

2016 fall. Dr. D’Angelo diagnosed internal derangement of the right knee, a tear of the right 

medial meniscus, and a tear of the right lateral meniscus.

On March 8, 2018 Dr. D’Angelo again diagnosed right hip bursitis and lumbar 

intervertebral disc displacement. He noted that the pain in appellant’s low back had begun after a 

September 19, 2016 employment injury.

In a March 9, 2018 Form CA-17, Dr. Brian McComb, an osteopath, provided work 

restrictions.

By decision dated April 13, 2018, OWCP found that appellant had not established a 

recurrence of disability beginning December 8, 2017 causally related to her September 19, 2016 

employment injury.

 

5 On February 6, 2018 Dr. Kenneth M. Louis, a Board-certified neurosurgeon, diagnosed low back pain, lumbar 

disc disease, and right hip pain. He discussed possible surgery.
4

In a report dated May 10, 2018, Dr. Steve Klafeta, a Board-certified neurosurgeon, 

discussed appellant’s complaints of low back pain radiating into the thigh and right buttocks 

numbness. He noted that she had a history of a September 19, 2017 injury at work. Dr. Klafeta 

provided examination findings and diagnosed lumbar spondylosis with radiculopathy. He 

requested authorization for a lumbar interbody fusion at L4-5.

On October 21, 2018 counsel requested that OWCP authorize the proposed lumbar surgery. 

OWCP referred appellant to Dr. Emmanuel Obianwu, a Board-certified orthopedic 

surgeon, for a second opinion regarding the proposed lumbar surgery. 

In a report dated December 3, 2018, Dr. Obianwu discussed appellant’s history of injury 

and increased pain performing her work duties after March 2017.6 He provided his review of the 

medical evidence and diagnosed degenerative disc disease at L4-5, a herniated L4-5 disc causing 

right L5 radiculopathy, morbid obesity, and the apparent failure of conservative treatment. 

Dr. Obianwu indicated that appellant’s essential problem was her morbid obesity and that her 

symptoms should resolve if she lost weight. He opined that if her symptoms became “intractable 

then the surgical procedures of disc excision at the L4-5 levels followed by an interbody fusion 

would be quite a reasonable form of treatment at this time.”

On December 24, 2018 appellant, through counsel, requested reconsideration. He 

submitted a September 27, 2018 report from Dr. McComb. Dr. McComb advised that he had 

treated appellant since 2014 and that she had “a herniated disc at L4-5 which has been problematic 

since September 2016.” He noted that she had experienced an aggravation of her back pain after 

performing twisting while delivering mail on a route on August 24, 2017. Dr. McComb 

recommended surgery and advised that appellant had exhausted conservative measures. 

By decision dated January 29, 2019, OWCP denied modification of its April 13, 2018 

decision. It found that appellant had not established that her condition worsened on August 30, 

2017 such that she became disabled from employment on December 8, 2017.

Appellant appealed to the Board on April 1, 2019. 

Subsequently, OWCP received a December 21, 2018 operative report from Dr. Klafeta,

who performed a right L4-5 decompression, facetectomy and interbody fusion.

By decision dated October 22, 2019, the Board affirmed the January 29, 2019 OWCP 

decision.7 The Board found that appellant had described intervening incidents occurring on 

August 30, 2017 when she herniated a disc getting up from a chair and on March 6, 2018 when 

she advised that she had reinjured her back twisting and turning while performing her work duties.

In a report dated March 26, 2020, Dr. McComb related that he had treated appellant since 

November 5, 2014 for back pain that had begun after an injury she had sustained while in the 

military. On November 18, 2014 appellant experienced increased back pain after a motor vehicle 

 

6

In CA-17 form reports dated November 9 and 27, 2018, Dr. McComb provided work restrictions.

7 Supra note 3.
5

accident. Dr. McComb related that appellant’s back pain had resolved with medication. He 

subsequently treated her on September 21, 2016 for back pain after she sustained an injury at work 

when she bent over to pick up a magazine. Dr. McComb noted that a lumbar computerized 

tomography (CT) scan obtained at the emergency room on September 19, 2016 showed a central 

disc protrusion at L4-5 contracting and effacing the ventral thecal sac. He opined that the 

September 19, 2016 injury had aggravated appellant’s preexisting back pain due to muscle spasm. 

Dr. McComb asserted that her spastic musculature pulled her vertebrae out of place when she bent 

to pick up a magazine, herniated her disc at L4-5. He opined that absent appellant’s fusion on 

December 18, 2018, she would have been disabled from employment.

On April 27, 2020 counsel requested reconsideration based on Dr. McComb’s 

November 16, 2016 and March 26, 2020 reports. He resubmitted the November 16, 2016 report 

from Dr. McComb, who described his history of treating appellant and noted that a November 2, 

2016 MRI scan had shown a central disc herniation causing central canal stenosis effacing the right 

L5 nerve root. Dr. McComb diagnosed a herniated disc pressing on the L5 nerve root not present 

prior to the September 19, 2016 employment injury. 

By decision dated April 29, 2020, OWCP denied modification of its January 29, 2019 

decision.8

On May 13, 2020 counsel requested reconsideration. He resubmitted the November 16, 

2016 and March 26, 2020 reports from Dr. McComb.

By decision dated May 28, 2020, OWCP denied appellant’s request for reconsideration.

LEGAL PRECEDENT -- ISSUE 1

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.9 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. 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 

 

8 OWCP indicated that it was denying modification of the Board’s October 22, 2019 decision; however, the 

decisions and orders of the Board are final as to the subject matter appealed and such decisions and orders are not 

subject to review, except by the Board. See 20 C.F.R. § 501.6(d).

9 20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

10 Id.
6

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 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.12 Where no such rationale is present, 

the medical evidence is of diminished probative value.13

ANALYSIS -- ISSUE 1

The Board finds that the case is not in posture for decision.

Initially, the Board notes that it is unnecessary to consider the evidence appellant submitted 

prior to the issuance of OWCP’s January 29, 2019 decision, which was considered by the Board 

in its October 22, 2019 decision. Findings made in prior Board decisions are res judicata absent 

further merit review by OWCP under section 8128 of FECA.14

Subsequent to OWCP’s January 29, 2019 decision, appellant submitted an operative report 

dated December 21, 2018 from Dr. Klafeta, who performed a right decompression, facetectomy, 

and interbody fusion at L4-5 on the right side. 

OWCP had previously developed the evidence regarding appellant’s request for 

authorization for surgery by referring her to Dr. Obianwu for a second opinion examination. On 

December 3, 2018 Dr. Obianwu diagnosed degenerative disc disease at L4-5, a herniated L4-5 disc 

causing right L5 radiculopathy, morbid obesity, and the apparent failure of conservative treatment. 

He recommended that appellant lose weight, but further advised that if her symptoms were 

intractable then an interbody fusion would be reasonable. Dr. Obianwu was unclear regarding 

whether the surgery was causally related to the accepted employment injury.

It is well established that proceedings under FECA are not adversarial in nature, and while 

the claimant has the burden to establish entitlement to compensation, OWCP shares responsibility 

in the development of the evidence.15 Once OWCP undertakes development of the medical 

evidence, it has the responsibility to do so in a manner that will resolve the relevant issues in the 

 

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

No. 18-0334 (issued December 4, 2018).

12 L.O., Docket No. 19-0953 (issued October 7, 2019); J.D., Docket No. 18-0616 (issued January 11, 2019).

13 M.G., Docket No. 19-0610 (issued September 23, 2019); G.G., Docket No. 18-1788 (issued March 26, 2019).

14 C.M., Docket No. 19-1211 (issued August 5, 2020).

15 See R.M., Docket No. 20-0342 (issued July 30, 2020); S.C., Docket No. 19-0920 (issued September 25, 2019).
7

case.16 As OWCP undertook development of the evidence by referring appellant to Dr. Obianwu

for an opinion on whether the lumbar surgery should be authorized, it has the responsibility to 

obtain a rationalized medical opinion on this issue.17 OWCP should adjudicate whether appellant’s 

December 21, 2018 surgery should be authorized prior to determining whether she has established 

any periods of disability subsequent to December 2017.18

Accordingly, the Board will remand the case to OWCP. On remand OWCP shall obtain a 

supplemental report from Dr. Obianwu clarifying whether appellant’s December 21, 2018 surgery 

was medically necessary and causally related to her accepted September 19, 2016 employment 

injury and, if so, addressing any periods of disability. After such further development as OWCP 

deems necessary, it shall issue a de novo decision.

CONCLUSION

The Board finds that the case is not in posture for decision.

 

16 See K.S., Docket No. 18-0845 (issued October 26, 2018).

17 See J.W., Docket No. 17-0715 (issued May 29, 2018).

18 See D.D., Docket No. 19-1606 (issued November 16, 2020).
8

ORDER

IT IS HEREBY ORDERED THAT the May 28 and April 29, 2020 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

proceedings consistent with this decision of the Board.

Issued: March 10, 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