United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.H., Appellant

and

U.S. POSTAL SERVICE, WEDGWOOD POST 

OFFICE, Seattle, WA, Employer

__________________________________________

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Docket No. 22-0978

Issued: January 24, 2023

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 9, 2022 appellant, through counsel, filed a timely appeal from a May 10, 2022 

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.

ISSUE

The issue is whether appellant has met his burden of proof to establish a recurrence of 

disability commencing November 21, 2005 causally related to his accepted July 22, 1998 

employment injury.

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

FACTUAL HISTORY

This case has previously been before the Board on a different issue.3 The facts and 

circumstances as set forth in the Board’s prior decision is incorporated herein by reference. The 

relevant facts are as follows.

On July 22, 1998 appellant, then a 30-year-old rehabilitation clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he bruised his right arm when his vehicle was struck 

by another vehicle causing it to roll on its side, while in the performance of duty. He did not stop 

work. OWCP accepted the claim for a contusion of the right elbow and forearm; a closed 

dislocation of unspecified cervical, thoracic, and lumbar vertebra; right shoulder contusion; 

cervical subluxation at C3 and C7; thoracic subluxation at T3 and T10; and lumbar subluxation at 

L5.4

On August 5, 1998 appellant accepted a modified job with the employing establishment. 

On March 25, 2002 he accepted a position as a modified mail processor. On September 25, 2003 

appellant began working in a modified position due to restrictions in OWCP File No. xxxxxx405.5

On August 6, 2009 Dr. John A. Moen, a Board-certified internist, referred appellant for 

physical therapy treatment which was performed on September 17, 2009. 

On March 15, 2017 Dr. Douglas H. Peffer, a chiropractor, recounted appellant’s history of 

a July 22, 1998 back injury at work. He opined that appellant had no objective findings or 

diagnoses and could resume work without restrictions.

On January 7, 2022 appellant filed a notice of recurrence (Form CA-2a) claiming that he 

sustained a recurrence of disability on an unspecified date causally related to his July 22, 1998 

employment injury. He noted that he had stopped work on December 7, 2005. Appellant indicated 

that the employing establishment had taken away his bid position due to his back injury. 

In a development letter dated January 14, 2022, OWCP advised appellant that he had not 

indicated a date of recurrence or whether he was claiming a recurrence of the need for medical

treatment or disability or both. It informed him of the definition of a recurrence of disability and 

requested that he provide medical evidence supporting that his accepted condition had worsened 

such that he was disabled from employment or required additional medical treatment. OWCP 

afforded appellant 30 days to respond. 

3 Docket No. 14-1535 (issued November 18, 2014). 

4 OWCP previously accepted that appellant sustained a severe right wrist sprain, an exacerbation of right wrist 

ligament tears, and right wrist extensor and de Quervain’s tenosynovitis on April 9, 1996, assigned OWCP File No. 

xxxxxx405. Appellant also filed an occupational disease claim (Form CA-2) on November 11, 2002 alleging that he 

sustained back pain due to sitting causally related to factors of his federal employment. OWCP denied the claim, 

assigned OWCP File No. xxxxxx428. It combined OWCP File No. xxxxxx428 with the current claim, assigned 

OWCP File No. xxxxxx445, with the latter serving as the master file.

5 Effective May 31, 2009, the employing establishment separated appellant from employment due to his inability 

to perform the duties of his position.
3

In a February 16, 2022 response, appellant related that his employment-related condition 

had worsened such that he experienced problems with his low back and legs. He advised that the 

employing establishment had removed him from his position in November 2005 due to his injuries. 

Appellant indicated that in August 2009 his physician had referred him for physical therapy. He 

maintained that his employment injury caused his pelvis to shift.

By decision dated February 22, 2022, OWCP denied appellant’s claim for a recurrence of 

disability causally related to his accepted July 22, 1998 employment injury. 

Subsequently, OWCP received a June 3, 2013 letter from appellant to the employing 

establishment advising that his only permanent injury at the time of his separation was to his right 

wrist. Appellant indicated that his back injury had been rated permanent and that he had no issues 

performing his bid position. 

Physical therapy treatment notes dated September and November 2015, and October 2016, 

indicated that appellant underwent physical therapy.

In a report dated March 11, 2022, Dr. Kevin Polzin, a chiropractor, discussed appellant’s 

history of a July 1998 motor vehicle accident. On examination he found positive findings of pain 

in low back and from the sciatic nerve, in the right sacroiliac joint, and in the hip joints. Dr. Polzin 

advised that he had obtained x-rays and diagnosed a L5 disc with radiculopathy, left low back pain 

with sciatica, lumbar, cervical, and thoracic subluxation, lumbar degenerative disc disease, 

thoracic scoliosis, back spasms, and cervical degenerative disc disease at C7. He noted that his 

pain was aggravated by lifting, twisting, and bending with weight. Dr. Polzin indicated that 

appellant had a disability percentage of 26 percent based on the pain scales.

On April 15, 2022 appellant, through counsel, requested reconsideration. 

By decision dated May 10, 2022, OWCP denied modification of its February 22, 2022 

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.6 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.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 

6

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

7

Id.
4

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, based on 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.9 Where no such rationale is present, 

the medical evidence is of diminished probative value.10

ANALYSIS

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

disability commencing November 21, 2005 causally related to his accepted July 22, 1998 

employment injury.

Appellant has not submitted any medical evidence supporting that he was working with 

limitations due to his accepted June 22, 1998 employment injury. 

Appellant also has not submitted medical evidence sufficient to establish that he was 

disabled from work commencing November 21, 2005 due to his accepted July 22, 1998 work 

injury. 

In an August 6, 2009 report, Dr. Moen referred appellant for physical therapy. However, 

he did not reference the claimed period of disability, or address causation. 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. 11 Consequently, 

this referral note is insufficient to meet appellant’s burden of proof.

The medical evidence of record dated from 2012 through 2013 also does not address the 

relevant issue of whether he sustained an employment-related recurrence of disability such that he 

was unable to work beginning November 2005. Therefore, it is also of no probative value and

insufficient to meet appellant’s burden of proof.12

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

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

9 C.Y., Docket No. 22-0474 (issued November 14, 2022); L.O., Docket No. 19-0953 (issued October 7, 2019); J.D., 

Docket No. 18-0616 (issued January 11, 2019).

10 L.C., Docket No. 20-1679 (issued October 20, 2022); M.G., Docket No. 19-0610 (issued September 23, 2019); 

G.G., Docket No. 18-1788 (issued March 26, 2019).

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

12 Id.
5

Appellant also submitted chiropractic reports dated March 15, 2017 from Dr. Peffer and 

March 11, 2022 from Dr. Polzin. Under FECA, the term “physician” includes chiropractors only 

to the extent that their reimbursable services are limited to treatment consisting of manual 

manipulation of the spine to correct a subluxation as demonstrated by x-rays to exist.13 OWCP’s 

regulations at 20 C.F.R. § 10.5(bb) have defined subluxation as an incomplete dislocation, offcentering, misalignment, fixation, or abnormal spacing of the vertebrae which must be 

demonstrable on an x-ray film to an individual trained in the reading of x-rays.14 Dr. Peffer did 

not diagnose or treat a spinal subluxation as demonstrated by x-rays to exist and thus his report is 

not considered that of a physician as defined by FECA.15 In his March 11, 2022 report, Dr. Polzin 

discussed his treatment of appellant beginning February 18, 2020 for chronic back pain. He 

recounted his history of a July 1998 motor vehicle accident. Dr. Polzin obtained x-rays and 

diagnosed spinal subluxations. As such, he is considered a physician under FECA.16 Dr. Polzin 

did not, however, address whether the claimed recurrence of disability was causally related to the 

accepted employment injury or discuss the relevant issue of whether appellant was disabled from 

employment. As noted, 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.17 Consequently, Dr. Polzin’s report is insufficient to meet appellant’s 

burden of proof. 

Appellant also submitted reports from physical therapists. The Board has held that the 

reports of physical therapists do not constitute probative medical evidence as physical therapists 

are not considered physicians under FECA.18 Consequently, these reports are of no probative 

value regarding his recurrence claim. 

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

of disability commencing November 21, 2005 causally related to his accepted July 22, 1998 

employment injury, the Boards that 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.

13 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law).

14 20 C.F.R. § 10.5(bb).

15 See S.P., Docket No. 19-0573 (issued May 6, 2021); A.C.,Docket No. 19-1950 (issued May 27, 2020).

16 S.R., Docket No. 22-0421 (issued July 15, 2022); S.P., Docket No. 18-0870 (issued October 10, 2018).

17 Supra note 13.

18 Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal 

Relationship, Chapter 2.805.3a(1) (January 2013); R.L., Docket No. 20-0284 (issued June 30, 2020) (a physical 

therapist is not considered physician as defined under FECA); David P. Sawchuk, 57 ECAB316, 320 n.11 (2006) (lay 

individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion 

under FECA); see also P.D., Docket No. 21-0920 (issued January 12, 2022) (physical therapists are not considered

physicians under FECA).
6

CONCLUSION

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

disability commencing November 21, 2005 causally related to his accepted July 22, 1998 

employment injury. 

ORDER

IT IS HEREBY ORDERED THAT the May 10, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 24, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board