United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.Y., Appellant

and

U.S. POSTAL SERVICE, FRESH MEADOWS 

POST OFFICE, Fresh Meadows, NY, Employer

__________________________________________

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Docket No. 22-0474

Issued: November 14, 2022

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 10, 2022 appellant, through counsel, filed a timely appeal from a January 13, 

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.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 January 13, 2022 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 total 

disability commencing October 29, 2020 causally related to his accepted March 30, 2020 

employment injury.

FACTUAL HISTORY

On March 30, 2020 appellant, then a 49-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on March 30, 2020 he sustained injury to his neck, left shoulder, and 

legs when his postal vehicle was struck in the rear by another motor vehicle while in the 

performance of duty. He stopped work on March 30, 2020 and returned to limited-duty work for 

four hours per day on September 8, 2020. OWCP accepted appellant’s claim for cervical sprain. 

It paid him wage-loss compensation on the supplemental rolls, effective May 15, 2020.

In a September 22, 2020 report, Dr. David Gamburg, a Board-certified anesthesiologist, 

recounted the March 30, 2020 accident and noted that he chiefly complained of headache, neck 

pain, left shoulder pain, bilateral knee pain, and bilateral lower back pain radiating into the legs 

along the L4-5 nerve distributions. He indicated that, upon physical examination of the cervical 

spine, appellant exhibited facet joint tenderness and muscle spasm/tenderness over the spinous 

processes and paraspinous muscles. Appellant had a negative compression test and moderate 

range of motion deficit of the cervical spine. Dr. Gamburg diagnosed cervical post-traumatic 

sprain/strain syndrome, cervical dorsopathies, cervical myofascial pain syndrome, rule out cervical 

disc herniation/radiculopathy, lumbar post-traumatic sprain and strain syndrome, lumbar 

myofascial pain syndrome, rule out lumbar disc herniation/radiculopathy, left shoulder joint 

derangement, bilateral knee pain, and headache. He indicated that appellant had 50 percent 

disability.

In an October 5, 2020 report, Dr. Sanford Wert, a Board-certified orthopedic surgeon, 

diagnosed bilateral derangement of the knees and partial biceps, partial rotator cuff, and superior 

labrum from anterior to posterior (SLAP) tears of the left shoulder. He opined that the March 30, 

2020 injury was the “competent producing cause of this patient’s injuries and symptoms” and 

characterized appellant’s disability as “[m]oderate -- working part-time.”

In an October 28, 2020 duty status report (Form CA-17), Dr. Gamburg listed the date of 

injury as March 30, 2020 and the clinical findings as muscle weakness, severe neck pain, bilateral 

knee pain, and range of motion deficit of the right arm. He found that appellant was 100 percent 

disabled. In an October 28, 2020 attending physician’s report (Form CA-20), Dr. Gamburg 

diagnosed cervicalgia, cervical disc herniation, lumbago, left shoulder strain, left shoulder rotator 

cuff tear, and lumbar radiculopathy. He checked a box marked “Yes”indicating that the diagnosed 

conditions were caused or aggravated by the March 30, 2020 employment activity and added the 

notation, “[patient] was involved in [right-]side high impacted collision.” Dr. Gamburg found that 

appellant was totally disabled from work from September 22 through December 9, 2020.

Appellant stopped work altogether on October 29, 2020. On November 3, 2020 he filed a 

claim for recurrence (Form CA-2a) alleging a recurrence of total disability on October 29, 2020 

causally related to his accepted March 30, 2020 employment injury. Appellant indicated that he 

had been working for four hours per day, but maintained that his left shoulder was more painful 

than usual and he was unable to work.
3

In a November 16, 2020 development letter, OWCP notified appellant of the deficiencies 

of his recurrence claim. It advised him of the type of medical evidence needed and provided a 

questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary 

evidence.

The findings of a July 31, 2020 magnetic resonance imaging (MRI) scan of the left 

shoulder revealed several abnormalities, including biceps tendinitis and tendon/tissue tears.

In an October 28, 2020 report, Dr. Gamburg provided a history of the March 30, 2020 

accident and diagnosed cervical post-traumatic sprain/strain syndrome, cervical dorsopathies, 

cervical myofascial pain syndrome, cervical disc herniation, rule out cervical radiculopathy, 

lumbar post-traumatic sprain and strain syndrome, lumbar myofascial pain syndrome, rule out 

lumbar disc herniation/radiculopathy, left shoulder joint derangement, bilateral knee pain, and 

headache. He opined that, based on the history reported by appellant and the objective/subjective 

findings, the March 30, 2020 accident was the competent, producing cause of appellant’s injuries. 

Dr. Gamburg maintained that “causal relationship does exist” and indicated that appellant had “66 

percent disability.”

In a November 2, 2020 report, Dr. Wert noted that appellant maintained that the high 

impact from this March 30, 2020 motor vehicle accident caused injuries to multiple body parts 

including the neck, bilateral shoulders, bilateral knees, bilateral shins, right leg, and back. He 

diagnosed right shoulder sprain/strains, partial biceps, rotator cuff, and SLAP tears of the left 

shoulder, and bilateral derangement of the knees and advised that appellant was totally disabled 

from work.

By decision dated January 20, 2021, OWCP denied appellant’s recurrence claim, finding 

that he failed to submit sufficient medical evidence to establish a recurrence of total disability

commencing October 29, 2020 causally related to his accepted March 30, 2020 employment 

injury.

On December 28, 2021 appellant, through counsel, requested reconsideration.

In support thereof, appellant submitted a December 9, 2020 report, wherein Dr. Gamburg 

referenced the March 30, 2020 accident and noted that, upon physical examination of the cervical 

spine, appellant exhibited facet joint tenderness and muscle spasm/tenderness over the spinous 

processes and paraspinous muscles. He diagnosed cervical post-traumatic sprain/strain syndrome, 

cervical dorsopathies, cervical myofascial pain syndrome, cervical disc herniation, rule out 

cervical radiculopathy, lumbar post-traumatic sprain and strain syndrome, lumbar myofascial pain 

syndrome, rule out lumbar disc herniation/radiculopathy, left shoulder joint derangement, bilateral 

knee pain, and headache. Dr. Gamburg indicated that appellant had 100 percent disability due to 

pain and range of motion deficit. He opined that, based on the history reported by appellant and 

the objective/subjective findings, the March 30, 2020 accident was the competent producing cause 

of appellant’s injuries. Dr. Gamburg maintained that “causal relationship does exist.”

In reports dated January 13, February 10, March 10, April 14, June 23, July 21, 

September 22, and December 8, 2021, Dr. Gamburg provided the same diagnoses as in his 

December 9, 2020 report. He advised that appellant was 100 percent disabled due to pain and 

range of motion deficit and opined that, based on the history reported by appellant and the 
4

objective/subjective findings, the March 30, 2020 accident was the competent, producing cause of 

appellant’s injuries. Dr. Gamburg reiterated that “causal relationship does exist.”

Appellant submitted Form CA-17 reports from Dr. Gamburg, dated January 13, 

February 10, March 10, April 14, May 19, June 23, July 21, August 24, and September 22, 2021. 

In these reports, he listed the date of injury as March 30, 2020 and provided diagnoses “due to 

injury” of cervical disc displacement, cervical radiculopathy, cervicalgia, neck sprain, left shoulder 

pain, left shoulder joint derangement, bilateral leg abrasions, leg contusion, low back pain, skin 

paresthesia, chronic fatigue, involuntary movements, and soft tissue disorders. Dr. Gamburg 

found that appellant was totally disabled from work.

Appellant also submitted Form CA-20 reports from Dr. Gamburg, dated January 13, 

February 10, March 10, April 14, May 19, June 23, July 21, August 24, and September 22, 2021. 

In these reports, Dr. Gamburg listed the date of injury as March 30, 2020 and diagnosed cervical 

disc herniation, cervical radiculopathy, cervicalgia, lumbago, bilateral knee sprains/pain/

weakness, and left shoulder rotator cuff tear/weakness with range of motion deficit. He checked 

a box marked “Yes” on each report to indicate that the diagnosed conditions were caused or 

aggravated by the reported employment activity. Dr. Gamburg found that appellant was totally 

disabled from work for the period September 22, 2020 through September 22, 2021. 

Appellant submitted a March 19, 2021 electromyogram/nerve conduction velocity study 

of the upper extremities, which revealed normal results with no evidence of cervical 

radiculopathy/peripheral polyneuropathy.

By decision dated January 13, 2022, OWCP denied modification of its January 20, 2021 

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.4 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.5

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 

4

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

5

Id.
5

condition that results from a new injury, even if it involves the same part of the body previously 

injured.6

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.7 Where no such rationale is present, 

the medical evidence is of diminished probative value.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 limited-duty position or the medical evidence of 

record establishes that he orshe 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.9 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.10

ANALYSIS

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

total disability commencing October 29, 2020 causally related to his accepted March 30, 2020 

employment injury.

Appellant submitted an October 28, 2020 report, wherein Dr. Gamburg provided a history 

of the March 30, 2020 accident and diagnosed cervical post-traumatic sprain/strain syndrome, 

cervical dorsopathies, cervical myofascial pain syndrome, cervical disc herniation, rule out 

cervical radiculopathy, lumbar post-traumatic sprain and strain syndrome, lumbar myofascial pain 

syndrome, rule out lumbar disc herniation/radiculopathy, left shoulder joint derangement, bilateral 

knee pain, and headache. Dr. Gamburgopined that, based on the history reported by appellant and 

the objective/subjective findings, the March 30, 2020 accident was the competent producing cause 

of appellant’s injuries. He maintained that “causal relationship does exist” and indicated that 

appellant had 66 percent disability. In reports dated December 9, 2020, January 13, February 10, 

March 10, April 14, May 19, July 21, September 22, and December 8, 2021, Dr. Gamburg

diagnosed cervical post-traumatic sprain/strain syndrome, cervical dorsopathies, cervical 

myofascial pain syndrome, cervical disc herniation, rule out cervical radiculopathy, lumbar post6 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

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

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

9

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).

10 C.B., Docket No. 19-0464 (issued May 22, 2020); Terry R. Hedman, id.; see R.N., Docket No. 19-1685 (issued 

February26, 2020).
6

traumatic sprain and strain syndrome, lumbar myofascial pain syndrome, rule out lumbar disc 

herniation/radiculopathy, left shoulder joint derangement, bilateral knee pain, and headache. He

indicated that appellant had 100 percent disability due to pain and range of motion deficit. 

Dr. Gamburg opined that, based on the history reported by appellant and the objective/subjective 

findings, the March 30, 2020 accident was the competent producing cause of appellant’s injuries. 

He maintained that “causal relationship does exist.” Although Dr. Gamburg found work-related 

total disability commencing October 28, 2020, these reports are of limited probative value 

regarding appellant’s recurrence of disability claim because Dr. Gamburg did not provide 

sufficientrationale explaining how appellant’s total disability was due to the accepted employment 

injury. The Board has held that reports that do not contain medical rationale explaining how the 

accepted employment injury caused or contributed to the claimed disability are of limited probative 

value regarding causal relationship.

11

 Therefore, this evidence isinsufficient to establish appellant’s 

claim. 

Appellant submitted Form CA-17 reports from Dr. Gamburg, dated October 28, 2020, 

January 13, February 10, March 10, April 14, May 19, June 23, July 21, August 24, and 

September 22, 2021. In these reports, he listed the date of injury as March 30, 2020 and provided 

diagnoses “due to injury” of cervical disc displacement, cervical radiculopathy, left shoulder pain, 

cervicalgia, neck sprain, left shoulder joint derangement, bilateral leg abrasions, leg contusion, 

low back pain, skin paresthesia, chronic fatigue, involuntary movements, and soft tissue disorders. 

Dr. Gamburg found that appellant was totally disabled from work. In Form CA-20 reports dated 

October 28, 2020, January 13, February 10, March 10, April 14, May 19, June 23, July 21, 

August 24, and September 22, 2021, he listed the date of injury as March 30, 2020 and diagnosed 

cervical disc herniation, cervical radiculopathy, cervicalgia, lumbago, bilateral knee sprains/

pain/weakness, and left shoulder rotator cuff tear/weakness with range of motion deficit. 

Dr. Gamburg found that appellant was totally disabled from September 22, 2020 through 

September 22, 2021. These reports also are of limited probative value regarding appellant’s 

recurrence of disability claim because Dr. Gamburg did not provide adequate medical rationale 

explaining how appellant’s total disability was due to the March 30, 2020 employment injury. He 

again implicated numerous other nonwork-related conditions as causing work-related disability, 

but failed to provide medical rationale explaining how these conditions were related to the 

March 30, 2020 employment injury. As noted, a report is of limited probative value if it does not 

contain medical rationale explaining causal relationship between the claimed disability and the 

accepted employment injury.

12

 Therefore, this evidence is also insufficient to establish appellant’s 

claim. 

Appellant also submitted October 2, 5, and 20, 2020 reports of Dr. Wert. However,

Dr. Wert did not provide an opinion on appellant’s disability commencing October 28, 2020. The 

Board has held that medical evidence that does not offer an opinion regarding the cause of an 

employee’s claimed disability is of no probative value on the issue of causal relationship.

13

 

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

11 See T.T., Docket No. 18-1054 (issued April8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

12 Id.

13 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
7

Appellant also submitted reports of diagnostic testing. However, diagnostic studies, 

standing alone, lack probative value as they do not address whether an accepted employment 

condition caused the claimed disability.14

As appellant has not submitted rationalized medical evidence establishing causal relationship 

between his claimed recurrence of total disability and the accepted March 30, 2020 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 

total disability commencing October 29, 2020 causally related to his accepted March 30, 2020 

employment injury.

ORDER

IT IS HEREBY ORDERED THAT the January 13, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 14, 2022

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

14 See A.V., Docket No. 19-1575 (issued June11, 2020).