United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.L., Appellant

and

U.S. POSTAL SERVICE, SOUTHEAST POST 

OFFICE, Burton, MI, Employer

__________________________________________

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Docket No. 22-0188

Issued: February 10, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 18, 2021 appellant, through counsel, filed a timely appeal from a 

November 8, 2021 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 November 8, 2021 decision, OWCP received additional evidence. 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 

disability commencing December 5, 2019 causally related to her accepted January 16, 2018 

employment injury. 

FACTUAL HISTORY

On January 16, 2018 appellant, then a 45-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she experienced numbness in her head, shoulder, 

arm, and back after a rack of flats fell on her while she was in the performance of duty. She 

stopped work on January 16, 2018. OWCP accepted the claim for sprains of the right shoulder 

joint and ligaments of the cervical spine.4 It subsequently expanded the acceptance of the claim 

to include lumbar and cervical radiculopathy. OWCP paid appellant wage-loss compensation on 

the supplemental rolls effective March 17, 2018 and on the periodic rolls effective 

August 19, 2018. Appellant returned to her regular employment on October 13, 2018. 

On January 22, 2020 Dr. James D. Walker, II, Board-certified in family practice, discussed 

appellant’s history of an employment injury on January 16, 2018 when four stacks of magazines 

and books fell on her head, right neck, upper back, and right shoulder. He advised that she had 

sustained a loss of peripheral vision on the right at the time of the incident which had appeared to 

resolve. Dr. Walker related that appellant “suffers from chronic headaches, neck pain, paresthesia 

and weakness of [the] bilateral upper arms, (with the right being more intermittent than the left 

which is constant), left leg paresthesia and weakness causing repeated tripping and near falls, 

seizures, right-sided eye pain and optic nerve swelling, post-concussive syndrome, insomnia, and 

depression” and attributed the conditions to the accepted employment injury.5

On January 23, 2020 appellant advised OWCP that she had been off work since 

December 5, 2019 due to a seizure at work. She indicated that she had a swollen optic nerve, 

weakness along the left side of the body, and possible multiple sclerosis. Appellant asserted that 

she may have sustained a head injury at the time of her January 16, 2018 employment injury.

On February 3, 2020 appellant filed a claim for compensation (Form CA-7) for disability 

from work commencing December 21, 2019. She thereafter continued to file CA-7 forms claiming 

additional wage loss. 

A nurse practitioner completed a February 6, 2020 duty status report (Form CA-17). 

4 OWCP assigned the present claim OWCP File No. xxxxxx763. Appellant had previously filed a traumatic injury 

claim for an injury when she slipped and fell on December 30, 2005. OWCP assigned that claim OWCP File No. 

xxxxxx537. In August 2002 appellant filed an occupational disease claim (Form CA-2) for carpal tunnel syndrome. 

OWCP has administratively combined OWCP File Nos. xxxxxx537, xxxxxx739, and xxxxxx763, with the latter 

serving as the master file.

5 Dr. Walker indicated that the injury occurred on January 16, 2020 instead of January 16, 2018; however, this 

appears to be a typographical error.
3

On February 25, 2020 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), the medical record, and a series of questions to Dr. Mahmoud S. Mohamed, a Boardcertified neurologist, for a second opinion examination. 

In a report dated March 5, 2020, Dr. Lisa L. Guyot, a Board-certified neurosurgeon, related 

that she had initially evaluated appellant in May 2017 for neck and back pain that had begun when 

a rack of mail fell on her on January 16, 2018. She noted that she had experienced a seizure at 

work on November 5, 2018, and that she had “flashes every week now which she thinks are mini 

seizures.” Dr. Guyot indicated that an ophthalmologist had told appellant that she had a swollen 

right optic nerve but that a magnetic resonance imaging (MRI) scan of the brain was negative. She

discussed the findings of a February 1, 2020 MRI scan of the lumbar spine showing left foraminal 

protrusion, an annual fissure, a small disc protrusion at L4-5, and degenerative changes; and an 

MRI scan of the cervical spine showing partial straightening of the lordotic curve and mild 

spondylosis without fracture or subluxation. 

In a report dated March 19, 2020, Dr. Mohamed reviewed the history of injury and 

appellant’s complaints of headaches, neck pain radiating into the right shoulder, and low back pain 

radiating into the right lower extremity. He advised that she received treatment at the emergency 

department after she lost her peripheral vision at work and was diagnosed with a panic attack. 

Dr. Mohamed diagnosed neck sprain/strain, right shoulder sprain/strain, cervical radiculopathy, 

low back sprain/strain, lumbar radiculopathy, and headache as causally related to the January 16, 

2018 employment injury. He contended that the January 16, 2018 employment injury, however,

did not cause the conditions and symptoms found by Dr. Walker. Dr. Mohamed determined that 

appellant had not sustained a seizure, noting that she had advised that she had instead experienced 

anxiety and a panic attack. He opined that the diagnosed conditions of sprain/strain of the neck, 

right shoulder, and low back had resolved but that she had continued residuals of her cervical and 

lumbar radiculopathy and headaches. Dr. Mohamed found that appellant was not capable of 

working in her date-of-injury position as a rural carrier due to her “ongoing symptomatology from 

the conditions of cervical radiculopathy, lumbar radiculopathy, and headaches, as well as due to 

other conditions, such as her significant obesity and body habitus.” He provided work restrictions.

In a supplemental report dated June 7, 2020, Dr. Mohamed noted that OWCP had advised 

him that it had accepted the conditions of cervical and lumbar radiculopathy. He indicated that 

lumbar and cervical radiculopathy could worsen over time and the fact that a person could perform 

a job for a year or so with the conditions did not preclude the conditions from causing later 

disability. Dr. Mohamed reiterated that, at the time of his March 19, 2020 evaluation, he “did not 

think, based on both accepted conditions in the claim and non-accepted conditions in the claim, 

that [appellant] would be able to do her job as a [r]ural [c]arrier.” 

OWCP determined that a conflict existed between Dr. Walker and Dr. Mohamed regarding 

whether appellant had continuing disability, and the extent of any physical limitations. It referred 

appellant along with a SOAF, the medical record and a series of questions, to Dr. Edward Atty, a 

Board-certified physiatrist, for an impartial medical examination. OWCP specifically requested 

that Dr. Atty advise whether appellant’s disability from work commencing December 2019 was 

causally related to her accepted January 16, 2018 employment injury.

An electromyogram and nerve conduction velocity study performed on August 7, 2020 

showed carpal tunnel syndrome, but no evidence of cervical radiculopathy, brachial plexopathy, 

or other neuropathy of the upper extremities. 
4

In a report dated August 28, 2020, Dr. Atty discussed appellant’s history of injury and 

complaints of headaches and pain in the lower back, neck, right shoulder. He diagnosed neck pain 

due to sprain/strain/myofascial pain syndrome, right shoulder pain due to a sprain/strain of the 

rotator cuff tendons and possible bursitis, and low back pain due to sprain/strain/myofascial pain 

syndrome as related to the January 16, 2018 employment injury. Dr. Atty opined that the 

diagnosed conditions of cervical and lumbar radiculopathy were unrelated to the accepted work 

injury. He determined that appellant could perform her usual work duties without restrictions.

By decision dated September 22, 2020, OWCP denied appellant’s claim for disability from 

work commencing December 21, 2019.

On September 30, 2020 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review.

A telephonic hearing was held on January 26, 2021.

By decision dated March 26, 2021, OWCP’s hearing representative set aside the 

September 22, 2020 decision, finding that the opinions of treating physicians Dr. Walker and

Dr. Guyot were not based on a complete medical record and thus are of diminished probative 

value. Because of the lack of contemporaneous medical evidence, the hearing representative found 

that the report of second opinion physician Dr. Mohamed was also of diminished probative value. 

The hearing representative further found that Dr. Atty’s opinion was contrary to the SOAF as he 

found that the conditions of lumbar and cervical radiculopathy were not employment related. She

therefore instructed OWCP, on remand, to issue a new development letter explaining the 

deficiencies in appellant’s claim for a recurrence of disability and to request rationalized medical 

evidence addressing disability, including a narrative report from a physician explaining how her 

claimed disability commencing December 5, 2019 was causally related to her January 16, 2018 

employment injury.

In a development letter dated April 1, 2021, OWCP informed appellant of the deficiencies 

of her recurrence claim. It advised her of the type of additional medical evidence needed and 

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

Appellant submitted an unsigned March 19, 2021 chart note regarding follow-up after 

physical therapy. 

In an undated statement received April 12, 2021, appellant related that on December 5, 

2019 she experienced muscle tightening, a blank stare, and skin crawling. She attributed her 

seizure to her employment injury, asserting that she was hit on the head and had a concussion due 

to the injury. Appellant advised that she continued to have headaches and pain in her low back 

and neck when she returned to work.

By de novo decision dated May 7, 2021, OWCP denied appellant’s claim for 

compensation, finding that the medical evidence of record was insufficient to establish a 

recurrence of disability commencing December 5, 2019 causally related to her January 16, 2018 

employment injury. 

On May 18, 2021 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 
5

A telephonic hearing was held on September 1, 2021.

By decision dated November 8, 2021, OWCP’s hearing representative affirmed the May 7, 

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.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 

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 

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 her burden of proof to establish a recurrence of 

disability commencing December 5, 2019, causally related to her accepted January 16, 2018 

employment injury.

OWCP found that a conflict in the medical opinion evidence existed between Dr. Walker, 

appellant’s treating physician, and Dr. Mohamed, the second opinion physician regarding the 

6 20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

7

Id.

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

10 M.G., Docket No. 19-0610 (issued September 23, 2019); G.G., Docket No. 18-1788 (issued March 26, 2019).
6

extent of her disability. It referred appellant to Dr. Atty to resolve the conflict. OWCP’s hearing 

representative, however, set aside the March 26, 2021 decision, finding that the opinions of 

appellant’s treating physicians Dr. Walker and Dr. Guyot were not based on a complete medical 

record and thus is of diminished probative value. Because of the lack of contemporaneous medical 

evidence, the hearing representative found that the report of second opinion physician

Dr. Mohamed was also of diminished probative value. The hearing representative further found 

that Dr. Atty’s opinion was contrary to the SOAF as he found that the conditions of lumbar and 

cervical radiculopathy were not employment related. The factors that determine probative medical 

evidence include the opportunity for and thoroughness of examination performed by the physician, 

the accuracy or completeness of the physician’s knowledge of the facts and medical history, the 

care of analysis manifested, and the medical rationale expressed by the physician on the issue 

addressed to him by OWCP.11 The Board thus finds that the hearing representative properly 

determined that the opinions of appellant’s treating physicians, the second opinion physician, and 

the IME were all of diminished probative value. 

OWCP’s hearing representative instructed OWCP to issue a new development letter on 

remand explaining the deficiencies in appellant’s claim for a recurrence of disability and to request 

rationalized medical evidence addressing disability, including a narrative report from a physician 

explaining how her claimed disability commencing December 5, 2019 was causally related to her 

January 16, 2018 employment injury. 

On remand appellant submitted an unsigned March 19, 2021 chart note regarding followup after physical therapy. The Board has held that a medical note, which is unsigned or contains 

an illegible signature, is of no probative value, as it is not established that the author is a 

physician.12 The March 19, 2021 chart note is therefore of no probative value and is insufficient 

to establish appellant’s claim.

As the medical evidence of record is insufficient to establish a recurrence of disability 

commencing December 5, 2019 causally related to her accepted January 16, 2018 employment 

injury, the Board finds that appellant has not met her burden of proof.

CONCLUSION

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

disability commencing December 5, 2019, causally related to her accepted January 16, 2018 

employment injury.

11 B.L., Docket No. 22-0812 (issued December 29, 2022); A.G., Docket No. 20-0187 (issued December 31, 2020); 

James T. Johnson, 39 ECAB 1252 (1988).

12 See H.L., Docket No. 22-1058 (issued January 18, 2023); D.H., Docket No. 20-1410 (issued December 21, 2022); 

Z.G., Docket No. 19-0967 (issued October 21, 2019); R.M., 59 ECAB 690 (2008); Merton J. Sills, 39 ECAB 572, 

575 (1988).
7

ORDER

IT IS HEREBY ORDERED THAT the November 8, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 10, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board