United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

RICHMOND VA MEDICAL CENTER, 

Richmond, VA, Employer

__________________________________________

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Docket No. 22-0280

Issued: June 29, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

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 December 14, 2021 appellant filed a timely appeal from a June 23, 2021 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to 

consider the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,followingthe issuanceof the June23, 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 March 12, 2020, causally related to her accepted March 31, 2010 

employment injury.

FACTUAL HISTORY

On April 9, 2010 appellant, then a 51-year-old medical technologist, filed a traumatic 

injury claim (Form CA-1) alleging that on March 31, 2010 she injured her head, neck, the right 

side of her ribs, and both wrists when she tripped over a threshold between her office and an outer 

office and fell face down onto a concrete floor while in the performance of duty. She stopped 

work on April 1, 2010.3

After initial denial, followed by further development of the claim, on August 17, 2010 

OWCP accepted appellant’s claim for cortex contusion without open wound, unspecified state of 

consciousness, and concussion with brief loss of consciousness. Thereafter, in decisions dated

July 29, 2011 and January 13, 2015, it expanded the acceptance of appellant’s claim to include 

unspecified epilepsy, unspecified migraine, displacement of cervical intervertebral disc without 

myelopathy, lumbago, medial meniscal tear of the right and left knees, sprain of the back, lumbar 

region, sprain of unspecified sites of left knee and leg, and sprain of right shoulder and upper arm. 

By decision dated February 18, 2016, OWCP terminated appellant’s wage-loss compensation and 

medical benefits, effective February 16, 2016, as she no longer had disability or residuals causally 

related to her accepted March 31, 2010employment injury. The record indicates that on March 17, 

2016 appellant returned to work. In a May 26, 2016 decision, OWCP denied appellant’s claim for 

compensation for disability from work commencing March 17, 2016. On November 1, 2016 it 

issued a decision denyingmodification of its February 18, 2016 termination decision. By decision 

dated December 7, 2016, OWCP denied appellant’s request for reconsideration of the merits of 

her claim, pursuant to 5 U.S.C. § 8128(a), regarding the termination of her wage-loss 

compensation and medical benefits. On March 8, 2017 it issued a decision denying modification 

of its denial decision of appellant’s claim for disability, commencing March 17, 2016, and 

continuing. In a January 25, 2018 decision, OWCP vacated in part and affirmed in part its

November 1, 2016 termination decision, finding that the medical evidence of record was sufficient 

to establish that appellant had continuing residuals of specific accepted conditions entitling her to 

further medical benefits, but her wage-loss compensation remained terminated.

On April 13, 2020 appellant filed a notice of recurrence (Form CA-2a). She indicated that 

the recurrence began at 10:30 p.m. on March 11, 2020, when her left leg buckled while she was 

walking in her home, which caused her to violently fall onto a concrete slab landing. Appellant

3 OWCP assigned the present claim OWCP File No. xxxxxx976. On March24, 2011 appellant, then working 100

percent official time as president of her local union, filed a traumatic injury claim (Form CA-1) alleging that on 

March 21, 2011 she fell while walking to a meeting and sustained the following injuries which OWCP accepted as 

employment related: a back sprain; left knee and leg sprains; right shoulder and upper arm sprains; and meniscal tear 

of the right knee. OWCP assigned that claim File No. xxxxxx044. The record indicates that OWCP File Nos. 

xxxxxx976, and xxxxxx044 have been administratively combined by OWCP,with File No. xxxxxx976 serving as the 

master file. 
3

noted that this was the exact nature of her accepted injuries sustained on March 21, 2011, 

November 2014, and April 11, 2019. She stopped work on March 12, 2020. In an April 18, 2020

statement, appellantrelated that at approximately 11:00 a.m. on April 3, 2020 her left leg gave out,

and with her left-side weakness, she landed on the left side of her head injuring her head, neck, 

right shoulder, right arm, entire spine, and left knee, and that her right third toe turned blue.

OWCP, in a development letter dated April 20, 2020, provided a definition of a recurrence

of disability and informed appellant of the deficiencies of her claim. Additionally, it advised her 

of the type of factual and medical evidence necessary to establish her claim and provided a 

questionnaire for her completion. OWCP afforded appellant 30 days to submit the required 

evidence.

By letter dated April 21, 2020, the employing establishment controverted appellant’s 

recurrence claim, contending that the medical evidence submitted was insufficient to establish a

recurrence of disability causally related to her accepted employment injury. 

OWCP received diagnostic test reports dated April 20, 2020 from Dr. Alex L. Sleeker, a 

Board-certified diagnostic radiologist. In his April 20, 2020 cervical spine computerized 

tomography (CT) scan report, Dr. Sleeker provided an impression of multilevel degenerative disc 

disease throughout the cervical spine, most significant at C5-6 where there was mild-to-moderate 

spinal canal and moderate bilateral foraminal stenosis. He also provided an impression of slightly 

less significant degrees of stenosis above this level. In his right shoulder magnetic resonance 

imaging (MRI) scan report of even date, Dr. Sleeker provided impressions of increased moderateto-severe glenohumeral osteoarthritis since 2011 and reactive glenohumeral joint effusion and 

synovitis with possible tiny loose bodies. He provided additional impressions of increased mild 

supraspinatus and infraspinatus tendinosis, no full-thickness rotator cuff tendon tear, and mild 

acromioclavicular osteoarthritis that may cause subacromial impingement.

OWCP also received hospital records dated April 20, 2020. 

A May 14, 2020 progress note signed by Susan Kewer, a certified physician assistant, 

provided an assessment of primary osteoarthritis of the right shoulder. She also noted that 

appellant was treated with a cortisone injection in the right glenohumeral joint. 

By decision dated June 10, 2020, OWCP denied appellant’s claim for a recurrence of 

disability, commencing March 12, 2020, finding that the evidence of record was insufficient to 

establish the claimed period of recurrent disability.

OWCP thereafter received additional hospital records dated April 20, 2020. 

A May 21, 2020 report signed by Jennifer Thompson, a certified nurse practitioner, 

provided assessments of degenerative cervical disc and a body mass index that exceeded 25. 

In a June 9, 2020 lumbar spine MRI scan report, Dr. Jean M. Dufour, a diagnostic 

radiologist, provided impressions of degenerative disease mainly at L2-3 and L3-4 and no focal 

canal or foraminal compromise. In a thoracic spine MRI scan report of even date, he provided

impressions of degenerative joint disease and kyphosis, and no focal findings.
4

In an October 22, 2020 report, Dr. Gregory J. O’Shanick, a Board-certified physiatrist, 

diagnosed concussion without loss of consciousness, seizure disorder, visuo-vestibular, posttrauma vision disorder, convergence insufficiency, sleep apnea, cognitive communication 

disorder, attention deficit disorder, depression due to traumatic brain injury, and left visual field 

neglect. In an October 27, 2020 general morphometry report, he foundno evidence of asymmetry,

and noted progressive expansion and atrophy of caudate bilaterally.

Appellant was terminated from the employing establishment, effective January 3, 2021, 

due to an unauthorized absence and failure to follow instructions. 

On June 9, 2021 appellant, through then-counsel, requested reconsideration of the June 10, 

2020 decision. 

By decision dated June 23, 2021, OWCP denied modification of its June 10, 2020decision. 

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

 Absent a change 

or withdrawal of a light-duty assignment, a recurrence of disability following a return to light duty 

may be established by showing a change in the nature and extent of the injury-related condition 

such that the employee could no longer perform the light-duty assignment.6

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.7

4

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical 

condition as a documented need for medical treatment after release from treatment for the accepted condition).

5

Id.

6

See S.G., Docket No. 20-0828 (issued January 6, 2022); M.F., Docket No. 20-0136 (issued August 5, 2021);G.L., 

Docket No. 16-1542 (issued August 25, 2017); Theresa L. Andrews, 55 ECAB 719, 722 (2004). See also AlbertC. 

Brown, 52 ECAB 152 (2000);Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB 222 (1986).

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); P.R., Docket 

No. 20-0596 (issued October 6, 2020); D.T., Docket No. 19-1064 (issued February 20, 2020); Kenneth R. Love, 

50 ECAB 193, 199 (1998).
5

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 employment 

injury and supports that conclusion with medical reasoning.8 Where no such rationale is present, 

the medical evidence is of diminished probative value.9

ANALYSIS

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

disability, commencing March 12, 2020, causally related to her accepted March 31, 2010 

employment injury.

In support of her claim, appellant submitted Dr. O’Shanick’s October 22, 2020 report in 

which he diagnosed concussion without loss of consciousness, seizure disorder, visuo-vestibular, 

post-trauma vision disorder, convergence insufficiency, sleep apnea, cognitive communication 

disorder, attention deficit disorder, depression due to traumatic brain injury, and left visual field 

neglect, which were not conditions accepted by OWCP in appellant’s claim. Dr. O’Shanick does

not, however, provide an opinion on causal relationship. The Board has held that medical evidence 

that does not provide an opinion as to whether a period of disability is due to an accepted 

employment-related condition is of no probative value.

10

 For this reason, the Board finds that

Dr. O’Shanick’s report is insufficient to establish appellant’s burden of proof.11 

Appellant also submitted additional diagnostic test reports that addressed her brain, 

cervical and lumbar areas of the spine, and right shoulder. However, the Board has held that 

reports of diagnostic testing lack probative value, as they do not address whether a given medical 

condition or period of disability was caused by the employment.12

Additionally, appellant submitted a May 14, 2020 progress note from Ms. Kewer, a 

certified physician assistant, and a May 21, 2020 report from Ms. Thompson, a certified nurse 

practitioner. The Board has held that certain healthcare providers such as physician assistants and 

8

See J.S., Docket No. 19-1035 (issued January 24, 2020); H.T., Docket No. 17-0209 (issued February8, 2019); 

RonaldA. Eldridge, 53 ECAB 218 (2001).

9 E.M., Docket No. 19-0251 (issued May 16, 2019); MaryA. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

10 C.M., Docket No. 21-0004 (issued May24, 2021); R.J., Docket No. 19-0179 (issued May 26, 2020); M.A., 

Docket No. 19-1119 (issued November 25, 2019);S.I., Docket No. 18-1582 (issued June20, 2019).

11 K.E., Docket No. 19-1922 (issued July 10, 2020).

12 See K.W., Docket No. 20-0230 (issued May 21, 2021); M.M.,Docket No. 20-1557 (issued November 3, 2021); 

T.G., Docket No. 20-0032 (issued November 10, 2020); R.N., Docket No. 19-1685 (issued February 26, 2020); 

T.H., Docket No. 18-1736 (issued March 13, 2019).
6

nurse practitioners are not considered physicians as defined under FECA.13 Consequently, their 

medical findings and/or opinions will not suffice for purposes of establishing entitlement to FECA 

benefits. Thus, this evidence is of no probative value and is insufficient to establish appellant’s 

recurrence claim. 

The Board further finds that the remaining medical evidence submitted by appellant does 

not provide an opinion concerning appellant’s recurrence of disability commencing 

March 12, 2020. The hospital records dated April 20, 2020 do not address whether appellant was 

disabled for work commencing March 12, 2020. They are, therefore, of no probative value and 

insufficient to establish the recurrence claim.14

As appellant has not submitted sufficient medical evidence to establish that she was 

disabled from work, commencing March 12, 2020, due to a spontaneous change or worsening of 

her March 31, 2010 employment injury, the Board finds that she has not met her burden of proof 

to establish her claim.

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 

disability, commencing March 12, 2020, causally related to her accepted March 31, 2010 

employment injury.

13 Section 8102(2) of FECA provides as follows: (2) 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); DavidP. Sawchuk, 57 ECAB 316, 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 L.S., Docket No. 19-1231 (issued March 30, 2021) (a physician assistant and nurse practitioner 

are not considered a physician as defined under FECA).

14 M.V., Docket No. 20-0872 (issued January 27, 2021); P.R., supra note 7; M.L., Docket No. 18-1058 (issued 

November 21, 2019);D.J., Docket No. 18-0200 (issued August 12, 2019).
7

ORDER

IT IS HEREBY ORDERED THAT the June 23, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 29, 2022

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