United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.J., Appellant 

and 

DEPARTMENT OF DEFENSE, DEFENSE 

LOGISTICS AGENCY, Fort Belvoir, VA, 

Employer 

__________________________________________ 

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Docket No. 14-1380 

Issued: October 22, 2014 

Appearances: Case Submitted on the Record

Richard A. Daniels, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On June 2, 2014 appellant, through her representative, filed a timely appeal from the 

January 16, 2014 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 over the merits of this case. 

ISSUE 

The issue is whether appellant met her burden of proof to establish disability due to her 

January 30, 2008 work injury from October 17, 2012 to January 18, 2013. 

FACTUAL HISTORY 

OWCP accepted that on January 30, 2008 appellant, then a 45-year-old distribution 

process worker, sustained sprains of her right shoulder and upper arm, a right glenoid labral tear 

 1

 5 U.S.C. §§ 8101-8193. 
2

and right shoulder impingement due to pushing a cart at work. Appellant stated that the cart 

“jam[med] up” when she was pushing it and that she felt something pop in her right shoulder. 

She stopped work on January 30, 2008 but returned to limited-duty work for the employing 

establishment.2

 On April 24, 2008 Dr. Robert Kaneda, an attending osteopath and Boardcertified orthopedic surgeon, performed arthroscopic surgery on appellant’s right shoulder, 

including repair of glenoid labral tear, subacromial decompression and acromioplasty. On 

September 25, 2008 he performed a repeat subacromial decompression and acromioplasty of her 

right shoulder. The procedures were authorized by OWCP. From the date of her first surgery, 

appellant received disability compensation on the daily rolls. 

Effective September 4, 2009, appellant was terminated from the employing establishment 

for misconduct.3

On October 17, 2012 Dr. Matthew J. Kelly, an attending Board-certified orthopedic 

surgeon, performed right shoulder surgery, including arthroscopic rotator cuff debridement, 

subacromial decompression and acromioplasty.4

 The procedure was authorized by OWCP. 

In an October 26, 2012 report, Dr. Kelly discussed appellant’s progress since he 

performed surgery on her right shoulder on October 17, 2012. He advised that she had a minor 

amount of ecchymosis in her right arm and that her condition was progressing steadily. 

Dr. Kelly recommended that appellant start physical therapy that included pendulum exercises 

with the aim of weaning her from her right arm sling. 

On November 5, 2012 appellant filed a claim for compensation (Form CA-7) for the 

period October 17 to 31, 2012. On November 14, 2012 she filed a Form CA-7 for the period 

November 1 to 15, 2012.5 

In a letter dated November 14, 2012, OWCP advised appellant that a recurrence of 

disability was a work stoppage caused by withdrawal of a light-duty assignment made 

specifically to accommodate a claimant’s condition due to a work-related injury, but that the 

withdrawal must have occurred for reasons other than misconduct or nonperformance of job 

duties.6

 It noted that her October 17, 2012 surgery was authorized and that she remained entitled 

to medical care for treatment related to her January 30, 2008 injury, but that she was not entitled 

to monetary compensation for disability or a schedule award if her employment was terminated 

 2

 OWCP had denied appellant’s claim on May 13 and September 2, 2008, but she later submitted additional 

medical evidence supporting a January 30, 2008 work injury. 

3

 The Board notes that there is no evidence from the time of appellant’s September 4, 2009 work stoppage that it 

occurred due to a work-related medical condition. 

4

 Dr. Kelly had previously indicated that diagnostic testing from July 24, 2012 showed a high-grade partial or 

full-thickness tear of appellant’s right rotator cuff. 

5

 Appellant later filed a Form CA-7 for the period October 17, 2012 to January 18, 2013. 

6

 OWCP cited Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3b(1)(c) 

(May 1997). It also cited two cases of the Board: Bruce Johnson, Docket No. 00-145 (issued December 22, 2000) 

and John W. Normand, 39 ECAB 1378 (1988). 
3

for cause. OWCP asked appellant if she had evidence that her termination on September 4, 2009 

was not for cause and, if so, to submit such evidence together with a detailed statement 

addressing the circumstances of her termination.7

On February 1, 2013 Dr. Kelly noted that appellant was three and a half months post right 

shoulder surgery. Appellant reported that, after he released her to work, she began working for a 

private employing establishment but was later laid off from work. Dr. Kelly diagnosed “slow 

improving right shoulder status post arthroscopic rotator cuff debridement three and a half 

months ago.”8

In an April 23, 2013 decision, OWCP denied appellant’s claim for wage loss for the 

period October 17 to November 15, 2012. It noted that its procedure provides that a recurrence 

of disability is a work stoppage caused by withdrawal of a light-duty assignment made 

specifically to accommodate a claimant’s condition due to a work-related injury, but that the 

withdrawal must have occurred for reasons other than misconduct or nonperformance of job 

duties.9 Appellant was advised that the surgery performed on October 17, 2102 was authorized 

and that she remained entitled to medical care for treatment related to her January 30, 2008 

injury, but that she was not entitled to compensation for disability or a schedule award as her 

employment was terminated for cause. OWCP stated: 

“To date the claimant has not provided evidence to support that the termination of 

her employment on September 4, 2009 was not for cause or in error on the part of 

her employing establishment. Therefore, as of this date, evidence is insufficient 

to support claimant’s entitlement to monetary benefits.” 

On April 25, 2013 appellant spoke to an OWCP employee on the telephone and asserted 

that her September 4, 2009 termination was not for cause. 

On May 13, 2013 appellant, through her representative, requested a hearing before an 

OWCP hearing representative. 

In a January 16, 2014 decision, an OWCP hearing representative affirmed the 

April 23, 2013 decision denying appellant’s claim for compensation from October 17, 2012 to 

January 18, 2013. Regarding the reason for the denial of appellant’s claim, the hearing 

representative stated: 

“FECA Procedural Manual notes that the definition of a recurrence of disability is 

a work stoppage caused by ‘withdrawal of a light[-]duty assignment made 

 7

 OWCP stated, “While the surgery performed on October 17, 2012 was authorized by OWCP and you remain 

entitled to medical care for treatment related to your injury sustained on January 30, 2008, you are not entitled to 

compensation for disability or schedule award if your employment was terminated for cause.” 

8

 In a May 31, 2013 report, Dr. Kelly noted that appellant reported that she had returned to her full duties as a 

picker in a warehouse for a private employing establishment. 

9

 OWCP cited the same portion of its procedure manual that it cited in its November 14, 2012 letter. See supra 

note 6. 
4

specifically to accommodate the claimant’s condition due to the work-related 

injury. This withdrawal must have occurred for reasons other than misconduct or 

nonperformance of job duties.’ 

“Although the [d]istrict [o]ffice authorized the claimant’s November 2012 

shoulder surgery and subsequent therapy, the payment of medical benefits does 

not constitute acceptance of a claim. Therefore, in the instant case, the 

authorization of shoulder surgery did not imply coverage for wage-loss benefits. 

“The evidence of file demonstrates that the claimant stopped working on 

September 4, 2009, when she was terminated for cause; therefore, she has failed 

to establish a recurrence of disability due to withdrawal of a light-duty 

assignment. The claimant has no entitlement to compensation after 

September 4, 2009.”10 (Citation omitted.) 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of establishing the essential 

elements of his or her claim including the fact that the individual is an “employee of the United 

States” within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation period of FECA, that an injury was sustained in the performance of duty as alleged 

and that any disability and/or specific condition for which compensation is claimed are causally 

related to the employment injury.11 The medical evidence required to establish a causal 

relationship between a claimed period of disability and an employment injury is rationalized 

medical opinion evidence. The opinion of the physician must be based on a complete factual and 

medical background of the claimant, must be one of reasonable medical certainty and must be 

supported by medical rationale explaining the nature of the relationship between the diagnosed 

condition and the specific employment factors identified by the claimant.12 Whether a particular 

employment injury causes disability for employment and the duration of that disability are 

medical issues, which must be proved by a preponderance of reliable, probative and substantial 

medical evidence.13

In cases where employment has in fact been terminated for misconduct and disability is 

subsequently claimed, the Board has noted that in general the term “disability” under FECA 

means “incapacity because of injury in employment to earn the wage which the employee was 

receiving at the time of such injury.”14 Where employment is terminated for misconduct, 

disability benefits would be payable if the evidence of record established that the claimant was 

 10 OWCP’s hearing representative indicated that appellant claimed that her September 4, 2009 termination was 

not for cause, but asserted that she did not submit evidence supporting this assertion. 

11 J.F., Docket No. 09-1061 (issued November 17, 2009). 

12 See E.J., Docket No. 09-1481 (issued February 19, 2010). 

13 W.D., Docket No. 09-658 (issued October 22, 2009). 

14 Ralph Dennis Flanagan, Docket No. 94-1569 (issued May 28, 1996). 
5

terminated due to injury-related physical inability to perform assigned duties or the medical 

evidence of record established that the claimant was unable to work due to an injury-related 

disabling condition.15

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.16

ANALYSIS 

OWCP accepted that on January 30, 2008 appellant sustained sprains of her right 

shoulder and upper arm, right glenoid labral tear and right shoulder impingement due to pushing 

a cart at work. On April 24, 2008 Dr. Kaneda, an attending osteopath and Board-certified 

orthopedic surgeon, performed arthroscopic surgery on her right shoulder, including repair of 

glenoid labral tear, subacromial decompression and acromioplasty. On September 25, 2008 he 

performed a repeat subacromial decompression and acromioplasty of appellant’s right shoulder. 

The procedures were authorized by OWCP and appellant received compensation for periods of 

disability. Effective September 4, 2009, appellant was terminated from the employing 

establishment for cause. 

On October 17, 2012 Dr. Kelly, an attending Board-certified orthopedic surgeon, 

performed right shoulder surgery for arthroscopic rotator cuff debridement, subacromial 

decompression and acromioplasty.17 The procedure was authorized by OWCP. Appellant filed 

CA-7 forms for monetary compensation for the period October 17, 2012 to January 18, 2013. 

OWCP denied her claim for work-related disability in decisions dated April 23, 2013 and 

January 16, 2014. 

The Board finds that this case is not in posture for decision regarding whether appellant 

met her burden of proof to establish that she had disability due to her January 30, 2008 work 

injury for the period October 17, 2012 to January 18, 2013. In connection with its denial of 

appellant’s claim, OWCP failed to adequately consider the medical evidence submitted by her in 

support of her claim. In a November 14, 2012 informational letter and its April 23, 2013 and 

January 16, 2014 decisions, it improperly suggested that the fact that she was terminated from 

the employing establishment for misconduct effective September 4, 2009 served as a bar to her 

receipt of disability compensation after that point. The Board has held that, even if a claimant

 15 Id.

16 Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983). 

17 Dr. Kelly had previously indicated that diagnostic testing from July 24, 2012 showed a high-grade partial or 

full-thickness tear of appellant’s right rotator cuff. 
6

were terminated for misconduct, disability benefits would be payable if the evidence of record 

established that the claimant was unable to work at some point thereafter due to a work-related 

disabling condition.18 

The Board finds that OWCP failed to adequately address the medical evidence that 

appellant submitted in connection with her claim for disability for the period October 17, 2012 to 

January 18, 2013. OWCP’s January 16, 2014 decision will be set aside and the case remanded 

for consideration of her claim for disability. After such development, it shall issue an 

appropriate decision on appellant’s disability claim. 

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether appellant 

met her burden of proof to establish that she had disability due to her January 30, 2008 work 

injury for the period October 17, 2012 to January 18, 2013. 

 18 See supra note 15. OWCP cited its procedure manual in support of its position. However, it failed to note that 

the same portion of its procedure manual states that disability could be established when inability to work was 

caused by a “spontaneous material change, demonstrated by objective findings, in the medical condition which 

resulted from a previous injury or occupational illness without an intervening injury or new exposure to factors 

causing the original illness.” See supra note 6 at Chapter 2.1500.3b(1)(a). OWCP also cited the cases Bruce 

Johnson and John W. Normand, but both cases note that disability could be established despite termination for cause 

if medical evidence were submitted to establish that the claimant could not work due to the accepted work injury for 

a given period after the termination. See supra note 6. 
7

ORDER 

IT IS HEREBY ORDERED THAT the January 16, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded to OWCP for further 

proceedings consistent with this decision of the Board. 

Issued: October 22, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board