United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

West Palm Beach, FL, Employer 

__________________________________________ 

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Docket No. 15-0633 

Issued: July 10, 2015 

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 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 27, 2015 appellant filed a timely appeal from an August 13, 2014 merit 

decision and an October 29, 2014 nonmerit decision of the Office of Workers’ Compensation 

Programs. 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. 

ISSUES 

The issues are: (1) whether appellant has met her burden of proof to establish a 

recurrence of a medical condition on July 19, 2013 due to her accepted October 13, 2000 

employment injury; and (2) whether the Branch of Hearings and Review properly denied her 

request for a hearing. 

FACTUAL HISTORY 

On October 13, 2000 appellant, then a 47-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging an injury to her right shoulder as a result of lifting a heavy tray from 

 1

 5 U.S.C. § 8101 et seq. 
2

a pallet to the floor. She did not stop work, but was offered a limited-duty position on 

October 20, 2000. 

On January 31, 2001 OWCP accepted appellant’s claim for right shoulder strain and right 

shoulder impingement. Appellant claimed intermittent wage loss between March 13 and 

July 26, 2001. OWCP authorized payment of compensation during this period. 

Appellant underwent an authorized diagnostic arthroscopy followed by an open 

subacromial decompression and coracoacromial ligament release on June 4, 2001. Dr. Jose 

Ortega, an orthopedic surgeon, performed the surgery and rendered a postoperative diagnosis of 

right shoulder impingement, stage 2. There were no complications. 

Appellant returned to work for four hours per day on limited duty on July 3, 2001 and she 

returned to work at eight hours per day on limited duty on July 21, 2001 

In a report dated December 12, 2002, Dr. Ortega stated that appellant reached maximum 

medical improvement on December 4, 2001, and that she had a permanent impairment rating of 

four percent. On the same date Dr. Ortega completed a work status report noting restrictions of 

no lifting over 20 pounds and no reaching above the shoulder with the right arm. On 

December 13, 2002 appellant accepted a permanent limited-duty job offer within these 

restrictions. 

On April 21, 2003 appellant filed a claim for a schedule award. On July 24, 2003 OWCP 

issued a schedule award for six percent permanent impairment of the upper right shoulder. 

In a report dated June 12, 2008, Dr. Ortega noted that appellant returned for a follow-up 

on her shoulder and that he had not seen her in almost two years. Appellant complained of pain 

located over the acromioclavicular (AC) joint. Dr. Ortega provided examination findings noting 

tenderness to touch and a complete range of motion. He examined the results of the x-ray of 

appellant’s right shoulder, which showed degenerative changes. Dr. Ortega diagnosed her with 

AC joint arthritis of the right shoulder and stated, “In my opinion, this is another work-related 

condition.... Nothing else that I can offer this patient from the [w]orkers’ [c]ompensation case. 

The restrictions remain the same with the same permanent impairment rating. If she wishes for 

me to see her for the AC joint, it should be under her own regular insurance.” 

On November 3, 2010 appellant accepted a limited-duty modified assignment within the 

restrictions as outlined in the functional capacity evaluation. The physical requirements included 

lifting and carrying of up to 45 pounds; pulling and pushing up to 45 pounds; and reaching above 

the shoulder up to 30 pounds, for an average of three hours per day. 

On April 21, 2014 appellant filed a notice of recurrence. She stated that she had not 

stopped work, but that on July 19, 2013 she had rapid discomfort in her right shoulder and hand, 

and that her reach capacities lessened. Appellant noted that she could no longer lift within her 

restrictions. 

By letter dated May 19, 2014, OWCP requested additional medical evidence from 

appellant to support her claim for recurrence of a medical condition. It noted that she had not 
3

submitted any medical evidence to support her claim for recurrence. OWCP also asked that 

appellant complete and return a questionnaire. 

On June 4, 2014 appellant responded to OWCP’s questionnaire. She stated that her 

duties since returning to work included repetitive motions, hanging sacks, lifting, unsleeving, 

lifting tray mail, and repetitive pushing and pulling of equipment. In response to a query for 

information needed to determine whether she sustained a recurrence or a new injury, appellant 

stated that she had received instructions to reopen the case file and just needed medical care. She 

stated that she believed her current condition was due to the original injury because it involved 

the same shoulder. Appellant noted that her symptoms came and went depending on her duties 

and number of days off. 

By decision dated August 13, 2014, OWCP denied appellant’s recurrence claim. It noted 

that she had not submitted any medical evidence in support of her claim for recurrence of a 

condition causally related to the October 13, 2000 employment-related injury. 

By form dated September 14, 2014 and postmarked September 15, 2014, received by 

OWCP September 18, 2014, appellant requested a hearing before an OWCP hearing 

representative. With her request, she submitted documents from Dr. Ortega and stated that she 

had been disabled since February 17, 2014 due to a neck injury and surgery in addition to a 

complete knee replacement. The request was received by OWCP on September 18, 2014 and 

postmarked September 15, 2014. 

By decision dated October 29, 2014, the Branch of Hearings and Review denied the 

hearing request as untimely. The hearing representative noted that appellant could file a request 

for reconsideration and submit new evidence. 

LEGAL PRECEDENT -- ISSUE 1 

Appellant has the burden of establishing that she sustained a recurrence of a medical 

condition that is causally related to her accepted employment injury. To meet her burden, she 

must furnish medical evidence from a physician who, on the basis of a complete and accurate 

factual and medical history, concludes that the condition is causally related to the employment 

injury and supports that conclusion with sound medical rationale.2

 Where no such rationale is 

present, the medical evidence is of diminished probative value.3

OWCP regulations define a recurrence of medical condition as the documented need for 

further medical treatment after release from treatment of the accepted condition when there is no 

work stoppage. Continued treatment for the original condition is not considered a renewed need 

for medical care, nor is examination without treatment.4

 2 Ronald A. Eldridge, 53 ECAB 218, 220 (2001). 

3 Mary A. Ceglia, 55 ECAB 626, 629 (2004); Albert C. Brown, 52 ECAB 152, 155 (2000). 

4

 20 C.F.R. § 10.5(y). 
4

ANALYSIS -- ISSUE 1 

The Board finds that appellant has not established a recurrence of disability. OWCP 

accepted her traumatic injury claim for right shoulder impingement and strain on 

January 31, 2001. Appellant has claimed entitlement to compensation for medical treatment. 

She has failed to submit medical evidence to show that she required further treatment because of 

a continuing employment-related condition. 

On May 19, 2014 OWCP requested that appellant submit additional medical evidence to 

support her need for continued treatment. Dr. Ortega found that she had reached maximum 

medical improvement on December 4, 2001 after surgery. Appellant received a schedule award 

for permanent impairment of her right shoulder on July 24, 2003. In a report dated June 12, 

2008, Dr. Ortega reported that appellant had returned for follow-up and diagnosed her with AC 

joint arthritis of the right shoulder. He wrote: “In my opinion, this is another work-related 

condition....” 

On August 9, 2010 Dr. Ortega reported that appellant required no further orthopedic 

treatment. 

Appellant must submit an attending physician’s report that contains a description of the 

objective findings and supports a causal relationship between her current medical condition and 

the previously accepted right shoulder impingement and strain.5 She has the burden of 

submitting sufficient medical evidence to document the actual need for further specific medical 

treatment.6 Appellant submitted no medical evidence in support of her claim for recurrence and 

thus failed to establish a need for continuing medical treatment.7

An award of compensation may not be based on surmise, conjecture, speculation, or upon 

appellant’s own belief that there was a causal relationship between her condition and her 

employment.8

 5 See V.P., Docket No. 14-1557 (issued December 2, 2014). OWCP’s procedure manual provides that, after 90 

days of release from medical care (based on the physician’s statement or instruction to return as needed or computed 

by the claims examiner from the date of last examination), a claimant is responsible for submitting an attending 

physician’s report which contains a description of the objective findings and supports causal relationship between 

the claimant’s current condition and the previously accepted work injury. Federal (FECA) Procedure Manual, Part 2 

-- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013). 

6 Supra note 3. 

7

 While the medical opinion of a physician supporting causal relationship does not have to reduce the cause or 

etiology of a disease or condition to an absolute certainty, neither can such opinion be speculative or equivocal. The 

opinion of a physician supporting causal relationship must be one of reasonable medical certainty that the condition 

for which compensation is claimed is causally related to federal employment, and such relationship must be 

supported with affirmative evidence, explained by medical rationale and be based upon a complete and accurate 

medical and factual background of the claimant. See Thomas A. Faber, 50 ECAB 566, 569 (1999); Samuel Senkow, 

50 ECAB 370, 377 (1999). 

8 Patricia J. Glenn, 53 ECAB 159, 160 (2001). 
5

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. 

LEGAL PRECEDENT -- ISSUE 2 

A claimant, injured on or after July 4, 1966, who has received a final adverse decision by 

OWCP may obtain a hearing by writing to the address specified in the decision.9

 The hearing 

request must be sent within 30 days (as determined by postmark or other carrier’s date marking) 

of the date of the decision for which a hearing is sought.10 The claimant must not have 

previously submitted a reconsideration request (whether or not it was granted) on the same 

decision.11 If the request is not made within 30 days, a claimant is not entitled to a hearing as a 

matter of right. However, the Branch of Hearings and Review may exercise its discretion to 

either grant or deny a hearing.12

ANALYSIS -- ISSUE 2 

OWCP issued its last merit decision on August 13, 2014. Appellant had 30 days to 

request a hearing. Appellant’s hearing request was postmarked September 15, 2014. OWCP 

regulations provide that the hearing request must be sent within 30 days of the date of the 

decision for which a hearing is sought.13 Because appellant’s September 15, 2014 request was 

untimely, she was not entitled to a hearing as a matter of right. The Branch of Hearings and 

Review also denied appellant’s hearing request because it found that her claim for recurrence 

could be equally well addressed by requesting reconsideration before OWCP. The Board finds 

that the hearing representative properly exercised her discretionary authority in denying 

appellant’s request for a hearing.14 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish that she 

sustained a recurrence of a medical condition causally related to her accepted injury. The Board 

further finds that the Branch of Hearings and Review properly denied appellant’s hearing 

request. 

 9

 20 C.F.R. § 10.616(a). 

10 Id. 

11 Id. 

12 5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33 

ECAB 140 (1981). 

13 20 C.F.R. § 10.616(a). 

14 Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest 

error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable 

deductions from known facts. See André Thyratron, 54 ECAB 257, 261 (2002). 
6

ORDER 

IT IS HEREBY ORDERED THAT the October 29 and August 13, 2014 decisions of 

the Office of Workers’ Compensation Programs are affirmed. 

Issued: July 10, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees' Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees' Compensation Appeals Board