United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Salisbury, NC, Employer 

__________________________________________ 

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Docket No. 16-0716 

Issued: July 19, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 29, 2016 appellant filed a timely appeal from a January 4, 2016 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 has established a recurrence of disability for intermittent 

periods commencing November 8, 2011 causally related to accepted right knee and lumbar 

sprains and a right upper extremity contusion. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. The facts and circumstances outlined in 

the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below. 

OWCP accepted that on October 8, 2009 appellant, a 59-year-old health technician, 

sustained a lumbar sprain and right collateral ligament knee sprain in the performance of duty 

when she slipped and fell down a stairway. Appellant was followed by Dr. Christopher K. Nagy, 

the attending Board-certified orthopedic surgeon, who noted improving lumbar, right shoulder, 

and right knee symptoms in reports through March 2010.2 In a May 26, 2010 report, Dr. Nagy 

noted that appellant continued to have limited motion in the right shoulder. Appellant underwent 

surgical intervention in the past, but continued to have positive impingement findings and 

chronic pain. She returned to light-duty work. 

On June 1, 2010 appellant claimed a schedule award (Form CA-7). In a July 8, 2010 

letter, Dr. Nagy advised that he was not formally trained in evaluating impairment and requested 

that OWCP refer appellant to an appropriate specialist. An OWCP medical adviser reviewed the 

medical record on July 8, 2010 and noted that the accepted conditions had resolved with no 

evidence of permanent impairment. 

By decision dated July 28, 2010, OWCP denied appellant’s schedule award claim. 

Appellant requested a review of the written record and submitted additional evidence. 

In an August 11, 2010 report, Dr. Nagy found that appellant had reached maximum 

medical improvement from the accepted sprains. Due to her improvement and lack of findings 

of any specific physiologic abnormality, he explained that “there will be no impairment rating 

for [appellant] in regard to the sprain of her back and the lateral ligament of her knee.” Dr. Nagy 

added that the impairment rating for her lumbar spine and knee sprain was zero “as both have 

resolved over the passage of time.” 

By decision dated December 2, 2010, an OWCP hearing representative affirmed the 

denial of appellant’s schedule award claim, finding that the medical evidence did not establish 

any permanent impairment of a scheduled member of the body due to the accepted injuries. 

On March 2, 2011 Dr. Nagy advised that when he saw appellant following her fall she 

was complaining of pain in her shoulder, which has resolved as of March 3, 2009 following 

August 2009 surgery. Although the October 8, 2009 incident was not fully responsible for 

appellant’s shoulder problems, he found that she did sustain an injury to her shoulder at that 

time, which further aggravated her condition and continued to cause disability and pain with use 

of the arm in general. 

On or about June 16, 2011 appellant filed a reconsideration request which was forwarded 

to the employing establishment. 

 2

 A March 18, 2010 lumbar magnetic resonance imaging (MRI) scan showed a diffuse disc bulge at L4-5. 
3

By decision dated July 14, 2011, OWCP denied modification, finding that the accepted 

conditions resolved without permanent impairment. It noted that Dr. Nagy offered no diagnosis 

of appellant’s shoulder condition and made no distinction between her current condition and an 

employment-related right shoulder injury she sustained on April 12, 2005. OWCP also found 

that there was no basis to expand the acceptance of appellant’s claim to include a shoulder 

condition. Appellant disagreed and requested reconsideration by placing an “x” on the 

applicable line on the appeal form accompanying the July 14, 2011 decision. She did not submit 

additional evidence. 

By decision dated August 10, 2011, OWCP denied appellant’s request for reconsideration 

as it neither raised substantive legal questions nor included new and relevant evidence. 

Appellant then appealed to the Board. 

During the pendency of the first appeal, on March 9, 2012, appellant submitted a claim 

for a recurrence of disability (Form CA-2a) commencing October 9, 2009. 

By decision and order issued April 6, 2012,3

 the Board affirmed OWCP’s July 14, 2011 

decision denying appellant’s schedule award claim, finding that the medical evidence of record 

did not support that the accepted October 8, 2009 injuries caused any permanent impairment to a 

scheduled member of the body. The Board also affirmed OWCP’s August 10, 2011 decision 

denying appellant’s request for reconsideration, finding that as it consisted only of the “x” on the 

appeal form, it did not raise substantive legal questions nor include new and relevant evidence. 

In an April 13, 2012 letter, OWCP expanded the claim to accept a resolved right arm 

contusion. It also advised appellant of the type of evidence needed to establish her claim for 

recurrence of disability, including a physician’s opinion supporting a causal relationship between 

the accepted injuries and her condition on and after October 9, 2009. 

Appellant submitted chart notes from Dr. Nagy dated April 13 to July 27, 2011, noting 

continued pain and limited motion in the right shoulder and right knee. 

By decision dated May 21, 2012, OWCP denied appellant’s claim for recurrence of 

disability, finding that the medical evidence did not establish a causal relationship between 

appellant’s shoulder condition and the accepted injuries. 

On May 31, 2012 appellant requested a review of the written record. She submitted 

additional medical evidence. 

In a July 29, 2011 letter, Dr. Nagy noted appellant’s history of multiple right rotator cuff 

problems and surgery. He opined that the October 2009 fall “caused her to continue to have 

difficulties with her shoulder and essentially was an aggravation of a preexisting shoulder 

condition.” Dr. Nagy noted abduction limited to 60 degrees, with limited internal and external 

rotation. He opined that appellant had 15 percent permanent impairment of her right upper 

extremity. 

 3

 Docket No. 11-2006 (issued April 6, 2012). 
4

In a May 18, 2012 letter, Dr. Nagy opined that, although appellant had a right shoulder 

condition prior to the October 2009 fall, the incident worsened her symptoms. He further opined 

that there “may have been some irritation or inflammation of her preexisting shoulder condition” 

which should be accepted as compensable. Dr. Nagy explained that it was “difficult to 

differentiate” whether appellant’s ongoing right shoulder symptoms were due to the October 14, 

2009 fall or the preexisting condition. He offered that the “truth of this matter will never be fully 

revealed,” so he gave appellant “the benefit of the doubt as she continue[d] to be significantly 

limited with her shoulder which was likely the result of the combination of the injury she 

sustained in 2009 as well as aggravation of the secondary injury.” 

By decision dated September 24, 2012, an OWCP hearing representative affirmed 

OWCP’s May 21, 2012 decision, finding that the medical evidence of record was insufficient to 

establish causal relationship. She noted Dr. Nagy’s opinion that the etiology of appellant’s right 

shoulder condition would “never be fully revealed.” 

Appellant underwent left shoulder surgery on April 17, 2013 with postoperative physical 

therapy through July 2013. She returned to light-duty work on an unspecified date. 

On October 30, 2013 appellant filed an occupational disease claim (Form CA-2) alleging 

a full-thickness rotator cuff tear of the left shoulder sustained on or before October 8, 2009. She 

asserted that she injured her left shoulder in the October 14, 2009 fall, but did not have x-rays 

taken at the time of the injury. Appellant first related the condition to work factors on 

November 29, 2012, because the “extreme pain and swelling was the same as the previous right 

shoulder injury as in 2007 which resulted in surgery and permanent impairment of the right 

shoulder.” She therefore favored her left shoulder, resulting in “the same injury and surgery” to 

the left shoulder as on the right. Appellant asserted that pulling patients in Geri-chairs and 

handling their lunch trays aggravated her left shoulder condition. 

Dr. William Furr, an attending Board-certified orthopedic surgeon, opined on August 12, 

2013 that appellant’s left shoulder symptoms were consistent with a fall down stairs. On 

May 14, 2014 he opined that appellant’s left shoulder condition was related to the 2009 injuries, 

with deterioration due to overuse and compensating for the right shoulder. Dr. Furr opined that 

the April 17, 2013 left shoulder surgery “stems from the injury in 2009 and there was just the 

issue of coverage.” 

In a July 18, 2014 report, Dr. Furr noted swelling and mild effusion in the right knee, 

paraspinal tenderness, restricted lumbar motion, tenderness of the anterior right shoulder, 

positive coroacromial, Neer’s, and Hawkin’s tests, and restricted elevation. Right shoulder xrays demonstrated mild acromioclavicular joint changes. Right knee and lumbar x-rays showed 

multiple degenerative changes. Dr. Furr opined that appellant’s right shoulder, right knee, and 

lumbar conditions were all related to the October 2009 injuries. 

On June 8, 2015 appellant filed a claim for recurrence of disability (Form CA-2a), 

claiming that she was disabled from work for unspecified periods on and after November 8, 2011 

due to sequelae of October 8, 2009 injuries. She asserted that she injured her right and left 

shoulders when she fell down steps on October 8, 2009. The employing establishment 
5

confirmed that appellant was on light duty at the time of the claimed recurrence. Appellant did 

not stop work. 

In an undated letter received on August 17, 2015, Dr. Furr provided a history of injury 

and treatment, relating appellant’s assertion that she injured her left shoulder in the October 8, 

2009 fall. He noted appellant’s duties of carrying patient luggage, passing out and collecting 

meal trays, taking vital signs, assisting with bathing, and lifting heavy linens. Dr. Furr opined 

that appellant’s “left shoulder rotator cuff tear resulting in surgery in April 2013 [was] directly 

related to the injury she sustained on October 8, 2009 and overuse of the shoulder secondary to 

compensation for the right shoulder injury with heavy lifting.” 

In an October 6, 2015 letter, OWCP advised appellant of the type of additional evidence 

needed to establish her recurrence claim, including a medical opinion from her attending 

physician demonstrating a worsening of the accepted condition such that she could no longer 

perform her light-duty job. Appellant was afforded 30 days to submit such evidence. 

Appellant responded by October 21, 2015 letter, explaining that she claimed periods of 

disability relating to the April 2013 left shoulder surgery. She provided a July 15, 2015 report 

from Dr. Furr regarding her lumbar condition. Dr. Furr did not specify any period of disability. 

Appellant also submitted progress notes from Dr. Furr documenting her recovery from the 

April 2013 left rotator cuff repair. 

By decision dated January 4, 2016, OWCP denied appellant’s recurrence claim, finding 

that she did not submit medical evidence establishing a worsening of the accepted injuries that 

would disable her from light duty for any period. Dr. Nagy opined in August 2010 that the 

accepted lumbar and right knee injuries had attained maximum medical improvement. OWCP 

noted that it had not accepted a left or right shoulder injury under the present claim. 

LEGAL PRECEDENT 

OWCP’s implementing regulations define a recurrence of disability as “an inability to 

work after an employee has returned to work, caused by a spontaneous change in a medical 

condition which has resulted from a previous injury or illness without an intervening injury or 

new exposure to the work environment that caused the illness.”4

 

When an employee, who is disabled from the job he or she held when injured on account 

of employment-related residuals, returns to a light-duty position or the medical evidence 

establishes that the employee can perform the light-duty position, the employee has the burden 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 light duty. 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 light-duty job requirements.5

 This includes the necessity of 

 4

 20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.b 

(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004). 

5 Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986). 
6

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

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

employment factors and supports that conclusion with sound medical reasoning.6

 An award of 

compensation may not be made on the basis of surmise, conjecture, speculation or on appellant’s 

unsupported belief of causal relation.7

ANALYSIS 

 OWCP accepted that appellant sustained a lumbar sprain, right collateral ligament knee 

sprain, and a resolved right arm contusion when she fell down a stairway on October 8, 2009. 

Appellant returned to light-duty work with intermittent absences. She claimed a recurrence of 

disability commencing November 8, 2011, at which time she was performing modified duty. 

Appellant thus has the burden of providing sufficient evidence, including rationalized medical 

evidence, to establish the causal relationship asserted.8

 In support of her claim, appellant submitted reports from Dr. Nagy, an attending Boardcertified orthopedic surgeon, who found that she reached maximum medical improvement as of 

August 11, 2010. Dr. Nagy noted continued lumbar and right knee symptoms in reports through 

May 18, 2012 regarding nonoccupational shoulder conditions, but did not opine that the accepted 

injuries had worsened and caused disability during the period at issue. Therefore, his opinion is 

insufficient to meet appellant’s burden of proof.9

Appellant also provided reports from Dr. Furr, an attending Board-certified orthopedic 

surgeon, who noted lumbar symptoms through July 15, 2015. Dr. Furr did not find appellant 

totally disabled for work due to her lumbar symptoms, or opine that the accepted lumbar sprain 

remained present or had worsened. Therefore, his opinion is insufficient to establish the claimed 

recurrence of disability.10

The Board notes there is a significant amount of the medical evidence of record related to 

bilateral shoulder injuries and surgeries, however, OWCP did not accept that appellant sustained 

an injury to either shoulder in the October 8, 2009 fall, due to a lack of medical rationale 

supporting causal relationship. Dr. Nagy remarked on May 18, 2012 that he could not determine 

if appellant’s continuing right shoulder symptoms were due to the accepted October 2009 fall, or 

a preexisting condition. Dr. Furr opined that appellant sustained a left rotator cuff tear due to 

overcompensating for the weakened right shoulder. However, as OWCP did not accept a right 

shoulder injury, any consequential impact to the left shoulder cannot be compensable. 

 6 Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982). 

7 Patricia J. Glenn, 53 ECAB 159 (2001); Ausberto Guzman, 25 ECAB 362 (1974). 

8 Ricky S. Storms, 52 ECAB 349 (2001). 

9 Albert C. Brown, supra note 5. 

10 Id.
7

 OWCP advised appellant by October 6, 2015 letter to submit rationalized medical 

evidence regarding whether the accepted conditions in her claim had worsened on and after 

November 8, 2011 as claimed. Nothing was submitted. Without such rationalized medical 

evidence, OWCP properly denied her claim for a recurrence of disability. 

 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 established that she sustained a recurrence of 

disability for intermittent periods commencing November 8, 2011 causally related to accepted 

right knee and lumbar sprains and a right upper extremity contusion. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated January 4, 2016 is affirmed. 

Issued: July 19, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board