United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Tully, NY, Employer

__________________________________________

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Docket No. 17-1401

Issued: March 23, 2018

Appearances: Case Submitted on the Record

Kimberly A. Slimbaugh, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 12, 2017 appellant, through counsel, filed a timely appeal from a December 20, 

2016 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.

 

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.
2

ISSUE

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

from October 1, 2015 to March 21, 2016 due to her accepted employment injuries.

FACTUAL HISTORY

On June 2, 2015 appellant, then a 58-year-old rural mail carrier, filed an occupational 

disease claim (Form CA-2) alleging left trapezius muscle spasm, left subacromial impingement, 

and left rotator cuff tear resulting from the performance of her federal duties. She attributed her 

conditions to lifting heavy mail and reaching out the window of her postal vehicle to place the mail 

in mailboxes that were hard to reach due to snowbanks. Appellant first became aware of her 

conditions and their relationship to her federal employment on February 3, 2015. She stopped 

work on February 27, 2015 and returned to regular-duty work effective April 8, 2015. 

On September 11, 2015 OWCP accepted appellant’s claim for left shoulder impingement. 

In a September 30, 2015 medical report, Dr. Bradley S. Raphael, an attending orthopedic 

surgeon, noted a history that seven months ago appellant sustained a left shoulder injury at work. 

He discussed physical examination findings and diagnosed subacromial impingement. 

Dr. Raphael requested authorization to perform an arthroscopy of the left shoulder for subacromial 

decompression and debridement because appellant’s symptoms had progressed and failed to 

respond to conservative measures. He advised that the incident described by her was a competent 

medical cause of her left shoulder injury. Dr. Raphael further advised that appellant’s history and 

complaints were consistent with the history of the injury/illness. He concluded that she was 

temporarily totally disabled. Dr. Raphael noted that appellant was not working at that time and 

that she would remain off work until further notice.

On October 6, 2015 appellant filed a notice of recurrence of disability (Form CA-2a) 

commencing September 29, 2015. She claimed that she was limited in her ability to lift any weight 

with her left arm. Appellant described pain, swelling, tenderness, and weakness due to a torn 

rotator cuff. She noted her medical treatment and maintained that she remained symptomatic. 

Appellant asserted that her current condition was a continuation of her original injury. She related 

that she tried to continue working through her pain, however, her shoulder condition progressively 

worsened. On the claim form the employing establishment indicated that appellant had returned 

to full-time, regular-duty work on April 8, 2015. It reported that she stopped work on 

October 1, 2015.

Appellant filed a series of claims for compensation, CA-7 forms, for leave without pay 

(LWOP) for the period October 1 to 30, 2015. 

In an October 13, 2015 duty status report (Form CA-17), Dr. Raphael listed February 27, 

2015 as the date of injury. He reported examination findings and diagnosed left shoulder 

subacromial impingement due to injury. Dr. Raphael noted that appellant had not been advised to 

resume her regular work. In an October 22, 2015 work capacity evaluation (OWCP-5c), he 

advised that she was unable to perform her usual job or work eight hours a day with restrictions 
3

due to left shoulder pain, progression of symptoms, and failure to improve with conservative 

measures. 

On November 3, 2015 OWCP received a request for authorization to perform left shoulder 

arthroscopic surgery. 

OWCP, by development letter dated November 4, 2015, advised appellant of the 

deficiencies of her recurrence claim and afforded her 30 days to submit additional medical and 

factual evidence. 

Appellant filed a CA-7 form for leave buy back compensation for the period February 28 

to April 7, 2016. 

Appellant filed additional CA-7 forms for LWOP compensation from October 31 to 

December 25, 2015. 

On November 23, 2015 appellant responded to OWCP’s development questionnaire. She 

listed the physical requirements of her work duties and noted that her shoulder injury had affected 

her job duties. Appellant claimed that her symptoms had not responded to conservative measures. 

She also claimed that she had not sustained or incurred any other injuries or illness since her 

original injury. Appellant related that she was unable to participate in any activities outside of 

work due to her shoulder injury.

Appellant submitted additional reports dated October 26, November 16 and 18, and

December 11, 2015 from Dr. Raphael. Dr. Raphael reiterated her history of injury, discussed 

examination findings, and restated his prior assessment of subacromial impingement as well as his 

prior opinion that her condition was work related and that she was temporarily totally disabled 

from work. He noted that appellant’s mail carrier duties involved using her left hand to drive a 

route in her own personal vehicle and twisting, turning, pushing, and reaching to put mail into 

mailboxes, and handling up to 70 pounds of parcels. Dr. Raphael advised that her left shoulder 

condition had worsened due to her job duties and that she did not sustain a new injury. He related 

that appellant suffered a partial supraspinatus and infraspinatus tear due to continuous twisting, 

turning, and reaching with her left arm. Dr. Raphael maintained that it was well known and 

supported by evidenced-based data that repetitive use of the arms, especially at or above shoulder 

level, may cause fatigue and damage to the rotator cuff tendons; if the rate of tissue breakdown 

exceeded the rate of tissue healing, tendon degeneration and tear may occur. He noted that 

appellant’s job duties required exactly that, repetitive use of the arms, etc. Dr. Raphael again 

recommended left shoulder surgery. 

By decision dated January 14, 2016, OWCP denied appellant’s recurrence claim because 

the medical evidence of record failed to establish that she was disabled due to a material 

change/worsening of her accepted work-related condition. 

OWCP received additional reports dated December 16, 2015 and January 16 and 22, 2016 

from Dr. Raphael in which he continued to diagnose subacromial impingement and to opine that 

appellant’s condition was work related and that she was temporarily totally disabled from work.

Dr. Raphael noted her repetitive work duties and related that repetitive motion can cause rotator 

cuff pathology and in extreme cases, a rotator cuff tear. He believed that appellant’s pain was 
4

caused and worsened by repetitive motion at work. Dr. Raphael continued to recommended left 

shoulder arthroscopic surgery.3 On January 15, 2016 he again prescribed physical therapy to treat 

her left shoulder condition. 

Appellant filed additional CA-7 forms for LWOP for the period December 26, 2015 to 

April 7, 2016. 

On February 26, 2016 appellant requested an oral hearing before an OWCP hearing 

representative regarding the January 14, 2016 decision. 

OWCP received various medical records, which included a March 7, 2016 report from

Dr. Eileen Stone, a Board-certified internist. Dr. Stone conducted a preoperative evaluation. She 

noted a history of the accepted work-related condition and appellant’s medical treatment. 

Dr. Stone examined appellant and assessed sprain of the left rotator cuff capsule, initial encounter, 

essential (primary) hypertension, and encounter for other preprocedural examination. 

Appellant underwent authorized left shoulder surgery. Hospital records included a 

March 22, 2016 operative report in which Dr. Raphael noted preoperative and postoperative 

diagnoses as left shoulder rotator cuff tear, left shoulder impingement, and left shoulder 

acromioclavicular joint arthrosis. He performed diagnostic arthroscopy, rotator cuff repair, 

subacromial decompression, extensive debridement, and distal clavicle excision of the left 

shoulder. In an April 11, 2016 form OWCP-5c, Dr. Raphael advised that appellant was unable to 

perform her usual job or work eight hours a day as she was status post left shoulder arthroscopic

surgery. He determined that she had not reached maximum medical improvement. On April 13, 

2016 Dr. Raphael reported that appellant was doing well three weeks status post left rotator cuff 

repair although she still had some stiffness and discomfort. He reiterated his prior left shoulder 

diagnosis and opinions on causal relationship and her disability status. 

On April 15, 2016 OWCP informed appellant that her recurrence claim required further 

development due to a fall she sustained on January 15, 2015. 

OWCP, by letter dated April 15, 2016, advised appellant that the medical evidence 

regarding her March 22, 2016 left shoulder surgery was insufficient to establish her recurrence 

claim. It afforded her 30 days to submit additional medical and factual evidence. 

Dr. Raphael, in reports dated March 14 to July 5, 2016, discussed examination findings 

and again assessed subacromial impingement, as well as partial nontraumatic tear of the left rotator 

cuff. He restated his prior opinions on causal relationship and appellant’s disability status. On

April 13 and July 14, 2016 Dr. Raphael ordered physical therapy to treat her left shoulder 

conditions. 

Reports and daily notes from appellant’s physical therapists addressed her treatment from 

April 19 to June 30, 2016. 

 

3 On February 16, 2016 OWCP authorized left shoulder arthroscopic surgery. 
5

By decision dated August 2, 2016 and reissued on August 8, 2016, OWCP accepted 

appellant’s claim for unspecified rotator cuff tear or rupture of the left shoulder, not specified as 

traumatic. It also accepted that she sustained a recurrence of disability beginning March 22, 2016

and paid her disability compensation effective that date. Appellant received wage-loss 

compensation on the supplemental rolls as of March 22, 2016, and on the periodic rolls as of 

September 18, 2016. 

OWCP received daily notes from appellant’s physical therapists which addressed the 

treatment of appellant’s left shoulder condition from July 16 to August 12, 2016. 

In a July 27, 2016 letter, Dr. Raphael noted a history of appellant’s accepted injuries and 

the medical treatment he had provided to her. He reiterated her work duties. Dr. Raphael restated 

his September 30, 2015 findings, which included his opinion that since appellant’s symptoms had 

progressed and failed to respond to conservative measures it was detrimental for her to continue 

working at that time. He related that she did not have a new injury. Appellant’s symptoms 

spontaneously worsened to a level of intensity that would cause greater harm if she continued to 

work. Dr. Raphael pointed out that she fell in January 2016 and sustained a head injury that had 

absolutely no effect or impact on her left shoulder injury. Therefore, he advised that appellant’s

continuous disability status was unrelated to her fall.

On August 2, 2016 Dr. Raphael examined appellant and reiterated his assessment of left 

shoulder impingement syndrome. He continued to find that she was totally disabled for work and 

reiterated his conclusion in an October 10, 2016 report and October 12, 2016 Form OWCP-5c. 

By decision dated December 20, 2016, an OWCP hearing representative affirmed the 

January 14, 2016 decision. She found that Dr. Raphael’s reports were insufficient to establish that 

appellant’s disability commencing October 1, 2015 was due to a worsening of her accepted workrelated conditions.

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 appellant claims a recurrence of disability due to an accepted employment-related 

injury, he or she has the burden of proof to establishing by the weight of the reliable, probative, 

and substantial evidence that the recurrence of disability is causally related to the original injury.

This burden includes the necessity of furnishing evidence from a qualified physician, who on the 

basis of a complete and accurate factual and medical history, concludes that the condition is 

 

4 20 C.F.R. § 10.5(y); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.a 

(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).
6

causally related to the employment injury and supports this conclusion with sound medical 

reasoning.5

ANALYSIS

The Board finds that appellant has failed to submit sufficient medical evidence to establish 

a recurrence of total disability from October 1, 2015 to March 21, 2016 due to her accepted work 

injuries. 

OWCP accepted that appellant sustained a work-related left shoulder impingement injury 

in the performance of duty. Appellant returned to regular-duty work on April 8, 2015 and stopped 

work on October 1, 2015. She claimed compensation for a recurrence of total disability 

commencing on October 1, 2015. OWCP subsequently accepted that appellant sustained 

unspecified rotator cuff tear or rupture of the left shoulder, not specified as traumatic. It also 

accepted that she sustained a recurrence of disability as of March 22, 2016, the date she underwent 

authorized left shoulder arthroscopic surgery. 

In support of her recurrence claim, appellant submitted a series of reports from her 

attending physician, Dr. Raphael, beginning on September 30, 2015. Dr. Raphael diagnosed left 

shoulder subacromial impingement and partial nontraumatic tear of the left rotator cuff and 

addressed her medical treatment. While he determined that the diagnosed conditions were due to 

appellant’s work duties and that she was temporarily totally disabled, he failed to offer a medical 

opinion specifically addressing whether her conditions and resultant disability were causally 

related to the accepted employment-related injuries. Medical evidence that does not offer any 

opinion regarding the cause of an employee’s condition is of limited probative value on the issue 

of causal relationship.6 A mere conclusion without the necessary rationale is insufficient to meet 

a claimant’s burden of proof.7 Further, the Board notes that Dr. Raphael attributed appellant’s 

need to remain off work as a way to prevent future injury. However, the Board has held that fear 

of future injury is not compensable.8 For these reasons, these reports of Dr. Raphael are 

insufficient to establish a recurrence of total disability or work-related disability during the claimed 

period.

The remaining medical evidence of record is also insufficient to establish appellant’s claim 

for recurrence of disability. The March 7, 2016 report of Dr. Stone provided preoperative 

diagnoses, which included sprain of the left rotator cuff capsule, initial encounter. However, this 

report did not offer a medical opinion addressing whether the diagnosed left shoulder conditions 

 

5 Ricky S. Storms, 52 ECAB 349 (2001); Helen Holt, 50 ECAB 279 (1999).

6 See R.B., Docket No. 17-0556 (issued June 2, 2017); J.D., Docket No. 16-0887 (issued November 4, 2016); L.M., 

Docket No. 16-0143 (issued February 19, 2016).

7 See E.L, Docket No. 17-1632 (January 3, 2018). 

8

I.J., 59 ECAB 408 (2008).
7

and any resultant disability during the claimed period were causally related to the accepted 

employment injuries.9 

Appellant submitted physical therapy reports and notes dated March 5, 2015 to 

June 30, 2016. Physical therapists, however, are not considered physicians as defined under FECA 

and their reports have no probative value. Thus, these reports are insufficient to establish 

appellant’s claim.10

It is appellant’s burden of proof to establish the claim for compensation. The Board finds 

that appellant did not meet her burden of proof in this case.

On appeal counsel contends that the medical evidence supports that appellant had a 

material change in her left shoulder condition that resulted in further disability beginning 

September 29, 2015. As explained above, however, appellant has not submitted sufficient medical 

evidence to establish her recurrence claim.

Alternatively, counsel contends on appeal that OWCP should have found that the evidence 

supports a new injury. A subsequent injury, either an aggravation of the original injury or a new 

injury, is compensable if it is the direct and natural result of a compensable primary injury.

11

 

However, OWCP has not issued a decision on this aspect of the claim and it is not presently before 

the Board on this appeal.12

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 failed to meet her burden of proof to establish a 

recurrence of disability from October 1, 2015 to March 21, 2016 due to her accepted employment 

injuries.

 

9 Supra note 6.

10 5 U.S.C. § 8101(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. See E.W., Docket No. 16-1729 (issued May 12, 2017). Physical therapists are not considered physicians 

as defined under FECA. R.U., Docket No. 17-0168 (issued January 9, 2018). 

11 Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

12 Patricia Hernandez, Docket No. 04-1408 (issued December 30, 2005); see also 20 C.F.R. §. 501.2(c).
8

ORDER

IT IS HEREBY ORDERED THAT the December 20, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 23, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board