United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.P., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Newark, NJ, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-0549 

Issued: July 13, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 11, 2017 appellant, through counsel, filed a timely appeal from a 

September 1, 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

ISSUES 

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

disability beginning March 9, 2013; and (2) whether OWCP met its burden of proof to rescind its 

acceptance of appellant’s claim for work-related disability for the period March 9 to 

May 30, 2013. 

FACTUAL HISTORY 

On November 21, 2012 appellant, then a 59-year-old Customs and Border Protection 

officer, filed a traumatic injury claim (Form CA-1) for a left shoulder injury he attributed to a 

November 7, 2012 training exercise where he was held by two individuals and then tased. On 

November 8, 2012 appellant resumed work in a light-duty capacity. In January 2013, OWCP 

accepted his claim for left shoulder acromioclavicular sprain, left shoulder rotator cuff strain, and 

left shoulder rotator cuff tear. On February 18, 2013 appellant returned to his regular work 

without restrictions. The employing establishment terminated appellant for cause effective 

March 8, 2013. 

On May 31, 2013 Dr. Jeffrey S. Abrams, a Board-certified orthopedic surgeon, 

performed OWCP-authorized left shoulder arthroscopic surgery, which included rotator cuff 

repair, subacromial decompression, capsulotomy with release of adhesions, and distal clavicle 

resection. In his May 21, 2013 report, Dr. Abrams noted that appellant reported that he 

continued to work his regular job at that time, but had to be very careful not to do things that 

aggravated his shoulder condition. He indicated that he discussed the potential risks of left 

shoulder surgery with appellant and that appellant still expressed a desire to proceed with such 

surgery.3

 

In July 2013, appellant filed a recurrence of disability claim (Form CA-2a) beginning 

May 31, 2013. In a January 29, 2014 decision, OWCP accepted that appellant sustained a 

recurrence of disability effective May 31, 2013 based on the approved left shoulder arthroscopy. 

On May 7, 2014 appellant filed a claim for compensation (Form CA-7) for the period 

March 9 through June 30, 2013. On May 20, 2014 OWCP paid appellant compensation for the 

claimed period beginning March 9, 2013.4

In a June 23, 2014 decision, OWCP rescinded its acceptance of the prior payment of 

wage-loss compensation for the period March 9 to May 30, 2013 because the evidence of record 

did not establish that appellant was disabled from work within the meaning of FECA. It 

referenced a May 21, 2013 report from Dr. Abrams, and noted that this report did not contain a 

medical opinion that appellant had work-related disability for the period March 9 to 

 

 3 The Board notes that, despite his recitation of work activities to Dr. Abrams, appellant did not work for the 

employing establishment after being terminated for cause effective March 8, 2013. 

4

 OWCP also paid compensation for the period July 1, 2013 through May 3, 2014, and it placed appellant on the 

periodic roll effective May 4, 2014. To date, he continues to receive wage-loss compensation for temporary total 

disability. 
3

May 30, 2013. OWCP noted that there was no medical evidence of record showing a disability 

due to the employment injury during the period March 9 to May 30, 2013 and that appellant had 

been fired for cause on March 8, 2013.5

By letter dated June 24, 2014, OWCP notified appellant regarding the type of evidence 

necessary to establish work-related disability beginning March 9, 2013. Appellant was allowed 

30 days to provide additional evidence. 

In a July 25, 2014 decision, OWCP denied appellant’s claim for a work-related 

recurrence of disability beginning March 9, 2013, noting that he had not submitted medical 

evidence establishing a material change/worsening of his accepted work-related conditions 

beginning that date. 

Appellant, through counsel, requested a video conference with a representative of 

OWCP’s Branch of Hearings and Review, but the request was later changed to a request for a 

review of the written record. 

In his March 11, 2013 report, Dr. Abrams noted that he last examined appellant on 

February 18, 2013 at which time he had pain and limited range of motion. He indicated that on 

February 18, 2013 appellant continued to be able to work, but noted that during the interval of 

time between his February 18, 2013 visit and this notification, appellant expressed his belief that 

his symptoms had grown worse, and he was now expressing a need to be absent from work due 

to the continued and worsening symptoms within his left shoulder. Dr. Abrams indicated that he 

only saw appellant on February 18, 2013 and noted that his original work-related paperwork at 

the time suggested that he could return to his work. He advised, however, that appellant had 

notified his office that there had been a change in his level of pain and medical condition and he 

noted, “I am therefore requesting a leave of absence for [appellant].” 

In a January 20, 2015 decision, the hearing representative affirmed OWCP’s June 23 and 

July 25, 2014 decisions. She found that OWCP had met its burden of proof to rescind its 

acceptance of appellant’s claim for work-related disability for the period March 9 to 

May 30, 2013. The hearing representative also found that appellant had not met his burden of 

proof to establish work-related disability beginning March 9, 2013. She noted that the 

documentation upon which the decision was based included information from the employing 

establishment showing that he was terminated for cause on March 8, 2013 and medical evidence 

which established that he was not disabled from work due to his accepted conditions until he 

underwent authorized surgery on May 31, 2013. The hearing representative noted that, in a 

March 11, 2013 report, Dr. Abrams indicated that, when he last examined appellant on 

February 18, 2013, he had determined he was capable of working, but he rendered appellant 

disabled from work on March 11, 2013 solely due to his subjective complaints and his request 

for time off. She indicated that Dr. Abrams reported that he had not examined appellant on 

March 11, 2013. The hearing representative found that appellant had failed to establish a workrelated recurrence of disability beginning March 9, 2013 because the evidence did not support 

 5

 Appellant remained eligible for wage-loss compensation on or after the May 31, 2013 shoulder injury based on 

the previously accepted recurrence of disability. 
4

that the work stoppage during that period was due to a spontaneous change or worsening of his 

accepted conditions. 

Appellant disagreed with OWCP’s January 20, 2015 decision and requested 

reconsideration through his counsel on January 11, 2016. He submitted a January 6, 2016 report 

in which Dr. Abrams noted that he examined appellant on February 28, 2013 and appellant had 

significant discomfort and limitations.6

 He reported that appellant then went on to have left 

shoulder surgery. Dr. Abrams indicated that it was his opinion that appellant was unable to work 

after the evaluation that led to his left shoulder surgery. He noted that appellant advised him that 

his leave of absence was secondary to shoulder pain. Dr. Abrams indicated that appellant 

already had confirmation of his left rotator cuff tear from a magnetic resonance imaging (MRI) 

scan. He noted that appellant had concerns regarding “his ability to be in or out of work based 

on his job.” 

In a September 1, 2016 decision, OWCP denied modification of the January 20, 2015 

decision, finding that OWCP met its burden of proof to rescind its acceptance of appellant’s 

claim for work-related disability for the period March 9 to May 30, 2013 and that appellant 

failed to meet his burden of proof to establish a work-related recurrence of disability beginning 

March 9, 2013. It noted that the January 6, 2016 report of Dr. Abrams did not contain a 

rationalized opinion that appellant sustained a work-related recurrence of disability beginning 

March 9, 2013 based on objective findings, but indicated that the report showed that it was 

appellant who expressed his desire to be off work during the period. 

LEGAL PRECEDENT -- ISSUES 1 & 2 

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 

injury or illness without an intervening injury or new exposure to the work environment that 

caused the illness.7

 Recurrence of disability also means an inability to work that takes place 

when a light-duty assignment made specifically to accommodate an employee’s physical 

limitations due to his work-related injury or illness is withdrawn or when the physical 

requirements of such an assignment are altered so that they exceed his established physical 

limitations.8

 Generally, a withdrawal of a light-duty assignment would constitute a recurrence of 

disability where the evidence established continuing injury-related disability for regular duty.9 A 

 

 6

 The Board notes that there is no evidence in the record that Dr. Abrams examined appellant on 

February 28, 2013. 

7

 20 C.F.R. § 10.5(x). 

8 Id.

9 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013). 
5

recurrence of disability does not apply when a light-duty assignment is withdrawn for reasons of 

misconduct, non-performance of job duties, downsizing, or the existence of a loss of wageearning capacity determination.10 

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.11

Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish that the recurrence is causally related 

to the original injury.12 This burden includes the necessity of furnishing evidence from a 

qualified physician who concludes that the condition is causally related to the employment 

injury.13 The physician’s opinion must be based on a complete and accurate factual and medical 

history and supported by sound medical reasoning.14

Section 8128 of FECA provides that the Secretary of Labor may review an award for or 

against payment of compensation at any time on his own motion or on application.15 The Board 

has upheld OWCP’s authority to reopen a claim at any time on its own motion under section 

8128 of FECA and, where supported by the evidence, set aside or modify a prior decision and 

issue a new decision.16 The Board has noted, however, that the power to annul an award is not 

an arbitrary one and that an award for compensation can only be set aside in the manner provided 

by the compensation statute.17 

Workers’ compensation authorities generally recognize that compensation awards may be 

corrected, in the discretion of the compensation agency and in conformity with statutory 

provision, where there is good cause for so doing, such as mistake or fraud. It is well established 

that, once OWCP accepts a claim, it has the burden of proof to justify the termination or 

modification of compensation benefits. This holds true where, as here, OWCP later decides that 

 10 20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Recurrences, Chapter 2.1500.2b (June 2013). 

11 Theresa L. Andrews, 55 ECAB 719, 722 (2004). 

12 20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 

and 2.1500.6. 

13 See S.S., 59 ECAB 315, 318-19 (2008). 

14 Id. at 319. 

 15 5 U.S.C. § 8128. 

 16 John W. Graves, 52 ECAB 160, 161 (2000). 

 17 See 20 C.F.R. § 10.610. 
6

it erroneously accepted a claim. In establishing that its prior acceptance was erroneous, OWCP 

is required to provide a clear explanation of the rationale for rescission.18

ANALYSIS -- ISSUES 1 & 2 

OWCP accepted appellant’s traumatic injury claim for left shoulder acromioclavicular 

sprain, left shoulder rotator cuff strain, and left shoulder rotator cuff tear, which arose on 

November 7, 2012. Appellant continued to work until March 8, 2013, at which time the 

employing establishment terminated him for cause. On May 31, 2013 he underwent OWCPapproved left shoulder arthroscopic surgery. OWCP accepted that appellant suffered a 

recurrence of disability effective May 31, 2013, and paid wage-loss compensation for temporary 

total disability. OWCP also paid appellant wage-loss compensation for the period March 9 

through May 30, 2013, which it later rescinded. After rescinding the prior payment, OWCP then 

adjudicated the claimed period as a recurrence of disability, and found that appellant failed to 

establish that his work stoppage beginning March 9, 2013 was due to his accepted left shoulder 

condition. Accordingly, OWCP denied wage-loss compensation for the period March 9 through 

May 30, 2013. Appellant continues to receive wage-loss compensation based on his May 31, 

2013 surgery-related recurrence of disability. 

The Board finds that appellant failed to meet his burden of proof to establish a recurrence 

of disability beginning March 9, 2013. 

Appellant asserted that Dr. Abrams’ March 11, 2013 report supported his claim for workrelated recurrence of disability beginning March 9, 2013. The Board notes, however, that this 

report does not support appellant’s recurrence of disability claim. Although Dr. Abrams noted in 

his March 11, 2013 report that he examined appellant on February 18, 2013 at which time he had 

pain and limited range of motion, he also indicated that on February 18, 2013 appellant was able 

to work. In the rest of the March 11, 2013 report, Dr. Abrams discussed appellant’s own belief 

that his left shoulder symptoms had grown worse after February 18, 2013 and that he needed to 

be absent from work. Dr. Abrams found that appellant should be placed on a leave of absence. 

The Board notes, however, that Dr. Abrams did not provide his own rationalized medical 

opinion, based on objective findings on physical examination and diagnostic testing, that 

appellant sustained a recurrence of disability due to the accepted work conditions. Rather, his 

opinion on disability was based on appellant’s expressed wish to be off work. Therefore, 

Dr. Abrams’ report is of limited probative value with respect to appellant’s claim for a workrelated recurrence of disability beginning March 9, 2013. The Board has held that, when a 

physician’s statements regarding an employee’s ability to work consist only of a repetition of the 

employee’s complaints that he or she hurt too much to work, without objective signs of disability 

being shown, the physician has not presented a rationalized medical opinion on the issue of 

disability.19

 

 18 Supra note 16. 

 19 See Naomi N. Chung, Docket No. 05-61 (issued August 12, 2005). In a May 21, 2013 report, Dr. Abrams 

indicated that he discussed the potential risks of left shoulder surgery with appellant and that appellant still 

expressed a desire to proceed with such surgery. However, Dr. Abrams did not provide an opinion in this report that 

appellant had disability, whether work related or otherwise, for any given period. 
7

Appellant also submitted a January 6, 2016 report in which Dr. Abrams noted that he 

examined appellant on February 28, 2013 and that he had significant discomfort and limitations 

at that time. He provided an opinion that appellant was unable to work after this examination.20 

The Board notes, however, that Dr. Abrams did not provide a rationalized medical opinion that 

appellant sustained a recurrence of disability on March 9, 2013 due to a work-related condition. 

Dr. Abrams discussed appellant’s concerns about his left shoulder symptoms and his selfexpressed need to take a leave of absence from work. However, he did not provide his own 

opinion, supported by objective findings, that appellant needed to be off work beginning 

March 9, 2013 due to a work-related condition. This report is limited probative value regarding 

appellant’s claim for a work-related recurrence of disability beginning March 9, 2013 because it 

is based on appellant’s self-expressed wish to be off work rather than being based on objective 

findings.21 

Appellant did not submit any medical evidence containing a clear, rationalized opinion 

that he had a work-related recurrence of disability beginning March 9, 2013. Moreover, he did 

not establish a work-related recurrence of disability beginning March 9, 2013 due to a 

withdrawal of a light-duty position.22 The employing establishment terminated appellant for 

cause effective March 8, 2013, and a recurrence of disability does not apply when a light-duty 

assignment is withdrawn for reasons of misconduct, non-performance of job duties, downsizing, 

or where a loss of wage-earning capacity determination is in place.23

The Board further finds that OWCP met its burden of proof to rescind its acceptance of 

appellant’s claim for work-related disability for the period March 9 to May 30, 2013. 

The Board finds that OWCP provided a clear explanation of its rationale for the 

rescission by explaining that the evidence did not establish that appellant was disabled within the 

meaning of FECA for the period March 9 to May 30, 2013.24 It noted that Dr. Abrams released 

appellant to return to his regular work on a full-time basis without restrictions effective 

February 18, 2013 and that there was no medical evidence of record showing a work-related 

cause for disability during the period March 9 to May 30, 2013. 

For the reasons discussed above, the reports of Dr. Abrams do not contain a rationalized 

medical opinion that appellant had work-related disability for the period March 9 to 

May 30, 2013. OWCP discussed this evidence in its decisions concerning the rescission of its 

 20 The Board notes that there is no evidence of record supporting that Dr. Abrams examined appellant on 

February 28, 2013. Dr. Abrams might have inadvertently listed the date February 28, 2013 rather than the 

established examination date of February 18, 2013. 

21 See Naomi N. Chung, supra note 19. On appeal counsel argues that the reports of Dr. Abrams establish 

appellant’s claim for work-related disability of disability beginning March 9, 2013, but the Board has explained why 

they lack sufficient probative value on causal relationship to establish appellant’s claim. 

22 See supra note 9. 

23 See supra note 10. 

24 Supra note 16. 
8

acceptance of appellant’s claim for work-related disability for the period March 9 to May 30, 

2013 and, therefore, it provided justification for its rescission action.25

CONCLUSION 

The Board finds that appellant failed to meet his burden of proof to establish a recurrence 

of disability beginning March 9, 2013. The Board further finds that OWCP met its burden of 

proof to rescind its acceptance of appellant’s claim for work-related disability for the period 

March 9 to May 30, 2013. 

ORDER 

IT IS HEREBY ORDERED THAT the September 1, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 13, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 25 See id. On appeal counsel argues that appellant was not given a chance to respond to the rescission action, but 

he has not cited any relevant provision explaining what notice requirements were not fulfilled.