United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

CLEMENT J. ZABLOCKI MEDICAL CENTER, 

Milwaukee, WI, Employer

__________________________________________

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Docket No. 17-1279

Issued: April 18, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 May 23, 2017 appellant, through counsel, filed a timely appeal from an April 26, 2017

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 the 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 has met her burden of proof to establish a recurrence 

of total disability on November 30, 2015 causally related to her June 9, 2011 employment injury; 

and (2) whether OWCP properly denied appellant’s request for authorization of right shoulder 

surgery.

FACTUAL HISTORY

On June 29, 2011 appellant, then a 42-year-old sales clerk, filed a traumatic injury claim 

(Form CA-1) alleging that she sustained right upper back, neck, and shoulder injuries on June 9, 

2011 when a 52-inch television fell on her back while she was retrieving a 32-inch television for 

a customer. She stopped work on June 23, 2011. OWCP accepted appellant’s claim for right 

shoulder tendinopathy on November 30, 2011. It authorized wage-loss compensation benefits on 

January 10, 2012 for disability beginning August 10, 2011. Appellant returned to work with 

restrictions on August 15, 2011 and stopped work on August 29, 2011. On January 10, 2012 

OWCP authorized compensation for disability beginning August 10, 2011. Appellant returned to 

light-duty work on February 10, 2012. On June 20, 2014 she accepted a sales clerk position at the 

employing establishment. Appellant stopped work on August 10, 2014 and OWCP authorized 

compensation benefits.

On August 11, 2014 appellant underwent a right shoulder magnetic resonance imaging 

(MRI) scan which demonstrated partial tears of the supraspinatus and infraspinatus tendons and a 

possible focal full-thickness tear. A second MRI scan on August 26, 2011 demonstrated mild 

subscapularis tendinopathy. Appellant was assigned to the position of food service worker on 

September 29, 2014. She underwent an authorized right shoulder arthroscopy with rotator cuff 

repair on December 2, 2014.

Appellant filed a notice of recurrence (Form CA-2a) on December 26, 2014 alleging that 

on April 24, 2014 she developed a recurrence due to the June 9, 2011 work injury. She asserted 

that she was not provided light-duty work. Rather appellant continued in her date-of-injury job.

She returned to modified-duty work on December 29, 2014. Appellant filed a claim for 

compensation for intermittent disability and part-time leave without pay (LWOP) beginning 

January 25, 2015, which OWCP authorized. OWCP accepted her claim for a recurrence of 

disability, effective August 1, 2014, by decision dated February 20, 2015. On February 24, 2015 

it notified appellant that her accepted conditions included calcifying tendinitis of the right 

shoulder, right cervicalgia, and right rotator cuff tear. Appellant continued to perform part-time 

modified-duty work, with wage-loss compensation paid through May 2015 when she returned to 

full-time light-duty work.

In a report dated May 13, 2015, appellant’s attending physician, Dr. William Pennington, 

an orthopedic surgeon, noted that appellant continued to report right shoulder pain and stiffness.

On examination he found intact rotator cuff strength, no muscle atrophy, and minimal tenderness 

over the anterior superior shoulder region. Dr. Pennington recommended physical therapy for 

aggressive posterior capsular stretching and noted that, without improvement, appellant might 

require either repeated imaging or a posterior capsule release procedure. On June 12, 2015 he

again noted appellant’s issues with stiffness and pain. Dr. Pennington recommended an additional 
3

MRI scan and determined that appellant should continue light duty. Appellant underwent a right 

shoulder MRI scan and arthrogram on July 8, 2015 which demonstrated an intact double bundle 

tendon to osseous rotator cuff repair as well as a small focal partial less than 50 percent bursal 

sided surface tear measuring seven millimeters involving the junction of the supra and 

infraspinatus tendons. 

On July 24, 2015 Dr. Mary Jo Mccoy, a Board-certified family practitioner, noted that 

appellant missed work on July 23 and 24, 2015 due to increased right shoulder pain due to her 

work injury. She related that appellant could return to restricted duty on July 27, 2015.

In a note dated July 28, 2015, Dr. Dean W. Ziegler, an orthopedic surgeon, recommended

a manipulation under anesthesia which appellant declined. He read appellant’s July 8, 2015 right 

shoulder MRI scan as demonstrating a small amount of fluid in the sub deltoid bursa with no 

obvious tearing of the cuff. Dr. Ziegler diagnosed right shoulder postsurgical stiffness with 

posterior inferior capsule tightness.

Appellant filed a claim for compensation (Form CA-7) LWOP for the period July 23 

through 28, 2015. On September 1, 2015 OWCP requested additional evidence to support the

claim for 19.25 hours from July 23 through 28, 2015. It noted that appellant had been released to 

light-duty work, which was available for this period. OWCP afforded appellant 30 days to submit 

additional medical evidence in support of her claim.

Dr. Zeigler completed a note on August 27, 2015 and reported that appellant had continued 

difficulty, pain, and irritability in her right shoulder. He noted that appellant had reached a plateau 

and was experiencing difficulty with using the arm away from her body and overhead. Dr. Ziegler

noted loss of range of motion in the right shoulder and weakness and irritability with supraspinatus 

testing. He opined that appellant would be a candidate for surgery including arthroscopy and 

capsular release and a possible rotator cuff repair.

Appellant requested to change physicians on September 14, 2015. She submitted a note 

from Dr. Ziegler dated October 29, 2015 diagnosing rotator cuff repair with postsurgical stiffness 

and dysfunction. Dr. Ziegler found that appellant’s right shoulder was irritable and painful with 

supraspinatus testing. He provided restrictions of no overhead work and a 10-pound weight limit. 

On November 24, 2015 OWCP authorized her change of physicians to Dr. Ziegler.

In a note dated December 1, 2015, Dr. Mccoy found appellant experienced an acute 

exacerbation of her chronic right shoulder pain and was totally disabled. She noted, “As there is 

no safe light duty that she is able to participate in at work, she should be placed on medical leave 

until further evaluated by the orthopedist who will be determining what surgical and medical care 

needs to be given next.”

By decision dated December 3, 2015, OWCP denied appellant’s claim for compensation 

for the period July 23 through 24, 2015. Counsel requested an oral hearing from OWCP’s Branch 

of Hearings and Review regarding the December 3, 2015 decision. An oral hearing was held on 

August 10, 2016. In an October 4, 2016 decision, a hearing representative reversed the 

December 3, 2015 decision finding that Dr. Mccoy’s December 1, 2015 report was sufficient to 
4

establish appellant’s total disability on July 23 and 24, 2015. On December 3, 2015 it paid for 

3.25 hours of wage-loss compensation on July 28, 2015.

Dr. Mccoy completed an additional note date December 3, 2015, received by OWCP on 

December 16, 2015. He reported that appellant could not safely lift objects greater than two 

pounds beginning July 24, 2015, and had pain and decreased range of motion in the right shoulder. 

She noted that appellant missed work on July 23, 24, and 28, 2015 due to her right shoulder 

condition, as there was no light-duty work which did not involve lifting or use of the right arm.

On December 3, 2015 Dr. Ziegler found that appellant had weakness in the supraspinatus.

He examined appellant on December 8, 2015 and noted her continued symptoms including 

paresthesias down the hand and pain down the arm. Dr. Ziegler reviewed appellant’s MRI scan 

and found evidence of damage to the supraspinatus tendon rotator cuff consistent with the physical 

examination. He recommended arthroscopy and then rotator cuff repair as well as capsular release 

to the posterior capsule. Dr. Ziegler found that appellant was totally disabled from work, pending 

her repeat right shoulder surgery. He requested authorization for a second right shoulder surgery 

on December 9, 2015.

On December 18, 2015 appellant filed a claim for compensation (Form CA-7) requesting 

wage-loss compensation for the period November 30 through December 4, 2015.

In a December 22, 2015 letter, OWCP noted that appellant’s Form CA-7 indicated a 

possibility of a recurrence. It requested additional factual and medical evidence in support of 

appellant’s work stoppage and afforded her 30 days for a response.

On December 28, 2015 OWCP referred appellant for a second opinion evaluation with

Dr. Mysore S. Shivaram, an orthopedic surgeon.

Appellant responded to OWCP’s request for factual information on January 5, 2016 and 

noted that when she returned to work in December 2014, she worked in the food service 

department where there was no light-duty work available. She also alleged that she returned to 

work too soon and that, along with physical therapy, this was a strain. Appellant listed her job 

duties including handling heavy pans, trays, salad dressing bottles, carts, and cans of food. She 

also noted that she was required to wipe wide areas which exceeded her pushing restriction.

Dr. Ziegler completed a report on January 5, 2016 and again recommended a second right 

shoulder surgery. He reported decreased motion and marked decreased function of her right 

shoulder. Dr. Ziegler opined that there was no light-duty work available at the employing 

establishment and that appellant could not perform full-duty work. Consequently he found that 

appellant was totally disabled. On January 13, 2015 Dr. Ziegler completed a work capacity 

evaluation (OWCP-5c) and found that appellant could not use her right arm.

On January 20, 2016 appellant filed a notice of recurrence (Form CA-2a) and alleged that 

her recurrence occurred as she was expected to perform duties that were repetitive on a daily basis 

including lifting and pulling with both arms. The employing establishment advised that 

appropriate light-duty work was provided.
5

The employing establishment offered appellant a light-duty position with no use of her 

right arm on January 3, 2016. Appellant’s duties were operating the cash register in the cafeteria, 

greeting customers, and explaining about the catalog service. The physical requirements were 

sedentary with walking as needed.

Dr. Ziegler completed a second work restriction evaluation on January 21, 2016 and opined 

that appellant had significant right shoulder dysfunction that required surgery. He indicated that 

appellant could not reach, reach above the shoulder, bend, stoop, push, pull, or lift. Dr. Ziegler

also restricted appellant’s repetitive movements of her wrists and elbows to one hour each. 

Dr. Shivaram completed a report on February 9, 2016 and reviewed the statement of 

accepted facts (SOAF). He noted appellant’s history of injury, her medical history and her 2014 

surgery. Dr. Shivaram reviewed appellant’s July 8, 2015 MRI scan. On examination he found no 

evidence of swelling, atrophy, or tenderness in the right shoulder. Dr. Shivaram found mild 

limitation of range of motion, but an overall satisfactory right shoulder examination. He diagnosed 

right shoulder tendinitis, cervicalgia, and right shoulder rotator cuff tear repaired. Dr. Shivaram 

opined that appellant’s rotator cuff repair was satisfactory based on the follow up MRI scan. He 

concluded that appellant was capable of returning to regular duty without restrictions on 

February 1, 2016. Dr. Shivaram noted that appellant had mild right shoulder range of motion 

limitation which should be treated with a continued home exercise program.

In a note dated February 11, 2016, Dr. Ziegler opined that appellant had a partial thickness 

tear of the rotator cuff which required surgery. He opined that appellant could work as a greeter, 

but should not work as a cash register operator and should not be required to wipe tables even with 

her left hand. On March 17, 2016 Dr. Ziegler found that appellant had difficulty clearing the 

greater tuberosity under the acromion and pain with her arm away from her body and pain with 

supraspinatus testing. He recommended surgery.

OWCP referred appellant for an impartial medical examination on March 23, 2016 with

Dr. David S. Haskell, a Board-certified orthopedic surgeon, to resolve the conflict of medical 

opinion regarding appellant’s work restrictions and need for further medical treatment.

Dr. Ziegler performed a repeat right shoulder arthroscopy on April 13, 2016. He found a 

partial-thickness tear involving the deep surface of the supraspinatus tendon in an area about 1.2 

centimeters (cm) in width involving 60 percent of the thickness of the tendon as well as some 

superficial tearing on the posterior aspect of the supraspinatus about 1.2 cm in width and about 0.8 

cm in thickness. Dr. Ziegler opined these were chronic tears, traumatic from a work-related injury 

with overuse.

Dr. Haskell completed a report on April 27, 2016 and reviewed the SOAF. He described 

appellant’s initial employment injury and her accepted conditions of right shoulder tendinitis, 

cervicalgia, and rotator cuff tear. Dr. Haskell reviewed appellant’s diagnostic testing and found 

that her July 8, 2015 MRI scan demonstrated an intact double bundle tendon to osseous rotator 

cuff repair. He also noted that appellant underwent an additional rotator cuff repair two weeks 

prior to his examination. Dr. Haskell did not have Dr. Ziegler’s operative report for review. He 

opined that at the time of her original injury on June 9, 2011 appellant did not sustain an injury to 

her rotator cuff, but manifested evidence of a preexisting tendinopathy and subsequent partial tear 
6

of the rotator cuff. Dr. Haskell noted that OWCP accepted right rotator cuff tear and that the 

subsequent treatment and restrictions for this condition were also related to the accepted injury. 

He found that, following the December 2, 2014 rotator cuff repair, appellant could return to 

employment as a food service worker approximately six weeks postoperatively with restrictions 

of no overhead work for an additional six weeks. Dr. Haskell determined that appellant currently 

had restrictions due to her second right shoulder surgery.

On May 23, 2016 OWCP requested a supplemental report from Dr. Haskell addressing 

whether the April 13, 2016 right shoulder surgery was necessary. Dr. Haskell responded on 

May 25, 2016 and reviewed the July 8, 2015 MRI scan. He noted, “with the benefit of an 

additional MRI scan or arthrogram on February 11, 2016,” that Dr. Ziegler found a partialthickness tear of the rotator cuff. Dr. Haskell reviewed Dr. Ziegler’s April 13, 2016 operative 

report and noted his findings of a partial-thickness tear of the supraspinatus tendon involving 60 

percent of the thickness of the tendon. He opined that, based on the July 8, 2015 MRI scan, he 

would not have recommended any additional surgery, but would proceed with nonoperative 

manipulation of the shoulder to relieve adhesive capsulitis. Dr. Haskell also noted, “In our 

experience, which is supported by the literature, partial tears of the rotator cuff measuring less than 

50 percent of the cuff generally should be treated nonoperatively.”

By decision dated June 16, 2016, OWCP denied appellant’s claim for recurrence finding 

that she had not established a material worsening of her accepted work-related conditions. Counsel 

requested an oral hearing on June 23, 2016.

By decision dated July 21, 2016, OWCP denied authorization for appellant’s right rotator 

cuff repair surgery. It determined that the weight of the medical opinion evidence rested with

Dr. Haskell and he found the additional surgery was not medically necessary. On August 1, 2016 

counsel requested an oral hearing.3

A hearing was held before an OWCP hearing representative on February 14, 2017 

regarding the June 16 and July 21, 2016 decisions of OWCP. Appellant testified that she resigned 

from her position with the employing establishment on November 8, 2016. She also asserted that,

at the time of her initial injury, several televisions fell on her in a domino effect.

By decision dated April 26, 2017, OWCP’s hearing representative affirmed OWCP’s 

June 16 and July 21, 2016 decisions, finding that appellant failed to meet her burden of proof to 

establish a recurrence of disability on November 30, 2015. She further found that OWCP properly 

denied authorization for right rotator cuff repair surgery. 

LEGAL PRECEDENT -- ISSUE 1

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 had resulted from a previous 

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

the illness. This term 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 or her work-

 

3 Appellant alleged an additional work-related right shoulder traumatic injury on August 16, 2016.
7

related injury or illness is withdrawn or when the physical requirements of such an assignment are 

altered so that they exceed his or her established physical limitations.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 of record 

establish that she can perform the light-duty position, the employee has the burden of proof to 

establish by the weight of the reliable, probative, and substantial evidence a recurrence of total 

disability and 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 requirements.5 This burden includes the necessity of 

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 A medical report is of limited 

probative value on a given medical question if it is unsupported by medical rationale.7 Medical 

rationale includes a physician’s detailed opinion on the issue of whether there is a causal 

relationship between the claimant’s diagnosed condition and the implicated employment activity. 

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

claim, 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 specific employment 

activity or factors identified by the claimant.8

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish a recurrence of 

total disability on or after November 30, 2015 causally related to her June 9, 2011 employment 

injury.

In support of her claim for a recurrence of total disability beginning November 30, 2015, 

appellant failed to sufficiently allege a change in the nature and extent of her light-duty job 

requirements and the record indicates that the employing establishment provided appropriate light 

duty. Instead, appellant has attempted to establish a change in the nature and extent of her injuryrelated condition rendering her totally disabled beginning November 30, 2015. In support of her 

claim, appellant submitted a note from Dr. Mccoy dated December 1, 2015 which reported that 

appellant experienced an acute exacerbation of her chronic right shoulder pain on 

November 30, 2015. She opined that there was no safe light-duty work that appellant could 

perform and that she required medical leave. This report does not provide the necessary medical 

rationale sufficient to explain how appellant’s injury-related condition had changed such that she 

could no longer perform her light-duty job requirements. Rather, Dr. Mccoy merely diagnosed 

 

4 20 C.F.R. § 10.5(x).

5 Terry R. Hedman, 38 ECAB 222 (1986); M.S., Docket No. 16-1907 (issued August 19, 2017).

6 See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

7 T.F., 58 ECAB 128 (2006).

8 A.D., 58 ECAB 149 (2006).
8

pain. The Board has held that the mere diagnosis of “pain” does not constitute the basis for 

payment of compensation.9 Without further diagnosis and medical reasoning this report is 

insufficient to meet appellant’s burden of establishing a recurrence of total disability on or after 

November 30, 2015.

Dr. Ziegler found that appellant was totally disabled from work beginning

December 3, 2015. He again found that appellant demonstrated weakness in the supraspinatus. 

Dr. Ziegler examined appellant on December 8, 2015 and reported continued right shoulder 

symptoms including loss of range of motion and paresthesias down the hand. 

OWCP referred appellant for a second opinion evaluation with Dr. Shivaram. 

Dr. Shivaram opined that appellant’s rotator cuff repair was satisfactory and concluded that 

appellant was capable of returning to regular-duty work without restrictions at the time of his 

February 1, 2016 examination.

The Board finds that OWCP properly found a conflict of medical evidence regarding 

appellant’s ongoing work restrictions and need for further medical treatment between 

Drs. Shivaram and Ziegler, and referred appellant to Dr. Haskell, to resolve those conflicts. 

Dr. Haskell completed a report on April 27, 2016 and reviewed the SOAF. He described 

appellant’s initial employment injury and her accepted conditions of right shoulder tendinitis, 

cervicalgia, and rotator cuff tear. Dr. Haskell reviewed appellant’s diagnostic testing and found 

that her July 8, 2015 MRI scan demonstrated an intact double bundle tendon to osseous rotator 

cuff repair. He also noted that appellant underwent an additional rotator cuff repair two weeks 

prior to his examination. On the issue of appellant’s disability, Dr. Haskell found that following 

the December 2, 2014 rotator cuff repair appellant could have returned to employment as a food 

service worker approximately six weeks postoperatively with restrictions of no overhead work for 

an additional six weeks. As the report of Dr. Haskell is based on a proper factual and medical 

history and provides a rationalized basis for his medical conclusion, his report is entitled to the 

special weight of the evidence. 

LEGAL PRECEDENT -- ISSUE 2

Section 8103 of FECA provides that the United States shall furnish to an employee who is 

injured while in the performance of duty, the services, appliances, and supplies prescribed or 

recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce 

the degree, or the period of disability, or aid in lessening the amount of monthly compensation.10 

While OWCP is obligated to pay for treatment of employment-related conditions, the employee 

has the burden of proof to establish that the expenditure is incurred for treatment of the effects of 

an employment-related injury or condition.11

 

9 Robert Broome, 55 ECAB 339 (2004).

10 5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999); P.F., Docket No. 16-0693 (issued 

October 24, 2016).

11 Kennett O. Collins, Jr., 55 ECAB 648 (2004).
9

In interpreting this section of FECA, the Board has recognized that OWCP has broad 

discretion in approving services provided under section 8103, with the only limitation on OWCP’s 

authority being that of reasonableness.12 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 established facts. It is not enough to merely show that 

the evidence could be construed so as to produce a contrary factual conclusion.13 To be entitled 

to reimbursement of medical expenses, a claimant has the burden of proof to establish that the 

expenditures were incurred for treatment of the effects of an employment-related injury or 

condition. Proof of causal relationship in a case such as this must include supporting rationalized 

medical evidence.14 In order for a surgical procedure to be authorized, a claimant must submit 

evidence to show that the requested medical treatment is for a condition causally related to an 

employment injury and that it is medically warranted. Both of these criteria must be met in order 

for OWCP to authorize payment.15

When there are opposing reports of virtually equal weight and rationale, the case will be 

referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides 

that, if there is disagreement between the physician making the examination for the United States 

and the physician of the employee, the Secretary shall appoint a third physician who shall make 

an examination and resolve the conflict of medical evidence.16 This is called a referee examination 

and OWCP will select a physician who is qualified in the appropriate specialty and who has no 

prior connection with the case.17

In situations where there are opposing medical reports of virtually equal weight and 

rationale, and the case is referred to an impartial medical specialist for the purpose of resolving 

the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper 

factual background, must be given special weight.18

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for authorization of right 

shoulder surgery.

OWCP accepted that appellant sustained employment-related calcifying tendinitis of the 

right shoulder, right cervicalgia, and right rotator cuff tear. It authorized arthroscopic surgery on 

November 20, 2014 and appellant underwent a right shoulder arthroscopy with rotator cuff repair 

 

12 See D.K., 59 ECAB 141 (2007).

13 Minnie B. Lewis, 53 ECAB 606 (2002).

14 M.B., 58 ECAB 588 (2007).

15 R.C., 58 ECAB 238 (2006).

16 Supra note 2; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).

17 Supra note 15.

18 Nathan L. Harrell, 41 ECAB 401, 407 (1990).
10

on December 2, 2014. On December 8, 2015 Dr. Ziegler requested authorization for repeat right 

shoulder arthroscopy. OWCP referred appellant for a second opinion evaluation with

Dr. Shivaram, who opined that appellant’s rotator cuff repair was satisfactory based on the followup MRI scan. The Board finds that OWCP properly determined that a conflict in medical opinion 

existed between appellant’s attending physician, Dr. Ziegler, who recommended a repeat right 

shoulder arthroscopy and Dr. Shivaram, an OWCP physician, who opined that appellant had a 

satisfactory result from her initial surgery. OWCP properly referred appellant to Dr. Haskell for 

an impartial medical opinion. 

The Board finds that the weight of the medical evidence rests with the opinion of

Dr. Haskell, who examined appellant, reviewed the medical evidence, and found that the repeat 

right shoulder arthroscopy was not medically warranted. As noted, for a surgical procedure to be 

authorized, a claimant must show that the surgery is for a condition causally related to a work 

injury and that it is medically warranted. 

In his April 27 and May 25, 2016 reports, Dr. Haskell reviewed the SOAFs, appellant’s 

diagnostic studies and reported findings. He also reviewed Dr. Ziegler’s April 13, 2016 operative 

report and noted those findings of a partial thickness tear of the supraspinatus tendon involving 60 

percent of the thickness of the tendon. Dr. Haskell determined that based on the July 8, 2015 MRI 

scan he would not have recommended any additional surgery, but would have proceed with 

nonoperative manipulation of the shoulder to relieve adhesive capsulitis. He opined that partial 

tears of the rotator cuff measuring less than 50 percent of the cuff should be treated without 

surgery. Dr. Haskell concluded that, based on his examination and findings, the second right 

shoulder arthroscopy was not warranted as a result of the work injury. 

In situations where the case is referred to an impartial medical specialist for the purpose of 

resolving a medical conflict, the opinion of such specialist, if sufficiently well rationalized and 

based upon a proper factual background, must be given special weight.19 The Board finds that

Dr. Haskell provided a well-rationalized opinion based on a complete background, his review of 

the accepted facts, the medical record, and his examination findings. Dr. Haskell’s opinion that 

the right shoulder arthroscopy was not medically warranted is entitled to special weight and 

represents the weight of the evidence.

The only limitation on OWCP’s authority is approving or disapproving service under 

FECA is one of reasonableness.20 In the instant case, appellant requested surgery. OWCP obtained 

an impartial medical examination through Dr. Haskell who clearly found the surgery not 

warranted. It, therefore, had sufficient evidence upon which it made its decision to deny surgery 

and did not abuse its discretion. 

 

19 5 U.S.C. § 8123(a); Guiseppe Aversa, 55 ECAB 164 (2003); P.F., supra note 10.

20 Daniel J. Perea, 42 ECAB 214, 221 (1990); P.F., supra note 10.
11

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 appellant has not met her burden of proof to establish a recurrence of total

disability on November 30, 2015 causally related to her June 9, 2011 employment injury. The 

Board further finds that OWCP properly denied appellant’s request for authorization of shoulder 

surgery.

ORDER

IT IS HEREBY ORDERED THAT the April 26, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 18, 2018

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