United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.T., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Tucson, AZ, Employer

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Docket No. 19-1064

Issued: February 20, 2020

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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On April 15, 2019 appellant, through counsel, filed a timely appeal from a March 12, 2019 

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.3

 

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.

3 The Board notes that, following the March 12, 2019 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id. 
2

ISSUE

The issue is whether appellant has met his burden of proof to establish a recurrence of total 

disability for the period June 13 through July 4, 2018 due to his accepted February 23, 2017 

employment injury.

FACTUAL HISTORY

On February 23, 2017 appellant, then a 44-year-old utility repair operator foreman, filed a 

traumatic injury claim (Form CA-1) alleging that on that date he pulled his left shoulder out of 

joint and strained his back while in the performance of duty. He stopped work on 

February 23, 2017. OWCP accepted the claim for a strain of unspecified muscles, fascia, and 

tendons at the left shoulder and upper arm level.4 It paid appellant compensation for total disability 

for the period April 28 through September 15, 2017. OWCP placed him on the periodic rolls 

effective November 11, 2017. 

On November 16, 2017 Dr. Randall Roy, who specializes in orthopedic sports medicine, 

performed a left shoulder arthroscopic debridement and Bankart repair with capsular shift.

Following surgery, appellant resumed modified employment on March 1, 2018. 

In a report dated June 1, 2018, Dr. Roy found that appellant had an incomplete rotator cuff 

tear or rupture of his left shoulder. He scheduled a July 5, 2018 arthroscopic debridement, 

subacromial decompression, and open biceps tenodesis with a possible rotator cuff repair and 

possible revision of a Bankart repair. Dr. Roy diagnosed left shoulder bicipital tendinitis, a 

degenerative tear of the left glenoid labrum, and left shoulder joint instability. He opined that 

appellant “could continue working limited duty.” In a work status note of even date, Dr. Roy 

indicated that he would “not be returning to work until after the surgery” which was scheduled for 

July 5, 2018.

On June 25, 2018 appellant filed a claim for wage-loss compensation (Form CA-7) for the 

period June 13 to 22, 2018. On July 6, 2018 he filed a Form CA-7 requesting wage-loss 

compensation for the period June 22 to July 6, 2018.

In a development letter dated July 9, 2018, OWCP advised appellant that the evidence he 

had submitted was insufficient to establish that he was disabled from his modified employment 

beginning June 13, 2018. It notified him of the evidence necessary to establish his claim. OWCP 

afforded appellant 30 days to submit additional evidence. 

Thereafter, appellant submitted a June 20, 2018 report from Dr. Roy. Dr. Roy repeated his 

previous diagnosis of left shoulder rotator cuff tear or rupture, left shoulder bicipital tendinitis, a 

degenerative tear of the left glenoid labrum, and instability of the left shoulder joint. He advised 

that appellant was unable to work due to his shoulder and arm pain and could not lift anything with 

his left upper extremity to prevent his condition from worsening.

 

4 Appellant additionally alleged that on March 13, 2017 he reinjured his shoulder. OWCP assigned File No. 

xxxxxx491. 
3

On June 29, 2018 Dr. Todd Fellars, a Board-certified orthopedic surgeon serving as a 

district medical adviser (DMA), reviewed the evidence and noted that a recent magnetic resonance 

arthrogram showed a 50 to 60 percent rotator cuff tear. He advised that the left shoulder surgery 

proposed by Dr. Roy was in fact medically necessary and causally related to appellant’s accepted 

employment injury, noting that he had “evidence of ongoing pain and functional disturbance.”

Dr. Fellars reviewed Dr. Roy’s June 1, 2018 report and concurred with his findings.

On July 5, 2018 appellant underwent an arthroscopic debridement, subacromial 

decompression, and revision of an anterior labral tear. OWCP paid him wage-loss compensation 

for total disability beginning July 5, 2018.

On July 26, 2018 Dr. Roy advised that appellant had been off work from June 13, 2018 

until the surgery “due to bicipital tendinitis of his left shoulder, a degenerative tear of his left 

glenoid labrum, instability of the left shoulder joint, and an incomplete rotator cuff tear or rupture 

of the left shoulder....”

By decision dated August 28, 2018, OWCP denied appellant’s claim for wage-loss 

compensation for the period June 13 through July 4, 2018.

On September 5, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review.

A telephonic hearing was held on February 8, 2019. Appellant testified that he had 

performed modified employment subsequent to his first shoulder surgery. His physician advised 

him to take off work before his second surgery to prevent further damage to his shoulder, which 

kept “slipping out of socket.”

In a report dated February 15, 2019, Dr. Roy noted:

“[Appellant] missed work from June 13 through July 4, 2018 prior to his surgical 

procedure because he had persistent and recurrent left shoulder instability which

was documented by his physical therapist and; therefore, I did not want him to 

further injure his shoulder prior to his scheduled revision procedures which was 

July 5, 2018. This restriction was substantiated during his revision procedure in 

which there was a torn suture and he had to have a revision anterior labral repair 

along with an open biceps tenodesis procedure.”

By decision dated March 12, 2019, OWCP’s hearing representative affirmed the 

August 28, 2018 decision. 

LEGAL PRECEDENT

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 

compensable injury or illness and without an intervening injury or new exposure in the work 

environment.5 This term also means an inability to work because a light-duty assignment made 

specifically to accommodate an employee’s physical limitations, and which is necessary because 

 

5 20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).
4

of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the 

employee’s physical limitations.6 A recurrence does not occur when such withdrawal occurs for 

reasons of misconduct, nonperformance of job duties, or a reduction-in-force.7

OWCP’s procedures provide that a recurrence of disability includes a work stoppage 

caused by a spontaneous material change in the medical condition demonstrated by objective 

findings. That change must result from a previous injury or occupational illness rather than an 

intervening injury or new exposure to factors causing the original illness. It does not include a 

condition that results from a new injury, even if it involves the same part of the body previously 

injured.8

An employee who claims a recurrence of disability due to an accepted employment-related

injury has the burden of proof to establish by the weight of the substantial, reliable, and probative 

evidence that the disability for which he or she claims compensation is causally related to the 

accepted injury. This burden of proof requires that a claimant furnish medical evidence from a 

physician who, on the basis of a complete and accurate factual and medical history, concludes that, 

for each period of disability claimed, the disabling condition is causally related to the employment 

injury, and supports that conclusion with medical reasoning.9 Where no such rationale is present, 

the medical evidence is of diminished probative value.10

ANALYSIS

The Board finds that the case is not in posture for decision.

Appellant has not alleged that the employing establishment withdrew the limited-duty 

position he performed subsequent to his November 16, 2017 left shoulder debridement and 

Bankart repair. Instead, he maintained that his condition had worsened such that he was unable to 

perform the functions of his limited-duty position. Appellant must, therefore, provide medical 

evidence establishing that he was disabled due to a worsening of his accepted employment-related 

condition.11

In support of his claim for employment-related disability from June 13 through July 4, 

2018, appellant submitted reports from Dr. Roy. On June 1, 2018 Dr. Roy diagnosed left shoulder 

bicipital tendinitis, a degenerative tear of the left glenoid labrum, and left shoulder joint instability. 

He found that appellant had a partial left rotator cuff tear or rupture and scheduled shoulder surgery 

for July 5, 2018. Dr. Roy indicated that he could perform modified employment. However, in a 

 

6

Id.; see also M.G., Docket No. 19-0610 (issued September 23, 2019).

7

Id.

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket 

No. 18-0334 (issued December 4, 2018).

9

J.D., Docket No. 18-0616 (issued January 11, 2019).

10 G.G., Docket No. 18-1788 (issued March 26, 2019).

11 M.S., Docket No. 19-0609 (issued September 23, 2019).
5

work status note of even date, he opined that appellant would not return to work until after the 

scheduled July 5, 2018 surgery. 

In a report dated June 20, 2018, Dr. Roy diagnosed a left shoulder rotator cuff tear or 

rupture, left shoulder bicipital tendinitis, a degenerative tear of the left glenoid labrum, and 

instability of the left shoulder joint. He found that appellant could not work due to pain in his 

shoulder and arm. Dr. Roy further opined that he should avoid lifting with his left upper extremity 

to prevent his condition worsening. 

On July 26, 2018 Dr. Roy opined that appellant was unable to work from June 13, 2018 

until after his surgery due to the diagnosed conditions of left shoulder bicipital tendinitis, a left 

glenoid labrum tear, left shoulder joint instability, and a partial left rotator cuff tear. 

In a February 15, 2019 report, Dr. Roy advised that appellant was off work from June 13 

through July 4, 2018 due to recurrent instability in his left shoulder. He related that he did not 

want him to cause further injury to his left shoulder before his July 5, 2018 surgery, noting that the

surgery had confirmed that he had a torn suture. 

The Board finds that Dr. Roy’s reports contains a history of injury, firm diagnosis, and an 

opinion that appellant was unable to work from June 13 through July 4, 2018 due to his need for 

additional surgery as a result of his accepted employment injury. Dr. Fellars, the DMA, reviewed 

his June 1, 2018 report and concurred with his findings and indicated there was evidence of 

ongoing pain and functional disturbance. However, Dr. Roy opined that appellant was disabled 

from work both due to his condition and his need to avoid his condition worsening pending 

surgery. To the extent that he is asserting that continuing to work might cause further injury, the 

Board has held that fear of future injury is not compensable.12 Dr. Roy’s reports, while raising an 

uncontroverted inference of causal relationship between his accepted employment condition and 

the claimed period of disability, require clarification regarding whether appellant’s accepted 

condition or a fear of future injury disabled him from employment during the period in question.

13

 

The Board, therefore, will remand the case for OWCP to obtain a supplemental report from

Dr. Roy clarifying whether appellant’s accepted condition prevented him from performing his 

limited-duty position for the period June 13 through July 4, 2018. After this and any further 

development deemed necessary, it should issue a de novo decision.

CONCLUSION

The Board finds that the case is not in posture for decision.

 

12 Appellant’s fear of future injury is not compensable. J.O., Docket No. 19-1047 (issued November 13, 2019); 

Paul A. Clarke, 43 ECAB 940 (1992). Further, the opinion of a physician that a claimant is unable to work due to a 

fear of future injury is also not compensable. P.D., Docket No. 18-1461 (issued July 2, 2019). There must be medical 

evidence showing that a claimant is currently disabled for work due to his or her employment-related condition. O.L., 

Docket No. 15-1541 (issued January 7, 2016); William A. Kandel, 43 ECAB 1011 (1992).

13 J.D., Docket No. 17-1520 (issued February 20, 2018).
6

ORDER

IT IS HEREBY ORDERED THAT the March 12, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: February 20, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board