United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.B., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. SECRET SERVICE, Laurel, MD, Employer

__________________________________________

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Docket No. 19-1621

Issued: November 5, 2020

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 31, 2019 appellant, through counsel, filed a timely appeal from an April 17, 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 April 17, 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 

disability commencing September 11, 2017 causally related to the accepted August 29, 2016 

employment injury.

FACTUAL HISTORY

On August 30, 2016 appellant, then a 39-year-old criminal investigator, filed a traumatic 

injury claim (Form CA-1) alleging that on August 29, 2016 he injured his left shoulder when he 

tossed a weighted medicine ball up against the wall above his head during fitness training and it

landed on his left arm and pushed his shoulder down with an audible pop and a snapping feeling

while in the performance of duty. Following the claimed employment injury, he returned to fulltime light-duty work. On March 21, 2017 OWCP accepted appellant’s claim for sprain of the left 

shoulder joint, and superior labrum anterior and posterior (SLAP) tear of the left shoulder.

Appellant stopped work again on September 11, 2017, the date that Dr. James Paci, a Boardcertified orthopedic surgeon, performed authorized left shoulder arthroscopic biceps tenodesis, 

subacromial decompression, acromioplasty, distal clavicle excision, and labral debridement. 

Appellant filed claims for compensation (Form CA-7) for leave without pay (LWOP) used 

for disability from work during the period September 11, 2017 through January 20, 2018.

In an October 4, 2017 development letter, OWCP noted that Dr. Paci additionally 

diagnosed left shoulder biceps tenosynovitis secondary to the SLAP tear and AC joint arthritis 

secondary to AC sprain. It informed appellant that Dr. Paci had not provided medical rationale 

explaining how the additional diagnosed conditions were caused by the August 29, 2016 

employment incident. OWCP requested that he provide additional medical evidence to establish 

disability from work during the period claimed. It afforded appellant 30 days to respond.

On October 24, 2017 Dr. Paci opined that appellant was totally disabled from work 

commencing October 24, 2017. In a November 10, 2017 report, he noted appellant’s August 29, 

2016 employment injury and diagnosis of superior glenoid labrum lesion of the left shoulder and 

sprain of the left shoulder joint. Dr. Paci opined that appellant’s condition had become 

progressively worse, developing left shoulder biceps tenosynovitis secondary to the SLAP tear and 

AC joint osteoarthritis due to more than one year of delayed treatment. He concluded, “The 

delayed responses and additional diagnoses presented, and indication of the treatment performed 

on September 11, 2017 are all directly attributed to the injury via direct causation.”

By decision dated December 13, 2017, OWCP denied appellant’s claims for compensation 

for the period September 11, 2017 and continuing as the medical evidence of record was 

insufficient to establish a causal relationship between the claimed disability and the accepted 

August 29, 2016 employment injury.

On January 16, 2018 Dr. Paci examined appellant and found continued improvement 

following his September 11, 2017 left shoulder surgery. He released appellant to return to work

on January 22, 2018.
3

In a February 27, 2018 treatment note, Dr. Paci indicated that appellant had full range of 

motion with negative provocative testing. He found that appellant could return to work in four 

weeks and recommended additional physical therapy. 

On August 13, 2018 appellant, through counsel, requested reconsideration of the 

December 13, 2017 decision.

OWCP received additional evidence. In an April 7, 2018 report, Dr. Paci described 

appellant’s physical findings and diagnostic studies. He diagnosed left shoulder biceps 

tenosynovitis, SLAP tear, and AC joint arthritis secondary to appellant’s August 29, 2016 

employment injury. Dr. Paci noted that during the September 11, 2017 surgery, he could visualize 

biceps tenosynovitis, intact rotator cuff tendons, labral degeneration anteriorly, posteriorly, and 

superiorly, requiring debridement, a type II acromion with a sharp underlying spur requiring 

acromioplasty, advanced osteoarthritis of the AC joint requiring distal clavicle excision,

hypertrophy of the coracoacromial ligament requiring release, and advanced bursitis. He opined

that appellant’s left shoulder surgery and subsequent disability from September 11, 2017 through 

March 2018 was causally related to his August 29, 2016 employment injury.

By decision dated April 17, 2019, OWCP denied modification of its December 13, 2017 

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.4 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 

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

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

reasons of misconduct, nonperformance of job duties, or a reduction-in-force.5

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.6

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

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

 

4 20 C.F.R. § 10.5(x); see T.J., Docket No. 18-0831 (issued March 23, 2020); see J.D., Docket No. 18-1533 (issued 

February 27, 2019).

5

Id.

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket 

No. 18-0533 (issued August 27, 2018).
4

record establishes that he or she can perform the limited-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 to show that he or she cannot perform such limited-duty work. 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 limited-duty job requirements.7

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.8 Where no such rationale is present, 

the medical evidence is of diminished probative value.9

ANALYSIS

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

In a November 10, 2017 report, Dr. Paci explained that appellant’s left shoulder biceps 

tenosynovitis was secondary to the SLAP tear sustained on August 29, 2016 and that his AC 

osteoarthritis was secondary to AC joint sprain caused when the medicine ball landed on his arm 

and shoulder. He opined that with a reasonable degree of medical certainty that the injuries 

sustained to the left shoulder were related to the August 29, 2016 work injury, required surgery,

and resulted in disability from September 11, 2017 through March 2018. Dr. Paci noted appellant’s 

August 29, 2016 employment injury and diagnosis of superior glenoid labrum lesion of the left 

shoulder and sprain of the left shoulder joint and opined that appellant’s condition had become 

progressively worse due to more than one year of delayed treatment. He concluded, “The delayed 

responses and additional diagnoses presented, and indication of the treatment performed on 

September 11, 2017 are all directly attributed to the injury via direct causation.”

The Board finds that, while Dr. Paci’s November 10, 2017 report is not fully rationalized, 

he was consistent in opining that appellant’s August 29, 2016 employment injury and the resulting 

September 11, 2017 authorized surgery caused disability from work.10 Although the report is

insufficient to meet appellant’s burden of proof to establish his claim for compensation, it raises

an uncontroverted inference between appellant’s current condition and resultant disability from

work and the accepted August 29, 2016 employment injury, and thus, it is sufficient to require 

OWCP to further develop the medical evidence.11

 

7 K.P., Docket No. 19-1811 (issued May 12, 2020); S.D., Docket No. 19-0955 (issued February 3, 2020); Terry R. 

Hedman, 38 ECAB 222 (1986).

8

J.D., supra note 3; C.C., Docket No. 18-0719 (issued November 9, 2018).

9 H.T., Docket No. 17-0209 (issued February 8, 2018).

10 D.G., id.; E.J., Docket No. 09-1481 (issued February 19, 2010).

11 D.G., id.; Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, 41 ECAB 354, 360 (1989).
5

It is well established that proceedings under FECA are not adversarial in nature and OWCP 

is not a disinterested arbiter.12 While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence and to see that 

justice is done.13 Thus, the Board will remand the case to OWCP to obtain a fully-rationalized 

medical opinion as to whether appellant’s claimed recurrence of disability is causally related to

the accepted August 29, 2016 employment injury. Following this and other such further 

development as deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 17, 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: November 5, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

12 D.G., id.; Vanessa Young, 56 ECAB 575 (2004).

13 K.T., Docket No. 19-1436 (issued February 21, 2020): D.G., id.; Donald R. Gervasi, 57 ECAB 281, 286 (2005); 

Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell, 34 ECAB 1233, 1237 (1983).