United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Tulsa, OK, Employer

__________________________________________

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Docket No. 19-0120

Issued: September 11, 2019

Appearances: Case Submitted on the Record

Christopher L. Kannady, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 22, 2018 appellant, through counsel, filed a timely appeal from an April 30, 

2018 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 30, 2018 decision, OWCP received additional evidence. Appellant also 

submitted new evidence accompanying her request for appeal to the Board. 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 her burden of proof to establish a recurrence of total 

disability commencing February 3, 2016, causally related to her accepted May 7, 2013 right 

shoulder employment injury.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below.

On May 16, 2013 appellant, then a 52-year-old lead transportation security officer, filed a 

traumatic injury claim (Form CA-1) alleging that at 1:00 p.m. on May 7, 2013 she sustained a right 

shoulder strain/sprain while lifting and pulling heavy luggage from a conveyor belt while in the 

performance of duty. On July 24, 2013 OWCP accepted the claim for the conditions of other 

affections of the right shoulder region, not elsewhere classified. Dr. James D. Cash, a Boardcertified orthopedic surgeon, diagnosed a torn right rotator cuff. On October 2, 2013 he performed 

an authorized arthroscopic subacromial decompression, labral debridement, and distal clavicle 

resection. Dr. Cash returned appellant to full duty without restrictions as of February 20, 2014. 

Appellant resumed full duty on or about May 21, 2014. 

On February 3, 2016 appellant filed a notice of recurrence (Form CA-2a) claiming 

disability commencing that day. She contended that her assigned duties on and after May 8, 2013 

exacerbated residual shoulder, neck, and back pain from the May 7, 2013 employment injury.

Appellant stopped work on February 3, 2016 and claimed wage-loss compensation through 

February 10, 2016. In support of her claim, she submitted a November 12, 2015 electrodiagnostic 

study report demonstrating right ulnar nerve entrapment at the elbow. OWCP denied appellant’s 

claim for recurrence of disability by decision dated April 13, 2016 finding that the medical 

evidence of record was insufficient to establish causal relationship between an accepted right 

shoulder condition and the claimed period of disability.5 Following a request for reconsideration 

not supported by additional evidence or argument, it denied reconsideration by nonmerit decision 

dated May 17, 2016. Appellant then appealed to the Board.

By decision dated February 9, 2017,6the Board affirmed the April 13, 2016 and May 17, 

2016 OWCP decisions, finding that the medical evidence of record did not contain rationalized 

medical evidence supporting a worsening of the accepted right shoulder condition as of 

February 3, 2016. The Board further found that OWCP properly denied reconsideration of the 

merits of the claim pursuant to 5 U.S.C. § 8128(a).

On March 27, 2017 appellant, through counsel, requested reconsideration. He contended 

that the medical evidence of record, including “Dr. Nguyen’s May 2016 report,” were sufficient 

 

4 Docket No. 16-1876 (issued February 9, 2017).

5 On March 27, 2017 OWCP issued a correction to its April 13, 2016 decision, noting that it had accepted “other 

affections of shoulder region, not otherwise specified, right.”

6 Supra note 4.
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to establish the claimed recurrence of disability. Counsel submitted billing statements and related 

correspondence, but did not provide the referenced medical report.

By decision dated December 11, 2017, OWCP denied modification finding that the 

additional evidence submitted had not established the claimed recurrence of disability.

On January 30, 2018 appellant, through counsel, requested reconsideration and submitted 

additional evidence. In a report dated January 3, 2018, Dr. Geoffrey B. Plumlee, a Board-certified 

family practitioner, described a January 2016 employment incident in which a conveyor belt 

unexpectedly engaged and “jerked” appellant’s feet from beneath her, precipitating chronic back 

and neck pain with paresthesias into all extremities. He opined that appellant’s neck and back 

symptoms were “due to the work-related injury.”

By decision dated April 30, 2018, OWCP denied modification of the December 11, 2017 

decision.

LEGAL PRECEDENT

Under FECA the term “disability” means the incapacity, because of an employment injury, 

to earn the wages that the employee was receiving at the time of injury.7 Disability is thus not 

synonymous with physical impairment, which may or may not result in an incapacity to earn 

wages.8 An employee who has a physical impairment causally related to a federal employment 

injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time 

of injury, has no disability as that term is used in FECA.9 When, however, the medical evidence 

establishes that the residuals or sequelae of an employment injury are such that, from a medical 

standpoint, they prevent the employee from continuing in his or her employment, he or she is 

entitled to compensation for loss of wages.10

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 resulted from a previous injury or illness without an intervening injury or new exposure to 

the work environment.11

When an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish 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 

 

7 20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

8 See L.W., Docket No. 17-1685 (issued October 9, 2018).

9 See D.G., Docket No. 18-0597 (issued October 3, 2018).

10 See D.R., Docket No. 18-0323 (issued October 2, 2018).

11 20 C.F.R. § 10.5(x).
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causally related to the employment injury and supports this conclusion with sound medical 

reasoning.12

ANALYSIS

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

total disability commencing February 3, 2016, causally related to her accepted May 7, 2013 right 

shoulder injury.

Preliminarily, the Board notes that it is unnecessary to reconsider the evidence appellant 

submitted prior to the issuance of OWCP’s May 17, 2016 decision because the Board already 

considered this evidence in its February 9, 2017 decision. Findings made in prior Board decisions 

are res judicata absent any further review by OWCP under section 8128 of FECA.13

OWCP accepted appellant’s original claim for a right shoulder condition as a result of the 

accepted May 7, 2013 employment injury. Appellant underwent authorized arthroscopic right 

shoulder surgery on October 2, 2013. She returned to full-time, full-duty work on or about 

May 21, 2014. Appellant stopped work on February 3, 2016 and claimed a recurrence of total 

disability commencing on that date due to the accepted May 7, 2013 employment injury. She also 

indicated that her assigned employment duties had caused or contributed to her condition. 

Appellant submitted a January 3, 2018 report by Dr. Plumlee. Dr. Plumlee did not discuss 

the accepted May 7, 2013 right shoulder injury or address whether that condition spontaneously 

worsened on February 3, 2016. Rather, he opined that a January 2016 employment incident had 

caused back and neck pain with paresthesias. Dr. Plumlee thus implicated a new employment 

incident that broke the legal chain of causation from the accepted May 7, 2013 right shoulder 

employment injury.14 As appellant has not submitted medical evidence establishing a recurrence 

of disability due to her accepted May 7, 2013 employment injury, without intervening cause, the 

Board finds that she has not met her burden of proof.15

On appeal counsel asserts that the medical evidence of record is sufficient to establish a 

worsening of the accepted right shoulder condition on February 3, 2016. As explained above, 

appellant’s physicians did not provide sufficient medical rationale to meet appellant’s burden of 

proof.

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. 

 

12 C.B., Docket No. 19-0121 (issued July 2, 2019); D.S., Docket No. 17-1401 (issued March 23, 2018); Ricky S. 

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

13 J.R., Docket No. 19-0364 (issued July 3, 2019); M.M., Docket No. 18-1366 (issued February 27, 2019). E.C., 

Docket No. 17-1765 (issued January 24, 2018); E.L., Docket No. 16-0635 (issued November 7, 2016).

14 See P.S., Docket No. 17-1371 (issued November 6, 2017).

15 C.B., supra note 12; E.R., Docket No. 18-0202 (issued June 5, 2018).
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CONCLUSION

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

total disability commencing February 3, 2016, causally related to her accepted May 7, 2013 right 

shoulder employment injury.

ORDER

IT IS HEREBY ORDERED THAT the April 30, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: September 11, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board