United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Frenchburg, KY, Employer

__________________________________________

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Docket No. 20-0486

Issued: June 9, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 2, 2020 appellant, through counsel, filed a timely appeal from a November 18, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

 

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 The record also contains a December 12, 2019 OWCP merit decision. Counsel, however, has only appealed from

the November 18, 2019 decision. Thus, the December 12, 2019 is not before the Board on this appeal. See 20 C.F.R. 

§ 501.3.
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.4

ISSUE

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

disability commencing February 15, 2019, causally related to her accepted January 24, 2017 

employment injury.

FACTUAL HISTORY

On February 10, 2017 appellant, then a 52-year-old postal clerk, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her right shoulder on January 24, 2017 when a buffer 

jerked her arm while in the performance of duty. She stopped work on February 10, 2017. OWCP 

accepted the claim for a full-thickness right shoulder rotator cuff tear.

Appellant accepted a modified job offer on February 21, 2017 as a part-time flexible clerk, 

working two hours a day, with simple grasping, fine manipulation and sitting each limited to one 

half-hour a day, and walking and standing limited to an hour and a half each day. On February 6, 

2018 she underwent authorized right shoulder arthroplasty. OWCP paid appellant wage-loss 

compensation on the supplemental rolls effective February 6, 2018, and the periodic rolls effective 

April 1, 2018.

In a May 4, 2018 report, Dr. Ryan Donegan, a Board-certified orthopedic surgeon, 

diagnosed post superior capsule reconstruction and recommended that appellant continue with 

physical therapy. He noted that she could not perform activities which required use of the right 

upper extremity.

On May 25, 2018 appellant accepted a modified-duty position as a part-time flexible clerk

for 2 hours a day, 10 hours a week. The duties included answering the telephone, computer work,

and scanning mail with use of the left hand. No lifting was required and the job involved sitting 

at a desk only. By decision dated June 6, 2018, OWCP found that appellant returned to alternate 

work as a modified postal clerk, working two hours a day effective May 29, 2018. It terminated 

her periodic compensation payments, effective May 29, 2018. OWCP continued to pay appellant 

wage-loss compensation on the supplemental rolls based upon her actual wages in her capacity as 

a modified postal clerk.

In a June 8, 2018 report, Dr. Donegan diagnosed right shoulder extensive debridement, 

subacromial decompression acromioplasty, superior capsular reconstruction, rotator cuff repair, 

and cadaver grafting. He recommended a return to modified-duty work with no use of the right

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that, following the November 18, 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.
3

upper extremity. Dr. Donegan completed a work capacity evaluation (Form OWCP-5c) and 

recommended sedentary work for no more than eight hours per day, with restrictions of no 

reaching, no reaching above the shoulder, and no pushing, pulling, or lifting with the right upper 

extremity.

In an August 15, 2018 report, Dr. Donegan noted that appellant was seen for evaluation of 

her right shoulder. Appellant had related that the employing establishment would only allow her 

to work two hours a day, but she wanted to return to full-time work. Dr. Donegan examined 

appellant and placed her on work restrictions. He recommended sedentary work with no lifting or 

overhead work, desk work only. Dr. Donegan also recommended that appellant continue with 

physical therapy.

From September to December 2018 the employing establishment continued to offer, and 

appellant continued to accept, modified job offers with differing duties and work hours. On 

December 11, 2018 appellant accepted a modified-duty assignment as a part-time flexible sales 

and services associate, which entailed working 25 hours per week. The duties of the position 

included window duties with assistance, mail distribution with the left hand, boxing P.O. Box mail 

with the left hand, and light cleaning (i.e., dusting and sweeping). The physical requirements of 

the position were noted as requiring use of left hand or arm.

On January 23, 2019 Dr. Donegan reported that appellant was seen for reevaluation of her 

right shoulder. He noted that appellant had a failed superior capsular reconstruction and that she 

had continued pain, but she continued to work. Dr. Donegan related that appellant’s only option 

would be to undergo a reverse arthroplasty, but that appellant was not compelled to undergo this 

procedure at this point.

In a February 13, 2019 report, Dr. Donegan noted that appellant had called him regarding 

the issue with her shoulder. He related that she requested approval for a reverse arthroplasty,

noting that she had a failed capsular reconstruction. Dr. Donegan noted that appellant had a rotator 

cuff tear caused by a work-related injury. He explained that appellant had no options for further 

treatment, her range of motion was severely limited to only 90 to 100 degrees, and she had marked 

weakness throughout cuff testing. Dr. Donegan noted that she had failed superior capsular 

reconstruction and her only option was a reverse arthroplasty, given her limitation in motion and 

her structural changes. He opined that, given her significant pain and current limitations, it was 

reasonable to hold appellant off work, as she was unable to reach, push, pull, and lift. Dr. Donegan 

noted that even waist-level activities could be difficult for her.

Appellant stopped work on February 15, 2019.

On March 4, 2019 appellant filed a notice of recurrence (Form CA-2a), alleging that she 

sustained a recurrence of disability on February 15, 2019. 

In a development letter dated March 11, 2019, OWCP provided a definition of a recurrence 

of disability. It advised appellant of the type of factual and medical evidence necessary to establish 

her claim, provided a questionnaire for her completion, and afforded her 30 days to submit 

additional evidence.
4

On March 20, 2019 OWCP referred appellant to Dr. Anbu K. Nadar, a Board-certified 

orthopedic surgeon, for a second opinion examination to determine the relationship between her 

claimed conditions and the accepted January 24, 2017 employment injury. OWCP asked the 

doctor to address a number of questions, including: whether the employment-related condition 

had resolved; and whether appellant was capable of resuming the postal clerk position, and if not, 

whether appellant was capable of performing light-duty work.

In an April 9, 2019 report, Dr. Nadar noted appellant’s history of injury and treatment and

the accepted condition of full thickness rotator cuff tear, right shoulder. He opined that the 

accepted condition had not resolved, as the surgery was not successful, and appellant continued to 

have residual pain, weakness, and difficulties with overhead activities. Dr. Nadar explained that 

a recent magnetic resonance imaging (MRI) scan confirmed a failure of surgical rotator cuff repair

and that appellant had reached maximum medical improvement. In response to whether appellant 

could perform the duties of a postal clerk, he replied in the negative and explained that appellant 

could perform only sedentary work, eight hours per day, with modifications. Regarding a reverse 

shoulder replacement, Dr. Nadar indicated that it was medically necessary, as the surgical repair 

of the rotator cuff failed, and “[h]opefully that can be performed at a later time.” He recommended 

continued home exercises and strengthening, pain management, and a reverse shoulder 

arthroplasty after age 65.

On April 11, 2019 OWCP received appellant’s response to its development letter. 

Appellant indicated that she “never stopped hurting.” She related that she continued with 

consistent symptoms and had to resort to taking pain medications while working. Appellant also 

noted that her prior superior capsule restriction was not successful.

OWCP received hospital records from Dr. Donegan with a May 1, 2019 admittance date 

and a May 31, 2019 discharge date. Dr. Donegan diagnosed cervicalgia, pain in the right shoulder, 

and strain of muscles and tendons of the rotator cuff of the right shoulder, sequela.

OWCP authorized right reconstruction of the shoulder joint on May 28, 2019.

By decision dated June 3, 2019, OWCP found that the medical evidence of record was 

insufficient to establish an employment-related recurrence of disability, commencing February 15, 

2019, causally related to the accepted January 24, 2017 employment injury.

On June 10, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on 

September 27, 2019.

OWCP received a June 11, 2019 report, wherein Dr. Donegan noted that he had reviewed

Dr. Nadar’s report and concurred with part of his report. He agreed that appellant was capable of 

sedentary work and indicated that “she can do desktop level work as her range of motion is severely 

limited to anything up over chest over shoulder height.” Dr. Donegan disagreed with Dr. Nadar 

regarding the type of surgery appellant had. He indicated that appellant did not have a rotator cuff 

repair and explained that a superior capsular reconstruction was a reconstructive surgery using a 

dermal patch. Dr. Donegan noted that it was much more complex than a rotator cuff repair. He 
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explained that waiting until appellant was 65 or older for the reverse arthroplasty was problematic 

because she met the criteria for the surgery and was ready for the surgery prior to age 65.

In a July 25, 2019 operative report, Dr. Donegan noted that he performed a right reverse 

total shoulder arthroplasty.

OWCP resumed payment to appellant of wage-loss compensation on the supplemental rolls 

as of July 25, 2019.

OWCP continued to receive medical evidence including physical therapy notes from

March 6, 2018 to April 16, 2019, and occupational therapy notes from July 26, 2019.

In an October 28, 2019 report, Dr. Donegan noted that x-rays revealed a well-positioned 

reverse total shoulder replacement. He completed a Form OWCP-5c on October 28, 2019, and 

noted that appellant could perform sedentary work with no use of the right upper extremity.

By decision dated November 18, 2019, OWCP’s hearing representative affirmed the 

June 3, 2019 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 

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 

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.6 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

ANALYSIS

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

In order to determine the relationship, if any, between appellant’s claimed conditions and 

the accepted January 24, 2017 employment injury, OWCP referred appellant to its second opinion 

 

5 20 C.F.R. § 10.5(x); A.V., Docket No. 20-0486 (issued June 20, 2021); J.D., Docket No. 18-1533 (issued 

February 27, 2019).

6 See D.W., Docket No. 19-1584 (issued July 9, 2020); S.D., Docket No. 19-0955 (issued February 3, 2020); 

Terry R. Hedman, 38 ECAB 222 (1986).

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Id.
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physician, Dr. Nadar. It asked Dr. Nadar to determine whether the employment-related condition 

had resolved, whether appellant was capable of resuming her date-of-injury position as a postal 

clerk, and if not, whether appellant was capable of performing light-duty work. Dr. Nadar opined 

that appellant required total shoulder arthroplasty as her initial rotator cuff surgery had failed and 

she continued to experience residuals in the form of pain, weakness, and difficulties with overhead 

activities. He concluded that she was incapable of performing the duties of her date-of-injury 

position as a postal clerk and recommended sedentary duty for eight hours per day with restrictions. 

Dr. Nadar did not, however, specifically address whether appellant sustained a recurrence of

disability causally related to the accepted employment injury as of February 15, 2019, as OWCP 

did not ask him to address that question.

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

is not a disinterested arbiter.8 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.9 The nonadversarial policy of proceedings under FECA is reflected in OWCP’s 

regulations at section 10.121.10 Once OWCP undertakes development of the record, it must do a 

complete job in procuring medical evidence that will resolve the relevant issues in the case.11 As 

OWCP undertook development of the record by referring appellant to Dr. Nadar, it has the 

responsibility to procure a rationalized medical opinion on the issue of whether appellant sustained 

a recurrence of disability commencing February 15, 2019 causally related to the accepted 

January 24, 2017 employment injury.12

Thus, the Board will remand the case to OWCP to obtain a fully-rationalized medical 

opinion from Dr. Nadar as to whether appellantsustained a recurrence of disability on February 15, 

2019 causally related to the accepted January 24, 2017 employment injury. If Dr. Nadar is 

unavailable or unwilling to render a supplemental opinion, then OWCP shall refer appellant, 

together with a SOAF and the medical records, to another second opinion physician in the 

appropriate field of medicine for a rationalized opinion on the issue to be resolved.13 Following 

this and other such further development as deemed necessary, OWCP shall issue a de novo

decision.

CONCLUSION

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

 

8 L.B., id.; Vanessa Young, 56 ECAB 575 (2004).

9 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).

10 20 C.F.R. § 10.121; see also K.S., Docket No. 18-0845 (issued October 26, 2018). 

11 A.A., Docket No. 20-1399 (issued March 10, 2021); K.S., id.

12 See A.A., id.

13 See M.T., Docket No. 20-0321 (issued April 26, 2021).
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ORDER

IT IS HEREBY ORDERED THAT the November 18, 2019 decision of the Office of 

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

consistent with this decision of the Board.

Issued: June 9, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board