United States Department of Labor

Employees’ Compensation Appeals Board

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R.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Laredo, TX, Employer

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Docket No. 20-0364

Issued: March 8, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On December 4, 2019 appellant filed a timely appeal from a November 25, 2019 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that OWCP received additional evidence following the November 25, 2019 decision. 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 from work, commencing September 9, 2019, causally related to his accepted July 1, 

2014 employment injury.

FACTUAL HISTORY

On July 2, 2014 appellant, then a 31-year-old border patrol agent, filed a traumatic injury 

claim (Form CA-1) alleging that on July 1, 2014 he dislocated his right shoulder when he tried to 

intercept a vehicle while in the performance of duty. On August 29, 2014 OWCP accepted the 

claim for sprain of right shoulder and upper arm, superior glenoid labrum lesion; sprain of right 

shoulder and upper arm, rotator cuff; and other specified disorder of bursae and tendons in the 

shoulder region on the right.3 It paid appellant wage-loss compensation on the supplemental rolls 

from November 5, 2017 to January 6, 2018, on the periodic rolls from January 7, 2018 until 

March 31, 2018, and on the supplemental rolls again from April 1, 2018 to September 9, 2019.

In a March 30, 2018 report, Dr. Geoffrey M. Millican, a Board-certified orthopedic 

surgeon, diagnosed impingement syndrome of the right shoulder, incomplete rotator cuff tear or 

rupture of the right shoulder, not specified as traumatic, bicipital tendinitis, right shoulder, and 

superior glenoid labrum lesion of right shoulder sequela. He opined that he was “unsure why 

[appellant] had global weakness...” with a negative electromyography and nerve conduction 

velocity (EMG/NCV) study. Dr. Millican advised that he would allow appellant to return to work 

with sedentary restrictions, as he “could not use his right/dominant extremity.” On March 30, 

2018 he completed a work capacity evaluation (Form OWCP-5c) advising sedentary duty,

including sitting and standing as tolerated and position change every 15 minutes. Dr. Millican 

indicated that maximum medical improvement was reached “for biceps only.”

In an April 3, 2018 memorandum, the employing establishing indicated that appellant was 

approved for light duty until April 6, 2018. It noted that his assignment would be based on his 

ability to perform assigned functions based upon his physician’s instructions. On May 23, 2018 

the employing establishment continued appellant’s light-duty assignment until June 8, 2018.

In a May 25, 2018 memorandum, the employing establishment confirmed that on May 23, 

2018 appellant returned to work, four hours per day, restricted duty.

OWCP received diagnostic reports. A May 8, 2017 magnetic resonance imaging (MRI) 

scan of the right shoulder interpreted by Dr. Richard Anguiano, a Board-certified diagnostic 

radiologist, revealed Os-acromiale, postsurgical changes at superior glenoid with magnetic 

susceptibility artifacts, no definite labral tear and biceps tenosynovitis. An August 3, 2017 MRI 

scan of the right shoulder read by Dr. Golden Pan, a radiologist, revealed several findings, which 

 

3 Appellant has a prior claim for a May 26, 2008 traumatic injury under OWCP File No. xxxxxx150. OWCP 

accepted the claim for sprain of shoulder and upper arm, acromioclavicular, on the right. The record reflects that, in 

that claim, appellant reached maximum medical improvement on January 28, 2009 and returned to regular duty. He

also has a prior claim for a September 20, 2017 traumatic injury under OWCP File No. xxxxxx533. This claim was 

accepted for right shoulder sprain. 
3

included a full-thickness tear of the anterior third of the supraspinatus. A February 9, 2018 

electrodiagnostic study of appellant’s right upper extremity was within normal limits. A June 28, 

2018 electrodiagnostic study related to appellant’s right rotator cuff strain, right superior glenoid 

labrum lesion, and right shoulder lesion, was within normal limits. The examiner noted that 

appellant appeared to have developed a conversion syndrome in which he was not moving any of 

the muscles of the upper right limb. He related that he could not identify any electrodiagnostic 

abnormality that would explain the complete paralysis of the right upper limb.

In a June 7, 2018 report, Dr. John V. Puig, II, Board-certified in family practice and sports 

medicine, noted that appellant had significant worsening of his symptoms. He completed a work 

capacity (Form OWCP-5c) and indicated that appellant could not perform his usual job due to 

decreased range of motion (ROM) of the right shoulder. Dr. Puig recommended a sedentary, fourhour workday, “desk duty only.”

On April 2, 2019 OWCP referred appellant for a second opinion examination with

Dr. James Butler, a Board-certified orthopedic surgeon, to determine appellant’s work capabilities 

and whether he continued to suffer residuals of the employment injury.

In a May 8, 2019 report, Dr. Butler noted appellant’s history of injury and treatment and 

the accepted conditions in the claim. He explained that appellant continued to suffer from residuals 

of the work-related injury and had developed psychosomatic paralysis of the right upper extremity 

with no strength, no mobility, and visible atrophy. Dr. Butler indicated that no further treatment 

was warranted, however, the prognosis was poor from an orthopedic standpoint. He noted that

appellant might need further mental health evaluation for his conversion syndrome. Dr. Butler

advised that appellant had reached MMI and opined that appellant could not return to work as a 

border patrol agent. However, he noted that appellant could perform sedentary desk duty with no 

use of his right upper extremity.

On June 14, 2019, OWCP received an undated report from Dr. Puig, who noted that he had 

reviewed the report from Dr. Butler. Dr. Puig indicated that he concurred with Dr. Butler’s 

opinion, with the exception that it was his opinion that appellant was unable to perform sedentary 

duty. He explained that appellant had made several attempts to return to work, but was unable to 

complete more than four hours of sedentary duty per day and was unable to perform the duties 

appropriately. Dr. Puig opined that appellant was unemployable in any capacity.

In a June 28, 2019 impairment rating, Dr. Daniel C. Valdez, a Board-certified orthopedic 

surgeon, indicated that appellant had lost complete function and range of motion of his entire right 

upper extremity. He assigned an impairment rating of 100 percent to the right upper extremity.

On July 12, 2019 OWCP determined that a conflict existed between Dr. Puig and

Dr. Butler regarding appellant’s ability to work. It referred appellant to Dr. James Hood, a Boardcertified orthopedic surgeon, for an impartial medical examination.

In an August 22, 2019 report, Dr. Hood noted appellant’s history of injury and treatment 

and his review of the statement of accepted facts (SOAF). He found that appellant would not sit 

for the examination or remove the sling on his right arm and that no physical examination was 

possible. Dr. Hood noted that an EMG/NCV study was unrevealing. He indicated that he was 
4

“astounded that in reviewing the medical records” there were no imaging studies. Dr. Hood

advised that additional diagnostic evidence was needed, to include imaging studies of the right 

shoulder.

Appellant stopped all work on September 1, 2019.4

In a September 9, 2019 addendum report, Dr. Hood noted his review of a September 4, 

2019 MRI scan and advised that it did not reveal any physical reason for appellant’s inability to 

move his arm. He opined that appellant could work eight hours per day with restrictions only to 

the right arm. Dr. Hood strongly recommended a psychiatric examination to determine whether 

appellant had a conversion disorder, as opposed to malingering.

In a September 12, 2019 report, Dr. Puig noted that appellant presented for evaluation of 

his right shoulder injury from July 1, 2014. He diagnosed right shoulder anterior superior labral 

tear, right shoulder rotator cuff supraspinatus strain, right shoulder pain, right shoulder effusion, 

right shoulder impingement syndrome, mild conversion disorder, and anxiety disorder due to a 

known physiological condition. Dr. Puig opined that appellant was “unable to use the right arm at 

any capacity whatsoever.” He opined that appellant had reached MMI and that he did not expect 

any further improvement regarding the use of the right arm. Dr. Puig noted that he concurred with 

appellant awaiting full medical discharge. In an accompanying September 12, 2019 work capacity 

evaluation (Form OWCP-5c), he advised that appellant was permanently disabled from work.

On October 3, 2019 appellant filed a wage-loss compensation (Form CA-7) claiming

recurrent disability from work for the period from September 1 to 14, 2019.

In a development letter dated October 10, 2019, OWCP advised appellant of the 

deficiencies of his wage-loss compensation claim and requested that he submit additional factual 

and medical evidence supporting that he was disabled from employment for the claimed period. 

It requested a report from his physician addressing the relationship between his claimed period of 

disability and his employment injury. OWCP afforded appellant 30 days to submit the necessary 

evidence.

In a September 12, 2019 report, Dr. Puig diagnosed right shoulder anterior superior labral 

tear, right shoulder rotator cuff/supraspinatus strain, right shoulder pain, right shoulder effusion, 

right shoulder impingement syndrome, and mild conversion disorder. He recommended an Ortho 

Cor active system to manage appellant’s pain and assist with returning him to work.

By decision dated November 25, 2019, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish that he was disabled from work 

commencing September 9, 2019. It accorded the special weight of the evidence to IME Dr. Hood, 

who opined that appellant was capable of returning to full-duty work with permanent restrictions.

 

4 The employing establishment noted that appellant had medically retired.
5

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has the burden of proof to establish the 

essential elements of his or her claim.6 Under FECA the term disability means incapacity, because 

of an employment injury, to earn the wages that the employee was receiving at the time of injury.7 

For each period of disability claimed, the employee has the burden of proof to establish that he or 

she was disabled from work as a result of the accepted employment injury.8 Whether a particular 

injury causes an employee to become disabled from work, and the duration of that disability, are 

medical issues that must be proven by a preponderance of probative and reliable medical opinion 

evidence.9

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 that had resulted from a previous 

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

the illness. The term also means an inability to work when a light-duty assignment made 

specifically to accommodate an employee’s physical limitations due to the work-related injury or 

illness is withdrawn (except when such withdrawal occurs for reasons of misconduct, 

nonperformance of job duties or a reduction-in-force), or when the physical requirements of such 

an assignment are altered so that they exceed his or her established physical limitations.10

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 

establishes that light duty can be performed, the employee has the burden of proof to establish by 

the weight of reliable, probative, and substantial evidence a recurrence of total disability. As part 

of this burden of proof, the employee must show either a change in the nature and extent of the 

injury-related condition, or a change in the nature and extent of the limited-duty requirements.11

An employee who claims a recurrence of disability resulting from an accepted employment 

injury has the burden of proof to establish that the disability is related to the accepted injury. This 

burden requires 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 

the employment injury and supports that conclusion with sound medical reasoning.12

 

5 Supra note 1.

6 See L.S., Docket No. 18-0264 (issued January 28, 2020); B.O., Docket No. 19-0392 (issued July 12, 2019).

7 20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).

8 T.W., Docket No. 19-1286 (issued January 13, 2020).

9 S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

10 20 C.F.R. § 10.5(x); see D.T., Docket No. 19-1064 (issued February 20, 2020).

11 C.B., Docket No. 19-0464 (issued May 22, 2020); see R.N., Docket No. 19-1685 (issued February 26, 2020); 

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

12 Id.
6

FECA provides that, if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an examination.13 

For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and 

rationale.14 Where OWCP has referred the case to an impartial medical examiner to resolve a 

conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned and 

based upon a proper factual background, must be given special weight.15

ANALYSIS

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

OWCP properly determined that there was a conflict between Dr. Puig and Dr. Butler, the 

second opinion physician, regarding appellant’s ability to work. In order to resolve the conflict, it

properly referred appellant to Dr. Hood for an impartial medical examination and an opinion on 

the matter, pursuant to 5 U.S.C. § 8123(a).

However, the Board finds that further development is warranted as the reports by Dr. Hood

are insufficient to carry the special weight of the medical evidence. 

In his August 22, 2019 report, Dr. Hood opined that he was “astounded” that there were no 

imaging studies for his review. The Board notes the record contains MRI scans dated May 8 and 

August 2, 2017. It is unclear why he was not provided with these records. While Dr. Hood 

obtained a September 4, 2019 MRI scan, the record does not reflect that he was provided with the 

prior MRI scans for review. Dr. Hood’s review of appellant’s medical history was, therefore, not 

based upon a complete record. 

Additionally, Dr. Hood concluded that appellant could work eight hours per day with 

restrictions pertaining to his right arm; however, he did not specify appellant’s restrictions. In this 

regard, the Board notes that the record does not include a position description describing the 

physical requirements of appellant’s date of injury position, nor does the record include any written 

offer of modified limited duty, with the physical requirements of the modified assignment, after 

the date of injury. The Board is therefore unable to ascertain whether, given appellant’s physical 

restrictions, he could perform the duties of his date-of-injury position, or a modified limited-duty 

position if available to him on September 9, 2018. The Board also notes that Dr. Hood strongly 

recommended a psychiatric examination to determine whether appellant had a conversion disorder.

However, OWCP did not develop the evidence in this regard. 

As Dr. Hood did not have appellant’s prior imaging studies for his review, did not have a 

position description or offer of modified limited duty which described the physical requirements 

of appellant position, and as OWCP failed to develop the evidence with regard to his 

 

13 5 U.S.C. § 8123(a); 20 C.F.R. § 10.321; see C.B., supra note 11; Shirley L. Steib, 46 ECAB 309, 317 (1994).

14 R.N., supra note 11; Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

15 Y.I., Docket No. 20-0263 (issued November 30, 2020); R.S., Docket No. 10-1704 (issued May 13, 2011); S.T.,

Docket No. 08-1675 (issued May 4, 2009); Gary R. Sieber, 46 ECAB 215, 225 (1994).
7

recommendation for a psychiatric evaluation, the Board finds that his opinion did not resolve the 

conflict regarding appellant’s ability to work, and his reports are not entitled to special weight.

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. The claimant has the burden of proof to establish entitlement to compensation. However, 

OWCP shares responsibility in the development of the evidence to see that justice is done.16 Once 

it undertakes development of the record, OWCP must do a complete job in procuring medical 

evidence that will resolve the relevant issues in the case.17 

On remand OWCP shall obtain appellant’s position description and any written offer of 

modified work pertaining to appellant’s work status on September 9, 2018. It shall also refer 

appellant for a psychiatric examination to determine whether he had an employment-related

conversion disorder. OWCP shall then refer appellant’s entire medical record to Dr. Hood and 

request that he provide a supplemental opinion. After this and other such further development as

deemed necessary, it shall issue a de novo decision.18

CONCLUSION

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

 

16 See J.C., Docket No. 20-0064 (issued September 4, 2020); L.B., Docket No. 19-0432 (issued July 23, 2019);

William J. Cantrell, 34 ECAB 1223 (1983).

17 Id.; see also S.A., Docket No. 18-1024 (issued March 12, 2020).

18 OWCP’s procedures provide that cases should be administratively combined when correct adjudication of the 

issues depends on frequent cross-referencing between case files. See Federal (FECA) Procedure Manual, Part 2 --

Claims, File Maintenance and Management, Chapter 2.400.8c (February 2000). On remand as the present claim and 

appellant’s prior claims File No. xxxxxx150, and File No. xxxxxx533 involve similar conditions, OWCP shall 

administratively combine the claims for a full and fair adjudication of the present claim.
8

ORDER

IT IS HEREBY ORDERED THAT the November 25, 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.

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Issued: March 8, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

19 Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer

a member of the Board after January 20, 2021.