United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.D., Appellant

and

U.S. POSTAL SERVICE, MINERAL WELLS 

POST OFFICE, Mineral Wells, WV, Employer

__________________________________________

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Docket No. 21-1053

Issued: March 20, 2023

Appearances: Case Submitted on the Record

Aaron B. Aumiller, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 3, 2021 appellant, through counsel, filed a timely appeal from a January 4, 2021 

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.

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.
2

ISSUE

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

disability commencing August 8, 2019, causally related to her accepted September 6, 2017 

employment injury.

FACTUAL HISTORY

On September 12, 2017 appellant, then a 66-year-old rural mail carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on September 6, 2017 she injured her right arm, right 

shoulder, and head when she fell on slippery pavement while in the performance of duty. OWCP 

accepted the claim for right shoulder strain. It paid appellant wage-loss compensation on the 

supplemental rolls from December 2, 2017 through April 28, 2018, and on the periodic rolls from 

April 29 through October 11, 2018.

On April 18, 2018 Dr. George Herriott, III, a Board-certified orthopedic surgeon, 

performed a right shoulder arthroscopic subacromial decompression and acromioplasty and open 

rotator cuff repair.

On October 11, 2018 appellant returned to full-time employment without restrictions. 

Appellant, on August 28, 2019, filed a notice of recurrence (Form CA-2a) on August 8, 

2019, claiming disability causally related to her September 6, 2017 employment injury. She 

related that her shoulder had become progressively weaker such that she could not lift objects. 

In a development letter dated September 5, 2019, OWCP advised appellant of the definition 

of a recurrence of disability and requested that she provide additional factual and medical 

information supporting that her employment-related disability had increased such that she was 

unable to work. It afforded her 30 days to submit the necessary evidence.

Subsequently, OWCP received an August 20, 2019 report from Dr. Herriott. Dr. Herriott 

indicated that he had evaluated appellant on August 8, 2019 for increased right shoulder pain after 

a 2018 arthroscopy. He related that she “states that her occupation has increased her pain so much 

that she cannot do it anymore.” Dr. Herriott reviewed the results of an August 13, 2019 magnetic 

resonance imaging (MRI) study of the right shoulder, finding that it showed a large recurrent 

complete tear of the supraspinatus and subscapularis tendons of the rotator cuff, which appeared 

to be chronic, joint effusion with fluid extending into the subacromial and subdeltoid bursa, a 

chronic tear of the long head of the biceps tendon, and severe degenerative changes in the 

glenohumeral joint with degeneration of the labrum and subchondral cysts in the glonoid rim. He

diagnosed a complete right rotator cuff tear and trigger finger of the left thumb. Dr. Herriott

recommended a total reverse shoulder procedure. He related, “Because of the recurrent retracted 

rotator cuff tear, it will be very difficult if not impossible for her to continue with her work duties 

which require the ability to repetitively abduct and forward flex her arm, as well as repetitive 

lifting.” Dr. Herriott further advised, “[appellant’s] difficulty/inability to participate in her 

previous occupation is directly related to her initial work[-]related injury which was a rotator cuff 

tear. [Appellant] has had an attempted repair of the rotator cuff, which failed.”
3

In a statement dated September 17, 2019, appellant related that when she returned to work 

after surgery, she had experienced progressive shoulder catching and grinding. She described her 

work activities. Appellant advised that on August 8, 2019 Dr. Herriott had diagnosed a rotator 

cuff tear and told her that she could not work.

By decision dated November 25, 2019, OWCP found that appellant had not submitted 

rationalized medical evidence establishing a recurrence of disability commencing August 8, 2019 

causally related to her accepted employment injury. 

On December 24, 2019 appellant requested reconsideration. 

Thereafter, OWCP received an August 8, 2019 report from Dr. Herriott, who had followed 

appellant for right shoulder pain. He noted that she was “a mail carrier and states that her 

occupation has increased her pain so much that she cannot do it anymore.” Dr. Herriott diagnosed 

an incomplete tear of the right rotator cuff and referred appellant for an MRI scan. He advised 

that she might have to “change occupations to avoid the repetitive lifting that is required in her job 

as a mail carrier.”

OWCP further received an interpretive report of the August 13, 2019 right shoulder MRI 

scan demonstrating a large recurrent tear of the supraspinatus and subscapularis tendons. 

On November 14, 2019 Dr. Herriott evaluated appellant for left thumb trigger finger. He 

administered a steroid injection.

On January 16, 2020 counsel requested that OWCP authorize the requested surgery. 

By decision dated March 16, 2020, OWCP denied modification of its November 25, 2019 

decision. It noted that appellant had described difficulty with continued lifting and advised that 

she could file a claim for a new injury.

In a report dated October 9, 2020, Dr. Herriott discussed appellant’s history of a fullthickness rotator cuff tear due to an injury at work. He opined that she had not regained full use 

of the shoulder even after a repair of the cuff tear on April 18, 2018 and physical therapy. 

Dr. Herriott advised that an MRI scan on August 13, 2019 had shown a recurrent rotator cuff tear 

and degenerative changes in the glenohumeral joint. He diagnosed rotator cuff tear arthropathy 

and related that it was “a degenerative condition in the shoulder as [a] result of a large rotator cuff 

tear.” Dr. Herriott recommended a reverse total shoulder arthroplasty, which he opined was the 

“direct result of the rotator cuff tear that she sustained in her work[-]related injury.” He explained 

that shoulder deficits in the rotator cuff often progressed to rotator cuff arthropathy as a result of 

the “elevation of the humeral head that occurs as a result of the rotator cuff tear, allowing the 

humeral head to articulate against the acromion and create increased loading forces across the 

superior aspect of the glenoid.” Dr. Herriott opined that the rotator cuff arthropathy should be 

covered by workers’ compensation.

On October 13, 2020 appellant, through counsel, requested reconsideration.

By decision dated January 4, 2021, OWCP denied modification of its March 16, 2020 

decision.
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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.3 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.4

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.5

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.6 Where no such rationale is present, 

the medical evidence is of diminished probative value.7 

ANALYSIS

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

In support of her claim, appellant submitted an August 20, 2019 report from Dr. Herriott. 

Dr. Herriott indicated that he had treated her on August 8, 2019 for increased right shoulder pain 

after arthroscopic surgery in 2018, noting that she asserted that her occupational duties had caused 

her pain to worsen. He reviewed the MRI scan findings of a recurrent complete tear of the 

supraspinatus and subscapularis tendons of the rotator cuff. Dr. Herriott recommended a total 

reverse shoulder procedure. He advised that it would be difficult or impossible for appellant to 

3

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

4

Id.

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

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

6 L.O., Docket No. 19-0953 (issued October 7, 2019); J.D., Docket No. 18-0616 (issued January 11, 2019).

7 M.G., Docket No. 19-0610 (issued September 23, 2019); G.G., Docket No. 18-1788 (issued March 26, 2019).
5

perform her work duties due to her recurrent rotator cuff tear and attributed her disability to her 

prior employment-related rotator cuff tear, noting that the previous attempt at a repair had failed. 

On October 9, 2020 Dr. Herriott diagnosed rotator cuff tear arthropathy, which he advised 

was a degenerative condition due to appellant’s large rotator cuff tear. He recommended a reverse 

total shoulder arthroplasty. Dr. Herriott attributed the need for surgery to appellant’s employmentrelated rotator cuff tear, and provided as a rationale that the rotator cuff deficit caused the elevation 

of the humeral head creating force across the acromion and superior aspect of the glenoid. 

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 In his August 20, 2019 report, Dr. Herriott evidenced knowledge of appellant’s 

employment injury and her treatment with rotator cuff surgery. He found that she was totally 

disabled due to a recurrent tear. Dr. Herriott further found, on October 9, 2020, that she required 

surgery due to her employment injury, and provided a pathophysiological explanation regarding 

why the accepted employment injury was sufficient to cause the need for surgery. Accordingly, 

the Board finds that Dr. Herriott’s opinion, while insufficiently rationalized to meet appellant’s 

burden of proof to establish a recurrence of disability, is of sufficient quality to require further 

development of her claim by OWCP.11

On remand OWCP shall refer appellant to a specialist in the appropriate field of medicine, 

along with the case record and a statement of accepted facts, for a reasoned opinion regarding 

whether she sustained a recurrence of disability beginning August 8, 2019 causally related to her 

accepted September 6, 2017 employment injury, and whether she requires a total reverse shoulder 

procedure as a result of her accepted work injury. Following this and such further development as 

OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

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

8 R.M., Docket No. 20-0486 (issued June 9, 2021); Vanessa Young, 56 ECAB 575 (2004).

9 K.T., Docket No. 19-1436 (issued February 21, 2020); Jimmy A. Hammons, 51 ECAB 219 (1999); WilliamJ. 

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 R.M., supra note 8; JohnJ. Carlone, 41 ECAB 354 (1989).
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ORDER

IT IS HEREBY ORDERED THAT the January 4, 2021 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: March 20, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board