United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.B., Appellant

and

U.S. POSTAL SERVICE, LEBANON POST 

OFFICE, Lebanon, PA, Employer

__________________________________________

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Docket No. 22-1165

Issued: January 18, 2024

Appearances: Case Submitted on the Record

Russell T. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 3, 2022 appellant, through counsel, filed a timely appeal from a February 17, 

2022 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 Board notes that OWCP had not issued a final decision regarding the issue of authorization of surgery. The 

Board therefore lacks jurisdiction to review this issue. See 20 C.F.R. §§ 501.2(c) and 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 his burden of proof to establish a recurrence of 

disability commencing September 24, 2020, causally related to the accepted employment injury.

FACTUAL HISTORY

On April 22, 2014 appellant, then a 54-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed right elbow medial epicondylitis due to 

factors of his federal employment. OWCP accepted the claim for right medial epicondylitis and 

right partial rotator cuff tear. It subsequently expanded the acceptance of the claim to include right 

elbow lateral epicondylitis; right arm strain of muscle, fascia, and tendon of the long head of the 

biceps; and right foot/ankle localized edema post June 21, 2016 surgery.

5

 OWCP authorized right 

rotator cuff and medial epicondylar pronator flexor mass repair surgery, which was performed on 

May 12, 2014, reattachment of right distal biceps tendon and right elbow debridement, and 

reattachment of common extensor surgery, which was performed on June 21, 2016. It paid 

appellant appropriate wage-loss compensation. 

A February 2, 2017 functional capacity evaluation (FCE) found that appellant was capable 

of performing medium work with restrictions of occasional lifting up to 40 pounds from the floor 

to the waist, or up to 30 pounds from the waist to the shoulder: occasional carryingup to 40 pounds

and frequently up to 30 pounds; pushing up to approximately 49.67 pounds; pulling up to

approximately 50.2 pounds; and frequent lifting up to 30 pounds from the floor to the waist, or up 

to 20 pounds waist to shoulder.

In a report dated February 13, 2017, Dr. David L. Glaser, a Board-certified orthopedic 

surgeon, reviewed the February 2, 2017 FCE and observed that the weight limitation appeared to 

be a bit heavy for appellant. He reviewed and approved the modified job offer for very light duty 

with no repetitive activities. In a work capacity evaluation (Form OWCP-5c) of even date,

Dr. Glaser advised that appellant was capable of performing light and medium work with 

3

5 U.S.C. § 8101 et seq.

4 The Board notes that,following the February 17, 2022 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.

5 On October 30, 2011 appellant filed a Form CA-2 alleging that he sustained a right rotator cuff tear due to factors 

of his federal employment. OWCP assigned that claim OWCP File No. xxxxxx995 and accepted it for right rotator 

cuff sprain. It authorized right rotator cuff repair and removal of shoulder bone part surgery, which appellant 

underwent on December 6, 2011. Appellant’s claims have been administratively combined by OWCP, with OWCP 

File No. xxxxx560 serving as the master file.
3

restrictions. The restrictions included up to 30 minutes each of reaching and reaching above the 

shoulder, and referred to the FCE for pushing/pulling and lifting restrictions.

On February 21, 2017 appellant accepted a modified city carrier job offer and returned to 

work that day. The physical requirements of the position included up to six hours of simple 

grasping with both hands.

On October 11, 2018 appellant accepted another modified city carrier job offer. The 

physical requirements of the position were as follows: up to eight hours each of reaching and 

reaching above the shoulder with the left arm; up to eight hours of occasional lifting up to 40 

pounds to waist; frequent lifting up to 30 pounds to waist; occasional lifting up to 30 pounds waist 

to shoulder; frequent lifting up to 20 pounds waist to shoulder; occasional carrying up to 40 

pounds; frequent carrying up to 30 pounds; occasional pushing of 49 pounds; occasional pulling

of 50 pounds; and up to 30 minutes each of reaching with right arm and reaching above shoulder 

with right arm.

Thereafter, OWCP received an October 29, 2018 report from Dr. Glaser advising that 

appellant was capable of performing sedentary work with restrictions. The restrictions were as 

follows: no lifting more than 10 pounds; occasional overhead use; occasional lifting; no repetitive 

use of affected joint, and no driving. 

On November 28, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), to Dr. Robert F. Draper Jr., a Board-certified orthopedic surgeon, for a second opinion 

evaluation to determine the nature and extent of appellant’s accepted employment-related 

conditions. In a report dated December 11, 2018, Dr. Draper diagnosed status post right shoulder 

rotator cuff repair, recurrent right shoulder rotator cuff tear and right elbow injury, right elbow 

avulsion medial epicondylar muscle, and right elbow surgery with reattachment of right distal 

biceps tendon, debridement, and reattachment of right elbow common extensor tendon. He

reported that appellant continued to have right shoulder and elbow complaints. Dr. Draper 

reviewed the recent job offer and found appellant capable of performing medium-duty work with 

restrictions of occasional lifting of up to 40 pounds,frequent lifting of up to 25 pounds, and limited 

driving with a postal vehicle. In an attached Form OWCP-5c, he found that appellant was capable 

of performing medium work with restrictions of up to four hours each of reaching and reaching 

above the shoulder, occasional pushing/lifting/pulling up to 50 pounds, and frequent 

pushing/lifting/pulling up to 45 pounds.

On December 21, 2018 OWCP received a February 22, 2018 duty status report (Form CA17) and an April 24, 2018 work restrictions note, wherein Dr. Glaser found that appellant was 

capable of performing sedentary work with permanent work restrictions of no lifting more than 10 

pounds, and no repetitive upper extremity movement.

On January 23, 2019 the employing establishment offered appellant a limited-duty job as 

a modified city carrier based on the restrictions set by Dr. Draper. The physical requirements of 

the position were as follows: up to eight hours each of reaching and reaching above the shoulder 

with left arm; up to eight hours of occasional lifting up to 40 pounds to waist; frequent lifting up 

to 30 pounds to waist; occasional lifting up to 30 pounds waist to shoulder; frequent lifting up to 

20 pounds waist to shoulder; occasional carrying up to 40 pounds frequent carrying up to 30 
4

pounds; occasional pushing of up to 49 pounds; occasional pulling of up to 50 pounds; and up to 

30 minutes each of reaching with right arm and reaching above shoulder with right arm.

In a letter dated January 30, 2019, counsel noted that Dr. Draper’s report and the Form 

OWCP-5c were incongruous, and the offered position did not comply with Dr. Draper’s 

restrictions.

In a work note dated February 6, 2019, Dr. Glaser related that appellant could not drive a 

vehicle, and had the following limitations: “sedentary-duty work, no lifting greater than 10 

pounds, no overhead use, occasional lifting, and no repetitive use of the affected joint.” In a 

narrative report dated February 6, 2019, he reviewed Dr. Draper’s report and the offered job. 

Dr. Glaser opined that returning appellant to work with Dr. Draper’s restrictions would be 

detrimental to appellant’s shoulder and arm. 

On February 22, 2019 OWCP requested clarification from Dr. Draper regarding

appellant’s work restrictions.

In a Form OWCP-5c dated March 15, 2019, Dr. Glaser found that appellant was capable 

of sedentary work and had permanent work restrictions of no reaching or reaching above the 

shoulder, up to three hours of repetitive wrist movements, no elbow repetitive movements, up to 

three hours of pushing/pulling less than 20 pounds, and up to three hours of lifting up to 15 pounds. 

In a supplemental report dated May 15, 2019, Dr. Draper advised that appellant was 

capable of occasional lifting of up to 50 pounds, frequent lifting up to 25 pounds, and six hours 

out of an eight-hour day of driving a work vehicle. 

On May 29, 2019 OWCP referred appellant, along with a SOAF, to Dr. John Perry, a 

Board-certified orthopedic surgeon, for an impartial medical examination to resolve the conflict in 

medical opinion between Dr. Glaser, appellant’s attending physician, and Dr. Draper, the second 

opinion physician, regarding appellant’s work-related restrictions.

In a report dated July 11, 2019,Dr. Perry, serving as the impartial medical examiner (IME),

detailed appellant’s physical examination findings, and reviewed diagnostic tests. Physical 

examination findings included elongated distal right biceps tendon and right shoulder abduction 

limitation. Dr. Perry diagnosed multiple right shoulder rotator cuff repairs and repair of pronator

teres, distal biceps tendon, and the lateral epicondyle common right elbow extensor tendon. He

related that appellant’s right shoulder rotator cuff tear was sound as resistance testing did not elicit 

pain. However, Dr. Perry also noted that appellant lacked shoulder abduction, which could be 

caused by scarring from his surgery, but he was unable to determine on examination whether 

appellant had adhesions on his right shoulder, because appellant complained of too much pain on 

passive motion. He also related that appellant had loss of strength of the elbow due to elongation 

of the right elbow biceps tendon. Dr. Perry found that appellant was capable of performing 

medium-duty work, noting that he should not overly stress prior operative sites. Dr. Perry noted 

that he was unable to find the 2019 modified job offer in the record. In an attached Form OWCP5c, he indicated that appellant was capable of performing medium work, with restrictions of 

limited right shoulder reaching and reaching above the shoulder, and lifting of up to 30 pounds 

with both arms.
5

On September 13, 2019 appellant accepted an August 28, 2019 modified city carrier job 

offer. The physical requirements of the position were as follows: up to six hours of reaching; up 

to three hours of reaching above the shoulder with left arm only; up to one hour each of bending

and stooping; up to six hours of driving; up to six hours of repetitive wrist/elbow movement; up 

to two hours each of pushing and pulling; and up to two hours of lifting up to 30 pounds with both 

arms.

On September 25, 2020 appellant filed a notice of recurrence (Form CA-2a) claiming 

disability from work commencing September 24, 2020. He claimed that he presented light-duty

restrictions to work on September 24, 2020 but that the employing establishment informed him 

that these restrictions could not be accommodated. Appellant also alleged that his accepted 

conditions had worsened. 

A magnetic resonance imaging (MRI) scan report dated September 11, 2020 noted that 

appellant had postoperative changes from his prior subacromial decompression. 

Appellant subsequently submitted a September 21, 2020 Form OWCP-5c from Dr. Glaser 

reiterating restrictions previously noted. 

In a development letter dated October 6, 2020, OWCP noted that appellant was claiming 

disability due to a material change/worsening of his accepted work-related conditions, and 

requested that he provide additional factual and medical evidence in support of his claim. It 

afforded him 30 days to respond. 

Thereafter, OWCP received a September 17, 2020 report from Dr. Glaser diagnosing right 

elbow later epicondylitis and chronic right shoulder pain. On physical examination, Dr. Glaser 

reported 140 degrees flexion, 0 degrees extension, and positive Jobe and empty can tests. He again 

reiterated that appellant had a permanent 10-pound lifting restriction and a driving restriction. 

In an October 22, 2020 statement, appellant noted that he had been performing a modified 

carrier position since September/October 2019. He stated that his chronic right shoulder and elbow 

pain had progressively worsened since returning to modified work. 

The employing establishment controverted appellant’s recurrence claim on 

November 4, 2020. It noted that since he began the “rehab job” on September 16, 2019 he was 

allowed to use his left arm to case and deliver mail, and was never required to perform overhead 

or repetitive duties with his right arm and no lifting over 30 pounds. Since he began working the 

job, appellant only worked an average of 39.75 hours per week and worked a full week in 32 out 

of 54 weeks.

In a report dated January 5, 2021, Dr. William P. West, an osteopath specializing in pain 

medicine, related that appellant had chronic intractable right shoulder and right upper extremity 

pain. He opined that appellant had exhausted all conservative treatments, and noted that spinal 

neuromodulation therapy was another option for further treatment. 

By decision dated January 29, 2021, OWCP denied appellant’s recurrence claim, finding 

that he failed to establish a material change/worsening in his accepted work-related conditions.
6

Subsequently, OWCP received a December 23, 2020, Form OWCP-5c from Dr. Glaser 

reiterating appellant’s work restrictions previously noted. 

In a letter dated February 4, 2021, appellant, through counsel, requested a hearing before a

representative of OWCP’s Branch of Hearings and Review. A hearing was held on May 14, 2021.

By decision dated July 22, 2021, OWCP’s hearing representative affirmed the January 29, 

2021 decision.

In progress notes dated September 28, 2021, Dr. Carl E. Becker, an orthopedic surgeon,

diagnosed right shoulder rotator cuff insufficiency. On physical examination, he reported

decreased right shoulder range of motion and strength. Dr. Becker noted that his review of 

appellant’s MRI scan from the prior year revealed full thickness rotator cuff tear with retractions. 

He recommended right reverse total shoulder arthroplasty.

On October 20, 2021 OWCP referred the case record to the district medical adviser (DMA)

on medical necessity for the requested surgery. In a report dated October 28, 2021, Dr. Harold A. 

Fenster, a Board-certified general surgeon serving as a DMA, noted that the radiographic studies 

confirmed the progressive clinical deterioration of appellant’s right shoulder, and that he currently 

has findings compatible with impingement. He requested that Dr. Becker provide rationale for the 

necessity of the prescribed surgery due to the accepted employment conditions.

On November 19, 2021 appellant, through counsel, requested reconsideration, and 

submitted the October 28, 2021 DMA’s report in support thereof. Counsel asserted that the 

DMA’s report supported appellant’s recurrence claim. OWCP also received an additional report 

from Dr. Becker dated November 17, 2021. In this report Dr. Becker reiterated that appellant 

should undergo a total shoulder arthroplasty.

By decision dated February 17, 2022, OWCP denied modification.

LEGAL PRECEDENT

An employee seeking benefits under FECA6 has the burden of proof to establish the 

essential elements of his or her claim including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury. 7 

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 

6

Supra note 3.

7

See S.P., Docket No. 21-0380 (issued November 22, 2022); D.S., Docket No. 20-0638 (issued November 17, 

2020); F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May 10, 2019); 

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
7

illness is withdrawn, or when the physical requirements of such an assignment are altered so that 

they exceed his or her established physical limitations.8

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.9

ANALYSIS

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

disability commencing September 24, 2020, causally related to the accepted employment injury.

OWCP properly found that a conflict of medical opinion existed between Dr. Glaser, 

appellant’s treating physician, and OWCP’s second opinion physician, Dr. Draper. It referred 

appellant to Dr. Perry for an impartial medical evaluation to determine appellant’s work capacity. 

On September 13, 2019 appellant accepted an August 28, 2019 modified city carrier job 

offer which was based on the restrictions of the IME, Dr. Perry. The physical requirements of the 

position were as follows: up to six hours of reaching; up to three hours of reaching above the 

shoulder with left arm only; to one hour each of bending and stooping; up to six hours of driving;

up to six hours of repetitive wrist/elbow movement; up to two hours each of pushing and pulling;

and up to two hours of lifting up to 30 pounds with both arms.

On September 25, 2020 appellant filed a Form CA-2a claiming disability from work, 

commencing September 24, 2020. He alleged that he presented light-duty restrictions to the 

employing establishment on September 24, 2020 but that the employing establishment informed 

him that these restrictions could not be accommodated. However, on October 22, 2020, appellant 

noted that he had been performing a modified carrier position since September/October 2019. On 

November 4, 2020 the employing establishment controverted appellant’s recurrence claim, and 

related that appellant began the “rehab job” on September 16, 2019, and since then he was allowed 

to use his left arm to case and deliver mail, and was never required to perform ove rhead or 

repetitive duties with his right arm and no lifting over 30 pounds. Based upon this evidence, the 

Board finds that appellant has not established a recurrence of disability due to a withdrawal of his 

light-duty work, or that the physical requirements of such an assignment were altered so that they 

exceeded his established physical limitations.10

The Board also finds that appellant has not established that his accepted conditions 

worsened to cause total disability as of September 24, 2020. 

8

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

9

Id.

10 Supra note 8. 
8

After September 24, 2020, OWCP received reports from Dr. Glaser dated September 17

and 21 and December 23, 2020, wherein he reiterated appellant’s work restrictions. The Board 

has held that reports from a physician who was on one side of a medical conflict are insufficient 

to overcome the special weight accorded to the IME, or to create a new conflict.11 These reports

are therefore insufficient to establish appellant’s recurrence claim.

In a report dated January 5, 2021, Dr. West related that appellant had chronic intractable 

right shoulder and right upper extremity pain. The Board has held that pain is a symptom and not 

a compensable medical diagnosis.12 This report from Dr. West is therefore insufficient to establish 

that appellant sustained a recurrence of total disability due to his accepted conditions. 

In a report dated September 28, 2021, Dr. Becker diagnosed right rotator cuff insufficiency. 

He explained that an MRI scan from the prior year showed full thickness rotator cuff tear. 

Dr. Becker recommended right reverse total shoulder surgery. In his report dated November 17, 

2021, Dr. Becker reiterated that appellant should undergo total shoulder arthroplasty. However, 

he did not provide an opinion that appellant had total disability during the claimed period causally 

related to an accepted employment condition.13 The Board has also held that medical evidence 

that does not offer an opinion regarding the cause of an employee’s condition or disability is of no 

probative value on the issue of causal relationship.14 As Dr. Becker did not address appellant’s 

disability status or the cause of appellant’s diagnosed condition, his reports are insufficient to 

establish appellant’s recurrence claim. 

In a report dated November 4, 2021, Dr. Fenster related that appellant’s radiographic 

studies confirmed the progressive clinical deterioration of appellant’s right shoulder, and that he 

currently has findings compatible with impingement. However, Dr. Fenster also did not address 

appellant’s total disability status.15

OWCP also received diagnostic studies. The Board has held, however, that diagnostic 

tests, standing alone, lack probative value as they do not address the issue of causal relationship.16

11 See C.L., Docket No. 18-1379 (issued February 5, 2019); I.J., 59 ECAB 408 (2008).

12 K.B., Docket No. 21-0953 (issued October 12, 2022);G.L., Docket No. 18-1057 (issued April14, 2020); J.P., 59 

ECAB 178 (2007).

13 M.H., Docket No. 22-1178 (issued April 25, 2023). 

14 See T.S., Docket No. 20-1229 (issued August 6, 2021); J.M.,Docket No. 19-1169 (issued February 7, 2020); 

A.L., Docket No. 19-0285 (issued September 24, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018);

D.K., Docket No. 17-1549 (issued July 6, 2018).

15 Id.

16 See W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).
9

Because appellant has not submitted rationalized medical opinion evidence sufficient to 

establish employment-related disability from work during the claimed period, due to his accepted 

employment-related conditions, the Board finds that he has not met his 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 and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

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

disability commencing September 24, 2020, causally related to the accepted employment injury.

ORDER

IT IS HEREBY ORDERED THAT the February 17, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 18, 2024

Washington, DC

Patricia H. Fitzgerald, Deputy 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