United States Department of Labor

Employees’ Compensation Appeals Board

____________________________________________

M.S., Appellant

and

U.S. POSTAL SERVICE, ROGER P. MCAULIFFE 

POST OFFICE, Chicago, IL, Employer

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Docket No. 22-1386

Issued: May 18, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 29, 2022 appellant, through counsel, filed a timely appeal from an 

August 10, 2022 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 to consider 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 August10, 2022decision, 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.
2

ISSUE

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

total disability for the period June 22 through December 13, 2019, causally related to his 

accepted January 8, 2018 employment injury.

FACTUAL HISTORY

On January 8, 2018 appellant, then a 59-year-old carrier technician, filed a traumatic 

injury claim (Form CA-1) alleging that on January 8, 2018 he sustained a contusion/bruise with 

the skin intact on his left shoulder when he slipped on ice while in the performance duty. He 

stopped work on the date of injury and returned to work on January 10, 2018.4 OWCP initially 

accepted the claim for left shoulder rotator cuff strain. It later expanded the accepted conditions 

to include complete rotator cuff tear and impingement syndrome of the left shoulder, and sprain 

of the left acromioclavicular (ACL) joint. On May 30, 2018 appellant underwent OWCPauthorized left shoulder arthroscopic surgery. OWCP paid him wage-loss compensation for 

disability from work on the supplemental rolls commencing March 5, 2018 and on the periodic 

rolls commencing April 1, 2018. 

On March 20, 2019 appellant returned to a full-time, modified city carrier position. 

OWCP received medical evidence from Dr. Gregory L. Primus, an attending orthopedic 

surgeon. In progress notes dated June 14, July 5, August 30, November 15, and December 13, 

2019, Dr. Primus indicated that appellant presented for evaluation status post his OWCPauthorized May 30, 2018 arthroscopic left shoulder rotator cuff repair. Appellant informed

Dr. Primus that his surgery was related to his January 8, 2018 employment injury and a retear on 

April 5, 2019. He indicated that, soon after his return to work, he experienced left shoulder pain 

when he pushed himself up from sitting in a low chair with his left shoulder a few times at work. 

Appellant denied having a new injury. Dr. Primus provided assessments that included anterior 

soft tissue impingement; complete rotator cuff tear or rupture of the left shoulder, not specified as 

traumatic; and sprain of left ACL joint, initial encounter. He opined that appellant’s conditions 

were causally related to his accepted employment injury. Dr. Primus noted a need for left 

shoulder revision of the rotator cuff repair with possible reconstruction with dermal allograft. He

opined that, based on appellant’s history, and his review of pertinent records and examination 

findings, appellant’s injuries were causally and directly related to his work injury. In the 

June 14, 2019 progress note, Dr. Primus placed appellant off work until his next reevaluation in 

three weeks due to increasing persistent pain because his restrictions were not accommodated by

his job.

In work status and recommendation forms dated June 14, July 5, August 30,

November 15, and December 13, 2019, Dr. Primus continued to advise that appellant’s diagnosis 

of status post arthroscopic left shoulder rotator cuff repair was related to his employment and 

required left shoulder revision surgery. In the June 14, 2019 work status and recommendation 

4 OWCP assigned the present claim OWCP File No. xxxxxx090. Appellant also filed a traumatic injury claim on 

October 12, 2019 for an April5, 2019 left shoulder sprain, which OWCP assigned OWCP File No. xxxxxx842 and 

denied by decision dated November 25, 2019. OWCP administratively combined File Nos. xxxxxx090 and 

xxxxxx842, with the former serving as the master file. 
3

form, he placed appellant off duty until his next appointment in three weeks. Dr. Primus placed 

appellant off duty for a period to be determined in the July 6, 2019 work status and 

recommendation form. In the August 30, 2019 report, he noted that appellant continued to have 

work restrictions. In the November 15 and December 13, 2019 work status and recommendation 

forms, Dr. Primus indicated that appellant was unable to work until his next appointment in four 

weeks.

In duty status reports (Form CA-17) dated October 16, November 15, and December 13, 

2019, Dr. Primus noted appellant’s date of injury as January 8, 2018. In the October 16, 2019 

Form CA-17 report, he diagnosed left shoulder sprain due to injury. Dr. Primus indicated that 

appellant was unable to resume his regular work and unfit for duty. He again indicated 

appellant’s need for shoulder surgery.

On January 10, 2020 appellant filed a claim for compensation (Form CA-7) for disability 

from work for the period June 22 through December 13, 2019. On the reverse side of the claim 

form, the employing establishment noted that he was off work due to his traumatic injury claim 

for his April 5, 2019 injury under OWCP File No. xxxxxx842, which was denied by OWCP. It 

also contended that appellant had not submitted any medical evidence to establish his present 

claim under OWCP File No. xxxxxx090. 

OWCP continued to receive medical progress reports summarizing appellant’s condition 

and medical treatment after December 13, 2019.

In a January 21, 2022 development letter, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of medical evidence necessary to establish his claim and 

afforded him 30 days to submit the required evidence. No additional evidence was submitted. 

By decision dated March 8, 2022, OWCP denied appellant’s claim for compensation for 

disability from work during the period June 22 through December 13, 2019, finding that he had 

not provided medical evidence to establish that he was totally disabled from work during the 

claimed period due to his January 8, 2018 employment injury. It noted that the evidence of 

record established that he sustained a new left shoulder injury.

On March 16, 2022 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

July 5, 2022. 

By decision dated August 10, 2022, OWCP’s hearing representative affirmed the 

March 8, 2022 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 This term also means an inability to work because a light-duty assignment made 

5

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). 
4

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.6 Absent a change 

or withdrawal of a light-duty assignment, a recurrence of disability following a return to light 

duty may be established by showing a change in the nature and extent of the injury-related 

condition such that the employee could no longer perform the light-duty assignment.7

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 inclu de a 

condition that results from a new injury, even if it involves the same part of the body previously 

injured.8

An employee who claims a recurrence of disability due to an accepted employmentrelated 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 

employment injury and supports that conclusion with medical reasoning. 9 Where no such 

rationale is present, the medical evidence is of diminished probative value. 10

ANALYSIS

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

total disability for the period June 22 through December 13, 2019, causally related to his 

accepted January 8, 2018 employment injury.

In support of his claim, appellant submitted progress notes, work status and 

recommendation forms, and Form CA-17 reports dated June 14 through December 13, 2019 

from his attending physician, Dr. Primus. Dr. Primus opined that appellant was totally disabled 

from work commencing June 14, 2019 due to his continuing employment-related conditions. 

6

Id.

7

See S.G., Docket No. 20-0828 (issued January 6, 2022); M.F., Docket No. 20-0136 (issued August 5, 2021);

G.L., Docket No. 16-1542 (issued August 25, 2017); Theresa L. Andrews, 55 ECAB 719, 722 (2004). See also 

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB 

222 (1986).

8 Federal (FECA) Procedure Manual, Part 2 --Claims, Recurrences, Chapter 2.1500.2 (June 2013); P.R., Docket 

No. 20-0596 (issued October 6, 2020); D.T., Docket No. 19-1064 (issued February 20, 2020); Kenneth R. Love, 50 

ECAB 193, 199 (1998).

9

See J.S., Docket No. 19-1035 (issued January 24, 2020); H.T., Docket No. 17-0209 (issued February 8, 2019); 

Ronald A. Eldridge, 53 ECAB 218 (2001).

10 E.M., Docket No. 19-0251 (issued May 16, 2019); MaryA. Ceglia, Docket No. 04-0113 (issued July 22, 2004).
5

While Dr. Primus opined that the January 8, 2018 employment injury rendered appellant totally 

disabled from work for the claimed period, he did not explain with sufficient rationale as to how 

appellant’s inability to work was due to his accepted left shoulder conditions, for which he 

underwent surgical repair on May 30, 2018, and would have rendered him unable to perform his 

work duties. The Board has held that a report is of limited probative value regarding causal 

relationship if it does not contain medical rationale explaining how a given medical condition/

disability was related to accepted employment factors.

11

 For this reason, the Board finds that the 

medical evidence from Dr. Primus is insufficient to establish appellant’s burden of proof.

As appellant has not submitted sufficient medical evidence to establish total disability

from work for the period June 22 through December 13, 2019, due to a spontaneous change or 

worsening of his January 8, 2018 employment injury, 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(a) 

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 

total disability for the period June 22 through December 13, 2019, causally related to his 

accepted January 8, 2018 employment injury.

11 See D.H., Docket No. 21-0102 (issuedJuly 28, 2021); Y.D., Docket No. 16-1896 (issued February 10, 2017) (a 

report is of limited probative value regarding causal relationship if it does not contain medical rationale describing 

the relation between work factors and a diagnosed condition/disability).
6

ORDER

IT IS HEREBY ORDERED THAT the August 10, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 18, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board