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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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0486
Issued: June 9, 2021

Case Submitted on the Record

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.

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.

2

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.

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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

4

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).
7

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 appellant sustained 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-642
Issued: November 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 18, 2011 appellant, through his representative, filed a timely appeal from the
October 4, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her claim for a work-related traumatic injury to her arms. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
arm condition in the performance of duty on January 15, 2003.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a June 2, 2008 decision,2 the Board
found that the case was not in posture for a decision due to a conflict in the medical opinion
evidence regarding whether appellant met her burden of proof to establish that she sustained an
arm condition in the performance of duty on January 15, 2003.3 The Board found that there was
a conflict in the medical evidence between Dr. Arnold S. Lincow, an attending Board-certified
family practitioner, and Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon serving as an
OWCP referral physician, regarding whether she developed a medical condition involving her
arms as a result of the accepted January 15, 2003 work incident when two bundles of magazines
fell on her hands and hit both her thumbs. The Board remanded the case to OWCP and directed
it to refer appellant to an impartial medical specialist for an examination and opinion on the
matter of whether she sustained an arm condition due to the accepted January 15, 2003 work
incident.
On remand, OWCP referred appellant, together with a statement of accepted facts and the
medical record, to Dr. Mark Rekant, a Board-certified orthopedic surgeon, in order to resolve the
conflict in the medical opinion regarding her claimed arm condition. In a February 19, 2009
decision, it denied appellant’s claim for a January 15, 2003 work injury based on a June 26, 2008
report produced by Dr. Rekant. In his June 26, 2008 report, Dr. Rekant diagnosed bilateral
carpal tunnel syndrome, but opined that there was no indication by history, physical examination
or a review of the medical records that appellant’s current condition was at all related to the
traumatic work incident of January 15, 2003 or to repetitive tasks performed while working. He
attributed her present symptoms to “idiopathic carpal tunnel syndrome” and noted that there was
no direct correlation between postal workers having an increased incidence of carpal tunnel
syndrome as compared to the general population. Dr. Rekant noted that appellant was not
complaining of contusion-type injuries that might have occurred from the mail bundles hitting
her hands and stated, “While it is reasonable for [appellant] to seek medical treatment or medical
and surgical treatment for her stated symptoms, this is not related to her activities as a post[al]
worker and certainly not related to her trauma of January 15, 2003…. In summary, there is no
causal relation between [her] symptoms and her work activities or supposed work injury.”
In a February 22, 2010 decision,4 the Board set aside OWCP’s February 19, 2009
decision denying appellant’s claim that she sustained an arm condition at work on
January 15, 2003. The Board found that the June 26, 2008 report produced by Dr. Rekant
2

Docket No. 08-274 (issued June 2, 2008). OWCP accepted that on January 15, 2003 appellant, then a 44-yearold casual mail carrier, experienced a work incident when two bundles of magazines fell on her hands and hit both
her thumbs. Appellant claimed that she sustained bilateral carpal tunnel syndrome due to the January 15, 2003 work
incident, but OWCP denied her claim finding that she did not submit medical evidence establishing that she
sustained an arm injury due to this incident.
3

The Board notes that appellant filed an occupational disease claim on March 7, 2005, alleging that she
developed bilateral carpal tunnel syndrome as a result of her repetitive employment duties. In a March 20, 2007
decision, the Board affirmed OWCP’s March 31, 2006 denial of appellant’s claim, finding that she failed to
establish that she developed carpal tunnel syndrome due to her federal employment duties. Docket No. 07-218
(issued March 20, 2007). The Board notes that appellant’s claim of an occupational injury to her arms, caused by
her repetitive duties over time, is not the subject of the present appeal.
4

Docket No. 09-1399 (issued February 22, 2010).

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required clarification and elaboration because he provided a vague and speculative opinion
regarding the cause of appellant’s carpal tunnel syndrome. Dr. Rekant also did not adequately
address whether the January 15, 2003 work incident, when heavy bundles of mail fell on
appellant’s hands, caused her to sustain bilateral carpal tunnel syndrome. The Board remanded
the case to OWCP to obtain a supplemental report from Dr. Rekant. The facts and circumstances
contained in the Board’s decisions are incorporated herein by reference.
On remand, OWCP provided an updated statement of accepted facts and requested a
supplemental report from Dr. Rekant. In a March 31, 2010 report, Dr. Rekant stated that, with
regard to appellant’s reported symptoms, there was no evidence of traumatic injury suffered to
her wrists as a result of her federal duties on January 15, 2003. He indicated that, with regard to
the bundles of mail falling on her hands on January 15, 2003, this would have caused a very
superficial trauma to the surrounding region, but there was no evidence that linked contusion or
external trauma to the development of carpal tunnel syndrome within a reasonable degree of
medical certainty. Dr. Rekant stated:
“Within a reasonable degree of medical certainty, this patient’s carpal tunnel
syndrome has come about from unknown causes. Specifically, there is no
indication or relation with direct causation. There is no evidence of aggravation,
temporary aggravation, permanent aggravation, acceleration or precipitation of
her condition … stemming from an injury sustained while performing her federal
duties. The preponderance of evidence and likelihood is such that this patient
developed her carpal tunnel related symptoms in the course of the normal aging
process as afflicted with combination of genetic predisposition and the general
aging process as is commonly seen [with] her patient population. With further
review of definitions provided, my opinion regarding the causality of her carpal
tunnel syndrome is unchanged. Within a reasonable degree of medical certainty
her carpal tunnel is not directly and causally related to her work activities.”
In an October 4, 2010 decision, OWCP denied appellant’s claim that she sustained an
arm condition in the performance of duty on January 15, 2003. It found that Dr. Rekant’s
opinion represented the weight of the medical evidence with respect to this matter.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally

5

5 U.S.C. §§ 8101-8193.

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related to the employment injury.6 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the claimant’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.10
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”11 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.12 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.13

6

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990). A traumatic
injury refers to injury caused by a specific event or incident or series of incidents occurring within a single workday or
work shift whereas an occupational disease refers to an injury produced by employment factors which occur or are
present over a period longer than a single workday or work shift. 20 C.F.R. §§ 10.5 (q), (ee); Brady L. Fowler, 44
ECAB 343, 351 (1992).
8

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
9

John J. Carlone, 41 ECAB 354, 356-57 (1989); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact
of Injury, Chapter 2.803.2a (June 1995).
10

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

11

5 U.S.C. § 8123(a).

12

William C. Bush, 40 ECAB 1064, 1975 (1989).

13

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

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In a situation where OWCP secures an opinion from an impartial medical examiner for
the purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.14
ANALYSIS
Appellant claimed that she sustained bilateral carpal tunnel syndrome on January 15,
2003 when two bundles of magazines fell on her hands and hit both her thumbs. OWCP
accepted the occurrence of the January 15, 2003 work incident, but found that appellant had not
shown that she sustained an arm condition due to this work incident. Appellant had been
referred to Dr. Rekant, a Board-certified orthopedic surgeon, for an impartial medical
examination and an opinion. In a February 22, 2010 decision, the Board directed OWCP to
obtain a supplemental report from Dr. Rekant in order to clarify his opinion on the matter of
whether appellant sustained an arm condition in the performance of duty on January 15, 2003.
The Board finds that Dr. Rekant’s supplemental opinion of March 31, 2010 is entitled to
the weight of the medical evidence with respect to the relevant issue of this case and shows that
appellant did not sustain an arm condition in the performance of duty on January 15, 2003 as
alleged.15
In his report, Dr. Rekant displayed that he had an accurate picture of appellant’s factual
and medical history and reached conclusions that were in accordance with this history. He
indicated that he had reviewed the medical evidence of record and posited that the accepted
January 15, 2003 work incident, when two bundles of magazines fell on appellant’s hands and
hit both her thumbs, was not the type of trauma which would have caused appellant to develop
carpal tunnel syndrome. On appeal, counsel argued that Dr. Rekant did not adequately explain
his opinion, but the Board notes that Dr. Rekant explained that the January 15, 2003 incident
would have caused a very superficial trauma to the surrounding region, but there was no
evidence that linked this type of contusion or external trauma to the development of carpal tunnel
syndrome within a reasonable degree of medical certainty. Moreover, Dr. Rekant explained that
appellant’s diagnosed condition of bilateral carpal tunnel syndrome had a nonwork-related
source in that it was likely that she developed her carpal tunnel condition due to her genetic
predisposition and the general aging process.16
For these reasons, appellant has not shown that she sustained an arm condition in the
performance of duty on January 15, 2003 when bundles of magazines fell on her hands and
thumbs and OWCP properly denied her claim for such an injury.

14

Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

15

See supra notes 12 through 15.

16

On appeal, counsel argued that Dr. Rekant did not clearly indicate whether appellant’s repetitive work duties
caused her bilateral carpal tunnel syndrome. However, the question of whether appellant sustained an arm condition
due to her repetitive work duties is not currently before the Board. Rather, the present case concerns appellant’s
claim that she sustained an arm condition due to the accepted January 15, 2003 work incident. Moreover,
Dr. Rekant did provide an opinion that appellant’s arm condition was not in any way related to work factors.

5

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 did not meet her burden of proof to establish that she
sustained an arm condition in the performance of duty on January 15, 2003.
ORDER
IT IS HEREBY ORDERED THAT the October 4, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Romulus, MI, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-603
Issued: June 17, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 20, 2007 appellant filed a timely appeal from a December 3, 2007 decision
of the Office of Workers’ Compensation Programs. Under 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of her right shoulder condition as of
January 22 and April 2, 2004.
FACTUAL HISTORY
Appellant, a 46-year-old mail handler, filed a Form CA-2 claim for benefits on March 1,
2001, alleging that she developed a tendinitis condition in her right rotator cuff causally related
to factors of employment. The Office accepted the claim for right shoulder rotator cuff
tendinitis.
In a March 14, 2003 report, Dr. Peter Janevski, Board-certified in general surgery, stated
that appellant was on light duty with restrictions of no repetitive gripping, no repetitive hand or

wrist motion, no lifting over five pounds, no pushing or pulling heavy mail carts and no lifting of
mailbags.
In a return to work form report dated May 22, 2003, Dr. Kavitha Vanga, Board-certified
in internal medicine and appellant’s treating physician, stated that she could return to work as of
May 22, 2003 with restrictions of no lifting exceeding five pounds, no pulling, pushing or
repetitive movements of the right arm and no repetitive squatting, bending or lifting.
On June 29, 2003 appellant filed a CA-2a form, claim for benefits, alleging that she
sustained a recurrence of disability on June 18, 2003, which was causally related to her accepted
right shoulder rotator cuff tendinitis condition. The Office accepted the claim.
In an August 5, 2003 statement, appellant stated:
“The reason I ... believe that this current disability or medical treatment is related
to the original work injury; is because the same symptoms are there and they still
occur. I still have pain in my shoulder. I can only raise my shoulder to a certain
degree, I also have swelling in my shoulder and hand area, it is very painful.
“I repair the mail, I tape packages, when I finish taping the mail, I throw the
packages in a hamper. My restrictions say that I should only lift five pounds, I try
to stick to my restrictions, a lot of the packages are a lot heavier, you try to look at
the package before you pick it up, but sometime the package looks a lot lighter
than it [is]. I also write out about two to three hundred flyers to put on the
containers. I have to round date or cancel out stamps. With the pressure pushing
up and down on the round dater, bothers my shoulder and hand.”
Appellant submitted an August 4, 2003 report from Dr. Sarah McDade, a specialist in
physical and rehabilitative medicine, who stated that appellant had been experiencing right
shoulder pain since 2001 and had been diagnosed with a right shoulder rotator cuff
(supraspinatus) partial tear and biceps tenosynovitis. She noted that she had been diagnosed with
moderately severe right carpal tunnel syndrome. Dr. McDade noted on examination that
appellant showed extreme right shoulder range of motion restrictions as well as strength deficits,
which led her to diagnose right shoulder adhesive capsulitis. She noted that conservative
treatment including physical therapy, pain medications, ice and heat had effected little
improvement. Dr. McDade stated that, due to the extent of appellant’s right shoulder motion and
strength limitations, she had placed her on work restrictions of no lifting greater than five
pounds, no lifting at or above the shoulder level and no lifting or work above 60 degrees, as she
was unable to lift her arm past the range of 50 to 60 degrees in any direction. In an August 22,
2003 form report, she stated that appellant could return to work as of August 22, 2003 with
restrictions of no lifting over five pounds, no lifting above the shoulder and no work above the
shoulder level.
In a February 9, 2004 report, Dr. James Wang, Board-certified in internal medicine, noted
appellant’s complaints of right shoulder pain. He related that appellant believed that this pain
resulted from overuse of the right shoulder due to excessive lifting, pulling and pushing at work
and that it began in January 2001. Dr. Wang stated that appellant experienced pain in the area of

2

her right shoulder overlying the glenohumeral joint, which sometimes radiated upwards towards
the neck and radiated downwards towards the biceps. He advised that the pain worsened with
movement down the shoulder, particularly that involving internal rotation, as well as with lifting,
any kind of repetitive motion or any kind of shoulder movement; appellant also noted some
weakness secondary to pain. Dr. Wang stated on examination that appellant had limited flexion,
extension and abduction, in addition to right shoulder joint crepitus upon passive range of
motion. He diagnosed suprascapular tear with adhesive capsulitis. Dr. Wang recommended
injections, physical therapy and imposition of a brachial plexus block prior to physical therapy.
In a form report dated February 20, 2004, Dr. McDade stated that appellant had
complaints of continued right shoulder pain, hand swelling and limited motion with possible
reflex sympathetic dystrophy. She advised that appellant was scheduled for examination with a
specialist. Dr. McDade checked a box indicating “no activity; unable to work” and indicated that
appellant could return to work on March 2, 2004.
In an April 20, 2004 report, Dr. McDade, stated:
“This is a return visit on this 49-year[-]old female that I have seen on multiple
visits for right shoulder pain. It is significant for a partial rotator cuff tear, but
there is definitely underlying neurological abnormalities and I am suspicious of
complex regional pain syndrome.... She states that she has continued on the
swelling and pain in the shoulder, paresthesias as well and she is very concerned
about the injection. At this point, I have no other conservative treatment to offer
to her. If she does do [an] injection or fails to do it, my only other option is to
send her back to Dr. Anderson for the surgical approach. I did take her off work
until May 10 and she will follow up with me as needed.”
On June 2, 2004 appellant underwent surgery to ameliorate an adhesive capsulitis
condition in her right shoulder. The procedure was performed by Dr. Henry Kroll, Boardcertified in anesthesiology, who implanted a supra clavicular nerve block in her right shoulder.
In a report dated June 11, 2004, Dr. Vanga stated that appellant had experienced chronic
right shoulder pain and noted that a 2003 magnetic resonance imaging (MRI) scan showed a
partial supraspinatus tear. She noted that appellant had been off work because of her right
shoulder pain. Dr. Vanga stated on examination that appellant displayed considerable pain and
that all of her shoulder movements were restricted. She advised that appellant was able to
actively abduct the shoulder only about 30 degrees, with pain anteriorly over the shoulder.
Dr. Vanga diagnosed partial right rotator cuff tear and placed her off work for three weeks.
In a July 8, 2004 report, Dr. Vanga noted continuing right shoulder pain and diagnosed
complex regional pain syndrome of the right shoulder, with adhesive capsulitis. She advised that
the supraspinatus nerve block helped relieve appellant’s pain at first, the pain eventually
returned. Dr. Vanga stated that appellant had tried to work with restrictions intermittently since
2000 but found it hard to find a position which accommodated her work restrictions.

3

In a report dated August 2, 2004, Dr. Wesley Jackson, Board-certified in general surgery,
stated:
“[Appellant] is a 49-year[-]old right hand dominant female with right shoulder
pain. We saw her a year ago as a referral from her primary physician, Dr. Vanga.
At that time, her symptoms were very nonspecific and inconsistent with any
intracapsular or rotator cuff pathology per se because she had a lot of periscapular
pain, radiating pain, history of carpal tunnel symptoms and no specific episode of
injury. [Appellant] was therefore referred at that time to the pain clinic. She
returns today stating [that] her symptoms have really not changed all that much.
[Appellant] has gone through two pain clinic injections in her brachial plexus,
neither of which helped for any longer than a week. She has had an intracapsular
injection by Dr. McDade per the patient’s description. [Appellant] said that did
not help for very long. She has also been back in therapy for a couple months
back in April with some help, but no long lasting effect. [Appellant] complains of
pain at rest as well as pain with activity, mainly overhead activity. She is off
work on workers’ compensation and she works with [the employing
establishment] without any specific plans to return anytime soon.
“[Appellant] does not describe any numbness in her hands. She does describe
some swelling and is not sure whether she has weakness in her right upper
extremity. [Appellant] does not describe any symptoms in her neck or frank
radiculopathic-like symptoms.”
Dr. Jackson noted limited range of motion, difficulty with overhead lifting and positive
impingement signs on examination. He diagnosed right shoulder pain, nonspecific intracapsular
pathology, possible continued complex regional pain syndrome. Dr. Jackson stated that
appellant would undergo ultrasound testing of her right shoulder to rule out any rotator cuff
pathology, as well as another injection.
In a report dated September 14, 2004, Dr. Vanga noted that appellant was currently on
sick leave. She essentially reiterated her previous findings and conclusions.
In a September 21, 2004 statement, appellant stated:
“I was unable to attend work on January 22, 2004 and April 2, 2004 because of
the pain in my right shoulder was so severe that I was unable to perform my job
assignment. I could barely lift my shoulder. I feel my injury is job related
because it was the same symptoms that I have always have. I have been in pain
everyday since my injury occurred. I did return back to work after February 3,
2004 after being on disability.”

4

On September 28, 2004 appellant filed a CA-2a form claim for benefits, alleging that she
sustained recurrences of disability from January 22 to February 3, 2004 and as of April 2, 2004
and continuing, which were causally related to her accepted right shoulder rotator cuff tendinitis
condition.1
In a November 2, 2004 statement of accepted facts, the Office indicated that, as of
February 14, 2000, appellant’s work restrictions included no repetitive hand/wrist motion, no
lifting over five pounds and no pushing or pulling of heavy mail carts. It stated that her work
duties included pushing buttons on machines; working the mail repair desk wrapping packages;
doing quality checks; and doing labels and filing. The Office noted that appellant also was
periodically assigned to hanging empty mail sacks, an activity which apparently began several
months prior to February 2001. In appellant’s March 2001 claim, she indicated that her duties
hanging empty mail sacks aggravated her right shoulder problem; she was no longer assigned to
duties involving empty mail sacks after January 2001. She went off work again from June 20,
2003 until she returned to light duty on July 12, 2003.
By decision dated November 18, 2004, the Office denied appellant compensation for a
recurrence of her accepted right shoulder condition. It stated that appellant failed to meet her
burden of proof to establish that she had an objective worsening of her work-related right
shoulder condition or that she experienced a change in the nature and extent of the light-duty
requirements.
By letter dated January 12, 2005, appellant requested reconsideration.
Appellant submitted a December 2004 report from Dr. Vanga, who stated:
“This is a letter updating the medical condition of [appellant]. As you know, she
has a tear in the right rotator cuff following work-related trauma back in
October 2000. [Appellant] has been having worsening pain since earlier this year
and has been completely off work since April 2004.
“[Appellant] had an ultrasound of the shoulder clone back in 2000 initially when
she had the symptoms. This showed intrasubstance tear in the supraspinatus
tendon. The repeat ultrasound done this year, back in August 2004, showed the
same finding, but in addition [appellant] had also a calcific deposit in the
supraspinatus tendon and moderate arthritis in the [AC] acromioclavicular joint
which was new =compared to the previous ultrasound.
“[Appellant] was given ultrasound-guided injection into the calcific deposit which
did not help. [She] has been through brachial plexus block which did not help
either. Physical therapy did not improve the pain. At this time [appellant] is in
pain all the time irrespective of all the injections she had and is on pain
medication around the clock.

1

Appellant stated on the form that she returned to light duty on or about February 3, 2004 and worked until
April 3, 2004.

5

“I do understand that [appellant] has been on restrictions for her problem before
going off work completely in April 2004. Although she was not lifting anything
more than 10 pounds, she was still doing repetitive movements with her arms,
including wrapping packages, tiling, etc., which made her condition worse.
Subjectively, the pain got worse and objectively [appellant] developed some
arthritis in her [AC] joint and also a small calcific deposit in her supraspinatus
tendon.
“In regards to [appellant’s] symptoms and not responding to any treatment
modalities except for control of pain with medications, she is not able to return to
work. Even if the work were not to involve any kind of lifting, the repetitive
movements of her arms would make her condition worse.”
By decision dated April 7, 2005, the Office denied the request for modification of the
November 18, 2004 decision.
By letter dated May 5, 2005, appellant requested reconsideration. She submitted a
May 31, 2005 return to work form from Dr. Vanga, which indicated that she had placed
appellant off work from May 1 to September 1, 2005.
By decision dated June 30, 2005, the Office denied appellant’s request for modification.
By letter dated June 26, 2006, appellant’s attorney requested reconsideration.
In a March 28, 2006 report, Dr. Janevski stated:
“[Appellant] works at [the employing establishment]. She had a right carpal
tunnel release in January 2000.... [Appellant] also has [a] right shoulder injury
with rotator cuff tear. This occurred in 2001. This was a work[-]related injury.
[Appellant] has been off work for the past two years due to the shoulder problem.
Dr. Janevski noted that appellant had also developed pain and triggering of the right third
digit, which began three to four months previously. He advised that she had been off work for
about two years and stated that this was not a work-related condition. Dr. Janevski noted that
appellant was not sure what she was going to do about her right shoulder condition. He stated
that she continued to be off work due to the right shoulder problem.
In a July 24, 2006 report, Dr. Vanga essentially reiterated her previously stated findings
and conclusions.
In addition, appellant submitted copies of her diary accounts dated June 19, 2001 to
January 23, 2002, which described duties at work which the employing establishment allegedly
had her perform. She also submitted statements from coworkers Dale Gaines and Michele
Coombs dated June 18 and July 18, 2006, respectively, as well as a June 15, 2006 statement from
her daughter, which asserted that the employing establishment made her perform duties

6

exceeding her physical restrictions, which resulted in the aggravation of her accepted
employment conditions. In appellant’s July 18, 2006 statement, coworker and union steward
Ms. Coombs stated:
“I have been a mail handler union steward at the priority mail center for eight
years. [D]uring this time I have ... [represented appellant]. Often times
[appellant] would work in the repair unit, which encompassed repairing damaged
mail, retrieving damaged mail from each console on the SPBS machines and
hanging priority sacks.
“[Appellant] would come to me when she felt that a supervisor was asking her to
work outside of her restrictions. I ... always advised [her] not to work outside of
her restrictions. On July 23, 2003 [appellant] was asked to hand cancel several
hundred small parcel packages and on January 24, 2004, she was working repair
and her hand began to swell, so a picture was taken of her hand and she went
home. This is only a few of the incidents that occurred.”
By decision dated February 28, 2007, the Office denied appellant’s request for
modification.2
By decision dated December 3, 2007, it reissued the February 28, 2007
decision.3
LEGAL PRECEDENT
When an employee, who is disabled from the job 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 to establish by the weight of the
reliable, probative and substantial evidence a recurrence of total disability. As part of this
burden, 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 light-duty requirements.4
ANALYSIS
In the instant case, the record does not contain any medical opinion showing a change in
the nature and extent of appellant’s injury-related conditions. Appellant has failed to submit any
medical opinion containing a rationalized, probative report which relates her condition or
disability as of January 22 and April 2, 2004 to her employment injury. For this reason, she has
not discharged her burden of proof to establish her claim that she sustained a recurrence of
disability as a result of her accepted employment injury during these periods.
2

The Office noted that it accepted a claim for bilateral carpal tunnel syndrome, which under claim File No.
xxxxxx269, date of injury April 14, 1999. It stated that it had administratively combined this bilateral carpal tunnel
claim with the instant claim.
3

By order dated August 21, 2007, the Board remanded the case to the district office for inclusion of the
February 28, 2007 decision, which was not in the case record at that time.
Docket No. 07-1117
(issued August 21, 2007).
4

Terry Hedman, 38 ECAB 222 (1986).

7

Appellant submitted reports from Drs. Wang, McDade, Vanga, Jackson and Janevski.
These physicians noted complaints of chronic right shoulder pain, swelling, parasthesias and
limited range of motion and diagnosed various ailments: suprascapular tear, adhesive capsulitis,
right rotator cuff tendinitis and reflex sympathetic dystrophy. While the reports from these
physicians provided diagnoses of appellant’s condition and indicated generally that she
complained of right shoulder pain, they did not contain a probative, rationalized medical opinion
sufficient to establish that her disability as of January 22 and April 2, 2004 was causally related
to her accepted right shoulder rotator cuff tendinitis condition.5 Dr. McDade placed appellant on
work restrictions of no lifting greater than five pounds, no lifting at or above the shoulder level and
no lifting or work above 60 degrees in her August 4, 2003 report. She also checked a box
indicating “no activity; unable to work” in her February 20, 2004 report and stated that appellant
could return to work on March 2, 2004. However, reports which support causal relationship with
a checkmark are insufficient to establish the claim, as the Board has held that without further
explanation or rationale, a checked box is not sufficient to establish causation.6
Dr. Vanga submitted reports from 2003 through 2006. In her June 11, 2004 report, she
noted that appellant had been off work because of her right shoulder pain. Dr. Vanga stated that
a 2003 MRI scan of appellant’s right shoulder showed a partial supraspinatus tear. On
examination she noted considerable right shoulder pain and stated that all of appellant’s shoulder
movements were restricted. Dr. Vanga diagnosed partial right rotator cuff tear and placed her off
work for three weeks. She stated in a July 8, 2004 report, that appellant had tried to work with
restrictions intermittently since 2000 but found it difficult to find a job which accommodated her
work restrictions. In her December 2004 report, Dr. Vanga stated that appellant had been
experiencing worsening pain since earlier in the year and had been off work completely since
April 2004. She related her complaints that, despite the prescribed work restrictions for her right
shoulder condition problem before going off work completely in April 2004, she was still
engaged in repetitive activity like wrapping packages and tiling, which worsened her condition
and her pain, resulting in arthritis in her AC joint and a small calcific deposit in her supraspinatus
tendon. Dr. Vanga also submitted a July 24, 2006 report; however, this report essentially
reiterated the findings and conclusions she outlined in her previous reports.
Dr. Vanga’s reports did not constitute sufficient medical evidence demonstrating a causal
connection between appellant’s employment-related condition and her alleged recurrence of
disability. Causal relationship must be established by rationalized medical opinion evidence.
Dr. Vanga’s reports, however, failed to provide an explanation in support of appellant’s claim
that she was disabled as of January 22 and April 2, 2004. Thus, her reports did not establish a
worsening of appellant’s condition and therefore do not constitute probative, rationalized
evidence demonstrating that a change occurred in the nature and extent of the injury-related
condition.7 Inasmuch as Dr. Vanga’s opinion is at best speculative as to the relationship between
5

In his February 9, 2004 report, Dr. Wang noted complaints of right shoulder pain, stated findings on
examination and recommended courses of conservative treatment. However, he did not provide an opinion
regarding whether appellant’s alleged disability or condition was caused or aggravated by her March 2001
employment injury.
6

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

7

William C. Thomas, 45 ECAB 591 (1994).

8

appellant’s condition as of January 22 and April 2, 2004 and her March 2000 employment injury
and she failed to provide any medical rationale supportive of her opinion, it is of limited
probative value.8 Dr. Jackson’s August 2004 report noted periscapular pain, radiating pain, a
history of carpal tunnel symptoms and no specific episode of injury. He noted limited range of
motion, difficulty with overhead lifting and positive impingement signs on examination.
Dr. Jackson diagnosed right shoulder pain, nonspecific intracapsular pathology, possible
continued complex regional pain syndrome. He stated that appellant was currently off work with
no specific plans to return soon. Dr. Jackson did not render an opinion as to whether her alleged
disability as of January 22 and April 2, 2004 was caused or aggravated by her March 2000
employment injury.
Dr. Janevski stated in his March 2006 report, that appellant had a work-related rotator
cuff condition, which caused her to be off work for the past two years. However, he failed to
provide a medical opinion which sufficiently described her light-job duties or explained the
medical process through which appellant’s condition worsened to cause the claimed recurrence
of disability. His report did not constitute sufficient medical evidence demonstrating a causal
connection between appellant’s employment injury and her alleged recurrence of disability.
The reports submitted by appellant failed to provide sufficient support for her claim that
she was totally disabled as of January 22 and April 2, 2004. These reports did not establish a
worsening of her conditions and therefore do not constitute probative, rationalized opinion
evidence demonstrating that a change occurred in the nature and extent of the injury-related
condition.9
In addition, appellant failed to submit sufficient evidence that there was a change in the
nature and extent of her limited-duty assignment such that she no longer was physically able to
perform the requirements of her light-duty job. The November 2004 statement of accepted facts
indicated that appellant’s original work restrictions from 2000 to 2001 included no repetitive
hand or wrist motion, no lifting over five pounds and no pushing or pulling of heavy mail carts.
The Office stated that her actual duties during these periods included pushing buttons on
machines, working the mail repair desk wrapping packages, doing quality checks and doing
labels and filing. It noted that she was also periodically assigned to hanging empty mail sacks,
an activity which apparently began several months prior to February 2001. In her March 2001
claim appellant indicated that her duties included hanging empty mail sacks aggravated her right
shoulder problem; however, the Office stated that she was no longer assigned to duties involving
empty mail sacks after January 2001. The contemporaneous reports from Drs. McDade, Vanga
and Janevski indicate that appellant’s work restrictions remained essentially in place throughout
the period March 2001 to January 2004, although she was off work intermittently during that
period. The Office accepted appellant’s July 2003 claim for recurrence of disability, as her
August 5, 2003 statement that she was performing duties, which exceeded her restrictions and
aggravated her accepted shoulder condition was supported by the contemporaneous evidence of
record.
8

Jennifer Beville, 33 ECAB 1970 (1982).

9

The Board notes that the physicians of record did not attribute any disability to appellant’s accepted bilateral
carpal tunnel condition and therefore this condition was not discussed in this decision.

9

However, in appellant’s subsequent claim that she sustained recurrences of her
work-related disability as of January 22 and April 2, 2004, she failed to provide similar support
for her assertions. The diary accounts appellant submitted which described her work duties
concerned the period June 19, 2001 to January 23, 2002. None of the witness statements that
appellant submitted contained specific, probative evidence sufficient to establish that she
performed work exceeding her restrictions resulting in disability as of January 22 and
April 2, 2004. Appellant’s daughter stated in her June 2006 statement that she witnessed her
mother aggravating her right shoulder condition by exceeding her work restrictions when she
worked with her in December 2001. Ms. Coombs asserted in her July 2006 statement that she
witnessed appellant doing work outside of her restrictions on July 23, 2003 and
January 24, 2004. The assertions pertaining to these dates are not probative, however, as the
instant claim concerns periods of alleged disability for which appellant is claiming compensation
as of January 22 and April 2, 2004; she was not at work on January 24, 2004. The June 2006
statement from coworker Mr. Gaines is not specific regarding which dates he allegedly witnessed
appellant exceeding her work restrictions or being harassed to do so by her supervisor.
Appellant failed to provide sufficient explanation or proof that she was performing duties which
exceeded her work restrictions and her ability to perform the light-duty job she was working in
January and April 2004.
Accordingly, as appellant has not submitted sufficient factual or medical evidence
supporting her claim that she was totally disabled from performing her light-duty assignment as
of January 22 and April 2, 2004 as a result of her accepted right shoulder condition, she failed to
meet her burden of proof. The Office properly found in its November 18, 2004, April 7 and
June 30, 2005 and December 3, 2007 decisions that appellant was not entitled to compensation
based on a recurrence of her employment-related disability. The Board will affirm the
December 3, 2007 Office decision.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
entitled to compensation for a recurrence of disability as of January 22 and April 2, 2004
causally related to her accepted right shoulder condition.

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ORDER
IT IS HEREBY ORDERED THAT the December 3, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 17, 2009
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, VA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 19-1209
Issued: November 20, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 9, 2019 appellant filed a timely appeal from a November 19, 2018 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
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on April 27, 2018, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

FACTUAL HISTORY
On April 27, 2018 appellant, then a 59-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a left arm injury, and possibly a torn rotator cuff on that
day while in the performance of duty. In an accompanying statement dated April 27, 2018
appellant related a history of injury that he “[w]as rolling my cart of mail out to load in van. There
was a wire con in the way of loading dock. Pushed it up on left and pulled something in my upper
left arm.” On the reverse side of the claim form, the employing establishment indicated that
appellant stopped work on the date of injury.
In reports dated April 27, and May 10, 2018, Allyson Hudson, a physician assistant,
examined appellant and diagnosed left rotator cuff tear and left shoulder pain. She indicated that
appellant injured his shoulder when he was pushing something heavy up a ramp and it fell
backward hitting his shoulder.
In a development letter dated May 23, 2018, OWCP noted that appellant’s case had been
reopened for consideration because he had not returned to work in a full-time capacity. It advised
him of the deficiencies of his claim, requested that he provide additional factual and medical
evidence to establish his claim, and provided a questionnaire for his completion. OWCP afforded
appellant 30 days to submit the necessary evidence.
Appellant submitted a series of physical therapy reports dated May 10, 16, 18, 21, 23, and
June 1, 4, 8, and 12, 2018. The initial report dated May 10, 2018 noted a history of injury that
appellant was trying to stop a heavy cart at work which caused him to wrench his left shoulder.
In a report June 6, 2018, Dr. Paul Kiritis, a Board-certified orthopedic surgeon, noted
appellant’s history of injury as: “left shoulder injury which occurred on April 27, 2018 when he
was pushing a 300[-]pound postal cart.” Based on x-ray imaging, Dr. Kiritis diagnosed adhesive
capsulitis of the left shoulder.
OWCP received a second handwritten statement from appellant dated April 27, 2018 in
which he explained that he “was pushing wire con out of way so I could load my mail and wire
con jammed on something and it pulled my left arm.”
By decision dated June 25, 2018, OWCP denied appellant’s claim finding that the evidence
of record was insufficient to establish that the injury and/or events occurred in the performance of
duty on April 27, 2018, as alleged. It also noted that he had not submitted evidence to establish
that his diagnosed medical condition was causally related to the alleged employment incident.
In a second traumatic injury claim (Form CA-1) dated June 25, 2018, appellant alleged that
on April 27, 2018 he sustained a left shoulder injury when he pushed a “wire con” onto a lift gate
while in the performance of duty. A witness statement on the claim form related that a coworker
heard appellant “holler” on April 27, 2018 and saw him holding his left shoulder and tremble in
pain.
On July 16, 2018 appellant requested a review of the written record by an OWCP hearing
representative, and submitted additional evidence.

2

In a report dated May 9, 2018, received by OWCP on July 19, 2018, Dr. Kiritis noted that
appellant reported that, while he pushed a heavy postal cart up a ramp, it stuck to a hinge, and
jarred his shoulder. He diagnosed adhesive capsulitis of the left shoulder and a tear of the left
rotator cuff.
In a report dated June 19, 2018, Dr. Kiritis indicated that appellant returned for a followup examination regarding his diagnosed left shoulder adhesive capsulitis. He noted that appellant
requested to proceed with a manipulation of the left glenohumeral joint with a concomitant
injection of steroid. In a duty status report (Form CA-17) of the same date, Dr. Kiritis diagnosed
adhesive capsulitis and noted that the injury occurred when appellant was pushing equipment while
in the performance of duty. He indicated that he was able to return to work full time with
restrictions.
OWCP continued to receive physical therapy reports.
In a report dated July 30, 2018, Dr. Kiritis indicated that, on July 17, 2018, appellant
underwent left shoulder arthroscopy which involved manipulation with injection of glenohumeral
joint.
By decision dated November 19, 2018, an OWCP hearing representative affirmed the
June 25, 2018 decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that the individual is an employee of the United States within the meaning of FECA, that
the claim was timely filed within the applicable time limitation period, that an injury was sustained
in the performance of duty as alleged, and that any specific condition or disability claimed is
causally related to the employment injury.4 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first

3

Supra note 1.

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5
D.T., Docket No. 18-0035 (issued May 10, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

3

component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.8 Moreover,
an injury does not have to be confirmed by eyewitnesses. The employee’s statement, however,
must be consistent with the surrounding facts and circumstances and his subsequent course of
action. An employee has not met his or her burden of proof to establish the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty on April 27, 2018, as alleged.
The Board finds that there are inconsistencies in the evidence of record surrounding
appellant’s allegations regarding the manner in which the alleged incident occurred which cast
serious doubt on appellant’s description of the alleged incident. While the evidence supports that
appellant pushed a wire con on April 27, 2018, the evidence is inconsistent regarding the
mechanism of injury. Appellant did not provide the detailed account of the alleged incident,
specific enough to establish a mechanism of injury, as required in a claim for traumatic injury.10
In his initial notes accompanying his April 27, 2018 Form CA-1, appellant indicated that
he pulled something in his left shoulder causing an injury when he pushed a wire con out of the
way. In a second April 27, 2018 statement, he related that he was pushing a wire con out of the
way when the wire con jammed and pulled his left arm. In a second traumatic injury claim form
(Form CA-1) dated June 25, 2018, appellant explained that he had sustained a left shoulder injury
when he pushed a “wire con” onto a lift gate. Appellant’s statements indicate that in one version,
he was simply pushing the wire con when he injured his left shoulder, while in another version he
alleged that the wire con jammed and pulled his left arm. His allegations are inconsistent and do
not relate with specificity the mechanics of how he had sustained the claimed injury.11
The history of injury appellant provided to his medical providers further related
inconsistent descriptions of the mechanism of injury. Ms. Hudson’s report, dated April 27, 2018,
related that while appellant was pushing a cart up a ramp, it fell backward and injured his shoulder.
Dr. Kiritis’ report, dated June 6, 2018, related that as appellant pushed a heavy postal cart up a
6

D.T., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

7

D.T., id.; John J. Carlone, 41 ECAB 345 (1989).

8

M.S., Docket No. 18-0059 (issued June 12, 2019); D.B., 58 ECAB 464, 466-67 (2007).

9

See E.C., Docket No. 19-0943 (issued September 23, 2019).

10

Id.

11

See A.M., Docket No. 08-1835 (issued February 9, 2009).

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ramp, it stuck to a hinge, and jarred his shoulder. Furthermore, the initial history of injury provided
in the physical therapy reports related that appellant wrenched his left shoulder when he was trying
to stop a heavy cart. The medical record therefore reflects that appellant did not report a consistent
history of injury to his medical providers. The Board finds that appellant has not established that
he sustained an injury in the performance of duty on April 27, 2018 as alleged because he did not
submit sufficient evidence to establish that he actually experienced the incident in the manner
alleged.12 As appellant did not provide a consistent description of the alleged employment incident
and the mechanism by which he sustained an injury, he has not met his burden of proof.13
The Board finds that appellant has not met his burden of proof to establish that the April 27,
2018 incident occurred in the performance of duty, as alleged. Consequently, it is unnecessary to
address the medical evidence of record regarding causal relationship.14
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 an injury in the
performance of duty on April 27, 2018, as alleged.

12

Id.

13

H.D., Docket No. 15-1698 (issued May 4, 2016).

14
J.C., Docket No. 19-0542 (issued August 14, 2019); see M.P., Docket No. 15-0952 (issued July 23, 2015); Alvin
v. Gadd, 57 ECAB 172 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the November 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2019
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

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