United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
Ricardo A. Byron, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-952
Issued: January 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 25, 2009 appellant, through his attorney, filed a timely appeal of a
November 21, 2008 merit decision of the Office of Workers’ Compensation Programs finding an
overpayment in the amount of $16,069.34 for which he was at fault and directing recovery of the
overpayment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office properly found that appellant received an
overpayment of compensation in the amount of $16,069.34 based on his forfeiture of
compensation for the period February 25, 2005 to January 21, 2006; and (2) whether the Office
properly determined that appellant was at fault in the creation of the overpayment, and therefore,
ineligible for waiver of the recovery.

FACTUAL HISTORY
On January 10, 2005 appellant, then a 41-year-old transportation security screener,
injured his left knee, left ankle and left side when a passenger struck him with heavy luggage. A
subsequent passenger stepped on his ankle during screening.
He stopped work on
January 11, 2005. By letter dated February 17, 2005, the Office accepted appellant’s claim for
left knee sprain. It advised him that a person who knowingly makes any false statement,
misrepresentation, concealment of fact, or any other act of fraud to obtain compensation, or who
knowingly accepted compensation to which he or she is not entitled, was subject to felony
criminal prosecution. The Office instructed appellant that he was required to notify it
immediately if he returned to work or obtained new employment and to return immediately any
compensation check including payment for a period he had worked, to prevent an overpayment
of compensation.
On March 11 and April 2 and 17, 2005 appellant filed claims for wage-loss compensation
(Form CA-7) for the period February 25 to April 17, 2005. Section 3 of the form asked whether
appellant had any employment outside his federal employment for the periods claimed. The
form specifically stated that employment included salaried, self-employment, commission and
volunteer work. It also stated:
“Any person who knowingly makes any false statement, misrepresentation,
concealment of fact or any other act of fraud, to obtain compensation as provided
by the FECA [Federal Employees’ Compensation Act], or who knowingly accepts
compensation to which that person is not entitled is subject to civil or
administrative remedies as well as felony criminal prosecution and may, under
appropriate criminal provisions, be punished by fine or imprisonment, or both, in
addition, a felony conviction will result in termination of all current and future
FECA benefits.”
Appellant responded that he had not been employed.
By letter dated August 22, 2005, the Office advised appellant that he was being paid
compensation for total disability from February 25 through April 16, 2005. Effective April 17,
2005, it placed him on the periodic rolls in receipt of total disability compensation every four
weeks.
By decision dated February 2, 2006, the Office suspended appellant’s compensation
benefits effective January 22, 2006 because he failed to complete EN1032 forms sent to him on
May 12 and December 19, 2005 for information regarding any earnings he received from
employment while receiving total disability compensation. It advised him that his compensation
benefits would be restored retroactively upon his submission of the completed EN1032 forms.
On May 14, 2006 appellant completed and signed an EN1032 form reporting that he had
been self-employed as a part-time radio announcer at WDAS-FM, a Clear Channel Worldwide
radio station, during the past 15 months. He reported initial earnings of $218.00 per shift. From
January 18, 2005 through January 30, 2006, appellant averaged two shifts per week. As of

2

February 1, 2006 he worked one shift per week, earning $227.00 per shift. Appellant was paid a
gross salary of $1,927.50 in 2005.
In a December 6, 2006 letter, Clear Channel confirmed that in 2006 appellant worked as
a part-time on-air announcer for WDAS-FM. He worked one weekend shift per week with a pay
rate of $236.33.
In a December 26, 2006 investigative report, the employing establishment’s Office of the
Inspector General, confirmed appellant’s part-time employment. During a February 22, 2006
interview, appellant advised two special agents that he had worked as a part-time radio
announcer at WDAS-FM radio station, nine hours per week, since 2000. He earned
approximately $19,000.00 in 2005. Appellant did not believe that he had to report his
employment as it involved a nonphysical position and did not conflict with his federal
employment. The Philadelphia District Attorney’s office accepted appellant’s case for
prosecution of fraud for failing to disclose outside employment pursuant to the Federal
Employees’ Compensation Act.
By decision dated February 11, 2008, the Office found that appellant had forfeited his
entitlement to compensation for the period February 25, 2005 through January 21, 2006 based on
his failure to report earnings while receiving compensation for total disability.1 I also made a
preliminary determination that he received an overpayment of compensation in the amount of
$16,069.34 during the stated period. The Office found that appellant failed to provide
information relative to his outside earnings on his March 11 and April 2 and 17, 2005 CA-7
forms covering the period February 25 through April 17, 2005. It found that he was at fault in
the creation of the overpayment. The Office found that appellant knowingly failed to report his
earnings as the CA-7 forms he signed certified that he was fully aware of his reporting
requirements. It advised appellant that he could request a telephone conference, a final decision
based on the written evidence only or a hearing within 30 days if he disagreed that the
overpayment occurred, with the amount of the overpayment or if he believed that recovery of the
overpayment should be waived. The Office requested that appellant complete an accompanying
overpayment recovery questionnaire (Form OWCP-20) and submit financial documents within
30 days.
On March 10, 2008 appellant’s counsel requested an oral hearing regarding the
February 11, 2008 forfeiture decision and a prerecoupment hearing before an Office hearing
representative. Appellant reported monthly income of $1,000.00 as a radio announcer. He had
monthly expenses of $4,200.00 and $100.00 in a checking account. Appellant related that, at the
time of his January 10, 2005 employment injury, he was working a second job at a radio station.
He did not report his earnings on his CA-7 forms since the work was outside his federal
employment work hours. Appellant contended that the earnings from his dissimilar job at the

1

In the February 11, 2008 forfeiture decision, the Office noted that appellant’s compensation had been reduced as
of January 22, 2006 based on its determination that his actual earnings as a radio announcer represented his wageearning capacity.

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radio station could not be used to reduce his compensation to reflect his wage-earning capacity
or to determine his compensation pay rate.2
At a June 18, 2008 hearing, appellant’s attorney argued that appellant should not have
been required to report his earnings from his radio announcer position. He stated that appellant’s
earnings should not have been taken into consideration in determining his loss of wage-earning
capacity as the radio announcer position was not similar to his federal employment. Appellant
testified that he began working as a radio announcer in November 1999. Initially, he was on call
once every two months. Appellant currently worked once per week on a six-hour shift. At the
time of his January 10, 2005 employment injury, he worked at the radio station, on a five-hour
shift, one day per week. Appellant testified that he inadvertently stated that he was selfemployed rather than employed by the radio station on his May 14, 2006 EN1032 form.
In a July 18, 2008 brief, appellant’s attorney contended that appellant’s earnings from
employment as a radio announcer did not constitute earnings under 20 C.F.R. § 10.125 and the
Board’s dual employment doctrine. He further contended that appellant’s failure to report such
earnings was not a “knowing” omission since he was under no obligation to report dissimilar
employment. By letter dated July 21, 2008, counsel submitted financial records.
In a November 21, 2008 decision, an Office hearing representative affirmed the
February 11, 2008 forfeiture decision. She also finalized the February 11, 2008 preliminary
determination of overpayment in the amount of $16,069.34 and fault for the period February 25,
2005 to January 21, 2006. The hearing representative directed repayment in the amount of
$100.00 per month.
On appeal, appellant’s attorney contended that the Office failed to establish that appellant
knowingly failed to report his earnings from his radio announcer position. Counsel contended
that appellant did not knowingly fail to report his earnings from his radio announcer position
because they could not be used to determine his wage-earning capacity. He further contended
that the decision of the Philadelphia District Attorney’s office to not prosecute appellant on
federal charges, established that he did not knowingly fail to report his earnings.
LEGAL PRECEDENT -- ISSUE 1
Pursuant to 20 C.F.R. § 10.525, an employee who is receiving compensation for partial or
total disability will periodically be required to submit a report of earnings from employment or
self-employment, either part time or full time.3 Failure to report income may result in forfeiture
of all benefits paid during the reporting period.4 The regulations further provide that, if an
2

By decision dated June 17, 2008, the Office terminated appellant’s wage-loss compensation and medical
benefits effective July 6, 2008 based on a January 10, 2008 medical opinion of Dr. Zohar Stark, an Office referral
physician. He found that appellant no longer had any residuals or total disability causally related to his accepted
January 10, 2005 employment-related injury. Dr. Stark advised that he could return to his regular work duties as a
transportation security screener. As appellant is not appealing from this decision, the Board will not review it on the
current appeal. See 20 C.F.R. § 501.3.
3

20 C.F.R. § 10.525.

4

5 U.S.C. § 8106(b); 20 C.F.R. § 10.525(b).

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employee knowingly omits or understates earnings or work activity in making a report, he or she
shall forfeit the right to compensation with respect to any period for which the report was
required.5 Where the right to compensation is forfeited, the Office shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. § 8129.6
Section 8106(b) of the Act provides that an employee who fails to make an affidavit or
report when required or knowingly omits or understates any part of his earnings, forfeits his right
to compensation with respect to any period for which the affidavit or report was required.7
It is not enough for the Office to merely establish that appellant had employment or
earnings. A claimant can only be subjected to the forfeiture provision of 5 U.S.C. § 8106(b)(2) if
he knowingly failed to report employment or earnings.8 The term knowingly as defined in the
Office’s implementing regulations, means with knowledge, consciously, willfully or
intentionally.9
The Office can meet this burden of proof in several ways, including by appellant’s own
admission to the Office that he failed to report employment or earnings which he knew he should
report or by establishing that he has pled guilty to violating applicable federal statutes by falsely
completing the affidavits in the Form EN1032.10
ANALYSIS -- ISSUE 1
In order to determine whether an overpayment of compensation occurred in this case, the
Board must initially determine whether appellant forfeited his right to monetary compensation
from February 25, 2005 to January 21, 2006.
On March 11 and April 2 and 17, 2005 appellant signed CA-7 forms, attesting that he
was unemployed, had not engaged in any self-employment activities and had no earnings from
February 25 to April 17, 2005. The Office suspended his wage-loss compensation effective
January 22, 2006 because he failed to complete EN1032 forms regarding his earnings from
employment. On May 14, 2006 appellant signed an EN1032 form, advising that he had been
self-employed as a part-time radio announcer at WDAS-FM beginning on January 18, 2005 for
which he was paid $1,927.50 in 2005.
On appeal, appellant argued that his earnings from his radio announcer position could not
be used to determine his loss of wage-earning capacity or compensation pay rate as this position
was dissimilar from his transportation security screener position. He contended that he did not
5

20 C.F.R. § 10.529(a).

6

Id. at § 10.529(b).

7

5 U.S.C. § 8106(b).

8

Harold F. Franklin, 57 ECAB 387 (2006).

9

20 C.F.R. § 10.5(n); see Donald L. Overstreet, 54 ECAB 678 (2003).

10

See Harold F. Franklin, supra note 8.

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knowingly fail to report his earnings from his radio announcer position because they could not be
used to determine his wage-earning capacity.
Although the Board has held that earnings received from dissimilar private employment
at the time of injury must be excluded by the Office when determining an injured employee’s
pay rate for compensation purposes, and subsequent earnings from that same employment cannot
be considered in determining the employee’s wage-earning capacity,11 Office regulations provide
that, if an employee knowingly omits or understates earnings or work activity in making a report,
he shall forfeit the right to compensation with respect to any period for which the report was
required.12 The penalty provision under section 8106 is premised on the failure to report
earnings from employment or self-employment as required. The Board held that section
8106(b)(2) makes no exception for reporting earnings in concurrent dissimilar employment.13
Appellant further contended that the Philadelphia District Attorney’s decision not to
prosecute him for fraud under the Act established that he did not knowingly fail to report his
earnings. The Board has held that the failure of the government to prosecute appellant on
criminal charges relating to failure to report earnings did not stay administrative proceedings
under the Act.14 Appellant was aware that he was required to state that he was employed outside
of his duties with the employing establishment because he had been so informed by the Office in
its February 17, 2005 acceptance letter and the CA-7 form which clearly required him to report
any outside employment. In addition, during a February 22, 2006 interview with employing
establishment special agents, appellant admitted to working as a part-time radio announcer at
WDAS-FM, nine hours per week since 2000. He stated that he earned approximately $19,000.00
in 2005. Appellant testified at the prerecoupment hearing that he had worked as a radio
announcer at the time of his January 10, 2005 employment injury. Clear Channel confirmed that
in 2006 he worked as a part time on-air announcer for WDAS-FM at the pay rate of $236.33.
The Board finds that the Office’s February 17, 2007 acceptance letter and the CA-7 forms
appellant signed on March 11 and April 2 and 17, 2005, establishes that he consciously and
knowingly omitted material information concerning his employment activities and earnings from
WDAS-FM radio station. Even though appellant performed work on a part-time basis during
this period, he knew that he was required to report any employment and earnings produced from
his work activities. Appellant signed the CA-7 forms certifying that all statements provided in
response to the questions on the form were true, complete and correct to the best of his
knowledge and belief. Appellant failed to report that he was engaged in outside salaried
employment, despite the fact that the Office’s investigation revealed that he was actively
engaged in employment with earnings from WDAS-FM during the period in question.15
11

Irwin W. Goldman, 23 ECAB 6 (1971), petition for recon. denied, 23 ECAB 46 (1971).

12

20 C.F.R. § 10.529(b); Harold F. Franklin, supra note 8.

13

See Earl D. Long, 50 ECAB 464 (1999).

14

Anthony Derenzo, 40 ECAB 504 (1989).

15

See Carol Gianfrancisco, 47 ECAB 205 (1995), in which Form CA-8 required that appellant report all salaried
employment held during the period in question. The form advised of penalties for fraud. The Form CA-7’s in the
instant case contain the same requirements for employment reporting and penalty notice as in Gianfrancisco.

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Accordingly, he forfeited his right to compensation during the period covered by the forms
through the suspension of his compensation benefits, February 25, 2005 to January 21, 2006,
which created an overpayment of compensation in the amount of $16,069.34.
LEGAL PRECEDENT -- ISSUE 2
Section 10.529 of the Office’s implementing regulations provide as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.16
“(b) Where the right to compensation is forfeited, [the Office] shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C.
[§] 8129 [recovery of overpayments] and other relevant statues.”
ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault under the second standard as he failed to
provide information, which he knew or should have known to be material on CA-7 forms
covering the period February 25, 2005 to January 21, 2006.17 As noted, he failed to report his
employment and earnings on CA-7 forms covering the stated period. The Board finds, therefore,
that appellant failed to furnish material information to the Office. Appellant signed certification
clauses on the CA-7 forms which advised him in explicit language that he might be subject to
civil, administrative or criminal penalties if he knowingly made a false statement or
misrepresentation or concealed a fact to obtain compensation. Consequently, by signing the
form, appellant is deemed to have acknowledged his duty to fill out the form properly, including
the duty to report any employment or self-employment activities and income. The Board finds,
therefore, that he failed to furnish information which he knew or should have known to be
material to the Office. As appellant is not without fault in creating the overpayment, it is not
subject to waiver.
With respect to the recovery of the overpayment in compensation, the Board’s
jurisdiction is limited to reviewing those cases where the Office seeks recovery from continuing
compensation benefits under the Act.18 As appellant is no longer receiving wage-loss
compensation, the Board does not have jurisdiction with respect to recovery of the overpayment
under the Debt Collection Act.19

16

20 C.F.R. § 10.529; see Harold F. Franklin, supra note 8.

17

See Bob R. Gilley, 51 ECAB 377 (2000).

18

Terry A. Keister, 56 ECAB 559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004).

19

Cheryl Thomas, id.

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CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $16,069.34 based on his forfeiture of
compensation for the period February 25, 2005 to January 21, 2006. The Board further finds that
the Office properly determined that appellant was at fault in the creation of the overpayment, and
therefore, ineligible for waiver of the recovery.
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate 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
__________________________________________
O.O., JR., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hickory, NC, Employer
__________________________________________

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Appearances:
Daniel F. Read, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1149
Issued: March 15, 2022

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 July 22, 2021 appellant, through counsel, filed a timely appeal from a February 26,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

The Board notes that, following the February 26, 2021 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.
3

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 24, 2018; and (2) whether appellant has
met his burden of proof to establish continuing disability or residuals on or after January 24, 2018.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On May 20, 1997 appellant, then a 51-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that he injured his shoulders and left finger due to factors of
his federal employment. OWCP accepted the claim for right shoulder adhesive capsulitis, bilateral
rotator cuff sprain/strain, left brachial neuritis or radiculitis, and left trigger finger. It paid appellant
wage-loss compensation on the supplemental rolls, commencing November 5, 2003, and on the
periodic rolls, commencing July 3, 2011.
Appellant underwent authorized surgeries for left trigger thumb release on February 27,
1997; left ulnar nerve transposition on October 8, 1997; left shoulder arthroscopy and rotator cuff
repair on January 25, 1998; right shoulder arthroscopy on November 5, 2003; right shoulder
examination under anesthesia on May 30, 2004; and repair of a right rotator cuff tear on
September 22, 2010.5
In reports dated August 15, 2016 and June 12, 2017, appellant’s attending physician,
Dr. Stephen Sladicka, a Board-certified orthopedic surgeon, noted his history of injury beginning
on May 19, 1997 and listed the accepted conditions including right shoulder adhesive capsulitis,
right brachial neuritis, radiculitis, sprain of the left shoulder, upper arm, left trigger finger, and
bilateral rotator cuff injuries. He noted that appellant had difficulty lifting with pain in his right
shoulder. Dr. Sladicka also described his date-of-injury position and found that he was
permanently totally disabled due to his accepted conditions.
On July 6, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions to Dr. Joseph Estwanik, a Board-certified orthopedic surgeon,
for a second opinion examination and evaluation.
In a July 28, 2017 report, Dr. Estwanik discussed appellant’s factual and medical history
and reported the findings of his physical examination. He found that his trigger finger symptoms
had resolved, but that he continued to have residual loss of motion of his shoulders. Dr. Estwanik
determined that appellant required no further medical treatment for the accepted conditions. He
opined that he exhibited multiple concurrent non-work-related disabilities. Dr. Estwanik found
that appellant was totally disabled from work.

4

Order Remanding Case, Docket No. 20-0142 (issued September 29, 2020).

5

On August 10, 2000 OWCP granted appellant a schedule award for 25 percent permanent impairment of his left
arm. On January 11, 2005 it granted an additional schedule award for 13 percent permanent impairment of his right
upper extremity.

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On August 10, 2017 OWCP requested a supplemental report from Dr. Estwanik to clarify
his opinion on the issue of appellant’s employment-related residuals and disability.
In an August 23, 2017 supplemental report, Dr. Estwanik opined that appellant’s right
shoulder adhesive capsulitis had resolved, and referred to his prior report. He further opined that
he had excellent internal and external rotation, but his restricted efforts at forward flexion and
abduction supported a finding of full range of motion (ROM) of the right shoulder without
adhesions. Dr. Estwanik determined that appellant had attempted to demonstrate loss of ROM.
He further found that, while appellant was totally disabled from work due to non-employmentrelated conditions, he was capable of full-duty work based only on his accepted employment
injuries.
In a notice dated December 15, 2017, OWCP advised appellant that it proposed to
terminate his wage-loss compensation and medical benefits because he no longer had residuals or
disability causally related to his accepted employment-related conditions. It found that the weight
of the medical evidence rested with Dr. Estwanik, who found that he had no objective findings to
support further ongoing disability or residuals caused by his employment-related conditions.
OWCP afforded appellant 30 days to submit evidence challenging the proposed terminatio n action.
No response was received.
By decision dated January 24, 2018, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective that date.
On February 7, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
July 10, 2018.
Following the oral hearing, appellant provided additional evidence, including an April 17,
2018 report from Ian Welliver, a physician assistant.
Appellant underwent a right shoulder magnetic resonance imaging (MRI) scan on May 16,
2018, which demonstrated severe hypertrophic AC joint changes, possible tears of the anterior
supraspinatus, and infraspinatus tendons and labrum tears.
In a July 27, 2018 note, Dr. Carey McKain, a Board-certified orthopedic surgeon, found
marked loss of ROM of the shoulders with a positive Speed test bilaterally. He reviewed
diagnostic studies and found deteriorated rotator cuffs on both sides with multiple partial tearings,
significant arthrosis, and severe arthritis with spurs in both acromioclavicular (AC) joints.
By decision dated September 17, 2018, the hearing representative affirmed OWCP’s
January 24, 2018 termination decision.
On August 11, 2015 Dr. Michael P. Bunch, a Board-certified orthopedic surgeon, noted
that appellant’s shoulder pain did not improve with epidural spinal injections.
On April 18, 2019 appellant, through counsel, requested reconsideration. Counsel
provided a series of notes dated September 13, 2017 through May 16, 2018 from nurse
practitioners.

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In treatment notes dated November 21, 2016 through February 26, 2018, Dr. David L.
Cabral, an internist, noted appellant’s history of repetitive motion injuries to the shoulders and left
elbow at work and resultant surgeries. He reviewed his bilateral shoulder x-rays and found AC
joint osteophytosis. Dr. Cabral also reported left elbow calcific tendinopathy.
In an undated narrative report, Dr. Karyn Weston Rahn, Board-certified in occupational
medicine, noted reviewing appellant’s history of work-related injuries of his bilateral shoulders
and his medical history. She described his job duties and current bilateral shoulder symptoms. On
physical examination Dr. Rahn found that appellant gave full and reasonable effort. She found no
atrophy in appellant’s right shoulder, but tenderness over the AC joint, subacromial region,
supraspinatus and infraspinatus capsule with limited ROM and decreased strength. Dr. Rahn
reported positive Speed’s and active compression test, positive Hawkins, Neer, and infraspinatus
tests. She found that appellant continued to have significant impairments of the left and right
shoulders, which were directly related to his work duties. Dr. Rahn explained using his shoulders
repetitively hundreds of times a day to throw, sort, and carry mail resulted in significant damage
to the bilateral shoulder joints and surrounding tissues including rotator cuff and labral tears. She
found that appellant was totally disabled from work due to his accepted bilateral shoulder
conditions and required bilateral shoulder replacements. Dr. Rahn further explained her
disagreement with Dr. Estwanik’s findings and conclusions regarding appellant’s adhesive
capsulitis.
By decision dated July 2, 2019, OWCP denied modification of its prior decisions.
Appellant appealed to the Board. By order dated September 29, 2020, the Board directed
OWCP to review the additional medical evidence in support of the April 18, 2019 reconsideration
request, including new medical reports dated November 2016 to February 2018 by Dr. Cabral and
issue a de novo decision.6
By decision dated February 26, 2021, OWCP again denied modification of its prior
decisions.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it has the burden of proof to
justify termination or modification of an employee’s benefits.7 The right to medical benefits for
an accepted condition is not limited to the period of entitlement for disability compensation. 8 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.9 OWCP’s

6

Id.

7

L.L., Docket No. 18-1426 (issued April 5, 2019); C.C., Docket No. 17-1158 (issued November 20, 2018); I.J., 59
ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541 (1986).
8

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
9

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

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burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background. 10
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination. 11 For a conflict to arise, the opposing physicians’ opinions must be of
virtually equal weight and rationale. 12 In situations where the case is properly 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
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 24, 2018.
Dr. Estwanik noted in his July 28 and August 23, 2017 reports that appellant had no
objective signs of right shoulder adhesive capsulitis, left trigger finger, bilateral rotator cuff
sprain/strain, and left brachial neuritis or radiculitis. He concluded that appellant had no disability
or need for further medical treatment due to the accepted employment-related conditions.
Dr. Estwanik further concluded that appellant was totally disabled from work due to
nonemployment-related conditions.
On June 12, 2017 Dr. Sladicka noted appellant’s history of injury on May 19, 1997 and
listed the accepted conditions including right shoulder adhesive capsulitis, right brachial neuritis,
radiculitis, sprain of the left shoulder, upper arm, left trigger finger, and bilateral rotator cuff
injuries and found that he was totally disabled.
As Dr. Estwanik concluded that appellant was able to resume his date-of-injury position
without restrictions and Dr. Sladicka concluded that he remained totally disabled for work, there
is an unresolved conflict in the medical evidence. OWCP should have resolved the conflict of
medical opinion evidence before terminating compensation. 14 As it failed to resolve the conflict
of medical opinion evidence, the Board finds that OWCP did not meet its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits, effective January 24, 2018.

10

See M.C., Docket No. 20-1396 (issued November 22, 2021); R.P., Docket No. 17-1133 (issued January 18, 2018).

11

5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S., Docket No. 10-1704 (issued
May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
12

M.C., supra note 10; P.R., Docket No. 18-0022 (issued April 9, 2018).

13

See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31
ECAB 1010 (1980).
14

M.C., supra note 10; K.L., Docket No. 19-0729 (issued November 6, 2019); P.P., Docket No. 17-0023 (issued
June 4, 2018).

5

CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective January 24, 2018.15
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2021 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 15, 2022
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

15

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, PITTSBURGH
INTERNATIONAL AIRPORT, Pittsburgh, PA,
Employer
__________________________________________

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

Docket No. 08-715
Issued: September 23, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 3, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated October 5, 2007 finding that she was not entitled
to medical treatment for her cervical spine and denying the additional condition of rhomboid
spasm as due to her federal employment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s claim for medical
treatment of her cervical spine; and (2) whether appellant has met her burden of proof in
establishing that her diagnosed condition of rhomboid spasm was due to her federal employment.

FACTUAL HISTORY
On May 12, 2005 appellant, then a 44-year-old security screener, sustained injury to her
right arm while lifting a suitcase. On August 18, 2005 the Office accepted her claim for
sprain/strain of the right forearm and elbow and lateral epicondylitis. Appellant filed a
recurrence of disability claim on August 4, 2005. She indicated that she returned to light-duty
work but continued to experience pain while lifting. Appellant underwent a right lateral
epicondyle debridement and partial ostectomy of the lateral epicondyle on April 10, 2006. She
returned to light-duty work on April 27, 2006. The Office accepted appellant’s recurrence of
disability claim and paid compensation benefits for intermittent periods through March 31, 2007.
Dr. Steven E. Kann, an attending Board-certified orthopedic surgeon, examined appellant
on February 14, 2007. He noted that she reported pain along her right rhomboid and the
posterior medial aspect of her trapezius. Dr. Kann found a full range of motion of appellant’s
shoulder with normal strength. He stated that she had subjective pain along the medial border of
her scapula and the trapezius muscle region. Dr. Kann diagnosed rhomboid spasm/trigger point
and trapezius muscle spasm/trigger point as well as residual right elbow subjective complaints.
He referred appellant to Dr. Paul Lieber, a physiatrist, for treatment.
Dr. Lieber examined appellant on February 26, 2007. He noted her history of injury and
indicated that she was experiencing neck and right arm pain. Dr. Lieber stated that cervical
flexion exacerbated her pain. Appellant demonstrated full cervical and shoulder range of
motion, but tenderness in the right shoulder upper trapezius and rhomboid musculature.
Dr. Lieber found positive facet loading maneuver at C5-6 and slightly positive spinal nerve
stretch test. He diagnosed neck pain with right arm pain and cervical myofascial pain.
Dr. Lieber requested a magnetic resonance imaging (MRI) scan of her cervical spine and
suggested that appellant could have brachial plexopathy resulting from positioning during
surgery.
In a report dated March 2, 2007, Dr. Kann stated that following appellant’s April 10,
2006 surgery she recovered slowly but continued to experience pain in the right epicondyle area.
He stated, “Due to [appellant’s] postoperative discomfort she had decreased range of motion of
her right arm which developed into adhesive capsulitis and rhomboid spasm.” Dr. Kann
concluded that appellant’s condition was directly related to her right elbow surgery and
employment related. Appellant underwent an electromyelogram on March 6, 2007 which was
reported as normal with no evidence of radiculopathy, myopathy or entrapment syndrome. On
March 26, 2007 she underwent an MRI scan of the right elbow which was read as unremarkable.
On April 4, 2007 Dr. Kann reviewed appellant’s MRI scan of the right elbow and found
that it was normal. He stated that her current issue was pain in the trapezius region and along her
rhomboid region. Dr. Kann opined that appellant’s condition was work related. In a report dated
May 2, 2007, he noted treating her since November 29, 2005 for her work-related right arm
injury. Dr. Kann stated that appellant’s initial diagnosis was right lateral epicondylitis and that
she underwent surgery on April 10, 2006. He reported that she recovered slowly from her
surgery and continued to have complaints of pain at the right epicondyle area. Dr. Kann stated,
“Due to [appellant’s] postoperative discomfort, she had decreased range of motion of her right
arm which developed into adhesive capsulitis and rhomboid spasm.” He advised that her

2

adhesive capsulitis and rhomboid spasm were consequential to her surgery on April 10, 2006 and
related to her May 12, 2005 injury.
The Office referred the medical evidence to the Office medical adviser on June 21, 2007.
On June 30, 2007 the Office medical adviser found that appellant did have adhesive capsulitis
due to her work-related surgery and advised that the Office should accept this condition. He
stated that a significant portion of appellant’s symptoms were due to cervical spine pathology.
The Office medical adviser recommended that the Office not accept the other diagnosed
conditions pertaining to any cervical spine pathology because neither the mechanism of injury
nor the sequence of events noted in the clinical course would support the cervical spine being
added to the list of accepted conditions. He concluded that rhomboid spasm was not a specific
diagnosis and that it was commonly associated with cervical spine pathology.
On September 10, 2007 the Office accepted the condition of adhesive capsulitis. By
decision dated October 5, 2007, it denied appellant’s claim for medical treatment of her cervical
spine or rhomboid spasm.1
LEGAL PRECEDENT -- ISSUE 1
The Office’s obligation to pay for medical expenses and other expenses incident to
obtaining medical care, such as loss of wages, extends only to expenses incurred for treatment of
the effects of any employment-related condition. A claimant has the burden of proof which
includes the necessary to submit supporting rationalized medical opinion evidence. Whether a
particular injury caused an employee disability from employment is a medical issue, which must
be resolved by competent medical evidence.2
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a traumatic injury to her right elbow and
forearm on May 12, 2005 resulting in lateral epicondylitis for which she underwent surgery on
April 27, 2006. Appellant sought treatment from Dr. Lieber, a Board-certified physiatrist, who
reviewed the history of injury and indicated that she was experiencing neck and right arm pain.
Dr. Lieber noted that cervical flexion exacerbated appellant’s pain and that she demonstrated
tenderness in the right shoulder upper trapezius musculature and rhomboid musculature. He
found positive facet loading maneuver at C5-6 and slightly positive spinal nerve stretch test.
Dr. Lieber diagnosed neck pain with right arm pain and cervical myofascial pain. He requested
an MRI scan of her cervical spine and suggested that appellant could have brachial plexopathy
resulting from positioning during surgery.
Dr. Lieber did not provide a clear diagnosis of any cervical condition, noting only that
appellant experienced neck pain and cervical myofascial pain. The Board has held that the mere
1

Following the Office’s October 5, 2007 decision, appellant submitted additional new evidence. As the Office
did not consider this evidence in reaching its final decision, the Board may not review the evidence for the first time
on appeal. See 20 C.F.R. § 501.2(c).
2

Carol A. Lyles, 57 ECAB 265, 268 (2005).

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diagnosis of “pain” does not constitute a basis for the payment of compensation.3 Dr. Lieber did
not address how appellant’s accepted injury to her right forearm and elbow would result in
symptoms of neck pain or how her condition was a result of the accepted employment injury or a
consequence of her elbow surgery. He suggested that appellant could have developed a brachial
plexopathy due to surgery, but couched his report in speculative terms. The Board has held that
medical opinions that a condition is “probably” related, “most likely” related or “could be”
related are speculative and of diminished probative value. An opinion regarding causal
relationship does not have to reduce the cause or etiology of a disease or condition to an absolute
certainty, but the opinion must be one of reasonable medical certainty regarding the causal
relationship of the condition to the employment and must be supported with affirmative medical
rationale based upon a complete and accurate factual and medical background.4 The diagnostic
tests of record were reported as negative or unremarkable. There is no definitive diagnosis of a
neck or cervical condition and speculative medical opinion on the relationship of such condition
to her accepted employment injury and surgery. Dr. Lieber’s report is not sufficient to establish
that she sustained a cervical condition due to her employment injury.
LEGAL PRECEDENT -- ISSUE 2
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.5
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, then a subsequent injury, whether an aggravation of the original
injury or a new and distinct injury, is compensable if it is the direct and natural result of a
compensable primary injury.6
A claimant bears the burden of proof to establish her claim for a consequential injury. As
part of this burden, a claimant must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship.7 Causal relationship is a
medical question that can generally be resolved only by rationalized medical opinion evidence.8
Rationalized medical evidence is evidence which relates a work incident, work injury or factors
of employment to a claimant’s condition, with stated reasons of a physician.9 The opinion of the
physician must be one of reasonable medical certainty and must be supported by medical rational

3

Robert Broome, 55 ECAB 339, 342 (2004).

4

Kathy A. Kelley, 55 ECAB 206 211-12 (2004).

5

Albert F. Ranieri, 55 ECAB 598, 602 (2004); A. Larson, The Law of Workers’ Compensation § 10.01 (2000).

6

Charles W. Downey, 54 ECAB 421, 422-23 (2003).

7

Id.

8

Steven S. Saleh, 55 ECAB 169, 172 (2003).

9

Charles W. Downey, supra note 6.

4

explaining the nature of the relationship of the diagnosed condition and the specific employment
factors or employment injury.10
ANALYSIS -- ISSUE 2
As noted, the Office accepted appellant’s claim for lateral epicondylitis of the right
forearm and elbow. Appellant underwent surgery for this condition and the Office accepted that
she developed adhesive capsulitis following surgery. Dr. Kann, an attending Board-certified
orthopedic surgeon, also opined that appellant had developed rhomboid spasms following
surgery. He submitted three brief medical notes in which he advised that appellant experienced
postoperative discomfort with decreased range of motion of her right arm which developed into
adhesive capsulitis and rhomboid spasm. Dr. Kann opined that her adhesive capsulitis and
rhomboid spasm were consequential to her recovery from surgery on April 10, 2006.
The Office referred appellant’s medical records to the Office medical adviser who
recommended that appellant’s condition of adhesive capsulitis be accepted by the Office.
However, the Office medical adviser noted that Dr. Kann did not provide sufficient medical
rationale in support of his opinion that appellant’s rhomboid spasms were a consequence of her
accepted surgery. He stated that rhomboid spasm was not a specific diagnosis and was
commonly associated with cervical spine pathology, a condition not accepted as employment
related.
The Board finds that the reports of Dr. Kann are of diminished probative value on the
issue of causal relationship. His brief medical notes on causal relationship do not provide
adequate explanation as to how the surgical procedure to appellant’s right forearm and elbow
would cause or contribute to her rhomboid spasms. Dr. Kann did not fully address the nature of
the negative diagnostic testing obtained following surgery or provide a clear explanation of how
symptoms pertaining to her right shoulder or cervical spine were caused or contributed to by her
right forearm surgery. As the Office has not accepted any cervical or rhomboid condition,
appellant bears the burden of proof in submitting probative medical opinion evidence in support
of her claim.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that she
developed a cervical condition or rhomboid spasms due to her accepted employment injury.

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Id.

5

ORDER
IT IS HEREBY ORDERED THAT the October 5, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 23, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
M.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Emeryville, CA, Employer
_________________________________________

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Appearances:
Denise Eaton-May, Esq., for the appellant1
Office of Solicitor, for the Director

Docket Nos. 18-1058 & 18-1224
Issued: November 21, 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 1, 2018 appellant, through counsel, filed a timely appeal from a November 2, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). On May 24, 2018
appellant, through counsel, filed a timely appeal from a December 4, 2017 OWCP merit decision.
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.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 issuance of the December 4, 2017 merit 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish total
disability commencing October 25, 2014 causally related to her accepted September 3, 2014
employment injury; and (2) whether OWCP has met its burden of proof to rescind its acceptance
of appellant’s claim for aggravation of right shoulder joint instability.
FACTUAL HISTORY
On September 12, 2014 appellant, then a 22-year-old postal support employee window
clerk, filed a traumatic injury claim (Form CA-1) alleging that on September 3, 2014 she
developed ligament damage in her right arm as a result of lifting and throwing parcels of mail
throughout the week while in the performance of duty. She claimed that at the end of the day, on
the date of injury, she felt her arm pop out of her shoulder. On the reverse side of the claim form
and by letter dated September 25, 2014, appellant’s immediate supervisor controverted her claim
contending that she had not timely reported her alleged injury and that her injury was due to both
a nonwork-related 2013 motor vehicle accident and a nonwork-related bilateral shoulder personal
injury sustained on August 7, 2014.
He indicated that appellant stopped work on
September 4, 2014.
In support of her claim, appellant submitted medical evidence, including work status
reports dated August 7 and September 8, 2014 from Dr. John F. Cummins, a Board-certified
orthopedic surgeon. Dr. Cummins placed her off work from August 7 through 21, and
September 8 through 26, 2014. He noted that appellant had bilateral shoulder injuries and that she
was unable to perform any work involving the use of her upper extremity.
In a September 25, 2014 report, Dr. Lan Thi Linh Nguyen, an internist, noted that appellant
sustained an injury on September 3, 2014 while lifting boxes. He examined her, diagnosed
instability of the right shoulder joint, and indicated that she sustained a right shoulder subluxation
in August 2014 during a physical altercation. Dr. Nguyen related that, during her initial visit,
appellant had not fully explained that her right shoulder had subluxed, but he indicated that it was
reported in a September 4, 2014 note. He released her to modified-duty work as of the date of his
examination.
OWCP also received a September 25, 2014 report from Keith M. Thibault, a nurse
practitioner, who diagnosed instability of the right shoulder joint and placed appellant on modified
activity at work and home through October 21, 2014.
In a letter dated September 30, 2014, appellant’s supervisor continued to challenge her
claim. He asserted that appellant had not reported to him that she sustained an injury at work, or
the time or location of the injury. Appellant had previously mentioned that she had a pin inserted
into her shoulder/arm area and he believed that this was why she had pain in that area.
In a development letter dated October 1, 2014, OWCP advised appellant of the deficiencies
of her claim. It requested additional factual and medical evidence and provided a questionnaire
for her completion. OWCP afforded appellant 30 days to respond.
OWCP received additional medical evidence. The reports provided a diagnosis of
preexisting instability of the right shoulder joint, a request for authorization for right shoulder
2

surgery to be performed on November 23, 2014, and opined that her diagnosed condition was a
nonindustrial condition that had been aggravated by her employment activities. Appellant was
permitted to perform modified-duty work with restrictions from October 31 through
November 27, 2014.
In a September 16, 2014 letter, a customer service employing establishment manager
further challenged appellant’s claim for compensation, contending that her claimed injury was
caused by an April 17, 2013 nonwork-related car accident. He noted that appellant was off work
for intermittent periods due to nonwork-related conditions until September 8, 2014 when she
stopped work. The manager further contended that the September 3, 2014 alleged work incident
did not occur as alleged, as clocking records showed that she was not lifting and throwing parcels,
but was working at the finance window all day for eight hours on that day.
On October 21, 2014 appellant responded to OWCP’s development questionnaire. She
described the work duties she performed upon her return to work from maternity leave that she
believed contributed to her claimed injury. Appellant noted her prior nonwork-related injuries
which included a left shoulder injury on March 16, 2013 as a result of a motor vehicle accident for
which she underwent surgery on April 23, 2013. She also sustained another left shoulder injury
on August 4, 2014 due to an altercation.
In a report dated September 4, 2014, Dr. Tyronda S. Elliott, a resident physician, noted a
history that on September 3, 2014 appellant experienced shoulder problems. She examined
appellant and diagnosed right shoulder joint pain.
In a treating physician’s progress report dated October 31, 2014, Dr. Nguyen reiterated his
prior diagnosis of instability of the right shoulder joint and appellant’s history of a right shoulder
subluxation that occurred in August 2014 during a physical altercation. He opined that the
diagnosed right shoulder condition was a nonindustrial condition and placed appellant on modified
activity at work and home through November 27, 2014. Dr. Nguyen maintained that, but for her
work duties as a window clerk, her preexisting condition would not have become disabling or
needed the requested surgical treatment. He also noted that, although modified duties had been
recommended, appellant reported that she was not working because the employing establishment
was unable to accommodate her work restrictions. Dr. Nguyen advised that if modiﬁed activity
was not accommodated by the employing establishment, then she was considered temporarily
totally disabled from her regular work for the designated time.
On November 7, 2014 OWCP accepted appellant’s claim for aggravation of right shoulder
joint instability.
On November 18, 2014 appellant filed a Form CA-7 claim for compensation for leave
without pay (LWOP) for the period October 25 to November 14, 2014.
On November 28, 2014 appellant filed an additional CA-7 form for LWOP for the period
November 15 to 28, 2014.
In a development letter dated December 9, 2014, OWCP requested additional medical
evidence establishing appellant’s disability from work during the period claimed. Appellant was
advised to submit a report from her physician which explained why she had not returned to work
even with clear work restrictions and how this was medically necessary and connected to her
September 3, 2014 work-related injury. OWCP related that if, however, the only reason she did
3

not return to work was due to her employing establishment’s inability to accommodate her work
restrictions then the employing establishment should submit written confirmation detailing the
exact period that was not accommodated. OWCP afforded appellant 30 days to respond.
Additional medical evidence was received from Dr. Nguyen. In a report dated
December 12, 2014, Dr. Nguyen continued to diagnose instability of right shoulder joint and to
advise that appellant was capable of performing modified activity at work and home through
January 7, 2015. He also continued to note appellant’s history of a right shoulder dislocation due
to the August 2014 altercation and left shoulder joint instability for which she was status post 2013
dislocation surgery. Dr. Nguyen opined that her current medical condition, more likely than not,
was not caused or aggravated by factors of her employment. He related that his opinion was based
on appellant’s underlying and preexisting medical condition, shoulder joint instability, and
mechanism of injury, lifting 10-pound boxes.
Dr. Cummins, in a postoperative follow-up report dated December 1, 2014, noted
examination findings and provided an assessment of shoulder trauma/instability.
Appellant continued to file Form CA-7 claims for compensation for LWOP for the period
November 29, 2014 to January 16, 2015 and submitted additional medical evidence from
Dr. Cummins and Dr. Nguyen. In a work status report dated November 13, 2014, Dr. Cummins
placed appellant on modified activities at home and work from November 22 through 24, 2014.
He advised that she could return to full-capacity work on November 25, 2014.
In a work status report dated October 2, 2014, Dr. Nguyen placed appellant on modified
activity at work and home from October 21 through November 21, 2014. He again advised that if
modiﬁed activity was not accommodated by the employing establishment then appellant was
temporarily totally disabled from her regular work for the designated time and a separate off work
order was not required.
Dr. Michael E. Hebrard, a Board-certified physiatrist, noted in a January 6, 2015 report
appellant’s repetitive work duties and history of the accepted September 3, 2014 employment
injury, also noting that she last worked on September 3, 2014. He diagnosed adhesive capsulitis,
bicipital tenosynovitis, internal derangement, and history of instability of the right shoulder.
Dr. Hebrard opined that appellant’s work-related injury contributed to her disabling condition and
resultant surgery. He further opined that she was totally disabled since she was unable to perform
her repetitive work duties.
OWCP, by decision dated January 26, 2015, denied appellant’s claims for compensation
for LWOP commencing October 25, 2014. It found that she had not submitted sufficient medical
evidence to establish that she was totally disabled from work, during the period claimed, causally
related to her September 3, 2014 employment injury.
On February 6, 2015 appellant filed an additional Form CA-7 claim for LWOP
compensation from January 17 to February 11, 2015. In support of her claim, she submitted a
letter dated January 6, 2015 in which Dr. Hebrard confirmed that she was temporarily totally
disabled. Dr. Hebrard advised that appellant was unable to perform her regular job and placed her
off work through February 11, 2015.
On February 25, 2015 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative regarding the January 26, 2015 decision.
4

Appellant continued to file Form CA-7 claims for LWOP compensation from March 7 to
May 29, 2015.
OWCP received additional medical evidence dated February 11 to September 14, 2015
from Dr. Hebrard who continued to treat appellant. Dr. Hebrard agreed with the diagnostic
findings of a February 7, 2015 right shoulder magnetic resonance imaging (MRI) scan which
demonstrated signiﬁcant glenohumeral capsulitis and a modest rotator cuff tendinitis or strain. He
noted that she also had an enthesopathic cyst at the infraspinatus and subscapularis attachment.
Dr. Hebrard diagnosed subluxation, frozen shoulder, adhesive capsulitis, rotator cuff
syndrome/bursitis, and derangement of the right shoulder, as well as rotator cuff syndrome and
bursitis of the left shoulder. He opined that appellant’s September 3, 2014 employment injury
caused the diagnosed conditions, an aggravation of her underlying preexisting condition, and
resultant right shoulder surgery. Dr. Hebrard placed her off work through April 13, 2015 and on
May 26, 2015 released her to modified work with restrictions, five hours a day until her next clinic
visit. He reiterated that if these restrictions could not be accommodated by her employing
establishment, then she was temporarily totally disabled. Dr. Hebrard subsequently found that
appellant was temporarily totally disabled and placed her off work from June 19 through 22, 2015.
He noted that she could work four hours a day upon her return to work with her previous
restrictions on June 22, 2015. Dr. Hebrard later determined on August 17, 2015 that appellant was
again temporarily totally disabled until her next appointment or diagnostic testing.
Dr. Cummins, in a work status report dated November 13, 2014, placed appellant off work
from November 24 through December 16, 2014 and advised that she could perform modified
activity at home and work from December 17, 2014 through March 24, 2015. He determined that
she could return to full-duty work on March 25, 2015.
By decision dated October 27, 2015, an OWCP hearing representative set aside the
January 26, 2015 decision and remanded the case to OWCP for further development of the medical
evidence. He found that while Dr. Hebrard’s reports were not adequately rationalized, they were
sufficient to warrant further development of the issue of whether appellant’s total disability
commencing October 25, 2014 and her resultant November 2014 right shoulder surgery were due
to her accepted September 3, 2014 employment injury. The hearing representative remanded the
case for OWCP to refer appellant for a second opinion examination.
On November 27, 2015 OWCP referred appellant, together with a statement of accepted
facts (SOAF), the medical record, and a set of questions, to Dr. Aubrey A. Swartz, a Boardcertified orthopedic surgeon, for a second opinion examination. In a January 4, 2016 report,
Dr. Swartz reviewed the SOAF and medical record, and noted a history of the September 3, 2014
employment injury. He also noted that appellant denied having prior problems with her right
shoulder, but had problems with her left shoulder. Dr. Swartz reported examination findings. He
advised that appellant had preexisting cystic degeneration at the humeral head of the cuff insertion
of the right shoulder. Dr. Swartz noted, however, that this did not appear to be a finding that
rendered her susceptible to instability or a dislocation. He referenced appellant’s medical records,
including Dr. Cummins’ November 25, 2014 operative report, which indicated that appellant had
a Bankart lesion in the anterior capsular labral structures, a preexisting condition, that rendered
her susceptible to dislocation. Dr. Swartz also noted Mr. Thibault’s September 25, 2014 report
and Dr. Elliott’s September 4, 2014 report, which documented that her right shoulder subluxed
during a physical altercation which occurred two weeks prior to her accepted September 3, 2014
employment injury. He advised that appellant’s right shoulder instability was a nonindustrial or
5

preexisting condition related to the physical altercation that took place two weeks prior to her
September 3, 2014 date of injury and resulted in right shoulder subluxation as documented in her
medical records. Despite his opinion on causal relationship, Dr. Swartz noted that it would be
helpful to review appellant’s medical records dating 5 to 10 years prior to her September 3, 2014
date of injury as she had a history of right and left shoulder dislocations. He advised that, based
on the medical information available at that time, the temporary aggravation of appellant’s current
right shoulder instability ceased on that day. Dr. Swartz related that the temporary aggravation
involved work-related disability and treatment such as, surgery to correct the instability. He
indicated that appellant’s November 2014 right shoulder surgery was appropriate treatment for her
September 3, 2014 employment injury.
In a letter dated February 23, 2016, OWCP requested that appellant submit medical records
from 5 to 10 years prior to the filing of her claim. On May 22, 2017 it received numerous medical
records.
In a letter dated July 10, 2017, OWCP referred appellant for a second examination with
Dr. Swartz. It provided Dr. Swartz with an updated SOAF, the medical record, and a series of
questions.
On October 18, 2017 Dr. Swartz reviewed the medical evidence of record. He did not
examine appellant. Dr. Swartz referenced his prior findings from the January 4, 2016 examination
and his diagnosis of right shoulder adhesive capsulitis. He noted that appellant’s nonindustrial
preexisting condition of instability and dislocation of the right shoulder, resulting in shoulder
surgery, were due to the nonindustrial injury of August 5, 2014, and were unrelated to the claim
of injury on September 3, 2014. Dr. Swartz further noted that all treatment received subsequent
to September 3, 2014 was unrelated to her claim for an industrial injury and employment at the
employing establishment, and would be related only to the August 5, 2014 assault which caused a
dislocated right shoulder. He indicated that appellant’s right shoulder conditions included cystic
degeneration of the humeral head at the cuff insertion and a Bankart lesion of the anterior capsular
labral structures. Dr. Swartz related that these conditions reflected changes in the right shoulder
that destabilized the shoulder and rendered appellant susceptible to dislocation, which occurred on
August 5, 2014. He advised that she did not sustain a dislocated right shoulder on
September 3, 2014. Dr. Swartz further advised that the findings of Dr. Cummins’ November 2014
surgery were unrelated to the claim of injury on September 3, 2014 and related only to the
nonindustrial assault injury of August 5, 2014. He maintained that all of appellant’s diagnosed
conditions were related to the nonindustrial August 5, 2014 assault. In addition, Dr. Swartz
maintained that there was no disability caused by the August 5, 2014 injury as appellant reported
that she “self-reduced” her shoulder and apparently went back to work fairly soon after this
incident and performed her regular job on September 3, 2014. He related that her time off work
and the treatment she received after September 3, 2014, including the November 2014 right
shoulder surgery, were not due to an injury on that day, but due to the August 5, 2014 incident.
Dr. Swartz concluded that no medical treatment was necessary for the claimed September 3, 2014
employment injury. There was also no physical limitations, restrictions, or disability related to the
claimed injury.
OWCP, by decision dated November 2, 2017, again denied appellant’s claim for
compensation for LWOP commencing October 25, 2014 and authorization for her November 25,
2014 right shoulder surgery. It found that Dr. Swartz’s October 18, 2017 report represented the

6

weight of the medical evidence and established that she was not disabled during the claimed period
as a result of her accepted September 3, 2014 employment injury.
In a November 3, 2017 notice, OWCP advised appellant that it proposed to rescind its
acceptance of her claim for aggravation of right shoulder joint instability based on its error. It
found that the factual evidence of record failed to establish that the employment injury occurred
as alleged, noting that she was injured while off duty on August 5, 2014. Further, OWCP noted
that Dr. Swartz’s opinion was well rationalized and established that appellant’s right shoulder
instability and dislocation were caused by the nonwork-related August 5, 2014 incident. It
afforded her 30 days to submit evidence and argument challenging the proposed rescission action.
Appellant, through counsel, responded by letter dated December 2, 2017 disagreeing with
the proposed rescission of the acceptance of appellant’s claim.
By decision dated December 4, 2017, OWCP rescinded acceptance of the claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 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.5
Under FECA, the term disability means “the incapacity, because of an employment injury,
to earn the wages the employee was receiving at the time of injury.”6 The question of whether an
employee is disabled from work is an issue that must be resolved by competent medical evidence.7
The employee is responsible for providing sufficient medical evidence to justify payment of any
compensation sought.8
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.9 The Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so,
would essentially allow an employee to self-certify his or her disability and entitlement to
compensation.10

4

Supra note 3.

5
See C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton,
40 ECAB 1143 (1989).
6

20 C.F.R. § 10.5(f).

7

S.A., Docket No. 18-0399 (issued October 16, 2018); see also R.C., 59 ECAB 546, 551 (2008).

8

Id.; see T.A., Docket No. 18-0431 (issued November 7, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005).

9

See S.M., Docket No. 17-1557 (issued September 4, 2018); William A. Archer, 55 ECAB 674, 679 (2004);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
10

T.L., Docket No. 18-0934 (issued May 8, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).

7

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish total disability,
commencing October 25, 2014, causally related to her accepted September 3, 2014 employment
injury.
In support of her claim for total disability commencing October 25, 2014, appellant
submitted several medical reports from Dr. Cummins. In his reports, Dr. Cummins provided an
assessment of right shoulder trauma/instability. He opined that appellant was totally disabled from
work during the periods August 7 to 21 and September 8 to 26, 2014. However, these reports are
of limited probative value in addressing appellant’s claimed period of disability commencing
October 25, 2014 as they occur prior to the alleged period and do not specifically address or
attribute the period of claimed disability to the accepted condition.11 Evidence that does not
address appellant’s accepted conditions and dates of disability is insufficient to establish her
claim.12 Moreover, while Dr. Cummins subsequently opined that appellant was totally disabled
from work from November 24 to December 16, 2014, he did not explain with sufficient rationale
as to how her inability to work was due to her accepted September 3, 2014 right shoulder injury,
his opinion is of limited probative value and thus his report is insufficient to establish the claimed
period of disability.13
Dr. Nguyen’s October 31 and December 12, 2014 reports did not relate appellant’s partial
disability from work during the period October 31 through November 27, 2014 and December 12,
2014 through January 7, 2015 or her diagnosis of right shoulder joint instability to her
September 3, 2014 employment-related right shoulder injury.14 He noted that it was more likely
than not that her diagnosed right shoulder condition was not caused or aggravated by factors of
her employment. The Board finds that Dr. Nguyen’s reports are therefore not based on a complete
and accurate factual background and are of diminished probative value.15 Moreover, his remaining
September 25, 2014 report is insufficient to establish disability as it predates and does not address
the claimed period of disability.16 Likewise, Dr. Elliott’s September 4, 2014 report predates the
claimed period of disability.17
Second opinion physician Dr. Swartz, in his January 4, 2016 and October 18, 2017 reports,
maintained that there was no disability caused by the August 5, 2014 injury as appellant reported
that she apparently went back to work fairly soon after this incident and performed her regular job
on September 3, 2014. He related that her time off work and the treatment she received after
September 3, 2014, including the November 2014 right shoulder surgery, were not due to an injury
on that day, but due to the August 5, 2014 incident. Dr. Swartz concluded that no medical
11

D.J., Docket No. 18-0200 (issued August 12, 2019); V.G., Docket No. 17-1425 (issued February 16, 2018).

12

T.L., supra note 10.

13

T.H., Docket No. 19-0436 (issued August 13, 2019); C.B., Docket No. 18-0040 (issued May 7, 2019).

14

Id.

15

S.M., Docket No. 16-1142 (issued March 15, 2017); J.C., Docket No. 07-1246 (issued December 13, 2007).

16

Supra note 11.

17

Id.

8

treatment was necessary for the claimed September 3, 2014 employment injury. There was also
no physical limitations, restrictions, or disability related to the claimed injury. As Dr. Swartz
reviewed the medical record and supported his conclusion with medical rationale, the Board finds
that his report represents the weight of the evidence regarding appellant’s claim for total disability.
As the medical evidence of record is insufficient to establish that appellant was disabled
from work for the period commencing October 25, 2014 due to her accepted right shoulder
condition, the Board finds that appellant has not met her 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.
LEGAL PRECEDENT -- ISSUE 2
OWCP may reopen a claim at any time on its own motion and may modify, rescind,
decrease, or increase compensation previously awarded, or award compensation previously
denied.18 Once OWCP accepts a claim, it has the burden of justifying termination or modification
of benefits.19 This burden applies even where OWCP later decides that it erroneously accepted a
claim.20 OWCP must provide a clear rationale for rescinding acceptance of a claim.21
ANALYSIS -- ISSUE 2
The Board finds that OWCP has met its burden of proof to rescind its acceptance of
appellant’s claim for aggravation of right shoulder joint instability.
Second opinion physician Dr. Swartz provided rationalized medical evidence establishing
that appellant did not sustain an aggravation of right shoulder joint instability on
September 3, 2014. In his January 4, 2016 and October 18, 2017 second opinion reports, he found
that appellant’s right shoulder instability and dislocation, and resultant November 25, 2014 surgery
were causally related to her August 5, 2014 nonwork-related domestic violence incident.
Dr. Swartz reviewed the medical record, including numerous medical records which documented
the August 5, 2014 incident. He explained that appellant had cystic degeneration of the humeral
head at the cuff insertion and a Bankart lesion of the anterior capsular labral structures of the right
shoulder, which demonstrated changes that destabilized the shoulder and rendered her susceptible
to dislocation, which occurred on August 5, 2014.22 Accordingly, OWCP’s initial acceptance of
appellant’s claim was in error.
On appeal counsel contends that OWCP’s December 4, 2017 decision erroneously
rescinded acceptance of appellant’s claim as it lacks sufficient legal basis, citing the Board’s
18

20 C.F.R. § 10.610; 5 U.S.C. § 8128(a).

19

See M.B., Docket No. 17-0688 (issued March 15, 2018); Delphia Y. Jackson, 55 ECAB 373, 376 (2004).

20

Id.

21

Id.

22

J.F., Docket No. 17-0288 (issued May 23, 2017).

9

holding in the case of Roseanna Brennan.23 In that case, the Board found that OWCP improperly
rescinded acceptance of appellant’s recurrence of disability because it had not identified new
evidence, legal arguments, or rationale to justify its rescission of appellant’s recurrence of
disability on the basis that the acceptance was erroneous. In the instant case, however, OWCP
presented new evidence, by way of the voluminous Kaiser Permanente medical records and
Dr. Swartz’s October 18, 2017 report, regarding appellant’s claimed September 3, 2014 right
shoulder injury as to cast serious doubt upon the validity of the claim. In its December 4, 2017
decision, it explained how this new evidence established that appellant had not sustained a right
shoulder injury at work on September 3, 2014. OWCP presented sufficient new evidence and
argument to justify the rescission of its acceptance of appellant’s claim for aggravation of right
shoulder joint instability.
Counsel further contends on appeal that Dr. Swartz’s opinion is not entitled to the weight
of the medical evidence as it is inadequate under the law. However, Dr. Swartz reviewed the
medical record and supported his conclusion with medical rationale. Thus, the Board finds that
his report represents the weight of the evidence with regard to the rescission of the accepted claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability,
commencing October 25, 2014, causally related to her accepted September 3, 2014 employment
injury. The Board further finds that OWCP has met its burden of proof to rescind its acceptance
of appellant’s claim for aggravation of right shoulder joint instability.

23

41 ECAB 92 (1989).

10

ORDER
IT IS HEREBY ORDERED THAT the December 4 and November 2, 2017 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: November 21, 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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Bluefield, WV, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1074
Issued: January 12, 2010

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 March 16, 2009 appellant filed a timely appeal from August 4 and December 23,
2008 merit decisions of the Office of Workers’ Compensation Programs denying his claim for a
recurrence. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant established that he sustained a recurrence of disability on
July 20, 2007 causally related to his March 9, 2007 employment injury.
FACTUAL HISTORY
On March 20, 2007 appellant, then a 43-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that, on March 9, 2007, while pushing a container of mail over to
the loading truck staging area, he felt a pull in his left shoulder socket and experienced pain and
throbbing in the left shoulder, upper arm and rotator cuff. He stopped work on March 12, 2007.

The Office accepted the claim for sprain of the left shoulder, upper arm and acromioclavicular
joint.
On April 19, 2007 Dr. Robert P. Kropac, an orthopedic surgeon,1 released appellant to
light duty with a 10-pound restriction on lifting, pushing and pulling and a total restriction on
reaching. Appellant did not return to work at this time and continued to receive wage-loss
compensation.2
In a July 12, 2007 medical report, Dr. Kropac released appellant for full duty effective
July 16, 2007 based on the results of a functional capacity evaluation demonstrating appellant’s
ability to lift 75 pounds occasionally and 55 pounds frequently, which satisfied the demands of a
heavy work position. The record reveals that appellant returned to full duty on July 16, 2007 but
stopped working four days later on July 20, 2007.
In attending physician reports (Forms CA-20) dated July 18 and August 10, 2007,
Dr. Kropac indicated that appellant was totally disabled from March 29 through August 10, 2007
related to shoulder pain with bursitis and tendinitis.
On August 7, 2009 appellant filed a claim for a July 20, 2007 recurrence of disability
(Form CA-2a). He stated that Dr. Kropac suggested he return to work on a trial basis to
determine whether he could perform his job adequately. Appellant claimed that his injury was
never healed and that upon his return to work his left shoulder continued to worsen.
By letter dated August 17, 2007, the Office advised appellant of the deficiencies in his
recurrence claim and requested additional evidence.
In an August 9, 2007 medical report, Dr. Kropac reported appellant’s complaints of
persistent left shoulder pain. Appellant stated that he was not allowed to return to work with the
restrictions in the functional capacity evaluation and that he was told he should be in work
conditioning to increase his tolerance to work in a full-duty capacity. Physical examination
revealed some tenderness around the left shoulder although the range of motion was normal. A
neurological examination was objectively normal. Dr. Kropac stated that appellant should begin
work conditioning and hardening to improve his overall functional capacity to very heavy work.
He commented that appellant could return to work in a light-duty capacity if available.
In a letter dated August 23, 2007, appellant alleged that his position required him to lift
over 70 pounds dozens of times during his entire tour of duty. Further, he claimed that
Dr. Kropac sent him back to work on a trial basis prior to undergoing an extensive work-release
program as recommended by a physical therapist. Appellant alleged that the doctor told him
that, if his left shoulder continued to hurt, he should stop working and schedule an appointment.
He stated that he returned to work on July 16, 2007 and worked four eight-hour days, during

1

It does not appear that Dr. Kropac is Board certified in a particular specialty.

2

There is conflicting evidence in the record regarding whether there was light duty available at the employing
establishment at this time.

2

which time his left shoulder continued to hurt to the point where he could no longer sleep at
night. Appellant stopped work on July 20, 2007.
By decision dated October 10, 2007, the Office denied appellant’s claim for a July 20,
2007 recurrence of disability on the grounds that he did not establish with sufficient medical
evidence that the claimed recurrence was related to the March 9, 2007 employment injury.
On December 20, 2007 appellant filed a request for reconsideration. In a December 11,
2007 statement, he claimed that Dr. Kropac returned him to work in July based on a mistaken
assumption that he was only required to lift 70 pounds occasionally. He alleged that his entire
job consisted of lifting excessive weight over his head and placing the bulk packages in various
containers, as well as pushing and pulling numerous pallets containing thousands of pounds of
weight. Appellant further reiterated that the doctor only returned him to work on a trial basis due
to his ability to pick up 70 pounds during the functional capacity evaluation.
In an October 11, 2007 medical report, Dr. Kropac stated that appellant had improved
and progressed in work conditioning and that he was ready to return to work in a full-duty
capacity. Physical examination revealed continued tenderness over the rotator cuff and bicipital
groove area of the left shoulder. Dr. Kropac also noted occasional crepitation in the area but that
range of motion was full. He diagnosed supraspinatus tendinitis with subacromial bursitis of the
left shoulder secondary to the March 9, 2007 compensable injury and released appellant for full
duty. In a subsequent December 10, 2007 report, Dr. Kropac reported that appellant only
returned to work for one day but that he experienced increased shoulder pain. He stated that
appellant could return to work in a modified capacity with restrictions precluding heavy lifting
and using his left upper extremity.
In a December 13, 2007 attending physician’s report, Dr. Kropac indicated that appellant
was totally disabled until October 15, 2007 and partially disabled from October 16, 2007 through
January 8, 2008. He indicated work restrictions including no heavy lifting using the upper
extremities.
In a report dated January 7, 2008, Dr. Kropac reported appellant’s complaints of
continued shoulder pain aggravated by overhead and outstretched reaching. Physical
examination revealed tenderness and crepitation over the left shoulder and full range of motion
with pain. Dr. Kropac diagnosed supraspinatus tendinitis with subacromial bursitis and indicated
that appellant could work modified duty with the same restrictions previously provided.
In a January 9, 2008 attending physician’s report, Dr. Kropac indicated that appellant was
totally disabled during the period March 29 through October 22, 2007 and that he was able to
resume light duty on December 27, 2007.
By decision dated February 12, 2008, the Office denied modification of the October 10,
2007 decision on the grounds that the medical evidence did not establish that appellant
experienced a worsening of his condition on July 20, 2007 causally related to the March 9, 2007
employment injury. It noted that, although Dr. Kropac stated that appellant could not return to
work due to the conditions of tendinitis, bursitis and impingement, these conditions were not
accepted as work related.

3

On February 29, 2008 appellant filed a request for reconsideration.
In a February 27, 2008 medical note, Dr. Kropac stated that appellant’s current left
shoulder condition of supraspinatus tendinitis and subacromial bursitis was a direct result of the
employment-related March 9, 2007 injury.
By decision dated March 14, 2008, the Office modified its prior decision in part to accept
the conditions of left shoulder rotator cuff tendinitis with subacromial bursitis as employment
related. However, it found that the medical evidence was still insufficient to support appellant’s
claim for a recurrence of disability.
On July 28, 2008 appellant filed a request for reconsideration.
In a February 27, 2008 medical report, Dr. Kropac stated that appellant had not
experienced any changes with regards to his subjective complaints and that he still experienced
left shoulder pain aggravated by overhead and outstretched reaching. He noted crepitation in the
left shoulder area and pain on abduction and flexion of the left shoulder against resistance.
Dr. Kropac diagnosed supraspinatus tendinitis with subacromial bursitis of the left shoulder
secondary to the March 9, 2007 employment injury. He stated that appellant could continue to
work if modified duty was available. However, since modified duty was apparently not
available, appellant could not return to work due to his symptomatology.
By decision dated August 4, 2008, the Office denied modification of its prior decisions
on the grounds that there was no rationalized medical evidence of record establishing that
appellant experienced a recurrence of disability causally related to the March 9, 2007
employment injury.
In a June 24, 2008 medical report, Dr. Jack R. Steel, a Board-certified orthopedic
surgeon, stated that appellant experienced persistent left shoulder pain and had not worked since
March 9, 2007 due to an employment injury. He noted appellant’s complaints of anterior left
shoulder pain with lifting activities, lying on the involved side and overhead activities. Physical
examination of the left shoulder revealed abduction to 95 degrees with anterior pain, forward
flexion to 180 degrees with anterior pain, external rotation to 90 degrees and internal rotation to
85 degrees with mild pain. Further, external rotation strength was graded five out of five with
mild anterior pain. Dr. Steel diagnosed a sprain of the left rotator cuff. He opined that there was
no clinical or magnetic resonance imaging (MRI) scan evidence of a rotator cuff tear. Appellant
had similar findings on the right shoulder but the left was more symptomatic presumably related
to the injury. Dr. Steel recommended physical therapy for three weeks, followed by three weeks
work hardening and then a functional capacity evaluation with work release based on the
evaluation findings.
On September 29, 2008 appellant filed a request for reconsideration. He also submitted a
September 19, 2008 letter essentially reiterating his arguments supporting prior reconsideration
requests.
By decision dated December 23, 2008, the Office denied modification of its prior
decisions on the grounds that the medical evidence of record was insufficient to establish that on
July 20, 2007 appellant sustained a change in the nature and extent of his employment injury or a
4

change in limited-duty requirements. Thus, it found that he did not establish a recurrence of
disability.
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 has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”3 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which he claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish 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.4 Where no such rationale is present,
medical evidence is of diminished probative value.5
ANALYSIS
The Office accepted that appellant sustained a sprain of the left shoulder, upper arm and
acromioclavicular joint on March 9, 2007 while pushing a container of mail at work. It
subsequently accepted the conditions of left shoulder rotator cuff tendinitis with subacromial
bursitis as employment related. Dr. Kropac, appellant’s treating physician, released appellant to
limited duty on April 19, 2007 and full duty on July 16, 2007. Appellant returned to full duty
from July 16 through 19, 2007, working eight-hour days. The issue is whether he established
that he sustained a recurrence of disability on July 20, 2007 causally related to the March 9, 2007
employment injury. The Board finds that appellant has not produced any rationalized medical
opinion evidence establishing that he was disabled on or after July 20, 2007 as a result of the
accepted March 9, 2007 employment injury.
In support of his claim, appellant submitted several medical reports from Dr. Kropac
dated August 9, 2007 through February 27, 2008. Dr. Kropac diagnosed supraspinatus tendinitis
with subacromial bursitis secondary to the March 9, 2007 employment injury. He reported
appellant’s complaints of consistent pain, aggravated by overhead and outstretched reaching and
difficulties performing daily activities. In attending physician’s reports dated July 18 through
December 13, 2007, Dr. Kropac stated that appellant had been totally disabled since March 29,
2007 due to shoulder pain with bursitis and tendinitis.
The Board finds that Dr. Kropac’s medical reports are insufficient to establish appellant’s
recurrence claim. Dr. Kropac released appellant to full duty on July 16, 2007 based on the
results of a functional capacity evaluation demonstrating his ability to perform heavy work. He
3

R. S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

5

did not state at this time that the return to work was on a trial basis or that the release to full duty
was only due to appellant’s request. In subsequent medical records, after the alleged July 20,
2007 recurrence, Dr. Kropac merely opined that appellant was currently disabled and had been
since March 29, 2007 due to tendinitis and bursitis. He did not explain how the nature and extent
of appellant’s employment-related condition changed after he released him to full duty on
July 16, 2007 or why he changed his medical opinion regarding appellant’s disability after this
date.6 Moreover, Dr. Kropac never addressed appellant’s return to work on July 16, 2007 or
provided any rationalized explanation as to why appellant could not continue working after
July 20, 2007 due to the employment injury. Thus, his reports are insufficient to establish
appellant’s burden of proof.7
Further, appellant submitted a June 24, 2008 medical report from Dr. Steel, who reported
appellant’s persistent left shoulder pain. Dr. Steel diagnosed rotator cuff sprain and
recommended physical therapy and work hardening with subsequent release to work. This report
is also insufficient to establish appellant’s claim for a recurrence. Dr. Steel did not provide any
explanation as to how the diagnosed rotator cuff strain caused appellant to be disabled from
returning to work or performing his employment duties. In fact, he did not provide any specific
opinion regarding appellant’s current or prior disability, nor did he indicate any knowledge of a
recurrence of disability on or after July 20, 2007.8 Thus, this report is also insufficient to
establish appellant’s claim for a July 20, 2007 recurrence.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability on July 20, 2007 causally related to his March 9, 2007 employment injury.

6

See K.C., 60 ECAB ___ (Docket No. 08-2222, issued July 23, 2009); Mary A. Ceglia, 55 ECAB 626 (2004).

7

See Joan R. Donovan, 54 ECAB 615 (2003).

8

See Conard Hightower, 54 ECAB 796 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the December 23 and August 4, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: January 12, 2010
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

7