J.S. and Department of the Army, Red River Army Depot (Board decision, March 15, 2024)

ECAB final decision. The Board affirmed OWCP's denial of a recurrence of the need for medical treatment. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

An Army depot mechanic sought renewed medical treatment for his right shoulder after an accepted 2019 injury. The Board found that treatment notes, work restriction forms, and scans did not explain why the current need for treatment was caused by the accepted injury. It affirmed OWCP's denial of the recurrence claim.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.; 5 U.S.C. § 8128(b).
• Outcome: Recurrence of medical treatment denied.
• Key point: The reports did not connect the renewed treatment need to the accepted injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.S., Appellant
)
)
and ) Docket No. 23-0957
) Issued: March 15, 2024
DEPARTMENT OF THE ARMY, TANK-
)
AUTOMOTIVE AND ARMAMENTS
)
COMMAND, RED RIVER ARMY DEPOT,
)
Texarkana, TX, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 11, 2023 appellant filed a timely appeal from a February 15, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP).1 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish a recurrence of the need for medical treatment causally related to the accepted October 31, 2019 employment injury.

1
Appellant’s application for review (AB-1 form) notes that appellant is appealing from a purported January 31, 2023 OWCP decision. However, the case record does not contain a final adverse decision of that date. The last final adverse decision of record was OWCP’s February 15, 2023 merit decision. 2 5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

On November 5, 2019 appellant, then a 64-year-old mechanic, filed a traumatic injury claim (Form CA-1) alleging that on October 31, 2019 he sustained a right arm and shoulder injury when he pulled a muscle as he was building kits for PLS trucks while in the performance of duty. On January 15, 2020 OWCP accepted the claim for other injuries of the right shoulder and upper arm, and rotator cuff injury to muscle/tendon of the right shoulder.

Appellant underwent a right shoulder magnetic resonance imaging (MRI) scan on February 11, 2020, which demonstrated a partial tear of the infraspinatus tendon and labrum, mild supraspinatus tendinopathy, and mild degenerative changes within the glenohumeral joint.

Appellant was scheduled for right shoulder surgery on August 6, 2020, following completion of physical therapy.

In a letter dated September 16, 2021, the employing establishment notified appellant that his appointment as a heavy mobile equipment mechanic would expire on October 23, 2021, and would not be extended. It explained that the expiration of his employment was based solely on a decrease in current workload and did not reflect misconduct, violation of policy, or his past work performance.

On December 12, 2022 appellant filed a notice of recurrence (Form CA-2a) alleging a recurrent need for additional medical treatment for his right arm and shoulder condition as of November 11, 2022, because his work-related conditions never resolved. He indicated that he was never released from light-duty work, which was provided by the employing establishment. Appellant further asserted that additional medical treatment was warranted, which was previously denied by OWCP.

In support of his claim, appellant submitted medical reports and work-restrictions from his treating providers dated November 5, 2019 through July 13, 2020. He submitted a November 5, 2019 right shoulder x-ray, which revealed normal findings. Duty status reports (Form CA-17) dated November 5, 2019 through July 13, 2020 were also provided documenting appellant’s work- related restrictions and limitations pertaining to the right shoulder and arm.

In a July 13, 2020 Form CA-17, Dr. George S. Walls, Board-certified in occupational medicine, provided work restrictions for the right shoulder and arm, reporting that appellant could resume work within his restrictions.

Appellant submitted medical reports dated March 11 through July 1, 2020, from Dr. Darius F. Mitchell, a Board-certified orthopedic surgeon, and Cody Ray, a nurse practitioner. In a March 11, 2020 report, Dr. Mitchell reported that appellant presented for evaluation of the right shoulder due to continued complaints following an October 31, 2019 employment injury. He provided physical examination findings and noted that a right shoulder MRI scan revealed rotator cuff tendinitis with loss of capsular redundancy. Dr. Mitchell diagnosed rotator cuff tendinitis in the face of adhesive capsulitis and recommended conservative management through right shoulder injections and physical therapy. In reports dated May 6 and June 3, 2020, Mr. Ray examined appellant, administered repeat intra-articular injections to the right shoulder, and diagnosed continued rotator cuff tendinitis with improving adhesive capsulitis of the right shoulder and right shoulder rotator cuff tendinitis with adhesive capsulitis. In a July 1, 2020 report, Dr. Mitchell

2 reported that appellant failed conservative management of his right shoulder and would require surgical intervention through a bursectomy and subacromial decompression.

In a January 3, 2023 development letter, OWCP informed appellant that the evidence submitted was insufficient to establish a recurrence of disability. It advised him of the type of evidence needed to establish his recurrence claim and provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary evidence.

In a January 17, 2023 narrative statement, appellant responded to OWCP’s questionnaire explaining that his October 31, 2019 employment injury never resolved as evidenced in the February 11, 2020 MRI scan. He reported that the employing establishment initially assigned him to light-duty work within his same department under the supervision of B.F., while he was waiting for OWCP to authorize his right shoulder surgery. Appellant explained that his light-duty position was changed numerous times by B.F. who assigned him to different positions located in different buildings from where he typically worked. He described his course of medical treatment, and the difficulties he encountered working with his right arm, which required surgery. Appellant explained that the employing establishment did not provide him a job offer while he was working light duty, informing him that he would not be provided one until he was cleared for full-duty work. He further reported that although he had testing and bloodwork completed in preparation for his right shoulder surgery, the procedure was cancelled when it was not approved by OWCP.

On January 23, 2023 appellant advised OWCP by telephone that a request for authorization of right shoulder surgery was provided to it on August 11, 2020. However, he further noted that he was informed by his medical provider that OWCP cancelled his surgery.

Appellant also provided additional CA-17 forms dated November 5 through December 6, 2019 documenting work restrictions, as well as an August 6, 2020 scheduling appointment for right shoulder surgery.

By decision dated February 15, 2023, OWCP denied appellant’s recurrence claim, finding that he had not established that he required additional medical treatment due to a worsening of the accepted work-related conditions, without intervening cause.

LEGAL PRECEDENT

The United States shall furnish to an employee who is injured while in the performance of duty the services, appliances, and supplies prescribed or recommended by a qualified physician that the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of any disability, or aid in lessening the amount of any monthly compensation.3

A recurrence of a medical condition means a documented need for further medical treatment after release from treatment for the accepted condition or injury when there is no accompanying work stoppage.4 An employee has the burden of proof to establish that he or she

3
5 U.S.C. § 8103(a).
4
20 C.F.R. § 10.5(y).

3 sustained a recurrence of a medical condition that is causally related to his or her accepted employment injury without intervening cause.5

If a claim for recurrence of medical condition is made more than 90 days after release from medical care, a claimant is responsible for submitting a medical report supporting a causal relationship between the employee’s current condition and the original injury in order to meet his or her burden.6 To meet this burden, the employee must submit medical evidence from a physician who, on the basis of a complete and accurate factual and medical history, supports that the condition is causally related and supports his or her conclusion with sound medical rationale.7 Where no such rationale is present, medical evidence is of diminished probative value.8

ANALYSIS

The Board finds that appellant has not met his burden to establish a recurrence of the need for medical treatment, causally related to the accepted October 31, 2019 employment injury.

In reports dated March 11 and July 1, 2020, Dr. Mitchell reported that appellant presented for evaluation of the right shoulder due to continued complaints following an October 31, 2019 employment injury. He provided physical examination findings and noted that a right shoulder MRI scan demonstrated rotator cuff tendinitis with loss of capsular redundancy. In his March 11, 2020 report, Dr. Mitchell diagnosed rotator cuff tendinitis in the face of adhesive capsulitis and recommended conservative management through right shoulder intra-articular injections and physical therapy. In a July 1, 2020 report, he reported that appellant failed conservative management of his right shoulder, and would require surgical intervention through a bursectomy and subacromial decompression. However, Dr. Mitchell did not provide an opinion on whether the recurrent need for medical treatment was causally related to the accepted October 31, 2019 employment injury. The Board has held that a medical report that does not offer an opinion on causal relationship is of no probative value on the issue of causal relationship.9 Thus, these reports are insufficient to establish appellant’s recurrence claim.10

Appellant also submitted Form CA-17’s dated November 5, 2019 through July 13, 2020 documenting his work-related restrictions and limitations pertaining to the right shoulder and arm.

5
R.B., Docket No. 22-0980 (issued October 18, 2022); B.B., Docket No. 21-1358 (issued May 11, 2022); E.R., Docket No. 18-0202 (issued June 5, 2018). 6 Federal (FECA) Procedural Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4b (June 2013); see also M.F., Docket No. 21-1221 (issued March 28, 2022); J.M., Docket No. 09-2041 (issued May 6, 2010). 7 S.P., Docket No. 19-0573 (issued May 6, 2021); A.C., Docket No. 17-0521 (issued April 24, 2018); O.H., Docket No. 15-0778 (issued June 25, 2015).
8
M.P., Docket No. 19-0161 (issued August 16, 2019); Michael Stockert, 39 ECAB 1186 (1988).
9
See K.F., Docket No. 23-0749 (issued October 6, 2023); C.H., Docket No. 22-1186 (December 22, 2022); D.Y., Docket No. 20-0112 (issued June 25, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018). 10 See K.H., Docket No. 22-0579 (issued September 15, 2022); M.F., Docket No. 21-1221 (issued March 28, 2022);
T.H., Docket No. 18-0704 (issued September 6, 2018); L.B., id.; D.K., id.; Charles H. Tomaszewski, 39 ECAB 461 (1988).

4
These form reports, however, did not offer an opinion on causal relationship between appellant’s current need for medical treatment and the accepted October 31, 2019 employment injury.11 In a July 13, 2020 Form CA-17, Dr. Walls provided work restrictions for the right shoulder and arm, reporting that appellant could resume work within his restrictions. Likewise, Dr. Walls did not, offer an opinion on how appellant’s accepted work-related conditions had worsened to the point that he required additional medical treatment after he was released to work within his restrictions.12 The Board has held that a medical report is of no probative value on a given medical matter if it does not contain an opinion on that matter.13 Accordingly, these reports are insufficient to establish appellant’s recurrence claim.14

Similarly, the November 5, 2019 right shoulder x-ray and February 11, 2020 right shoulder MRI scan are insufficient to establish appellant’s claim for a recurrence of the need for medical treatment. The Board has held that reports of diagnostic tests, standing alone, lack probative value as they do not provide an opinion as to whether the accepted employment factors caused the diagnosed condition.15 Thus this evidence is insufficient to establish appellant’s recurrence claim.16

Appellant also submitted reports dated May 6 and June 3, 2020 by Mr. Ray, a nurse practitioner. The Board has held that certain healthcare providers such as nurse practitioners, physical/occupational therapists, and social workers are not considered physicians as defined under FECA and, therefore, are not competent to provide a medical opinion.17 The August 6, 2020 scheduling appointment for right shoulder surgery is also insufficient to establish appellant’s claim as the document is void of information from a qualified physician indicating why the right shoulder

11
W.B., Docket No. 22-0985 (issued March 27, 2023); S.P., Docket No. 19-0573 (issued May 6, 2021); Michael Stockert, 39 ECAB 1186, 1187-88 (1988); see also Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004). 12 See R.N., Docket No. 22-0786 (issued April 18, 2023); B.A., Docket No. 22-0213 (issued July 26, 2022); K.B., Docket No. 21-1038 (issued February 28, 2022).
13
See J.B., Docket No. 23-0660 (issued October 12, 2023); S.P., Docket No. 23-0622 (issued September 13, 2023);
S.P., Docket No. 19-0573 (issued May 6, 2021); T.H., Docket No. 18-0704 (issued September 6, 2018); Charles H. Tomaszewski, 39 ECAB 461 (1988). See also L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018). 14 M.F., Docket No. 21-1221 (issued March 28, 2022).
15
W.T., Docket No. 23-0323 (issued August 15, 2023); V.Y., Docket No. 18-0610 (issued March 6, 2020); G.S., Docket No. 18-1696 (issued March 26, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017). 16 See S.P., Docket No. 23-0622 (issued September 13, 2023).
17
Section 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a (May 2023); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); see also B.D., Docket No. 22-0503 (issued September 27, 2022) (nurse practitioners are not considered physicians as defined under FECA and their medical findings and/or opinions will not suffice for purposes of establishing entitlement to FECA benefits).

5 surgery is needed for treatment of his accepted October 31, 2019 employment injury. Therefore, this evidence is insufficient to establish appellant’s recurrence claim.18

As appellant has not submitted medical evidence sufficient to establish a recurrence of the need for medical treatment as of November 30, 2022, causally related to his accepted October 31, 2019 employment injury, the Board finds that he has not met his burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a recurrence of the need for medical treatment as of November 11, 2022, causally related to the accepted October 31, 2019 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the February 15, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 15, 2024
Washington, DC

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

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

18
See A.H., Docket No. 22-0901 (issued April 21, 2023).

6