United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Ashdown, AR, Employer 

__________________________________________ 

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Docket No. 14-1430 

Issued: November 7, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On May 1, 2014 appellant filed a timely appeal from a February 28, 2014 nonmerit 

decision and a November 14, 2013 merit decision of the Office of Workers’ Compensation 

Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether appellant met her burden of proof to establish an injury in the 

performance of duty; and (2) whether OWCP properly denied her request for reconsideration 

under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On April 29, 2013 appellant, then a 54-year-old part-time flexible sales/service associate 

and distribution clerk, filed a traumatic injury claim alleging a right shoulder injury in the 

 1

 5 U.S.C. § 8101 et seq. 
2

performance of duty on April 12, 2013. She picked up a heavy parcel from a hamper. A witness 

provided a statement corroborating appellant’s assertions. Appellant began working a light-duty 

assignment. 

In an April 27, 2013 statement, appellant stated that she experienced right shoulder pain 

as she attempted to lift a 50-pound parcel from a hamper. She stated that her coworker heard her 

cry out in pain and came to assist her. 

In a May 23, 2013 report, Dr. Adam Smitherman, a Board-certified orthopedic surgeon, 

diagnosed shoulder pain. He noted that appellant felt a pop as she was picking up a heavy 

parcel. Dr. Smitherman advised that right shoulder x-rays revealed no fracture and a little 

cortical irregularity at the metaphyseal junction. He also noted that appellant was tender over the 

biceps tendon and cuff insertion. Dr. Smitherman advised appellant to limit her lifting to no 

more than 10 pounds and to refrain from throwing or any other overhead work. He reiterated 

appellant’s work restrictions in a May 23, 2013 disability status report and advised that she could 

return to light duty. Appellant and her supervisor agreed to a limited-duty schedule, in a May 24, 

2013 offer of modified assignment, in accordance with Dr. Smitherman’s restrictions. 

In a June 5, 2013 attending physician’s report (CA-20), Dr. Smitherman diagnosed pain 

in the joint/shoulder region. He checked the box marked “yes” when asked if he believed 

appellant’s injury resulted from her work activities. 

Appellant filed claims for compensation beginning June 1, 2013. The employing 

establishment advised that she was working light duty part of the day and was in a leave without 

pay status for the remainder of the duty. The form noted that appellant received continuation of 

pay from April 13 through May 27, 2013. 

In a June 17, 2013 letter, OWCP notified appellant that the evidence of record was 

insufficient to establish her claim. Appellant was advised to submit a medical report that 

included a diagnosis and a physician’s opinion regarding causal relationship. She was advised 

that pain was considered a symptom and not a firm medical diagnosis. 

In a July 11, 2013 report, Dr. Smitherman noted that appellant injured herself at work 

while lifting a heavy parcel. He diagnosed right shoulder weakness and pain. Dr. Smitherman 

noted that right shoulder x-rays did not reveal a fracture but there was cortical irregularity at the 

metaphyseal junction. He advised that he believed the work incident caused appellant’s shoulder 

injury because she had no shoulder pain prior to the incident. Dr. Smitherman also advised that a 

magnetic resonance imaging (MRI) scan had been ordered. 

By decision dated July 25, 2013, OWCP denied appellant’s claim. It found that the 

medical evidence did not establish that the April 12, 2013 work incident caused injury to her 

right shoulder. 

Appellant submitted evidence and requested reconsideration on September 16, 2013. In 

July 11 and 25, 2013 work status reports, Dr. Smitherman reiterated appellant’s work 

restrictions. In a July 25, 2013 report, he noted that appellant had improved some but was still 

experiencing pain. 
3

In an August 8, 2013 report, Dr. Joseph Robbins, Board-certified in diagnostic radiology, 

advised that a right shoulder MRI scan revealed an anterior tear and posterior tendinosis 

involving the distal 10 millimeters of the supraspinatus tendon at its insertion. He also noted that 

it was probable that appellant had tendinosis in the bicep anchor as well. Dr. Robbins noted that 

appellant had a shoulder injury with continued pain and decreased range of motion. 

In an August 15, 2013 report, Dr. Smitherman diagnosed a right full thickness rotator 

cuff tear. He discussed a possible rotator repair surgery with appellant. Dr. Smitherman advised 

that the MRI scan showed some tendinosis or edema and a possible partial thickness tear of the 

biceps tendon at its insertion. He also noted that the present condition followed an acute 

shoulder injury that occurred three months earlier. In an August 22, 2013 report, 

Dr. Smitherman suggested surgical repair because the injury would not likely repair on its own. 

He reiterated that the injury occurred while appellant was at work and that she related to him that 

it occurred when she lifted a heavy box. In an August 22, 2013 disability status report, appellant 

advised that appellant should not work until after surgery. 

By decision dated November 14, 2013, OWCP denied appellant’s claim because medical 

evidence did not include a physician’s opinion regarding causal relationship supported by 

adequate medical rationale. 

On January 17, 2014 appellant requested reconsideration, asserting that her condition was 

employment related, noting that she had submitted documentation and again describing how the 

claimed injury occurred. OWCP also received additional medical evidence. In a November 20, 

2013 report, Dr. Smitherman noted that appellant continued to have shoulder pain and reiterated 

that he did not think there would be any improvement without surgery. In a January 15, 2014 

report, Dr. Smitherman noted that appellant continued to have shoulder pain as a result of a work 

injury. He stated that her pain was due to an injury at work while lifting heavy packages. 

Dr. Smitherman recommended surgery and advised that, since this injury was sustained at work, 

it will be covered under her workers’ compensation claim. His July 25, 2013 report was also 

resubmitted. 

By decision dated February 28, 2014, OWCP issued a decision denying the request for 

reconsideration, finding that the request was insufficient to warrant a merit review. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking compensation under FECA has the burden of establishing the 

essential elements of his or her claim by the weight of reliable, probative, and substantial 

evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or 

she filed his or her claim within the applicable time limitation.3 The employee must also 

 2

 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968). 

3 R.C., 59 ECAB 427 (2008). 
4

establish that he or she sustained an injury in the performance of duty as alleged and that his or 

her disability for work, if any, was causally related to the employment injury.4

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. 

There are two components involved in establishing fact of injury. First, the employee must 

submit sufficient evidence to establish that he or she actually experienced the employment 

incident at the time, place and in the manner alleged. Second, the employee must submit 

medical evidence to establish that the employment incident caused a personal injury.5

Rationalized medical opinion evidence is generally required to establish causal 

relationship. The opinion of the physician must be based on a complete factual and medical 

background, must be one of reasonable medical certainty, and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant.6

ANALYSIS -- ISSUE 1 

On April 12, 2013 appellant lifted a parcel while at work. The evidence supports that the 

claimed work incident occurred. Therefore, the Board finds that the first component of fact of 

injury is established. However, the medical evidence is insufficient to establish that the 

employment incident on April 12, 2013 caused appellant’s right shoulder condition. 

In his August 22, 2013 report, Dr. Smitherman diagnosed right full thickness rotator cuff 

tear. He noted that he believed that appellant’s injury occurred at work. Dr. Smitherman also 

advised that appellant related to him that the injury occurred as she lifted a heavy box at work. 

Although this report included an opinion on causal relationship he did not provide sufficient 

medical rationale is insufficient to discharge appellant’s burden of proof. Dr. Smitherman 

appears to state the facts as reported to him by appellant. The Board has held that a physician’s 

opinion regarding causal relationship that appears to be primarily based on appellant’s own 

representations rather than on objective medical findings is of limited probative value.7

 In his 

July 11, 2013 report, Dr. Smitherman also noted that appellant injured herself at work while 

lifting a heavy parcel. He stated that he believed the work injury caused appellant’s diagnosed 

condition because she did not have shoulder pain prior to the incident. The Board has held that 

an opinion that a condition is causally related to an employment injury because the employee 

was asymptomatic before the injury but symptomatic after it is insufficient, without supporting 

rationale, to establish causal relationship.8

 In his June 5, 2013 attending physician’s report (CA20), Dr. Smitherman diagnosed pain in the joint/shoulder region. He checked a box “yes” in 

 4 Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

5

 T.H., 59 ECAB 388 (2008). 

6 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989). 

7 C.M., Docket No. 14-88 (issued April 18, 2014). 

8 Thomas D. Petrylak, 39 ECAB 276 (1987). 
5

response to whether he believed appellant’s injury resulted from her work activities. The Board 

has held that an opinion on causal relationship that consists only of a physician checking yes to a 

medical form question on whether the claimant’s condition was related to the history given is of 

little probative value.9

 Dr. Smitherman did not adequately explain the pathophysiological 

process by which the incident of April 12, 2013 caused appellant’s right shoulder condition. The 

treatment records do not provide a full background of appellant’s medical history. Moreover, his 

opinion on support of appellant’s claim was stated to a reasonable degree of medical certainty. It 

was not addressed whether the diagnostic test supported a recent tear or if the findings were of a 

long-standing or degenerative nature. 

Other reports from Dr. Smitherman and a diagnostic report from Dr. Robbins are also 

insufficient to discharge appellant’s burden of proof. They do not address how lifting a parcel on 

April 12, 2013 caused the diagnosed shoulder condition.10

Appellant may submit new evidence or argument as part of a formal 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. 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA, the 

evidence or argument submitted by a claimant must: (1) show that OWCP erroneously applied 

or interpreted a specific point of law; (2) advance a relevant legal argument not previously 

considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously 

considered by OWCP.11 To be entitled to a merit review of an OWCP decision denying or 

terminating a benefit, a claimant also must file his or her application for review within one year 

of the date of that decision.12 When a claimant fails to meet one of the above standards, OWCP 

will deny the application for reconsideration without reopening the case for review on the 

merits.13

ANALYSIS -- ISSUE 2 

On November 14, 2013 OWCP denied appellant’s claim finding that the medical 

evidence did not did not sufficiently establish that the April 12, 2013 employment incident 

caused or aggravated a right shoulder condition. Appellant submitted a timely request for 

reconsideration. She argued that documentation has been provided and that she initially did not 

 9 Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box yes in a form report, without additional 

explanation or rationale, is insufficient to establish causal relationship). 

10 See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the 

cause of an employee’s condition is of diminished probative value on the issue of causal relationship). 

11 20 C.F.R. § 10.606(b)(2). 

12 Id. at § 10.607(a). 

13 Id. at § 10.608(b). 
6

understand what evidence was needed to establish her claim. Appellant also submitted new 

evidence. 

The Board finds that OWCP properly denied appellant’s request for reconsideration 

without further merit review. Appellant submitted a January 15, 2014 report from 

Dr. Smitherman, which reiterated that appellant sustained an injury at work while lifting a heavy 

package. This report is new but it is not relevant because it contains the same information 

regarding causal relationship that was contained in his July 11 and August 22, 2013 reports 

previously submitted by appellant. Appellant also resubmitted a July 25, 2013 report from 

Dr. Smitherman. The submission of evidence that repeats or duplicates evidence already 

included in the case record does not constitute a basis for reopening a case.14 In a November 20, 

2013 report, Dr. Smitherman noted that appellant continued to experience shoulder pain and 

advised that in his opinion her injury would not improve without surgery. This medical report is 

not relevant because it does not specifically address causal relationship between the April 12, 

2013 work incident and her right shoulder condition.15

Furthermore, appellant neither showed that OWCP erroneously applied or interpreted a 

specific point of law nor advanced a relevant legal argument not previously considered by 

OWCP. While she offered her argument for why she believed her claim should be accepted, the 

underlying point at issue in the claim, causal relationship, is medical in nature. Because 

appellant failed to meet any of the three regulatory criteria for reopening a claim, she was not 

entitled to further merit review of her claim. 

CONCLUSION 

The Board finds that appellant did not establish that she sustained a traumatic injury in 

the performance of duty on April 12, 2013. The Board also finds that OWCP properly refused to 

reopen appellant’s case for further review of the merits. 

 14 Edward W. Malaniak, 51 ECAB 279 (2000). 

15 D.K., 59 ECAB 141 (2007) (the submission of evidence that does not address the relevant issue involved does 

not constitute a basis for reopening a case).
7

ORDER 

IT IS HEREBY ORDERED THAT the February 28, 2014 and November 14, 2013 

decisions of the Office of Workers’ Compensation Programs are affirmed. 

Issued: November 7, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board