United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

San Diego, CA, Employer 

__________________________________________ 

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Docket No. 13-2074 

Issued: May 9, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On September 10, 2013 appellant filed a timely appeal of the April 15, 2013 decision of 

the Office of Workers’ Compensation Programs (OWCP), which denied his occupational disease 

claim. He also appealed a July 26, 2013 decision, which denied his request for an oral hearing. 

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 the case.2

ISSUES 

The issues are: (1) whether appellant met his burden of proof to establish that he 

sustained an occupational disease in the performance of duty; and (2) whether OWCP properly 

denied appellant’s request for an oral hearing. 

 1

 5 U.S.C. §§ 8101-8193. 

2

 Appellant requested an oral argument. The Clerk of the Board mailed a December 13, 2013 letter to appellant to 

confirm a continuing desire for an oral argument in Washington, DC. No written confirmation was received. The 

Board has decided the appeal on the record. 
2

FACTUAL HISTORY 

On October 11, 2012 appellant then a 55-year-old city carrier, filed a Form CA-2, 

occupational disease alleging a right shoulder condition while performing repetitive work duties. 

He advised that he had a 10 percent disability rating from the Department of Veterans Affairs 

(VA). Appellant realized that his condition was causally related to his employment on 

October 2, 2012. 

On March 12, 2013 OWCP advised appellant of the evidence needed to establish his 

claim. It requested that he submit a physician’s reasoned opinion addressing the causal 

relationship of his claimed condition to specific work factors. 

On October 5, 2012 appellant was treated by Dr. Robert Petrie, a Board-certified family 

practitioner, for right shoulder pain while lifting. His initial injury occurred while he was in the 

military. Appellant reported that 15 to 20 years prior he had a recurrent dislocation of the right 

shoulder and a magnetic resonance imaging (MRI) scan showed a partial rotator cuff tear. He 

reported moderate pain that recently became worse with lifting. Dr. Petrie noted appellant’s 

complaint of numbness along the dorsum of the right hand, abduction and flexion were limited to 

90 degrees and there was tenderness in the superior acromioclavicular (AC) joint. He injected a 

steroid and diagnosed right shoulder impingement with possible radial neuropathy. Appellant 

was returned to work modified duty. In an October 8, 2012 physician’s first report of 

occupational injury or illness, Dr. Petrie noted that appellant had right shoulder pain and 

numbness in the dorsum of the right hand. Appellant reported being injured at work and having 

recurrent dislocations 15 to 20 years prior and recently experiencing worsening pain with lifting. 

Dr. Petrie noted positive findings on examination and diagnosed right shoulder impingement. 

Appellant provided VA medical records. On December 27, 2010 he was treated by 

Dr. Tara L. Pernot, a Board-certified internist, for a shoulder injury sustained when he fell while 

in the military. Appellant reported a history of multiple dislocations, rotator cuff tears and 

ligament issues but indicated that he was not symptomatic. Dr. Pernot diagnosed shoulder pain 

from prior trauma and partial rotator tear. Appellant was seen by Dr. Asma M. Kazi, a Boardcertified internist, on October 4, 2011 for an annual visit. Dr. Kazi advised that he had a 

shoulder injury in the military when he fell and later had multiple dislocations, rotator cuff tears 

and ligament issues. Appellant’s shoulder was stable for many years and did not require 

treatment. Dr. Kazi diagnosed shoulder pain from prior trauma and partial rotator tear with mild 

pain. On October 16, 2012 she treated appellant for worsening right shoulder pain. Appellant 

reported right shoulder pain on and off for the past few years with decreased range of motion and 

weakness. Dr. Kazi diagnosed right rotator cuff tear, shoulder pain with history of trauma, 

partial rotator tear with mild pain and limited range of motion. On October 29, 2012 she noted 

that an x-ray revealed a small osteophyte at the inferior glenohumeral joint representing mild 

degenerative changes. On December 20, 2012 appellant was treated by Dr. Wendy Wong, a 

resident, for right shoulder pain. He reported an episode of right shoulder anterior dislocation at 

age 19 when he fell while running in boot camp and underwent a closed reduction of the 

shoulder. Appellant indicated that he did not have a problem until three years prior when he 

started work at the employing establishment. He performed pushing and pulling with his arm. 

Dr. Wong noted pain in the anterior and lateral aspect of the right shoulder, worse with overhead 

activities and a limited range of motion. She noted that an x-ray of the right shoulder dated 
3

December 20, 2012 revealed no significant arthritis or acute bony abnormalities and diagnosed 

right shoulder pain with remote history of dislocation. 

The diagnostic test reports include a normal October 5, 2012 right shoulder x-ray. An 

October 18, 2012 right shoulder x-ray showed no arthritis or bony abnormality but a suspected 

triangular density along the inferior aspect of the glenoid of uncertain etiology. An October 26, 

2012 right shoulder x-ray revealed a small osteophyte at the inferior glenohumeral joint 

representing mild degenerative changes. A March 5, 2013 right shoulder MRI scan showed 

superior labral degeneration or tear, moderate AC joint hypertrophic arthropathy causing 

narrowing of the subacromial space, possibly impingement, small intrasubstance or articular 

surface partial thickness tear and tendinopathy and small subdeltoid bursal fluid/bursitis. 

In a statement dated April 4, 2013, appellant stated that his condition began when he was 

in the military when he fell and partially dislocated his right shoulder. In September 2011 he 

was reassigned from the letter carrier craft to the mailhandler craft. Appellant’s duties included 

pushing and pulling bulk mail containers, repetitively placing flat mail in containers, loading 

empty casers and loading and unloading trucks, which contributed to his right shoulder 

condition. He reported performing these duties 8 to 10 hours a day. 

In an April 15, 2013 decision, OWCP denied appellant’s claim. It accepted that he 

performed receptive work with his right arm but found that the medical evidence was insufficient 

to establish that his condition was casually related to the accepted work activities. 

In an appeal request form dated June 24, 2013, appellant requested a telephonic oral 

hearing. He submitted an October 29, 2012 report from Dr. Kazi, previously of record. 

Appellant also submitted a June 18, 2013 shoulder and arm disability benefits questionnaire 

prepared by Dr. Mark B. Stern, a Board-certified orthopedic surgeon, who diagnosed a right 

labral tear and partial tear of the right rotator cuff. Dr. Stern reported that appellant apparently 

injured his right shoulder at work. 

In a decision dated July 26, 2013, OWCP denied appellant’s request for an oral hearing. 

It found that the request was not timely filed. Appellant was informed that his case had been 

considered in relation to the issues involved and that the request was further denied for the 

reason that the issues in his case could be addressed by requesting reconsideration from OWCP 

and submitting evidence not previously considered. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim. When an employee claims that he or she sustained an 

injury in the performance of duty, he or she must submit sufficient evidence to establish that he 

or she experienced a specific event, incident or exposure occurring at the time, place and in the 
4

manner alleged. Appellant must also establish that such event, incident or exposure caused an 

injury.3 

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed; (2) factual 

statement identifying employment factors alleged to have caused or contributed to the presence 

or occurrence of the disease or condition; and (3) medical evidence establishing that the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed or, stated differently, medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant. 

The medical evidence required to establish causal relationship is generally rationalized medical 

opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a 

physician’s rationalized opinion on the issue of whether there is a causal relationship between the 

claimant’s diagnosed condition and the implicated employment factors. The opinion of the 

physician must be based on a complete factual and medical background of the claimant, must be 

one of reasonable medical certainty and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the claimant.4

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant’s work duties included repetitive lifting, pushing and 

pulling of mail containers and carrying packages. The Board finds that he has not submitted 

sufficient medical evidence to establish that his right shoulder condition was caused or 

contributed to by his work activities. 

The record reflects that appellant first sustained a right shoulder injury while in the 

military when he fell. He was rated with a 10 percent service-connected disability. Dr. Petrie 

diagnosed right shoulder impingement and possible radial neuropathy. He returned appellant to 

work at modified duty. In his first report of occupational injury or illness, Dr. Petrie noted 

appellant’s history and that he recently had more pain with lifting. He did not adequately explain 

how appellant’s work duties caused or contributed to the findings from examination in 2012. 

Dr. Petrie did not provide a rationalized opinion addressing the causal relationship between 

appellant’s right shoulder condition and the factors of employment believed to have caused or 

contributed to such condition.5

 Therefore, his reports are insufficient to meet appellant’s burden 

of proof. 

 3 See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40 ECAB 1143 (1989). See Walter D. 

Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB 243, 247 (1967) 

(traumatic injury). 

4 Solomon Polen, 51 ECAB 341 (2000). 

5 See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the 

issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical 

rationale). 
5

The December 20, 2012 report from Dr. Wong noted appellant’s prior history of a right 

shoulder anterior dislocation at age 19 when he fell in boot camp and subsequently underwent 

surgery. She noted that, three years prior, he started working at the employing establishment and 

his duties required him to push and pull with his arm. Dr. Wong noted that a December 20, 2012 

x-ray of the right shoulder revealed no significant arthritis or acute bony abnormalities. She 

diagnosed right shoulder pain with remote history of dislocation; however, she did not 

specifically state how any of appellant’s work duties caused or aggravated his right shoulder 

condition. Dr. Wong did not provide adequate medical rationale explaining how pushing and 

pulling at work contributed to his condition or how his preexisting condition was contributed by 

his activities at work. Therefore, this report is insufficient to meet appellant’s burden of proof. 

The reports from Dr. Kazi noted appellant’s military injury history but do not relate a 

history of the claimed work injury.6

 She did not offer any opinion regarding whether work 

factors caused or contributed to the diagnosed medical condition.7 Consequently, Dr. Kazi’s 

reports are of diminished probative value and insufficient to establish appellant’s occupational 

claim. The remainder of the medical evidence of record is insufficient as it does not provide any 

opinion on the causal relationship between his job and his diagnosed right shoulder condition. 

On appeal, appellant disagreed with OWCP’s decision denying his claim and noted that 

he submitted sufficient evidence to establish his claim. As noted, the Board finds that the 

medical evidence does not establish that his right shoulder condition is causally related to his 

employment. The reports from appellant’s physician’s failed to provide sufficient medical 

rationale explaining how his right shoulder condition was caused or aggravated by his particular 

employment duties. The need for such rationale is particularly important in view of his 

preexisting right shoulder condition. 

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. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied 

with a decision of the Secretary ... is entitled, on request made within 30 days after the date of 

the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”8

 

Section 10.617 and 10.618 of the federal regulations implementing this section of FECA 

provides that a claimant shall be afforded a choice of an oral hearing or a review of the written 

record by a representative of the Secretary.9 A claimant is entitled to a hearing or review of the 

 6 Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little 

probative value). 

7 See J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion 

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

8

 5 U.S.C. § 8124(b)(1). 

9

 20 C.F.R. §§ 10.616, 10.617. 
6

written record as a matter of right only if the request is filed within the requisite 30 days as 

determined by postmark or other carrier’s date marking and before the claimant has requested 

reconsideration.10 Although there is no right to a review of the written record or an oral hearing 

if not requested within the 30-day time period, OWCP may within its discretionary powers grant 

or deny appellant’s request and must exercise its discretion.11 

ANALYSIS -- ISSUE 2 

Appellant requested a telephonic oral hearing in a June 24, 2013 appeal form. As the 

hearing request was made more than 30 days after issuance of the April 15, 2013 OWCP 

decision, appellant’s request for an oral hearing was untimely filed and he is not entitled to an 

oral hearing as a matter of right. 

OWCP also notified appellant that it had considered the matter in relation to the issue 

involved and indicated that additional argument and evidence could be submitted with a request 

for reconsideration. It has broad administrative discretion in choosing means to achieve its 

general objective of ensuring that an employee recovers from his or her injury to the fullest 

extent possible in the shortest amount of time. An abuse of discretion is generally shown 

through proof of manifest error, a clearly unreasonable exercise of judgment or actions taken 

which are contrary to both logic and probable deductions from established facts.12 There is no 

indication that OWCP abused its discretion in this case in finding that appellant could further 

pursue the matter through the reconsideration process. 

Consequently, OWCP properly denied appellant’s request for an oral hearing. 

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish that his 

claimed conditions were causally related to his employment.13 The Board further finds that 

OWCP properly denied appellant’s request for an oral hearing. 

 10 Id. at § 10.616(a). 

11 Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999). 

12 Samuel R. Johnson, 51 ECAB 612 (2000). 

13 With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider 

new evidence on appeal; see 20 C.F.R. § 501.2(c). 
7

ORDER 

IT IS HEREBY ORDERED THAT the July 26 and April 15, 2013 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: May 9, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board