United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.E., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Bradford, PA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-537 

Issued: May 14, 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 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On January 9, 2014 appellant filed a timely appeal from a September 6, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP) and a December 23, 2013 

nonmerit decision. 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 his burden of proof to establish a left shoulder 

injury in the performance of duty on November 21, 2012; and (2) whether OWCP properly 

denied his request for further merit review under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On November 21, 2012 appellant, then a 56-year-old general maintenance foreman, filed 

a traumatic injury claim (Form CA-1) alleging that he sustained a left shoulder sprain that day 

when he was pulling out a boiler. The handle of his jack came off, causing him to fall back on 

 1

 5 U.S.C. § 8101 et seq.
2

his left shoulder.2 Appellant notified his supervisor that day of the injury. He first received 

medical care on December 6, 2012. 

By letter dated January 3, 2013, OWCP informed appellant that the evidence of record 

was insufficient to support his claim. Appellant was advised of the medical and factual evidence 

needed and was asked to respond to the questions provided in the letter within 30 days. 

In a December 6, 2012 medical report, Dr. Damian Horner, Board-certified in internal 

medicine, reported that appellant complained of left shoulder pain. Appellant attempted to 

remove a boiler but the jack gave out, causing him to fall back and strike his left shoulder. The 

incident occurred approximately two weeks prior. Dr. Horner diagnosed pain of the left shoulder 

joint region and recommended a magnetic resonance imaging (MRI) scan. 

In a December 12, 2012 diagnostic report, Dr. Walter H. Kuhnen, a Board-certified 

diagnostic radiologist, reported that an MRI scan of the left shoulder revealed supraspinatus 

tendinitis. In a December 14, 2012 report, Dr. Horner reported that the MRI scan of the left 

shoulder revealed supraspinatus tendinitis and diagnosed enthesopathy, unspecified site. 

Rehabilitation treatment notes dated December 29, 2012 to May 20, 2013 were also 

submitted documenting appellant’s treatment for left shoulder pain. 

By decision dated September 6, 2013, OWCP denied appellant’s claim. It accepted that 

the November 21, 2012 employment incident occurred as alleged; but found that the medical 

evidence did not establish that his left shoulder condition was caused by the fall at work. 

On September 24, 2013 appellant requested reconsideration of OWCP’s decision. He 

submitted an October 7, 2013 attending physician’s report (Form CA-20) from Dr. Horner who 

provided a diagnosis of supraspinatus tendinitis of the left shoulder. Dr. Horner noted the date of 

injury as April 25, 2012 and also as December 6, 2012. He checked the box marked “yes” when 

asked if he believed the condition was caused by the employment incident, noting that on 

December 6, 2012 the jack gave out and appellant fell backwards on his shoulder. 

By decision dated December 23, 2013, OWCP denied appellant’s request for 

reconsideration finding that he did not raise a substantive legal question or included new and 

relevant evidence. It noted that Dr. Horner’s October 7, 2013 report was irrelevant and 

immaterial as he failed to mention the November 21, 2012 incident and provided two other dates 

of injury. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA has the burden of establishing the essential 

elements of his or her claim, including the fact that the individual is an “employee of the United 

States” within the meaning of FECA; that the claim was filed within the applicable time 

limitation; that an injury was sustained while in the performance of duty as alleged and that any 

disability or specific condition for which compensation is claimed are causally related to the 

 2

 The Board notes that appellant has filed seven other traumatic injury claims before OWCP, but the record before 

the Board does not contain any information regarding appellant’s other claims. 
3

employment injury.3 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or occupational disease.4

In order to determine whether an employee actually sustained an injury in the 

performance of duty, OWCP begins with an analysis of whether fact of injury has been 

established. Generally, fact of injury consists of two components which must be considered in 

conjunction with one another. The first component to be established is that the employee 

actually experienced the employment incident which is alleged to have occurred.5 The second 

component is whether the employment incident caused a personal injury and generally can be 

established only by medical evidence. 

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 manner alleged. He or she must also 

establish that such event, incident or exposure caused an injury.6

 Once an employee establishes 

that he or she sustained an injury in the performance of duty, he or she has the burden of proof to 

establish that any subsequent medical condition or disability for work, for which he or she claims 

compensation, is causally related to the accepted injury.7

To establish that an injury occurred as alleged, the injury need not be confirmed by 

eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and 

circumstances and his or her subsequent course of action. In determining whether a case has 

been established, such circumstances as late notification of injury, lack of confirmation of injury, 

and failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on 

the employee’s statements. The employee has not met his or her burden when there are such 

inconsistencies in the evidence as to cast serious doubt on the validity of the claim.8

To establish a causal relationship between the condition, as well as any attendant 

disability claimed and the employment event or incident, the employee must submit rationalized 

medical opinion evidence based on a complete factual and medical background, supporting such 

a causal relationship.9

 The opinion of the physician must be based on 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. 

This medical opinion must include an accurate history of the employee’s employment injury and 

 3 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989). 

4 Michael E. Smith, 50 ECAB 313 (1999). 

5 Elaine Pendleton, supra note 3. 

6 See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. 

§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41 

ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim. 

7 Supra note 3. 

8 Betty J. Smith, 54 ECAB 174 (2002). 

9 See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983). 
4

must explain how the condition is related to the injury. The weight of medical evidence is 

determined by its reliability, its probative value, its convincing quality, the care of analysis 

manifested and the medical rationale expressed in support of the physician’s opinion.10

ANALYSIS -- ISSUE 1 

The Board finds that appellant failed to establish that he sustained a left shoulder injury 

in the performance of duty on November 21, 2012.11 

In a December 12, 2012 diagnostic report, Dr. Kuhnen reported that an MRI scan of the 

left shoulder revealed supraspinatus tendinitis. Dr. Horner’s reports addressed the diagnosis of 

left shoulder supraspinatus tendinitis, but he failed to provide any opinion regarding the cause of 

appellant’s condition. He recounted the incident as described by appellant, but did not address 

how appellant’s left shoulder condition was work related. Dr. Horner did not offer a rationalized 

opinion on the issue of causal relationship.12 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.13 The opinion of a physician supporting causal relationship must rest on a 

complete factual and medical background supported by affirmative evidence, address the specific 

factual and medical evidence of record and provide medical rationale explaining the relationship 

between the diagnosed condition and the established incident or factor of employment.14 

Dr. Horner’s reports do not meet that standard and are insufficient to meet appellant’s burden of 

proof. 

The remaining medical evidence of record is also insufficient to establish causal 

relationship between appellant’s left shoulder supraspinatus tendinitis and the November 21, 

2012 employment incident. Dr. Kuhnen’s report interpreted diagnostic imaging studies but did 

not address the cause of appellant’s left shoulder condition. The rehabilitation notes merely 

noted appellant’s complaints and treatment but failed to provide any diagnosis or opinion on 

causal relationship. These reports lack probative value as the author(s) are not identified as 

physicians.15 

While appellant has established that the November 21, 2012 incident occurred as alleged, 

the record is without rationalized medical opinion addressing the causal relationship between the 

 10 James Mack, 43 ECAB 321 (1991). 

11 See Robert Broome, 55 ECAB 339 (2004).

12 Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are 

entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

13 C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

14 See Lee R. Haywood, 48 ECAB 145 (1996). 

15 Nurses, physician’s assistants, physical and occupational therapists are not “physicians” as defined by FECA, 

their opinions regarding diagnosis and causal relationship are of no probative medical value. 5 U.S.C. § 8101(2) of 

FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 

See also Roy L. Humphrey, 57 ECAB 238 (2005); Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 

384, 385 (1960). 
5

accepted November 21, 2012 employment incident and appellant’s left shoulder condition. 

Thus, appellant has failed to meet his burden of proof. 

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. 

§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607. 

LEGAL PRECEDENT -- ISSUE 2 

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

OWCP regulations provide that 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.16 Section 10.608(b) of OWCP 

regulations provide that when an application for reconsideration does not meet at least one of the 

three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.17

ANALYSIS -- ISSUE 2 

The Board finds that the refusal of OWCP to reopen appellant’s case for further 

consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an 

abuse of discretion. 

The issue is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(2), 

requiring OWCP to reopen the case for review of the merits of the claim. In his September 24, 

2013 application for reconsideration, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. He did not advance a new and relevant legal argument. The 

underlying issue in this case was whether appellant’s injury was causally related to the 

November 21, 2012 employment incident. That is a medical issue which must be addressed by 

relevant medical evidence.18 

Appellant submitted a Form CA-20 dated October 7, 2013 from Dr. Horner. The Board 

notes that this report is not relevant to establishing a causal relationship between appellant’s left 

shoulder supraspinatus tendinitis and the November 21, 2012 employment incident. 

Dr. Horner’s report was essentially identical and repetitive of his December 6 and 14, 2012 

reports which were previously considered by OWCP. Moreover, Dr. Horner listed two dates of 

injury, April 25 and December 6, 2012, that do not conform to the November 21, 2012 incident 

alleged by appellant. The Form CA-20 is irrelevant and immaterial to the issue at hand, whether 

appellant sustained a left shoulder injury as a result of the November 21, 2012 employment 

 16 D.K., 59 ECAB 141 (2007). 

17 K.H., 59 ECAB 495 (2008). 

18 See Bobbie F. Cowart, 55 ECAB 746 (2004). 
6

incident.19 Thus, Dr. Horner’s October 7, 2013 report is insufficient to reopen the case for 

review of the merits of appellant’s claim.20 

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(2). He did not show that OWCP erroneously applied or interpreted a specific point 

of law, advance a relevant legal argument not previously considered by OWCP, or submit 

relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608, 

OWCP properly denied merit review. 

CONCLUSION 

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

shoulder supraspinatus tendinitis is causally related to the accepted November 21, 2012 

employment incident. OWCP properly denied appellant’s request for reconsideration without a 

merit review. 

ORDER 

IT IS HEREBY ORDERED THAT the September 6, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed, as modified. The December 23, 2013 decision is 

affirmed. 

Issued: May 14, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 19 See D.B., Docket No. 12-376 (issued June 20, 2012). 

20 Evidence that repeats of duplicates evidence already in the case record has no evidentiary value and does not 

constitute a basis for reopening a case. Eugene F. Butler, 36 ECAB 393 (1984).