United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.D., Appellant 

and 

U.S. POSTAL SERVICE, MORGAN 

PROCESSING & DISTRIBUTION CENTER, 

New York, NY, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-913 

Issued: January 12, 2015 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 12, 2014 appellant, through his attorney, filed a timely appeal from a 

February 5, 2014 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. 

ISSUE 

The issue is whether appellant has established a traumatic injury in the performance of 

duty, as alleged. 

FACTUAL HISTORY 

This is the second appeal before the Board in this case. By order issued January 24, 

2014,2 the Board set aside OWCP’s November 15, 2012 decision denying a traumatic injury 

claim and remanded the claim to OWCP for doubling of File No. xxxxxx537 with File No. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Docket No. 13-574 (issued January 24, 2014). 
2

xxxxxx864, as both claims concerned the same parts of the body and contained similar medical 

evidence. The Board also directed that following any other necessary development, that OWCP 

issue a de novo decision in the case. The law and facts of the case as set forth in the Board’s 

order are incorporated by reference. 

Under File No. xxxxxx864, OWCP accepted that on July 17, 2009 appellant, then a 50-

year-old mail handler, sustained a neck sprain and bilateral shoulder sprain when he lifted a 

bucket of mail. He stopped work at the time of injury. Dr. Marc M. Levinson, an attending 

Board-certified physiatrist, ordered magnetic resonance imaging (MRI) scans of the cervical 

spine and both shoulders, which were performed on June 17, 2010. These studies showed 

cervical spondylosis, foraminal compromise and osteophyte formation from C3-7, a central disc 

herniation with cord compression at C4-5 and acromioclavicular (AC) joint degeneration with 

subacromial subdeltoid bursitis and a glenoid labrum tear in both shoulders. Following 

vocational rehabilitation, appellant returned to full-time restricted duty on August 5, 2011. 

On September 6, 2011 appellant filed a traumatic injury claim (Form CA-1) alleging that 

while reaching to place mail in a machine sorter earlier that day, he experienced severe pain and 

spasm in his neck and shoulders with paresthesias into his fingers and toes. He was treated at an 

emergency room and released.3

 Appellant did not return to work. OWCP assigned the claim 

File No. xxxxxx537. 

Dr. Levinson related appellant’s history of the onset of severe cervical spine and bilateral 

shoulder spasm the day before. He found severely restricted motion in the cervical spine and in 

both shoulders and positive Neer, Hawkins’ and apprehension signs in both shoulders. 

Dr. Levinson diagnosed an exacerbation of cervical spinal pain syndrome and exacerbation of 

internal derangement of both shoulders. 

On September 30, 2011 Dr. Levinson noted that appellant had not fully recovered from 

the July 17, 2009 cervical spine and bilateral shoulder sprain, although he returned to full-time 

work in August 2011. On examination, he noted continued restriction of neck and shoulder 

motion, with bilaterally positive impingement and apprehension signs. Dr. Levinson diagnosed 

“[c]ervical spine pain syndrome exacerbation from repetitive use” and “[s]prain/strain bilateral 

shoulders -- exacerbation with internal derangement” due to repetitive use. [He] opined that 

there was “a direct causal relationship between the accident described and [appellant’s] current 

injuries. [Appellant’s] symptoms and clinical findings [were] consistent with musculoskeletal 

injuries to the described areas.” Dr. Levinson found appellant totally disabled for work from 

September 7 to October 28, 2011, for bilateral shoulder sprain/strain and cervical pain syndrome. 

In a September 15, 2011 letter, OWCP advised appellant of the type of evidence needed 

to establish his claim, including factual evidence supporting timely filing and performance of 

duty and medical evidence explaining how and why the September 6, 2011 incident would cause 

the claimed neck injury. Appellant was afforded 30 days to submit such evidence. 

 3

 The emergency room reports do not contain an identifiable signature from a physician. The employing 

establishment controverted the claim, alleging that appellant’s “accident was premeditated” to force the employing 

establishment to comply with his attending physician’s restriction limiting him to working four hours a day. 
3

By decision dated October 20, 2011, OWCP denied appellant’s claim because it found 

that causal relationship was not established. While the September 6, 2011 incident occurred at 

the time, place, and in the manner alleged, OWCP found that appellant’s physicians did not 

explain the medical reasons why the incident would cause an injury. 

In an August 10, 2012 letter, counsel requested reconsideration, contending that a new 

report from Dr. Levinson, in conjunction with his prior opinions, contained sufficient medical 

rationale supporting causal relationship to meet appellant’s burden of proof.4

 In a June 19, 2012 

report, Dr. Levinson related appellant’s account of the onset of severe neck and bilateral shoulder 

pain on September 6, 2011 “while reaching for mail” at work. March 14, 2012 MRI scans of 

both shoulders showed supraspinatus, infraspinatus and subscapularis tendinosis on the right and 

a superior labral tear, AC joint arthrosis, and supraspinatus tendinosis on the left. Dr. Levinson 

noted that these findings demonstrated a worsening of bilateral shoulder conditions compared to 

June 17, 2010 MRI scans. 

On examination, Dr. Levinson found restricted motion of the cervical spine and both 

shoulders, with bilaterally positive apprehension tests, Neer, and Hawkins signs. He diagnosed 

cervical spinal pain syndrome and internal derangement of both shoulders. 

Regarding causal relationship, Dr. Levinson opined that the “above mentioned injuries 

[were] causally related to [appellant’s] work injury on September 6, 2011. It is obvious that the 

injuries happened at this time because [appellant] gives no other history or explanation for the 

injuries and where [he was] in such discomfort that he had to go to the emergency room.” He 

explained that the subscapularis tendinosis in the left shoulder and supraspinatus and 

infraspinatus tendinosis in the right shoulder were not present on June 17, 2010 studies. Rather, 

they were new injuries which “within medical probability ... did occur on September 6, 2011.” 

Dr. Levinson found appellant totally disabled for work and recommended a surgery for both 

shoulders. 

By decision dated November 15, 2012, OWCP denied modification of its prior decision 

on the grounds that Dr. Levinson’s opinion was insufficient to meet appellant’s burden of proof. 

It found that Dr. Levinson did not explain how reaching for mail caused the alleged cervical 

spine or shoulder injuries. 

Counsel filed his first appeal with the Board and the Board’s January 24, 2013 decision 

set aside OWCP’s November 15, 2012 decision and remanded the case for additional 

development. On remand of the case, OWCP doubled File No. xxxxxx864 under File No. 

xxxxxx537 effective January 31, 2014. Appellant submitted additional medical evidence. 

In a September 9, 2011 report, Dr. Darren J. Friedman, an attending Board-certified 

orthopedic surgeon, noted appellant’s history of a July 2009 occupational left shoulder injury 

with demonstrated rotator cuff tears. He recommended arthroscopic debridement and 

subacromial decompression. 

In monthly reports from October 28, 2011 to July 9, 2012, Dr. Levinson diagnosed an 

exacerbation of cervical spinal pain syndrome and exacerbation of internal derangement of both 

 4

 Counsel also submitted evidence previously of record. 
4

shoulders. On examination, he observed continued restriction of cervical and bilateral shoulder 

motion, with positive impingement and apprehension signs in both shoulders. Dr. Levinson 

recommended bilateral shoulder surgery.5 He found appellant totally disabled for work through 

March 2, 2012. 

By decision dated February 5, 2014, under File No. xxxxxx537, OWCP affirmed its 

October 11, 2011 decision, finding that the medical evidence did not contain a sufficient 

explanation supporting causal relationship. It found that Dr. Levinson did not explain how 

“reaching for mail on September 6, 2011 directly caused or aggravated” the claimed cervical 

spine and bilateral shoulder conditions. 

LEGAL PRECEDENT 

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

employment injury.6

 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7

In order to determine whether an employee sustained a traumatic 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 that must be considered 

conjunctively. First, the employee must submit sufficient evidence to establish that he or she 

actually experienced the alleged employment incident.8 Second, the employee must submit 

sufficient evidence, generally only in the form of medical evidence, to establish that the 

employment incident caused a personal injury.9

 

ANALYSIS 

OWCP accepted that appellant sustained cervical spine and bilateral shoulder sprains in 

the performance of duty on July 17, 2009. Appellant remained off work through August 5, 2011, 

when he returned to a full-time restricted-duty position. He claimed that, while reaching for mail 

on September 6, 2011, he experienced severe cervical spine and bilateral shoulder pain with 

paresthesias into all extremities. Appellant did not return to work. OWCP accepted that the 

September 6, 2011 incident occurred at the time, place, and in the manner alleged, but denied the 

claim by October 20, 2011 and February 5, 2014 decisions, finding that his physicians did not 

 5

 Appellant also submitted an April 10, 2012 report from, Dr. Andrew D. Brown, an attending Board-certified 

physiatrist, who diagnosed “[t]raumatic lumbosacral pain syndrome with [herniated nucleus pulposus]” related to a 

March 15, 2008 incident. 

6 Joe D. Cameron, 41 ECAB 153 (1989). 

7 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999). 

8 Gary J. Watling, 52 ECAB 278 (2001). 

9 Deborah L. Beatty, 54 ECAB 340 (2003). 
5

provide sufficient reasoning supporting a causal relationship between the accepted incident and 

the claimed neck and shoulder injuries. 

In support of his claim, appellant submitted reports from Dr. Levinson, an attending 

Board-certified physiatrist, who treated appellant beginning in 2010. Dr. Levinson noted in his 

September 7, 2011 and June 19, 2012 reports that appellant experienced the onset of severe neck 

and shoulder symptoms while reaching for mail on September 6, 2011. He opined that 

appellant’s symptoms and objective findings on September 6, 2011 were consistent with acute 

cervical pain syndrome and bilateral shoulder derangement. Dr. Levinson noted on June 19, 

2012 that the left subscapularis tendinosis, right supraspinatus and infraspinatus tendinosis, 

which disabled appellant as of September 6, 2011, were not present on June 17, 2010 MRI scans 

but visible on March 14, 2012 studies. He found that these were new injuries which occurred on 

September 6, 2011. 

The Board finds that Dr. Levinson’s opinion is not sufficiently rationalized to meet 

appellant’s burden of proof in establishing his claim. Dr. Levinson posited a temporal 

relationship between the September 6, 2011 onset of symptoms and subsequently diagnosed 

bilateral shoulder tendinosis. However, the Board has held that a temporal relationship alone is 

insufficient to establish causal relationship.10 Dr. Levinson did not explain the medical reasons 

why reaching for mail on September 6, 2011 would cause or aggravate any of the diagnosed 

medical conditions. He did not specify why the physical stresses of reaching for mail would 

alter appellant’s cervical spine and shoulders, resulting in subscapularis tendinosis, infraspinatus 

tendinosis, or an aggravation of a cervical sprain. Without such rationale, Dr. Levinson’s 

opinion is of diminished probative value.11

Appellant also provided a September 9, 2011 report from Dr. Friedman, an attending 

Board-certified orthopedic surgeon, who noted a July 2009 occupational left shoulder injury, and 

recommended arthroscopy. However, Dr. Friedman did not address causal relationship. His 

opinion is therefore insufficient to meet appellant’s burden of proof. 

On appeal, counsel asserts that the medical evidence of record, in particular 

Dr. Levinson’s June 19, 2012 report, was sufficient to establish causal relationship. He contends 

that, under the Board’s precedent in John P. Broll,

12 it was “not necessary that the evidence be so 

conclusive as to establish causal connection beyond all reasonable doubt. Where the relative 

circumstances strongly suggest a causal relationship, the claimant has met his burden of proof.” 

In the Broll case appellant suffered a visible condition to his face, the left orbital area, as a result 

of being struck by a falling object. Appellant’s eye glasses were broken by the impact. The 

supervisor and witness agreed that the incident occurred as described by appellant. Appellant 

sought emergency room treatment the same day and was diagnosed with a contusion by a 

physician. The facts and medical issues in the Broll case are distinguishable because they are 

less complex than those presented in the current appeal. In Broll appellant had no preexisting 

condition affecting the same part of the body. The Board believes that the cervical and bilateral 

 10 Louis R. Blair, Jr., 54 ECAB 348. (2003). 

11 Deborah L. Beatty, supra note 9. 

12 42 ECAB 410 (1991). 
6

shoulder conditions in this appeal are more complex and require more extensive and detailed 

explanation than is provided in Dr. Levinson’s reports. 

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 established that he sustained a traumatic injury in 

the performance of duty as alleged. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated February 5, 2014 is affirmed. 

Issued: January 12, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board