United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

DEPARTMENT OF THE INTERIOR, FISH & 

WILDLIFE SERVICE, Valley Stream, NY, 

Employer 

__________________________________________ 

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Docket No. 15-282 

Issued: March 23, 2015 

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 19, 2014 appellant, through counsel, filed a timely appeal from a 

September 12, 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 an injury in the performance of duty on 

January 3, 2013. 

FACTUAL HISTORY 

The case was before the Board on a prior appeal.2

 As the Board noted in its prior 

decision, on January 15, 2013 appellant, then a 50-year-old investigator, filed a traumatic injury 

 1

 5 U.S.C. § 8101 et seq. 

2

 Docket No. 14-291 (issued May 19, 2014). 
2

claim (Form CA-1) alleging that he sustained injuries in a motor vehicle accident (MVA) on 

January 3, 2013. He described an injury to the left side of his head, neck, right lower back, right 

arm, and right shoulder. OWCP accepted that appellant was involved in a motor vehicle 

accident in the performance of duty on January 3, 2013. 

Regarding appellant’s burden to establish that he sustained an injury as a result of this 

incident, the Board found there was no rationalized medical opinion on causal relationship 

between a diagnosed condition and the employment incident. An attending physician, Dr. Ali 

Guy, a Board-certified physiatrist, had opined in a March 31, 2013 report that appellant had 

sustained a permanent injury as a result of the motor vehicle accident. The Board noted that 

Dr. Guy had provided several diagnoses, including C3-7 disc herniations, right shoulder rotator 

cuff tear and a tear of the superior and anterior labrum (SLAP), right shoulder adhesive 

capsulitis, and acute traumatic C5-7 cervical radiculopathy. Dr. Guy did not, however, clearly 

explain an opinion on the issue of causation. It was not clear which diagnoses constituted the 

“permanent injury” nor did Dr. Guy address a preexisting shoulder condition. 

On July 8, 2014 appellant, through his representative, requested reconsideration. He 

submitted a May 24, 2014 report from Dr. Kenneth McCulloch, an orthopedic surgeon, who 

provided a history of injury and indicated that appellant was first seen on March 18, 2013. 

Dr. McCulloch provided results on examination and stated that a March 8, 2013 MRI scan 

demonstrated a full thickness tear of the supraspinatus and infraspinatus tendons. According to 

him, appellant underwent right shoulder arthroscopic subacromial decompression/SLAP 

debridement, labral and rotator cuff debridement on September 12, 2013. Dr. McCulloch stated 

that appellant had a complete retracted rotator cuff tear, and was status postsurgery. He opined 

that based on his review of the evidence, radiographic and intraoperative findings, appellant had 

sustained a right shoulder injury as a result of the January 3, 2013 MVA. Dr. McCulloch noted 

that appellant had a prior surgery to the rotator cuff, but prior to the January 3, 2013 employment 

incident appellant had satisfactory function of the right shoulder. After the accident, appellant 

had limitations on range of motion, and loss of muscle strength. Dr. McCulloch stated the 

rotator cuff tear appellant sustained as a result of the MVA was so large it could not completely 

be repaired and appellant would continue to require physical therapy. 

By decision dated September 12, 2014, OWCP reviewed the case on its merits and denied 

modification. It stated that the record did not contain the March 8, 2013 MRI scan or the 

September 12, 2013 surgery report. 

LEGAL PRECEDENT 

FECA provides for the payment of compensation for “the disability or death of an 

employee resulting from personal injury sustained while in the performance of duty.”3

 The 

phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the 

commonly found requisite in workers’ compensation law of “arising out of and in the course of 

employment.”4

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

 

 3 5 U.S.C. § 8102(a). 

 4 Valerie C. Boward, 50 ECAB 126 (1998). 
3

he or she sustained an injury while in the performance of duty.5

 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. The second component is whether the employment incident 

caused a personal injury, and generally this can be established only by medical evidence.6 

Rationalized medical opinion evidence is medical evidence that is based on a complete 

factual and medical background of reasonable medical certainty and supported by medical 

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

specific employment factors identified by the claimant. The weight of medical evidence is 

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

manifested, and the medical rationale expressed in support of the physician’s opinion.7

ANALYSIS 

In the prior decision, the Board reviewed the medical evidence of record as of 

October 21, 2013 and found that the record did not contain a rationalized medical opinion on the 

issue presented. Dr. Guy, for example, did not provide a sufficient medical history or clearly 

explain how a diagnosed condition was causally related to the January 3, 2013 MVA. 

On reconsideration, appellant submitted a new medical report from Dr. McCulloch dated 

May 24, 2014. The Board has reviewed this report and finds it is sufficient to require further 

development. Dr. McCulloch indicated that he initially examined appellant on March 18, 2013. 

He has opined that appellant sustained a rotator cuff tear from the January 3, 2013 MVA, based 

on his review of the evidence and the diagnostic and operative findings. Dr. McCulloch also 

discussed appellant’s medical history with respect to the right shoulder, noting a prior rotator 

cuff surgery. 

The Board finds that the Dr. McCulloch has provided an uncontroverted medical opinion, 

based on a complete background, supporting causal relationship between a right shoulder rotator 

cuff tear and the January 3, 2013 motor vehicle accident. The evidence is sufficient to require 

OWCP to further develop the medical evidence on the issue of causal relationship.8

 While 

appellant has the burden of proof to establish the claim, OWCP shares responsibility in the 

development of the evidence to see that justice is done.9

 On remand it should further develop the 

medical evidence as necessary and secure any necessary diagnostic or operative reports. After 

such further development as OWCP deems appropriate, OWCP should issue a proper decision 

with respect to appellant’s claim. 

 5 Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115. 

6 See John J. Carlone, 41 ECAB 354, 357 (1989). 

 7 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 

8 See John J. Carlone, supra note 6. 

9 A.V., Docket No. 14-748 (issued October 3, 2014); William J. Cantrell, 34 ECAB 1223 (1983). 
4

CONCLUSION 

The Board finds the case not in posture for decision. 

ORDER 

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

Compensation Programs dated September 12, 2014 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: March 23, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board