United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Little Rock, AR, Employer 

__________________________________________ 

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Docket No. 16-0147 

Issued: June 17, 2016 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 2, 2015 appellant filed a timely appeal from an October 6, 2015 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 met his burden of proof to establish a consequential 

bilateral shoulder condition causally related to his accepted conditions. 

FACTUAL HISTORY 

This case has previously been before the Board on appeal. The facts and the 

circumstances as outlined in the prior Board decisions are incorporated herein by reference. The 

relevant facts are set forth below. 

 1

 5 U.S.C. § 8101 et seq.
2

On October 27, 2008 OWCP accepted that appellant, then a 51-year-old letter carrier, 

developed carpal tunnel syndrome, bilateral lateral epicondylitis, and permanent aggravation of 

right elbow osteoarthritis as a result of the repetitive movements required by his employment 

duties. He stopped work on September 29, 2008 and returned to full-time light duty on 

March 16, 2009. Appellant continued to receive medical treatment for his accepted conditions 

and receive medical benefits.2

In a letter dated April 16, 2013, appellant requested that OWCP expand his claim to 

accept bilateral shoulder conditions. He stated that over the past several months he experienced 

increasing pain and soreness in his shoulders, especially his right shoulder, and needed steroid 

shots for relief. Appellant explained that because of his elbow and hand conditions, he used his 

shoulders more to do his work, which caused injury. He believed that his work at the employing 

establishment exacerbated and worsened the overall condition of his body. Appellant noted that 

he did not perform other activities that heightened his soreness or pain, and he was not involved 

in any sport or athletic activities. 

Appellant received medical treatment from Dr. Robert E. Holder, a Board-certified 

family practitioner, for complaints of right shoulder pain. In an April 24, 2013 report, 

Dr. Holder related that appellant experienced pain in his right shoulder when he raised his arms 

to shoulder height. Examination of appellant’s right shoulder revealed moderate tenderness in 

the greater tuberosity and mild-to-moderate tenderness along the long head of the biceps. 

Dr. Holder observed that circulation was intact with normal pulses and no edema, range of 

motion was full without pain. He further reported no swelling or edema and normal pulses. 

Acromioclavicular (AC) joint compression test and AC joint distraction tests were negative. 

Cross shoulder adduction, Hawkin’s test, Neer’s test, and impingement sign were positive. Upon 

examination of the left shoulder, Dr. Holder observed normal inspection, palpation, range of 

motion, muscle strength and tone, and stability. He diagnosed shoulder pain, rotator cuff 

syndrome, and impingement syndrome. Dr. Holder reported that based on x-ray examination 

appellant had AC joint osteoarthritis and impingement. He recommended a magnetic resonance 

imaging (MRI) scan and cortisone injection. 

On May 14, 2013 appellant underwent a right shoulder MRI scan with Dr. Chintan Desai, 

a Board-certified diagnostic radiologist. He observed mild T2 hyperintense signals within the 

substance of supraspinatus tendon, consistent with tendinosis and moderate fibro-osseous 

capsular hypertrophy with marrow edema at the contiguous articular margins. Dr. Desai 

diagnosed supraspinatus tendinosis, AC joint arthrosis, and superior labrum anterior posture 

type 1 superior labral tear. 

OWCP referred appellant’s claim, along with the statement of accepted facts and medical 

record, to an OWCP medical adviser to determine whether appellant’s claim should be expanded 

to include a bilateral shoulder condition. In a July 19, 2013 report, Dr. Daniel D. Zimmerman, a 

Board-certified internist and the medical adviser, reviewed appellant’s medical records and noted 

that appellant first mentioned problems with his right shoulder in a February 24, 2009 physical 

 2

 On May 29, 2009 appellant filed a claim for a schedule award (Form CA-7). OWCP granted a schedule award 

of four percent permanent impairment of the left arm and six percent permanent impairment of the right arm. It 

granted an additional schedule award on August 15, 2011 for seven percent impairment of the right arm. 
3

therapy record. He pointed out that medical records from March 3, 2010 to August 8, 2012 from 

Dr. Wesley Cox, a Board-certified orthopedic surgeon, did not mention shoulder pain. 

Dr. Zimmerman noted that there was no medical opinion of record as to whether appellant’s 

shoulder pain was work related. He reported that there was no medical rationale from a 

physician to indicate how a bilateral shoulder condition could be consequential to appellant’s 

accepted conditions. Dr. Zimmerman concluded that OWCP should not accept a bilateral 

shoulder condition related to appellant’s employment injury. 

In the July 31, 2013 report, Dr. Holder related appellant’s continued complaints of right 

shoulder pain. He reported that appellant’s right shoulder had improved, but impingement was 

still positive bilaterally. Dr. Holder noted that appellant’s right elbow lateral epicondylitis tested 

positive today, but no significant changes justified additional intervention. He recommended 

that appellant continue to work with modifications. 

In a decision dated August 29, 2013, OWCP denied appellant’s claim for bilateral 

shoulder conditions finding insufficient medical evidence to establish causal relationship to his 

employment injury. 

On September 30, 2013 OWCP received appellant’s request for reconsideration. 

Appellant requested that it expand his claim to include bilateral shoulder tendinitis. He noted 

that he asked Dr. Cox to answer OWCP’s questions regarding causal relationship and he 

believed that Dr. Cox’s response was clear that he sustained a work-related injury. 

In a September 20, 2013 report, Dr. Cox noted that he had treated appellant for several 

years for bilateral elbow tendinitis and bilateral shoulder impingement and tendinitis. He opined 

that due to the repetitive nature of appellant’s work and the significant elbow tendinitis for which 

he treated appellant there was clear evidence of “overuse and adjusted use which has led to his 

bilateral shoulder tendinitis.” 

By decision dated October 17, 2013, OWCP denied modification of the August 29, 2013 

denial decision. Appellant filed an appeal to the Board. 

In a decision dated April 8, 2014, the Board affirmed the denial of appellant’s bilateral 

shoulder claim finding insufficient evidence to establish that he sustained a consequential 

bilateral shoulder condition causally related to factors of his employment.3

 

On August 18, 2014 OWCP received appellant’s request for reconsideration. Appellant 

stated that he brought the April 8, 2014 decision for Dr. Cox to review and was enclosing 

Dr. Cox’s response. 

In an August 8, 2014 medical report, Dr. Cox noted that he had treated appellant for 

many years for work-related injuries of his bilateral extremities. He reported that appellant’s 

bilateral elbow injuries had been approved for a workers’ compensation claim. Dr. Cox 

explained that it was impossible for someone with appellant’s elbow pain and dysfunction to 

carry out the regular duties of his occupation at the employing establishment without making 

 3

 Docket No. 14-0198 (issued April 8, 2014). 
4

necessary adjustments in shoulder positioning and function. He related that he reviewed 

appellant’s job description regarding repetitive activities of lifting, pulling, pushing, and the 

demands of his upper extremity. Dr. Cox reported that, with the frequency and duration of 

appellant’s adjustments, he would correlate appellant’s shoulder pain directly to the adjustments 

needed for appellant to perform his duties with his elbow dysfunction. He opined that 

appellant’s shoulder issues were directly related to appellant’s workers’ compensation injuries. 

By decision dated February 2, 2015, OWCP denied modification of the April 8, 2014 

denial decision. Appellant filed another appeal to the Board. 

On July 9, 2015 the Board set aside and remanded the February 2, 2015 decision for 

further development. The Board determined that Dr. Zimmerman had not reviewed all the 

medical evidence of record, specifically Dr. Cox’s August 8, 2014 medical report. The Board 

remanded the case for referral to an OWCP medical adviser for further review.4

 

Following the Board’s decision, OWCP referred appellant’s case, along with Dr. Cox’s 

August 8, 2014 report, back to Dr. Zimmerman to determine whether the medical evidence 

established that appellant sustained a consequential bilateral shoulder condition as a result of his 

accepted employment injury. 

In an August 31, 2015 report, Dr. Zimmerman opined that, based on all of the medical 

records in the file, appellant did not sustain consequential bilateral shoulder conditions. He 

reviewed Dr. Cox’s August 8, 2014 report and noted that Dr. Cox believed that appellant’s 

shoulder issues were related to his repetitive work duties of lifting, pulling, and pushing and his 

accepted bilateral upper extremity conditions. Dr. Zimmerman pointed out that Dr. Cox did not 

explain the activities appellant performed at work, and did not provide specific information about 

the amount, frequency, and weight of lifting, pulling, and pushing required by his job. He 

explained that a generic description of “workers’ compensation injuries” could not be used to 

support any work-related bilateral shoulder condition. Dr. Zimmerman further noted that 

Dr. Cox’s reference of shoulder “issues” was not a valid diagnosis. He concluded that there was 

nothing in appellant’s file to establish that he sustained a bilateral shoulder condition as a result 

of his accepted conditions. 

By decision dated October 6, 2015, OWCP denied appellant’s claim for a consequential 

bilateral shoulder condition based on the opinion of Dr. Zimmerman. 

LEGAL PRECEDENT 

The Board has held that, if a member weakened by an employment injury contributes to a 

later injury, the subsequent injury will be compensable as a consequential injury, if the further 

medical complication flows from the compensable injury, so long as it is clear that the real 

operative factor is the progression of the compensable injury.5 

 4

 Docket No. 15-0783 (issued July 9, 2015). 

5 S.M., 58 ECAB 166 (2006); Raymond A. Nester, 50 ECAB 173, 175 (1998). 
5

A claimant bears the burden of proof to establish a claim for a consequential injury.6

 As 

part of this burden, he or she must present rationalized medical opinion evidence showing causal 

relationship.7

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

background of the employee, 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 or employment injury.8

 

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility to see that justice is done.9

ANALYSIS 

The Board finds that the case is not in posture for decision. 

Appellant alleges that he sustained consequential bilateral shoulder conditions as a result 

of his accepted upper extremity conditions. In support of his claim, appellant submitted various 

reports from Dr. Cox dated September 20, 2013 and August 8, 2014. Dr. Cox opined that due to 

the repetitive nature of appellant’s work and the significant elbow tendinitis there was clear 

evidence of “overuse and adjusted use” which contributed to his bilateral shoulder tendinitis. He 

further explained that, upon reviewing appellant’s employment duties, which involved repetitive 

actions of lifting, pushing, and pulling with the upper extremities, it was impossible for someone 

with appellant’s elbow dysfunction to carry out these duties without making necessary 

adjustments in shoulder positioning and function. Dr. Cox concluded, therefore, that appellant’s 

shoulder issues were directly related to his accepted elbow conditions. 

In a July 19, 2013 report, Dr. Zimmerman, an OWCP medical adviser, disagreed with 

Dr. Cox’s opinion. He indicated that there was nothing in the medical record to support that 

appellant sustained a consequential bilateral shoulder condition related to his accepted elbow 

conditions. In another August 3, 2015 report, Dr. Zimmerman further explained that Dr. Cox’s 

“generic description of workers’ compensation injuries” was insufficient to support a workrelated bilateral shoulder condition. He concluded that there was nothing in appellant’s file to 

establish that he sustained a bilateral shoulder condition as a result of his accepted conditions. 

The Board finds that, although Drs. Cox and Zimmerman provided opinions regarding 

causal relationship, neither of the physicians supported their opinions with probative medical 

rationale. 

 6 J.A., Docket No. 12-603 (issued October 10, 2012). 

7 L.B., Docket No. 16-0092 (issued March 24, 2016). 

8

 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 

9 Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell, 

34 ECAB 1233, 1237 (1983). 
6

It is well established that proceedings under FECA are not adversarial in nature, and 

while the employee has the burden to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence in order to see that justice is done.10 Once

OWCP undertakes development of the record, it must do a complete job in procuring medical 

evidence that will resolve the relevant issues in the case.11

The Board finds that, although the opinions of Dr. Cox and Dr. Zimmerman are of 

insufficient probative value to determine whether or not appellant sustained a consequential 

bilateral shoulder condition as a result of his employment injury, they are of sufficient value to 

warrant further development of the evidence.12 Accordingly, the case will be remanded to 

OWCP for further development of the medical evidence. On remand, OWCP should further 

develop the medical evidence by preparing a statement of accepted facts and referring appellant 

for a second opinion examination in accordance with its procedures.13 After such further 

development, as it deems necessary, it should issue an appropriate de novo decision. 

CONCLUSION 

The Board finds that this case is not in posture for decision. 

 10 Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J. Cantrell, 34 ECAB 1233, 1237 (1983). 

11 See B.C., Docket No. 15-1853 (issued January 19, 2016). 

12 The Board notes that the opinions of Dr. Cox and Dr. Zimmerman are also of insufficient probative value to 

create a conflict in medical opinion. 

13 OWCP’s procedures provide that, if a medical adviser provides an opinion which is not strong enough to 

constitute a conflict with the opinion of the treating physician, but is of sufficient value to warrant additional action, 

OWCP may refer the claim for a second opinion examination. See Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Developing and Evaluation Medical Evidence, Chapter 2.810.8(h) (September 2010). 
7

ORDER 

IT IS HEREBY ORDERED THAT the October 6, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this opinion of the Board. 

Issued: June 17, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board