United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.E., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Portland, ME, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1568 

Issued: February 9, 2017 

Appearances: Case Submitted on the Record

Patricia K. Turley, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 27, 2016 appellant, through counsel, filed a timely appeal from a June 8, 2016 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction to consider the merits of the case. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish total disability for 

the period March 22 to April 4, 2014 due to his accepted employment injuries. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq.
2

On appeal counsel contends that appellant had sustained a consequential injury and that 

there was an unresolved conflict of medical opinion evidence. 

FACTUAL HISTORY 

On August 9, 2013 appellant, then a 68-year-old rural letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained right arm injuries on July 29, 2013 in the 

performance of duty. He reported that he stopped to make a delivery, closed the mailbox door, 

and began to drive off, but the door reopened. Appellant reached to close the door as his vehicle 

rolled forward and his arm was caught. He sustained bruising from his wrist to his elbow and his 

elbow was twisted. Appellant stopped work on August 3, 2013. 

Appellant submitted a series of notes from Emily Byrne, a nurse practitioner. Dr. Janusz 

Porowski, Board-certified in emergency medicine, examined appellant on August 2, 2013. He 

noted that appellant reported bumping his right elbow against the car door while delivering mail. 

Dr. Porowski found redness and edema in appellant’s forearm. He noted that appellant denied 

right clavicle, shoulder, or wrist pain. Dr. Porowski diagnosed developing cellulitis extending 

from the distal right arm to the distal forearm. On August 4, 2013 appellant was hospitalized due 

to cellulitis of the right arm. Dr. Matthew K. Rapp, an internist, described appellant’s history as 

carrying a mailbag and banging his elbow on a mailbox. He noted that appellant developed 

swelling and progressive redness for which he sought outpatient treatment. Appellant’s 

symptoms failed to improve and he was hospitalized for intravenous antibiotics. Dr. Francis 

Cook, a family practitioner, examined appellant on August 22, 2013 and reported that he had 

contused his elbow at work and developed forearm cellulitis. He diagnosed contusion and 

cellulitis with continued elbow soreness. 

OWCP accepted appellant’s claim on September 4, 2013 for contusion of the right elbow 

and cellulitis of the right elbow and forearm. It authorized wage-loss compensation benefits 

through March 21, 2014. 

Dr. Cook examined appellant on September 13, 2013 and diagnosed contusion and 

cellulitis. He noted that appellant had a contusion followed by severe cellulitis, that he was in a 

sling, and that he had developed loss of range of motion and persistent pain. 

Appellant submitted notes dated October 11, 24 and November 18, 2013 from Dr. Susan 

Olsen, a general practitioner. Dr. Olsen described appellant’s history of injury noting that he was 

delivering mail, closed the door of the mailbox, and the door reopened. Appellant tried to close 

the mailbox by leaning out of his car window, but his arm jammed in the box door and he lost his 

footing on his car brake. The car rolled forward, scraping his forearm on the closed box door, as 

well as pulling his elbow and shoulder into forced rear extension. Dr. Olsen noted that 

appellant’s treatment for cellulitis, but found that his shoulder pain had not been addressed. 

Appellant indicated that, due to focus on his elbow and pain medication, he did not realize or 

mention his shoulder condition. Dr. Olsen also noted that he tried to pull on his chainsaw 

recently and sustained severe right shoulder pain. Appellant reported that he had lost range of 

motion in his right shoulder and was experiencing significant pain. Dr. Olsen noted that he could 

not currently perform his preinjury work duties as he could not raise his right arm over his head 

to case mail. She also noted that appellant was currently unable to reach out the window to 
3

deposit mail into boxes with his right arm. Appellant attributed the change in his right shoulder 

condition to his July 29, 2013 work incident and stated that his right shoulder was fine prior to 

his incident. Dr. Olsen opined that the degree of motion and pain in the right shoulder was “not 

congruent with delivering mail.” She diagnosed right elbow injury with resultant cellulitis 

resolved, right elbow and shoulder strain with residual pain, and immobility. 

On October 21, 2013 appellant underwent a right shoulder magnetic resonance imaging 

(MRI) scan, which demonstrated a supraspinatus tendon chronic rupture with obliteration of the 

humero-acromial space, subscapularis tendon partial tear, intraarticular biceps tendon rupture, 

glenoid labrum tear, and degenerative changes. Dr. Olsen in a November 18, 2013 report noted 

that the supraspinatus tear was preexisting as it was visible on appellant’s 2008 MRI scan. 

However, she also reported several new changes in appellant’s right shoulder visible on MRI 

scan including a biceps rupture, labral tear, and subscapularis tear. 

Dr. Mahlon A. Bradley, a Board-certified orthopedic surgeon, examined appellant on 

November 4, 2013. He described appellant’s July 29, 2013 work incident as catching his right 

shoulder on a mailbox as he lost footing on his car brake. Appellant extended and abducted his 

shoulder forcefully and sustained elbow and shoulder pain. Dr. Bradley noted that, although 

appellant denied a prior right shoulder injury, he had undergone an MRI scan of the right 

shoulder in 2008, which showed a complete supraspinatus tendon tear. He reviewed appellant’s 

October 21, 2013 right shoulder MRI scan and found that there was “tremendous fat atrophy of 

the supraspinatus indicating this is a very old tear.” Dr. Bradley provided a 2008 MRI scan, 

which demonstrated moderate degenerative changes in the acromial joint with a chronic rupture 

of the supraspinatus tendon with muscle retraction and superior migration of the humeral head. 

He opined that this was the exact same tear with chronic nature and high level retraction on both 

MRI scans. Dr. Bradley opined that appellant had an exacerbation of his previously torn right 

rotator cuff documented in 2008. He found that appellant had a flare-up of a previous injury. 

OWCP’s medical adviser reviewed the medical records on January 3, 2014 and opined 

that appellant’s right shoulder condition was not aggravated by his July 29, 2013 employment 

injury. He noted that appellant did not report his right shoulder pain until October 11, 2013 after 

trying to start his chainsaw. OWCP’s medical adviser noted that the contemporaneous medical 

records did not mention subjective complaints by appellant or objective findings relative to a 

right shoulder injury. 

On March 7, 2014 OWCP referred appellant for a second opinion with Dr. Daniel 

O’Neill, a Board-certified orthopedic surgeon. In a report dated March 21, 2014 Dr. O’Neill 

described appellant’s history as injuring his right forearm and elbow by putting some mail in a 

box and hitting the accelerator accidentally. He described appellant’s 2008 shoulder pain with 

rehabilitation. Dr. O’Neill noted the medical treatment for the July 2013 work injury, including 

elbow treatment, until October 2013. He provided results on examination and diagnosed a 

previous rotator cuff tear and current rotator cuff arthropathy. Dr. O’Neill agreed that appellant 

had a temporary aggravation of his right shoulder condition in October 2013, but opined that this 

“clearly was not related to the work incident on July 29, 2013” noting appellant’s shoulder pain 

while starting his chainsaw. He found that appellant had no residuals of his accepted work 

injury, had reached maximum medical improvement, and could return to work in any capacity, 
4

where he would not be raising his shoulder past 30 degrees. This restriction was based on the 

non-accepted rotator cuff tear. 

Dr. John T. Nutting, a Board-certified orthopedic surgeon, examined appellant on 

March 31, 2014, reviewed appellant’s MRI scan, and diagnosed rotator cuff tear arthropathy. 

Beginning April 8, 2014, appellant filed claims for compensation (Form CA-7) 

requesting reimbursement for leave without pay from March 22 through April 18, 2014. In a 

letter dated April 22, 2014, OWCP requested that he provide additional medical evidence 

supporting disability for the claimed period. It allowed 30 days for a response. 

On May 20, 2014 counsel argued that appellant’s use of a sling following his elbow 

injury resulted in aggravation of his underlying right shoulder condition. She requested that 

Dr. Cook respond to a series of questions on May 15, 2014. There were handwritten notes 

written on a copy of counsel’s letter, noting that most of appellant’s attention was directed at the 

cellulites and not the shoulder. 

Appellant provided form reports dated February 21 and May 5, 2014 from Dr. Cook, 

which diagnosed contusion elbow, cellulitis, and rotator cuff tear shoulder. He also submitted 

notes from physician assistants, dated from January 9 through July 31, 2014. Appellant returned 

to part-time light-duty work on July 2, 2014. 

By decision dated September 30, 2014, OWCP denied appellant’s claim for 

compensation beginning March 22, 2014. 

In an undated note, Dr. Nutting indicated that he was treating appellant for his right 

shoulder pain and that he could return to full duty on October 2, 2014. 

Dr. Michael J. Rowan, an orthopedic surgeon, examined appellant on December 18 2014. 

He noted that appellant had successfully rehabilitated his right shoulder to a functional level. 

Dr. Rowan released appellant from medical care. 

On March 6, 2015 counsel requested reconsideration of the September 30, 2014. She 

described appellant’s work activities as a rural carrier and his right shoulder treatment in 2008 

including a cortisone injection, which ended his pain. Counsel resubmitted Dr. Bradley’s 

November 3, 2013 report, Dr. Olsen’s 2013 notes, Dr. Nutting’s March 31, 2014 note, 

appellant’s October 21, 2013 MRI scan, hospital notes from Drs. Rapp and Porowski, physician 

assistant notes, as well as the handwritten unsigned additions to her May 15, 2014 letter to 

Dr. Cook. She also resubmitted portions of notes and reports from Dr. Cook dated August 22, as 

well as February 21, and May 5, 2014. Counsel also submitted new notes from Dr. Cook dated 

September 16, October 18, and November 26, 2013. In his September 16, 2013 note, Dr. Cook 

indicated that appellant continued to have elbow and right shoulder pain. On October 18, 2013 

he provided appellant’s work restrictions. In his February 21, 2014 note, Dr. Cook found that 

appellant’s elbow was still sore, but that his main area of concern was his right shoulder. He 

diagnosed rotator cuff disorder and actinic keratosis. On November 26, 2013 Dr. Cook noted 

appellant’s continued elbow and right shoulder pain. He reported that appellant had a previous 

history of rotator cuff issues which were advanced. Dr. Cook diagnosed diabetes mellitus, 

rotator cuff dysfunction, and elbow contusion. 
5

On March 13, 2015 counsel resubmitted the 2008 MRI scan and argued that there were 

changes in appellant’s tendons not visible until the 2013 MRI scan. 

By decision dated April 14, 2015, OWCP denied modification of its prior decisions 

denying appellant’s claim for compensation from March 22 to April 4, 2014 finding that he had 

not submitted medical opinion evidence to establish total disability during this period due to his 

accepted employment incident. 

On April 12, 2016 counsel requested reconsideration. She argued that appellant’s right 

shoulder condition was aggravated by the July 29, 2013 work incident. Counsel argued that 

appellant sustained new tears to his right shoulder as demonstrated on MRI scans in 2008 and 

2013. She noted that Drs. Cook, Bradley, Olsen, and Nutting supported causal relationship 

between appellant’s July 29, 2013 employment incident and his ongoing right shoulder 

conditions. Counsel referenced a January 8, 2014 report from Dr. Nutting.3

 She further 

disagreed with the findings and conclusions of Dr. O’Neill. Counsel resubmitted previous 

evidence including reports from Dr. Nutting, Dr. Cook, Dr. Bradley, Dr. Porowski, Dr. Rapp, 

and Dr. Olsen. 

By decision dated June 8, 2016, OWCP reviewed the merits of its prior decisions and 

denied modification of its prior decision denying appellant’s claim for compensation from 

March 22 through April 4, 2014. It noted that the medical evidence of record failed to establish a 

causal relationship between his accepted employment incident and his diagnosed right shoulder 

condition. 

LEGAL PRECEDENT 

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

essential elements of his or her claim, including that any disability or specific condition for 

which compensation is claimed is causally related to the employment injury.4 The term 

disability is defined as the incapacity because of an employment injury to earn the wages the 

employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of 

wage-earning capacity.5 

Whether a particular injury causes an employee to be disabled from employment and the 

duration of that disability are medical issues which must be proved by a preponderance of the 

reliable, probative, and substantial medical evidence.6

 Findings on examination are generally 

needed to support a physician’s opinion that an employee is disabled from work. When a 

 3

 The record does not contain a January 8, 2014 signed by Dr. Nutting. The language that counsel references is 

included in a January 9, 2014 note from Mr. Gibbs, a physician assistant, which is not electronically or otherwise 

signed by Dr. Nutting. 

4 G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 

5

 20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury, but no 

loss of wage-earning capacity). 

6 See Fereidoon Kharabi, 52 ECAB 291 (2001). 
6

physician’s statements regarding an employee’s ability to work consist only of repetition of the 

employee’s complaints, without objective findings of disability being shown, the physician has 

not presented a medical opinion on the issue of disability or a basis for payment of 

compensation.7

 The Board will not require OWCP to pay compensation for disability in the 

absence of any medical evidence directly addressing the specific dates of disability for which 

compensation is claimed. To do so would essentially allow employees to self-certify their 

disability and entitlement to compensation.8

 

Causal relationship is a medical issue and the medical evidence required to establish 

causal relationship rationalized medical evidence.9

 Rationalized medical evidence is medical 

evidence which includes a physician’s detailed medical 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, 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.10 Neither the fact that a disease or 

condition manifest itself during a period of employment nor the belief that the disease or 

condition was caused or aggravated by employment factors or incidents is sufficient to establish 

causal relationship.11 

ANALYSIS 

The Board finds that appellant has not met his burden of proof to establish total disability 

from March 22 to April 4, 2014 due to his accepted employment injuries. 

OWCP accepted that appellant sustained a traumatic injury on July 29, 2013 when he 

attempted to reclose a mailbox and his vehicle moved. Appellant initially reported only a right 

elbow and forearm injury. Dr. Porowski examined appellant on August 2, 2013 and noted 

explicitly that appellant denied right clavicle, shoulder, or wrist pain. Appellant did not report 

his right shoulder pain until October 11, 2013, when Dr. Olsen described appellant’s 

employment incident to include hyperextension of his shoulder. 

OWCP’s second opinion physician, Dr. O’Neill examined appellant on March 21, 2014 

and described appellant’s history as injuring his right forearm and elbow by putting some mail in 

a box and hitting the accelerator accidentally. He reviewed appellant’s 2008 MRI scan and right 

shoulder condition. Dr. O’Neill found that appellant had a previous rotator cuff tear and 

currently had rotator cuff arthropathy. He found that appellant could return to work, but the nonaccepted rotator cuff tear condition warranted restrictions. Dr. O’Neill opined that appellant had 

 7 Id.

8 Id. 

9 Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

10 Leslie C. Moore, 52 ECAB 132 (2000). 

11 Dennis M. Mascarenas, 49 ECAB 
7

a temporary aggravation of his right shoulder condition in October 2013, but determined that this 

“clearly was not related to the work incident on July 29, 2013” noting that his shoulder pain 

began while he was starting his chainsaw. This report is based on a proper history of injury 

including appellant’s preexisting right shoulder condition for which he received medical 

treatment in 2008 and his 2013 nonemployment-related incident of starting his chainsaw. 

Dr. O’Neill noted that appellant failed to report a shoulder injury until October 11, 2013, over 

two months after the July 29, 2013 employment incident and after the intervening event of 

starting his chainsaw. The Board finds that this well-reasoned report is entitled to the weight of 

the medical evidence. 

Dr. Olsen submitted a series of notes beginning on October 11, 2013 attributing 

appellant’s ongoing right shoulder condition to his July 29, 2013 employment incident and to 

starting his chainsaw at home. She had not been initially aware of his 2008 rotator cuff tear. It 

was not until November 18, 2013, that Dr. Olsen reported that appellant’s supraspinatus tear was 

preexisting as it was visible on his 2008 MRI scan. She also reported several new changes in his 

right shoulder visible on MRI scan including a biceps rupture, labral tear, and subscapularis tear. 

While Dr. Olsen opined more than two months after the fact, that she attributed appellant’s 

current shoulder condition and total disability to his work injury, she did not provide medical 

rationale explaining how and why she believed that the accepted employment incident was the 

cause of the shoulder condition rather than the intervening incident of starting the chainsaw. 

Without medical reasoning, her reports are insufficient to establish total disability due to 

employment injuries for the period claimed.12

Dr. Bradley began treating appellant on November 4, 2013 and described appellant’s 

July 29, 2013 work injury as catching his right shoulder on a mailbox as he lost footing on his 

car brake. He reported that during this incident appellant had extended and abducted his 

shoulder forcefully resulting in both elbow and shoulder pain. Dr. Bradley reviewed both the 

2008 MRI scan which showed a complete supraspinatus tendon tear and the October 21, 2013 

MRI scan. He found that the exact same tear was shown on both. Dr. Bradley opined that the 

July 29, 2013 incident exacerbated the previously torn right rotator cuff documented in 2008. He 

found that appellant had a flare-up of a previous injury. The Board finds that this report is also 

insufficient to meet appellant’s burden of proof to establish total disability due to his accepted 

work injuries. Dr. Bradley did not provide an opinion on disability, include a history of 

appellant’s intervening chainsaw incident, offer a clear opinion that the diagnosed 

“exacerbation” was due to the July 2013 employment incident, or provide any medical reasoning 

in support of his opinions.13

Appellant also submitted a series of reports from Dr. Cook. Dr. Cook initially treated 

appellant beginning on August 22, 2013 for an elbow contusion and resulting forearm cellulitis. 

It was not until November 26, 2013 that he mentioned appellant’s right shoulder pain. Dr. Cook 

provided a history of prior rotator cuff injury, but did not describe the chainsaw incident 

mentioned by Dr. Olsen. These notes are insufficient to meet appellant’s burden of proof to 

establish employment-related disability. Dr. Cook also did not provide an opinion on disability, 

 12 Supra note 10; see also N.G., Docket No. 16-1421 (issued December 12, 2016). 

13 Id. 
8

a complete history of injury, a clear opinion that appellant’s right shoulder condition was related 

to his employment, or provide medical reasoning to support appellant’s claims.14

Appellant also submitted several reports from physician assistants. Certain healthcare 

providers such as physician assistants, nurse practitioners, physical therapists, and social workers 

are not considered physicians as defined under FECA.15 Consequently, their medical findings 

and/or opinions will not suffice for purposes of establishing entitlement to FECA benefits.16 As 

such these reports are not medical evidence and cannot establish appellant’s claim for disability 

compensation. 

On appeal counsel argues that the rotator cuff injury was a consequential injury of the 

accepted condition. However, OWCP has not ruled on that issue and thus is not ripe for review 

by the Board.17 

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 met his burden of proof to establish total disability 

for the period March 22 to April 4, 2014 due to his accepted employment injuries. 

 14 Id. 

15 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 

16 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). 

17 20 C.F.R. § 501.2(c)(2). 
9

ORDER 

IT IS HEREBY ORDERED THAT the June 8, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: February 9, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board