United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.F., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, San Francisco, CA, Employer

__________________________________________

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Docket No. 17-1514

Issued: April 10, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 3, 2017 appellant filed a timely appeal from a June 15, 2017 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 to 

consider the merits of this case.2

ISSUE

The issue is whether appellant has met her burden of proof to establish total disability from 

work commencing August 21, 2016, due to the accepted March 15, 2016 employment injury.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the June 15, 2017 decision, OWCP received additional evidence. However, the 

Board’s jurisdiction is limited to the evidence that was in the record at the time OWCP issued its final decision. Thus, 

the Board is precluded from reviewing this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).
2

FACTUAL HISTORY

On April 13, 2016 appellant, then a 35-year-old human resources assistant, filed a 

traumatic injury claim (Form CA-1) alleging that, on March 15, 2016, she pulled a muscle in her 

right arm when she reached for some papers on her desk. OWCP accepted the claim for right 

arm/shoulder strain on May 27, 2016. Appellant returned to light-duty work with restrictions on 

June 22, 2016. OWCP paid appellant wage-loss compensation for intermittent periods of 

disability from May 9 to August 20, 2016, and again from October 16 to 28, 2016.

3

On June 9, 2016 OWCP referred appellant to Dr. Aubrey A. Swartz, a Board-certified 

orthopedic surgeon, for a second opinion examination and assessment of her accepted work-related 

condition. In a report dated June 30, 2016, Dr. Swartz, based upon a review of the statement of 

accepted facts, medical records, and physical examination, diagnosed status post right shoulder 

strain injury. He noted that appellant had sustained a prior injury on February 23, 2015 involving 

her right shoulder, forearm, and wrist. Dr. Swartz noted physical examination findings and 

recommended that a magnetic resonance imaging (MRI) scan be performed before he answered

OWCP’s questions regarding aggravation and disability.

In an August 28, 2016 supplemental report, Dr. Swartz reviewed an August 17, 2016 MRI

scan. Based on his review of the MRI scan, Dr. Swartz concluded that there was no evidence of a 

rotator cuff tear and mild supraspinatus tendinosis with low-grade articular surface fraying, 

degenerative fraying-type biceps labral anchor and superior-posterior labrum tear, and chronic 

supraspinatus tendinitis/tendinosis. Dr. Swartz attributed the diagnosed conditions to the accepted 

March 15, 2016 employment injury. He concluded that appellant was capable of performing her 

usual job with a restriction of up to four hours of right shoulder overhead reaching. Dr. Swartz 

also opined that appellant had reached maximum medical improvement and there appeared to be 

no indication that surgery was required.

In a work status report dated August 24, 2016, Dr. Aundrea Wilson, a surgeon, indicated 

that appellant was capable of working with restrictions for six hours per day and released her to 

return to work on August 19, 2016.

In an August 24, 2016 report, Dr. Pamela Mehta, a Board-certified orthopedic surgeon, 

noted appellant’s medical and injury histories and performed a physical examination. Diagnoses 

included right shoulder impingement syndrome, right carpal tunnel syndrome, possible right neck 

radiculopathy, and right neck pain. Dr. Mehta attributed appellant’s right shoulder, neck, and hand 

conditions to work injuries of February 23, 2015 and March 15, 2016. She concluded that 

appellant was capable of performing her usual work duties with restrictions on right arm use of 

four hours. In attached work status reports, Dr. Mehta released appellant to return to work on 

August 24, 2016 with restrictions of up to four hours of limited right arm use. 

 

3 By decision dated July 29, 2016, OWCP denied appellant’s claim for wage-loss compensation for the period 

May 19 to June 11, 2016. It noted that appellant had filed claims for wage-loss compensation (Form CA-7) for 

intermittent wage loss of 8 hours covering the period May 9 to 13, 2016 and 14 hours covering the period May 16 

to 19, 2016 and 72 hours of total disability covering the period May 31 to June 10, 2016. The record contains no 

evidence that appellant appealed the July 29, 2016 decision denying her wage-loss claim.
3

In an August 26, 2016 work status report, Dr. Wilson released appellant to return to work 

with restrictions on use of her right hand up to four hours. She checked a box that indicated 

appellant had improved, but slower than anticipated.

A disability note signed by Dr. Kimberly Hicks, an internal medicine physician, related 

that appellant had been under her care from August 19, 2016 and that she could return to work on 

September 8, 2016.

Appellant filed claims for wage-loss compensation (Form CA-7) for total disability 

covering the period August 21 to September 3, 2016, September 5 to 16, 2016, and September 19 

to 30, 2016.

In a letter dated September 12, 2016, OWCP informed appellant that the evidence of record 

was insufficient to establish her claim for wage-loss compensation. It noted that she had been 

working light duty when she stopped work on August 21, 2016 and that it was unclear why she 

went from part-time light duty to temporary total disability. Appellant was advised regarding the 

evidence required to support her claim and she was afforded 30 days to provide the requested 

evidence.

In response to OWCP’s request appellant submitted medical evidence relevant to the period 

of disability. She submitted additional medical evidence and physical therapy reports.

A disability note dated September 7, 2016 and signed by Dr. Hicks, noted that appellant 

had been under her care from August 19, 2016 to the present and indicated that appellant could 

return to work on October 5, 2016. She indicated that appellant’s disability for the period in 

question was due to her right arm tendinitis. 

In a September 21, 2016 progress report, Dr. Mehta noted that appellant was being 

reevaluated for her accepted March 15, 2016 work injury. Examination findings were provided 

and diagnoses of right shoulder impingement syndrome, possible right carpal tunnel syndrome, 

possible right neck radiculopathy, and right neck pain were noted. Dr. Mehta related that appellant 

agreed to undergo right shoulder arthroscopic subacromial decompression surgery. In a

September 21, 2016 work status form, Dr. Mehta indicated that appellant was disabled from work

until September 29, 2016 when she could resume work with restrictions.

In a September 26, 2016 report, Dr. Hicks noted that appellant has been under her care 

since April 2016 for treatment of right shoulder mild supraspinatus tendinosis with low grade 

articular surface fraying and right shoulder degenerative fraying/ biceps labral anchor and superior 

posterior labrum tear. She opined that appellant was disabled from work due to an aggravation. 

An October 6, 2016 electromyogram (EMG) noted abnormal findings consistent with 

moderate-to-severe forearm ulnar neuropathy below the cubital tunnel. The EMG reported no 

evidence or radial neuropathy or carpal tunnel syndrome.

In an October 12, 2016 primary treating physician’s progress report, Dr. Mehta concluded 

that appellant needed surgery and that she would be off work two to three months following right 

shoulder subacromial decompression surgery. Diagnoses included right shoulder impingement 

syndrome with decreased range of motion and right ulnar neuropathy. Dr. Mehta indicated that 
4

appellant could return to work on October 12, 2016 with restrictions in a work status form dated 

October 12, 2016.

By decision dated October 26, 2016, OWCP denied appellant’s claim for wage-loss 

compensation on and after August 21, 2016.

Subsequent to the denial of her claim, OWCP received the following evidence.

On October 18, 2016 appellant was seen in the emergency room by Dr. Aaron Halstead 

Barber, Board-certified in emergency medicine. Dr. Barber noted that appellant had a March 2016 

right shoulder work injury and has had unrelenting pain since the injury. A diagnosis of chronic 

right shoulder/neck pain was reported.

In a Form CA-7 dated October 18, 2016, appellant filed a claim for intermittent wage-loss 

compensation from October 3 to 15, 2016.

An October 26, 2016 work status report by Dr. Mehta noted that appellant was waiting for 

approval of the recommended surgery. Dr. Mehta indicated that appellant was unable to work 

until November 23, 2016. Diagnoses included cervicalgia, right shoulder impingement syndrome, 

cervical radiculopathy, and right carpal tunnel syndrome.

Dr. Mehta’s October 26, 2016 progress report contained findings and diagnoses unchanged 

from prior reports. He placed appellant completely off work.

On November 2, 2016 appellant filed a Form CA-7 claim for wage-loss compensation for 

intermittent disability from October 16 to 28, 2016.

On November 14, 2016 OWCP received appellant’s request for an oral hearing before an 

OWCP hearing representative, which was held on March 31, 2017.

In a November 28, 2016 report, Dr. Mathias Masem, a treating Board-certified orthopedic 

and hand surgeon, detailed medical and injury histories. A physical examination was performed 

with findings noted in the report. Dr. Masem diagnosed right rotator cuff tendinitis and right 

cubital tunnel syndrome. He recommended right shoulder arthroscopy and subacromial 

decompression and cubital tunnel decompression surgery.

On November 29, 2016 a district medical adviser reviewed the request for right shoulder 

arthroscopic surgery and opined that it was not medically necessary.

On December 9, 2016 appellant filed a Form CA-7 claim for wage-loss compensation for

total disability from November 28 to December 9, 2016.

Dr. Masem, in a January 12, 2017 report, noted that appellant was seen for a follow-up 

visit concerning her right cubital tunnel symptoms and right shoulder rotator cuff tendinitis. 

Examination finding included: biceps tendon and rotator cuff tenderness; pain with right rotator 

cuff loading; and right shoulder abduction from 80 to 110 degrees. Dr. Masem reported that 

appellant’s right shoulder condition was making her miserable and opined that surgery remained 

the recommended course of action. 
5

In a January 12, 2017 duty status form (Form CA-17), Dr. Masem diagnosed persistent 

right arm pain with use. He opined that appellant was totally disabled from work as she was 

instructed not to use her right upper extremity.

In a February 2, 2017 progress report, Kelly Maris-Weissburg, nurse practitioner, noted an 

injury date of March 15, 2016 and that appellant has been off work since October 25, 2016. She 

reported that appellant’s right shoulder pain had worsened. Diagnoses listed were right cubital 

tunnel symptoms and right shoulder rotator cuff tendinitis.

In a February 28, 2017 progress report, Dr. Masem provided an update on appellant’s 

condition and examination findings. Appellant informed him that her pain was unchanged and 

severe. Dr. Masem diagnosed right cubital tunnel symptoms and right shoulder rotator cuff 

tendinitis. He opined that appellant’s rotator cuff tear may be worsening as her shoulder symptoms 

had worsened. Dr. Masem advised that she remained disabled from work until she had surgery 

and postoperative rehabilitation. In a February 28, 2017 note, he wrote that appellant had been 

evaluated that day and was to remain off work until her next medical appointment in April.

Ms. Maris-Weissburg, in progress notes dated March 23, 2017, noted that appellant was 

seen for right shoulder injury complaints. She noted that appellant had been off work since 

October 2016 and opined that her condition was worsening. Ms. Maris-Weissburg listed right 

cubital tunnel symptoms and right shoulder rotator cuff tendinitis.

In an April 18, 2017 report, Dr. Masem’s examination findings, diagnoses, and 

recommendations remained unchanged from prior reports. He indicated that appellant had been 

evaluated that day and was to remain off work until her next medical appointment at the end of 

May.

On May 10, 2017 appellant was seen by Ms. Maris-Weissburg, who noted examination 

findings and conclusions in a progress report. Ms. Maris-Weissburg opined that appellant’s 

condition was worsening and that she has not worked since October 2016. The diagnoses 

remained unchanged.

In a May 15, 2017 report, Dr. Mark H. Chan, a Board-certified specialist in pain medicine 

and rehabilitation, noted an injury date of May 16, 2016 and that appellant last worked in 

October 2016. He diagnosed right shoulder cuff tendinitis, which he noted had been accepted as 

right shoulder strain, upper extremity and right cervical strain, and right cubital tunnel syndrome. 

Examination findings were provided. Based on examination findings and history, Dr. Chan opined 

that appellant’s condition was worsening despite the treatment provided. He recommended 

acupuncture and a right shoulder MRI scan. 

Dr. Masem, in May 30, 2017 progress notes, reiterated examination findings, diagnoses, 

and conclusions from his prior reports. In a May 30, 2017 note, he wrote that appellant had been 

evaluated that day and was to remain off work until her next medical appointment in July. 

By decision dated June 15, 2017, an OWCP hearing representative affirmed the denial of 

appellant’s claim for wage-loss compensation due to disability from work commencing 

August 21, 2016.
6

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the evidence.5 For each period of disability 

claimed, the employee has the burden of establishing that he or she was disabled from work as a 

result of the accepted employment injury.6 Whether a particular injury causes an employee to 

become disabled from work, and the duration of that disability, are medical issues that must be 

proven by a preponderance of probative and reliable medical opinion evidence.7 

When an employee, who is disabled from the job he or she held when injured on account 

of employment-related residuals, returns to a light-duty position or the medical evidence of record 

establishes that he or she can perform the light-duty position, the employee has the burden of proof 

to establish total disability by the weight of the reliable, probative, and substantial evidence and 

show that he or she cannot perform such light duty. As part of this burden, the employee must 

show either a change in the nature and extent of the injury-related condition or a change in the 

nature and extent of the light-duty requirements.8 To establish a change in the nature and extent 

of the injury-related condition there must be probative medical evidence of record. The evidence 

must include a medical opinion, based on a complete and accurate factual and medical history, and 

supported by sound medical reasoning, that the disabling condition is causally related to 

employment factors.9

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

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed. To do so, would essentially allow an employee to self-certify their disability and 

entitlement to compensation.10

ANALYSIS

The Board finds that the medical evidence of record is insufficient to establish total 

disability commencing August 21, 2016, causally related to the accepted March 15, 2016

employment injury.

The record reflects that Dr. Swartz, an OWCP-referral physician, found in his June 30, 

2016 report that appellant was capable of performing her usual work duties with a restriction of no 

 

4 Supra note 1. 

5 See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M. 

Whelan, 20 ECAB 55 (1968).

6 See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

7 See Edward H. Horton, 41 ECAB 301 (1989).

8 N.W., Docket No. 17-1415 (issued November 7, 2017). 

9 Maurissa Mack, 50 ECAB 498 (1999).

10 See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).
7

more than four hours of overhead reaching with her right shoulder. Appellant had returned to 

light-duty work on June 22, 2016. 

The record contains a number of progress notes and reports from Dr. Mehta who diagnosed 

right shoulder impingement syndrome, right carpal tunnel syndrome, possible right neck 

radiculopathy, and right neck pain. Dr. Mehta opined in reports dated August 24, 2016 that 

appellant was capable of working full time with a restriction of no more than four hours of right 

shoulder overhead use. This report is insufficient to support appellant’s claim as the record 

substantiates that appellant was working light duty when she stopped work on August 21, 2016. 

Dr. Mehta opined that appellant was capable of working with restrictions, she did not provide a 

rationalized opinion that appellant could not perform her light-duty work.

11

 In a September 21, 

2016 work status report, she opined that appellant was disabled from work until September 26, 

2016 when she could resume work with restrictions. On October 12, 2016 Dr. Mehta indicated 

that appellant could return to work with restrictions that day. However, she offered no specific 

opinion as to the cause of appellant’s disability from work.

12

 In a progress note dated October 12, 

2016, Dr. Mehta opined that appellant would be off work for two to three months following 

shoulder surgery. However, this referred to future disability based on surgery, which was not 

approved by OWCP or performed. For the above reasons, the reports from Dr. Mehta are 

insufficient to support appellant’s claim. 

Similarly, the evidence from Dr. Wilson is insufficient to support appellant’s claim. 

Dr. Wilson, in August 24 and 26, 2016 work status reports, opined that appellant was capable of 

working six hours per day. She did not, however, provide any explanation as to whether 

appellant’s condition had worsened, such that she could not perform her light-duty work 

assignment.13 

Appellant also submitted a number of reports covering the period November 28, 2016 to 

May 30, 2017 from Dr. Masem who diagnosed right rotator cuff tendinitis and right cubital tunnel 

syndrome. Dr. Masem opined that appellant was disabled from work until she had right shoulder 

surgery and recovered from the surgery. He also noted that appellant’s pain had worsened. Pain, 

however, is a symptom and not a compensable medical diagnosis.14 Dr. Masem provided no 

supporting rationale explaining how appellant was unable to perform her usual work duties due to

a worsening of the accepted March 15, 2016 work injury, beyond noting that she required surgery 

and could not work.15 The Board has held that medical opinions without any supporting rationale 

 

11 Supra note 9. 

12 See F.T., Docket No. 09-0919 (issued December 7, 2009) (medical opinions not fortified by rationale are of 

diminished probative value); Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements 

merely asserting causal relationship generally do not discharge a claimant’s burden of proof). See also K.W., 59 

ECAB 271 (2007) (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 Supra note 9. 

14 C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

15 Supra note 10. 
8

or explanation are of little probative value.16 For these reasons, Dr. Masem’s reports are 

insufficient to establish that appellant was totally disabled commencing August 21, 2016 causally 

related to the accepted March 15, 2016 employment injury.

The record contains disability notes and report from Dr. Hicks. Dr. Hicks indicated that 

appellant had been under her care from August 19 to September 7, 2016 and could resume work 

on September 8, 2016. She did not, however, provide an opinion on causal relationship or a 

diagnosis and, thus, these notes are of little probative value.17 In a September 7, 2016 disability 

note, Dr. Hicks released appellant to return to work on October 5, 2016 while in a September 26, 

2016 report she attributed appellant’s disability to an aggravation of right shoulder conditions. She 

attributed appellant’s disability to her right arm tendinitis without any supporting rationale

explaining objective findings. The Board has held that medical opinions which contain no 

rationale or explanation are of little probative value.18 For these reasons, Dr. Hicks’ notes are 

insufficient to support appellant’s claim.

Appellant also submitted an October 18, 2016 emergency room report from Dr. Barber 

diagnosing chronic neck/right shoulder pain and a March 15, 2017 report by Dr. Chan. Neither

Dr. Chan nor Dr. Barber offered any opinion regarding disability. Medical evidence must,

however, directly address specific periods of disability.19 Dr. Barber and Mr. Hinrichsen only 

noted that appellant has had unrelenting pain since her March 2016 employment injury. As noted 

above, pain is a symptom and not a compensable medical diagnosis.20 Dr. Chan opined that 

appellant’s condition had worsened without any supporting rationale or explanation. As such these

opinions are of limited probative value.21 

The remaining medical evidence of record is of limited probative value. The diagnostic 

tests offered no opinion as to how the accepted March 15, 2016 injury caused any disability. The 

Board has found that diagnostic tests are therefore of limited probative value.22 

OWCP also received reports from a nurse practitioner. However, under FECA, the reports 

of a nonphysician, including nurse practitioners, do not constitute probative medical evidence.23

 

16 Supra note 13.

17 See A.K., Docket No. 16-1133 (issued December19, 2016); T.O., Docket No. 16-0423 (issued June 20, 2016).

18 Supra note 17.

19 Supra note 11. 

20 Supra note 15.

21 Id.

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

23 5 U.S.C. § 8102(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. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.404; C.P., Docket No. 17-0042 (issued December 27, 2016); Roy L. 

Humphrey, 57 ECAB 238 (2005); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).
9

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 total disability from work commencing

August 21, 2016 due to the accepted March 15, 2016 employment injury.

ORDER

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

Programs dated June 15, 2017 is affirmed.

Issued: April 10, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board