United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.B., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Manchester, NH, 

Employer

__________________________________________

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Docket No. 17-0989

Issued: December 4, 2017

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 April 5, 2017 appellant, through counsel, filed a timely appeal from a December 7, 

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 over the merits of this case.

 

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

ISSUE

The issue is whether appellant met his burden of proof to establish a right shoulder injury

causally related to the accepted January 6, 2012 employment incident. 

FACTUAL HISTORY

On January 24, 2012 appellant, then a 36-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on January 6, 2012 he experienced a burning sensation in 

his right shoulder and lower shoulder blade after taking down mail. 

In a statement accompanying his claim, appellant related that he experienced low back 

pain sweeping mail beginning September 2011, when he started working on the Delivery Bar 

Code Sorter (DBCS) machine. In December 2011 he had burning in his right hip feeding mail. 

Appellant asserted that on January 6, 2012 he was sweeping the top row of mail on the machine 

when he felt burning in his right shoulder and lower shoulder blade. He took medication and 

completed his shift, but the medication was not effective so he stopped work due to the 

combined pain in his back, right hip, and right shoulder.

Dr. Phat Nguyen, an osteopath, completed a state workers’ compensation form on 

January 20, 2012. He related that appellant had complained of low back pain since 2011, a 

burning in his right hip since December 2011, and pain and burning in his right shoulder and 

shoulder blade. Dr. Nguyen diagnosed lumbar strain, trochanteric bursitis, and sciatica and 

indicated that the conditions were due to the described injury. He advised that appellant could 

resume work on January 27, 2012. In a progress report dated January 26, 2012, Dr. Nguyen 

evaluated appellant for right shoulder, right hip, and back pain, noting that he did not experience 

“any specific injury” and that his symptoms began after he started his positon at the employing 

establishment. He diagnosed low back pain and right hip bursitis.

By letter dated February 7, 2012, the employing establishment controverted the claim, 

noting that appellant had filed an occupational disease claim for a back and hip condition and a 

traumatic injury claim for the right shoulder. It submitted an undated statement from his 

supervisor, B.L. B.L. advised that appellant attributed his injury both to sweeping lower stackers 

and to sweeping upper stackers. She questioned his truthfulness, noting that he continued to 

work for nine days after the alleged January 6, 2012 employment injury. 

OWCP, by letter dated February 21, 2012, requested that appellant provide additional 

factual and medical information, including a detailed report from his attending physician 

addressing the causal relationship between the diagnosed conditions and the claimed work 

incident. 

Appellant, in a March 21, 2012 response, attributed his right shoulder injury to sweeping 

the top row of mail on a mail processing machine and his back injury to sweeping mail on the 

bottom row of the machine. He related, “Both injuries are from constant repeated motions over 

long periods of time during the course of a shift.” Appellant advised that he continued working 

after his injury because he was afraid he might lose his job.
3

By decision dated March 28, 2012, OWCP denied appellant’s traumatic injury claim as 

the medical evidence was insufficient to establish a right shoulder condition as a result of the 

accepted work incident. Thus, fact of injury was not established. OWCP noted that it was 

developing his claim for a back and hip condition under a separate file number.

In a report dated January 20, 2012, received by OWCP on April 30, 2012, Dr. Joohahn 

John Kim, a Board-certified internist, evaluated appellant for pain in his right hip and back. He 

noted that appellant also complained of shoulder pain beginning the past week due to repetitive 

employment duties. Dr. Kim diagnosed lumbar strain, possible trochanteric bursitis, and 

sacroiliac dysfunction.

In an April 2, 2012 progress report, Dr. Nguyen obtained a history of appellant 

experiencing right shoulder pain that “developed after [appellant] had repetitive use of his 

shoulders especially lifting things over his head. [He] does not have any history of [a] specific 

shoulder injury or pain in the past.” On examination, he found mild right shoulder pain at the 

acromioclavicular joint and subacromial bursa on palpation and movement. Dr. Nguyen

diagnosed shoulder tendinitis and possible subacromial bursitis and advised that appellant “has 

no history of injury except for repetitive injury at work due to physical work as above.” He

opined that appellant’s “problems could have been caused by repetitive injury from his physical 

work.” In an April 2, 2012 state workers’ compensation form, Dr. Nguyen recommended a 

functional capacity evaluation.3 

Dr. Nguyen, in a June 15, 2012 progress report, noted that appellant had low back, right 

hip, and right shoulder pain beginning September 2011. He indicated that appellant developed 

pain in his right shoulder after repetitive use, particularly lifting, without any past shoulder 

injury. Dr. Nguyen diagnosed right shoulder tendinitis and possible subacromial bursitis. 

On August 16, 2012 Dr. Mark Scheffer, an orthopedic surgeon, discussed appellant’s 

complaints of shoulder pain for the past eight months after doing repetitive motion at the 

employing establishment. He diagnosed shoulder bursitis and recommended a magnetic 

resonance imaging (MRI) scan study. An August 21, 2012 MRI scan of the right shoulder 

showed mild supraspinatus and subscapularis tendinopathy. Dr. Scheffer, in an August 30, 2012 

report, provided a history of appellant feeling a sharp pain in his right shoulder after sweeping 

mail on January 6, 2012. He diagnosed rotator cuff tendinitis. Dr. Scheffer advised appellant 

that his condition was not related to work because he had only been at his positon for three 

months. He found that appellant could perform his usual employment.

On March 28, 2013 appellant requested reconsideration. He provided a March 22, 2013 

report from Dr. Nguyen, who related:

“[Appellant] has sustained right anterior shoulder pain consistent with bicipital 

tendinopathy and thoracic outlet syndrome, along with right lateral hip pain 

consistent with piriformis syndrome. It is my medical opinion [his] right shoulder 

injury and right hip injur[ies] are work related. The repetitive movements that his 

 

3 Dr. Nguyen provided a similar report on June 15, 2012. 
4

work requires at [the employing establishment] have caused him to sustain these 

injuries, causing pain and dysfunction in these joints.” 

In a decision dated April 4, 2013 OWCP denied modification of its March 28, 2012 

decision, finding that appellant had not submitted sufficient medical evidence to establish an 

employment-related diagnosed condition.

On July 26, 2013 Dr. Jason A. Oliviero, a Board-certified orthopedic surgeon, evaluated 

appellant for right shoulder pain beginning January 20, 2012 when he was “reaching upwards 

with his right arm overhead, and sweeping away several mail items. [Appellant] felt a strain in 

his right shoulder at that point and had difficulty lifting his arm overhead.” Dr. Oliviero 

diagnosed rotator cuff tendinitis and possible bicipital tendinitis. He related, “There is a 

time[-]related association between [appellant’s] injury and his development of pain. I think 

therefore the work[-]related injury and his shoulder pain are related.” Dr. Oliviero recommended 

physical therapy and found that appellant could perform his regular employment.

Appellant, through counsel, requested reconsideration on April 1, 2014. 

In a decision dated June 16, 2014, OWCP denied modification of its April 4, 2013 

decision. It noted that the medical evidence and appellant’s Form CA-1 provided differing dates 

of injury and mechanisms of injury. OWCP noted that Dr. Oliviero described an injury on 

January 20, 2012. It further advised that due to factual inconsistencies it was unable to 

determine whether appellant was claiming a traumatic injury or occupational disease.

Counsel, on March 23, 2015, notified OWCP that he had not received a copy of the 

June 16, 2014 decision. On June 19, 2015 he requested reconsideration based on a May 12, 2015 

report from Dr. Nguyen. In the May 12, 2015 report, Dr. Nguyen diagnosed bicipital 

tendinopathy of the right shoulder and thoracic outlet syndrome. He attributed the conditions to 

repetitive movements during appellant’s work for the employing establishment.4 

By decision dated July 16, 2015, OWCP vacated the June 16, 2014 decision as it had not 

been sent to counsel. In another decision dated July 16, 2015, it denied modification of its 

April 4, 2013 decision. OWCP found that the medical evidence was insufficient to show that 

appellant sustained a right shoulder condition due to the accepted January 6, 2012 work incident.

Dr. Oliviero, in a July 6, 2016 report, advised that he provided the date of injury as 

January 20, 2012 in error and that the date of injury was January 6, 2012 “as self reported by 

[appellant] and as reported by Dr. Nguyen’s note.” 

On July 14, 2016 appellant, through counsel, requested reconsideration. 

OWCP, in a December 7, 2016 decision, denied modification of its July 16, 2015 

decision. It found that the medical evidence remained insufficient to show that appellant 

experienced a right shoulder condition as a result of work activities on January 6, 2012.

 

4 Dr. Nguyen, on March 28, 2014, also submitted a report identical to his March 22, 2013 opinion. 
5

On appeal counsel contends that appellant’s physician corrected the date of injury, the 

stated reason for the denial by OWCP.

LEGAL PRECEDENT

An employee seeking benefits under FECA5has the burden of proof to establish the 

essential elements of his 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

To determine whether an employee sustained a traumatic injury in the performance of 

duty, OWCP must determine whether fact of injury is established. First, an employee has the 

burden of proof to demonstrate the occurrence of an injury at the time, place, and in the manner 

alleged, by a preponderance of the reliable, probative, and substantial evidence.8 Second, the 

employee must submit sufficient evidence, generally only in the form of medical evidence, to 

establish a causal relationship between the employment incident and the alleged disability and/or 

condition for which compensation is claimed.9 An employee may establish that the employment 

incident occurred as alleged, but fail to show that his or her disability and/or condition relates to 

the employment incident.10

Causal relationship is a medical issue, and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.11 The opinion of the 

physician must be based on a complete factual and medical background of the claimant,12 must 

be one of reasonable medical certainty13 explaining the nature of the relationship between the 

diagnosed condition and the specific employment factors identified by the claimant.14

 

5

Supra note 2. 

6 Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

7

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

8 David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

9 Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

10 Id.

11 John J. Montoya, 54 ECAB 306 (2003).

12 Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, supra note 9. 

13 Supra note 11.

14 Judy C. Rogers, 54 ECAB 693 (2003).
6

ANALYSIS

Appellant filed a traumatic injury claim (Form CA-1) alleging that he sustained an injury 

on January 6, 2012 taking down mail from the top row of a machine. In a March 21, 2012 

statement, he advised that he experienced a right shoulder injury as the result of performing 

repetitive work activities for extended periods of time during the course of a work shift. A 

traumatic injury is defined as a “condition of the body caused by a specific event or incident, or 

series of events or incidents, within a single workday or shift.”

15

 An occupational disease is 

defined as a condition produced by the work environment over a period longer than a single 

workday or shift.”

16

 OWCP determined in its July 16, 2014 decision that appellant had not 

submitted sufficient evidence to demonstrate whether he was claiming a traumatic injury or 

occupational disease due to inconsistencies. However, it subsequently denied his claim for a 

traumatic right shoulder injury as the medical evidence was insufficient to establish a diagnosed 

condition due to accepted work activity of sweeping mail on January 6, 2012. 

The Board finds that the medical evidence is insufficient to establish an employmentrelated right shoulder injury on January 6, 2012. On January 20, 2012 Dr. Kim discussed 

appellant’s complaints of shoulder pain beginning over the last week due to repetitive work and 

worsening back pain. He diagnosed lumbar strain, possible trochanteric bursitis, and sacroiliac 

dysfunction. Dr. Kim did not provide a history of the January 6, 2012 work incident or diagnose 

a shoulder condition. Without a relevant diagnosis supported by medical rationale, the report is 

of little probative value.17

In reports dated January 20 and 26, 2012, Dr. Nguyen noted appellant’s complaints of 

right shoulder and shoulder blade pain, low back pain, and right hip burning. He diagnosed 

lumbar strain, trochanteric bursitis, and sciatica. Dr. Nguyen also failed to provide a history of 

the January 6, 2012 work incident or a right shoulder diagnosis. A physician must provide a 

narrative description of the employment incident and a reasoned opinion on whether the 

employment incident described caused or contributed to appellant’s diagnosed medical 

condition.18 Dr. Nguyen, on April 2, 2012, evaluated appellant for right shoulder pain that began 

after repetitive work duties without a specific shoulder injury. He diagnosed shoulder tendinitis 

and possible subacromial bursitis and found that the diagnosed conditions “could have been 

caused” by repetitive employment duties. Dr. Nguyen provided a history of appellant 

experiencing shoulder pain over time rather than due to an injury on January 6, 2012. 

Additionally, his opinion that work duties could have caused shoulder tendinitis and possible 

bursitis is speculative in nature and thus of diminished probative value.19 Other reports from

 

15 20 C.F.R. § 10.5(ee). 

16 Id. at § 10.5(q).

17 See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease 

was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).

18 See supra note 11.

19 Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need 

not be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be 

expressed in terms of a reasonable degree of medical certainty).
7

Dr. Nguyen, such as his June 15, 2012, March 22, 2013, and May 12, 2015 reports, attributed 

appellant’s condition to repetitive work duties. He did not relate a diagnosed condition to the 

January 6, 2012 work incident. Therefore, Dr. Nguyen’s opinion is of limited probative value 

and insufficient to meet appellant’s burden of proof.20

Dr. Scheffer, on August 16, 2012, evaluated appellant for right shoulder pain for the past 

eight months that began after he performed repetitive work at the employing establishment. He 

diagnosed shoulder bursitis. On August 30, 2012 after reviewing the results of an MRI scan,

Dr. Scheffer diagnosed rotator cuff tendinitis and advised that the condition was not related to 

appellant’s employment due to the short time that he had been in his position. As he found that 

appellant’s condition was not work related, it does not support that he sustained the claimed 

traumatic employment injury.

On July 26, 2013 Dr. Oliviero related that appellant experienced pain in his right shoulder 

on January 20, 2012 sweeping mail with his arm over his head. He diagnosed rotator cuff 

tendinitis and possible bicipital tendinitis. Dr. Oliviero determined that the injury and shoulder 

pain were related due to the “time[-]related association.” On July 6, 2016 he indicated that the 

date of injury was January 6, 2012 rather than January 20, 2012. The Board has held, however, 

that the mere fact that a disease or condition manifests itself during a period of employment does 

not raise an inference of causal relationship between the condition and the employment.21 

Further, a medical opinion that a condition is causally related to an employment injury because 

the employee was asymptomatic before the injury, but symptomatic after it is insufficient, 

without supporting rationale, to establish causal relationship.22 Dr. Oliviero did not explain how 

work duties on January 6, 2012 resulted in a diagnosed condition and thus his opinion is of little 

probative value.23

On appeal counsel contends that appellant’s physician provided the correct date of injury. 

As noted, however, appellant did not meet his burden of proof to submit rationalized medical 

evidence supporting a diagnosed condition due to the January 6, 2012 work incident. Therefore, 

he has not established a right shoulder injury causally related to the accepted employment 

incident.24

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.

 

20 See generally, A.R., Docket No. 16-1416 (issued April 10, 2017). See also J.C., Docket No. 16-1496 (issued 

May 3, 2017) (the Board has held that medical opinions based on an inaccurate or incomplete history are of 

diminished probative value).

21 D.E., 58 ECAB 448 (2007); Roy L. Humphrey, 57 ECAB 238 (2005).

22 Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

23 See M.B., Docket No. 16-0878 (issued December 12, 2016).

24 See D.S., Docket No. 16-1801 (issued May 8, 2017).
8

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a right 

shoulder injury causally related to the accepted January 6, 2012 employment incident. 

ORDER

IT IS HEREBY ORDERED THAT the December 7, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 4, 2017

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