United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.K., Appellant 

and 

DEPARTMENT OF THE ARMY, 

LETTERKENNY ARMY DEPOT, 

Chambersburg, PA, Employer 

__________________________________________ 

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Docket No. 16-1323 

Issued: January 24, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 13, 2016 appellant, through counsel, filed a timely appeal from the April 21, 

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 has established a right shoulder injury causally related to 

the accepted March 23, 2015 employment incident. 

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. 

FACTUAL HISTORY 

On March 23, 2015 appellant, then a 35-year-old welder, filed a traumatic injury claim 

(Form CA-1) alleging that on that date, while grinding off an old lug from a mine-resistant 

ambush protected (MRAP) overhead, “the grinder grabbed hold of a boss” and jerked out of 

appellant’s hands. He noted that he felt instant pain and felt a pop in his right shoulder. 

Appellant stopped work on the date of the injury and returned to light duty on May 11, 2015. 

Appellant was seen on March 23, 2015 at the employing establishment’s health clinic. 

Dr. Gary K. Luttermoser, a Board-certified family practitioner, noted that appellant alleged an 

injury at work. He described appellant’s account of the injury and indicated that due to 

appellant’s significant right shoulder pain with movement of right arm, he referred appellant to a 

hospital for evaluation and treatment. 

Appellant also submitted medical records from a March 23, 2015 visit to Chambersburg 

Hospital, where appellant was seen by Dr. Peter Viriassov, an osteopath Board-certified in 

emergency medicine. Dr. Viriassov noted the history of injury, and indicated that the diagnostic 

test results of appellant’s right shoulder demonstrated no fracture or dislocation. He listed his 

diagnoses as acute right shoulder injury and concern for rotator cuff tear. Dr. Viriassov ordered 

a follow-up appointment in one to two days for revaluation with Occupational Health Associates. 

He also completed a form indicating that appellant had an acute right shoulder injury and was not 

to return to work until he was medically evaluated again. The hospital record also includes a 

diagnostic imaging report, signed by Dr. Stephen T. Thuahnai, a Board-certified radiologist, 

indicating no fracture of the right shoulder. Appellant also submitted discharge instruction forms 

from Chambersburg Hospital discussing shoulder sprains and rotator cuff injuries. 

In a March 25, 2015 report, Dr. Anthony Bruno, a Board-certified orthopedic surgeon, 

noted appellant’s history of injury and physical examination findings. He diagnosed pain in the 

shoulder joint region. Dr. Bruno provided appellant instructions regarding exercise to increase 

the range of motion in his elbow, fingers and wrists. He also gave appellant a sling, and 

prescribed medication. 

In reviewing an April 3, 2015 magnetic resonance imaging (MRI) scan, Dr. Henry Ching, 

a Board-certified radiologist, listed impressions of: (1) moderate degenerative joint disease right 

glenohumeral joint; (2) tears of the bases of the anterior and posterior labrum, moderate 

degenerative change of the anterior and posterior labrum, small tear through the superior labrum; 

(3) moderate tendinopathy of the supraspinatus, infraspinatus, and subscapularis tendons; and 

(4) moderate degenerative joint disease of the right acromioclavicular joint. In a diagnostic 

imaging report of the same date, Dr. Ching noted that appellant’s right shoulder joint capsule 

volume was somewhat small in overall size, and also noted degenerative joint disease of the right 
3

glenohumeral joint without evidence of extravasation of contrast into the subacromial or 

subdeltoid spaces. 

In an April 6, 2015 report, Dr. Albert Tom, an orthopedic surgeon, noted that appellant 

complained of shoulder pain, and he diagnosed early glenohumeral arthritis and degenerative 

labral tears. He related that appellant had an injury to the right shoulder on March 23, 2015 at 

the employing establishment. Dr. Tom continued to treat appellant for osteoarthrosis of the 

shoulder region and pain in the joint shoulder. 

Dr. Roger J. Robertson, a Board-certified orthopedic surgeon, reported on May 6, 2015, 

that appellant would be sent for a second opinion as he was very resistant to treatment, had not 

seen much improvement, and is having quite a bit of discomfort. 

In a May 13, 2015 letter, OWCP noted that a limited amount of medical bills had been 

paid, but that the merits of his claim had not been considered. However, as the medical bills had 

now exceeded $1,500.00, appellant was required to submit further specified information to 

support his claim. Appellant was afforded 30 days to submit additional medical evidence. 

Appellant submitted physical therapy notes from Fulton County Medical Center for four 

sessions from April 24 through May 21, 2015. 

In a May 28, 2015 outpatient note from Penn State Hershey Medical Center, Dr. HyunMin Kim, an orthopedic surgeon, noted appellant’s history of injury on March 23, 2015. He 

assessed appellant with right shoulder osteoarthritis with acute symptoms which developed after 

a work injury. Dr. Donald J. Flemming, a Board-certified radiologist, conducted an x-ray on that 

date which evinced moderate glenohumeral osteoarthritis. 

By decision dated June 12, 2015, OWCP denied appellant’s claim as he had not 

established an injury causally related to the accepted employment event. 

In a June 18, 2015 report, Dr. Gregory R. Jaques, a family practitioner, examined 

appellant for the employing establishment. He noted that appellant had an accident on March 23, 

2015 while working as a welder, that he reviewed the records with appellant including the work 

release to full duty on June 29, 2015, and encouraged appellant to continue his home exercise 

program. 

On June 30, 2015 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. 

In a July 29, 2015 report, Dr. Tom noted that appellant’s MRI scan of April 3, 2015 

showed evidence of degenerative arthritis, but no evidence of rotator cuff tear or tendinopathy of 

the rotator cuff. He discussed various treatment options with appellant, noting the complications 

caused by his young age. Dr. Tom noted that appellant was to continue to work full duty, 

prescribed him Emloxicam, and recommended follow-up at Hershey Medical Center. 

At a hearing held on February 11, 2015, counsel argued that the emergency department 

report from March 23, 2015 met the criteria for a rationalized report of causal relationship. He 

noted that the history of the injury in the report from the emergency department was complete, 
4

and that as it noted a rotator cuff injury, the necessary elements to establish a claim were in the 

report. Counsel argued that emergency room physicians do not write complete reports, that it 

was unrealistic to expect a complete report from an emergency room physician, and that this is 

not the law. Appellant described how the injury occurred, and noted that his supervisor told him 

to go to the hospital. 

By decision dated April 21, 2016, the hearing representative affirmed the June 12, 2015 

decision. The hearing representative found that Dr. Kim was the only physician of record who 

addressed the cause of appellant’s right shoulder condition; however, as his opinion was 

speculative it was of little probative value. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA3

 has the burden of proof to establish the 

essential elements of his or her claim including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA, that an injury was caused 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.4

 These are the essential elements of each and every 

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an 

occupational disease.5

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it must first be determined whether fact of injury has been established. 

First, the employee must submit sufficient evidence to establish that he actually experienced the 

employment incident at the time, place, and in the manner alleged.6 Second, the employee must 

submit sufficient evidence, generally only in the form of medical evidence, to establish that the 

employment incident caused a personal injury.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 identified by the employee.8

 The weight of the 

medical evidence is determined by its reliability, its probative value, its convincing quality, the 

 3 Id. 

4 Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989). 

5 Victor J. Woodhams, 41 ECAB 345 (1989). 

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

7 Id. 

8 I.J., 59 ECAB 408 (2008); supra note 5. 
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care of analysis manifested, and the medical rationale expressed in support of the physician’s 

opinion.9

ANALYSIS 

The Board finds that the medical evidence of record fails to establish a causal relationship 

between the accepted March 23, 2015 employment incident and a resulting medical diagnosis. 

As noted by OWCP’s hearing representative, Dr. Kim was the only physician of record 

who offered an opinion regarding causal relationship. He noted that appellant had a work injury 

on March 23, 2015 and noted that appellant’s right shoulder osteoarthritis with acute symptoms 

developed after the employment injury. However, Dr. Kim did not explain the 

pathophysiological process by which appellant’s employment incident would have caused or 

aggravated his condition.10 As such his opinion is of limited probative value. 

Dr. Luttermoser examined appellant immediately after the March 23, 2015 employment 

incident for the employing establishment for right shoulder pain, but did not treat appellant nor 

did he offer a definitive diagnosis or opinion on causal relationship. Instead he referred appellant 

to the emergency room for treatment and consultation for significant right shoulder pain. 

Dr. Viriassov examined appellant on the date of injury at the hospital and noted an acute right 

shoulder injury and his concern for a rotator cuff tear. He ordered follow-up care. Dr. Viriassov 

did not reach any conclusion with regard to a definitive diagnosis or causal relationship. These 

two physicians offered no opinion regarding the cause of appellant’s right shoulder condition, 

therefore, these reports are insufficient to meet appellant’s burden of proof. Medical evidence 

submitted to support a claim for compensation should reflect a correct history and should offer a 

medically-sound explanation of how the work incident caused a diagnosed condition.11

Similarly the reports from Drs. Bruno, Robertson, Jacques, and Tom offered no opinion 

regarding causal relationship. In his March 25, 2015 report, Dr. Bruno noted appellant’s history 

of injury, physical examination findings, and diagnosed right shoulder pain. Dr. Robertson in his 

May 6, 2015 report related that appellant would be sent for second opinion evaluation. 

Dr. Jacques’ report of June 18, 2015 for the employing establishment cleared appellant for fullduty work but did not address causal relation. Likewise, Dr. Tom provided reports dated July 29, 

2015, wherein he discussed appellant’s degenerative arthritis, but failed to provide any 

explanation linking this condition to the March 23, 2015 employment incident. Lacking 

rationalized medical explanation as to how the accepted employment incident caused the 

diagnosed condition, these reports are also of limited probative value.12

Drs. Thuahnai Ching and Fleming’s diagnostic study reports are of limited probative 

value as they also do not address whether the employment incident of March 23, 2015 caused the 

 9 James Mack, 43 ECAB 321 (1991). 

10 T.O., Docket No. 16-9423 (issued June 20, 2016). 

11 See B.L., Docket No. 16-1205 (issued November 23, 2016). 

12 Id. 
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diagnosed conditions. Medical evidence which 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

Neither the fact that a disease or condition manifests 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.14 An award of compensation may not be 

based on surmise, conjecture, or speculation.15 As appellant did not establish that his medical 

condition was causally related to the accepted employment incident, he has not met his burden of 

proof. 

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 a right shoulder injury causally related 

to the accepted March 23, 2015 employment incident. 

 13 G.M., Docket No. 14-2057 (issued May 12, 2015); C.B., Docket No. 09-2027 (issued May 12, 2010). 

14 Dennis M. Mascarenas, 49 ECAB 215 (1997). 

15 D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965). 
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ORDER 

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

Compensation Programs dated April 21, 2016 is affirmed. 

Issued: January 24, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board