United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Los Angeles, CA, Employer

__________________________________________

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Docket No. 17-1140

Issued: October 18, 2017

Appearances: Case Submitted on the Record

Sally F. LaMacchia, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 2, 2017 appellant, through counsel, filed a timely appeal from a March 30, 2017 

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 established an occupational disease causally related to the 

factors of her federal employment.

 

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

FACTUAL HISTORY

On July 1, 2015 appellant, then a 53-year-old mail carrier, filed an occupational disease 

claim, (Form CA-2) alleging that she sustained an aggravated left shoulder labrum tear and 

painful callus-like growth at the base of the left thumb. She noted that at work she was required 

to lift her arm while casing mail, pick up and move mail of various heights and weights, as well 

as push and pull hampers and carts loaded with mail. These activities stressed appellant’s left 

upper extremity. In an accompanying statement, she explained that she started having symptoms 

in her left shoulder beginning in 2006. Appellant stated that she first noted symptoms in her left 

hand in 2006 which developed over the years and were now interfering with her ability to grip or 

hold firmly without pain. She noted that she had undergone surgery on February 28, 2008 for a 

nearly complete tear of the right shoulder’s rotator cuff, but that the positive effects of the 

surgery was reversed when she underwent rehabilitation therapy. Appellant noted that she used 

her left arm and hand to compensate for her right extremity.

In support of her claim, appellant submitted an April 19, 2007 report wherein

Dr. Joseph M. Page, a Board-certified orthopedic surgeon, diagnosed a right rotator cuff tear 

involving supraspinatus and infraspinatus tendons with retraction. Dr. Page also noted that 

appellant had some weakness of her left deltoid muscle secondary to pain and diminished range 

of her shoulder and a positive Tinel’s sign in both wrists consistent with carpal tunnel syndrome. 

He noted tenderness of her lower lumbar spine and some clicking in her left knee. Dr. Page

indicated that appellant believed that her conditions were employment related. He opined that it 

was certainly possible that appellant developed a right rotator cuff tear by attrition of impinging 

the humeral against the acromion while lifting heavy packs of mail over an eight-year period of

time with her dominant arm.

By letter dated July 9, 2015, OWCP informed appellant that further medical information 

was needed to support her claim, and afforded appellant 30 days to submit this information.

In a July 24, 2015 progress report, Dr. Clint Soppe, a Board-certified orthopedic surgeon, 

diagnosed left shoulder rotator cuff tear, and recommended a magnetic resonance imaging (MRI)

scan.

In a July 28, 2015 MRI scan report of the left shoulder, Dr. Omid J. Jafari, a Boardcertified radiologist, found moderate tendinosis of the supraspinatus and infraspinatus tendon, 

chronic articular surface tear of the subscapularis tendon and associated medial subluxation of 

the biceps tendon with the bicipital pulley system with moderate tendinosis, type III acromion 

may be suggestive of internal impingement, mild hypertrophic arthropathy of the 

acromioclaviclar joint space, and large amount of subacromial bursal fluid may represent 

bursitis.

Dr. Kenton S. Horacek, a Board-certified orthopedic surgeon, in a July 28, 2015 report, 

noted that appellant reported working as a postal worker and that she had problems with her 

knees and left thumb which she indicated were related to her employment activities. He noted 

that these duties included standing, walking, pushing, pulling, bending, and lifting from floor to 

waist or higher while constantly bearing weights in excess of several tens of pounds. 

Dr. Horacek diagnosed chondromalacia of the patella bilaterally and early medial compartment 
3

arthritis of the knee bilaterally, torn medial meniscus of right knee, and carpometacarpal arthritis 

at the base of the thumb. He noted that appellant believed strongly that it was the abuse of 

repetitive activities that led to the problems in her knees as well as the base of her thumb, but that

at any rate, she is left with a component of arthritis in these areas. Dr. Horacek noted that 

appellant’s knee condition would be treated for arthritis. He also related that he recommended

appellant be seen by a hand surgeon regarding her thumb condition to determine whether it was 

symptomatic enough to warrant more vigorous treatment.

In a July 28, 2015 report, Carolyn Goble, a physician assistant under the supervision of

Dr. M. Ramin Modabber, a Board-certified orthopedic surgeon, diagnosed left thumb 

carpometacarpal osteoarthritis. She noted appellant’s work history, and indicated that basilar 

joint arthritis was often aggravated by repetitive tasks and heavy use of the hands.

By decision dated August 28, 2015, OWCP denied appellant’s claim. It determined that

none of the medical evidence provided a medical explanation as to how appellant’s work factors

caused her claimed left shoulder and left thumb injuries.

On September 28, 2015 appellant requested an oral hearing before an OWCP hearing 

representative. At the hearing held on May 18, 2016, the hearing representative explained to 

counsel that further medical information was necessary to support appellant’s claim, and 

provided appellant 30 days to submit the evidence. No further evidence was received by OWCP 

within the allotted time period.

By decision dated August 1, 2016, the hearing representative affirmed OWCP’s decision 

of August 28, 2015. He noted that the medical evidence was still deficient as it failed to 

establish a causal relationship between the claimed conditions and the factors of appellant’s 

federal employment.

In an August 5, 2016 report, Dr. Horacek noted that he initially saw appellant on 

February 19, 2013 when she related having difficulty walking distances and descending stairs. 

He indicated that in November 2012 appellant experienced right knee pain while descending 

some steps from a mail delivery. Dr. Horacek reviewed appellant’s employment duties as well

as her medical treatment. He discussed appellant’s multiple orthopedic issues, including those 

with her left shoulder and thumb. Dr. Horacek opined that appellant’s employment factors, 

including the use of her arm repetitively in an overhead position, aggravated the left shoulder 

partial thickness tear of the subscapularis, infraspinatus, and supraspinatus tendons, as well 

subluxation of the biceps tendon and bursitis. He noted that repetitive activities overhead tend to 

place demand on the tendons, and therefore aggravated the amount of tendinosis and bursitis 

found on the MRI scan. Dr. Horacek opined that, if appellant had done less overhead use of her 

shoulder, than her employment demanded, she would have less rotator cuff disease. He 

indicated that appellant may require intermittent modalities of physical therapy for her left 

shoulder, along with rare shots of cortisone, oral anti-inflammatories, and possible arthroscopy to 

debride and/or repair her rotator cuff disease. Dr. Horacek opined that the arthritis at the base of 

the left thumb certainly would have been aggravated by repetitive grasping, carrying mail, and 

squeezing between her left thumb and forefinger repetitively. He noted that this was a common 

area to wear out in women, but it would be accentuated by repetitive use and demands of the 

joint. Dr. Horacek suggested surgical intervention to correct the arthritis in appellant’s thumb. 
4

On November 22, 2016 OWCP received appellant’s request for reconsideration. Counsel 

contended that appellant had established that her left shoulder rotator cuff disease and 

carpometacarpal arthritis at the base of her left thumb were causally related to her federal 

employment based on the medical evidence, and contended that the decision of the hearing 

representative should be reversed.

By decision dated March 30, 2017, OWCP denied modification of the prior decisions. It

determined that the evidence was insufficient to modify the August 1, 2016 decision because

Dr. Horacek had not substantiated causal relationship regarding whether a temporary aggravation 

had resolved or whether the aggravation caused a material change in the preexisting/underlying 

condition. OWCP concluded that to establish that an aggravation occurred there must be 

objective evidence of a physiological change in the claimant’s preexisting 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 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 the 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.3 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.4 

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed; (2) a factual 

statement identifying employment factors alleged to have caused or contributed to the presence 

or occurrence of the disease or condition; and (3) medical evidence establishing that the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed, or, stated differently, medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant. 

The medical evidence must include a physician’s rationalized 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, 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 claimant.5

 

3

Joe D. Cameron, 41 ECAB 153 (1989). 

4

See Irene St. John, 50 ECAB 521 (1999).

5

Id.
5

ANALYSIS

Appellant alleged that she sustained an aggravated left shoulder labrum tear and a painful 

callus-like growth on the base of her left thumb as a result of the factors of her federal 

employment as a mail carrier. OWCP denied appellant’s claim as she had not established an 

injury causally related to the accepted factors of her federal employment. 

The Board finds this case is not in posture for decision. Appellant submitted an 

August 5, 2016 report wherein Dr. Horacek provided a thorough review of appellant’s 

employment duties and her medical treatment. Dr. Horacek opined that appellant’s employment 

factors, including her repetitive activities overhead, placed increased demand on her tendons and 

therefore aggravated the amount of tendinosis and bursitis found on the MRI scan. He opined 

that if appellant had less overhead use of her shoulder, as required by her employment, she 

would have less rotator cuff disease. Dr. Horacek also opined that the arthritis at the base of 

appellant’s left thumb would certainly have been aggravated by the repetitive grasping, carrying 

mail, and squeezing between her left thumb and forefinger. 

The Board finds that, although Dr. Horacek’s opinion is insufficiently rationalized to 

meet appellant’s burden of proof on causal relationship, it is of sufficient probative value to 

warrant additional development.6 Dr. Horacek provided a detailed explanation of how the 

physical forces of appellant’s employment caused an injury to her left shoulder and thumb. 

However, OWCP did not undertake further development of the medical record, such as referring 

appellant for a second opinion examination.7

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish 

entitlement to compensation, OWCP shares the responsibility in the development of the evidence 

to see that justice is done.8 This case must be remanded to OWCP for preparation of a statement 

of accepted facts and further development of the medical evidence. Following this and any other 

development deemed necessary, OWCP shall issue a de novo decision in the case. 

CONCLUSION

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

 

6

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 280 (1978).

7

See R.N., Docket No. 17-0497 (issued May 19, 2017). 

8 D.G., Docket No. 15-0702 (issued August 27, 2015).
6

ORDER

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

Compensation Programs dated March 30, 2017 is set aside, and the case is remanded for further 

development consistent with this opinion. 

Issued: October 18, 2017

Washington, DC

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board