United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

St. Louis, MO, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1552 

Issued: July 5, 2017 

Appearances: Case Submitted on the Record

Sean Berry, 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 July 28, 2016 appellant, through counsel, filed a timely appeal from March 31 and 

June 23, 2016 merit decisions 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. 

ISSUE 

The issue is whether appellant met his burden of proof to establish an injury causally 

related to an accepted August 23, 2015 employment incident. 

 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 September 14, 2015 appellant, then a 57-year-old laborer custodian, filed a traumatic 

injury claim (Form CA-1) alleging that on August 23, 2015 he injured his left shoulder while 

moving furniture at work. He stopped work on September 4, 2015. On the back of the claim 

form the employing establishment checked a box marked “No,” indicating that appellant’s injury 

did not occur in the performance of duty because witness statements noted that appellant 

complained about his shoulder before work started. 

In an August 28, 2015 telephone message memorandum, Sarah Brinkmann, a registered 

nurse, indicated that appellant had called because the cortisone injection, which had been 

administered, had not given him significant relief for his shoulder pain. She related that a 

prescription for Valium was sent to appellant’s pharmacy. 

Appellant underwent a left shoulder magnetic resonance imaging (MRI) scan by 

Dr. David Wu, a Board-certified radiologist, who indicated in a September 3, 2015 report that 

appellant had a complete tear in the supraspinatus tendon associated with approximately two 

centimeter (cm) tendon retraction, full-thickness tear involving the anterior half of the distal 

infraspinatus tendon without tendon retraction, and acromioclavicular (AC) joint osteoarthritis 

with undersurface hypertrophy resulting in mild compression on the distal supraspinatus muscle 

belly. 

Dr. Dennis A. Dusek, a Board-certified orthopedic surgeon, provided work status notes 

dated September 3 and 8, 2015, which requested that appellant be excused from work from 

September 2 to 22, 2015. He related that appellant had been under his care for a left shoulder 

condition. Dr. Dusek explained that appellant had a rotator cuff tear and was scheduled for 

surgery on September 22, 2015. He opined that appellant could likely return to work in five to 

six months pending rehabilitation. 

In a September 8, 2015 telephone message memorandum, Meghan Flynn, a certified 

physician assistant, noted that appellant was informed that a left shoulder MRI scan showed a 

full-thickness tear of the supraspinatus with a two cm retraction and a focal full-thickness tear of 

the anterior infraspinatus. She related that appellant worked as a custodian and had significant 

difficulty raising his arm. Ms. Flynn indicated that a work status note was issued to excuse 

appellant from work from September 5, 2015 until surgery on September 22, 2015. 

In an undated, handwritten statement, K.S., appellant’s coworker, reported that every day 

he worked with appellant, appellant complained that his arm, shoulder, or knees hurt. He also 

noted that he never advised appellant to work the furniture dolly alone, but recommended that 

they take turns. 

S.H., appellant’s coworker, also provided a handwritten September 10, 2015 statement, in 

which she explained that when she was training appellant and R.R. on the same assignment, 

appellant did not complain, but when the supervisor assigned appellant a route by himself he 

began to complain about his neck, shoulder, and back pain. Appellant claimed that the mopping 

was too much for him to do. S.H. indicated that appellant had previously worked for MSD, a 

private sewer company, and had sustained a neck injury when he was rear-ended in a company 

truck. 
3

In a September 10, 2015 e-mail, M.B., appellant’s supervisor, controverted appellant’s 

claim. He related that on August 23, 2015 appellant and another coworker were moving 

furniture with a moving dolly. Appellant returned to work the next day and continued to work 

until September 2, 2015 when appellant called his office and left a message that his shoulder was 

hurting. He related that on September 4, 2015 appellant informed him that his doctor informed 

him to not go to work. M.B. reported that on September 7, 2015 appellant informed him of his 

injury. He alleged that, during appellant’s statement, he indicated that he had bursitis in his 

shoulder and was unable to lift his arm. M.B. related that appellant was able to reach into his 

back pocket. He also asserted that K.S. stated that appellant was always complaining about his 

shoulder. M.B. reported that appellant had advised other custodians that he was getting full 

disability benefits from some other entity. He further noted that appellant was terminated from 

the transportation department of the employing establishment around 2010 or 2011 for failure to 

maintain his work schedule and he currently had an Equal Employment Opportunity (EEO) 

Commission case against J.F., the manager of that department, for not rehiring him. 

C.G., a human resource specialist for the employing establishment, also controverted 

appellant’s claim in a September 16, 2015 letter. She alleged that appellant’s disability was not 

caused by a traumatic injury while in the performance of duty and that he had not provided 

sufficient medical evidence to establish a causal relationship between appellant’s diagnosed 

condition and the implicated factors of the injury. C.G. noted that a September 8, 2015 medical 

report demonstrated that appellant was scheduled for surgery on September 22, 2015, which 

indicated that appellant had a preexisting condition. She asserted that appellant fabricated his 

injury in an attempt to be paid for time off work and for surgery at the employing 

establishment’s expense. 

In a September 17, 2015 telephone message memorandum, Nurse Brinkmann related that 

she left a voicemail regarding which medications appellant should discontinue prior to his 

upcoming surgery. 

Dr. Dusek related in a September 22, 2015 telephone message memorandum that 

appellant had called on September 21, 2015 to cancel his surgery. He informed appellant of the 

risk of his tear, which already showed two cm of retraction, progressing into an irreparable tear if 

he postponed the surgery for too long. 

By letter dated September 23, 2015, OWCP advised appellant that the evidence submitted 

was insufficient to establish his claim. It requested that he respond to the attached questionnaire 

in order to substantiate the factual elements of his claim and provide additional medical evidence 

to establish a diagnosed medical condition causally related to the alleged employment incident. 

Appellant was afforded 30 days to submit this evidence. 

On September 30, 2015 appellant filed a claim for wage-loss compensation (Form CA-7) 

for the period beginning August 23, 2015. 

On October 5, 2015 OWCP received appellant’s response to its questionnaire. Appellant 

described that on August 23, 2015 he began his shift at the employing establishment at 2:00 p.m. 

by moving large file cabinets weighing approximately 300 pounds from the second floor of the 

facility to the third floor. He noted that he also moved large wooden tables and metal chairs. 

Appellant explained that at approximately 5:30 p.m. he began to notice a sharp, burning pain in 
4

his left shoulder and neck. He believed that this was a result of lifting and moving the file 

cabinets. Appellant noted that around 7:00 p.m. he informed his coworker, K.S., that his neck 

and shoulder were in pain and he did not think he could lift anymore. He related that he 

continued to work until the conclusion of his shift at 9:00 p.m. Appellant described his 

symptoms as immediate pain and burning in his left shoulder and neck. He indicated that he 

made an appointment with Dr. Dusek when he continued to experience ongoing pain, discomfort, 

and loss of range of motion. Appellant noted that Dr. Dusek scheduled an MRI scan and 

diagnosed him with a torn rotator cuff. He related that he continued to experience significant 

pain, discomfort, and loss of range of motion in his left shoulder. Appellant reported that he did 

not have any similar disabilities or symptoms before the current alleged injury. He explained 

that in March 2015 he was diagnosed with bursitis of the left shoulder and had sustained a 

herniated disc in his cervical spine years ago. Appellant reported that he had no witness 

statements. 

On October 9, 2015 OWCP received an October 1, 2015 letter from counsel. Counsel 

indicated that he was enclosing the complete records of Dr. Dusek. 

Counsel submitted January 21 and March 11, 2015 reports from Dr. Dusek for 

complaints of left shoulder pain. He noted that appellant was currently on disability and had 

been off work for about four years. Dr. Dusek related that appellant injured his shoulder in 1986 

when he worked on a forklift, was treated for left shoulder bursitis in 1997, sustained a ruptured 

disc in his neck from a car accident in 1999, and was treated by Dr. Mark D. Miller, a Boardcertified orthopedic surgeon, for a partial tear of the rotator cuff in 2006. He described that 

appellant had previously cleaned out gutters and rebuilt a bumper on his car. Appellant indicated 

that he threw a tennis ball with his right arm and felt a burning pain across the left shoulder. 

Dr. Dusek reviewed appellant’s history and provided physical examination findings. He reported 

mild-to-moderately positive impingement signs on the left shoulder, but not on the right 

shoulder. Dr. Dusek also noted pain when rotated anteriorly and anterolaterally, but not over the 

acromioclavicular (AC) joints. Appellant had full overhead elevation to both shoulders. 

Dr. Dusek indicated that a left shoulder x-ray examination showed a type 1 acromion on the 

outlet view. He diagnosed left shoulder bursitis. Dr. Dusek recommended a cortisone injection 

for appellant’s bursitis. 

OWCP denied appellant’s claim in a decision dated October 30, 2015. It accepted that 

the August 23, 2015 employment incident occurred as alleged and that appellant sustained a 

diagnosed shoulder condition, but denied his claim because the medical evidence failed to 

establish that his left shoulder condition was causally related to the accepted incident. 

On December 21, 2015 appellant, through counsel, requested reconsideration. He alleged 

that he was enclosing a report from Dr. Jerry R. Meyers, a general surgeon, who provided an 

opinion that the work injury of August 23, 2015 was the prevailing factor in causing appellant to 

sustain a complete tear of the left rotator cuff tear. 

OWCP received a December 13, 2015 report by Dr. Meyers. Dr. Meyers indicated that 

appellant had worked for the employing establishment for three months from June 15 to 

September 3, 2015 as a maintenance custodian. He related that on August 23, 2015 appellant 

was moving heavy file cabinets at work, which weighed up to 300 pounds, from the second to 

the third floor, when he began to notice a sharp, burning pain in his left shoulder and neck. 
5

Dr. Meyers noted that appellant thought he had just pulled a muscle and continued working until 

the next week. He reported that when the pain did not improve, appellant made an appointment 

with Dr. Dusek. Dr. Meyers indicated that a September 3, 2015 left shoulder MRI scan showed 

a complete tear in appellant’s supraspinatus tendon associated with a two cm tendon retraction, a 

focal full-thickness tear involving the anterior half of the distal infraspinatus tendon without 

retraction and AC arthritis. 

Dr. Meyers reviewed Dr. Dusek’s medical reports and appellant’s preexisting left 

shoulder injury. He noted that after Dr. Dusek administered a cortisone injection on March 11, 

2015 appellant reported good resolution of his shoulder symptoms until the August 23, 2015 

employment injury. Dr. Meyers related that appellant currently complained of constant left 

shoulder pain, exacerbated with lifting the arm. Upon physical examination of appellant’s left 

shoulder, he reported anterior joint line tenderness, but no crepitus. Dr. Meyers also noted 

marked loss of active abduction and forward flexion and pain present when reaching the end 

points of his ranges of motion. He further observed marked weakness with abduction and 

forward flexion against resistance. Dr. Meyers diagnosed complete left rotator cuff tear and 

adhesive capsulitis with marked loss of range of shoulder motion in all planes. 

Dr. Meyers reported that, although appellant had a history of left shoulder bursitis and a 

shoulder injury in 2006, he was able to perform all the work duties as a UPS truck driver and a 

construction worker prior to his August 23, 2015 work injury. He also noted that appellant had 

passed a functional capacity evaluation (FCE) and DOT examination prior to his work injury. 

Dr. Meyers related that, after the work injury, appellant experienced persistent pain and marked 

limitation of function involving his left shoulder, such that he was unable to do custodial work. 

He explained that there was no evidence that appellant had a significant preexisting rotator cuff 

injury prior to his August 23, 2015 work injury. Dr. Meyers opined that the August 23, 2015 

work injury was the prevailing factor in causing appellant to sustain a complete tear of the left 

rotator cuff. He indicated that there was no significant preexisting condition causing appellant’s 

symptoms and limitations. Dr. Meyers authorized appellant to work with restrictions. 

By decision dated March 31, 2016, OWCP denied modification of the October 30, 2015 

denial decision. It found that the medical evidence failed to establish that the August 23, 2015 

employment incident caused or contributed to appellant’s left shoulder condition. 

On April 25, 2016 appellant, through counsel, requested reconsideration. He indicated 

that he was enclosing Dr. Meyers’ December 13, 2015 report and an April 15, 2016 addendum 

report. Counsel noted that Dr. Meyers had not altered his opinion on causal relationship in the 

December 13, 2015 report and Dr. Meyers had reviewed all of Dr. Dusek’s medical records. He 

alleged that Dr. Meyers’ report explained how the August 23, 2015 employment incident caused 

appellant to sustain a complete tear of his left rotator cuff and was sufficient to establish 

appellant’s compensation claim. Counsel resubmitted Dr. Meyers’ December 13, 2015 report 

and an April 15, 2016 addendum report. 

In the April 15, 2016 report, Dr. Meyers noted that on November 24, 2015 he had 

examined appellant for a left shoulder injury incurred while at work on August 23, 2015. He 

related that it was his opinion, based upon review of Dr. Dusek’s records, appellant’s history, 

and his examination, that appellant had sustained a “work-related full thickness rotator cuff 

injury of the left shoulder.” Dr. Meyers disagreed with OWCP’s denial based on the suggestion 
6

that he had not reviewed all of Dr. Dusek’s records and outlined where he had discussed them. 

He explained that he had reviewed Dr. Dusek’s reports, but did not have the opportunity to 

review Dr. Miller’s medical records before completing his previous report. Dr. Meyers related 

that he had since reviewed Dr. Miller’s records and noted that Dr. Miller had treated appellant in 

2006 for a July 26, 2006 motor vehicle accident. He reported that a left shoulder MRI scan taken 

one month after the accident showed a near full thickness or full-thickness tear of the mid-rotator 

cuff. Dr. Meyers reviewed the medical treatment that Dr. Miller provided. He noted that 

Dr. Miller assigned five percent permanent impairment of the left shoulder due to partial 

thickness rotator cuff tear, slight loss of range of motion, and slight loss of strength. Dr. Meyers 

reported that “[appellant] had sustained a minimal injury to his shoulder based on the physical 

findings and the rapid response to conservative treatment and the small disability rating.” He 

explained that a review of these records did not alter the opinions expressed about appellant’s 

August 23, 2015 injury in his December 13, 2015 report. Dr. Meyers requested that appellant 

refer to the discussion of causation in his previous report. 

Appellant also submitted a November 5, 2015 work note by Dr. Dusek who related that 

appellant could return to work with restrictions. 

By decision dated June 23, 2016, OWCP denied modification of the March 31, 2016 

OWCP decision. It found that the medical evidence of record did not contain sufficient medical 

rationale explaining how the August 23, 2015 work incident caused or aggravated his left 

shoulder condition. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence4 including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability for work for which he or she claims compensation is causally 

related to that employment injury.5

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

performance of duty, it first must be determined whether “fact of injury” has been established.6

 

There are two components involved in establishing the fact of injury. First, the employee must 

submit sufficient evidence to establish that he or she actually experienced the employment 

incident at the time, place, and in the manner alleged.7 Second, the employee must submit 

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

employment incident caused a personal injury.8 An employee may establish that the 

 3

 5 U.S.C. § 8101 et seq. 

4

 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968). 

5 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

6 S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005). 

7 Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968). 

8

 David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989). 
7

employment incident occurred as alleged, but fail to show that his or her disability or condition 

relates to the employment incident.9

Whether an employee sustained an injury in the performance of duty requires the 

submission of rationalized medical opinion evidence.10 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.11 The weight of the medical evidence is determined by its reliability, its probative 

value, its convincing quality, the care of analysis manifested, and the medical rationale expressed 

in support of the physician’s opinion.12

ANALYSIS 

Appellant alleged that on August 23, 2015 he sustained a left shoulder injury when he 

moved furniture at work. OWCP accepted that the August 23, 2015 incident occurred as alleged 

and that he was diagnosed with a left shoulder condition. However, it denied appellant’s claim 

finding insufficient medical evidence to establish that his diagnosed left shoulder condition was 

causally related to the accepted incident. The Board finds that appellant failed to meet his 

burden of proof to establish an injury on August 23, 2015 causally related to the accepted 

incident. 

Appellant submitted various medical reports from Dr. Meyers. In a December 13, 2015 

report, Dr. Meyers described that on August 23, 2015 appellant was moving heavy file cabinets 

at work and noticed a sharp, burning pain in his left shoulder and neck. He reviewed earlier 

reports by appellant’s previous physician, Dr. Dusek regarding treatment for appellant’s 

preexisting left shoulder injury and noted that, after a cortisone injection on March 11, 2015, his 

left shoulder symptoms subsided. Dr. Meyers reported that appellant complained of constant left 

shoulder pain, which worsened when he lifted his arm, and related that a September 3, 2015 left 

shoulder MRI scan showed a complete tear in appellant’s supraspinatus tendon and a fullthickness tear involving the anterior half of the distal infraspinatus tendon without retraction. He 

conducted an examination of appellant’s left shoulder and noted marked loss and weakness of 

active abduction and forward flexion and pain when reaching the end points of range of motion, 

and marked weakness. Dr. Meyers diagnosed complete left rotator cuff tear and adhesive 

capsulitis with marked loss of range of shoulder motion in all planes. 

Dr. Meyers reported that appellant had a history of left shoulder bursitis and a 2006 

shoulder injury, but there was no evidence of a significant preexisting rotator cuff injury. He 

noted that appellant was able to perform all the duties of a UPS truck driver and construction 

worker prior to the August 23, 2015 work incident. Dr. Meyers opined that the August 23, 2015 

work incident was the prevailing factor in causing appellant to sustain a complete tear of the left 

 9 T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006). 

10 See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005). 

11 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 

12 James Mack, 43 ECAB 321 (1991). 
8

rotator cuff. He indicated that there was no significant preexisting condition causing appellant’s 

symptoms and limitations. In an April 15, 2016 addendum report, Dr. Meyers noted that, after 

reviewing more medical records, his opinion about appellant’s August 23, 2015 injury was not 

altered. 

The Board finds that although Dr. Meyers provided an affirmative opinion which 

supported causal relationship, he failed to offer any rationalized medical explanation to support 

his opinion. Medical evidence that states a conclusion, but does not offer any rationalized 

medical explanation regarding the cause of an employee’s condition is of limited probative value 

on the issue of causal relationship.13 The Board notes that rationalized medical opinion evidence 

is especially needed in this case since appellant has a history of preexisting left shoulder 

conditions. Although Dr. Meyers emphasized that appellant did not have a preexisting rotator 

cuff injury, he failed to provide a reasoned opinion explaining how physiologically the 

August 23, 2015 employment incident caused or contributed to appellant’s current left shoulder 

condition.14 For these reasons, Dr. Meyers’ reports fail to establish appellant’s claim. 

Appellant also submitted a September 3, 2015 left shoulder MRI scan report by Dr. Wu 

who noted a complete tear in the supraspinatus tendon, full thickness tear involving the anterior 

half of the distal infraspinatus tendon, and AC joint osteoarthritis. While Dr. Wu provided 

various diagnoses for appellant’s left shoulder condition, he did not provide any opinion on the 

cause of appellant’s diagnosed conditions. The Board has held that 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.15 Similarly, in work status notes dated September 3 

and 8, 2015, Dr. Dusek related that appellant had been under his care for a left shoulder rotator 

cuff tear, but failed to render an opinion on the cause of appellant’s left shoulder condition. As 

these physicians did not offer an opinion on whether appellant’s left shoulder condition was 

causally related to his employment, these reports are insufficient to establish appellant’s claim.16

The evidence of record also contains telephone memorandum from a registered nurse and 

physician assistant. Evidence from a physician assistant or nurse does not constitute competent 

medical evidence under FECA as neither is considered as a physician as defined under section 

8102(2) of FECA.17

In order to obtain benefits under FECA an employee has the burden of proof to establish 

the essential elements of his or her claim by the weight of the reliable, probative, and substantial 

 13 J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006). 

14 John W. Montoya, 54 ECAB 306 (2003). 

15 C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., supra note 13; A.D., supra note 13. 

16 R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007). 

17 5 U.S.C. § 8101(2) provides that a physician includes, surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. 

V.C., Docket No. 16-0642 (issued April 19, 2016); L.C., Docket No. 16-1717 (issued March 2, 2017) (nurses); 

Allen C. Hundley, 53 ECAB 551, 554 (2002) (physician assistant). David P. Sawchuk, 57 ECAB 316, 320 

n.11 (2006). 
9

evidence.18 Because appellant has failed to provide such evidence demonstrating that his left 

shoulder condition was causally related to the accepted August 23, 2015 employment incident, 

he has failed to meet his burden of proof to establish his claim. 

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 an injury 

causally related to the accepted August 23, 2015 employment incident. 

ORDER 

IT IS HEREBY ORDERED THAT the June 23 and March 31, 2016 merit decisions of 

the Office of Workers’ Compensation Programs are affirmed. 

Issued: July 5, 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 

 18 Supra note 12.