United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.H., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Greensboro, NC, Employer 

__________________________________________ 

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Docket No. 16-0292 

Issued: September 6, 2016 

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 December 2, 2015 appellant filed a timely appeal of a November 9, 2015 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 the case. 

ISSUE 

The issue is whether appellant has met her burden of proof to establish disability for the 

period July 30, 2011 through October 8, 2013 due to her accepted employment injuries. 

FACTUAL HISTORY 

On January 31, 1997 appellant, then a 38-year-old management assistant, injured her left 

shoulder when she leaned back in a chair and the chair fell over backwards onto the floor. She 

 1

 5 U.S.C. § 8101 et seq.
2

turned as she fell striking her left shoulder and arm on the floor. Appellant stopped work on 

January 31, 1997. OWCP accepted her claim for contusion and sprain of the left shoulder. 

Appellant had requested advanced sick leave on December 16, 1996 and had filed for 

disability retirement on January 14, 1997. She based her claim for disability retirement on and 

provided evidence of fibromyalgia, chronic fatigue syndrome, a left ankle injury, a hiatal hernia, 

and irritable bowel syndrome. Appellant also provided evidence of lupus erythematosus. 

Appellant received disability retirement benefits effective March 31, 1997. She claimed 

compensation (Form CA-7) beginning April 14, 1997. 

On May 22, 1997 Dr. Scott Kelley, a Board-certified orthopedic surgeon, noted that 

appellant had prior left shoulder surgery with a nonunion of her coracoid process with a loose 

screw. He opined that the January 31, 1997 fall redislocated her left shoulder tearing her original 

repair. Dr. Kelley indicated that appellant required left shoulder reconstruction and stabilization. 

He found that she was totally disabled due to her condition. OWCP’s medical adviser disagreed 

with this assessment on June 17, 1997. 

By decision dated June 11, 1997, OWCP denied appellant’s request for left shoulder 

surgery as there was no evidence establishing causal relationship between her accepted left 

shoulder injury and her requested surgery to remove pins from that shoulder. 

In a decision dated July 22, 1997, OWCP denied appellant’s claim for the additional 

condition of dislocated left shoulder, authorization of left shoulder surgery, and her claim for 

resulting wage-loss compensation. Appellant requested an oral hearing before an OWCP hearing 

representative on August 18, 1997. She underwent left shoulder surgery on August 29, 1997. 

OWCP’s hearing representative found the case not in posture for a hearing and issued a decision 

on November 17, 1997 and remanded the case for referral to a second opinion physician. 

In a February 18, 1998 report, Dr. Walton W. Curl, a Board-certified orthopedic surgeon 

and second opinion physician, diagnosed recurrent dislocation left shoulder secondary to a fall 

on January 31, 1997 with surgery on August 30, 1997. He provided work restrictions of no 

overhead work, no lifting over 15 pounds overhead, no lifting over 20 pounds with her left arm, 

no repetitive use of her left arm, and no pulling. Dr. Curl opined that appellant could work eight 

hours a day. He noted that she was totally disabled from mid-March 1997 through midDecember 1997. 

On May 1, 1998 OWCP accepted recurrent left shoulder dislocation and the surgical left 

shoulder repair. It determined that appellant was entitled to wage-loss compensation due to total 

disability for the period April 14 through December 15, 1997 at the pay rate of $584.81 per 

week. Appellant elected to receive FECA wage-loss compensation benefits, effective 

April 14, 1997. 

By decision dated November 9, 1998, OWCP granted appellant a schedule award for 46 

percent left arm impairment. The period of the award was from December 16, 1997 through 
3

September 15, 2000. Appellant requested a lump-sum payment of her schedule award expiring 

on September 15, 2000, which resulted in a payment of $46,570.12.2

On February 15, 2000 appellant informed OWCP that she had not received the full 45 

days of continuation of pay (COP). OWCP requested information regarding her COP from the 

employing establishment on February 16, 2000. On August 2, 2000 it denied appellant’s claim 

for additional periods of COP. 

Appellant underwent additional left shoulder arthroscopy with debridement of the 

superior and anterior labrum and shrinkage of the capsule with a Mitek thermal probe on 

July 18, 2000. On November 5, 2002 she underwent additional left shoulder surgery including 

open capsular shift and excision of a loose body. 

On December 1, 2013 OWCP approved appellant’s request for left shoulder fusion 

surgery. Appellant underwent a left shoulder arthrodesis on January 7, 2004 as well as surgical 

removal of two painful screws on July 21, 2004. On March 23, 2005 she underwent surgical 

removal of hardware and open distal clavicle resection. 

On March 19, 2006 appellant alleged that in November 2005, while performing daily 

physical therapy, she felt a sharp pain in her arm, hit herself in the face with a three-pound 

weight, and then fainted. She sought treatment at an emergency room and learned that she had 

broken the dorsal bone in her left arm under the plate used for the fusion. 

Appellant completed a Form EN1032 on May 12, 2006 and indicated that she was 

receiving disability retirement benefits. 

In a letter dated August 28, 2006, appellant alleged that she had developed a 

consequential right shoulder condition as a result of overuse, due to her left shoulder disability. 

Appellant completed a letter on December 3, 2007 alleging that she injured both her left 

shoulder and wrist on January 31, 1997. She described her weight lifting incident in 

November 2005 which resulted in a broken humerus and left hand sprain. On December 14, 

2007 OWCP accepted appellant’s claim for the additional conditions of consequential left 

shoulder proximal humerus fracture and chronic distal radial ulnar joint instability, left wrist. 

In a report dated October 13, 2008, Dr. Gary G. Poehling, a Board-certified orthopedic 

surgeon, reviewed appellant’s history of injury. He diagnosed pain in the left wrist joint. 

Dr. Poehling concluded that appellant had 70 percent impairment of her left arm. He found that 

 2

 Appellant continued to pursue her schedule award claim. On June 19, 2000 OWCP denied her request for a 

disfigurement schedule award. In a February 17, 2006 decision, it granted appellant a schedule award for an 

additional 10 percent left arm impairment. The award ran from November 7, 2005 to June 13, 2006. On July 12, 

2006 a hearing representative affirmed the February 17, 2006 decision. On January 17, 2007 OWCP denied 

appellant’s claim for an additional schedule award. On January 30, 2008 it declined to reopen her schedule award. 

On February 18, 2009 OWCP declined to reopen appellant’s claim as her request for reconsideration was untimely 

and failed to establish clear evidence of error. Appellant appealed the February 18, 2009 OWCP decision to the 

Board. In a May 13, 2010 decision, the Board found that she was entitled to request an additional schedule award 

based on new medical evidence and remanded the case for OWCP to consider her permanent impairment. C.H., 

Docket No. 09-1832 (issued May 13, 2010). On August 27, 2010 OWCP granted appellant a schedule award for an 

additional one percent impairment of her left arm. The award ran from July 22 to August 12, 2010. 
4

she was not able to use her left arm and that attempts at working were futile. Dr. Poehling noted 

that appellant could not eat with her left hand, could not get her hand to her face, and could not 

brush her hair with her left hand. He determined that she would not be able to compete in the 

workplace. 

In a report dated July 24, 2009, Dr. Poehling diagnosed tear of the scapholunate ligament 

and partial tear of the scapholunate ligament and tear of the triangular fibrocartilage peripheral. 

He recommended surgery. On November 10, 2009 Dr. Poehling performed an arthroscopy of 

the wrist with repair of the peripheral triangular fibrocartilage including debridement of the 

central triangular fibrocartilage tear and partial ulnar triquentral ligament tear. 

The record indicates that in October 2010 appellant was working part time as a contractor 

for accounting. 

In a report dated June 6, 2011, Dr. Poehling diagnosed pain in left wrist joint, chronic 

pain syndrome, triangular fibrocartilage complex tear left wrist, and ulnar neuropathy. At this 

time appellant was working as a part-time bookkeeper. The record indicates that she continued 

working part time as a bookkeeper through April 16, 2012. 

On May 17, 2013 appellant requested to change the election of her benefits. She stated 

that she was unable to engage in any work due to her injury. Appellant noted that she worked 

part time from June 2008 through June 2011 for 16 hours a week as a contract bookkeeper. She 

alleged that she had to quit this position due to severe chronic pain in her left shoulder and wrist. 

Appellant requested FECA benefits rather than disability retirement benefits. 

Dr. Michael T. Freehill, a Board-certified orthopedic surgeon, completed a note on 

May 17, 2013 and described appellant’s history of injury. He found that appellant was currently 

disabled due to her left shoulder and noted that she did not believe that she could return to work. 

Dr. Freehill indicated that she believed that she was becoming more depressed due to her 

shoulder limitations. He also described appellant’s low back pain, which she attributed to 

physical therapy as well as a sore cervical spine and trapezial-type pain bilaterally. Dr. Freehill 

noted that appellant’s trapezial pain could be secondary to her left shoulder fusion with the 

resulting abnormal joint. He also hypothesized that her pain could be cervical in etiology 

perhaps secondary to her shoulder fusion. 

In a letter dated August 21, 2013, OWCP requested that Dr. Freehill provide an opinion 

regarding appellant’s capacity to work. 

Dr. Poehling partially completed a work capacity evaluation (OWCP-5) on September 9, 

2013 and opined that appellant was not capable of performing work as she had a fused shoulder. 

He provided restrictions on standing, reaching, twisting, bending, stooping, repetitive 

movements of the wrists, pushing, pulling, lifting, and climbing. Dr. Poehling did not indicate 

the extent of these restrictions. 

Appellant provided a claim for compensation (Form CA-7) dated September 10, 2013 

requesting wage-loss compensation from February 1, 1997 through September 10, 2013. She 

indicated that she worked as a bookkeeper from June 1, 2008 through June 30, 2011. Appellant 

filed a second Form CA-7 on October 8, 2013 and requested wage-loss compensation from 

February 1, 1997 through “current.” She again acknowledged her work as a bookkeeper. 
5

In a letters dated October 24 and December 4, 2013, OWCP requested that appellant 

provide medical evidence establishing disability for work during the entire period claimed. It 

afforded her 30 days to reply. 

In a note dated January 6, 2014, Dr. Poehling opined that appellant had sustained a 

scapular muscle strain as a result of her left shoulder fusion. He prescribed physical therapy to 

control her symptoms. Dr. Poehling further opined that appellant was totally disabled for any 

work. 

In a decision dated January 31, 2014, OWCP denied appellant’s claim for disability 

beginning February 1, 1997. 

On June 9 and July 21 2014 Dr. Poehling recommended that appellant undergo additional 

left wrist surgery to repair a triangular fibrocartilage complex tear diagnosed via her March 7, 

2014 magnetic resonance imaging (MRI) scan. OWCP requested that she provide additional 

evidence in support of her claim for a recurrence of a medical condition in a letter dated 

August 12, 2014. It authorized this surgery on September 22, 2014. Dr. Poehling performed a 

left wrist arthroscopy with debridement of the triangular fibrocartilage complex and the 

ulnotriquetral ligament on September 26, 2014. 

Appellant, through counsel, requested reconsideration of the January 31, 2014 decision 

through a letter dated January 22, 2015. Counsel noted that appellant worked as a bookkeeper 

through July 29, 2011. He modified her request for wage-loss compensation to the period from 

July 30, 2011 to the present. In support of the request, appellant submitted a January 16, 2015 

report from Dr. Poehling in which he opined that she resigned as a bookkeeper in 2011 due to 

chronic pain, fatigue, and lack of ability to concentrate. Dr. Poehling described her multiple left 

shoulder surgeries, significant left shoulder atrophy, and overuse of her right arm. He opined 

that appellant’s left arm was functionally useless and that her right arm was painful and weak. 

Dr. Poehling further noted that she was unable to sleep without medication which affected 

concentration and attention. He listed appellant’s nonemployment-related conditions including 

fibromyalgia, anxiety, depression, chronic fatigue syndrome, and sciatica. Dr. Poehling 

concluded, “In my professional opinion, as a result of a combination of all these medical 

problems she is totally disabled.” 

Dr. James Beekman, a Board-certified rheumatologist, completed a report on January 9, 

2015, and noted that appellant was diagnosed with fibromyalgia prior to her 1997 employment 

injury. He opined that this condition was aggravated by her shoulder injury as she was unable to 

exercise to alleviate her symptoms due to her accepted shoulder condition. Dr. Beekman 

concluded that appellant was unable to work due to her fibromyalgia and her shoulder pain. He 

found that she was totally disabled since 2011. 

Appellant submitted a statement describing her employment from 2008 through 2011 

working 16 hours a week as a bookkeeper. She asserted that in 2011 she had to resign due to 

pain in her wrist, shoulder, back, and neck. Appellant described her limitations in activities of 

daily living, noting that she could only use her right hand. She alleged that she did not sleep well 

and woke several times a night when she rolled on her left arm due to resulting pain. Appellant 

asserted that pain and fatigue made it difficult for her to concentrate. She attributed her 

diagnosed conditions of fibromyalgia, anxiety, depression, and chronic fatigue syndrome as well 

as her right shoulder injury to her original injury. 
6

By decision dated June 5, 2015, OWCP denied modification of the January 31, 2014 

decision finding that appellant had not submitted rationalized medical evidence to establish that 

she was totally disabled from 2011 due to her accepted injuries. 

Appellant requested reconsideration by letter dated July 23, 2015, and received by 

OWCP on August 5, 2015. She noted dismissing her counsel and explained that she disagreed 

with his request to expand her accepted conditions. Appellant noted that, while she believed that 

her fibromyalgia, anxiety, and depression were aggravated by her accepted conditions, these 

were preexisting conditions and not initially work related. She asserted that her initial request 

for disability retirement was based on her diagnosis of fibromyalgia. Appellant then described 

her employment incident and medical treatment. She returned to part-time work in 2008 and 

resigned in 2011. Appellant contended, “I wish to emphasize that the sole reason for resigning 

from this position was due to pain in my left shoulder area, including the neck and wrist pain. 

All of which resulted from my work-related injuries.” She analyzed Dr. Freehill’s May 17, 2013 

note. Appellant requested wage-loss compensation from July 30, 2011 to the present. She 

alleged that all of her disabling problems from July 30, 2011 were directly as a result of her work 

injury as since 2007 she had maintained the same medicine and dosage for fibromyalgia. 

Appellant continued to submit physical therapy notes. She also resubmitted a note dated 

May 17, 2013 from Dr. Freehill in which he opined that she was currently disabled due to her left 

shoulder. 

Dr. Beekman completed a note on July 1, 2015 and reported that prior to the left shoulder 

fusion, appellant had reported symptomatic relief of fibromyalgia with exercise. He noted that 

following the fusion, her shoulder muscles atrophied and her fibromyalgia pain became worse in 

her upper body due to her inability to exercise. These changes affected her sleep and added to 

her depression. Dr. Beekman concluded that appellant became totally disabled in 2011 due to 

pain in her shoulder, wrist, and the return of fibromyalgia pain. He opined, “[Appellant’s] has 

been totally disabled since that time secondary to her injuries and aggravated fibromyalgia.” 

By decision dated November 9, 2015, OWCP denied modification of its prior decision 

finding that appellant had not submitted rationalized medical evidence establishing that her work 

stoppage was due to her accepted employment injuries. 

LEGAL PRECEDENT 

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

essential elements of his or her claim, including that any disability or specific condition for 

which compensation is claimed is causally related to the employment injury.3 The term 

disability is defined as the incapacity because of an employment injury to earn the wages the 

employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of 

wage-earning capacity.4

 

 3 G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 

4

 20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury, but no 

loss of wage-earning capacity). 
7

Whether a particular injury causes an employee to be disabled for employment and the 

duration of that disability are medical issues which must be proved by a preponderance of the 

reliable, probative and substantial medical evidence.5

 Findings on examination are generally 

needed to support a physician’s opinion that an employee is disabled for work. When a 

physician’s statements regarding an employee’s ability to work consist only of repetition of the 

employee’s complaints that she hurts too much to work, without objective findings of disability 

being shown, the physician has not presented a medical opinion on the issue of disability or a 

basis for payment of compensation.6

 The Board will not require OWCP to pay compensation for 

disability in the absence of any medical evidence directly addressing the specific dates of 

disability for which compensation is claimed. To do so would essentially allow employees to 

self-certify their disability and entitlement to compensation.7

 

Causal relationship is a medical issue and the medical evidence required to establish 

causal relationship is rationalized medical evidence.8

 Rationalized medical evidence is medical 

evidence which includes a physician’s detailed medical 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.9

 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.10

ANALYSIS 

The Board finds that appellant has not submitted sufficient medical opinion evidence to 

establish that she was totally disabled from July 30, 2011 through October 8, 2013 due to her 

accepted employment injuries. 

OWCP accepted appellant’s January 31, 1997 employment injury for a series of upper 

extremity conditions. These conditions included contusion and sprain of the left shoulder, 

recurrent left shoulder dislocation, left shoulder fusion, repeated left shoulder surgeries including 

open distal clavicle resection and consequential left shoulder proximal humerus fracture. 

Appellant also sustained consequential chronic distal radial ulnar joint instability, left wrist, as 

well as left wrist arthroscopy with debridement of the triangular fibrocartilage complex and the 

ulnotriquetral ligament. 

 5 See Fereidoon Kharabi, 52 ECAB 291 (2001). 

6 Id.

7 Id. 

8 Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

9 Leslie C. Moore, 52 ECAB 132 (2000). 

10 Dennis M. Mascarenas, 49 ECAB 215 (1997). 
8

The Board finds that there is no contemporaneous medical evidence addressing 

appellant’s claim of total disability beginning in June 2011. Dr. Freehill examined her on 

May 17, 2013 and found that she was then disabled due to her shoulder. He further noted that 

appellant did not believe that she could return to work and that she believed that she was 

becoming more depressed due to her shoulder limitations. As noted above, when a physician’s 

statements regarding an employee’s ability to work consist only of repetition of the employee’s 

complaints that she hurts too much to work, without objective findings of disability being shown, 

the physician has not presented a medical opinion on the issue of disability or a basis for 

payment of compensation.11 Dr. Freehill did not explain the basis for his determination of total 

disability and instead relied on appellant’s opinion that she could not work due to her accepted 

employment injuries. 

Beginning in October 13, 2008, Dr. Poehling, found that appellant was unable to use her 

left upper extremity and that attempts at working were futile. He determined that she would not 

be able to compete in the workplace. This report predates appellant’s claimed period of 

disability in June 2011. Furthermore, at the time Dr. Poehling reached his 2008 conclusions 

regarding her disability for work, she was in fact working part time as a bookkeeper. 

On September 9, 2013 Dr. Poehling opined that appellant was incapable of performing 

work as she had a fused shoulder. In a note dated January 6, 2014, he concluded that she was 

totally disabled from any work. On January 16, 2015 Dr. Poehling reported that appellant 

resigned as a bookkeeper in 2011 due to chronic pain, fatigue, and lack of ability to concentrate. 

He again opined, as he had in 2008, that her left arm was functionally useless and that her right 

arm was painful and weak. Dr. Poehling listed appellant’s nonemployment-related conditions 

including fibromyalgia, anxiety, depression, chronic fatigue syndrome, and sciatica. He 

concluded, “In my professional opinion, as a result of a combination of all these medical 

problems she is totally disabled.” 

The Board finds that Dr. Poehling’s reports are not sufficiently detailed and wellreasoned to meet appellant’s burden of proof. Dr. Poehling did not provide specific findings 

supporting that her employment-related conditions resulted in her total disability from work. 

Specific findings and medical reasoning are especially necessary as he had previously 

concluding that appellant was totally disabled in 2008 while she was in fact working.12

On January 9, 2015 Dr. Beekman diagnosed preexisting fibromyalgia and opined that this 

condition was aggravated by appellant’s accepted shoulder injuries as she was unable to exercise 

to alleviate her fibromyalgia symptoms. He concluded that she was unable to work due to her 

fibromyalgia and her shoulder pain. Dr. Beekman found that appellant was totally disabled since 

2011. This report does not contain the necessary specific findings and medical reasoning to 

support that her current disability from work is due to her accepted upper extremity conditions. 

 11 Id.

12 The Board notes that OWCP authorized a left wrist arthroscopy performed by Dr. Poehling on 

September 22, 2014. If medical treatment is performed as a result of an employment injury, any related disability is 

compensable. See Melody Friery, 48 ECAB 525 (1997). OWCP has not specifically addressed this aspect of the 

claim for disability compensation such that it is not presently before the Board. See 20 C.F.R. § 501.2(c). This 

decision does not preclude appellant from seeking appropriate wage-loss compensation due to this surgery if the 

medical evidence supports that it resulted in a period of disability. 
9

Appellant applied for and received disability retirement benefits based in part on her preexisting 

condition of fibromyalgia. Dr. Beekman has not explained her varying disability from work 

between 2008 and 2011. This report does not establish that appellant was totally disabled since 

2011 due to her accepted employment injuries. 

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 submitted the necessary medical opinion evidence 

to establish that she was totally disabled from July 30, 2011 through October 8, 2013 due to her 

accepted employment injuries. 

ORDER 

IT IS HEREBY ORDERED THAT November 9, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 6, 2016 

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