United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Kearny, NJ, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1544 

Issued: May 10, 2017 

Appearances: Case Submitted on the Record

Thomas R.Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 26, 2016 appellant, through counsel, filed a timely appeal from an April 15, 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 the case. 

ISSUE 

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

causally related an accepted November 11, 2011 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 

This case has previously been before the Board.3 The facts of the case as set forth in the 

prior Board decision are incorporated herein by reference. 

Appellant, then a 56-year-old clerk, filed a traumatic injury claim (Form CA-1) on 

May 2, 2012 alleging a right shoulder injury while sorting letters into mail bins on 

November 11, 2011. She had previously been on disability for previous shoulder injury.4 

Appellant had returned to work on November 11, 2011. 

In a November 14, 2011 report, Dr. Cornelius I. Nicoll, a specialist in orthopedic surgery 

and treating physician, noted that appellant was experiencing bilateral shoulder pain and was 

unable to elevate both arms above the shoulder. Appellant related that she went to work, 

developed severe pain, and ended up in the emergency room the same day. Dr. Nicoll opined 

that her problem was chronic and advised that she was totally disabled. He reported that the last 

time appellant worked was approximately eight years ago. 

The employing establishment controverted the claim disputing appellant’s 

characterization of her work that day. It further noted that she had failed to report her injury 

timely and, only filed this claim after a previously claimed injury regarding revolving doors that 

day had been denied under File No. xxxxxx293. 

In a June 20, 2012 decision, OWCP accepted a November 11, 2011 incident, but denied 

the claim because appellant had failed to provide medical evidence sufficient to establish a right 

shoulder injury causally related to the work incident. 

By letter dated June 28, 2012, appellant, through counsel, requested an oral hearing, 

which was held before an OWCP hearing representative on October 24, 2012. 

In a September 12, 2012 report, Dr. Nicoll noted that appellant had “major problems” 

with her right shoulder. X-rays revealed post-traumatic arthritis and a possible right rotator cuff 

tear. 

By decision dated January 11, 2013, an OWCP hearing representative affirmed the 

June 20, 2012 decision. He found that appellant had presented no medical evidence from a 

physician establishing a causal connection between the diagnosed condition and the 

November 11, 2011 work incident. Therefore, appellant failed to meet her burden of proof to 

establish a right shoulder injury causally related to the accepted incident. 

In a November 21, 2013 report, Dr. Nicoll noted that appellant had injured her right 

shoulder on March 15, 2004, for which she had undergone surgery. He reported that she 

continued to experience chronic pain, stiffness, and limited right shoulder motion. Appellant 

also developed post-traumatic changes to her left shoulder as a result of compensating for the 

                                                             3

 Docket No. 14-1336 (issued October 9, 2014). 

4

 OWCP File No. xxxxxx514. 
3

right shoulder. Dr. Nicoll advised that appellant had been totally disabled until she attempted to 

return to work on November 11, 2011. He noted that he was on vacation and had not given her 

clearance to return to work. Dr. Nicoll opined that appellant developed severe pain in her right 

shoulder after performing her duties on this date, at which time she reinjured or aggravated the 

original condition. 

On December 5, 2013 counsel filed a request for reconsideration. 

In a decision dated February 3, 2014, OWCP denied modification of its prior decision. It 

found that Dr. Nicoll had provided no medical rationale to support his opinion that reaching to 

sort letters on November 11, 2011 caused appellant’s right shoulder injury or aggravated her 

prior shoulder injury. 

Counsel filed an appeal with the Board on May 30, 2014. 

In an October 9, 2014 decision, the Board affirmed OWCP’s February 3, 2014 decision. 

It found that appellant had failed to meet her burden of proof to establish an injury in the 

performance of duty on November 11, 2011. 

In a January 8, 2015 report, Dr. Nicoll reiterated his previous opinion that appellant 

reinjured her March 15, 2004 right shoulder injury on November 11, 2011. He advised that, after 

undergoing surgery for a right labrum tear she was denied physical therapy. Dr. Nicoll believed 

that was the reason she never reached maximum improvement and developed post-traumatic 

right shoulder arthritis. He asserted that the repetitive motion activity on November 11, 2011, 

the first day she returned to work. Appellant caused the severe pain and stiffness in the right 

shoulder to the point where she was unable to elevate her arm. 

On January 28, 2015 appellant, through counsel, requested reconsideration. 

In a decision dated April 13, 2015, OWCP denied modification. It found that 

Dr. Nicoll’s January 8, 2015 report failed to establish that the November 11, 2011 work incident 

was causally related to the claimed right shoulder injury. 

Counsel filed an appeal with the Board on July 16, 2015, but on October 1, 2015 

requested to withdraw the appeal to pursue a further reconsideration request.5

In a new report dated August 27, 2015, Dr. Nicoll reiterated that he believed appellant 

had sustained a new twisting right shoulder injury on November 11, 2011 because he had 

performed a right shoulder arthroscopy to repair a torn labrum 25 years ago. He reiterated that 

she subsequently developed post-traumatic arthritis in the right shoulder because her insurance 

company did not approve the recommended course of physical therapy. Dr. Nicoll noted that 

appellant underwent another surgery a few years later for decompression of the subacromial 

joint. This procedure provided some improvement to her right shoulder; however, the 

improvement was not complete. 

                                                             5 Order Dismissing Appeal, Docket No. 15-1504 (issued December 18, 2015). 
4

Dr. Nicoll advised that appellant had recently undergone a magnetic resonance imaging 

(MRI) scan which showed a new partial tear of the rotator cuff that was not present in the past. 

He related that he based his opinion on the results of this MRI and on his examination and 

treatment of appellant. 

In an October 15, 2015 report, Dr. Nicoll asserted that on November 11, 2011 appellant 

sustained a twisting injury to her right shoulder at work which had remained painful since that 

date. He noted that she underwent an MRI scan in August 2015, which revealed a new tear of 

the right rotator cuff. Dr. Nicoll advised that, after comparing the recent MRI scan with the one 

from November 19, 2012, he believed that her right rotator cuff tear was the result of the 

November 11, 2011 work incident. He based this opinion on the history as related by appellant 

and on his treatment of appellant. 

On January 20, 2016 counsel requested reconsideration. 

In a decision dated April 15, 2016, OWCP denied modification. It found that appellant 

had failed to provide medical evidence sufficient to establish a right shoulder injury causally 

related to the accepted November 11, 2011 work incident. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA6

 has the burden of proof to establish that 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 sustained 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.7 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.8

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

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

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

employment incident at the time, place, and in the manner alleged.9

 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.10

                                                             6

 5 U.S.C. §§ 8101-8193. 

7 Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989). 

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

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

10 Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(e)(e). 
5

The Board has held that the mere fact that a condition manifests itself during a period of 

employment does not raise an inference that there is a causal relationship between the two.11

An award of compensation may not be based on surmise, conjecture, or speculation. 

Neither, the fact that appellant’s condition became apparent during a period of employment nor 

the belief that her condition was caused, precipitated, or aggravated by her employment is 

sufficient to establish causal relationship.12

ANALYSIS 

It is uncontested that appellant experienced pain in her right shoulder while sorting mail on 

November 11, 2011. The question of whether an employment incident caused a personal injury 

can only be established by probative medical evidence.13 The Board finds that appellant has not 

submitted such rationalized, probative medical evidence to establish that the November 11, 2011 

employment incident caused a personal injury. 

On appeal counsel contends that Dr. Nicoll’s reports are uncontroverted and contain 

medical evidence sufficient to establish that she sustained a right shoulder injury because she was 

sorting mail on November 11, 2011. 

Appellant submitted January 8, August 27, and October 15, 2015 reports from Dr. Nicoll. 

In his January 8, 2015 report, Dr. Nicoll reiterated that appellant aggravated her March 15, 2004 

right shoulder injury on November 11, 2011. He advised that she reinjured her right shoulder 

with repetitive motion activity on November 11, 2011, the first day she returned to work. 

Dr. Nicoll also believed that the severe pain and stiffness in the right shoulder that appellant 

experienced that day was due to the activities of November 11, 2011. He advised in his 

August 27 and October 15, 2015 reports that appellant sustained a twisting injury to her right 

shoulder on November 11, 2011; she had experienced right shoulder pain since that time. He 

opined that, based on his treatment of appellant, the history she provided him, and a comparison 

of November 19, 2012 and August 2015 MRI scans, he believed her new right rotator cuff tear 

was the result of the November 11, 2011 work incident. 

The weight of medical opinion is determined by the opportunity for and thoroughness of 

examination, the accuracy and completeness of the physician’s knowledge of the facts of the 

case, the medical history provided, the care of analysis manifested, and the medical rationale 

expressed in support of stated conclusions.14 While Dr. Nicoll noted complaints of right 

shoulder pain which he generally attributed to the November 11, 2011 work incident and 

diagnosed a right rotator cuff tear, his reports did not provide a probative, rationalized opinion as 

to how the November 11, 2011 work incident caused a personal injury. The reports failed to 

sufficiently explain how appellant could have sustained a right shoulder rotator cuff tear due to 

                                                             11 See Joe T. Williams, 44 ECAB 518, 521 (1993). 

12 Id.

13 Carlone, supra note 8. 

14 See Anna C. Leanza, 48 ECAB 115 (1996). 
6

sorting mail on November 11, 2011. Dr. Nicoll did not adequately describe how appellant’s 

duties that day could have been competent to cause the claimed condition. Appellant has failed 

to provide a report containing sufficient medical evidence demonstrating a causal connection 

between her November 11, 2011 work incident and her claimed right shoulder injury.15 

Accordingly, the Board finds that appellant has not established a right shoulder injury in 

the performance of duty. 

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 failed to meet her burden of proof to establish a right 

shoulder injury causally related to the accepted November 11, 2011 employment incident. 

ORDER 

IT IS HEREBY ORDERED THAT the April 15, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 10, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             15 See S.H., Docket No. 16-1227 (issued February 9, 2017).