United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.W., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Denver, CO, Employer 

__________________________________________ 

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Docket No. 16-1729 

Issued: May 12, 2017 

Appearances: Case Submitted on the Record

Bernard Humbles, 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 August 15, 2016 appellant, through her representative, filed a timely appeal from a 

May 12, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

 

 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

 Appellant also filed a timely request for oral argument in this case, pursuant to 20 C.F.R. § 501.5(b). After 

exercising its discretion, by order dated March 1, 2017, the Board denied appellant’s request for oral argument as 

oral argument would further delay issuance of a Board decision and not serve a useful purpose. Order Denying 

Request for Oral Argument, Docket No. 16-1729 (issued March 1, 2017). 
2

Pursuant to the Federal Employees’ Compensation Act3

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.4

ISSUE 

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

causally related to her accepted factors of her federal employment. 

FACTUAL HISTORY 

On October 9, 2015 appellant, then a 52-year-old nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on March 1, 2015 she sustained cumulative trauma from 

repositioning a patient. She stopped work and first received medical care on March 1, 2015. 

By letter dated October 28, 2015, OWCP informed appellant that the evidence of record 

was insufficient to support her claim. Appellant was advised of the factual and medical evidence 

needed and afforded 30 days to respond. OWCP provided a questionnaire for completion and 

requested she submit a response in order to substantiate the factual basis of her claim. It also 

noted that it was not clear if appellant was filing an occupational disease or traumatic injury and 

requested clarification on her claim. Appellant did not respond and no further evidence was 

received. 

By decision dated December 2, 2015, OWCP denied appellant’s claim finding that the 

evidence of record failed to establish fact of injury to support that the injury or event occurred as 

alleged. It noted that she failed to submit any evidence in support of her claim and did not 

respond to OWCP’s October 28, 2015 questionnaire. 

On December 7, 2015 appellant requested review of the written record before an OWCP 

hearing representative. 

In an April 19, 2016 narrative statement, appellant responded to OWCP’s questionnaire 

and described her employment duties as a nursing assistant. She explained that she was claiming 

an occupational disease claim as her work in a nursing home for over 10 years consisted of very 

hard physical work. Appellant reported that her duties involved handling geriatric patients and 

was often pushing, pulling, lifting, and turning patients over a period of time. She reported that 

she initially filed the workers’ compensation claim incorrectly because the new nurse manager in 

her unit was not aware of the process. Appellant noted that she continued to have pain in her 

shoulder and a magnetic resonance imaging (MRI) scan revealed a rotator cuff tear requiring her 

to undergo surgery. She explained that the operation further revealed bursitis, a previously 

diagnosed condition. Appellant reported that she had no prior issues with her right shoulder and 

continued to experience a great deal of pain radiating down her arm. 

 3

 5 U.S.C. § 8101 et seq.

4

 The Board notes that appellant submitted additional evidence after OWCP rendered its May 12, 2016 decision. 

The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision 

and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 

47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). 
3

In support of her claim, appellant submitted Kaiser Permanente Past Visit Information 

Summaries dated April 9 through October 5, 2015 documenting treatment for right shoulder 

pain, bilateral tendinitis of the rotator cuff, nontraumatic right rotator cuff tear, and impingement 

syndrome of the right shoulder. 

In treatment notes dated January 26 through February 17, 2016, Jillian Ramer and 

Douglas Clark, licensed physical therapists, documented treatment for appellant’s right shoulder. 

In an August 15, 2015 diagnostic report, Dr. Margarita Sevilla, Board-certified in family 

medicine, reported that a right shoulder MRI scan revealed high grade partial bursal-sided tear of 

the supraspinatus tendon and mild rotator cuff tendinosis. 

In a November 16, 2015 Family and Medical Leave Act (FMLA) health care provider 

form, Dr. Tyler Skaife, a Board-certified orthopedic surgeon, reported that he began treating 

appellant on September 10, 2015. He provided a diagnosis of right rotator cuff tear and reported 

that surgery was scheduled for January 19, 2016. Dr. Skaife explained that appellant would be 

unable to perform any kind of work during her postoperative period and would likely be 

incapacitated until April 12, 2016. 

In a January 19, 2016 operative report, Dr. Skaife performed a right shoulder arthroscopy 

with rotator cuff repair and subacromial decompression. Postoperative examinations dated 

February 3 and 25, 2016 revealed normal findings. 

By letter dated April 13, 2016, Dr. Skaife reported that appellant was initially examined 

by Dr. Sevilla on April 14, 2015. He reported that the pain appellant complained of for years 

was exacerbated in March 2015 from lifting patients and other care duties at work, reporting no 

discrete fall or trauma. Dr. Skaife provided findings on physical examination and review of 

diagnostic testing. He noted that a March 26, 2015 x-ray of the right shoulder revealed no 

fracture or dislocation. A July 23 and an August 12, 2015 MRI scan of the right shoulder 

revealed near full-thickness tear of anterior and mid supraspinatus on the bursal side of the 

tendon, as well as increased fluid signal within the subacromial space with an inferior facing 

osteophyte of the anterolateral acromion. Dr. Skaife diagnosed high grade partial thickness 

bursal-sided rotator cuff tear and subacromial impingement. He noted that after appellant was 

unresponsive to conservative measures she underwent surgery on January 19, 2016 for 

arthroscopic rotator cuff repair and subacromial decompression. Dr. Skaife reported that his 

most recent follow up revealed that she was improving her range of motion, but was not back to 

her preoperative baseline. He concluded that appellant’s job duties involved patient care 

activities with lifting of patients, repetitive motion, and overhead motion which could aggravate 

a preexisting rotator cuff disease/pathology and subacromial impingement. 

By decision dated May 12, 2016, OWCP’s hearing representative affirmed the 

December 2, 2015 decision, as modified, finding that the evidence of record failed to establish 

that her diagnosed conditions were causally related to her accepted federal employment factors. 
4

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 an injury was sustained while in the performance of duty as alleged, and that 

any disability or specific condition for which compensation is claimed is causally related to the 

employment injury.5 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or an occupational disease.6

In order to determine whether an employee actually sustained an injury in the 

performance of duty, OWCP begins with an analysis of whether fact of injury has been 

established. Generally, fact of injury consists of two components which must be considered in 

conjunction with one another. The first component to be established is that the employee 

actually experienced the employment incident which is alleged to have occurred.7 The second 

component is whether the employment incident caused a personal injury and generally can be 

established only by medical evidence. 

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee must submit: (1) a factual statement identifying employment 

factors alleged to have caused or contributed to the presence or occurrence of the disease or 

condition; (2) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the employee.8 

To establish a causal relationship between the condition, as well as any attendant 

disability claimed, and the employment event or incident, the employee must submit rationalized 

medical opinion evidence based on a complete factual and medical background, supporting such 

a causal relationship.9 The opinion of the physician 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. This 

medical opinion must include an accurate history of the employee’s employment injury and must 

explain how the condition is related to the injury. The weight of 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.10

 5 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989). 

6 Michael E. Smith, 50 ECAB 313 (1999). 

7 Elaine Pendleton, supra note 5. 

8 See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994). 

9 See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983). 

10 James Mack, 43 ECAB 321 (1991). 
5

ANALYSIS 

OWCP accepted that as part of her employment duties appellant engaged in repetitive 

activities of pushing, pulling, lifting, and turning patients in her employment duties as a nursing 

assistant as alleged. It denied her claim, however, because the evidence of record failed to 

establish a causal relationship between those activities and her right shoulder injury. The Board 

finds that the medical evidence of record is insufficient to establish that appellant developed a 

right shoulder rotator cuff tear and subacromial impingement causally related to factors of her 

federal employment as a nursing assistant. 

In support of her claim, appellant submitted treatment and operative reports dated 

November 16, 2015 through April 13, 2016 from Dr. Skaife, her treating physician. Dr. Skaife 

diagnosed right rotator cuff tear and subacromial decompression for which he performed a right 

shoulder arthroscopy on January 19, 2016. The Board finds that the reports of Dr. Skaife are not 

well rationalized and insufficient to establish appellant’s occupational disease claim. 

Dr. Skaife explained that appellant’s job duties involved patient care activities with 

lifting of patients, repetitive motion, and overhead motion, which could aggravate a preexisting 

rotator cuff disease/pathology and subacromial impingement. The Board notes that Dr. Skaife’s 

opinion on causation is speculative as he notes that appellant’s employment duties could 

aggravate her preexisting condition without a firm conclusion that these duties did in fact cause 

or aggravate her injury.11 To be of probative value, a physician’s opinion on causal relationship 

should be one of reasonable medical certainty.12 Furthermore, he attributes appellant’s rotator 

cuff disease and subacromial impingement to a preexisting condition. Dr. Skaife reported that 

appellant complained of pain for years which was exacerbated in March 2015. However, he 

failed to provide a detailed medical history of her preexisting conditions or prior injuries related 

to the pain in her right shoulder. Moreover, Dr. Skaife failed to discuss whether her preexisting 

injury had progressed beyond what might be expected from the natural progression of that 

condition.13 It is unclear if appellant’s diagnosed conditions were caused or aggravated by her 

occupational employment duties, or were due to a preexisting condition, or to degenerative 

changes. A well-rationalized opinion is particularly warranted when there is a history of a 

preexisting condition.14

While Dr. Skaife did have some knowledge of appellant’s employment duties, he failed 

to detail the number of hours per day spent performing each task and the frequency of the 

physical movements which appellant attributes to her injury. His statement on causation failed 

to provide a sufficient explanation as to the mechanism of injury pertaining to this occupational 

disease claim as alleged by appellant, namely, how repetitive pushing, pulling, lifting, and 

turning patients would cause or aggravate her right shoulder injury.15 Without explaining how 

 11 See Michael R. Shaffer, 55 ECAB 339 (2004). 

12 See Beverly R. Jones, 55 ECAB 411 (2004). 

13 R.E., Docket No. 14-868 (issued September 24, 2014). 

14 T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006). 

15 S.W., Docket 08-2538 (issued May 21, 2009). 
6

physiologically the movements involved in appellant’s employment duties caused or contributed 

to her diagnosed conditions, his opinion on causal relationship is equivocal in nature and of 

limited probative value.16

The remaining medical evidence of record is also insufficient to establish appellant’s 

claim. Dr. Sevilla’s August 15, 2015 diagnostic report only interpreted imaging studies related 

to the right shoulder and provided no opinion on the cause of appellant’s injury.17 Without any 

mention of the repetitive employment duties, and any discussing causal relationship, his report is 

of limited probative value.18

The physical therapy reports documenting treatment of appellant’s right shoulder are also 

insufficient to establish her claim. A physical therapist is not considered a physician as defined 

under FECA, and his opinion is of no probative value.19 

The Board notes that if work-related exposures caused, aggravated, or accelerated 

appellant’s condition, she is entitled to compensation.20 However, an award of compensation 

may not be based on surmise, conjecture, speculation, or on the employee’s own belief of causal 

relation.21 Appellant’s honest belief that her occupational employment duties caused her medical 

injury is not in question, but that belief, however sincerely held, does not constitute the medical 

evidence necessary to establish causal relationship.22 As such, appellant has failed to meet her 

burden of proof. 

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. 

§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607. 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish a right 

shoulder injury causally related to factors of her federal employment. 

 16 See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014); 

K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012). 

17 D.H., Docket No. 11-1739 (issued April 18, 2012). 

18 S.Y., Docket No. 11-1816 (issued March 16, 2012). 

19 5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. Roy L. Humphrey, supra note 8. See F.G., Docket No. 16-1482 (issued January 25, 2017) (physical 

therapists); see also V.W., Docket No. 16-1444 (issued March 14, 2017) (physical therapists). 

20 See Beth P. Chaput, 37 ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008). 

21 D.D., 57 ECAB 734 (2006). 

22 See B.H., Docket No. 16-1553 (issued March 27, 2017). 
7

ORDER 

IT IS HEREBY ORDERED THAT the May 12, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 12, 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