United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION,

BUFFALO VETERANS ADMINISTRATION 

MEDICAL CENTER, Buffalo, NY, Employer

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Docket No. 17-1655

Issued: January 24, 2018

Appearances: Case Submitted on the Record

David H. Nelson, Esq., for the appellant1

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 July 25, 2017 appellant, through counsel, filed a timely appeal from an April 19, 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 over the merits of this case.

 

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

ISSUE

The issue is whether appellant met her burden of proof to establish left shoulder and arm 

conditions causally related to the accepted November 3, 2014 employment incident. 

FACTUAL HISTORY

On November 5, 2014 appellant, then a 33-year-old practical nurse, filed a traumatic 

injury claim (Form CA-1) alleging that, on November 3, 2014, she sustained left shoulder, arm, 

and hand injuries when she walked into an empty cavi wipe holder that was attached to a wall in 

the dining room of the employing establishment. She explained that there was very little room to 

walk because residents were eating in the entry way. Appellant first received medical care on 

the date of injury, stopped work on November 4, 2014, and did not return. 

On the date of injury, the employing establishment issued appellant a properly completed 

authorization for examination (Form CA-16) which indicated that she was authorized to seek 

medical treatment for her left shoulder strain from the employment incident. In an 

accompanying December 9, 2014 attending physician’s report, Dr. Andrew C. Hilburger, a 

Board-certified neurologist, reported that she walked into a dispenser mounted on the wall, 

striking her left shoulder. He first treated her on November 12, 2014 and noted no history of a 

preexisting injury. Dr. Hilburger diagnosed left shoulder trauma and reflex sympathetic 

dystrophy. He checked a box marked “yes” when asked if the condition was caused or 

aggravated by the employment activity described. Dr. Hilburger further determined that 

appellant was disabled from November 3 through December 17, 2014. 

Urgent Care discharge instructions dated November 3, 2014 noted that appellant was 

treated by Dr. Allen Barcomb, Board-certified in family practice, for a deep bruise contusion. 

Appellant was discharged that same date and released to work on November 4, 2014. 

In medical reports dated November 12, 2014 through February 20, 2015, Dr. Hilburger 

reported that appellant was evaluated for left arm and shoulder numbness which began on 

November 3, 2014. Appellant was walking down a hallway at the employing establishment 

when she walked into a dispenser that was mounted on the wall, striking her left shoulder. She 

immediately experienced pain in her arm and left shoulder, which developed into numbness, 

causing her to seek urgent care treatment later that date. Dr. Hilburger noted no prior history of 

injury to neck and shoulder. He diagnosed joint pain in shoulder region, brachial neuritis or 

radiculitis, and reflex sympathetic dystrophy of the upper limb. Dr. Hilburger requested 

authorization for an electromyography (EMG) and nerve conduction velocity (NCV) study of the 

left upper extremity, as well as a magnetic resonance imaging (MRI) scan of the brachial plexus 

and/or shoulder. 

By development letter dated March 11, 2015, OWCP notified appellant that her claim 

was initially administratively handled to allow medical payments, as it appeared to involve a 

minor injury resulting in minimal or no lost time from work. However, the merits of her claim 

had not been formally considered and her claim was being reopened for consideration of the 

merits because the medical bills had exceeded $1,500.00. OWCP informed appellant that the 

evidence of record was insufficient to establish her traumatic injury claim. Appellant was 
3

advised of the medical and factual evidence needed and afforded her 30 days to submit the 

additional evidence. 

In a January 20, 2015 medical report, Dr. Hilburger diagnosed joint pain in her shoulder 

region and brachial neuritis or radiculitis. 

By decision dated April 13, 2015, OWCP denied appellant’s claim, finding that the 

evidence of record failed to establish that her diagnosed conditions were causally related to the 

accepted November 3, 2014 employment incident. 

On April 22, 2015 appellant requested review of the written record before an OWCP 

hearing representative. In an accompanying narrative statement, she argued that OWCP failed to 

respond to Dr. Hilburger’s request for authorization of EMG/NCV and MRI scan testing. 

Appellant further argued that her physician provided a firm medical diagnosis establishing a 

work-related injury. 

In support of her claim, appellant submitted medical reports dated April 22 and 27, 2015 

from Dr. Hilburger. In his April 22, 2015 report, Dr. Hilburger reported that he first evaluated 

her on November 12, 2014. He described the employment incident and noted that appellant 

complained of severe pain in her shoulder, arm, and hand, as well as numbness in her hands. 

Dr. Hilburger reported that his working diagnosis was traction injury to the cervical spine roots 

and brachial plexus. He explained that there had not been any diagnostic testing authorized to 

provide a more definitive diagnosis. However, Dr. Hilburger believed that appellant’s symptoms 

were consistent with the mechanism of injury. 

In an April 23, 2015 attending physician’s report (Form CA-20), Dr. Wayne Ortiz, 

Board-certified in internal medicine, reported that on November 3, 2014 appellant walked into a 

dining room and hit her left shoulder on am empty cavi wipe, causing immediate pain followed 

by numbness. He diagnosed reflex sympathetic dystrophy of the left shoulder/arm and checked a 

box marked “yes” when asked whether the condition was caused or aggravated by the 

employment incident, noting no previous injury reported to the left side of body. 

By decision dated October 22, 2015, an OWCP hearing representative affirmed the 

April 13, 2015 decision, finding that the evidence of record failed to establish that her diagnosed 

conditions were causally related to the accepted November 3, 2014 employment incident. 

On July 1, 2016 appellant, through counsel, requested reconsideration of the October 22, 

2015 decision. Counsel noted submission of Dr. Hilburger’s January 19, 2016 report in support 

of appellant’s traumatic injury claim. 

In a January 19, 2016 report, Dr. Hilburger noted that appellant was walking and struck 

her shoulder on a dispenser that was attached to a wall, resulting in her symptoms. He opined 

that this injury was the direct cause of the symptoms she was experiencing. Dr. Hilburger noted 

that appellant denied any type of other injury and did not appear to have any other activities that 

would lead to her symptoms. 
4

By decision dated April 19, 2017, OWCP affirmed the October 22, 2015 decision,

finding that the evidence of record failed to establish that appellant’s diagnosed conditions were 

causally related to the accepted November 3, 2014 employment incident. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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.4 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.5

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.6 The second 

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

established only by medical evidence. 

To establish 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 supporting such causal relationship.7 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. 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.8

 

3

Id. 

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

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

6 Elaine Pendleton, supra note 4 at 1143 (1989).

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

8

James Mack, 43 ECAB 321 (1991).
5

ANALYSIS

OWCP accepted that the November 3, 2014 employment incident occurred as alleged.

The issue is whether appellant has established that the accepted incident caused or aggravated

her diagnosed left shoulder and arm conditions. 

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

that her diagnosed left shoulder and arm conditions were causally related to the accepted 

November 3, 2014 employment incident.9 

On the date of the alleged injury, appellant visited an urgent care facility for treatment of 

her left shoulder. She was seen by Dr. Barcomb. While the discharge instructions provide 

support for immediate treatment, the documents failed to provide a comprehensive report from

Dr. Barcomb noting a firm medical diagnosis and the cause of her condition. Consequently, this 

document is of no probative value and does not establish her traumatic injury claim.

10

The April 23, 2015 Form CA-20 from Dr. Ortiz is also insufficient to support appellant’s 

claim. He described the November 3, 2014 employment incident and diagnosed reflex 

sympathetic dystrophy of the left shoulder/arm. Although Dr. Ortiz checked a box marked 

“yes,” when asked if the diagnosis was a result of the employment incident, the Board has held 

that a report that addresses causal relationship with a checkmark, without medical rationale 

explaining how the work incident caused the alleged injury, is of diminished probative value and 

insufficient to establish causal relationship.11 Moreover, his rationale was vague, only generally 

indicating that appellant had no prior injuries to the left side of her body without an explanation 

pertaining to the mechanism of injury. As such, Dr. Ortiz’ report is insufficient to meet 

appellant’s burden of proof.12

In medical reports dated November 12, 2014 through January 19, 2016, Dr. Hilburger 

reported that on November 3, 2014 appellant walked into a wall dispenser at the employing 

establishment and injured her left shoulder. He diagnosed joint pain in shoulder region, brachial 

neuritis or radiculitis, and reflex sympathetic dystrophy of the upper limb. The Board finds that 

the medical reports of Dr. Hilburger are not well rationalized. Dr. Hilburger opined that 

appellant’s injuries were caused by the employment incident because her symptoms were 

consistent with the mechanism of injury.13 He supported for his conclusion by noting that she

had no prior left shoulder injury. The Board has held, however, that an opinion that a condition 

is causally related because the employee was asymptomatic before the incident is insufficient, 

without adequate rationale, to establish causal relationship.14 While Dr. Hilburger opined that 

 

9 See Robert Broome, 55 ECAB 339 (2004).

10 See Sheila A. Johnson, 46 ECAB 323, 327 (1994); see Merton J. Sills, 39 ECAB 572, 575 (1988).

11 See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

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

13 T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

14 M.R., Docket No. 14-0011 (issued August 27, 2014).
6

appellant’s conditions were work related, he failed to provide a rationalized opinion explaining 

how walking into a wall dispenser would have caused left shoulder brachial neuritis or 

radiculitis. Medical reports without adequate rationale on causal relationship are of diminished 

probative value and do not meet an employee’s burden of proof.15 Without explaining how 

physiologically the movements involved in the employment incident caused or contributed to the 

diagnosed condition, Dr. Hilburger’s opinion is of limited probative value and therefore 

insufficient to meet appellant’s burden of proof.16 

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

the employee’s own belief of causal relation.17 Appellant’s honest belief that the November 3, 

2014 employment incident caused her injury, however, sincerely held, does not constitute the 

medical evidence necessary to establish causal relationship.18 

The record lacks rationalized medical evidence establishing causal relationship between 

the November 3, 2014 employment incident and appellant’s diagnosed left shoulder and arm 

conditions. Thus, appellant has failed to meet her burden of proof.19

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. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish left shoulder 

and arm conditions causally related to the accepted November 3, 2014 employment incident.

 

15 Ceferino L. Gonzales, 32 ECAB 1591 (1981).

16 See L.M., Docket No. 14-0973 (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. 12-0548 (issued November 16, 2012). 

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

18 See J.S., Docket No. 17-0507 (issued August 11, 2017).

19 The record contains a Form CA-16 signed by the employing establishment official on November 3, 2014 for 

treatment with Dr. Hilburger. When the employing establishment properly executes a Form CA-16 which 

authorizes medical treatment as a result of an employee’s claim for an employment-related injury, the CA-16 form 

creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the examination 

or treatment regardless of the action taken on the claim. The period for which treatment is authorized by a Form 

CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R.

§ 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003). The record is silent as to whether OWCP paid for the cost of 

appellant’s examination or treatment for the period noted on the form.
7

ORDER

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’

decision dated April 19, 2017 is affirmed.

Issued: January 24, 2018

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