United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

West Sacramento, CA, Employer

__________________________________________

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Docket No. 18-0991

Issued: December 11, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 16, 2018 appellant filed a timely appeal from a February 28, 2018 merit decision

and an April 3, 2018 nonmerit 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 over the merits of the case.

2

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish a 

consequential right shoulder condition causally related to his accepted left shoulder employment

 

1 5 U.S.C. § 8101 et seq. 

2 The Board notes that following the April 3, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

injury; and (2) whether OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY

On December 18, 2017 appellant, then a 56-year-old postmaster, filed an occupational 

disease claim (Form CA-2) alleging that an accepted left shoulder condition had caused overuse 

of his right upper extremity, resulting in bursitis and a partial thickness rotator cuff tear of the right

shoulder on or before November 1, 2017. He explained that his left shoulder condition had 

required five surgeries since 2003. In an associated December 18, 2017 statement, appellant 

described decreased range of right shoulder motion commencing in May 2017, which worsened in 

October 2017. He asserted that in November 2017, an attending physician, opined that the right 

shoulder condition was due to overcompensation for the weakened left shoulder.

An employing establishment supervisor controverted the claim, contending that appellant 

sustained multiple falls while roller skating.3

A December 12, 2017 magnetic resonance imaging (MRI) scan of the right shoulder 

demonstrated lateral supraspinatus tendinosis, infraspinatus tendinosis, subscapularis tendinosis, 

an possible horizontal tear of the superior labral foramen, marrow edema in the greater tuberosity 

just below the insertion of the supraspinatus tendon, and mild subdeltoid and subacromial bursitis. 

This diagnostic report was not signed by a physician. 

By development letter dated January 3, 2018, OWCP notified appellant that additional 

medical and factual evidence was necessary to establish his claim. Appellant was also provided a 

list of questions for his physician regarding how the identified work factors would have caused the 

claimed right shoulder condition. OWCP advised that a detailed, well-rationalized opinion from 

a physician regarding causal relationship was crucial to his claim. It afforded appellant 30 days to 

submit the necessary evidence. 

In response, appellant submitted a June 26, 2018 narrative statement. He asserted that,

following six surgeries on his left shoulder, he had been limited to performing only keyboarding 

tasks at work with his left upper extremity. Appellant attributed his right shoulder condition to 

overcompensating for his weakened left arm. He noted that, from 2004 to 2016, he performed 

repetitive tasks such as moving trays and tubs of mail, custodial duties, and moving mail 

processing equipment weighing up to 2,000 pounds. While reaching forward to staple papers 

together on an unspecified date, appellant felt a sudden pain in his right deltoid, with a burning 

sensation in his right shoulder when extending his right arm. He described hobbies of gardening 

and motorcycle maintenance for two hours a week, and roller skating for two hours every two 

weeks. Appellant contended that he had no prior right upper extremity injuries. 

 

3

In a December 21, 2017 statement, the employing establishment controverted the claim. Appellant had been off 

from work in 2016 due to left shoulder surgery. Commencing on December 28, 2016 he had been detailed to a position 

as an Electronic Customer Complaint Supervisor, answering the telephone, performing computer data entry, and 

visually checking mail. Appellant’s manager submitted a December 21, 2017 e-mail in which she alleged that 

appellant had told her that he went “roller skating every Thursday evening” and described “some bad falls [appellant]

has taken while roller skating and how sore he was for several days afterwards.”
3

Appellant provided a February 12, 2018 note from Shannon Krisa, a physician assistant, 

who reported that, for medical reasons, he was unable to work. 

By decision dated February 28, 2018, OWCP accepted that the identified work factors 

occurred as alleged, but denied the claim as the medical evidence of record did not contain a 

diagnosis of a right shoulder injury or condition causally related to the accepted factors of 

employment. 

On March 12, 2018 appellant requested reconsideration. No additional evidence was 

received. 

By decision dated April 3, 2018, OWCP denied appellant’s request for reconsideration of 

the merits of his claim under 5 U.S.C. § 8128(a), finding that he did not submit new and relevant 

evidence, or legal argument sufficient to warrant reopening the merits of his claim. 

LEGAL PRECEDENT -- ISSUE 1

The claimant bears the burden of proof to establish a claim for a consequential injury. As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, establishing causal relationship. The opinion must be 

one of reasonable medical certainty and must be supported by medical rationale explaining the 

nature of the relationship of the diagnosed condition and the specific employment factors or 

employment injury.4

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

relationship is rationalized medical evidence.5 Neither the mere 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.6

In discussing the range of compensable consequences, once the primary injury is causally 

connected with the employment, The Law of Workers’ Compensation notes that, when the 

question is whether compensability should be extended to a subsequent injury or aggravation 

related in some way to the primary injury, the rules that come into play are essentially based upon 

the concepts of direct and natural results and of the claimant’s own conduct as an independent 

intervening cause. The basic rule is that a subsequent injury, whether an aggravation of the original 

 

4 Charles W. Downey, 54 ECAB 421 (2003); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 

365 (1994).

5

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

6 Dennis M. Mascarenas, 49 ECAB 215 (1997).
4

injury or a new and distinct injury, is compensable if it is the direct and natural result of a 

compensable primary injury.7

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish a consequential 

right shoulder condition causally related to the accepted left shoulder employment injury.

Appellant alleged that he developed a right shoulder condition due to repetitive upper 

extremity motion at work and overcompensating for a previously injured left shoulder. OWCP 

accepted that these employment factors occurred as alleged. However, appellant submitted 

insufficient medical evidence to establish a diagnosed right shoulder condition caused or 

aggravated by the accepted factors of his federal employment. 

Appellant submitted a December 2017 MRI scan report which demonstrated tendinosis of 

the supraspinatus, infraspinatus, and subscapularis tendons, a possible tear of the superior labral 

foramen, and mild subdeltoid and subacromial bursitis. The Board has previously explained that 

diagnostic test reports lack probative value as they fail to provide an opinion on the causal

relationship between his employment duties and the diagnosed conditions.8

Appellant also provided a February 12, 2018 note from Ms. Krisa, a physician assistant. 

This opinion is not competent medical evidence as physician assistants are not considered 

physicians under FECA.9 

As explained above, to establish a consequential condition, appellant must submit medical 

evidence containing not only a diagnosis of a medical condition, but also a physician’s rationalized 

opinion explaining how the diagnosed condition is causally related to appellant’s accepted 

employment factors.10 The Board finds that as there is no reasoned medical evidence of record 

explaining how the accepted employment injury caused or aggravated his medical condition

involving his right shoulder, he has not met his burden of proof to establish a consequential 

injury.

11

On appeal, appellant contends that he submitted a February 15, 2018 medical report from 

his attending physician, but that OWCP failed to consider it. The Board notes that there is no 

 

7 K.S., Docket No. 17-1583 (issued May 10, 2018); Arthur Larson & Lex K. Larson, The Law of Workers’

Compensation § 3.05 (2014). 

8 See E.P., Docket No. 18-0194 (issued September 14, 2018). 

9 See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and 

physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection 

defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and 

osteopathic practitioners within the scope of their practice as defined by state law). E.T., Docket No. 17-0265 (issued 

May 25, 2018) (physician assistants are not considered physicians under FECA).

10 See E.B., Docket No. 09-1055 (issued December 14, 2009).

11 Supra note 6. 
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evidence of record that OWCP received such a report prior to issuance of the April 3, 2018 

nonmerit decision. 

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.

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against payment of compensation at any time on his own motion or on application.12

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,13

OWCP’s regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.14 To be entitled to a merit review of 

an OWCP decision denying or terminating a benefit, a claimant’s application for review must be 

received within one year of the date of that decision.15 When a request for reconsideration is timely

and the claimant fails to meet one of the above standards, OWCP will deny the application for 

reconsideration without reopening the case for review on the merits.16

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim.

The Board finds that as appellant did not allege that OWCP erroneously applied or 

interpreted a specific point of law or advance a relevant legal argument not previously considered 

by OWCP, he is not entitled to a review of the merits of his claim based on the first and second 

requirements under 20 C.F.R. § 10.606(b)(3).

The Board further finds that appellant did not submit relevant or pertinent new evidence

not previously considered. The underlying issue in this case is whether appellant submitted 

sufficient medical evidence establishing a consequential right shoulder condition causally related 

to the accepted employment injury. He did not submit any medical evidence in support of his

request for reconsideration. The Board accordingly finds that appellant has not met any of the 

 

12 5 U.S.C. § 8128(a).

13 Id. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.”

14 20 C.F.R. § 10.606(b)(3).

15 Id. at § 10.607(a).

16 Id. at § 10.608(b).
6

requirements of 20 C.F.R. § 10.606(b)(3) in his March 12, 2018 request for reconsideration. 

Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a consequential 

right shoulder condition causally related to his accepted left shoulder employment injury. The 

Board further finds that OWCP properly denied his request for reconsideration of the merits of his

claim pursuant to 5 U.S.C. § 8128(a). 

ORDER

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’

Compensation Programs dated April 3 and February 28, 2018 are affirmed.

Issued: December 11, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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