United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Hot Springs, SD, Employer

__________________________________________

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Docket No. 19-0119

Issued: July 5, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 22, 2018 appellant filed a timely appeal from an August 28, 2018 merit 

decision and an October 9, 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 to consider the merits of this case.2

ISSUES

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

shoulder injury causally related to the accepted factors of her federal employment; and (2) whether 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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

OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant 

to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On May 25, 2018 appellant, then a 67-year-old sales and service associate, filed an 

occupational disease claim (Form CA-2) alleging that she developed injuries while in the 

performance of duty, which “felt similar to those received on the job in 2013 and [were] irritate[d] 

by reaching, stretching, lifting, which is done on a daily basis.”

3

 She indicated that September 1, 

20174 was the date she first realized the disease or illness was caused or aggravated by her factors 

of her federal employment.5 Appellant noted that she did not realize that she could file a claim for 

repetitive activities, as there was no specific date for the injury. She stopped work on 

March 6, 2018.

In a supplemental statement dated May 25, 2018, appellant explained that she had 

undergone her first shoulder surgery in 2013. She described her work activities, which included 

working at a counter, using a step stool to climb, reaching around electronic equipment, crawling, 

moving items, manually pushing a roll-up window two times per day, placing packages of various 

weights up to 70 pounds on shelves, raising packages from the floor to customers, taking packages 

from customers weighing up to 70 pounds, and lowering the packages into cages. Appellant 

described her February 13, 2013 employment injury which resulted in a torn rotator cuff. 

OWCP received an April 19, 2018 work excuse from Dr. Samuel L. Mortimer, a Boardcertified orthopedic surgeon.

In a letter dated May 31, 2018, C.T., a health and resource management specialist, 

controverted the claim. She noted that appellant had referred to her prior 2013 shoulder injury, 

however, she had reached maximum medical improvement on May 20, 2014, and had received a 

schedule award.

In a development letter dated June 12, 2018, OWCP requested that appellant submit 

additional evidence in support of her claim. It advised her of the type of factual and medical 

evidence needed and provided a questionnaire for completion. By separate letter of even date, 

OWCP also requested additional information from the employing establishment. It afforded both 

appellant and the employing establishment 30 days to respond.

 

3 The record reflects that OWCP accepted appellant’s February13, 2013 claim for right shoulder and rotator cuff 

sprain and calcified tendinitis of the right shoulder, under OWCP File No. xxxxxx918. This claim has not been 

administratively combined with the current claim.

4 The Board notes that, although the claim form referenced “September 1, 2018,” the Board concludes that appellant 

inadvertently included that date since she provided notice to her supervisor on May 30, 2018 and the employing 

establishment provided the following statement on the claim form: “The dates [for initial awareness of the condition 

and relating it to her federal employment] should be September 1, 2017[.] Wrong year was incorrectly entered.”

5 Appellant did not specify which shoulder was the subject of this claim. However the medical evidence of record 

indicates that her current medical treatment was for left shoulder conditions and her prior injury was to the right 

shoulder. The form indicated 2018; however, the employing establishment clarified that the date should be 2017.
3

OWCP received a January 24, 2018 report from Dr. Mortimer diagnosing left shoulder 

impingement, acromioclavicular joint arthrosis, rotator cuff tear, and a March 6, 2018 operative 

report from him with the same diagnoses. It also received a March 19, 2018 note from a physician 

assistant. OWCP continued to receive reports from Dr. Mortimer including April 16 and May 30, 

2018 reports in which he discussed appellant’s postoperative findings following her left shoulder 

arthroscopy, a May 31, 2018 work excuse, June 27 and July 25, 2018 forms indicating that 

appellant could return to modified duty, and an August 22, 2018 work restriction form.

In a June 6, 2018 report, Dr. Mortimer noted that appellant underwent left shoulder 

arthroscopy with subacromial decompression, acromioplasty, distal clavicle resection, and 

arthroscopic rotator cuff repair. He advised that she had issues with her contralateral shoulder 

dating back to a 2013 work injury when she lifted a box, and had increasing issues with the left 

shoulder over time, without any specific recent injury. Dr. Mortimer noted that he had 

recommended an ergonomic evaluation in 2013 which determined that appellant’s work 

environment was not safe and was not conducive for the type of lifting she was performing. He

indicated that she now presented with a contralateral shoulder injury which revealed a tear in the 

rotator cuff requiring surgical intervention. Dr. Mortimer opined that appellant did not have a fall 

or another injury and “given the fact that she has continued to work in an environment where the 

ergonomics of her workstation were not improved, this could have a direct relation to the patient’s 

subsequent rotator cuff tear.”

Dr. Mortimer explained that appellant’s lifting mechanics were affected by the fact that she 

had to reach out at a 90 degree angle with her arms fully extended with loads exceeding those that 

are normal. He opined that her workplace “could be the major contributing factor to her problem.”

Dr. Mortimer noted that appellant had experienced pain, underwent surgical evaluation, and was 

recovering. He further opined that “this is a work-related injury and should be covered.”

By decision dated August 28, 2018, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish that her diagnosed left shoulder conditions 

were causally related to the accepted factors of her federal employment.

On September 10, 2018 appellant requested reconsideration. She resubmitted a copy of

Dr. Mortimer’s June 6, 2018 report “in case this was not received previously” and noted that it 

established her left shoulder claim.

By decision dated October 9, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence was repetitious 

and consisted of copies of documentation previously received and considered.6

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA has the burden of establishing 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 

 

6 OWCP noted that its prior decision found that the medical evidence supported that the newly diagnosed condition 

was related to her 2013 work injury, rather than a new injury.
4

limitation period of FECA,7that 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.8 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.

9

 

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the presence 

or existence of the disease or condition for which compensation is claimed; (2) a factual statement 

identifying employment factors alleged to have caused or contributed to the presence or occurrence 

of the disease or condition; and (3) medical evidence establishing that the employment factors 

identified by the claimant were the proximate cause of the condition for which compensation is 

claimed or, stated differently, medical evidence establishing that the diagnosed condition is causally 

related to the employment factors identified by the claimant.10

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.12 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s 

specific employment factor(s).13

ANALYSIS -- ISSUE 1

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

injury causally related to the accepted factors of her federal employment.

In support of her claim, appellant submitted reports from Dr. Mortimer including his 

January 24, 2018 report diagnosing left shoulder impingement, acromioclavicular joint arthrosis, 

and a rotator cuff tear, a March 6, 2018 operative report with the same diagnoses, April 16 and 

May 30, 2018 reports summarizing postoperative findings, as well as May 31, June 27, July 25, 

and August 22, 2018 work restriction forms. These reports only contained medical diagnoses, but 

did not indicate that appellant’s employment factors as a sales and service associate caused or 

 

7 S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. Cameron, 41 ECAB 153 (1989).

8

J.M., Docket No. 17-0284 (issued February 7, 2018); James E. Chadden, Sr., 40 ECAB 312 (1988). 

9 M.S., Docket No. 19-0189 (issued May 14, 2019). 

10 C.D., Docket No. 17-2011 (issued November 6, 2018); Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

11 M.S., supra note 9; Robert G. Morris, 48 ECAB 238 (1996).

12 M.V., Docket No. 18-0884 (issued December 28, 2018).

13 Id.
5

aggravated her left shoulder conditions. Medical evidence that does not offer an opinion regarding 

the cause of an employee’s condition is of no probative value on the issue of causal relationship.14

In a June 6, 2018 report, Dr. Mortimer indicated that appellant had problems with her left 

shoulder and denied any recent, specific injury. He explained that her shoulder problems stemmed 

from her 2013 work injury to the contralateral shoulder. Dr. Mortimer opined that “given the fact 

that appellant has continued to work in an environment where the ergonomics of her workstation 

were not improved, this could have a direct relation to the patient’s subsequent rotator cuff tear.” 

He further opined that appellant’s workplace activities “could be the major contributing factor to 

her problems” and that “this is a work-related injury and should be covered.” 

The Board notes that this opinion is speculative, as Dr. Mortimer opined that appellant’s

workplace activities “could have” or “could be” related to her condition. Dr. Mortimer did not 

provide an opinion with reasonable medical certainty. The Board has held that medical opinions 

that are speculative or equivocal in character are of diminished probative value.15

OWCP also received a March 19, 2018 note from a physician assistant. Health care 

providers such as physician assistants are not physicians under FECA.16 Thus, their opinions 

regarding causal relationship do not constitute rationalized medical opinions and have no probative 

value.17

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.18 

Neither the fact that the condition became apparent during a period of employment nor the belief 

that the condition was caused or aggravated by employment factors or incidents is sufficient to 

establish causal relationship.19 As there is no opinion expressed with reasonable medical certainty 

and medical rationale explaining how appellant’s repetitive employment duties caused or 

aggravated a diagnosed condition, appellant has not met her burden of proof to establish a left 

shoulder injury causally related to the accepted factors of her federal employment.

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. 

 

14 See M.H., Docket No. 18-1737 (issued March 13, 2019); K.K., Docket No. 18-1209 (issued March 7, 2019). 

15 See T.H., Docket No. 18-1736 (issued March 13, 3019); see D.R., Docket No. 17-0971 (issued October 5, 2017); 

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

16 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). Section 8102(2) of FECA provides that the term physician includes 

surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within 

the scope of their practice as defined by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005).

17 K.C., Docket No. 18-1330 (issued March 11, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal 

Relationship, Chapter 2.805.3a(1) (January 2013).

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

19 Id.
6

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.20 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.21 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.22

A timely application for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (1) shows that OWCP erroneously applied or 

interpreted a specific point of law; (2) advances a relevant legal argument not previously 

considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.23 If the request is timely, but fails to meet at least one of the requirements 

for reconsideration, OWCP will deny the request for reconsideration without reopening the case 

for a review on the merits.24

ANALYSIS -- ISSUE 2

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

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

In her September 10, 2018 timely reconsideration request, appellant alleged that

Dr. Mortimer’s June 6, 2018 report established her claim. The Board finds that she has neither 

alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point of law. 

Additionally, appellant did not advance relevant legal arguments not previously considered by 

OWCP.25

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law or advance a relevant legal argument not previously considered by OWCP. Consequently, she 

is not entitled to further review of the merits of her claim based on the first and second abovenoted requirements under 20 C.F.R. § 10.606(b)(3).

 

20 This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a).

21 20 C.F.R. § 10.607.

22 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

23 20 C.F.R. § 10.606(b)(3).

24 Id. at § 10.608(a), (b); see also C.C., Docket No. 18-0316 (issued March 14, 2019); see also E.R., Docket No. 

09-1655 (issued March 18, 2010).

25 See S.F., Docket No. 16-1019 (issued May 4, 2017).
7

In support of her request for reconsideration, appellant resubmitted the June 6, 2018 report 

from Dr. Mortimer, which was previously considered by OWCP. The Board has held that the 

submission of evidence which repeats or duplicates evidence already in the case record does not 

constitute a basis for reopening a case.26

Appellant submitted no new evidence with her request for reconsideration. Accordingly, 

the Board finds that she has not provided OWCP with evidence which has met the third-noted 

requirement of 20 C.F.R. § 10.606(b)(3) sufficient to require further merit review of her claim.

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.27

CONCLUSION

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

injury causally related to the accepted factors of her federal employment. The Board further finds 

that OWCP properly denied her request for reconsideration of the merits of her claim pursuant to 

5 U.S.C. § 8128(a).

 

26 See A.F., Docket No. 18-1154 (issued January 17, 2019); see L.R., Docket No. 18-0400 (issued August 24, 2018).

27 See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 

58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).
8

ORDER

IT IS HEREBY ORDERED THAT the October 9 and August 28, 2018 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: July 5, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board