United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.A., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

HEART OF TEXAS HEALTH CARE 

NETWORK, Arlington, TX, Employer 

__________________________________________ 

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Docket No. 17-0119 

Issued: July 11, 2017 

Appearances: Case Submitted on the Record

Edward L. Daniel, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 25, 2016 appellant, through her representative, filed a timely appeal from a 

September 27, 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 has met her burden of proof to establish a right shoulder 

injury causally related to an August 27, 2014 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 

On September 17, 2014 appellant, then a 50-year-old management analyst, filed a 

traumatic injury claim (Form CA-1), alleging that on August 27, 2014, when opening the car 

door to exit a vehicle parked on an incline, she pulled the door with extra strength and 

hyperextended her right shoulder. She was diagnosed with right rotator cuff tear. Appellant did 

not stop work at that time. The employing establishment noted that she was in the performance 

of duty when injured. 

By letter dated September 25, 2014, OWCP advised appellant of the type of evidence 

needed to establish her claim, particularly requesting that she submit a physician’s reasoned 

opinion addressing the relationship of her claimed condition and specific employment factors. It 

noted that medical evidence must be submitted by a qualified physician and nurses and physician 

assistants are not considered qualified physicians under FECA. 

In an October 22, 2014 statement, appellant indicated that while on a work-related 

business trip she opened a van door and injured her right shoulder. She submitted a statement 

from W.S., a coworker, dated October 20, 2014, who witnessed the injury to appellant’s shoulder 

on August 27, 2014 while exiting a government vehicle. W.S. indicated that they were 

performing logistics inspections at Kerrville Hospital and, while appellant exited the vehicle and 

opened the sliding rear door of the van, she injured her right shoulder. Appellant submitted a 

September 8, 2014 magnetic resonance imaging (MRI) scan of the right shoulder which revealed 

a full-thickness tear in the anterior supraspinatus tendon and significant degenerative changes of 

the acromioclavicular joint. 

In a September 15, 2014 report, Dr. Charles T. Whittenburg, an osteopath, treated 

appellant for right shoulder pain which began two weeks prior. Physical examination of the right 

shoulder revealed intact neurovascular examination, intact sensory and motor examination, and 

painful range of motion on abduction and external rotation with associated weakness. 

Dr. Whittenburg noted an MRI scan of the right shoulder revealed a full-thickness tear. He 

diagnosed complete rotator cuff rupture, shoulder bursa, tendon disorders, and rotator cuff 

disorders. Dr. Whittenburg recommended surgical repair. 

In an October 2, 2014 letter to Dr. Whittenburg, the employing establishment indicated 

that appellant filed a workers’ compensation claim for a workplace injury which occurred on 

August 27, 2014. Appellant reported that she hyperextended her right shoulder when she exited 

a government van parked on an incline. She indicated that she used extra strength on the door 

due to the vehicle being on a downward slope. The employing establishment requested 

Dr. Whittenburg comment on whether the work factors of August 27, 2014 listed above were the 

direct cause appellant’s current condition. If Dr. Whittenburg determined that they were not the 

direct cause then did the August 27, 2014 incident aggravate, precipitate, or accelerate any 

preexisting nonwork-related conditions. 

On October 21, 2014 Dr. Whittenburg responded to the employing establishment’s 

October 2, 2014 letter and opined that he was unable to state whether appellant’s injury was 

directly caused by the work factors, but in his professional opinion her right shoulder injury 

could have been caused by a series of events that occurred on August 27, 2014. He indicated 
3

that he could not address any preexisting conditions since she had not been an established patient 

until September 15, 2014. 

In a decision dated October 31, 2014, OWCP denied appellant’s claim because the 

evidence or record was insufficient to establish that the claimed medical condition was causally 

related to the accepted work-related events. 

On November 6, 2014 appellant requested an oral hearing which was held on 

July 6, 2015. 

Appellant submitted a November 11, 2014 report from Dr. Paul Chong, a Board-certified 

orthopedist, who treated her for right shoulder pain. She had reported that, on August 27, 2014, 

she forcefully pulled open a van door and her right arm was forced into external rotation. 

Appellant was diagnosed with a right rotator cuff tear and underwent right shoulder arthroscopic 

surgery on October 7, 2014. Dr. Chong noted physical examination of the right shoulder 

revealed no obvious deformity or infection, pain on range of motion, intact sensation, and 

positive impingement sign. He noted an x-ray of the right shoulder revealed a type two 

acromion and acromioclavicular degenerative joint disease. Dr. Chong diagnosed right shoulder 

pain, impingement, status post full rotator cuff tear repair, and possible strain. He opined that, 

based on appellant’s history, she sustained an injury which led to her having significant 

symptoms of pain and weakness in the right shoulder. Dr. Chong noted that MRI scan findings 

revealed an acute full-thickness rotator cuff tear. 

Appellant was treated by a nurse practitioner on March 2, 2015 for pain in her limb. She 

reported traveling for work on August 27, 2014 and hyperextending her right shoulder. 

Appellant noted that an MRI scan of the right shoulder revealed a full-thickness tear and she 

underwent surgery. The nurse practitioner diagnosed pain in the limb and muscle pain. 

On May 5, 2015 appellant was treated by Dr. Marvin Van Hal, a Board-certified 

orthopedist, for bilateral shoulder pain. She had reported performing an onsite inspection at 

work and upon exiting the vehicle she grabbed the release of the van door and extremely rotated 

and elevated her arm. Appellant suffered right shoulder pain, underwent right shoulder surgery 

on October 7, 2014, and continued to report residual symptoms of right and left shoulder pain. 

Physical examination revealed limited range of motion of bilateral shoulders, positive Phalen’s 

and Tinel’s sign of the right wrist, and intact motor strength in the upper extremity. Dr. Van Hal 

noted an x-ray of the left shoulder revealed tendinosis of supraspinatus and spurring in the 

acromioclavicular joint area. He diagnosed status post right shoulder surgery for rotator cuff tear 

and probable left shoulder rotator cuff tear. Dr. Van Hal opined that within reasonable medical 

probability the mechanism of injury of pulling upward and externally rotating her arm could 

exacerbate and aggravate an underlying degenerative shoulder condition. He indicated that the 

work incident described would be a “probable source” of the right shoulder rotator cuff injury 

documented by Dr. Whittenburg. In a report dated June 23, 2015, Dr. Van Hal explained that 

when he indicated that appellant’s work incident was a “probable source” of her right shoulder 

rotator cuff injury, he was unable to confirm this unequivocally, however, within a reasonable 

medical probability the right shoulder rotator cuff injury did appear to be causally related to the 

work incident based on his education, training, and experience in dealing with shoulder issues. 
4

In a decision dated September 9, 2015, an OWCP hearing representative affirmed the 

October 31, 2014 decision. 

On August 18, 2016 appellant requested reconsideration. She submitted an October 17, 

2007 report from Dr. Thomas Arthur Small, an internist, who treated her for right shoulder pain. 

Physical examination of the right shoulder revealed tenderness on palpation of the 

acromioclavicular joint, deltoid muscle, trapezius muscle, and rhomboid muscle, crepitus on 

palpation, and decreased range of motion. Dr. Small diagnosed tendinitis of the right shoulder. 

Reports from Dr. David H. Rice, a Board-certified pulmonologist, dated October 26, 2007 to 

January 23, 2008, noted appellant’s treatment for narcolepsy. 

Appellant submitted a July 11, 2011 report from Dr. Jeffrey J. Fisher, a Board-certified 

family practitioner, who treated her for sciatic nerve pain on and off for the past two years and 

right shoulder pain. She had reported a history of tendinitis. Dr. Fisher diagnosed back pain and 

shoulder joint pain. In an August 8, 2016 report, he noted that appellant had been treated several 

times, but had not mentioned that her shoulder condition was work related until after the 

March 2, 2015 office visit. Dr. Fisher noted that, pursuant to her description, he believed the 

incident that occurred on August 27, 2014 aggravated her preexisting nonwork-related right 

shoulder condition that resulted in the arthroscopic rotator cuff repair performed on 

October 7, 2014. A July 15, 2011 lumbar spine x-ray was normal. 

Appellant was treated by Dr. Geetha N. Shivakumar, a Board-certified psychiatrist, on 

May 16, 2012, for subsyndromal post-traumatic stress disorder. Dr. Shivakumar noted that 

appellant served in the Air Force from February 24, 1988 to February 29, 2008 and was 

honorably discharged. 

Appellant submitted physical therapy reports from August 19, 2013. She was also treated 

by a nurse practitioner on September 3, 2014 and February 5, 2015 for chronic tendinitis of the 

right shoulder, left shoulder pain, and bilateral wrist pain. 

In a decision dated September 27, 2016, OWCP denied modification of its 

September 9, 2015 decision. 

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 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 is causally related to 

the employment injury. 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.4

 3 Supra note 2. 

4 Gary J. Watling, 52 ECAB 357 (2001). 
5

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

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

There are two components involved in establishing fact of injury. 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. Second, the employee must submit medical evidence 

to establish that the employment incident caused a personal injury.5

Rationalized medical opinion evidence is generally required to establish causal 

relationship. The opinion of the physician must be based on a complete factual and medical 

background, 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.6

ANALYSIS 

It is undisputed that, on August 27, 2014, appellant opened a car door to exit a 

government vehicle parked on an incline. However, the Board finds that she has failed to submit 

sufficient medical evidence to establish that this work incident caused or aggravated her 

diagnosed right shoulder condition. 

Appellant submitted reports from Dr. Whittenburg dated September 15 and October 21, 

2014 who diagnosed complete rotator cuff rupture, shoulder bursae and tendon disorders, and 

rotator cuff disorders. On October 21, 2014 Dr. Whittenburg opined that he was unable to state 

that appellant’s condition was a direct cause of the work factors, but in his professional opinion 

her right shoulder injury “could have” been caused by a series of events that occurred on 

August 27, 2014. He indicated that he could not address preexisting conditions since appellant 

was not an established patient until September 15, 2014. 

Similarly, on May 5, 2015 appellant was treated by Dr. Van Hal who diagnosed status 

post arthroscopic rotator cuff repair of the right shoulder and acromioplasty on October 7, 2014. 

Dr. Van Hal opined that within reasonable medical probability that the mechanism of injury of 

pulling upward and externally rotating her arm “could” exacerbate and aggravate an underlying 

degenerative condition of her shoulder. He indicated that the work incident described could be a 

“probable source” of the right shoulder rotator cuff injury. Likewise, in a June 23, 2015 report, 

Dr. Van Hal indicated that he “could not confirm unequivocally”; however, within a reasonable 

medical probability the right shoulder rotator cuff injury did appear to be causally related to the 

work incident based on his education, training and experience in dealing with shoulder issues. 

The Board notes that Dr. Whittenburg and Dr. Van Hal’s reports provide some support 

for causal relationship, but are insufficient to establish that the claimed right shoulder rotator cuff 

tear was causally related to appellant’s employment duties. In Dr. Van Hal’s October 21, 2014 

report, Dr. Whittenburg opined that he could not state that her injury was a direct cause of the 

worker factors, but it “could have” been caused by a series of events that occurred. Similarly, he 

opined that the work incident described would be a “probable source” of the right shoulder 

 5

 T.H., 59 ECAB 388 (2008). 

6 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989). 
6

rotator cuff injury, but he “could not confirm unequivocally.” However, at best, these reports 

provide only speculative support for causal relationship as the physicians qualify their support by 

noting that appellant’s employment “could have” caused his condition or was a “probable 

source” of the injury. Dr. Whittenburg and Dr. Van Hal provided no medical reasoning to 

support their opinions on causal relationship.7

 Therefore, these reports are insufficient to meet 

appellant’s burden of proof. 

Appellant submitted a November 11, 2014 report from Dr. Chong who diagnosed right 

shoulder pain, impingement, and full-thickness rotator cuff tear status post arthroscopic repair. 

She had reported that on August 27, 2014, after pulling open a van door forcefully, her right arm 

was forced into external rotation. Dr. Chong opined that, based on appellant’s history, she 

sustained a work injury leading to significant symptoms of pain and weakness in the right 

shoulder. Similarly, in an August 8, 2016 report, Dr. Fisher opined that, pursuant to her report, 

he believed the incident that occurred on August 27, 2014 aggravated her preexisting nonworkrelated right shoulder condition that resulted in the arthroscopic rotator cuff repair performed on 

October 7, 2014. However, Drs. Chong and Fisher merely repeat the history of injury as 

reported by appellant without providing their own opinion regarding whether appellant’s 

condition was work related.8

 To the extent that they are providing their own opinion, 

Drs. Chong and Fisher failed to provide a rationalized opinion regarding the causal relationship 

between appellant’s right shoulder condition and the factors of employment believed to have 

caused or contributed to such condition.9 Therefore, these reports are insufficient to meet 

appellant’s burden of proof. 

Other medical reports either predate the claimed injury or do not specifically address 

whether appellant’s employment activities caused or aggravated a diagnosed medical condition. 

These reports are of limited probative value.10 

Appellant also submitted reports from a nurse practitioner and a physical therapist. The 

Board has held that treatment notes signed by nurse practitioners11 and physical therapists have 

no probative value as these providers are not considered physicians under FECA.12 Thus, the 

 7

 Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57 

ECAB 734 (2006). 

8 Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are 

speculative or equivocal in character have little probative value); see A.M., Docket No. 10-205 (issued October 5, 

2010) (a physician’s opinion must be independent from a claimant’s belief regarding causal relationship).

9 Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are 

entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001). 

10 A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an 

employee’s condition is of limited probative value on the issue of causal relationship). 

11 Paul Foster, 56 ECAB 208 (2004) (a nurse practitioner is not a “physician” pursuant to FECA). 

12 See David P. Sawchuk, 57 ECAB 316 (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). 
7

treatment records from a physical therapist and a nurse practitioner are of no probative medical 

value in establishing appellant’s claim. 

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 his condition was caused, precipitated, or aggravated by his employment is 

sufficient to establish causal relationship. Causal relationship must be established by 

rationalized medical opinion evidence.13 As appellant failed to submit such evidence, he has not 

met his burden of proof. 

Consequently, the Board finds that appellant has not submitted medical evidence 

sufficient to establish that appellant’s work activities on August 27, 2014 caused or aggravated a 

diagnosed medical condition. 

On appeal appellant, through her representative, asserts that OWCP improperly denied 

her claim noting that she believed she submitted sufficient evidence to establish that on 

August 27, 2014 her employment factors contributed to her right shoulder condition. The 

representative argues that it was not necessary for the employment injury by itself to have caused 

appellant’s condition in order for it to be compensable. Rather, he referenced Arnold 

Gustafson,14 and asserted that a person with a preexisting condition which was not disabling, but 

which becomes disabling because of aggravation related to employment is entitled to 

compensation.15 In Gustafson, the employee asserted that he had a myocardial infarction and 

coronary condition causally related to emotional stress he experienced at work. The Board 

determined that a person, with a preexisting condition which is not disabling but which becomes 

disabling because of aggravation related to employment, regardless of the degree of such 

aggravation, the resulting disability is compensable. 

In the case before us, however, appellant has failed to submit sufficient medical evidence 

establishing that her diagnosed right shoulder condition was caused or aggravated by her federal 

employment. She has not submitted a physician’s rationalized report of causal relationship based 

upon an accurate history of employment conditions, which describes how the work incident on 

August 27, 2014 caused or aggravated her right shoulder condition. The Board notes that 

medical rationale on causal relationship must be established before reference to the preexisting 

right shoulder condition.16

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. 

 13 See Dennis M. Mascarenas, 49 ECAB 215 (1997). 

14 41 ECAB 131 (1989). 

15 Rudy C. Sixta, Jr., 44 ECAB 727-31 (1993); Glenn C. Chasteen, 42 ECAB 493 (1991). 

16 See J.M., 58 ECAB 478 (2007) (where the Board found that appellant did not meet his burden of proof in 

establishing a work-related right wrist condition where his physician provided only conclusory support for causal 

relationship; medical rationale was particularly necessary given that appellant injured his wrist while lifting luggage 

in private employment); see also A.M., supra note 8 (the need for reasoning or rationale is especially important 

where the claimant has a prior injury history involving the claimed condition). 
8

CONCLUSION 

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

shoulder injury causally related to the August 27, 2014 employment incident. 

ORDER 

IT IS HEREBY ORDERED THAT the September 27, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 11, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board