United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.R., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Minneapolis, MN, Employer

__________________________________________

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Docket No. 17-0671

Issued: June 27, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 3, 2017 appellant, through counsel, filed a timely appeal from a December 15, 

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 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 has met her burden of proof to establish that her right 

shoulder condition is causally related to the accepted September 6, 2014 employment incident.

FACTUAL HISTORY

On November 9, 2015 appellant, a 45-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that she sustained a right shoulder injury on September 6, 2014 in the 

performance of duty. She stated that she was helping a patient sit on his bed and felt a pop in her 

right shoulder. Appellant did not stop work. 

In a November 23, 2015 development letter, OWCP advised appellant of the deficiencies 

of her claim and afforded her 30 days to submit additional evidence and respond to its inquiries. 

In response, appellant submitted a November 4, 2015 report from an unidentifiable 

healthcare provider who noted that the date of injury was September 1, 2014 and diagnosed workrelated upper back pain and right hand paresthesias. 

Appellant also submitted December 7, 2015 reports from Dr. Claire A. Saad, a Boardcertified family practitioner, who diagnosed a work-related right shoulder injury and ordered a 

magnetic resonance imaging (MRI) scan. Dr. Saad noted that appellant presented for a follow-up 

of a September 6, 2014 injury sustained while she was helping a patient at work. She reported that 

appellant’s pain had improved and then restarted again in September 2015 after she started helping 

patients who were in need complete care. Dr. Saad reported that appellant’s pain radiated to her

right arm and she experienced occasional numbness in the arm, as well. 

By decision dated December 28, 2015, OWCP denied the claim, finding that the medical 

evidence of record failed to establish that the claimed incident occurred as alleged. 

On February 2, 2016 appellant requested an oral hearing by a representative of OWCP’s

Branch of Hearings and Review. She submitted a January 28, 2016 narrative statement and a

partial MRI scan report dated February 8, 2016 in support of her claim. Appellant further 

submitted a December 21, 2015 attending physician’s report (Form CA-20) from Dr. Saad who 

reiterated her diagnosis of right shoulder injury and checked a box marked “yes” indicating her 

opinion that appellant’s condition was causally related to a September 6, 2014 employment 

incident. On February 9, 2016 Dr. Saad opined that appellant was capable of working with no 

lifting until she was seen by orthopedics. 

In a February 10, 2016 report, Dr. Patrick O’Keefe, a Board-certified orthopedic surgeon, 

diagnosed right shoulder rotator cuff tear and advised appellant to avoid painful activities and 

referred her to physical therapy. 

On February 10, 2016 appellant requested a review of the written record in lieu of an oral 

hearing. 

By decision dated February 24, 2016, OWCP denied appellant’s request for an oral hearing 

because it was untimely filed. It further indicated that it had exercised its discretion and further 
3

denied her request for the reason that the relevant issue of the case could be equally addressed by 

requesting reconsideration and submitting evidence not previously considered by OWCP. 

On March 10, 2016 appellant again requested reconsideration and submitted physical 

therapy reports dated February 18 and March 1, 10, 17, 24, and 31, 2016. She also submitted a 

hospital report dated March 7, 2016 regarding an urgent care visit for a right leg injury. 

By decision dated June 8, 2016, OWCP accepted that the September 6, 2014 employment 

incident occurred as alleged, but denied the claim because the medical evidence of record failed 

to establish causal relationship between appellant’s diagnosed condition and the accepted 

September 6, 2014 work incident. 

On June 27, 2016 appellant requested reconsideration and resubmitted a December 21, 

2015 attending physician’s report (Form CA-20) from Dr. Saad who further indicated that 

appellant had a right rotator cuff tear due to a work-related injury while helping a patient on 

September 6, 2014. She further submitted a complete version of the February 8, 2016 MRI scan 

report which demonstrated a right shoulder rotator cuff tear. 

By decision dated July 11, 2016, OWCP denied modification of its prior decision. 

On September 23, 2016 appellant, through counsel, requested reconsideration and 

submitted additional medical evidence. 

In a December 5, 2014 report, Dr. Steven Kirkhorn, a Board-certified occupational 

medicine specialist, diagnosed work-related right shoulder pain. He opined that appellant’s pain 

was mostly likely a simple supraspinatus muscle strain without a source of acute injury. A physical 

examination revealed no evidence of right shoulder impingement, tendinopathy, rotator cuff 

impairment, or instability. There was no clinical evidence of rotator cuff tear, bicipital 

subluxation, or acromioclavicular strain. Dr. Kirkhorn released appellant to work without 

restrictions that same day or next shift. 

On November 4, 2015 a physician assistant asserted that appellant was seen for a followup for a work injury dated October 1, 2014 when she was trying to help a patient sit on the bed 

and diagnosed back strain and right hand paresthesia. 

In two reports dated June 24, 2016, Dr. Karyn Leniek, a Board-certified occupational and 

preventative medicine specialist, diagnosed right supraspinatus tendon tear and chronic right 

shoulder pain. She noted that appellant sustained a right shoulder injury in August 2014 at work 

when she was helping an overweight patient. The patient was unable to sit on his own and, as 

appellant was assisting him, she outstretched her right arm and he pulled down on it. Appellant 

felt a pop, but did not experience an immediate onset of pain. A “couple of months” later she 

started having pain in her right shoulder. Appellant went back to work in a telemetry unit for 

approximately three months and her pain went away. When she returned to her regular unit, which 

required more patient handling, she started having right shoulder pain again in September 2015. 

Appellant reported caring for two patients who were total care and indicated her belief that this 

may have aggravated her shoulder. Upon physical examination, Dr. Leniek found no swelling, 

full passive range of motion, and negative Neers and Hawkins signs. She reviewed appellant’s 

medical records and opined that her right shoulder injury was “more likely than not related to 
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work.” Dr. Leniek explained to appellant that she did not see the need for permanent reassignment 

and provided work restrictions. 

On June 29, 2016 Dr. O’Keefe continued to diagnose right shoulder rotator cuff tear and 

recommended surgical intervention. 

In a July 21, 2016 progress report, Dr. Saad noted that appellant’s right shoulder pain was 

improving and explained that she could not alter work restrictions provided by occupational 

medicine. 

In progress reports dated July 29, September 23, and October 14, 2016, Dr. Leniek

continued to diagnose right shoulder pain with rotator cuff tear on MRI scan and opined that 

appellant’s work contributed to the rotator cuff tear, more specifically that the popping incident at 

work was the sole cause of the rotator cuff tear. She indicated that, while appellant’s symptom of 

right shoulder pain was delayed “by a couple weeks,” she still only had one episode at work that 

could have caused the tear and continued to do a physically demanding job. Dr. Leniek noted that 

appellant’s numbness and tingling of the hands was more likely due to carpal tunnel syndrome 

than from the shoulder injury. 

By decision dated December 15, 2016, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT

A claimant seeking benefits under FECA3 has the burden of proof to establish the essential 

elements of his or her claim by the weight of the reliable, probative, and substantial evidence, 

including that an injury was sustained in the performance of duty as alleged and that any specific 

condition or disability claimed is causally related to the employment injury.4

To determine if an employee sustained a traumatic 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 that must be considered in conjunction with one another. The 

first component is whether the employee actually experienced the employment incident that 

allegedly occurred.5 The second component is whether the employment incident caused a personal 

injury.6 An employee may establish that an injury occurred in the performance of duty as alleged, 

 

3

Id.

4 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5 Elaine Pendleton, 40 ECAB 1143 (1989).

6 Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between 

the diagnosed condition and the implicated employment factor(s) must be based on a complete factual and medical 

background. John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires 

rationalized medical opinion evidence to resolve the issue. Victor J. Woodhams, 41 ECAB 345, 352 (1989). 

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). Id.
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but fail to establish that the disability or specific condition for which compensation is being 

claimed is causally related to the injury.7

Certain healthcare providers such as physician assistants, nurse practitioners, physical 

therapists, and social workers are not considered “physician[s]” as defined under FECA.8 

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing 

entitlement to FECA benefits. 

ANALYSIS

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

shoulder condition is causally related to the accepted September 6, 2014 employment incident.

The February 8, 2016 MRI scan confirmed the diagnosis of right shoulder rotator cuff tear.

However, this diagnostic study does not address the etiology of appellant’s right shoulder

condition. With respect to the November 4, 2015 report diagnosing work-related upper back pain 

and right hand paresthesias, the Board notes that this report is unsigned and does not specifically 

address the cause of her conditions. The hospital report dated March 7, 2016 is related to an urgent 

care visit due to a right leg injury; it does not address appellant’s claim for a right shoulder 

condition. Appellant also submitted evidence from a physician assistant and physical therapists. 

These documents do not constitute competent medical evidence because neither physician 

assistants nor physical therapists are considered physicians as defined under FECA.9 

Consequently, the above-noted evidence is insufficient to meet appellant’s burden of proof.10

In her reports, Dr. Leniek diagnosed right rotator cuff tear and opined that appellant’s 

condition was causally related to helping an overweight patient. She indicated that the patient was 

unable to sit on his own and, as appellant was assisting him, she outstretched her right arm and he 

pulled down on it. Appellant felt a pop, but did not experience an immediate onset of pain. She 

returned to work in a telemetry unit for approximately three months and then reported right 

shoulder pain again in September 2015 after going back to work in her regular unit, which required 

more patient handling and total care of two patients in particular. Dr. Leniek noted that, while 

appellant’s symptom of right shoulder pain was delayed by “a couple weeks,” she still only had 

one episode at work that could have caused the tear and continued to do a physically demanding 

job. She opined that appellant’s work contributed to the rotator cuff tear, more specifically that 

the popping incident at work was the sole cause of the rotator cuff tear. However, the fact that a 

condition manifests itself during a period of employment is not sufficient to establish causal 

 

7 Shirley A. Temple, 48 ECAB 404, 407 (1997).

8 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

9 5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants); Jennifer L. Sharp, 48 ECAB 

209 (1996) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 

208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative 

medical evidence from a physician).

10 See supra notes 3 to 8.
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relationship.11 Temporal relationship alone will not suffice.12 Dr. Leniek’s reports did not include 

sufficient medical rationale explaining how the September 6, 2014 patient incident either caused 

or contributed to appellant’s diagnosed right rotator cuff tear. For these reasons, the Board finds 

that her medical opinions are insufficient to establish that appellant’s diagnosed right shoulder

condition is causally related to the September 6, 2014 work incident.

The earliest report was from Dr. Saad who diagnosed right rotator cuff tear due to a helping 

a patient at work on September 6, 2014. She indicated that appellant’s pain had improved and then

restarted again in September 2015 after appellant started helping patients who needed complete 

care. The Board finds that Dr. Saad failed to provide sufficient medical rationale explaining how 

helping a patient sit on September 6, 2014 either caused or contributed to appellant’s right shoulder 

condition. A physician’s opinion must be supported by medical rationale, explaining the nature 

of the relationship between the diagnosed condition and appellant’s specific employment 

factor(s).13 Thus, the Board finds that Dr. Saad’s reports are insufficient to establish that appellant 

sustained an employment-related injury on September 6, 2014.

In his reports, Dr. O’Keefe diagnosed right shoulder rotator cuff tear and recommended 

surgical intervention. Nevertheless, the Board has held that medical evidence that does not offer 

any opinion regarding the cause of an employee’s condition is of limited probative value on the 

issue of causal relationship.14 Therefore, this evidence is insufficient to establish that appellant 

sustained an employment-related injury.

Dr. Kirkhorn diagnosed work-related right shoulder pain and opined that it was mostly 

likely a simple supraspinatus muscle strain without a source of acute injury. The Board finds that 

his report is of limited probative value as it fails to address whether the accepted September 6, 

2014 employment incident caused a diagnosed condition.15 Thus, appellant has not met her burden 

of proof with this evidence.

As appellant has not submitted rationalized medical evidence sufficient to establish her 

claim that she sustained a right shoulder injury causally related to the September 6, 2014 

employment incident, she has failed to meet her burden of proof to establish entitlement to FECA 

benefits.

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.

 

11 20 C.F.R. § 10.115(e).

12 See D.I., 59 ECAB 158, 162 (2007).

13 Victor J. Woodhams, supra note 6.

14 See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

15 See P.S., Docket No. 12-1601 (issued January 2, 2013). The Board has consistently held that pain is a symptom, 

rather than a compensable medical diagnosis.
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CONCLUSION

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

shoulder condition is causally related to the accepted September 6, 2014 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the December 15, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 27, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board