United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

CARL T. HAYDEN VETERANS MEDICAL 

CENTER, Phoenix, AZ, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-0931

Issued: October 2, 2019

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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 27, 2019 appellant, through counsel, filed a timely appeal from a March 8, 2019 

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 to consider 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 his burden of proof to expand the acceptance of his 

claim to include additional right shoulder conditions causally related to his accepted May 5, 2017 

employment injury.

FACTUAL HISTORY

On July 18, 2017 appellant, then a 55-year-old housekeeping aid, filed a traumatic injury 

claim (Form CA-1) alleging that on May 5, 2017 he strained and sprained his right shoulder when 

he tried to “untighten” a piece of equipment attached to an operation table while in the performance 

of duty.

Appellant was initially treated at the employing establishment’s health unit. In a progress 

note dated May 10, 2017, Dr. Nanette T. Auriemma, a Board-certified internist, indicated that 

appellant related a history of injury that on May 5, 2017 he strained his right shoulder while trying 

to loosen a clamp on equipment that he was removing from a bed at work. She reported findings 

on physical examination, provided an assessment of acute strain of the right shoulder, and listed 

appellant’s work restriction. In a progress note dated May 24, 2017, Dr. Auriemma reexamined 

appellant and provided an assessment of resolving right shoulder strain.

OWCP received an employing establishment incident report dated May 10, 2017. 

Appellant described that on May 5, 2017 he was working in an operating room (OR) and he 

attempted to disengage a very tightly placed piece of equipment on an OR table used for a specific 

surgical procedure by using his gloved hands to twist the knob open, which resulted in overexertion 

of his right shoulder. He did not give it much thought that day, finished his shift, and went home 

and medicated creams/pads on the affected area. By Monday, appellant still had discomfort and 

sought medical attention in the employing establishment occupational health unit. He lost no time 

from work and was placed on restricted duty.

OWCP thereafter received reports by physical therapists who noted diagnoses of 

unspecified injury muscle(s) and tendon(s) of right shoulder rotator cuff, initial encounter, and 

right shoulder pain.

Additional medical evidence was received from Dr. Auriemma. In a report and a progress 

note dated July 25, 2017 and an undated duty status report (Form CA-17), Dr. Auriemma noted a 

date of injury as May 5, 2017 and reiterated her diagnosis of right shoulder strain, diagnosed 

persistent right shoulder pain, and listed appellant’s work restrictions. In the Form CA-17 report,

she noted that the diagnosed right shoulder strain was due to the “May 10, 2017” employment 

incident.3

In a report of employee’s treatment dated September 28, 2017, Erlinda M. Singarajah, a 

certified nurse practitioner from the employing establishment’s health unit, advised that appellant 

could return to full-duty work and continue his physical therapy treatment.

 

3 The date of incident noted by Dr.Auriemma appears to be a typographical error.
3

Dr. Hermenegildo H. Almaria, Jr., a Board-certified diagnostic radiologist, in a right 

shoulder x-ray report dated July 25, 2017, provided an impression of slight narrowing of the 

acromioclavicular joint space.

In a consultation note dated January 26, 2018, Dr. Richard J. Orbon, a Board-certified 

orthopedic surgeon, indicated that appellant related a history of injury of lifting a heavy object in 

an OR with immediate right shoulder pain and weakness. He discussed findings on physical 

examination. Dr. Orbon noted that an x-ray of the right shoulder revealed a torn long head biceps 

tendon, which required rotator cuff repair.

Dr. Stephen Shinault, a Board-certified diagnostic radiologist, provided impressions of a 

right shoulder magnetic resonance imaging scan report dated April 20, 2018. He indicated severe 

diffuse tendinosis along the rotator crescent; diffuse high-grade partial articular surface tearing and 

bursal surface fraying distal supraspinatus and infraspinatus tendons, two centimeter (cm) x two

cm (coronal x sagittal dimension, respectively) full-thickness tear infraspinatus tendon, and 

Goutallier grade 1 supraspinatus muscle atrophy. Dr. Shinault also provided impressions of fullthickness tear subscapularis tendon deep and superficial fibers, teres minor tendon intact, and 

Goutallier grade 3 subscapularis muscle atrophy. He further provided impressions of 

degenerative-type raying and tearing anterosuperior and anteroinferior labrum, complete tear 

proximal long head biceps tendon from the labral biceps anchor, residual extra-articular tendon 

fibers located along the bicipital groove, capsule and capsuloligamentous structures maintained,

grade 2 to 3 glenohumeral joint and superior humeral head articular surface chondromalacia, no 

acute fracture nor distinct osseous sequela of prior dislocation injury, mild acromioclavicular joint 

degenerative arthrosis with a slight laterally downsloping type 1 acromion, small glenohumeral 

joint effusion and no distinct loose bodies in the synovial space, and regions and structures of the 

suprascapular and spinoglenoid notches, as well as quadrilateral and axillary spaces maintained

and no signal alterations to suggest denervation-type injury.

In a report dated July 26, 2018, Dr. Kostas J. Economopoulos, a Board-certified orthopedic 

surgeon, noted that appellant presented for evaluation of his right shoulder, which he injured in 

May 2017 while “undoing and pulling a strap on an OR bed.” He discussed findings on physical 

examination and reviewed diagnostic test results. Dr. Economopoulos provided assessments of 

right shoulder pain, rotator cuff tear, and biceps tear. He recommended right rotator cuff repair. 

Dr. Economopoulos advised that appellant could return to work with no restrictions as of 

July 26, 2018.

OWCP, in a development letter dated August 13, 2018, informed appellant that, when his 

claim was received, it appeared to be for a minor injury that resulted in minimal medical bills and 

minimal or no lost time from work and, based on these criteria and because the employing 

establishment did not controvert continuation of pay or challenge the case, payment of a limited 

amount of medical expenses was administratively approved. It reopened the claim for formal 

consideration of the merits because he had requested authorization for surgery. OWCP requested 

that appellant submit a narrative medical report from his physician which contained a detailed 

description of findings and diagnoses, explaining how the reported work activities caused, 

contributed to, or aggravated his medical condition. It also provided a questionnaire for his 

completion. OWCP afforded appellant 30 days to respond. No response was received within the 

time allotted.
4

By decision dated September 17, 2018, OWCP denied appellant’s traumatic injury claim, 

finding that the factual component of fact of injury had not been established. It also found that he 

had not submitted medical evidence to establish a diagnosed medical condition causally related to 

the alleged employment incident. OWCP concluded, therefore, that appellant had not met the 

requirements to establish an injury as defined by FECA.

On September 21, 2018 appellant, through counsel, requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearings and Review.

In a narrative statement dated September 25, 2018, appellant responded to OWCP’s 

development questionnaire. He described the circumstances surrounding the May 5, 2017 

employment incident, a right shoulder diagnosis, and subsequent course of treatment.

OWCP subsequently received a Certification of Health Care Provider for Employee’s 

Serious Medical Condition (Family and Medical Leave Act (FMLA)) dated November 14, 2018 

and completed by Dr. Economopoulos. Dr. Economopoulos noted that appellant had right 

shoulder pain that commenced May 5, 2017. He related that the probable duration of his condition 

was from the date of his report to April 14, 2019. Dr. Economopoulos also related that appellant

was incapacitated and unable to perform a certain job function due to the condition during this 

period.

During a telephonic hearing, held on January 30, 2019, appellant again described the 

circumstances surrounding the May 5, 2017 employment incident.

Following the hearing, OWCP received a witness statement dated January 22, 2019 from 

appellant’s coworker who indicated that he was present when appellant injured his shoulder while 

cleaning a table in procedure room number 4 at work. The coworker related that the table had a 

very heavy and awkward piece of equipment on it. He reported that appellant suddenly yelled and 

when he turned around appellant was grabbing his shoulder.

An OWCP hearing representative, by decision dated March 8, 2019, modified and affirmed 

the September 17, 2018 decision. The decision found that the factual evidence was sufficient to 

establish that the May 5, 2017 employment incident occurred, as alleged. The hearing 

representative accepted that appellant sustained a right shoulder strain in connection with the 

accepted May 5, 2017 employment incident. However, it was determined that the medical

evidence of record was insufficient to establish additional right shoulder conditions causally 

related to the accepted May 5, 2017 employment incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that he or she 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 

 

4

Id.
5

specific condition for which compensation is claimed is causally related to the employment injury. 5 

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.6

When an employee claims that a condition not accepted or approved by OWCP was due to 

an employment injury, he or she bears the burden of proof to establish that the condition is causally 

related to the employment injury.7 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 based on a complete factual and medical 

background, supporting such a causal relationship.8 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. 9 

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.10

ANALYSIS

The Board finds that appellant has not met his burden of proof to expand the acceptance of 

his claim to establish that the acceptance of his claim should be expanded to include additional 

right shoulder conditions causally related to his accepted May 5, 2017 employment injury.

Dr. Orbon’s January 26, 2018 consultation note related a history of the accepted May 5, 

2017 employment incident and diagnosed a torn long head biceps tendon of the right shoulder that 

required rotator cuff repair. Dr. Economopoulos’ July 26, 2018 report also provided a history of 

the accepted employment incident of May 5, 2017. He diagnosed right shoulder pain, rotator cuff 

tear, and biceps tear, and recommended right rotator cuff repair. Neither physician offered a 

medical opinion, finding that the diagnosed conditions were causally related to the accepted work 

injury.11 Further, in his November 14, 2018 FMLA certification of health care provider form,

Dr. Economopoulos diagnosed right shoulder pain that commenced May 5, 2017. However, the 

Board has held that pain is a symptom, not a diagnosis and therefore does not constitute the basis 

 

5

See F.H., Docket No. 18-1238 (issued January 18, 2019); Tracey P. Spillane, 54 ECAB 608 (2003).

6 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

DeloresC. Ellyett, 41ECAB 992 (1990).

7

See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

8

See S.A., Docket No. 18-0399 (issued October 16, 2018).

9

See P.M., Docket No. 18-0287 (issued October 11, 2018).

10 F.H., supra note 5.

11 See R.J.,Docket No. 17-1365 (issued May 8, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018).
6

for the payment of compensation.12 For the foregoing reasons, the Board finds that these reports 

are insufficient to establish appellant’s burden of proof.

The diagnostic reports of Dr. Almaria and Dr. Shinault addressed appellant’s right shoulder 

conditions. Diagnostic studies are of limited probative value as they do not address whether the 

employment incident caused any of the diagnosed conditions.13 These reports, therefore, are also 

insufficient to establish appellant’s claim.

Appellant submitted reports from his physical therapists. This evidence has no probative

medical value because a physical therapist is considered a “physician” as defined under FECA.14 

The Board finds that appellant has not submitted sufficient rationalized medical evidence 

to establish causal relationship between the accepted May 5, 2017 employment injury and the 

claimed additional right shoulder conditions. As such, appellant has not met his burden of proof.

On appeal counsel contends that OWCP’s March 8, 2019 decision is contrary to fact and 

law. For the reasons set forth above, the Board finds that appellant has not met his burden of proof.

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.

CONCLUSION

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

acceptance of his claim should be expanded to include additional right shoulder conditions causally 

related to his accepted May 5, 2017 employment injury.

 

12 R.J., id.; John L.Clark, 32 ECAB 1618 (1981).

13 See R.J.,id.; E.G., Docket No. 17-1955 (issued September 10, 2018).

14 5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. 

See 5 U.S.C. § 8102(2); S.O., Docket No. 19-0307 (issued June 18, 2019); J.B., Docket Nos. 18-1751 and 19-0792 

(issued May 6, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician 

assistants and physical therapists are not competent to render a medical opinion under FECA). See also GloriaJ.

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). 
7

ORDER

IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: October 2, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board