United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Summerville, SC, Employer

__________________________________________

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Docket No. 19-1176

Issued: December 13, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 1, 2019 appellant, through counsel, filed a timely appeal from an April 5, 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 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 his burden of proof to establish right knee and 

shoulder conditions causally related to May 8 or June 18, 2014 accepted employment incidents.

FACTUAL HISTORY

This case has been previously been before the Board.3 The facts and circumstances of the 

case as set forth in the Board’s prior decision and order are incorporated herein by reference. The 

relevant facts are as follows.

On June 18, 2014 appellant, then a 55-year-old rural letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her right knee and right shoulder on May 8, 2014 

when she jammed on brakes to stop suddenly while delivering mail in her postal vehicle. Under 

this claim, adjudicated by OWCP under File No. xxxxxx360, she submitted medical evidence from

Dr. Nancy Lembo, an osteopath Board-certified in physical medicine and rehabilitation, who 

diagnosed right shoulder and right knee pain and effusion, medial collateral ligament (MCL) 

sprain, and right shoulder biceps tendinitis. 

The employing establishment controverted this claim, noting that appellant had not 

reported hitting her knee or other injury to her knee or shoulder until six weeks after the motor 

vehicle accident, and that she continued to work full duty until June 18, 2014 when her physician 

placed her off work.

By decision dated July 29, 2014, OWCP denied the claim under File No. xxxxxx360, 

finding that, although appellant established that the claimed May 8, 2014 employment incident 

occurred, the medical evidence of record was insufficient to establish that the incident caused an 

injury and/or medical condition causally related to the accepted employment incident.

On August 6, 2014 appellant filed a second traumatic injury claim (Form CA-1), alleging 

that on June 18, 2014 she injured her right shoulder and right knee when she stepped back and fell

while in the performance of duty. OWCP adjudicated this claim under File No. xxxxxx120. The 

employing establishment challenged this claim noting that, although there were other employees

near appellant sorting mail, no one saw her fall, but just saw her sitting on the floor.

By decision dated September 22, 2014, OWCP denied the claim, under File No. 

xxxxxx120. It found that appellant had not submitted sufficient evidence to establish that the 

alleged injury and/or event had occurred as alleged. OWCP concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA. 

By decision dated May 6, 2015, issued under File No. xxxxxx360, an OWCP hearing 

representative affirmed the July 29, 2014 decision. By decision dated July 24, 2015, issued under 

File No. xxxxxx120, an OWCP hearing representative affirmed the September 24, 2014 decision,

as modified, finding that the evidence of record was sufficient to establish that the claimed June 18, 

 

3 Docket No. 16-1661 (issued February 10, 2017); Order Remanding Case, Docket No. 18-0592 (issued 

February 6, 2019). 
3

2014 employment incident occurred as alleged, but that the medical evidence submitted was 

insufficient to establish that diagnosed conditions were caused by the accepted employment 

incident. By decisions dated February 18 and July1, 2016 under File No. xxxxxx360, OWCP 

denied modification of its prior decisions. By decision dated July 25, 2016, issued under File No. 

xxxxxx120, OWCP also denied modification of the prior decisions. 

Appellant, through counsel, filed an appeal with the Board on August 17, 2016. By

decision dated February 10, 2017, the Board found that appellant had not met her burden of proof 

to establish either a right knee and/or a right shoulder injury on May 8, 2014 or on June 18, 2014. 

The Board affirmed the July 1 and 25, 2016 merit decisions of OWCP.4

On August 15, 2017 counsel requested reconsideration with OWCP. 

Medical evidence of record submitted subsequent to the July 2016 merit decisions includes

treatment notes completed by Anushaya Fitzgerald, a physician assistant, dated March 27, 

April 10, July 30, and September 3, 2015. 

In an August 30, 2016 report, Dr. Michael A. Kavanagh, an attending Board-certified 

orthopedic surgeon, noted that appellant had been treated in his office since December 29, 2014 

for right knee and right shoulder injuries that occurred on May 8, 2014, and that she had another 

incident at work on June 18, 2014 when her knee buckled and she fell.5 He indicated that, after 

reviewing a right knee magnetic resonance imaging (MRI) scan report and examining appellant, 

he recommended right knee surgery.6 Dr. Kavanagh maintained that appellant’s conditions were 

directly related to the original injury of May 8, 2014. In a July 11, 2017 report, he indicated that 

on May 8, 2014 (OWCP File No. xxxxxx360), while delivering mail, appellant’s right shoulder 

was wrenched when she jerked her steering wheel because a vehicle pulled in front of her causing 

her to hit her right knee on something on the dash. Dr. Kavanagh reiterated the conclusions 

expressed in his August 30, 2016 report. 

By decision dated December 12, 2017, OWCP denied modification of the prior decisions. 

On January 26, 2018 appellant filed an appeal with the Board. By order dated February 6, 

2019, the Board found that OWCP should administratively combine File Nos. xxxxxx360 and 

xxxxxx120, to be followed by a de novo decision on appellant’s claims for right shoulder and right 

knee conditions.7

OWCP administratively combined the files on April 5, 2019, with OWCP File No. 

xxxxxx360 serving as the master file. No additional medical evidence was submitted to either 

 

4

Id.

5

In a December 29, 2014 report, Dr. Kavanagh diagnosed internal derangement, meniscal, early osteoarthritis, and 

chondromalacia of the right knee, and rotator cuff labral/biceps dysfunction of the right shoulder.

6 Although the record does not contain an operative report, in treatment notes dated January 16 and 30, 2015,

Dr. Kavanagh described postoperative care.

7 Supra note 3.
4

record. By decision dated April 5, 2019, OWCP denied that appellant sustained right shoulder and 

right knee injuries. It found that Dr. Kavanagh merely provided conclusory opinions regarding 

the cause of these conditions such that his opinion was of insufficient rationale to support her 

claim. 

LEGAL PRECEDENT

An employee seeking benefits under FECA8 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 timely filed within the applicable 

time limitation of FECA,9that an injury was sustained in the performance of duty as alleged, and 

that any disability or medical condition for which compensation is claimed is causally related to 

the employment injury.10 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.11

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

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

the employee must submit sufficient evidence to establish that he or she actually experienced the 

employment incident at the time and place, and in the manner alleged. Second, the employee must 

submit sufficient evidence, generally in the form of medical evidence, to establish that the 

employment incident caused a personal injury.12

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

relationship is rationalized medical opinion evidence.13 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 incident.14 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.15

 

8 Supra note 2.

9 M.C., Docket No. 19-0744 (issued September 23, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); 

J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

10 D.H., Docket No. 19-0803 (issued September 10, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); 

R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).

11 S.C., Docket No. 18-1242 (issued March 13 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); 

L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

12 K.K., Docket No 19-1193 (issued October 21, 2019); R.C., Docket No. 19-0376 (issued July 15, 2019).

13 K.K., id.; M.B., Docket No. 17-1999 (issued November 13, 2018).

14 N.G., Docket No. 19-0928 (issued September 13, 2019); M.L., Docket No. 18-1605 (issued February 26, 2019).

15 Id.
5

ANALYSIS

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

shoulder conditions causally related to the accepted May 8 or June 18, 2014 employment incidents.

Preliminarily, the Board notes that it is unnecessary to consider the evidence appellant 

submitted prior to the issuance of OWCP’s July 25, 2016 decision because the Board considered

that evidence in its February 10, 2017 decision.16

The medical evidence of record in the consolidated record that had not been previously 

reviewed by the Board includes reports from Dr. Kavanagh. In an August 30, 2016 report, 

Dr. Kavanagh noted that appellant had been treated in his office since December 29, 2014 for right 

knee and right shoulder injuries that occurred on May 8, 2014, and that she had another incident 

at work on June 18, 2014 when her knee buckled and she fell. He indicated that he recommended 

surgery after reviewing a right knee MRI scan report and examining appellant. Dr. Kavanagh 

maintained that appellant’s conditions were directly related to the original injury of May 8, 2014. 

In a July 11, 2017 report, he indicated that on May 8, 2014, while delivering mail, appellant 

wrenched her right shoulder when she jerked her steering wheel because a vehicle pulled in front 

of her, and that at that time her right knee hit something on the dash, causing injury to the right 

knee. Dr. Kavanagh reiterated the conclusions expressed in his August 30, 2016 report. He did 

not attribute appellant’s right shoulder and right knee diagnoses to the June 18, 2014 employment 

incident, as he provided no opinion causally relating her right shoulder or knee conditions to the 

June 18, 2014 employment incident, his reports are of no probative value on this issue.17 The 

Board finds that there is no probative medical evidence sufficient to establish a June 18, 2014 

employment injury.18 

Regarding the May 8, 2014 employment incident, Dr. Kavanagh reported a history that 

appellant wrenched her right shoulder when she jerked her steering wheel because a vehicle pulled 

in front of her and hit her right knee on something on the dash at that time. The record indicates 

that appellant continued to work full duty until June 18, 2014, and the evidence of record does not

contain any medical evidence dated prior to June 18, 2014. Dr. Kavanagh did not begin treating 

appellant until December 29, 2014. 

In its February 10, 2017 decision,19 the Board found Dr. Kavanagh’s opinion of insufficient 

rationale because his reports were speculative as to the specific mechanism of injury and 

conclusory without the necessary rationale explaining how and why work factors were sufficient 

to result in the diagnosed medical conditions. 

 

16 V.S., Docket No. 19-0936 (issued October 7, 2019); T.J., Docket No. 18-1477 (issued April 4, 2019).

17 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

18 See D.R., Docket No. 19-0954 (issued October 25, 2019); see also M.V., Docket No. 18-1132 (issued 

September 16, 2019). 

19 Supra note 3.
6

The Board again finds Dr. Kavanagh’s medical reports speculative as to the specific 

mechanism of injury and, therefore, his new submissions are entitled to little probative value. 

Dr. Kavanagh merely provided a conclusory opinion on the issue a causal relationship, indicating 

that on May 8, 2014, while delivering mail, appellant wrenched her right shoulder when she jerked 

her steering wheel because a vehicle pulled in front of her, and that at that time, her right knee hit 

something on the dash, causing injury to the right knee. He did not provide a rationalized opinion 

as to how jerking her shoulder or hitting something on the dash caused any diagnosed conditions. 

A mere conclusory opinion provided by a physician without the necessary rationale explaining 

how and why the incident or work factors were sufficient to result in the diagnosed medical 

conclusion is insufficient to meet a claimant’s burden of proof to establish a claim.20

The March 27 to September 3, 2015 treatment notes by Ms. Fitzgerald, a physician 

assistant, are also insufficient to establish appellant’s claim because a physician assistant is not 

considered a “physician” under section 8102(2) of FECA. Therefore, her opinion does not 

constitute competent medical evidence.21

As there is no well-reasoned medical opinion establishing appellant’s claims for 

compensation, the Board finds that she has not met her burden of proof to establish an injury 

causally related to either the May 8 or June 18, 2014 accepted employment incidents.22

On appeal counsel contends that OWCP’s April 5, 2019 decision is contrary to fact and 

law. For the reasons set forth above, the Board finds that appellant has not met her 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 and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not established right knee or shoulder conditions 

causally related to the accepted May 8 or June 18, 2014 employment incidents. 

 

20 F.D., Docket No. 19-0932 (issued October 3, 2010); Docket No. 16-1661, supra note 3.

21 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 L.S., Docket No. 18-0650 (issued September 3, 2019).

22 See B.K., Docket No. 19-0829 (issued September 25, 2019).
7

ORDER

IT IS HEREBY ORDERED THAT the April 5, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 13, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board