United States Department of Labor

Employees’ Compensation Appeals Board

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D.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Jamaica, NY, Employer

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Docket No. 18-0181

Issued: May 22, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 1, 2017 appellant filed a timely appeal of an August 11, 2017 merit 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 the case.2

ISSUE

The issue is whether appellant met her burden of proof to establish a left upper extremity 

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

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence after OWCP rendered its August 11, 2017 decision. 

The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. 

Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1). 
2

On appeal appellant contends that the diagnostic reports of record establish that she 

required left shoulder and elbow surgery due to her federal employment. 

FACTUAL HISTORY

On May 10, 2016 appellant, then a 47-year-old mail handler, filed a traumatic injury claim 

(Form CA-1) alleging that on May 4, 2016 she fractured her left elbow while loading heavy tri 

walls up ramps using a hand jack. She stopped work on May 7, 2016. 

In a May 7, 2016 radiology report, Dr. Timothy G. DeZasiro, a Board-certified radiologist, 

noted that three views of appellant’s left shoulder revealed no evidence of fracture, subluxation,

or acute articular abnormality of the glenohumeral or acromioclavicular joint spaces. The three 

views of the left elbow suggested a subtle fracture of the coronoid process along its medial side. 

In a development letter dated May 20, 2016, OWCP informed appellant that further evidence, 

including medical evidence, was necessary to support her claim. It afforded appellant 30 days to 

submit additional evidence. 

In a May 22, 2016 statement, appellant recounted the history of her injury indicating that 

her left shoulder and elbow began hurting a week before her claimed date of injury of May 4, 2016. 

She noted that the pallets were heavy and that due to her shoulder pain she had requested help days 

prior to push the pallets onto the trailer. Appellant stated that she did not want to continue to work 

in that capacity due to her increased pain.

In a June 13, 2016 report, Dr. Kenneth McCulloch, a Board-certified orthopedic surgeon,

noted that appellant had a work-related injury on May 4, 2016 affecting her left elbow and left 

shoulder. He diagnosed left elbow traumatic lateral epicondylitis and left shoulder rotator cuff 

tendinopathy. Dr. McCulloch recommended obtaining a magnetic resonance imaging (MRI) scan 

of appellant’s left elbow and left shoulder because appellant’s symptoms had been persistent

despite conservative measures. In a September 12, 2016 report, he summarized his treatment of 

appellant. Dr. McCulloch noted that he had evaluated appellant on a monthly basis from May 16 

through September 12, 2016. He noted that treatment of appellant’s symptoms has been 

conservative including physical therapy, anti-inflammatories, and activity modification, but that

her symptoms had been persistent. Dr. McCulloch noted that appellant remained disabled from 

her job with the employing establishment. He requested MRI scan studies. Dr. McCulloch listed 

appellant’s diagnoses as impingement and rotator cuff tendinopathy of the left shoulder and left 

elbow traumatic lateral epicondylitis. He further indicated that appellant was asymptomatic up 

until acute change in function occurred on May 4, 2016 when she was lifting a very heavy object 

and in the process of doing so injured her left shoulder and left elbow. 

In a decision dated September 23, 2016, OWCP noted that appellant originally filed this a 

traumatic injury claim, but it converted the claim into an occupational disease claim. It determined 

that she established that employment factors occurred as alleged. However, OWCP denied 

appellant’s claim because she had not established a causal relationship between the accepted 

employment factors and the medical diagnosis.

On November 11, 2016 appellant requested reconsideration. 
3

In a notice of occupational disease (Form CA-2) dated November 21, 2016, appellant noted 

that she had originally filed her claim for traumatic injury; however, she sustained injury to her 

left arm and shoulder due to loading trailers for a period exceeding two years. She related that the 

weight of the pallets she was pushing on an incline ramp hurt her arm and shoulder. 

On October 26, 2016 appellant had an MRI scan of her left shoulder, which was interpreted 

by Dr. Michael Brown, a Board-certified radiologist, as showing moderate insertional 

supraspinatus tendinosis and mild infraspinatus tendinosis. 

On October 31, 2016 Dr. McCulloch released appellant to return to work on 

December 12, 2016. 

In a January 20, 2017 decision, OWCP conducted a merit review of appellant’s claim, but 

denied modification of the September 23, 2016 decision as it determined that she had not 

established a causal relationship between the diagnosed conditions and the accepted factors of her 

federal employment. 

Following the January 20, 2017 decision, OWCP received a December 22, 2016 report

from Dr. McCulloch which related that appellant was seen for injuries to her left shoulder and left 

elbow which developed over a period of time as a result of her duties working as a mail handler 

for employing establishment. Dr. McCulloch opined that her elbow injury was a repetitive stress 

injury which occurred as a result of repetitive use of the left arm and elbow as a mail handler. He

further noted that appellant developed supraspinatus tendinosis and blunting of the supraspinatus 

tendon on the humeral head with moderate impingement and superior labral tearing as well. Dr. 

McCulloch noted that OWCP had denied the request for left shoulder arthroscopic intervention 

and had also denied his request for an MRI scan of the left elbow. He noted that appellant’s 

complaints were unchanged from previous multiple visits with pain and weakness in her left 

shoulder, worse with overhead movement, which was adversely impacting her activities of daily 

living. Dr. McCulloch noted that she had no improvement with conservative measures and 

reported pain on a visual analog scale of 8/10. He noted that appellant continued to have pain and 

weakness in the left elbow and had indicated that the lateral aspect of the elbow was the epicenter 

of the pain. Dr. McCulloch noted that she had failed conservative therapy, and again requested 

authorization for arthroscopic surgical intervention for the left shoulder. He concluded that 

appellant’s left elbow injury was a repetitive stress injury that was the result of repetitive twisting, 

pushing and pulling of the arm and required a high-field 3.0 Tesla MRI scan. Dr. McCulloch

related that the history of injury provided by appellant, the physical examination, and diagnosis 

corresponded. Therefore, he opined that the conditions were causally related to appellant’s work 

as a mail handler. Dr. McCulloch noted that she remained disabled from her job.

In a March 16, 2017 report, Dr. McCulloch added that the history of appellant’s onset of 

symptoms and job requirements, which included repetitive use of her shoulder and arm for lifting,

pushing, pulling, grasping, twisting of up to 70 pounds, were consistent with appellant’s injuries. 

He also noted that she had no previous history of injury to her left shoulder or elbow. 

Dr. McCulloch responded to OWCP’s opinion by stating that the mechanism of the injury was 

very clear and that appellant injured her left shoulder and left elbow with repetitive use of her left 

shoulder and arm lifting, pushing, pulling, twisting heavy items up to 70 pounds, including
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pronating, supinating flexing, and extending, which led to rotator cuff and labral tears of the left 

shoulder and lateral epicondylitis of the left elbow. 

In an April 27, 2017 report, Dr. McCulloch again noted that appellant developed pain in 

her left shoulder and elbow over a period of time due to repetitive flexing, extending, supinating 

and pronating the left elbow and with lifting, pushing and pulling involving abduction, forward 

flexion, eternal rotation and internal rotation of the left shoulder, and repetitive lifting up to 70 

pounds. He opined that, as a result, she developed supraspinatus tendinitis with intrasubstance 

tearing of the rotator cuff and superior labral tearing injuries that are known to be produced by her

work activities which have been carefully documented in each of his visits with appellant. 

Dr. McCulloch further noted that appellant was reporting deterioration in her left shoulder and left 

elbow function as a result of the delay in receiving medical treatment. He concluded that she

remained disabled due to her injury. 

On May 15, 2017 appellant requested reconsideration. 

In a June 13, 2017 report, Dr. McCulloch noted that, on multiple occasions, he had

carefully documented the history and mechanism of appellant’s injury, including the findings on 

physical examination that were consistent with her history of injury. He argued that OWCP’s 

denial of appellant’s claim was erroneous. 

By decision dated August 11, 2017, OWCP denied modification of it prior decisions. It

found that appellant’s treating physician had not provided a diagnosis supported by diagnostic 

testing. 

LEGAL PRECEDENT

An employee seeking benefits under FECA 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 period of FECA,3that 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.4 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.5 

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

 

3 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

5 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).
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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.6

Whether an employee sustained an injury requires the submission of rationalized medical 

opinion evidence.7 The opinion of the physician must be based on a complete factual and medical 

background of the employee, must be one of reasonable medical certainty, and must be supported 

by medical evidence explaining the nature of the relationship between the diagnosed condition and 

the specific employment factors identified by the employee.8 The weight of the 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.9 

Proceedings under FECA are not adversarial is nature, nor is OWCP a disinterested 

arbiter.10 OWCP shares the responsibility in the development of the evidence to see that justice is 

done.11

ANALYSIS

The Board finds that this case is not in posture for decision.

An employee who claims benefits under FECA has the burden of establishing by the weight 

of reliable, probative, and substantial evidence that the condition for which compensation is sought 

is causally related to a specific employment incident or work factors. As part of this burden, the 

employee must present rationalized medical opinion evidence based on a complete and accurate 

factual and medical background. However, it is well established that proceedings under FECA are 

not adversarial in nature and OWCP is not a disinterested arbiter. While an employee has the 

burden to establish entitlement to compensation, OWCP shares responsibility in the development 

of the evidence and has the obligation to see that justice is done.12

The issue is whether appellant sustained a left upper extremity injury causally related to 

the accepted factors of her federal employment as a mail handler. 

The evidence establishes that appellant performed heavy work pushing pallets up ramps, 

using a hand jack. OWCP converted the claim to an occupational disease claim and accepted the 

 

6 S.J., Docket No. 17-1798 (issued February 23, 2018). 

7 See J.Z., 58 ECAB 388 (2008); see also M.H., Docket No. 15-0849 (issued July 22, 2016). 

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 

9

James Mack, 43 ECAB 321 (1991). 

10 J.D., Docket No. 17-1520 (issued February 20, 2018). 

11 William J. Cantrell, 34 ECAB 1233 (1983). 

12 L.K., Docket No. 14-1072 (issued August 3, 2015). 
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alleged factors of employment, but initially denied the claim because the medical evidence was 

insufficient to establish that work factors caused or aggravated the diagnosed conditions. In the 

last decision dated August 11, 2017, OWCP denied the claim, finding that appellant’s diagnosed 

conditions were not supported by objective medical findings. 

Dr. Desario and Dr. Brown conducted diagnostic studies. In a May 7, 2016 report,

Dr. Desario noted that x-rays of appellant’s left elbow suggested a subtle fracture of the coronoid

process long the medial side. Dr. Brown interpreted appellant’s October 26, 2016 left shoulder 

MRI scan as showing moderate insertional supraspinatus tendinosis and mild infraspinatus 

tendinosis. 

Appellant’s treating orthopedic surgeon, Dr. McCulloch, diagnosed left elbow traumatic 

lateral epicondylitis and left shoulder rotator cuff tendinopathy. He opined that appellant’s elbow 

and shoulder injuries occurred as a result of repetitive use of the left arm and elbow as a mail 

handler. Specifically, Dr. McCulloch noted that appellant’s injuries were the result of repetitive 

twisting, pushing, and pulling of the arm which included abduction, forward flexion, external 

rotation, and internal rotation of the left shoulder. He also noted that her injuries were due to 

twisting heavy items weighing up to 70 pounds, which included pronating, supinating flexing, and 

extending, leading to rotator cuff and labral tears of he left shoulder and lateral epicondylitis of 

the left elbow. Dr. McCulloch stated that he had treated appellant on a monthly basis since her 

injury and carefully documented the history and mechanism of appellant’s injury. He opined that 

the findings on physical examination were consistent with appellant’s history and job description. 

Despite Dr. McCullouch’s insistence that appellant’s diagnosed conditions were related to 

her employment as a mail handler, OWCP denied her claim, finding that his conclusions are not 

supported by diagnostic testing. However, Dr. McCulloch provided numerous medical reports,

which contained accurate descriptions of appellant’s job duties, the tasks she performed, a 

description of physical findings, and a discussion as to how appellant’s job duties caused her 

diagnosed conditions of left elbow traumatic lateral epicondylitis and left shoulder rotator cuff 

tendinopathy. While his opinion may not be sufficient to discharge appellant’s burden of proof, 

these reports sufficiently support his diagnoses and causal relationship to require further 

development of the case record by OWCP.13

Upon return of the case record, OWCP should forward the medical record and a statement 

of accepted facts for a second opinion as to the diagnoses of appellant’s left upper extremity 

conditions and whether any such diagnosed conditions are causally related to the accepted factors 

of appellant’s federal employment. After this and any other such further development of the case 

record as necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision as further development of the 

medical evidence is necessary.

 

13 See John J. Carlone, 41 ECAB 153 (1989); Horace Langhorne, 29 ECAB 820 (1978). 
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ORDER

IT IS HEREBY ORDERED THAT the August 11, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this decision of the Board. 

Issued: May 22, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board