United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Tulsa, OK, Employer

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Docket No. 18-1737

Issued: March 13, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 18, 2018 appellant filed a timely appeal from June 21, 2018 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 over 

the merits of this case.

ISSUE

The issue is whether appellant has met her burden of proof to establish a right shoulder 

condition causally related to the accepted December 12, 2017 employment incident.

FACTUAL HISTORY

On December 12, 2017 appellant, then a 38-year-old transportation security officer, filed a 

traumatic injury claim (Form CA-1) alleging that, on that day, she sustained a right shoulder strain 

 

1 5 U.S.C. § 8101 et seq.
2

as a result of stepping down onto a moving conveyor belt in the baggage section while in the 

performance of duty. She recounted that as she was about to cross over the last conveyor belt she 

pushed a button to stop the conveyor belt, but did not realize it was still moving when she stepped 

down on the belt. Appellant stopped work on December 13, 2017. 

OWCP subsequently received a chart note dated December 14, 2017 by Dr. Steven L. 

Nussbaum, an attending emergency medicine physician, which noted a history that appellant had 

moderate right shoulder (rotator cuff) pain that began two days prior.

2

 Appellant’s medical history

and examination findings were discussed. Dr. Nussbaum diagnosed a sprain of the right rotator 

cuff capsule, subsequent encounter. In a work note also dated December 14, 2017, he indicated 

that appellant could return to work on that date with right shoulder restrictions and reiterated the 

diagnosis of right rotator cuff capsule, subsequent encounter. 

The employing establishment issued an undated authorization for examination and/or 

treatment (Form CA-16), which indicated that appellant was authorized to seek medical treatment 

for a right shoulder injury.

In an attending physician’s report dated December 12, 2017, and attached to the Form CA16, Dr. Nussbaum noted that appellant injured her right shoulder. The history of injury is illegible. 

Dr. Nussbaum provided examination findings and again diagnosed right shoulder sprain. He 

checked a box marked “yes” indicating that the diagnosed condition was caused or aggravated by 

the employment activity described. Dr. Nussbaum further indicated that appellant was partially 

disabled from the date of his examination to an unknown date. Appellant could perform light work 

without the use of her right shoulder. 

In a December 12, 2017 report, Dr. Glenn H. Lytle, a family practitioner, related a history 

of injury that appellant pulled her right shoulder at work on that day. He reported examination 

findings, and ordered a radiology examination of the right shoulder. Dr. Lytle diagnosed sprain of 

the right rotator cuff capsule, initial encounter. In a work note dated December 12, 2017, he 

advised that appellant could return to work on that date with right shoulder restrictions and restated 

the prior diagnosis. 

In a right shoulder radiology report dated December 12, 2017, Dr. John M. Reiser, a Boardcertified diagnostic radiologist, provided an impression of no acute bony abnormality. 

Notes dated December 21 and 27, 2017 and January 3 and 11, 2018 by Dr. Nussbaum 

reported examination findings and reiterated the diagnosis of sprain of the right rotator cuff 

capsule, subsequent encounter. In work status notes dated December 21, 2017 and January 3, 

2018, he advised that appellant could return to work with right shoulder restrictions. In a referral 

slip dated December 27, 2017, Dr. Nussbaum referred her for physical therapy, three times a week 

for two weeks. 

In an undated statement appellant indicated that she sustained a right shoulder injury on 

December 12, 2017. She essentially reiterated the factual history of injury she provided on the 

 

2 Additional medical notes from Timothy Marlow, a certified physician assistant to Dr. Nussbaum were also 

submitted. 
3

December 12, 2017 Form CA-1. Appellant also indicated that she pulled her right shoulder as she 

grabbed onto a rail with her right arm to keep from falling on the conveyor belt. 

A report dated January 8, 2018 and follow-up notes dated January 10, 12, and 15, 2018 

from appellant’s physical therapist provided a diagnosis of right shoulder pain and right shoulder 

stiffness, not elsewhere classified. 

OWCP, by development letter dated January 25, 2018, informed appellant that initially her 

claim appeared to be a minor injury that resulted in minimal or no lost time from work and 

continuation of pay was not controverted by the employing establishment. It indicated that her 

claim was administratively handled to allow payment of a limited amount of medical expenses. 

However, appellant’s claim was now being reopened for adjudication because she had not yet 

returned to work in a full-time capacity. OWCP requested that she respond to an enclosed 

questionnaire by providing a more detailed description of the incident, witness statements she had 

regarding the incident, the immediate effects of her injury, and history of any other injury. It also 

requested that appellant submit a medical report from her attending physician including a 

diagnosis, history of injury, examination findings, and a rationalized opinion explaining how the 

reported work incident caused or aggravated her medical condition. OWCP afforded her 30 days 

to provide the requested information.

An additional follow-up visit note dated January 17 and 19, 2018 from the physical 

therapist again provided a diagnosis of right shoulder pain and right shoulder stiffness, not 

elsewhere classified. 

Appellant submitted a December 15, 2017 narrative statement in response to OWCP’s 

development letter. She essentially restated the factual history of injury she provided on the

December 12, 2017 Form CA-1 and Access Medical Centers form.

Appellant also submitted a work status note and chart note dated January 25, 2018 in which

Mr. Marlow indicated that she could return to regular work on that date without restrictions and 

reiterated his prior right shoulder diagnosis. 

By decision dated March 5, 2018, OWCP denied appellant’s traumatic injury claim finding 

that the medical evidence of record was insufficient to establish that her diagnosed medical 

condition was causally related to the accepted December 12, 2017 employment incident. 

On March 22, 2018 appellant requested a review of the written record by an OWCP hearing 

representative. No additional evidence was received. 

By decision dated June 21, 2018, a hearing representative affirmed the March 5, 2018 

decision.
4

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, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific 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 on a traumatic injury or an occupational disease.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 he or she actually experienced the employment incident at the 

time and place, and in the manner alleged. 

The second component is whether the employment incident caused a personal injury and 

generally can be established only by medical evidence.6 The evidence required to establish causal 

relationship is rationalized medical opinion evidence, based upon complete factual and medical 

background, showing a causal relationship between the claimed condition and the identified 

factors.7 The belief of the claimant that a condition was caused or aggravated by the employment 

is insufficient to establish a causal relationship.8 

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 sufficient to establish such causal relationship.9 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.10

 

3 Supra note 1. 

4 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q) 

(traumatic injury and occupational disease defined, respectively).

7 Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

8 See M.J., Docket No. 17-0725 (issued May 17, 2018); see also Lee R. Haywood, 48 ECAB 145 (1996); Kathryn 

Haggerty, 45 ECAB 383, 389 (1994).

9 K.V., Docket No. 18-0723 (issued November 9, 2018).

10 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 5.
5

ANALYSIS

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

condition causally related to the accepted December 12, 2017 employment incident.

In support of her claim, appellant submitted a series of reports from her attending 

physician, Dr. Nussbaum. In a Form CA-16 attending physician’s report dated December 12, 

2017, Dr. Nussbaum reported that he examined her on that date for a right shoulder injury. He 

provided an illegible history of injury and diagnosed right shoulder sprain. Dr. Nussbaum checked 

a box marked “yes” indicating that the diagnosed condition was caused or aggravated by the 

employment activity described. He advised that appellant was partially disabled from the date of 

his examination to an unknown date. Dr. Nussbaum related that she could perform light work 

without the use of her right shoulder. The Board has held that a report that addresses causal 

relationship with a checkmark, without medical rationale explaining how the employment incident 

caused or aggravated the diagnosed condition, is of diminished probative value and insufficient to 

establish causal relationship.11 Although Dr. Nussbaum’s history of the December 12, 2017 

employment incident is illegible, he failed to offer medical rationale explaining how appellant’s 

diagnosed right shoulder condition and work restriction were caused or aggravated by falling onto 

a moving conveyor belt on that date. Thus, the Board finds that his report is insufficient to establish 

her burden of proof.12

Dr. Nussbaum’s remaining chart notes, work notes, and referral slip are also insufficient to 

meet appellant’s burden of proof. Within these additional reports, he diagnosed sprain of the right 

rotator cuff capsule, and addressed her work restrictions and medical treatment. Dr. Nussbaum

failed to provide an opinion concluding that the accepted December 12, 2017 employment incident 

caused or aggravated appellant’s diagnosed right shoulder condition, work restrictions, and 

medical treatment.13 

Likewise, Dr. Lytle’s December 12, 2017 report and work note also fail to establish 

appellant’s claim as he diagnosed sprain of the right rotator cuff capsule, initial encounter, and 

noted her work restrictions, but did not provide an opinion concluding that the December 12, 2017 

employment incident caused or aggravated her diagnosed condition and work restrictions.14 

Dr. Reiser’s diagnostic test report failed to provide a firm right shoulder diagnosis resulting 

from the December 12, 2017 employment incident.15 Diagnostic studies are of limited probative 

 

11 See S.G., Docket No. 18-0209 (issued October 4, 2018); R.A., Docket No. 17-1472 (issued December 6, 2017); 

Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

12 Id.

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

evidence which does not offer an opinion regarding the cause of an employee’s condition is of no probative value on 

the issue of causal relationship).

14 Id.

15 See M.D., Docket No. 18-0709 (issued September 4, 2018); T.O., Docket No. 18-0139 (issued May 24, 2018).
6

value as they do not address whether the employment incident caused any of the diagnosed 

conditions.16

The notes and discharge instructions signed solely by Mr. Marlow, a certified physician 

assistant, and report and notes signed by appellant’s physical therapist have no probative medical 

value. Neither physician assistants nor physical therapists are considered physicians as defined 

under FECA.17 As such, this evidence is also insufficient to meet appellant’s burden of proof. 

The fact that a condition manifests itself during a period of employment is insufficient to 

establish causal relationship.18 Temporal relationship alone will not suffice. Entitlement to FECA 

benefits may not be based on surmise, conjecture, speculation, or on the employee’s own belief of 

a causal relationship.19 Herein, the record lacks rationalized medical evidence establishing causal 

relationship between the December 12, 2017 employment incident and her diagnosed right 

shoulder conditions.20 Thus, appellant has not met her burden of proof.21

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 her burden of proof to establish a right shoulder 

condition causally related to the accepted December 12, 2017 employment incident.

 

16 See J.S., Docket No. 17-1039 (issued October 6, 2017). 

17 The term 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); M.M.,

Docket No. 16-1617 (issued January 24, 2017) (lay individuals such as physician assistants and physical therapists 

are not competent to render a medical opinion under FECA). 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).

18 Daniel O. Vasquez, 57 ECAB 559 (2006).

19 D.D., 57 ECAB 734 (2006).

20 See J.S., Docket No. 17-0507 (issued August 11, 2017).

21 The Board notes that the employing establishment issued appellant a signed Form CA-16 authorizing treatment

for her December 12, 2017 right shoulder injury. The Board has held that where an employing establishment properly 

executes a CA-16 form, which authorizes medical treatment as a result of an employee’s claim for an employmentrelated injury, it creates a contractual obligation which does not involve the employee directly to pay the cost of the 

examination or treatment regardless of the action taken on the claim. See 20 C.F.R. §§ 10.300, 10.304; R.W., Docket 

No. 18-0894 (issued December 4, 2018). 
7

ORDER

IT IS HEREBY ORDERED THAT the June 21, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 13, 2019

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