United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

West Sacramento, CA, Employer

__________________________________________

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Docket No. 18-1195

Issued: January 6, 2020

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 May 24, 2018 appellant, through counsel, timely appealed an April 3, 2018 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.

ISSUE

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

condition causally related to the accepted September 2, 2014 employment incident.

 

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

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On October 1, 2014 appellant, then a 51-year-old sales and distribution associate, filed a 

traumatic injury claim (Form CA-1) alleging that on September 2, 2014 he injured his right 

shoulder while processing undeliverable parcels and stopped work that day.

By decision dated March 3, 2015, OWCP denied appellant’s claim, finding that he had not 

submitted sufficient evidence to support that the September 2, 2014 employment incident occurred 

at the time, place, and in the manner alleged. It further found that the medical evidence of record 

was insufficient to establish a diagnosed medical condition causally related to the accepted 

employment incident.

On March 12, 2015 counsel requested a telephonic hearing before an OWCP hearing 

representative, which was held on October 5, 2015.

By decision dated December 15, 2015, the hearing representative affirmed the March 3, 

2015 decision, finding that appellant was required to perform lifting of parcels of mail in the 

performance of duty on September 2, 2014, but that he had not provided sufficient medical 

evidence to establish causal relationship between the diagnosed right acromioclavicular sprain and 

the accepted September 2, 2014 employment incident.

On February 10, 2016 appellant, through counsel, timely appealed to the Board.

By decision dated February 24, 2017, the Board affirmed the December 15, 2015 decision, 

finding that the medical evidence of record failed to address how the September 2, 2014 

employment incident caused or aggravated a right shoulder condition.

On February 20, 2018 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence.

In a February 13, 2018 report, Dr. Neil Allen, a Board-certified internist and neurologist, 

noted that he conducted a records review in order to establish whether causal relationship existed 

between appellant’s established right shoulder condition and the accepted work-related trauma 

sustained on September 2, 2014. He opined that appellant’s claim should be expanded to include 

the diagnosis of sprain/strain of the right shoulder. Dr. Allen noted that appellant denied symptoms 

to the right shoulder prior to the reported work-related incident on September 2, 2014. He

explained that, when appellant reached into the hamper and began to lift the parcel, a downward 

force was exerted through a fully extended right upper limb. Dr. Allen advised that in such a 

position the shoulder was elevated and protracted without proper stabilization from the middle and 

lower trapezius musculature. He indicated that the small muscles of the rotator cuff were not 

designed to stabilize the joint, but rather perform “power” tasks including lifting. Dr. Allen also 

indicated that the larger muscles of the middle back and scapular region anchored the shoulder 

 

3 Docket No. 16-0593 (issued February 24, 2017).
3

during lifting to prevent rupture, sprain, and tearing of the rotator cuff musculature and associated 

tendons. 

Dr. Allen noted that the “compromised lifting position” described by appellant “combined 

with exposure to an antagonist force, even minimal, resulted in overstretching of muscles, 

ligaments, and tendons, beyond their normal physiologic range.” He indicated that often 

individuals would report “popping sensations or sounds at the time of the injury followed by 

tenderness and painful mobility,” as was documented within appellant’s medical records. 

Dr. Allen opined that appellant’s injury “directly resulted from the work-related incident of 

September 2, 2014 [was] both reasonable and expected based upon the mechanism described by 

[appellant] and findings documented within his medical records.”

By decision dated April 3, 2018, OWCP reviewed the merits of the claim, but denied 

modification. It found that a medical opinion regarding causal relationship must be based upon 

medical examination findings by the physician offering the opinion. OWCP found that Dr. Allen’s 

medical opinion regarding causal relationship was not based upon his own contemporaneous 

examination findings and was, therefore, of diminished probative value and insufficient to 

establish causal relationship.

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,4that 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.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

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.7 First, the employee must submit 

sufficient evidence to establish that the employee actually experienced the employment incident 

at the time, place, and in the manner alleged. Second, the employee must submit medical evidence 

to establish that the employment incident caused a personal injury.8

 

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

153 (1989).

5

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

ECAB 312 (1988).

6 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).

7

J.F., Docket No. 18-0904 (issued November 27, 2018); Gary J. Watling, 52 ECAB 278 (2001).

8 S.S., Docket No. 17-1106 (issued June 5, 2018); T.H., 59 ECAB 388 (2008).
4

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 supporting such causal relationship.9 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. 

This medical opinion must include an accurate history of the employee’s employment injury and 

must explain how the condition is related to the injury. 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 this case is not in posture for decision. 

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

appellant submitted prior to the issuance of OWCP’s December 15, 2015 decision because the 

Board considered that evidence in its February 24, 2017 decision and found that it was insufficient 

to establish his claim. Findings made in prior Board decisions are res judicata absent further 

review by OWCP under section 8128 of FECA.11

On February 20, 2018 counsel requested reconsideration and submitted a February 13,

2018 report from Dr. Allen. Dr. Allen explained that he reviewed appellant’s medical records to 

determine whether causal relationship existed between his right shoulder condition and the 

accepted work-related trauma sustained on September 2, 2014. He diagnosed right shoulder 

strain/sprain. Dr. Allen explained that, when appellant reached into the hamper and lifted a parcel, 

a downward force was exerted through his fully extended right upper limb. He related that the 

shoulder, in this position, was elevated and protracted without proper stabilization from the middle 

and lower trapezius musculature. Dr. Allen related that the compromised lifting position described 

by appellant, combined with exposure to an antagonist force, resulted in overstretching of muscles, 

ligaments, and tendons of the rotator cuff musculature and tendons. He concluded that appellant’s 

injury directly resulted from the work-related incident of September 2, 2014 based upon the 

mechanism described by appellant and findings documented within his medical records. 

OWCP determined that Dr. Allen’s February 13, 2018 report was insufficient to establish 

causal relationship because he had not examined appellant and a medical opinion regarding causal 

relationship “must be based upon medical examination findings by the physician offering the 

opinion.” Its own procedures provide, however, when discussing the factors used in the 

consideration of the weight provided to a medical record that “generally, greater probative value 

is given to a medical opinion based on an actual examination.” Other factors considered by OWCP 

in weighing medical reports include whether the opinion is based on a complete, accurate, and 

 

9 See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

10 G.D., Docket No. 19-1175 (issued November 15, 2019); R.H., Docket No. 17-1405 (issued February 7, 2018); 

James Mack, 43 ECAB 321 (1991).

11 See J.L., Docket No. 17-1460 (issued December 21, 2018). 
5

consistent history covering both the medical and factual aspects of the case; whether the opinion 

was well reasoned and well rationalized; whether the physician has the expertise and credentials 

to provide a medical opinion in this case; and whether the medical opinion was speculative or 

equivocal.12 There is no requirement that a physician providing an opinion on the limited issue of 

causal relationship must base his or her opinion on his or her own examination as opposed to the 

detailed findings of an attending physician’s physical examination. 

The Board has long held that a physical examination is not required for a physician to 

provide a probative medical opinion on the limited issue of causal relationship.13 When a medical 

diagnosis had already been established by attending physicians, the Board has found that an 

additional physical examination would be of no consequence and would only result in additional 

delay and cost.14 It is unnecessary that the evidence of record in a case be so conclusive as to 

suggest causal connection beyond all possible doubt. Rather, the evidence required is only that

which is necessary to convince the adjudicator that the conclusion drawn is rational, sound, and 

logical.15 

The Board finds that, based on well-established criteria for weighing medical reports, the 

report of Dr. Allen is sufficient to require further development of the medical evidence to see that 

justice is done.16 Dr. Allen is a Board-certified physician who is well qualified in his field of 

medicine to render a rationalized opinion on the limited issue of causal relationship and it is found 

that he provided a comprehensive review of the medical record and case history. It is further found 

that he provided a comprehensive and convincing pathophysiological explanation as to how the 

mechanism of the accepted employment incident was sufficient to cause the diagnosed condition 

and his opinion was supported by medical literature, the contemporaneous diagnostic testing, and 

the physical findings of attending physicians. 

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

While it is appellant’s burden of proof to establish the claim, OWCP shares responsibility in the 

development of the evidence.17 It has the obligation to see that justice is done.18 The Board will, 

 

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.810.6(a) (September 2010). 

13 See W.C., Docket No. 18-1386 (issued January 22, 2019); M.M., Docket No. 17-0438 (issued March 13, 2018); 

C.B., Docket No. 17-0726 (issued July 3, 2017); J.R., Docket No. 13-1090 (issued October 28, 2013); Melvina 

Jackson, 38 ECAB 443, 447-52 (1987) (the Board has long held that a physical examination is not required for a 

physician to provide a medical opinion on the limited issue of causal relationship).

14 See Sherry Shreiber, Docket No. 04-1966 (issued January 24, 2005) (the Board held that the fact that an OWCPselected second opinion physician had not physically examined the claimant was of no consequence as the diagnosis 

had already been established, and thus the only question was causal relationship).

15 W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011); 

Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein).

16 D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket 

No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

17 C.W., Docket No. 19-0231 (issued July 15, 2019); D.G., Docket No. 15-0702 (issued August 27, 2015);

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

18 Id.
6

therefore, remand the case to OWCP for further development of the medical evidence. 

On remand OWCP shall refer appellant, a statement of accepted facts, and the medical evidence 

of record to an appropriate Board-certified physician. The chosen physician shall provide a 

rationalized opinion on whether the diagnosed conditions are causally related to the accepted 

factors of appellant’s federal employment. If the physician opines that the diagnosed conditions 

are not causally related, he or she must explain with rationale how or why his or her opinion differs

from that of Dr. Allen. Following this and any other further development as deemed necessary, 

OWCP shall issue a de novo decision on appellant’s claim.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 3, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this decision of the Board. 

Issued: January 6, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, dissenting,

The majority opinion finds that, although the medical report of Dr. Neil Allen was 

insufficient to meet appellant’s burden of proof to establish their claim, it was sufficient to require 

the Office of Workers’ Compensation Programs to further develop the medical evidence. I 

disagree.

As a standard proposition, the Board has long held that the weight of medical opinion is 

determined by the opportunity for thoroughness of examination, the accuracy, and completeness 
7

of the physician’s knowledge of the facts of the case, the medical history provided, the care of 

analysis manifested, and the medical rationale expressed in support of stated conclusions.1

The Federal (FECA) Procedural Manual also sets out parameters for the weighing of 

medical evidence.2 It describes a comprehensive report as one which reflects that all testing and 

analysis necessary to support the physician’s final conclusions were performed. OWCP’s 

procedures provide that, in general, greater probative value is given to a medical opinion based on 

an actual examination. An opinion based on a cursory or incomplete examination will have less 

value compared to an opinion based on a more complete evaluation.3

The case at bar raises a novel constellation of facts where appellant’s physician is providing 

a causal opinion without examining appellant. While arguably considered a treating physician,

Dr. Allen never saw in person nor physically examined appellant. He premised his opinion solely 

on what he characterized as medical records that he had reviewed. Dr. Allen did not, however, 

identify the records provided for his review nor describe the reports on which he relied. 

It is an important distinction that the medical report of Dr. Allen in this case is being used 

to remand the case for further development.4 The majority finds that, although his opinion contains 

insufficient medical rationale to establish the claim, it is sufficient to remand for OWCP to further 

develop the claim. This is effectuated by the 30-year-old Board-created standard, which provides 

that “when there is sufficient evidence to establish that the incident occurred, as alleged, but the 

medical evidence was insufficiently developed to establish the component of fact of injury, 

evidence submitted by appellant, which contains a history of injury, an absence of any other noted 

trauma, and an opinion that the condition found was consistent with the original injury is sufficient, 

given the absence of any opposing medical evidence, to require further development of the 

record.”

5

 It could be characterized as a reduced subjective standard, which effectively shifts the 

burden of proof to OWCP. This case was previously denied by OWCP based on in-person physical 

examination(s), which were found to be insufficient under the same reduced standard. 

Especially in this posture, I believe certain basic medical examination parameters must be 

met. Dr. Allen espoused an opinion on causal relationship without the benefit of direct physical 

examination or observations and based his findings on the second-hand opinion(s) of what we 

believe to be other physicians. This is the type of injury that lends itself to physical examination 

for the purposes of diagnosis and causation, where the physician is able to palpate the patient, 

question and receive a first-hand account of the injury and compare same. This remains critical 

 

1 R.C., Docket No 14-1964 (issued January 22, 2015); Anna C. Leanza, 48 ECAB 115 (1996).

2 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.810.6(a) (September 2010).

3

Id.

4 R.H., Docket No. 17-1966 (issued March 6, 2018); John J. Carlone, 41 ECAB 354 (1989).

5

Id.
8

even when the only issue is causation. I do not agree that words of causation in the ordinary course 

alone can be separated from an examination of appellant by appellant’s physician. 

Of course, there are occasions where a physical examination cannot be conducted, such as 

when appellant is deceased. In that situation, record reviews are required and the weight of 

medical reports in the first instance are weighed using the above-mentioned criteria. But those 

circumstances are rare and that is inapplicable in the present case.

One could argue that this type of situation is similar to the use by OWCP of a district 

medical adviser (DMA). The Board has found that the unique status of the DMA, which allows 

for an advisory medical opinion without a physical examination, can be of sufficient probative 

value in certain circumstances.6 I believe that there is an important distinction between a DMA as 

described in Jackson and a treating physician such as Dr. Allen in this case. A treating physician 

and DMA do not share the same status. DMAs have a much more defined and narrow 

purpose. They are generally charged with the computations of schedule awards, the medical 

necessity of requested surgeries, and other such issues that do not require an in-person 

examination. As well, they operate under parameters that ensure appropriate review of the 

evidence, as they have the benefit of the complete OWCP record, as well as a statement of accepted 

facts created by OWCP, which they must follow for the purposes of history, knowledge, and 

analysis. In Dr. Allen’s situation, there are no such safeguards. 

If Dr. Allen had physically examined appellant, noted an in-person history, reviewed the 

entire record, and made his own conclusions, I would be inclined to perhaps be satisfied with his 

knowledge and understanding of the matter and agree with the majority that his opinion would be 

sufficient to remand for OWCP to pay for a second opinion physician to further develop the 

medical evidence. However, the majority finding in my view, without the benefit of in-person 

physical examination, effectively shifts the burden of proof to OWCP to disprove the claim based 

on a medical report that is of questionable probative value, leading to what I fear will be the advent 

of mail order medicine. 

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

6 Melvina Jackson, 38 ECAB 443, 447-52 (1987) (regarding the importance, when assessing medical evidence, of 

such factors as a physician’s knowledge of the facts and medical history, and the care of analysis manifested and the 

medical rationale expressed in support of the physician’s opinion).