United States Department of Labor

Employees’ Compensation Appeals Board

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D.S., Appellant

and

DEPARTMENT OF NAVY, PUGET SOUND 

NAVAL SHIPYARD & INTERMEDIATE 

MAINTENANCE FACILITY, Bremerton, WA, 

Employer

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Docket No. 20-0146

Issued: June 11, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 24, 2019 appellant filed a timely appeal from an August 23, 2019 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 this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The record provided to the Board includes evidence received after OWCP issued its August 23, 2019 decision. 

However, the Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the 

case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered 

by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this

additional evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish that the acceptance 

of his claim should be expanded to include additional conditions as causally related to the accepted 

employment injury.

FACTUAL HISTORY

On April 22, 2019 appellant, then a 66-year-old rigger, filed an occupational disease claim 

(Form CA-2) alleging that he suffered a strained right shoulder due to factors of his federal 

employment. He noted that he first became aware of his condition and first realized that it was 

caused or aggravated by his federal employment on November 15, 2018. Appellant explained that 

he was “working with a crane and watching the upper limit checks when he felt a pinch or a tweak 

in his neck and right shoulder.” He did not stop work. 

In a development letter dated May 3, 2019, OWCP informed appellant that he submitted 

no evidence to establish that he actually experienced the employment factors alleged to have 

caused his injury. It advised him of the type of factual and medical evidence necessary to establish 

his claim and attached a questionnaire for his completion. OWCP also requested a narrative 

medical report from appellant’s physician, providing a firm diagnosis of a condition and a 

rationalized opinion on how appellant’s employment duties caused or aggravated his condition. In 

a separate development letter of even date, it requested that the employing establishment provide 

additional information regarding appellant’s occupational disease claim, including comments from 

a knowledgeable supervisor regarding the accuracy of appellant’s statements, and a copy of 

appellant’s position description and physical requirements of his position. OWCP afforded both 

parties 30 days to respond. 

In a May 13, 2019 response to OWCP’s questionnaire, appellant explained that on 

November 15, 2018 he heard something pop in his neck and he “got aches” in between his shoulder

blades as he was observing the upper limit checks on a service crane. He described a previous 

2002 injury in his neck which resulted in a fusion of his cervical spine at C4/5, 5/6, and 6/7.3 

Appellant reported that a few days thereafter he noticed that his right shoulder was becoming sore 

and he experienced numbness in his arm and tingling radiating to his hand. 

In a May 28, 2019 letter and medical report, Dr. Michael McManus, Board-certified in 

occupational medicine, indicated that appellant presented with pain, numbness, and weakness 

radiating to his bilateral scapulae and down his right upper extremity. He noted appellant’s prior 

medical history of anterior C5 through C7 discectomies and fusion with residual right upper 

extremity neurologic deficits and added that appellant experienced worsening of his condition after 

November 15, 2018. In a diagnostic report of even date, Dr. Arthur Watanabe, a Board-certified 

radiologist, performed an x-ray of appellant’s cervical spine which revealed degenerative disc 

disease at the superior adjacent segment C3/4 and multilevel cervical facet arthrosis. On 

evaluation and review of appellant’s x-rays, Dr. McManus diagnosed a cervical strain with 

worsening right C7 radiculopathies, calcific tendinitis of the rotator cuff and bicipital tendinitis in 

 

3

In OWCP File No. xxxxxx513 OWCP accepted appellant’s claim for cervical radiculitis at C6-7 resulting from 

an employment-related May 22, 2002 traumatic injury.
3

the right shoulder. He referenced appellant’s original cervical strain injury and opined that, in 

compensating for appellant’s right upper extremity deficits, appellant developed rotator cuff and 

bicipital tendinitis. 

In a May 29, 2019 attending physician’s report (Form CA-20), Dr. McManus provided 

diagnoses of a cervical strain, right shoulder calcific tendinitis, cervical radiculopathy, and right 

shoulder bicipital tendinitis. He checked a box marked “Yes” to indicate his belief that appellant’s 

condition was caused or aggravated by his employment activity and referenced his May 28, 2019 

medical evidence in support of his findings. 

Appellant also provided a position description and job summary of his duties as a rigger. 

By decision dated June 18, 2019, OWCP accepted appellant’s occupational disease claim 

for a sprain of the ligaments of the cervical spine and temporary aggravation of radiculopathy, 

cervical region. 

OWCP continued to receive evidence. In a July 22, 2019 medical report, Dr. McManus 

noted that appellant had continued complaints of right upper extremity and shoulder pain, with 

numbness and paresthesia. On evaluation, he diagnosed a cervical strain with aggravation right 

radiculopathies status post prior anterior C4 through C7 discectomies and fusion, a right shoulder 

strain with calcific tendinitis, and rotator cuff and bicipital tendinitis. 

Appellant provided a physical therapy note of even date with an illegible signature noting 

he was evaluated and treated for a cervical injury. 

On July 31, 2019 OWCP referred appellant to Dr. Nathan Hammel, a Board-certified 

orthopedic surgeon serving as an OWCP district medical adviser (DMA). It requested that the 

DMA review a statement of accepted facts (SOAF) and the evidence of record and provide an 

opinion as to whether appellant developed calcific tendinitis of the rotator cuff and bicipital 

tendinitis of the right shoulder as a consequence of the accepted employment injury. 

In an August 13, 2019 letter, Dr. McManus described appellant’s continuing pain as a 

result of his employment-related injury. He referenced tenderness of the bicipital groove and an 

x-ray of appellant’s right shoulder that was consistent with calcific tendinitis. Dr. McManus 

requested that the claim be expanded to include diagnoses of a right shoulder strain, calcific 

tendinitis of the right shoulder, and right shoulder rotator cuff tendinopathy be included as accepted 

conditions in appellant’s claim. 

In an August 21, 2019 medical report, the DMA reviewed the SOAF and the medical 

evidence of record. On evaluation he explained that appellant’s claimed condition is a well-known 

idiopathic condition not associated with trauma and opined that it was not possible that the 

condition developed in the short time period from injury to diagnosis. The DMA recommended 

that appellant’s claim not be expanded to include the new conditions. 

By decision dated August 23, 2019, OWCP denied the expansion of the acceptance of 

appellant’s claim finding that the medical evidence of record did not demonstrate that the 

conditions caused by the accepted work-related injury led to an aggravation of the original injury 

or to a new injury. 
4

LEGAL PRECEDENT

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.4

To establish causal relationship, the employee must submit rationalized medical opinion 

evidence.5 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 accepted employment injury.6 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.7

FECA provides that, if there is disagreement between an OWCP-designated physician and 

an employee’s physician, OWCP shall appoint a third physician who shall make an examination.8 

For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and 

rationale.9 For the impartial medical examiner to resolve a conflict in the medical evidence, the 

opinion of such a specialist must be sufficiently well-rationalized and based upon a proper factual 

background.

10

ANALYSIS

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

In Dr. McManus’ May 28, 2019 medical evidence he noted appellant’s symptoms of pain, 

numbness, and weakness in his right upper extremity and reported appellant’s prior anterior C5 

through C7 discectomies and fusion and history of injury related to appellant’s employment duties. 

He diagnosed a cervical strain with worsening right C7 radiculopathies, calcific tendinitis of the 

rotator cuff, and bicipital tendinitis in the right shoulder. Dr. McManus explained that, in 

compensating for appellant’s right upper extremity deficits caused by appellant’s cervical strain, 

he developed rotator cuff and bicipital tendinitis. 

 

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

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

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

7

Id.

8 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; F.V., Docket No. 18-0230 (issued May 8, 2020); Shirley L. Steib, 46 

ECAB 309, 317 (1994).

9 M.G., Docket No. 19-1627 (issued April 17, 2020); Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

10 M.N., Docket No. 19-1421 (issued March 5, 2020); Gloria J. Godfrey, 52 ECAB 486 (2001); Gary R. Sieber, 46 

ECAB 215, 225 (1994).
5

Further, in medical evidence dated from May 29 to April 13, 2019, Dr. McManus provided 

additional support for his opinion. He noted appellant’s continued right upper extremity and 

shoulder pain with numbness and paresthesia and opined that his symptoms were a result of his 

employment-related injury. On evaluation Dr. McManus found tenderness of the bicipital groove 

and found that an x-ray of his right shoulder was consistent with calcific tendinitis. He requested 

expansion of the acceptance of appellant’s claim to include a right shoulder strain, calcific 

tendinitis of the right shoulder, and right shoulder rotator cuff tendinopathy. 

By contrast, Dr. Hammel, the DMA, indicated in his August 21, 2019 medical report, that 

he disagreed with Dr. McManus and opined that it was not possible that the additional claimed 

conditions developed in the short time period from injury to diagnosis. On review of the SOAF 

and medical evidence of record, he reasoned that appellant’s condition is “a well-known idiopathic 

condition that is not associated with trauma.”

Both Drs. McManus and Hammel provided a description of appellant’s employment injury 

and rationale in support of their respective opinions based on their review of the medical evidence 

and physical findings. The Board, therefore, finds that a conflict in medical opinion has been 

created between appellant’s attending physician and that of the DMA regarding whether 

appellant’s right shoulder strain, calcific tendinitis of the right shoulder, and right shoulder rotator 

cuff tendinopathy were caused or aggravated by factors of appellant’s federal employment.11 

Pursuant to section 8123(a) of FECA, when there are opposing reports of virtually equal weight 

and rationale, the case must be referred to an impartial medial specialist to resolve the conflict in 

the medical evidence.

12

As there remains an unresolved conflict in medical opinion regarding whether appellant’s 

diagnosed conditions are causally related to, or a consequence of, the accepted employment factors 

the case shall be remanded to OWCP for creation of an updated SOAF and referral to an 

appropriate specialist to obtain an impartial medical opinion regarding whether the acceptance of 

appellant’s claim should be expanded to include his additional diagnosed conditions. Following 

this and any other development deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

 

11 See S.M., Docket No. 19-0397 (issued August 7, 2019).

12 Supra note 10. 
6

ORDER

IT IS HEREBY ORDERED THAT the August 23, 2019 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: June 11, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board