United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Chanute, KS, Employer

__________________________________________

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Docket No. 18-1702

Issued: October 4, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 10, 2018 appellant, through counsel, filed a timely appeal from April 10 and

August 24, 2018 merit decisions of the Office of Workers’ Compensation Programs (OWCP).2 

Pursuant to the Federal Employees’ Compensation Act3(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 The Board notes that appellant initially timely requested an oral argument before the Board. By lette r dated 

September 24, 2018, appellant withdrew his request for oral argument due to his inability to travel to Washington,DC.

3

5 U.S.C. § 8101 et seq.
2

ISSUE

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

condition causally related to the accepted factors of his federal employment. 

FACTUAL HISTORY

On November 14, 2016 appellant, then a 50-year-old city carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed a bilateral shoulder condition as a result of 

his employment duties which had required repetitive reaching and lifting over the course of 23 

years. He noted that he first became aware of his condition on October 1, 2016 and related it to 

his federal employment on November 1, 2016. Appellant notified his supervisor of his injury on 

November 14, 2016. He stopped work on October 19, 2016 when he elected Office of Personnel 

Management disability retirement benefits. 

In an accompanying narrative statement, appellant described the employment duties which 

caused bilateral shoulder pain, and noted that the pain had worsened in the past few months. 

By development letter dated December 6, 2016, OWCP informed appellant that the

evidence of record was insufficient to support his claim. It advised him of the factual and medical 

evidence needed and provided him with a questionnaire for completion. OWCP afforded appellant

30 days to submit the necessary evidence.

On December 22, 2016 appellant responded to OWCP’s development letter and described 

the circumstances surrounding his occupational disease injury.

In support of his claim, appellant also submitted medical reports dated November 1, 2016

and February 8, 2017 from Dr. Aaron M. McGuire, an osteopathic physician specializing in 

orthopedic surgery. In his November 1, 2016 report, Dr. McGuire related that appellant was 

evaluated on that date for cumulative occupational trauma of the bilateral shoulders, sustained

while working as a letter carrier. He noted that appellant worked at the employing establishment

for over 23 years, worked more than 45 hours per week, and had been in his current position for 

eight years. Dr. McGuire described his employment duties which involved repetitive reaching, 

lifting, casing, sorting, and delivering mail. He reported that all of appellant’s duties required 

repetitive overhead and reaching away from the body. Dr. McGuire explained that this repetitive 

motion can cause undue pressure and trauma to the muscle, tendons, and ligaments of the shoulders 

which can result in progressively worsening pain. He further explained that cumulative trauma 

disorders were injuries of the musculoskeletal system to joints, muscles, tendons, and ligaments, 

due to overuse syndrome and repetitive motion. These cumulative trauma symptoms developed

from the accumulation of repeated small injuries or stresses to the musculoskeletal system which 

was a response to excessive or repeated demands on the body without enough time to recover 

before adding more stress. Dr. McGuire explained that, due to appellant’s physically demanding 

repetitive job requirements, he had been suffering from progressively worsening pain in his 

bilateral shoulders with decreased range of motion. He provided findings on physical examination 

and reviewed x-rays of the left and right shoulders which revealed acromioclavicular (AC) joint 

arthropathy and glenohumeral arthrosis. Dr. McGuire diagnosed bilateral shoulder impingement 

syndrome, rotator cuff tear and osteoarthritis. He opined that appellant’s bilateral shoulder 
3

conditions were caused by the cumulative occupational trauma described and recommended a 

magnetic resonance imaging (MRI) scan for further assessment. Dr. McGuire’s February 8, 2017 

report responded to OWCP’s development letter and repeated the assertions provided in his prior 

report.

On February 6, 2017 the employing establishment controverted the claim. It reported that 

appellant had been seen delivering packages for FedEx when he was exhausting his leave from the 

employing establishment. The employing establishment noted that the alleged injury was not 

reported to local management until he retired. It described appellant’s employment duties as 

casing mail, reaching in and out of the vehicle, and lifting packages which he performed on a daily 

basis. The employing establishment reported that he had no specific accommodations in place and 

that any overtime he worked was voluntary. 

OWCP subsequently referred appellant, together with a statement of accepted facts 

(SOAF) and the medical record, to Dr. Sami R. Framjee, a Board-certified orthopedic surgeon, for 

a second opinion evaluation.

In his June 6, 2017 report, Dr. Framjee reported that appellant had developed complaints 

regarding his bilateral shoulders approximately 6 to 12 months ago with no history of injury. He

reported that, based on appellant’s history, his physical examination findings, and review of 

radiographic studies, he was unable to identify any evidence of any injury to the right or left 

shoulder secondary to any occupational activity with the employing establishment. Dr. Framjee

noted that appellant had nonspecific symptoms in reference to the right and left right shoulders. 

However, there was no evidence of any anatomical abnormality of the bilateral shoulders 

secondary to his occupational activities and the physical examination was within normal limits. 

Further medical care was not recommended and appellant could continue with his normal 

occupational activities.

On November 2, 2017 OWCP found that a conflict of medical opinion existed between

Dr. Framjee, the second opinion physician, and Dr. McGuire, appellant’s treating physician. It 

referred appellant, the case file, and a SOAF to Dr. Terry Sites, a Board-certified orthopedic 

surgeon, for an impartial medical examination to determine whether his federal employment duties 

caused, contributed, or aggravated any diagnosed bilateral shoulder conditions. 

In his February 27, 2018 report, Dr. Sites provided findings on physical examination, noted 

diagnostic testing findings, and diagnosed bilateral shoulder pain with acromioclavicular (AC)

arthropathy. He also reported that additional pathologies included rotator cuff tendinopathy/tear

and long head biceps tendinopathy. Subjective findings included pain, stiffness, and tenderness 

over the greater tuberosity and AC joint. Dr. Sites reported that a diagnosis of rotator cuff tear 

could not accurately be determined unless there was a massive tear that would demonstrate

superior migration of the humeral head on x-ray evidence and a positive drop arm sign on physical 

examination which were not present in appellant’s case. He noted that an MRI scan of the bilateral 

shoulders was indicated from a medical standpoint in this setting to obtain additional information 

as it related to the rotator cuff and surrounding structures which would be important in treating 

appellant’s shoulder pain. However, Dr. Sites found that additional testing was not indicated as it 

related to any employment-related activity. He opined that the medical record did not support that 

appellant’s bilateral shoulder pain was the result of a work-related injury because there was no 
4

documentation in the medical record of appellant having sustained a specific injury, that he lost 

work during his period of employment as a result of right or left shoulder pathologies, or that he 

claimed any shoulder problems prior to the cessation of his work activities on October 19, 2016. 

Dr. Sites noted that the earliest documentation for treatment to the left shoulder was Dr. McGuire’s 

November 1, 2016 evaluation. 

Dr. Sites opined that there was no reasonable way to separate appellant’s nonwork activity,

including throwing sports such as softball, from his work activity as it may relate to right or left 

shoulder pathology. He reported that certainly, some occupations may be more physically 

demanding than others, but there was no testing available to accurately determine the timing or 

specific cause of shoulder pathology such as a rotator cuff tear in this type of setting. Dr. Sites 

stated that he was unaware of any well-designed proactive scientific studies that had definitively 

determined the risk associated with specific work activities. He reported that the pain that occurred

in the shoulder from degenerative conditions such as rotator cuff pathology, AC arthropathy, and 

impingement increased with each decade over the age of 40 and were very common in the 

population regardless of activity levels. As such, Dr. Sites opined it was not likely that appellant’s

bilateral shoulder pain was as a result of his work activity as a letter carrier. He added that his 

opinion was made within a reasonable degree of medical certainty based upon the objective factors 

cited.

By decision dated April 10, 2018, OWCP denied appellant’s occupational disease claim, 

finding that the medical evidence of record was insufficient to establish that his bilateral shoulder 

conditions were causally related to the accepted factors of federal employment. It found that the 

special weight of the medical evidence rested with Dr. Sites, serving as the referee physician, who 

opined that appellant’s bilateral shoulder conditions were not related to his federal employment 

duties.

On April 17, 2018 appellant, through counsel, requested an oral hearing before an OWCP 

hearing representative. In support of his claim, he submitted a June 1, 2018 medical report from

Dr. M. Stephen Wilson, a specialist in occupational and orthopedic surgery. Dr. Wilson provided 

physical examination findings and diagnosed impingement syndrome, rotator cuff tear, and 

osteoarthritis of the bilateral shoulders. He opined that appellant’s diagnoses were causally related 

to his occupational duties and discussed the mechanism of injury pertaining to his bilateral 

shoulder conditions.

A hearing was held on July 11, 2018 where appellant testified in support of his claim. He 

explained that he applied for disability retirement as a result of his previously accepted OWCP 

claims, but was in a paid status through November 2017 due to accumulated leave. Appellant

explained that he had no prior hobbies that would cause his shoulder conditions and no prior 

injuries involving the same area. He described his employment duties over the course of 24 years. 

Appellant further reported that he continued to deal with shoulder pain and was currently working 

as a high school teacher. He explained that immediately after he retired, he delivered for FedEx 

for the holiday rush season while he was in a paid leave status with the employing establishment. 

Appellant provided the employing establishment as a reference who then informed him that he had 

to quit his job, which he did. He explained that he was not delivering packages and was only 

driving the vehicle while another employee ran the packages for delivery. Counsel argued that 

employment factors need not be the only cause of appellant’s condition as FECA recognized dual 
5

and proximate causation. He further argued that Dr. Wilson’s report established appellant’s 

occupational disease claim. The record was held open for 30 days. No additional evidence was 

received.

By decision dated August 24, 2018, OWCP’s hearing representative affirmed the April 10, 

2018 decision denying appellant’s occupational disease claim. He found that the special weight 

of the medical evidence rested with Dr. Sites, serving as the referee physician, who opined that 

appellant’s bilateral shoulder conditions were not causally related to the accepted factors of federal 

employment. 

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 establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee must submit: (1) a factual statement identifying employment 

factors alleged to have caused or contributed to the presence or occurrence of the disease or 

condition; (2) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the employee.7

Rationalized medical opinion evidence is required to establish causal relationship.8 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. 9 

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

 

4 T.H., Docket No. 18-1585 (issued March 22, 2019); 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); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

7

J.P., Docket No. 19-0303 (issued August 13, 2019); see Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. 

Fish, 46 ECAB 276, 279 (1994). 

8

See 20 C.F.R. § 10.110(a); M.M., Docket No. 18-1366 (issued February 27, 2019); John M. Tornello, 35 ECAB 

234 (1983).

9

S.S.,Docket No. 18-1488 (issued March 11, 2019). 
6

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

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

the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 11 

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

rationale.12 Where OWCP has referred the case to an impartial medical examiner (IME) to resolve 

a conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned 

and based upon a proper factual background, must be given special weight.13

When OWCP obtains an opinion from an IME for the purpose of resolving a conflict in the 

medical evidence and the IME’s opinion requires clarification or elaboration, it must secure a 

supplemental report from the specialist to correct the defect in his original report.14 If the referee

physician fails to respond or does not provide an adequate response, it should refer appellant for a 

new impartial medical examination.15

ANALYSIS

The Board finds that this case is not in posture for decision.16

OWCP properly found a conflict in medical opinion between Dr. McGuire, appellant’s 

treating physician, and Dr. Framjee, the second opinion physician, regarding whether his federal 

employment duties caused or aggravated his bilateral shoulder conditions. On February 27, 2018 

it referred appellant to Dr. Sites for an impartial medical evaluation to resolve the conflict, pursuant 

to 5 U.S.C. § 8123(a).

The Board finds, however, that Dr. Sites’ opinion is equivocal and not well rationalized. 17 

Therefore, his report is insufficient to resolve the conflict between Dr. McGuire and Dr. Framjee. 

In his February 27, 2018 report, Dr. Sites opined that appellant’s bilateral shoulder conditions 

could be caused by numerous factors. He related that there was no reasonable way to separate 

appellant’s nonwork activity from his work activity as it may have related to his shoulder 

pathology. Dr. Sites reported that, because there was no scientific way to decipher what caused 

 

10 S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).

11 5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

12 C.H., Docket No. 18-1065 (issued November 29, 2018).

13 W.M., Docket No. 18-0957 (issued October 15, 2018).

14 C.B., Docket No. 16-1713 (issued April21, 2017).

15 See also W.H., Docket No. 16-0806 (issued December 15, 2016); Federal (FECA) Procedure Manual, Part 2 --

Claims, Developing and Evaluating Medical Evidence,Chapter 2.810.11(e) (September 2010).

16 R.W., Docket No. 18-1457 (issued February 1, 2019).

17 K.C., Docket No. 17-0844 (issued July 16, 2018).
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his condition, then it was not caused by his federal employment duties. His statement on causal 

relationship is equivocal and speculative, opining that it was not likely that appellant’s bilateral 

shoulder pain was a result of his work activity as a letter carrier. The Board has held that medical 

opinions which are equivocal or speculative are of diminished probative value.18 As such, the 

Board finds that Dr. Sites did not provide adequate medical rationale to explain the basis of his 

conclusion on causal relationship.19 When an impartial medical report lacks medical reasoning to 

support conclusory statements about the claimant’s condition, it is insufficient to resolve a conflict 

in the medical evidence.20 Thus, the Board finds that Dr. Sites’ opinion is of insufficient probative 

value to carry the special weight of the evidence and the case must be remanded for further 

development.

21

Once OWCP undertakes development of the medical evidence, it has the responsibility to 

do so in a manner that will resolve the relevant issues in the case.22 On remand, it should refer 

appellant, the case record, and an updated SOAF to an appropriate impartial medical specialist to 

resolve the conflict pertaining to whether appellant’s bilateral shoulder conditions were causally 

related to the accepted factors of his federal employment, either directly or through aggravation, 

precipitation, or acceleration.23 Following this and any other further development as deemed 

necessary, OWCP shall issue a de novo decision on appellant’s occupational disease claim.24

CONCLUSION

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

 

18 See P.H., Docket No. 16-0654 (issued July 21, 2016); S.R., Docket No. 16-0657 (issued July 13, 2016). See also 

S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the condition is 

probably related, most likely related, or could be related are speculative and diminish the probative value of the 

medical opinion); CeciliaM. Corley, 56 ECAB 662 (2005) (medical opinions which are speculative or equivocal are 

of diminished probative value).

19 D.B., Docket No. 17-1845 (issued February 16, 2018); T.H., Docket No. 14-0326 (issued February 5, 2015). 

20 R.T., Docket No. 17-0925 (issued December 14, 2017).

21 Id.

22 See K.S., Docket No. 18-0845 (issued October 26, 2018).

23 J.W., Docket No. 15-0020 (issued August 17, 2016).

24 C.T., Docket No. 19-0508 (issued September 5, 2019).
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ORDER

IT IS HEREBY ORDERED THAT the August 24 and April 10, 2018 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

development consistent with this decision.

Issued: October 4, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board