United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer

__________________________________________

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Docket No. 17-1407

Issued: January 19, 2018

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 14, 2017 appellant, through counsel, filed a timely appeal from an April 25, 

2017 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 to consider the merits of the case.

ISSUE

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

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

 

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 of the case as presented in the 

Board’s prior order are incorporated herein by reference. The relevant facts are as follows. 

On October 3, 2014 appellant, then a 51-year-old custodian, filed an occupational disease 

claim (Form CA-2) alleging that she developed a right shoulder “flare-up” as a result of factors 

of her federal employment. The claim was assigned OWCP File No. xxxxxx069. Appellant

noted that she was unable to work from July 9 through 17, 2014. She explained that she had 

delayed filing the claim because she thought that she should file a claim for recurrence of

disability arising from her previously accepted August 17, 2011 occupational disease claim.4 

Appellant’s supervisor noted on the claim form that appellant had been on limited duty since she 

returned to work following her previous injury. 

In an October 13, 2014 progress note, Dr. Kimberly Togliatti-Trickett, Board-certified in 

physical medicine and rehabilitation, diagnosed rotator cuff strain/shoulder and shoulder 

sprain/strain. She noted that appellant was going to file a new claim for her right shoulder 

condition because it was aggravated by her new job as a custodian. Dr. Togliatti-Trickett noted

that appellant had reached maximum medical improvement on January 1, 2013 following her 

initial right shoulder injury, but had continued having occasional exacerbation of pain in her 

right shoulder. She related that appellant reaggravated her right shoulder on May 8, 2014.

In an October 14, 2014 attending physician’s report (Form CA-20), Dr. Togliatti-Trickett 

diagnosed appellant’s conditions as right shoulder strain/sprain and right rotator cuff strain. She 

checked a box marked “yes” indicating that she believed that appellant’s conditions were caused 

or aggravated by her employment. Dr. Togliatti-Trickett related that appellant was totally

disabled from work July 9 through 17, 2014, and partially disabled from work July 17 to 

October 13, 2014. 

On October 21, 2014 appellant submitted a claim for compensation (Form CA-7) for 

wage loss from July 9 to 17, 2014. 

By letter dated November 10, 2014, OWCP informed appellant that further factual and

medical evidence was necessary to support her claim. Appellant was afforded 30 days to submit 

the necessary evidence. In response, she submitted additional evidence.

 

3 Order Remanding Case, Docket No. 16-0225 (issued May 4, 2016). 

4 Appellant had previously filed an occupational disease claim on August 17, 2011 wherein she alleged an injury 

to her right shoulder as a result of constant lifting and handling of trays and buckets on the automatic induction flats 

sorting machine. OWCP assigned the claim OWCP File No. xxxxxx153 and on July 25, 2011 accepted the claim 

for strain and sprain of her shoulder and upper arm. Appellant subsequently filed a claim for a recurrence of 

disability (Form CA-2a) as of July 9, 2014. On September 25, 2014 OWCP denied her claim for recurrence as she

had not established that she was further disabled due to a material change/worsening of her accepted 

employment-related condition, and after review of the written record, this decision was affirmed by the hearing 

representative in a July 7, 2015 decision. 
3

In a November 11, 2013 magnetic resonance imaging (MRI) scan of the right shoulder 

report, Dr. Braxton McClung, a Board-certified radiologist, found stable rim rent tear at the

footplate of the middle fibers of the supraspinatus, partial articular surface tearing of the mid 

fibers of the infraspinatus, mild acromioclavicular joint osteoarthritis and subacromial bursitis, 

degenerative tearing of the superior and posterior/superior labrum, and nonspecific bone marrow 

reconversion. 

In a progress note dated July 9, 2014, Dr. Togliatti-Trickett noted that appellant had 

experienced increased pain in her right shoulder during the last week. She noted that appellant 

had been working custodial work, but had been off work for the past week and had been resting 

her right arm and taking Celebrex daily for pain. Dr. Togliatti-Trickett again listed appellant’s 

diagnoses as rotator cuff strain/shoulder and shoulder sprain/strain. She noted that appellant was

limited in the use of her right shoulder due to pain, and that she was to continue to avoid 

overhead activities and remain off work for one week and then return with restrictions. 

In a December 4, 2014 response to OWCP’s request for additional information, appellant 

stated that the work of shoveling snow between December 2013 and February 2014, and

unsuccessful attempts at starting a gas grass trimmer in May 2014, contributed to her right 

shoulder conditions. 

By decision dated February 2, 2015, OWCP denied appellant’s occupational disease 

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

shoulder conditions were causally related to the accepted factors of her federal employment.

On February 9, 2015 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. 

In a February 25, 2015 letter to OWCP, Dr. Togliatti-Trickett noted that appellant worked 

as a custodian for the employing establishment, and that she had a prior work injury from June 1, 

2011 which resulted in a sprain of the right shoulder and arm and a right rotator cuff sprain. She

noted that appellant was able to continue with work activities until she developed an increase in 

pain to the right shoulder because of her work activities. Dr. Togliatti-Trickett opined within a 

reasonable degree of medical certainty that appellant’s action on May 8, 2014 of pulling string to 

start a grass trimmer was a direct and proximate cause of a reaggravation of her June 17, 2011 

right shoulder injury. 

In a March 26, 2015 letter, Dr. Andre F. Wolanin, an orthopedic surgeon, indicated that 

documentation through physical examinations and MRI scans revealed a progression of an 

intrasubstance tear now becoming a full-thickness tear of the supraspinatus and spreading to the 

infraspinatus. He opined that there was a direct link between the May 8, 2014 event, which 

caused a partial thickness tear, and the full-thickness tear. Dr. Wolanin further indicated that 

appellant would benefit from arthroscopic rotator cuff repair in order to not develop further 

complications such as cuff arthropathy in the future. 

During the hearing, held on August 11, 2015, appellant testified that on May 8, 2014 she 

injured her right shoulder while pulling the string to start a gas grass trimmer. She noted that she 

did not seek medical treatment for this injury until July 8, 2014. Appellant further testified that 
4

she did not report the injury in May 2014 because she already had a regularly scheduled medical

appointment in July. She noted that she initially felt a sharp pain and then had a flare-up a 

couple of days later. Appellant stated that she wrote her supervisor a note at the time of the 

injury, but did not file a formal claim at that point. 

By decision dated October 23, 2015, OWCP’s hearing representative affirmed the 

February 2, 2015 decision. She found that appellant had not provided sufficient medical 

evidence to establish causal relationship between her right shoulder conditions and the accepted 

factors of her federal employment. 

On December 28, 2015 appellant, through counsel, appealed to the Board. Counsel 

argued that appellant sustained a recurrence of disability and that she should never have been 

advised to file a claim for a new injury. He contended that she never stopped having problems 

relating to her previously accepted right shoulder injury and intermittently sought medical 

treatment for that injury. 

By order dated May 4, 2016, the Board remanded the case to OWCP. The Board found

that as appellant’s claim for a new injury dealt with the same bodily member accepted under

OWCP File No. xxxxxx153, and as she was arguing that OWCP mischaracterized her condition 

as a new injury rather than a recurrence, medical evidence relating to the earlier accepted 

occupational disease claim was necessary for the adjudication of the present claim. Accordingly, 

the Board determined that the case was not in posture for decision. The case was remanded for 

OWCP to combine the case files and reconstruct the case record, to be followed by the issuance 

of an appropriate decision.5 

By decision dated July 6, 2016, OWCP reviewed the history of the claim in OWCP File 

No. xxxxxx153. With regard to the present occupational disease claim, OWCP File No. 

xxxxxx869, it noted that the evidence of record was insufficient to establish that the diagnosed 

medical conditions were causally related to the accepted employment factors. 

On July 18, 2016 appellant, through counsel, requested an oral hearing before an OWCP 

hearing representative. During the hearing held on February 13, 2017, counsel contended that 

appellant’s employment duties did not cause a new injury, but rather a worsening of her 

previously accepted right shoulder rotator cuff condition. 

By decision dated April 25, 2017, the hearing representative affirmed the February 2, 

2015 decision as appellant had not submitted any rationalized medical evidence to support that 

the claimed right shoulder conditions were due to factors of her federal employment. 

LEGAL PRECEDENT

An employee seeking benefits under FECA6 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 

 

5 Supra note 3.

6 Supra note 2.
5

United States within the meaning of FECA, that the claim was filed within the applicable time 

limitation, that the 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.7 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.8 

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 employment factors alleged to have caused or contributed to the presence 

or 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. 

The medical evidence must include a physician’s rationalized opinion on the issue of whether 

there is causal relationship between the claimant’s diagnosed condition and the implicated 

employment factors. 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.9

ANALYSIS

Appellant filed an occupational disease claim alleging that she sustained a “flare-up” of a 

previously accepted injury to her right shoulder. She filed a claim for wage-loss compensation 

for the period July 9 through 17, 2014. Appellant testified that this aggravation occurred as a 

result of pulling the string to start a gas grass trimmer on May 6, 2014, and shoveling snow from

December 2013 through February 2014. OWCP denied her claim, noting that she had not 

established causal relationship between the accepted factors of her federal employment and her 

diagnosed right shoulder conditions. 

Initially, the Board finds that OWCP properly adjudicated the claim as a claim for a new 

injury, rather than a recurrence of her prior claim under OWCP File No. xxxxxx153. A 

recurrence of disability means an inability to work after an employee has returned to work 

caused by a spontaneous change in a medical condition resulting from a previous injury or illness 

without a new or intervening injury.10 Appellant returned to work following her August 2011 

employment injury, which was accepted for strain and sprain of her right shoulder and arm. She 

then alleged that new work activities, specifically shoveling snow and attempting to start a grass 

trimmer, caused an aggravation of her previously accepted right shoulder condition. 

Accordingly, as properly determined by OWCP, appellant’s claim was not for a recurrence of

 

7

Joe D. Cameron, 41 ECAB 153 (1989). 

8 See Irene St. John, 50 ECAB 521 (1999).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989). 

10 Mary A. Ceglia, 55 ECAB 626 (2004); see also J.F., Docket No 12-1751 (issued February 5, 2013). 
6

disability of a previously accepted employment injury. As appellant has alleged an injury over 

the course of more than one workday or shift, following her return to work, her claim is for a 

new occupational disease.11

The Board finds that appellant failed to establish causal relationship between the accepted 

factors of her federal employment and her diagnosed right shoulder conditions. 

In a progress note dated July 9, 2014, Dr. Toglatti-Trickett noted that appellant had been 

performing custodial duties for the past week, and had an increase of pain in her shoulder. In an 

October 13, 2014 progress note, she noted that appellant reaggravated her prior right shoulder

injury on July 8, 2014. Dr. Toglatti-Trickett further noted that appellant’s right shoulder injury

was aggravated by her new job as a custodian. However, she did not explain how the specific

employment duties identified by appellant caused a diagnosed medical condition. Dr. ToglattiTrickett failed to provide a well-rationalized opinion explaining the cause of appellant’s right 

shoulder condition and she only generally repeated her allegations pertaining to appellant’s 

employment factors. Such generalized statements do not establish causal relationship because 

they merely repeat appellant’s allegations and are unsupported by adequate medical rationale 

explaining how or why specific physical activity actually caused the diagnosed condition.12 In 

her October 14, 2014 Form CA-20 report, Dr. Toglatti-Trickett checked a box marked “yes”

indicating that appellant’s diagnosed conditions were caused or aggravated by her employment 

activities. The Board has held that when a physician’s opinion on causal relationship consists 

only of checking a box marked “yes” to a form question, without explanation or rationale, that 

opinion is of diminished probative value and is insufficient to establish a claim.13

In a February 25, 2015 letter to OWCP, Dr. Togliatti-Trickett opined within a reasonable 

degree of medical certainty that appellant’s aggravation of the right shoulder condition was due 

to work activity from May 8, 2014 when she pulled the string of a gas grass trimmer. The Board 

finds that Dr. Toglatti-Trickett’s opinion on causal relationship in her February 25, 2015 letter 

lacks rationale. Dr. Toglatti-Trickett saw appellant on July 9, 2014, but simply attributed 

appellant’s injury to generic custodial duties. The first mention that appellant’s right shoulder 

conditions were caused while trying to start a gas grass trimmer on May 6, 2014 was not until 

February 25, 2015, nine months after the alleged occurrence. Furthermore, appellant did not 

seek any medical treatment until July 9, 2014, which was two months after the alleged injury. 

Dr. Toglatti-Trickett offered no explanation for these discrepancies. Furthermore, she did not 

explain how, physiologically, the accepted factors of appellant’s employment, including 

shoveling snow and pulling the string to start a gas grass trimmer, caused the diagnosed 

conditions. Medical conclusions unsupported by rationale are of little probative value.14

 

11 A claim for an injury over more than one workday or shift is properly considered an occupational disease or 

illness rather than a traumatic injury. See 20 C.F.R. § 10.5(a) and (ee).

12 See J.S., Docket No. 17-0967 (issued August 23, 2017). 

13 See S.F., Docket No. 17-0463 (issued September 8, 2017).

14 Id.
7

Dr. Wolanin indicated that the May 8, 2014 incident caused the progression of an 

intrasubstance tear to become a full thickness tear of the supraspinatus and infraspinatus. 

However, he never described how, medically, any of appellant’s accepted employment factors

caused the progression of the shoulder tear. As such, Dr. Wolanin’s conclusion is of limited 

probative value.15

The other medical evidence of record is also insufficient to establish causal relationship. 

Dr. McClung interpreted a right shoulder MRI scan, but he offered no opinion on causal 

relationship. The Board has found that diagnostic studies are of limited probative medical value 

as they do not specifically address whether the diagnosed conditions are attributable to accepted 

employment factors.16 Accordingly, Dr. McClung’s MRI scan study is of limited probative 

value.17 

An award of compensation may not be based on surmise, conjecture, speculation, or on 

the employee’s own belief of causal relationship.

18

 Appellant’s belief that the duties of her

federal employment caused her injury, however sincerely held, does not constitute medical 

evidence sufficient to establish causal relationship.19 

The Board thus finds that appellant failed to meet her burden of proof.

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 failed to establish right shoulder conditions causally

related to the accepted factors of her federal employment.

 

15 Supra note 9. 

16 See J.P., Docket No. 16-0510 (issued April 22, 2016). 

17 Id.

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

19 P.S., Docket No. 17-0598 (issued June 23, 2017). 
8

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated April 25, 2017 is affirmed.

Issued: January 19, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board