United States Department of Labor

Employees’ Compensation Appeals Board

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C.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Freehold, NJ, Employer

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Docket No. 19-0611

Issued: August 9, 2019

Appearances: Case Submitted on the Record

Michael D. Overman, 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 January 25, 2019 appellant, through counsel, filed a timely appeal from an August 29, 

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. 

 

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

ISSUE

The issue is whether appellant has met her burden of proof to establish additional left 

shoulder, cervical, and/or lumbar conditions causally related to the accepted February 23, 2015 

employment injury.

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 February 23, 2015 appellant, then a 63-year-old letter carrier, slipped on ice and fell in 

the employing establishment parking lot just prior to her scheduled workday. On her Form CA-1 

she claimed to have injured her back, right elbow, and her head due to the work-related fall. In 

July 2015, OWCP accepted appellant’s traumatic injury claim for lumbar sprain, right elbow 

contusion, back contusion, and neck sprain. However, it repeatedly declined to expand her claim 

to include bilateral rotator cuff syndrome, bilateral shoulder impingement, right shoulder rotator 

cuff tear and tendinopathy, and cervical and lumbar herniated nucleus pulposus (HNP). 

By decision dated April 10, 2017, a hearing representative affirmed the denial of claim for 

left rotator cuff syndrome, left shoulder impingement, HNP bulge cervical and lumbar 

intervertebral discs, but vacated the prior decision with regard to the claimed right shoulder injury. 

On July 6, 2017 OWCP expanded acceptance of the claim to include contusion of the right 

shoulder.4 

Appellant appealed to the Board. By decision dated May 4, 2018, the Board affirmed 

OWCP’s April 10, 2017 decision, finding that appellant had not established that her left rotator 

cuff syndrome, left shoulder impingement, and cervical and lumbar HNP were causally related to 

the accepted February 23, 2015 employment injury.

5

Following the Board’s May 4, 2018 decision, counsel requested reconsideration and 

submitted additional medical evidence. 

In a May 24, 2018 report, Dr. Nasser Ani, a Board-certified orthopedic surgeon opined that 

appellant’s right shoulder injury was “directly and causally related to the injury she sustained on 

[February 23, 2015].” He explained that, when appellant slipped and fell on ice, she extended her 

right arm out to catch her fall. Dr. Ani related that the most common cause of an acute rotator cuff 

 

3 Docket No. 17-1357 (issued May 4, 2018).

4 By decision dated July 11, 2017, OWCP denied the claim for right rotator cuff syndrome, right shoulder 

impingement, right shoulder rotator cuff tear, and tenopathy. Appellant, through counsel, requested a hearing with 

regard to the July 11, 2017 denial decision, however the record reflects that the issue of appellant’s additional right 

shoulder conditions remains pending before OWCP’s Branch of Hearings and Review and is not presently before the 

Board.

5 Supra note 3.
3

tear was a high impact injury or jerking motion and that rotator cuff muscles could be damaged or 

torn due to a force of suddenly pushing a heavy object. He reported: “this mechanism of injury 

is synonymous with the description the patient provided us.” Dr. Ani indicated that, in order to 

prevent further injury, appellant extended her right arm to catch herself and absorb the impact. He

also noted that appellant’s clinical examination and MRI scan findings clearly demonstrated a right 

shoulder rotator cuff tear directly related to her fall. 

By decision dated August 29, 2018, OWCP denied modification.

LEGAL PRECEDENT

Where 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.6 

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.7 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.8 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s 

specific employment factor(s).9

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish additional left 

shoulder, cervical, and/or lumbar conditions causally related to her accepted February 13, 2015 

employment injury.

Preliminarily, the Board notes that it is unnecessary to reconsider the evidence appellant

submitted prior to the issuance of OWCP’s April 10, 2017 decision because the Board already 

considered this evidence in its May 4, 2018 decision. Findings made in prior Board decisions are 

res judicata absent any further review by OWCP under section 8128 of FECA.10

On reconsideration counsel submitted a May 24, 2018 report from Dr. Ani who opined that 

appellant’s right shoulder injury was “directly and causally related to the injury she sustained on 

[February 23, 2015].” He explained that when appellant slipped and fell on ice, she extended her 

 

6 R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

7 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996). 

8 M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Id.

10 See E.B., Docket No. 17-1497 (issued March 19, 2019); K.K., Docket No. 17-1061 (issued July 25, 2018). The 

Board will, therefore, not review the evidence addressed in the prior appeal.
4

right arm forward in order to catch her fall. Dr. Ani reported: “this mechanism of injury is 

synonymous with the description the patient provided us.” Although Dr. Ani provided an opinion 

relative to causal relationship related to appellant’s right upper extremity, he did not offer an 

opinion on whether appellant’s left shoulder rotator cuff and impingement syndrome or her 

cervical and lumbar HNP were causally related to the accepted February 23, 2015 employment 

injury. As noted, the issue of expansion of the claim regarding appellant’s right upper extremity 

condition is currently pending before the Branch of Hearing’s and Review.11 The medical 

evidence received since OWCP’s April 10, 2017 decision does not address appellant’s left 

shoulder and cervical/lumbar conditions, and therefore, it is insufficient to establish expansion of 

appellant’s claim to include additional left shoulder, cervical, and/or lumbar conditions. 

Accordingly, the Board finds that appellant has not met her burden of proof to establish causal 

relationship between her left shoulder conditions and/or cervical/lumbar HNP and the accepted 

February 23, 2015 employment injury.12

On appeal counsel argues that there is an unresolved conflict in medical opinion regarding 

whether appellant’s claimed right upper extremity conditions are employment related. As 

discussed above, the issue of whether the record supports expansion of the claim with respect to 

additional right upper extremity conditions is not currently before the Board.

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 additional left 

shoulder, cervical, and/or lumbar conditions causally related to the accepted February 23, 2015 

employment injury.

 

11 Supra note 7. The Board and OWCP may not simultaneously exercise jurisdiction over the same issue(s). 

20 C.F.R. §§ 501.2(c)(3), 10.626; see, e.g., Lawrence Sherman, 55 ECAB 359, 360 n.4 (2004).

12 See T.F., Docket No. 17-0645 (issued August 15, 2018); see also G.M., Docket No. 16-1764 (issued 

March 16, 2018).
5

ORDER

IT IS HEREBY ORDERED THAT the August 29, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 9, 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