United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Barnegat, NJ, Employer

__________________________________________

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Docket No. 20-1394

Issued: July 26, 2021

Appearances: Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 7, 2020 appellant, through counsel, filed a timely appeal from a June 2, 2020 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 a right shoulder 

condition causally related to the accepted December 10, 2015 employment incident.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

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

are as follows. 

On March 1, 2016 appellant, then a 57-year-old rural letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 10, 2015 she sustained a right rotator cuff tear when 

she slipped and stumbled on a rocky walkway while in the performance of duty. She indicated 

that the injury occurred when she returned to her long life vehicle (LLV) and that, when her 

shoulder jerked to break her fall, she felt immediate severe pain. Appellant did not stop work. 

In a December 11, 2015 report, Dr. Nagalakshmi Shetty, Board-certified in rheumatology 

and internal medicine, related that on December 7, 2015 appellant experienced a sudden jerking 

movement to her right shoulder. This pain resolved with icing the right shoulder. Dr. Shetty 

further reported that appellant experienced another “jerky jolt” to her right shoulder on 

December 10, 2015 when, while delivering mail, appellant stumbled on rocks and caught herself 

from falling. This time the pain was severe. Dr. Shetty diagnosed right shoulder degenerative 

arthritis, right shoulder pain, and primary osteoarthritis of both first carpometacarpal joints.

In reports dated December 14, 2015 and February 2, 2016, Dr. Rosemarie DeSantis, a 

Board-certified rheumatologist, noted a history of the December 10, 2015 employment incident 

and diagnosed primary osteoarthritis of the right shoulder and primary osteoarthritis of the hands. 

In her February 2, 2016 report, she also diagnosed a tear of the right rotator cuff. 

In a February 22, 2016 report, Dr. Nicholas Jarmon, a Board-certified orthopedic surgeon, 

related that appellant had immediate onset of right shoulder pain while at work on December 10, 

2015 when she fell and caught herself. He provided an assessment of full-thickness rotator cuff 

tear and recommended surgery. Dr. Jarmon indicated that the tear appeared to be acute in nature 

as there was no significant muscle atrophy and appellant denied a history of prior trauma. In a 

March 7, 2016 report, he opined that the tear was causally related to her work as it had occurred 

at work. In a March 11, 20164attending physician’s report (Form CA-20), Dr. Jarmon checked a 

 

3 Docket No. 18-1209 (issued March 7, 2019). 

4 The date of the report appears to be incorrect as it refers to appellant’s rotator cuff repair which took place 

March 17, 2016.
3

box marked “Yes,” indicating that appellant’s status post tear of the supraspinatus repair was 

causally related to the December 10, 2015 employment incident. 

On March 17, 2016 Dr. Jarmon performed a right shoulder arthroscopic labral 

debridement, biceps tenotomy, and arthroscopic supraspinatus repair. Postsurgical progress 

reports and duty status reports (Form CA-17) from him were also received. 

In a development letter dated May 9, 2016, OWCP informed appellant of the deficiencies 

of her claim. It advised her of the type of additional medical evidence needed and afforded her 30 

days to respond.

In response, OWCP received appellant’s May 26, 2016 statement wherein she reiterated 

the details of the claimed December 10, 2015 employment incident. It also received additional 

treatment notes and Form CA-17 reports from Dr. Jarmon.

By decision dated June 15, 2016, OWCP denied appellant’s claim, finding that the medical 

evidence submitted did not contain a comprehensive medical opinion which established that the 

diagnosed conditions were causally related to the accepted December 10, 2015 employment 

incident. 

On July 12, 2016 appellant, through counsel, requested a review of the written record by a 

representative of OWCP’s Branch of Hearings and Review. 

In a June 29, 2016 report, Dr. Jarmon noted that on December 10, 2015 appellant was 

returning to her LLV after delivering parcels when she stumbled on a rocky path and caught her 

balance with her right arm. Appellant experienced an immediate onset of pain, but continued on 

her route, relying on her left shoulder. She denied a history of prior injury to the right shoulder.

Dr. Jarmon indicated that appellant’s February 10, 2016 right shoulder magnetic resonance 

imaging (MRI) scan revealed a full-thickness tear of the supraspinatus, for which the March 17, 

2016 surgery was performed. With regard to medical causality, he opined that the mechanism of 

injury described by her could cause a full-thickness rotator cuff tear. Dr. Jarmon explained that 

the timing of appellant’s symptoms coincided with the timing of the injury. Also, the fact that 

there was no significant muscle atrophy appreciable on the MRI scan suggested that it was an 

acute, not a chronic, tear.

By decision dated December 5, 2016, the hearing representative affirmed the June 15, 2016 

decision denying appellant’s claim.

On May 23, 2017 appellant, through counsel, requested reconsideration. 

Additional reports were submitted to OWCP. In the January 16, 2017 report, Dr. Jarmon 

related appellant’s description of the employment incident. Dr. Jarmon related that as she was 

walking back to her vehicle she lost her balance and was able to regain her balance by moving her 

arms around and kind of catching herself in mid-air, without grabbing unto anything, which is 

when the pain started. He concluded that this was a reasonable mechanism to cause a full-thickness 

cuff tear. In the February 16, 2017 report, Dr. Jarmon related that, when appellant moved her arms 

around to regain her balance, the movement caused or increased sudden stress at the tendon-bone 

interface of the rotator cuff attachment. He further concluded that, if enough force was seen at 
4

that interface, it could potentially cause a tear based on the strength of the contracture of the rotator 

cuff. In the March 27, 2017 report, Dr. Jarmon continued to opine that the injury was related to 

the mechanism of injury appellant described.

By decision dated February 16, 2018, OWCP denied modification of its December 5, 2016 

decision.

On May 29, 2018 appellant, through counsel, filed a timely appeal with the Board. By 

decision dated March 7, 2019,

5

the Board affirmed OWCP’s February 16, 2018 decision, finding 

that she had not met her burden of proof to establish her claim. The Board found that there was 

no rationalized medical evidence of record to support that the right rotator cuff tear was causally 

related to the accepted December 10, 2015 employment incident. The Board noted that Dr. Jarmon 

had generally supported causal relationship between the accepted December 10, 2015 employment 

incident and appellant’s rotator cuff tear, however, his opinion was couched in speculative terms. 

On March 9, 2020 appellant, through counsel, requested reconsideration on an appeal

request form dated March 2, 2020. Counsel indicated that reconsideration was based on relevant 

new evidence consisting of a May 20, 2019 report by a Dr. Arthur Becan, a Board-certified 

orthopedic surgeon, and an October 9, 2019 report by Dr. David Weiss, an osteopath Boardcertified in orthopedic surgery.

In a May 20, 2019 report, Dr. Weiss opined that appellant reached maximum medical

improvement on May 20, 2018 and that she had seven percent permanent impairment of the right 

upper extremity under the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment, (A.M.A., Guides).6 He noted the history of the 

December 10, 2015 employment incident and his review of her medical records. Dr. Weiss noted

that, prior to this injury, appellant denied any right shoulder pain or any restrictions in her activities 

of daily living. With regard to causation, he opined that that the cause of her disability was the 

work-related injury of December 10, 2015.

In an October 9, 2019 report, Dr. Weiss again noted the history of the December 10, 2015 

employment injury and his review of appellant’s medical records. He reported that her past 

medical history was unremarkable with no previous right shoulder injury. Dr. Weiss noted that 

medical literature indicated that the pathophysiology of shoulder tendinopathy, impingement, and 

rotator cuff tears was multifactorial with both patient and work-related factors acting 

concomitantly to reproduce shoulder tendinopathy. He also noted that such medical literature also 

revealed that awkward postures revealed strong evidence in terms of occupational risk factors for 

shoulder tendinopathy and rotator cuff tears. Based on the history provided, Dr. Weiss concluded 

that the jerking of appellant’s right shoulder due to the trip caused the shoulder to be placed in an 

awkward position which led to the rotator cuff tear and labral injury. He further opined that the 

 

5 Supra note 3.

6 A.M.A., Guides (6th ed. 2009). 
5

claimed December 10, 2015 injury also aggravated the preexisting quiescent osteoarthritis of the 

right shoulder.

By decision dated March 12, 2020, OWCP found that the March 2, 2020 reconsideration 

request, which OWCP received on March 9, 2020, was untimely filed and failed to demonstrate 

clear evidence of error. 

On April 2, 2020 appellant, through counsel, requested that OWCP set aside OWCP’s 

March 12, 2020 decision on procedural grounds as the reconsideration request was timely filed.

In a May 26, 2020 letter, OWCP advised that appellant’s March 2, 2020 reconsideration 

request, which was received on March 9, 2020, was in fact timely filed. It found that because the 

one-year period for filing reconsideration of the March 7, 2020 decision had expired on March 8, 

2020, a Sunday, she had until March 9, 2020 to timely request reconsideration. Thus, OWCP

indicated that OWCP would proceed with a merit review of the case. 

By decision dated June 2, 2020, OWCP denied modification of the March 7, 2019 decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA7has 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, that 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.8 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.

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. The first component is that the 

employee must submit sufficient evidence to establish that he or she actually experienced the 

employment incident at the time and place, and in the manner alleged. The second component is 

whether the employment incident caused a personal injury.9

The medical evidence required to establish causal relationship between a claimed specific 

condition and an employment incident is rationalized medical opinion evidence.10 The opinion of 

the physician must be based on a complete and accurate factual and medical background, must be 

 

7 Supra note 2.

8 C.K., Docket No. 18-1286 (issued April 20, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); Elaine 

Pendleton, 40 ECAB 1143, 1145 (1989).

9 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

10 S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); 

Robert G. Morris, 48 ECAB 238 (1996).
6

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.11

In any case where a preexisting condition involving the same part of the body is present 

and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.12

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a right shoulder 

condition causally related to the accepted December 10, 2015 employment incident.

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

appellant submitted prior to the issuance of OWCP’s February 16, 2018 merit decision. The Board 

considered that evidence in its March 7, 2019 decision and found that it was insufficient to 

establish a right rotator cuff tear causally related to the accepted December 10, 2015 employment 

incident. Findings made in prior Board decisions are res judicata absent further review by OWCP 

under section 8128 of FECA.13

With appellant’s March 2, 2020 reconsideration request, OWCP received two reports from

Dr. Weiss dated May 20 and October 9, 2019 in which he described her right shoulder condition 

and treatment. In both reports, Dr. Weiss noted an unremarkable medical history with no prior 

right shoulder injuries. However, the record reflects that appellant had an earlier incident on 

December 7, 2015 when she experienced a sudden jerking movement to her right shoulder which 

caused pain, which reflects that she had a preexisting right shoulder condition. Thus, Dr. Weiss’

opinions on causation are of diminished probative value as they are not based on a complete and 

accurate factual and medical history.14 Additionally, as noted above, in any case where a 

preexisting condition involving the same part of the body is present and the issue of causal 

relationship therefore involves aggravation, acceleration, or precipitation, the medical evidence 

must provide a rationalized medical opinion that differentiates between the effects of the workrelated injury or disease and the preexisting condition.15

 

While Dr. Weiss offered an explanation, in his October 9, 2019 report, that the jerking 

motion of the right shoulder on December 10, 2015 due to tripping caused the shoulder to be placed 

in an awkward positon which led to the rotator cuff tear and an aggravation of the right shoulder

osteoarthritis, he did not specifically differentiate between appellant’s preexisting condition and 

 

11 R.G., supra note 8.

12 P.L., Docket No. 19-1750 (issued March 26, 2020); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal 

Relationship, Chapter 2.805.3e (January 2013); see Charles W. Downey, 54 ECAB 421 (2003).

13 J.S., Docket No. 19-0022 (issued November 4, 2020); C.D., Docket No. 19-1973 (issued May 21, 2020); M.D.,

Docket No. 20-0007 (issued May 13, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

14 See J.S., Docket No. 19-1035 (issued January 24, 2020).

15 Supra note 12. 
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the effects of the accepted December 10, 2015 employment incident, or explain how her the 

accepted December 10, 2015 employment incident aggravated her preexisting condition.16 Thus, 

his reports are of limited probative value and are insufficient to establish causal relationship.17 

The Board finds that these additional reports from Dr. Weiss described the mechanism of 

the employment incident, but did not provide a rationalized medical explanation as to how the 

awkward placement of appellant’s shoulder physiologically caused a right shoulder rotator cuff 

tear, given the history of her prior injury and preexisting right shoulder conditions. To be of 

probative medical value, a medical opinion must explain how, physiologically, the mechanism of 

injury was sufficient to have caused or contributed to the diagnosed conditions.18 As appellant has 

not submitted rationalized medical evidence sufficient to establish causal relationship, the Board 

finds that she has not met her burden of proof.19

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 a right shoulder 

condition causally related to the accepted December 10, 2015 employment incident.

 

16 See H.A., Docket No. 18-1466 (issued August 23, 2019); L.R., Docket No. 16-0736 (issued September 2, 2016).

17 Id.

18 K.D., Docket No. 19-1405 (issued April 9, 2020); A.W., Docket No. 19-0327 (issued July 19, 2019).

19 C.K., supra note 8. 
8

ORDER

IT IS HEREBY ORDERED THAT the June 2, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 26, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board