United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, LINDEN POST 

OFFICE, Linden, NJ, Employer

__________________________________________

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Docket No. 20-0379

Issued: October 28, 2020

Appearances: Case Submitted on the Record

Aaron B. Aumiller, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 9, 2019 appellant, through counsel, filed a timely appeal from an August 5, 

2019 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.3

 

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.

3 The Board notes that, following the August 5, 2019 decision, OWCP received additional evidence. 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 a right upper 

extremity condition causally related to the accepted November 6, 2017 employment incident.

FACTUAL HISTORY

On December 4, 2017 appellant, then a 63-year-old distribution clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on November 6, 2017 he sustained a torn rotator cuff of 

the right shoulder when he unloaded trailers and trucks and sorted letter flats while in the 

performance of duty. He stopped work on November 7, 2017.

Dr. Howard M. Pecker, a Board-certified orthopedic surgeon, completed a form on 

November 6, 2017 recommending that appellant remain off work until December 10, 2017. He 

diagnosed a torn right shoulder cuff. On December 7, 2017 Dr. Pecker again recommended that 

appellant remain off work pending authorization for surgery.

In a development letter dated January 31, 2018, OWCP informed appellant that he had 

submitted insufficient factual and medical evidence to establish his claim. It advised him of the 

type of evidence needed and provided a questionnaire for his completion. OWCP afforded 

appellant at least 30 days to respond. 

A magnetic resonance imaging (MRI) scan of appellant’s right shoulder dated October 18, 

2017 demonstrated grade 1 shoulder impingement syndrome with moderate tendinopathy/

tendinitis of the supraspinatus tendon and a small joint effusion. There was no evidence of rupture 

or tear of the remaining rotator cuff muscles and tendons.

In a report dated October 26, 2017, Dr. Pecker related that appellant had experienced right 

shoulder pain for the past two and a half weeks. He reported that appellant worked as a sorter at 

the employing establishment, and sorted over 6,000 pieces of mail per day. On physical 

examination Dr. Pecker observed a mild-to-moderately positive sign at the greater tuberosity of 

the right shoulder, and a mildly positive drop sign. He reviewed x-rays of the right shoulder and 

noted impressions of right shoulder impingement, tenosynovitis, biceps tendinopathy, and 

acromioclavicular arthritis. Dr. Pecker recommended work restrictions. 

On November 6, 2017 Dr. Pecker reported that appellant continued to work at sorting and 

experienced pain with attempted forward elevation of the shoulder, which, he added in an 

addendum, that appellant stated began when he moved containers while unloading a truck and felt 

a pain and a “pop” in his shoulder. He related appellant’s physical examination findings and 

diagnosed right shoulder impingement with a bursal-sided rotator cuff tear and secondary shoulder 

pain. Dr. Pecker performed a shoulder injection and recommended that appellant remain off work. 

In a duty status report (Form CA-17) dated February 22, 2018, Dr. Pecker recommended 

that appellant remain off work due to a diagnosis of right rotator cuff tear. 

In an attending physician’s report (Form CA-20) dated February 27, 2018, Dr. Pecker 

diagnosed right shoulder impingement and a right shoulder rotator cuff tear, and checked a box 

marked “Yes” to indicate his opinion that the conditions were employment related. He related that 

appellant had stated that the injury occurred when he began moving containers while unloading a 
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truck. Dr. Pecker noted that appellant had been disabled from October 26, 2017 through 

February 22, 2018.

By decision dated March 8, 2018, OWCP denied appellant’s claim, finding that he had not 

submitted sufficient evidence to establish that his diagnosed medical conditions were causally 

related to the accepted employment incident of November 6, 2017.

On April 23, 2018 OWCP received appellant’s response to its development letter. 

Appellant indicated that, on November 6, 2017 after unloading approximately twenty-five 

containers, he was pulling a carrier-routed flat postal container with a bad wheel to the other side 

of a building when he felt something tear in his right shoulder. He alleged that the stress and strain 

of pulling tons of mail containers into the building by himself on that date caused his right shoulder 

muscles to tear off the shoulder bones, which resulted in a rotator cuff tear. 

By letter dated March 23, 2018, Dr. Pecker explained that appellant complained of pain in 

his shoulder after an episode of overuse when he sorted over 6,000 pieces of mail in a single day 

and had to unload seven trucks by himself, which involved prolonged overhead use and forward 

elevation of his right shoulder. A subsequent MRI scan demonstrated evidence of radiculopathy 

and a bursal-sided rotator cuff tear. Dr. Pecker opined that it was reasonable to conclude that 

sorting thousands of letters and magazines on a daily basis to such a high degree of stress and 

strain, coupled with appellant’s age and lifelong occupational use of the shoulder, contributed to 

his current condition of right shoulder impingement and bursal-sided rotator cuff tear.

In a form report dated April 9, 2018, Dr. Pecker indicated that appellant’s condition 

commenced as of October 2017. He noted that appellant was unable to perform job functions due 

to limited use of the right arm and shoulder.

On April 23, 2018 appellant requested reconsideration of OWCP’s March 8, 2018 

decision.

By decision dated July 18, 2018, OWCP denied modification of its March 8, 2018 decision. 

In office notes dated July 26, 2018, Dr. Pecker related that appellant was approximately 

one month post surgery for labral repair and biceps tenodesis. He explained that the biceps 

tenodesis was performed because patients with rotator cuff tears have associated biceps 

pathologies, as the biceps passes over portions of the rotator cuff, and that this surgical technique 

was commonly used in patients of appellant’s age. Dr. Pecker noted that this procedure was also 

performed as a treatment for labral tearing, which was present at the time of surgery. Appellant 

described the incident of November 6, 2017 to Dr. Pecker, stating that appellant sustained his 

condition on that date when a heavy cart suddenly jammed from a broken wheel as he was pulling 

it, which caused “eccentric loading” of his right arm. At that time, his symptoms, which were mild 

before the injury, suddenly became more severe and consistent with “an acute on chronic tear.” 

On physical examination of the right shoulder, Dr. Pecker observed supple forward elevation to 

110 degrees and external to neutral. He stated that appellant was healing normally status post 

surgery.

On September 6, 2018 appellant was again seen by Dr. Pecker for his right shoulder 

condition. He reported improvement with therapeutic exercise and range of motion. Dr. Pecker 

related appellant’s current physical examination findings. He diagnosed stiffness post-biceps 

tenodesis for a labral tear of the right shoulder. Dr. Pecker noted that there was some question as 
4

to how “eccentric loading” caused a tear in the labrum. He explained that the mechanism for the 

tear was a contraction of the biceps muscle against the biceps tendon, which subsequently tore the 

labrum where it was attached. Dr. Pecker stated that “eccentric loading” was a known causative 

factor for these types of tears as it “causes excess muscle loading without the flex of release which 

might normally occur to prevent injury. This is a kind of direct causation and not an aggravation, 

acceleration, or precipitation.” He concluded that the precipitating factors of mail handling may 

have predisposed appellant to the injury, although the mechanism described was sufficient for a 

sole cause.

On September 20, 2018 appellant, through counsel, requested reconsideration of OWCP’s

July 18, 2018 decision.

By decision dated December 19, 2018, OWCP denied modification of its July 18, 2018 

decision. It found that Dr. Pecker had not differentiated between the effects of appellant’s 

preexisting shoulder condition and the symptoms related to the incident of November 6, 2017.

By letter dated July 16, 2019, Dr. Pecker noted that he had been asked to provide sufficient 

differentiation between appellant’s preexisting condition and appellant’s condition after 

November 6, 2017, at which time he was pulling a fully-loaded 1,200-pound flats container off of 

a truck. He noted that appellant’s October 18, 2017 right shoulder MRI scan demonstrated no 

gross evidence of labral tear and no evidence of rotator cuff rupture or tear. At the time of 

appellant’s surgery on June 20, 2018 it was noted that he had a torn labrum anteroinferiorly and 

superiorly, which were repaired at the time of surgery. Dr. Pecker stated that because the preinjury 

MRI scan did not show the labral tear, and the postinjury surgery revealed a labral tear, it was his 

opinion within a reasonable degree of medical certainty that the incident of November 6, 2017 was 

the proximate cause of the labral tear and, absent surgery, resulted in a permanent injury to the 

right shoulder. He opined that the momentum of a 1,200-pound cart was sufficient to cause failure 

in the tissue of the labrum when the moving car came to a stop and appellant, already applying 

maximal force, was subject to the eccentric loading of a type that is known to cause soft-tissue 

injury in the shoulder, as his body weight and the weight of the cart were going in opposite 

directions, which caused forceful traction on the shoulder and labrum.

On July 30, 2019 appellant, through counsel, requested reconsideration of OWCP’s 

December 19, 2018 decision. 

By decision dated August 5, 2019, OWCP denied modification of its December 19, 2018 

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim, including 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 of FECA,5that an injury was sustained in the performance of duty as alleged, and that 

 

4 Supra note 2.

5 F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. 

Cameron, 41 ECAB 153 (1989). 
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any disability or medical condition for which compensation is claimed is causally related to the 

employment injury.6 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.7

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. First, the employee must submit 

sufficient evidence to establish that he or she actually experienced the employment incident at the 

time, place, and in the manner alleged. Second component is whether the employment incident 

caused a personal injury and can be established only by medical evidence.8 

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

condition and an employment incident is rationalized medical opinion evidence.9 The opinion of 

the physician must be based on a complete factual and medical background of the employee, 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 specific employment factors 

identified by the employee.10

ANALYSIS

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

On October 26, 2017 Dr. Pecker explained that appellant began to complain of pain in his 

shoulder after an episode when he sorted over 6,000 pieces of mail in a single day and had to 

unload seven trucks by himself, which involved prolonged overhead use and forward elevation of 

his right shoulder. On July 26, 2018 appellant described the incident of November 6, 2017 to

Dr. Pecker, stating that a heavy cart suddenly jammed from a broken wheel as appellant was 

pulling it, which caused eccentric loading of his right arm. Dr. Pecker related that at that time, 

appellant’s symptoms, which were mild before the injury, suddenly became more severe and 

consistent with an acute on chronic tear. On September 6, 2018 he explained that the mechanism 

for appellant’s tear was a contraction of the biceps muscle against the biceps tendon, which 

subsequently tore the labrum where it was attached. Dr. Pecker stated that “eccentric loading”

causes excess muscle loading without the flex of release which might normally occur to prevent 

injury. This is a kind of direct causation and not an aggravation, acceleration, or precipitation.” 

He concluded that, while the precipitating factors of mail handling may have predisposed appellant 

to the injury, the mechanism described was sufficient for a sole cause for appellant’s condition. 

 

6 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

7 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

Delores C. Ellyett, 41 ECAB 992 (1990).

8 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).

9 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).

10 T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); 

Victor J. Woodhams, 41 ECAB 345, 352 (1989).
6

On July 16, 2019 Dr. Pecker further explained that appellant had an MRI scan of his right shoulder 

on October 18, 2017 which demonstrated no gross evidence of labral tear and no evidence of 

rotator cuff rupture or tear. At the time of appellant’s surgery on June 20, 2018 it was observed

that he had a torn labrum anteroinferiorly and superiorly, which were repaired at the time of 

surgery. Dr. Pecker stated that because the preinjury MRI scan did not show the labral tear, and 

the postinjury surgery revealed a labral tear, it was his opinion within a reasonable degree of 

medical certainty that the employment incident of November 6, 2017 was the proximate cause of 

the labral tear and, absent surgery, resulted in a permanent injury to the right shoulder. He opined 

that the momentum of a 1,200-pound cart was sufficient to cause failure in the tissue of the labrum 

when the moving cart came to a stop. Dr. Pecker explained that appellant, already applying 

maximal force, was subject to the “eccentric loading” of a type that is known to cause soft-tissue 

injury in the shoulder, as his body weight and the weight of the cart were going in opposite 

directions, which caused forceful traction on the shoulder and labrum.

The Board finds that these reports from Dr. Pecker are sufficient to require further 

development of the medical evidence. Dr. Pecker is a Board-certified physician in orthopedic 

surgery, who is qualified in his field of medicine to render rationalized opinions on the issue of 

causal relationship, and he provided a comprehensive understanding of the medical record and 

case history. His reports suggest a pathophysiological explanation as to how appellant’s unloading 

of a heavy cart from a truck on November 6, 2017 resulted in his diagnosed right upper shoulder

condition. The Board has long held that it is unnecessary that the evidence of record in a case be 

so conclusive as to suggest causal connection beyond all possible doubt. Rather, the evidence is 

only that necessary to convince the adjudicator that the conclusion drawn is rational, sound, and 

logical.11 Dr. Pecker provided a well-rationalized and logical opinion that differentiated 

appellant’s condition alleged to have been caused or aggravated by the employment incident of 

November 6, 2017 from his preexisting symptoms. Accordingly, his medical opinion is sufficient 

to require further development of appellant’s claim.12

It is well established that proceedings under FECA are not adversarial in nature and, while 

appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.13 OWCP has an obligation to see that justice is 

done.14

On remand OWCP shall refer appellant to a specialist in the appropriate field of medicine, 

along with the case record and a statement of accepted facts. Its referral physician shall provide a 

well-rationalized opinion as to whether appellant’s diagnosed right shoulder conditions were 

causally related to or aggravated by the accepted employment incident of November 6, 2017, or 

any other factors of his federal employment. If the physician opines that the diagnosed conditions 

 

11 W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011); 

Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.

12 J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., 

Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J. 

Cantrell, 34 ECAB 1223 (1983).

13 See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 

223 (1999).

14 See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010); 

John J. Carlone, 41 ECAB 354 (1989).
7

are not causally related, he or she must explain with rationale how or why the opinion differs from 

that of Dr. Pecker. After such further development of the case record as OWCP deems necessary, 

it shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 5, 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: October 28, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board