United States Department of Labor

Employees’ Compensation Appeals Board

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G.D., Appellant

and

DEPARTMENT OF THE ARMY, RESEARCH, 

DEVELOPMENT & ENGINEERING 

COMMAND, PICATINNY ARSENAL, NJ,

Employer

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Docket No. 19-1175

Issued: November 15, 2019

Appearances: Case Submitted on the Record

Russell T. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 1, 2019 appellant, through counsel, filed a timely appeal from a December 6, 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 to consider 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 his burden of proof to establish a traumatic injury 

causally related to the accepted July 14, 2017 employment incident.

FACTUAL HISTORY

On July 18, 2017 appellant, then a 61-year-old industrial engineering technician, filed a 

traumatic injury claim (Form CA-1) alleging that on July 14, 2017 he slipped backward on wet 

steps, slid downward on his back and buttocks, and sustained bruises and abrasions on his left arm, 

shoulders, back, and buttocks while in the performance of duty. He provided a July 14, 2017 

witness statement from coworker M.F. indicating that appellant slipped and fell backward down 

three stairs, landing on his buttocks, back, and shoulders.

Appellant sought treatment on July 14, 2017 at the employing establishment health clinic,

but there was no physician or nurse on duty.

In a July 17, 2017 report, Dr. James Bilello, Board-certified in occupational and preventive 

medicine, noted appellant’s account of falling on stairs at work on July 14, 2017. He ordered 

x-rays.3 Dr. Bilello restricted appellant to light duty. Appellant returned to full duty in late 

July 2017.

In September 26, 2017 reports, Dr. Michael A. Deehan, a Board-certified orthopedic 

surgeon, noted that on July 14, 2017 appellant slipped and fell backward on wooden steps while 

at work, injuring his right shoulder. He diagnosed right rotator cuff impingement and a labral tear. 

On October 12, 2017 appellant filed a notice of recurrence (Form CA-2a), claiming 

disability for work commencing September 26, 2017. He described continued soreness of the right 

shoulder. Appellant noted that on July 25, 2017 he had sustained a separate and unrelated 

employment injury to his left hand.

4

In an October 23, 2017 development letter, OWCP advised appellant of the deficiencies of 

his claim. It requested additional factual and medical evidence from him. OWCP afforded 

appellant 30 days to respond. 

In response, appellant submitted a November 13, 2017 statement. He described slipping

and falling backward on four stairs of a wooden dock, striking his back, tailbone, and shoulders. 

Appellant sought treatment at an employing establishment clinic where he had abrasions cleaned.

On July 17, 2017 he underwent x-rays and a clinic physician diagnosed arthritis of the right 

 

3

July 17, 2017 x-rays demonstrated mild degenerative changes of the right shoulder, postsurgical changes of the 

lower cervical and upper thoracic spine, and mild disc space narrowing at L5-S1. 

4 On July 25, 2017 appellant sustained a small puncture wound to the dorsum of the first web of the left hand from 

a fragment of a snapped drill bit. OWCP assigned the claim OWCP File No. xxxxxx026. 
3

shoulder. Appellant returned to work. As his symptoms remained significant, he consulted

Dr. Deehan, who diagnosed a rotator cuff tear.5

An October 13, 2017 magnetic resonance imaging (MRI) scan of the right shoulder 

demonstrated a full-thickness supraspinatus tear with retraction, high-grade tears of the 

subscapularis and infraspinatus tendons, a superior labral tear, acromioclavicular arthrosis, 

subacromial and subdeltoid bursitis, and glenohumeral joint effusion. 

In a report dated November 9, 2017, Dr. Deehan noted that on July 14, 2017 appellant 

injured himself at work when he fell “backwards and injured his shoulder.” Appellant’s right 

shoulder dysfunction, weakness, and pain remained unimproved. Dr. Deehan diagnosed a right 

rotator cuff tear requiring arthroscopic repair. 

By decision dated December 6, 2017, OWCP accepted that the July 14, 2017 incident

occurred at the time, place, and in the manner alleged, but denied appellant’s claim, finding that 

he had not met his burden of proof to establish causal relationship.

On December 18, 2017 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. He submitted additional evidence.

In an October 19, 2017 report, Dr. Deehan diagnosed right supraspinatus and infraspinatus 

tears, impingement, and chronic pain. 

In a January 11, 2018 report, Dr. Philip E. Lutz, a Board-certified anesthesiologist, noted 

that appellant had slipped and fallen down four steps while at work on July 14, 2017 striking his 

buttocks, back, and head. On examination, he found limited range of right shoulder motion, 

diminished grip strength in the right hand, and lumbar paraspinal tenderness. Dr. Lutz prescribed 

medication.6

In a report dated March 1, 2018, Dr. Lutz noted progressive atrophy of the right shoulder 

with decreased strength and range of motion. He diagnosed a post-traumatic right rotator cuff and 

labral tears, acromioclavicular arthrosis, bursitis, glenohumeral joint effusion, marked 

acromioclavicular osteoarthritis, chronic right shoulder pain, and lumbar stenosis with bilateral 

radiculopathy. 

In a March 14, 2018 report, Dr. Deehan noted the accepted July 2017 employment 

incident. He diagnosed a right labral tear of the supraspinatus tendon with retraction, a 

subscapularis tendon tear, and infraspinatus tendon tear. Dr. Deehan indicated that the arthritic 

changes in the AC joint certainly preexisted the trauma sustained. He opined that “the causative 

factor of [appellant’s] shoulder problem is clearly the trauma he sustained and these injuries are 

structurally quite substantial.”

 

5 Appellant also submitted witness statements from coworkers O.D. and M.F., who corroborated appellant’s account 

of his slip and fall down wooden stairs. Immediately, after the incident, the coworkers transported appellant to the 

employing establishment’s health clinic for evaluation. 

6 Dr. Lutz also provided January 15, 2018 laboratory test results. 
4

At the hearing, held on May 14, 2018, counsel contended that appellant’s uncontroverted 

assertion of a right shoulder injury related to the accepted July 14, 2017 employment incident was 

supported by the detailed opinions of Dr. Deehan and Dr. Lutz. Counsel emphasized that

Dr. Deehan provided medical rationale differentiating preexisting arthritis from the claimed 

traumatic injury.

By decision dated June 14, 2018, an OWCP hearing representative affirmed the 

December 6, 2017 decision, finding that the medical evidence of record was insufficient to 

establish causal relationship.

On September 18, 2018 appellant, through counsel, requested reconsideration. Counsel

submitted additional medical evidence.

In a June 4, 2018 report, Dr. Deehan explained that the accepted July 14, 2017 incident 

“resulted in forceful motion of the right arm and resulted in tear of the rotator cuff. This is a 

common mechanism for this type of injury and is clearly causative based on his history of absence 

of prior disease and confirmatory MRI [scan].”

By decision dated December 6, 2018, OWCP denied modification as the evidence of record 

did not contain sufficient medical rationale supporting causal relationship to meet appellant’s 

burden of proof.

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,7that 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.9

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 

 

7 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

8

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

9 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);

Delores C. Ellyett, 41 ECAB 992 (1990).
5

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.10

Rationalized medical opinion evidence is required to establish causal relationship. 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 factors 

identified by the claimant.11 The weight of the 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.12

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.13

ANALYSIS

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

In support of his claim, appellant provided a series of reports from Dr. Deehan, dated from 

September 26, 2017 to June 4, 2018. In his initial report, Dr. Deehan noted the accepted July 14, 

2017 employment incident in which appellant slipped and fell backward on wooden stairs, sliding

downward on his back, buttocks, and right shoulder. He opined on November 9, 2017 that the 

accepted incident caused a right rotator cuff tear. Additionally, Dr. Deehan in his March 14, 2018 

report indicated that the arthritic changes in the AC joint certainly preexisted the trauma sustained. 

He opined that the causative factor of his shoulder problem was clearly the trauma between 

appellant’s preexisting acromioclavicular joint arthritis and the claimed traumatic injury. 

Dr. Deehan opined that the rotator cuff injuries were clearly caused by the July 14, 2017 traumatic 

incident as they were structurally substantial. He elaborated in a June 4, 2018 report that forceful 

right arm motion during the accepted July 14, 2017 employment incident caused the diagnosed 

rotator cuff tendon tears. Dr. Deehan noted that this was a common method of causation and had 

been confirmed by MRI scan.

Dr. Deehan provided a consistent, detailed explanation of how appellant’s right shoulder 

conditions resulted from accepted July 14, 2017 employment incident. Although his reports are 

insufficient to discharge appellant’s burden of proving that his current right shoulder conditions 

were caused or aggravated by the July 14, 2017 employment incident, his opinion is of sufficient 

 

10 John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee) and 10.5(q) 

(traumatic injury and occupational disease defined, respectively).

11 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 45 ECAB 345(1989).

12 James Mack, 43 ECAB 321 (1991).

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); 

R.A., Docket No. 19-0423 (issued August 7, 2019); D.S., Docket No. 17-1359 (issued May 3, 2019).
6

probative quality to require further development of the case record by OWCP, and is 

uncontroverted in the record.

14

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. The claimant has the burden of proof to establish entitlement to compensation. However, 

OWCP shares responsibility in the development of the evidence to see that justice is done.15

On remand OWCP should refer appellant to an appropriate specialist, along with the case 

record and a statement of accepted facts. Its referral physician should provide an evaluation and a 

rationalized medical opinion as to the relation of the claimed right shoulder conditions to the 

accepted July 14, 2017 employment incident. 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 December 6, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this decision of the Board.

Issued: November 15, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

14 R.A., id.; D.S., id.

15 Id.; 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).