United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.R., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Minneapolis, MN, Employer

__________________________________________

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Docket No. 20-0101

Issued: September 14, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On October 10, 2019 appellant filed a timely appeal from an August 12, 2019 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.2

 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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 her burden of proof to establish a traumatic injury 

causally related to the accepted September 6, 2014 employment incident.

FACTUAL HISTORY

This case has been previously 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 November 9, 2015 appellant, a 45-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that she sustained a right shoulder condition on September 6, 2014 

while in the performance of duty. She stated that she was helping a patient sit on his bed and felt 

a pop in her right shoulder. Appellant did not stop work.

By decision dated December 28, 2015, OWCP denied the claim, finding that the evidence 

of record was insufficient to establish that the claimed incident occurred as alleged.

On February 2, 2016 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review.

On February 10, 2016 appellant requested a review of the written record in lieu of an oral 

hearing.

By decision dated February 24, 2016, the hearing representative denied appellant’s request 

for an oral hearing, finding that it was untimely filed. It further noted that it had exercised its 

discretion and denied her request for the reason that the relevant issue of the case could be equally 

addressed by requesting reconsideration and submitting evidence not previously considered by 

OWCP.

On March 10, 2016 appellant requested reconsideration.

By decision dated June 8, 2016, OWCP accepted that the September 6, 2014 employment 

incident occurred, as alleged, but denied the claim, finding that the medical evidence of record was 

insufficient to establish causal relationship between appellant’s diagnosed condition and the 

accepted September 6, 2014 employment incident.

On June 27, 2016 appellant requested reconsideration.

By decision dated July 11, 2016, OWCP denied modification.

On September 23, 2016 appellant, through her then-counsel, requested reconsideration and 

submitted additional medical evidence.

 

3 Docket No. 17-0671 (issued June27, 2018).
3

By decision dated December 15, 2016, OWCP denied modification of its prior decision.

On February 7, 2017 appellant filed an appeal before the Board.4

The Board, by decision dated June 26, 2018, affirmed OWCP’s December 15, 2016 

decision.

Appellant subsequently submitted an August 30, 2018 report from Dr. Claire A. Saad, a 

Board-certified family practitioner, who diagnosed injury of the right shoulder, chronic pain in the 

right shoulder, and tear of the right supraspinatus tendon due to an October 3, 2014 work-related 

injury.

In a September 13, 2018 report, Dr. Karyn Leniek, a Board-certified occupational and 

preventative medicine specialist, diagnosed tear of right supraspinatus tendon, chronic pain in the 

right shoulder, and left shoulder pain due to a work-related injury. She noted that appellant had 

not undergone previously recommended surgical intervention.

On May 22, 2019 appellant, through her then-counsel, requested reconsideration.

OWCP continued to receive additional evidence. In a report dated May 14, 2019,

Dr. Leniek asserted that there had been no change in appellant’s condition and recommended right 

shoulder surgery.

In a May 16, 2019 narrative report, Dr. Leniek summarized the history of appellant’s injury 

indicating that in August 2014 she had had a right shoulder injury when she was helping an 

overweight patient sit up at work. She further indicated that appellant sustained separate work 

injury in September 2015 when she was caring for two patients who were total care, which required 

frequent patient handling and heavy arm and shoulder use. Dr. Leniek stated that appellant’s pain 

had not gone away even after she was transferred to Medical Support Assistance and no longer 

performed patient handling at work. She reiterated appellant’s medical complaints and findings 

upon physical examination, and noted that she had no change in her symptoms at present. 

Dr. Leniek rated the severity of her pain as 6/10 in the anterior and posterior shoulder, and 

sometimes into the right upper arm. Appellant still experienced weakness and difficulty with 

lifting heavy objects and had the same examination findings as the prior visit. Dr. Leniek found 

that a February 8, 2016 MRI scan of the right shoulder showed a tear of the supraspinatus tendon 

with full-thickness and partial-thickness components and moderate supraspinatus tendinopathy. 

She diagnosed supraspinatus tendon tear of the right shoulder, impingement syndrome of the right 

shoulder, chronic right shoulder pain, and left shoulder pain. Dr. Leniek opined that the incident 

at work had caused her partial-thickness rotator cuff tear when the patient pulled down on her 

outstretched right arm while she was trying to help him sit up. She explained that the mechanism 

of injury was the pulling/stretching of the tendon that was consistent with a tear of the 

supraspinatus tendon, likely partial-thickness given normal overall strength. Dr. Leniek indicated 

that pulling and stretching put strain on the tendon that could exceed the tendon’s strength and 

resulted in a tear. She noted that following the injury, appellant proceeded to do repetitive shoulder 

and arm movements to perform patient handling duties that further stressed the shoulder, caused 

 

4

Id.
4

inflammation, and the tendinopathy. Dr. Leniek explained that the repetitive shoulder and arm 

motions put strain on the internal structures of the shoulder, which had caused inflammation that 

led to impingement and tendinopathy.

By decision dated August 12, 2019, OWCP denied modification.

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,5that 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.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 if an employee has sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established. Fact of injury 

consists of two components that must be considered in conjunction with one another. The first 

component is whether the employee actually experienced the employment incident that allegedly 

occurred.8 The second component is whether the employment incident caused a personal injury.9

To establish causal relationship between the condition, as well as any attendant disability 

claimed, and the employment event or incident, the employee must submit rationalized medical 

opinion evidence supporting such causal relationship.10 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. This medical opinion must include an accurate history of the employee’s 

employment injury and must explain how the condition is related to the injury. The weight of 

medical evidence is determined by its reliability, its probative value, its convincing quality, the 

 

5

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

153 (1989).

6

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

ECAB 312 (1988).

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

DeloresC. Ellyett, 41 ECAB 992 (1990).

8 B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9 M.H., Docket No. 18-1737 (issued March13, 2019); John J. Carlone, 41 ECAB 354 (1989).

10 See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).
5

care of analysis manifested, and the medical rationale expressed in support of the physician’s 

opinion.11

ANALYSIS

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

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

submitted prior to the issuance of OWCP’s December 15, 2016 decision, which was previously 

considered by the Board in its June 27, 2018 decision. Findings made in prior Board decisions are 

res judicata absent further merit review by OWCP under section 8128 of FECA.12

In her May 16, 2019 narrative report, Dr. Leniek diagnosed tear of right supraspinatus 

tendon, chronic pain in the right shoulder, and left shoulder pain. She opined that the accepted 

September 6, 2014 employment incident had caused appellant’s partial-thickness rotator cuff tear 

when the patient she was assisting pulled down on her outstretched right arm as she was trying to 

help him sit up. Dr. Leniek explained that the mechanism of injury was the pulling/stretching of 

the tendon that was consistent with a tear of the supraspinatus tendon, likely partial-thickness given 

normal overall strength. She found that pulling and stretching excessively strained the tendon and 

resulted in a tear. Dr. Leniek noted that following the injury, appellant proceeded to perform 

repetitive shoulder and arm movements to complete patient handling duties that further stressed 

the shoulder, caused inflammation, and tendinopathy. She concluded that appellant’s injury 

directly resulted from the accepted September 6, 2014 employment incident of based upon the 

mechanism described by appellant and findings documented within her medical record.

The Board finds that, while the reports from Dr. Leniek are not completely rationalized, 

they are consistent in indicating that appellant sustained a right shoulder condition on 

September 6, 2014. Although the reports are insufficient to meet appellant’s burden of proof to 

establish the claim, they raise an uncontroverted inference between appellant’s accepted condition 

and September 6, 2014 incident and, thus, they are sufficient to require OWCP to further develop 

the medical evidence.13 As such, her report constitutes substantial, uncontradicted evidence in 

support of appellant’s claim, and it also provides sufficient rationale to require further development 

of the record.14 

 

11 G.D., Docket No. 19-1175 (issued November 15, 2019); R.H., Docket No. 17-1405 (issued February 7, 2018); 

James Mack, 43 ECAB 321 (1991).

12 S.M., Docket No. 18-1195 (issued January 6, 2020); J.L., Docket No. 17-1460 (issued December 21, 2018).

13 Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, 41 ECAB 354, 360 (1989).

14 R.A., Docket No. 19-0650 (issued January 15, 2020); B.M., Docket No. 18-0448 (issued January 2, 2020); E.G., 

Docket No. 19-1296 (issued December 18, 2019).
6

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. 

While it is appellant’s burden of proof to establish the claim, OWCP shares responsibility in the 

development of the evidence.15 It has the obligation to see that justice is done.16 

The Board will, therefore, remand the case to OWCP for further development of the 

medical evidence. On remand, OWCP shall refer appellant, a statement of accepted facts, and the 

medical evidence of record to an appropriate Board-certified physician. The chosen physician 

shall provide a rationalized opinion on whether the diagnosed conditions are causally related to 

the accepted employment incident. If the physician opines that the diagnosed conditions are not 

causally related, he or she must explain with rationale how or why his or her opinion differs from 

that of Dr. Leniek. Following this and any further development as deemed necessary, OWCP shall 

issue a de novo decision on appellant’s claim.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 12, 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: September 14, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

15 Id.

16 Id.