United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.W., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

CALVERTON NATIONAL CEMETERY, 

Calverton, NY, Employer

__________________________________________

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Docket No. 21-0117

Issued: June 15, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 November 4, 2020 appellant, through counsel, filed a timely appeal from a 

September 10, 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 his burden of proof to establish a right shoulder 

condition causally related to the accepted January 24, 2018 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 January 24, 2018 appellant, then a 37-year-old cemetery caretaker, filed a traumatic 

injury claim (Form CA-1) alleging that on that date he experienced radiating right shoulder pain 

while tamping dirt around a headstone in the performance of duty. He stopped work on 

January 24, 2018. 

The employing establishment executed an authorization for examination and/or treatment 

(Form CA-16) dated January 24, 2018, which noted that appellant was authorized to receive 

treatment for right shoulder pain. 

A January 24, 2018 x-ray of appellant’s right shoulder revealed no acute fracture or 

dislocation. 

In a January 24, 2018 medical report, Dr. David Lawrence, Board-certified in emergency 

medicine, noted that appellant presented with right shoulder pain, which occurred while at work. 

Appellant reported that his job required repetitive motion of the right arm and shoulder and 

indicated that he felt a pop in the right shoulder and radiating pain down the humerus. 

Dr. Lawrence diagnosed right shoulder strain. 

On February 1, 2018 appellant was treated by Dr. Manish Chadha, a Board-certified 

internist, who placed him on light duty pending an evaluation by an orthopedist. 

On February 9, 2018 Dr. Richard M. Savino, a Board-certified orthopedic surgeon treated 

appellant for right shoulder pain, which he developed at work on January 24, 2018 and diagnosed 

acute pain and primary osteoarthritis of the right shoulder. 

A February 20, 2018 magnetic resonance imaging (MRI) scan of the right shoulder 

revealed significant narrowing of the glenohumeral joint with posterior subluxation of the humeral 

head, circumferential labral tear with diffuse biceps tendinopathy, adhesive capsulitis, and 

acromioclavicular joint hypertrophy with rotator cuff tendinopathy. 

In a February 28, 2018 report, Dr. Savino diagnosed primary osteoarthritis of the right 

shoulder, acute pain of the right shoulder, and tear of the right glenoid labrum. He opined that 

appellant’s right shoulder preexisting condition was exacerbated by the work injury. Dr. Savino 

 

3 Docket No. 19-1906 (issued April 1, 2020).
3

concluded that appellant’s work was physical which “could have accelerated the wearing of the 

shoulder, but did not cause premature wearing of the shoulder.” 

In medical reports dated March 28 and April 25, 2018, Dr. Savino reiterated his diagnoses 

of primary osteoarthritis of the right shoulder, acute pain of the right shoulder, and tear of the right 

glenoid labrum, and returned appellant to full-duty work. 

By decision dated May 10, 2018, OWCP denied appellant’s traumatic injury claim, finding 

that the medical evidence of record was insufficient to establish that the diagnosed medical 

conditions were causally related to the accepted January 24, 2018 employment incident. 

In medical reports dated August 15 and September 11, 2018, Dr. Savino reiterated his 

diagnoses. He opined that appellant had a degenerative process in the right shoulder which was 

preexisting at the time of the injury and was exacerbated by his work injury. Dr. Savino explained 

that the work injury could have caused a torn labrum; however, labral tears also occur over time 

with degenerative shoulders and it was “hard to say if the injury caused it.” 

On April 24, 2019 appellant through counsel, requested reconsideration and submitted 

additional medical evidence. 

In a March 27, 2019 medical report, Dr. Eric Keefer, a Board-certified orthopedist, 

diagnosed a tear of the right glenoid labrum and primary osteoarthritis of the right shoulder. He 

also noted that appellant had mild asymptomatic shoulder cartilage wear prior to the January 24, 

2018 employment incident and opined that repetitive aggressive use of the shoulder relating to 

setting headstones caused the tear. 

By decision dated July 23, 2019, OWCP denied modification of the May 10, 2018 decision. 

On September 17, 2019 appellant, through counsel, appealed to the Board. By decision 

dated April 1, 2020, the Board affirmed OWCP’s July 23, 2019 decision.4 

On June 17, 2020 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence. 

In a May 6, 2020 medical report, Dr. Keefer diagnosed tear of the right glenoid labrum and 

again noted that appellant had mild asymptomatic shoulder cartilage wear prior to the January 24, 

2018 employment incident. He again opined that repetitive aggressive use of the shoulder relating 

to setting headstones caused the tear. Dr. Keefer explained that setting and lifting headstones 

placed a significant traction force on the shoulder and labrum which “can certainly cause the labral 

damage demonstrated” on the MRI scan. He further explained that, after appellant placed the 

headstones on the ground, the ground had to be compressed to stabilize the headstones, which 

required at least 80 to 100 strikes around the headstones. Dr. Keefer noted that appellant on 

average set up 15 to 30 individual headstones daily. He opined that appellant’s shoulder sustained 

 

4

Id.
4

thousands of impacts per day that created a strain on the shoulder joint which did result in tearing 

of the labrum. 

By decision dated September 10, 2020, OWCP denied modification. 

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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,6and 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.7 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.8

To determine if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established.9 There are 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.10 

The second component is whether the employment incident caused a personal injury.11

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.12 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment incident must be based on a 

complete factual and medical background.13 Additionally, the physician’s opinion must be 

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

 

5 Supra note 2.

6 S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 

ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7 T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 

59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).

8 T.E., Docket No. 18-1595 (issued March 13, 2019); 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). 

9 S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

10 E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

11 E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

12 S.S., supra note 9; Robert G. Morris, 48 ECAB 238 (1996).

13 C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
5

rationale, explaining the nature of the relationship between the diagnosed condition, and 

appellant’s specific employment incident.14

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.15

ANALYSIS

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

condition causally related to the accepted January 24, 2018 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 July 23, 2019 merit decision because the 

Board considered that evidence in its April 1, 2020 decision. Findings made in prior Board 

decisions are res judicata absent further review by OWCP under section 8128 of FECA.16

Dr. Keefer, in his May 6, 2020 medical report, diagnosed tear of the right glenoid labrum 

and noted that appellant had mild asymptomatic shoulder cartilage wear prior to the January 24, 

2018 employment incident. He opined that repetitive aggressive use of the shoulder relating to 

setting headstones caused the tear. Dr. Keefer explained that daily setting and lifting headstones 

placed a significant traction force on the shoulder and labrum, as the ground often had to be 

compressed with 80 to 100 strikes after appellant placed the headstones on the ground. He noted

that appellant set up approximately 15 to 30 headstones each day and opined that this created a 

strain on the shoulder joint and resulted in tearing of the labrum. While Dr. Keefer provided 

affirmative opinions which supported causal relationship, he did not specifically differentiate 

between the effects of the accepted January 24, 2018 employment incident and appellant’s 

preexisting condition.

17

 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 

opinion that differentiates between the effects of the work-related injury or disease and the 

preexisting condition.18 Thus, Dr. Keefer’s May 6, 2020 medical report is insufficient establish 

causal relationship.

 

14 Id. 

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See 

R.D., Docket No. 18-1551 (issued March 1, 2019).

16 See P.B., Docket No. 20-0124 (issued March 10, 2021); I.S., Docket No. 19-1461 (issued April 30, 2020).

17 See C.B., Docket No. 20-1452 (issued February 24, 2021).

18 Supra note 13. See also M.C., Docket No. 20-0125 (issued July 15, 2020).
6

As appellant has not submitted rationalized medical evidence establishing causal 

relationship between his right shoulder condition and the accepted January 24, 2018 employment 

incident, the Board finds that he has not met his burden of proof to establish his claim.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 his burden of proof to establish a right shoulder 

condition causally related to the accepted January 24, 2018 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the September 10, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 15, 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

 

19 The record contains page one of an authorization for examination and/or treatment (Form CA-16) dated 

January 24, 2018. A properly completed Form CA-16 authorization may constitute a contract for payment of medical 

expenses to a medical facility or physician, when properly executed. The form creates a contractual obligation, which 

does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the action 

taken on the claim. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003). J.G., Docket No. 17-1062 

(issued February 13, 2018).