United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.F., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

SAN FRANCISCO VA MEDICAL CENTER, 

San Francisco, CA, Employer

__________________________________________

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Docket No. 21-0421

Issued: August 2, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 28, 2021 appellant filed a timely appeal from a January 4, 2021 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,followingthe January4, 2021 decision, OWCP receivedadditional 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 her burden of proof to establish intermittent periods 

of disability during the period August 21, 2016 through May 27, 2019, causally related to the 

accepted March 15, 2016 employment injury.

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 April 13, 2016 appellant, then a 35-year-old human resources assistant, filed a 

traumatic injury claim (Form CA-1) alleging that on March 15, 2016 she pulled a muscle in her 

right arm when she reached for some papers on her desk while in the performance of duty.

4

 On 

May 27, 2016 OWCP accepted the claim for right arm/shoulder strain. Appellantreturned to work

on April 28, 2016 and began a light-duty work assignment on June 22, 2016. OWCP paid her

wage-loss compensation for intermittent periods of disability from May 9 to August 20, 2016 and 

again from October 16 to 28, 2016.5

Appellant filed CA-7 forms claiming compensation for disability from work covering the 

periods August 21 to September 3, September 5 to 16, and September 19 to 30, 2016. 

A disability note dated September 7, 2016 from Dr. Kimberly Hicks, an internist, related 

that appellant had been under her care from August 19, 2016 to the present and indicated that 

appellant could return to work on October 5, 2016. She indicated that appellant’s disability was 

due to right arm tendinitis. 

In a September 26, 2016 report, Dr. Hicks noted that appellant has been under her care

since April 2016 for treatment of right shoulder mild supraspinatus tendinosis with low-grade

articularsurface frayingand rightshoulder degenerative fraying/ bicepslabral anchor and superior

posterior labrum tear. She opined that appellant was disabled from work due to an aggravation of 

her right shoulder conditions. 

3 Docket No. 17-1514 (issued April10, 2018); Docket No. 19-1832 (issued July 21, 2020).

4 OWCP assigned this claim OWCP File No. xxxxxx244. Appellant filed an occupational disease claim (Form CA2) alleging that on March 15, 2016 she sustained a right shoulder injury due to filing and computer work. OWCP 

assigned this claim OWCP File No. xxxxxx827 and accepted it for right shoulder superior glenoid labrum lesion and 

right ulnar nerve lesion. It paid appellant compensation benefits for disability under this claim commencing 

May 28, 2019. OWCP administratively combined OWCP File No. xxxxxx827 and OWCP File No. xxxxxx244, with 

the former serving as the master file. 

5 By decision dated July 29, 2016, OWCP denied appellant’s claim for wage-loss compensation for the period 

May 19 to June 11, 2016. It noted that she had filed claims for compensation (Form CA-7) for intermittent disability

of 8 hours covering the period May 9 to 13, 2016, 14 hours covering the period May 16 to 19, 2016; and 72 hours of 

disability covering the period May 31 to June10, 2016. The record contains no evidence that appellant appealed the 

July 29, 2016 decision denying this wage-loss claim.
3

On October 18, 2016 appellant was seen in an emergency room by Dr. Aaron Halstead 

Barber, Board-certified in emergency medicine. Dr. Barber noted that she had a March 2016 right 

shoulder work injury and had experienced unrelenting pain since the injury. A diagnosis of chronic 

right shoulder/neck pain was provided. 

Appellant filed CA-7 forms for periods of intermittent disability from October 2 

through 28, 2016. 

By decision dated October 26, 2016, OWCP denied appellant’s disability claim for the 

period August 21, 2016 and continuing. 

Appellant timely requested an oral hearing before a representative of OWCP’s Branch of

Hearings and Review, which was held on March 31, 2017. 

In a November 28, 2016 report, Dr. Mathias Masem, a treating Board-certified orthopedic 

and hand surgeon, related appellant’s history of injury and medical treatment. Appellant’s physical 

examination findings were noted. Dr. Masem diagnosed right rotator cuff tendinitis and right 

cubital tunnel syndrome. He recommended right shoulder arthroscopy and subacromial 

decompression and cubital tunnel decompression surgery. Dr. Masem found that appellant was 

capable of returning to work, but was restricted from using her right upper extremity. In a 

disability note of even date, he advised that she remain off work until she was reevaluated in six 

weeks. 

On December 9, 2016 appellant filed a Form CA-7 claim for disability from November 28 

to December 9, 2016. 

In progress reports dated January 12 and February 2, 28, 2017, Dr. Masem diagnosed right 

cubital tunnel symptoms and right shoulder rotator cuff tendinitis. He advised that appellant

remained disabled from work until she had surgery and postoperative rehabilitation. In a 

February 28, 2017 note, Dr. Masem related that she had been evaluated that day and was to remain 

off work until her next medical appointment in April 2017. 

In an April 18, 2017 report, Dr. Masem’s examination findings, diagnoses, and

recommendations remained unchanged from prior reports. In a note of even date, he reported that 

appellant had been evaluated that day and was to remain off work until her next medical 

appointment at the end of May 2017. 

In a May 15, 2017 report, Dr. Mark H. Chan, a Board-certified specialist in pain medicine 

and rehabilitation, noted an injury date of May 16, 2016 and that appellant last worked in 

October 2016. He diagnosed right shoulder cuff tendinitis, which he noted had been accepted as 

right shoulder strain, upper extremity and right cervical strain, and right cubital tunnel syndrome. 

Examination findings were provided. Based on examination findings and history,Dr. Chan opined 

that appellant’s condition was worsening despite the treatment provided. He recommended 

acupuncture and a right shoulder magnetic resonance imaging scan. 

Dr. Masem, in May 30, 2017 progress notes, reiterated examination findings, diagnoses,

and conclusions from his prior reports. He further related that appellant had been evaluated that

day and was to remain off work until her next medical appointment in July 2017. 
4

By decision dated June 15, 2017, an OWCP hearing representative affirmed the

October 26, 2016 decision. 

On July 3, 2017 appellant filed an appeal with the Board. By decision dated April 10, 

2018, the Board affirmed the June 15, 2017 OWCP hearing representative’s decision.6 The Board 

found that the medical evidence of record was insufficient to establish disability commencing 

August 21, 2016 causally related to the accepted March 15, 2016 employment injury. 

Appellant returned to modified part-time work for five hours a day on October 18, 2017. 

OWCP continued to receive progress reports from Dr. Chan and Dr. Masem reiterating

appellant’s medical treatment, diagnoses, and employment status during 2017. 

Dr. Fred Blackwell, a Board-certified orthopedic surgeon, in a series of work status reports 

from October 13 through December 12, 2017,indicated that appellant was capable of working four 

to five hours per day with restrictions for the period October 16, 2017 to January 18, 2018. 

By decision dated December 5, 2017, OWCP expanded acceptance of appellant’s claim to 

include the conditions of right shoulder superior glenoid labrum lesion, right shoulder synovitis, 

and tenosynovitis. It noted that this decision was based on the June 30, 30216 report from second 

opinion physician, Dr. Aubrey A. Schwartz, a Board-certified orthopedic surgeon. 

In progress notes dated January 5 and 31, February 20, and March 6 and 23, 2018,

Dr. Blackwell diagnosed right ulnar neuropathy and right rotator cuff tear with impingement. He 

also noted that appellant was awaiting authorization for surgery. 

In the February 7, 2018 report, Dr. Mohinder Nijjar, a second opinion Board-certified 

orthopedic surgeon, noted the accepted conditions, reviewed injury history and medical evidence, 

provided examination findings and diagnosed right shoulder sprain, right shoulder tendinitis, right 

shoulder superior labrum anterior and superior (SLAP) lesion, neck pain, and forearm ulnar 

neuropathy below the cubital tunnel based on positive diagnostic testing. He related that appellant 

was unable to return to regular work, but could work with restrictions of reaching above the 

shoulder level one hour a day, pushing/pulling/lifting no more than 15 pounds, and a 15 -minute 

break every 30 minutes. 

On April 11, 2018 appellant requested reconsideration. In additional reports dated 

April 20, May 1, and June 5, 2018, Dr. Blackwell diagnosed right rotator cuff tendinitis with 

impingement and right ulnar neuropathy, and related that she continued to perform modified work. 

In a June 7, 2018 report, Dr. Juon-Kin K. Fong, a Board-certified orthopedic surgeon, 

noted appellant’s history of injury, reviewed medical records, and provided examination findings. 

He diagnosed right shoulder derangement and right cubital tunnel syndrome. 

6 Docket No. 17-1514 (issued April10, 2018).
5

By decision dated July 10, 2018, OWCP denied modification finding the evidence 

insufficient to establish that appellant’s disability on and after August 21, 2016 was causally 

related to the accepted March 15, 2016 employment injury. 

In an August 30, 2018 supplemental report, Dr. Nijjar, based on review of additional 

evidence, noted that the claim had been accepted for right arm/shoulder muscle/fascia tendon 

strain, right shoulder superior glenoid labrum lesion, and right shoulder tenosynovitis and other 

synovitis. He reiterated appellant’s work restrictions and indicated that surgical repair of her right 

shoulder should be authorized. 

On December 3, 2018 appellant requested reconsideration. She submitted progress 

notes/reports from Dr. Blackwell dated June 19, 2018 through January 25, 2019 and supplemental 

reports from Dr. Nijjar dated August 30 and October 5, 2018, she also resubmitted reports from

Dr. Fong dated June 7, 2018. 

Appellant filed additional Form CA-7 claims for intermittent periods of disability from

October 29, 2016 through February 16, 2019.

By decision dated February 28, 2019, OWCP denied modification finding that the new 

medical evidence did not address disability on and after August 21, 2016. It noted that appellant

had been paid for compensation for “partial intermittent hours missed from work” during the 

period October 8, 2017 through January 4, 2019. 

On February 28 and March 1, 2019 appellant filed Form CA-7 claims for disability for the 

period February 18 to March 1, 2019. 

Following the February 28, 2019 decision, OWCP received work status notes dated 

February 8 through June 1, 2019 from Dr. Blackwell noting that appellant was capable of working 

four to five hours per day with restrictions. It also received reports dated February 7 and October 5, 

2018 from Dr. Nijjar, wherein he continued to note her work restrictions. 

Appellant filed Form CA-7 claims for intermittent periods of disability from March 4 

through May 24 2019.

7

Dr. Blackwell, in progress reports dated May 1, 2018 through June 18, 2019 diagnosed 

right rotator cuff tendinitis with impingement and right ulnar neuropathy, noted that appellant

continued to work at home, and related that he was awaiting authorization for elbow surgery. 

On June 3, 2019 appellant requested reconsideration. OWCP continued to receive progress 

reports from Dr. Fong and Dr. Blackwell addressing her current disability status.

By decision dated August 7, 2019, OWCP denied appellant’s request for reconsideration 

of the merits of her claim pursuant to 5 U.S.C. § 8128(a) finding that she neither raised substantive 

7 On CA-7 forms dated March 1 and 29, April 27, May 8 and 28, 2019, appellant claimed compensation for 

intermittent periods of disability. In CA-7 forms dated March 25, April23, May8 and 22, 2019 she only claimed 

intermittent wage-loss compensation for the periods March 18 to 29, April15 to 29, and April 29 to May 10, 2019 
6

legal questions, nor included relevant and pertinent new evidence sufficient to warrant a merit 

review. 

On August 30, 2019 appellant filed an appeal with the Board. By decision dated July 21, 

2020, the Board found the case not in posture for a decision as it was unclear what medical 

documentation OWCP reviewed in denying herrequest for reconsideration.

8

 The Board noted that 

OWCP subsequently expanded acceptance of appellant’s claim to include the conditions of right 

shoulder superior glenoid labrum lesion, right shoulder synovitis, and tenosynovitis and instructed 

OWCP to consider whether any of the reports previously considered attributed her disability to her 

accepted conditions. 

OWCP continued to receive progress reports from Dr. Fong and Dr. Blackwell.

Dr. Fong, in an August 13, 2019 report, detailed appellant’s injury and medical histories 

and noted thatshe has been off work since the March 15, 2016 employment injury. He reported 

that Dr. Blackwell arranged part-time work at home for her. 

In an August 20, 2019 progress report, Dr. Blackwell diagnosed chronic cervical 

strain/sprain and right rotator cuff tendinitis with impingement and probable SLAP lesion. He 

noted that appellant remained at work and was progressing well following ulnar nerve compression 

surgery. 

By decision dated January 4, 2021, OWCP denied modification finding the medical 

evidence insufficient to establish that appellant was disabled due to her accepted March 16, 2016 

employment injury for the period August 21, 2016 through May 27, 2019. It noted that none of 

the medical reports from either Dr. Blackwell or Dr. Fong provided medical rationale supported 

by objective findings explaining how her disability was due to the accepted March 16, 2016 

employment injury. 

LEGAL PRECEDENT

An employee seeking benefits under FECA9 has the burden of proof to establish the 

essential elements of his or her claim, including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury. 10 The term disability is 

defined as the incapacity, because of an employment injury, to earn the wages the employee was 

receiving at the time of the injury.11 For each period of disability claimed, the employee has the 

8 Docket No. 19-1832 (issued July 21, 2020).

9

Supra note 1.

10 See T.L., Docket No. 20-0978 (issued August 2, 2021); D.S., Docket No. 20-0638 (issued November 17, 2020);

F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May10, 2019); Kathryn 

Haggerty, 45 ECAB 383 (1994);Elaine Pendleton, 40 ECAB 1143 (1989).

11 20 C.F.R. § 10.5(f); T.L., id.; S.T., Docket No. 18-0412 (issued October 22, 2018); CherylL. Decavitch, 50 ECAB 

397 (1999).
7

burden of proof to establish that he or she was disabled from work as a result of the accepted 

employment injury.12

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish intermittent 

periods of disability during the period August 21, 2016 through May 27, 2019, causally related to 

the accepted March 15, 2016 employment injury.

Preliminary, the Board notes that findings made in prior Board decisions are res judicata

absent any further review by OWCP under section 8128 of FECA.13 It is, therefore, unnecessary 

for the Board to consider the evidence appellant submitted prior to the issuance of OWCP’s 

June 15, 2017 decision because the Board considered that evidence in its April 10, 2018 decision.14

Initially, the Board notes that on December 5, 2017 OWCP expanded acceptance of 

appellant’s claim to include the conditions of right shoulder superior glenoid labrum lesion, right 

shoulder synovitis, and tenosynovitis, which was subsequent to her July 3, 2017 appeal to the 

Board. The Board, in it’s July 21, 2020 decision instructed OWCP to determine whether any of 

the medical reports submitted on reconsideration attributed her disability for the period claimed to 

her accepted conditions. 

The record contains a September 7, 2016 disability note fromDr. Hicks releasing appellant 

to return to work on October 5, 2016. Dr. Hicks attributed appellant’s disability to her right arm

tendinitis. In a September 26, 2016 report, she noted that appellant has been under her care since 

April 2016 for treatment of right shoulder mild supraspinatus tendinosis with low-grade articular

surface frayingand rightshoulder degenerative fraying/bicepslabral anchor and superiorposterior

labrum tear. In these reports, she opined that appellant was disabled from work due to an 

aggravation of appellant’s right shoulder conditions, without any supporting rationale noting 

objective findings and medical rationale explaining why appellant was disabled from work. The 

Board has held that conclusory medical opinions which contain no rationale or explanation are of 

little probative value.15 For this reason, Dr. Hicks’ notes are insufficient to support appellant’s

claim.

The record contains a number of reports commencing November 28, 2016 from Dr. Masem

who diagnosed right rotator cuff tendinitis and right cubital tunnelsyndrome. He opined that 

appellant would be disabled from work until she underwent rightshoulder and elbow surgery and 

recovered from the surgery. Although Dr. Masem opined that she developed employment-related 

12 See T.L., id.; D.G., Docket No. 18-0597 (issued October 3, 2018).

13 M.A., Docket No. 21-0144 (issued July 28, 2021); G.B., Docket No. 19-1448 (issued August21, 2020); E.B., 

Docket No. 17-1497 (issued March 19, 2019); RobertG. Burns, 57 ECAB 657 (2006); ClintonE. Anthony, Jr., 49 

ECAB 476 (1998).

14 Supra notes 3 and 6.

15 S.S., Docket No. 21-0763 (issued November 12, 2021); C.B., Docket No. 18-0633 (issued November 16, 

2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).
8

disability, his opinion is of limited probative value because he did not explain, with rationale and 

objective findings, why she was unable to perform her work during the claimed period of disability 

due to the effects of her accepted conditions. The Board has held that a report is of limited 

probative value regarding causal relationship if it does not contain medical rationale explaining 

how a given medical condition/period of disability has an employment-related cause.

16

 Therefore,

Dr. Masem’s reports are insufficient to establish appellant’s disability claim.

In progress reports commencing May 15, 2017, Dr. Chan diagnosed right shoulder cuff 

tendinitis. Based on appellant’s examination findings and history, he opined that appellant’s 

condition was worsening. Dr. Chan however did not specifically address any periods of disability. 

Medical evidence that does not offer an opinion regarding the cause of an employee ’s condition 

or disability is of no probative value on the issue of causal relationship. 17 As such, his opinion is 

of no probative value.18

Appellant again returned to modified part-time work on October 18, 2017. OWCP 

received numerous reports from Drs. Fong, Blackwell, and Nijjar addressing her medical 

treatment, disability status, and work restrictions limiting her to working four to five hours per day 

in 2017, 2018, and 2019. However, these physicians did not address whether appellant was 

disabled from work duringthe relevant time period of August 21, 2016 through May 27, 2019. As 

these physicians did not provide any explanation as to whether her condition had worsened, such 

that she could not perform her light-duty work assignment, these reports are insufficient to 

establish her claim.19

Appellant has not submitted rationalized medical opinion evidence establishing that she 

was disabled from work for the period August 21, 2016 through May 27, 2019, causally related to 

the accepted March 15, 2016 employment injury. Thus, she has not met her burden of proof.

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 intermittent 

periods of disability from August 21, 2016 through May 27, 2019, causally related to the accepted 

March 15, 2016 employment injury.

16 See T.S., Docket No. 20-1229 (issued August 6, 2021); S.K., Docket No. 19-0272 (issued July 21, 2020);

T.T., Docket No. 18-1054 (issued April8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

17 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,Docket No. 17-1549 (issued July 6, 2018).

18 Id.

19 A.F., Docket No, 17-1514 (issued April10, 2018); Maurissa Mack, 50 ECAB 498 (1999).
9

ORDER

IT IS HEREBY ORDERED THAT the January 4, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 2, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board