United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.C., Appellant

and

DEPARTMENT OF THE NAVY, FLEET 

READINESS CENTER, Cherry Point, NC, 

Employer

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Docket No. 21-0146

Issued: August 25, 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 10, 2020 appellant, through counsel, filed a timely appeal from a 

September 1, 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 appellant’s claim.

 

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 May 30, 2013 employment incident.

FACTUAL HISTORY

On June 3, 2013 appellant, then a 62-year-old bearing worker, filed a traumatic injury claim 

(Form CA-1) alleging that on May 30, 2013 he injured his right shoulder when removing part trays 

from a rack with his right hand while in the performance of duty.

By decision dated August 11, 2016, OWCP denied appellant’s claim. It found that 

appellant established that the May 30, 2013 incident occurred as alleged and that a medical 

condition was diagnosed. However, OWCP found that causal relationship had not been established 

between the accepted employment incident and the diagnosed right shoulder condition.

On August 25, 2016 counsel requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review, which was held on April 19, 2017.

By decision dated June 6, 2017, OWCP’s hearing representative affirmed the August 11, 

2016 decision.

On September 29, 2017 appellant, through counsel, requested reconsideration.

By decision dated December 6, 2017, OWCP denied modification.

On January 18, 2018 appellant, through counsel, appealed to the Board. By decision dated

January 21, 2020, the Board found that appellant had not established a right shoulder condition 

causally related to the accepted May 30, 2013 employment incident.3

On June 12, 2020 appellant, through counsel, requested reconsideration and submitted new 

evidence. 

In a June 3, 2020 report, Dr. Sami Moufawad, Board-certified in physical medicine and 

rehabilitation, noted appellant’s history of injury and treatment. He related that on May 30, 2013 

appellant slipped at the shop and tried to support himself by holding a rail, using his upper right 

arm for support. Appellant was able to prevent the fall and initially did not report any symptoms, 

and went on with the workday. Thereafter, he organized his work space and lifted a stack of trays 

weighing approximately 11⁄2 to 2 pounds each. When placing the trays on shelves at shoulder 

height, appellant felt a tearing sensation in the right shoulder and pain that was deep, achy, and 

stabbing, with no radiation, except for burning pain down to the middle of the right arm. 

Dr. Moufawad noted that appellant reported the incident to his supervisor and underwent a

magnetic resonance imaging (MRI) scan of the right shoulder on June 4, 2013, which 

demonstrated a tear of the right rotator cuff. He related that appellant consulted with an orthopedic

surgeon, had physical therapy and right shoulder surgery, and that the treatment helped with some 

 

3 Docket No. 18-0529 (issued January 21, 2020).
3

of the pain and appellant’s range of motion (ROM) improved “somewhat.” Dr. Moufawad noted 

that appellant retired in July 2019. He examined appellant and found that appellant’s current 

symptoms included pain in the right shoulder and difficulty lifting. Dr. Moufawad diagnosed a 

tear of the right rotator cuff and substantial aggravation. He explained the anatomy of the shoulder 

and function of the rotator cuff and advised that, with repeated use, the “tendons start having signs 

of fatigue and the tendons start developing small tears in the substance of the tendons. These 

changes usually are asymptomatic until a traumatic incident occurs. However, it is important to 

note that the trauma involved does not have to be of large magnitude. A simple trauma, such as 

reaching or lifting one or two pounds, is enough to produce a permanent aggravation of a torn 

rotator cuff.” Dr. Moufawad noted that the June 4, 2013 MRI scan findings were chronic with 

retraction of the rotator cuff and mild muscle atrophy. He opined that the changes did not occur 

in a period of five days; however, the aggravation of the condition that brought the symptoms to 

light did occur at the time of injury on May 30, 2013, “while lifting the trays in front of him and 

placing them on the shelves at and above shoulder level. The weight of these trays put additional 

forces on the rotator cuff that led to the irreversible and permanent aggravation of the tear of the 

rotator cuff. This led to the decrease in the power and strength and limited range of motion of the 

right shoulder.” Dr. Moufawad noted that appellant was asymptomatic and had full ROM of the 

right shoulder prior to the injury and opined that, if it were not for the May 30, 2013 incident, 

appellant would not have had the irreversible aggravation of the chronic tear of his rotator cuff. 

He further opined that the condition was not related to a natural progression, rather the incident on 

May 30, 2013 “induced this irreversible and permanent aggravation of the rotator cuff tear by 

lifting the trays in front of him and putting the undue mechanical toll on the torn rotator cuff. 

Therefore, based on the detailed description above, the chronic tear of rotator cuff was permanently 

and irreversibly aggravated by the injury on [May 30, 2013] when [appellant] was lifting the trays 

to place them on a shelf in front of him. Upon lifting the trays, the rotator cuff muscles were 

loaded beyond their capacity and the tear was permanently aggravated. Please note I am stating 

my opinion to a reasonable degree of medical certainty.”

By decision dated September 1, 2020, OWCP denied modification of the prior decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA4has 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 

 

4 Supra note 2.

5 See T.J., Docket No. 19-0461 (issued August 11, 2020); S.S., Docket No. 19-1815 (issued June 26, 2020); 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).
4

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 must first be determined whether fact of injury has been established. 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, the employee must 

submit sufficient evidence to establish that the employment incident caused a personal injury.8

Causal relationship is a medical issue and the medical evidence required to establish causal 

relationship is rationalized medical opinion evidence.9 Rationalized medical opinion evidence is 

medical evidence which includes a physician’s rationalized opinion on the issue of whether there 

is causal relationship between the claimant’s diagnosed condition and the implicated employment 

factors.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.11

ANALYSIS

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

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

prior to the issuance of OWCP’s December 6, 2017 decision, which was considered by the Board 

in its January 21, 2020 decision.12 Findings made in prior Board decisions are res judicata absent 

further merit review by OWCP under section 8128 of FECA.13

Subsequent to OWCP’s December 6, 2017 decision, appellant submitted a June 3, 2020 

report from Dr. Moufawad who diagnosed a tear of the right rotator cuff and substantial 

aggravation, opined that the conditions were work related, and explained how the injury occurred 

in appellant’s case. He referred to the MRI scan performed on June 4, 2013, five days after the 

May 30, 2013 injury, and advised that the injury to appellant occurred “while lifting the trays in 

 

6 M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 

312 (1988).

7 S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. 

Ellyett, 41 ECAB 992 (1990).

8 F.H., Docket No. 18-0869 (issued January 29, 2020).

9 T.H., Docket No. 19-0599 (issued January 28, 2020).

10 K.C., Docket No. 18-0529 (issued January 21, 2020).

11 D.J., Docket No. 19-1301 (issued January 29, 2020).

12 Docket No. 18-0529 (issued January 21, 2020).

13 C.M., Docket No. 19-1211 (issued August 5, 2020).
5

front of him and placing them on the shelves at and above shoulder level. The weight of these 

trays put additional forces on the rotator cuff that led to the irreversible and permanent aggravation 

of the tear of the rotator cuff. This led to the decrease in the power and strength and limited range 

of motion of the right shoulder.” Dr. Moufawad indicated that the sudden aggravation was not 

related to a natural progression, and that, upon lifting the trays, the rotator cuff muscles were 

loaded beyond their capacity, and the tear was permanently aggravated.

Dr. Moufawad is a Board-certified physician who is qualified in his field of medicine to 

render rationalized opinions on the issue of causal relationship. He reviewed appellant’s medical 

record and explained the mechanism of appellant’s injury. Although his opinion is insufficiently 

rationalized to establish causal relationship, it does raise an uncontroverted inference regarding 

causal relationship between the diagnosed condition and the accepted employment incident 

sufficient to require that OWCP further develop the medical evidence relating to the claim.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 and OWCP 

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

The case shall, therefore, be remanded for OWCP to refer appellant to a specialist in the 

appropriate field of medicine, along with the case record and a statement of accepted facts. The 

referral physician shall provide a well-rationalized opinion as to whether appellant’s diagnosed 

conditions are causally related to the accepted employment factors. If the physician opines that 

the diagnosed conditions are not causally related to the employment incident, he or she must 

provide a rationalized explanation as to why their opinion differs from that of Dr. Moufawad. 

After this and such other further development deemed necessary, OWCP shall issue a de novo

decision.

CONCLUSION

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

 

14 See A.K., Docket No. 20-1426 (issued March 8, 2021); E.G., Docket No. 19-1296 (issued December 19, 2019); 

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

15 See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983); 

Gertrude E. Evans, 26 ECAB 195 (1974).
6

ORDER

IT IS HEREBY ORDERED THAT the September 1, 2020 decision of the Office of 

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

consistent with this decision of the Board.

Issued: August 25, 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