United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.M., Appellant

and

U.S. POSTAL SERVICE, GREENE POST 

OFFICE, Greene, NY, Employer

__________________________________________

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Docket No. 21-0644

Issued: March 15, 2022

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 19, 2021 appellant, through counsel, filed a timely appeal from an October 5, 

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.3

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.

3 The Board notes thatOWCP received additional evidence following the October 5, 2020 decision. 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 that the acceptance 

of her claim should be expanded to include additional conditions as a consequence of the accepted 

December 12, 2014 employment injury.

FACTUAL HISTORY

This case has been previously before the Board.

4

 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 January 5, 2015 appellant, then a 51-year-old rural carrier, filed a notice of recurrence 

(Form CA-2a) claiming disability under OWCP File No. xxxxxx938.5 She alleged that she 

reinjured her left shoulder moving mail from her vehicle to her supervisor’s vehicle on 

December 12, 2014 while in the performance of duty. Appellant stopped work on that date. 

OWCP converted the recurrence claim to a new traumatic injury claim (Form CA-1) and assigned 

OWCP File No. xxxxxx312. On January 14, 2016 OWCP accepted the claim for partial rotator 

cuff tear of the left shoulder and paid appellant retroactive wage-loss compensation on the 

supplemental rolls as of February 1, 2015 and on the periodic rolls as of July 24, 2016.

In a May 5, 2016 report, Dr. Thomas Van Gorder, a Board-certified orthopedic surgeon, 

diagnosed status post shoulder repair for rotator cuff tear of the left shoulder and a partial cuff tear 

of the right shoulder. He noted her initial injury to her left shoulder in June 2013, and her 

subsequent injury to her left shoulder in December 2014. He related that appellant had developed

discomfort in the right shoulder, noting that she did not have specific trauma to the right shoulder, 

and opined that her right shoulder condition resulted from favoring her left shoulder. Dr. Van 

Gorder noted that a right shoulder magnetic resonance imaging (MRI) scan in June 2015 revealed 

a partial cuff tear and tendinitis, and that appellant was unable to obtain treatment for the right 

shoulder. He also noted that the right shoulder had excellent strength and a little subacromial 

crepitus.

In a July 28, 2016 report, Dr. Van Gorder diagnosed status post rotator cuff tear of the left 

shoulder and a partial tear with tendinitis of the right shoulder. Regarding the right shoulder, he 

explained that appellant developed impingement pain, tendinitis, and discomfort of the right 

shoulder, which he opined “is definitely related to her left shoulder injury.” Dr. Van Gorder 

concluded that her right shoulder condition was caused by overuse secondary to favoring her left 

shoulder, which had been injured at work.

In an August 3, 2016 report, Dr. Van Gorder repeated his opinion from his July 28, 2016 

report regarding the status and casual relationship of the right shoulder condition.

4 Docket No. 18-1514 (issued July 18, 2019). 

5

In OWCP File No. xxxxxx938, OWCP accepted appellant’s July 22, 2013 occupational disease claim (Form 

CA-2) for complete tear of the left rotator cuff. 
3

In a letter dated August 29, 2016, counsel requested that the acceptance of appellant’s 

claim be expanded to include the additional conditions of impingement, tendinitis, and a partial 

rotator cuff tear of the right shoulder. He alleged that the conditions were a consequence of overuse 

of the right shoulder due to her accepted left shoulder conditions. Counsel argued that

Dr. Van Gorder provided an unequivocal opinion and the requisite medical rationale to establish 

that appellant’s right shoulder condition was related to overuse to compensate for the work-related 

injury to her left shoulder.

In a development letter dated November 18, 2016, OWCP advised appellant of the 

evidence needed to establish her claim for consequential injury to her right shoulder. It afforded 

appellant 30 days to submit additional evidence.

OWCP thereafter received a June 12, 2015 MRI scan of the right shoulder interpreted by

Dr. Imanual Somers-Dehaney, a Board-certified diagnostic radiologist, which revealed a partial 

tear of the supraspinatus partial articular surface tendon with avulsion of approximately 50 percent, 

impingement on the myotendinous junction of the supraspinatus tendon with fluid along both 

articular and bursal substance of subacromial subdeltoid bursa, bursitis, and biceps tendon 

tenosynovitis.

On December 16, 2016 OWCP requested that a district medical adviser (DMA) provide an 

opinion as to whether the accepted employment injury to appellant’s left shoulder was competent 

to produce the injury to the right shoulder. It requested that the DMA review and specifically 

comment on the opinion provided by Dr. Van Gorder in his July 28 and August 3, 2016 reports 

regarding the conditions of right shoulder impingement, right shoulder tendinitis, and right partial 

rotator cuff tear.

In a December 29, 2016 report, Dr. David J. Slutsky, a Board-certified orthopedic hand 

surgeon serving as a DMA, noted appellant’s history of injury and medical treatment. Regarding 

the right shoulder conditions, the DMA concluded that the acceptance of appellant’s claim should 

not be expanded to include the consequential conditions of right shoulder impingement, right 

shoulder tendinitis, and right partial rotator cuff tear. He advised that it was impossible to 

determine with any certainty whether the left shoulder condition had caused the right shoulder 

condition, unless an MRI scan of the right shoulder was performed prior to the work-related injury 

of the left shoulder on December 12, 2014. The DMA explained that an asymptomatic partial right 

rotator cuff tear of the right shoulder could not be ruled out and that an MRI scan of the right 

shoulder prior to the December 12, 2014 left shoulder injury was “the only way to determine if 

this lesion was preexisting or whether it developed following the accepted work-related injury.” 

He referred to Dr. Van Gorder’s December 18, 2014 notes that appellant was pain free with normal 

shoulder ROMfollowing the left rotator cuff repair and explained that overuse of the right shoulder 

was “not medically probable in view of the normal functioning of her left shoulder.” The DMA 

also reviewed Dr. Van Gorder’s medical reports dated July 28 and August 3, 2016 and noted that 

appellant stopped work in December 2014 and remained off work since that time, and that there 

was no mention of appellant’s right shoulder pain until May 5, 2016, almost two years later. He 

further noted that appellant had a right shoulder MRI scan on June 12, 2015, more than one year 

following the left rotator cuff repair, and explained that if she “had remained working in some 

capacity, especially at a job that required overhead lifting, it would be reasonable to assign the 

patient’s development of right shoulder pain and partial rotator cuff tear to overuse, but this is not 

the case.” The DMA noted that, if additional medical records were provided that documented the 
4

onset of appellant’s right shoulder pain while she was still employed by the employing 

establishment or at any other job following the left rotator cuff repair, then the issue of causation 

could be revisited.

By decision dated March 8, 2017, OWCP denied expansion of the acceptance of 

appellant’s claim, finding that the medical evidence of record was insufficient to establish that the 

conditions of right shoulder impingement, right shoulder tendinitis, and right partial rotator cuff 

tear were consequential to the accepted left shoulder employment injury.

By letter dated June 20, 2017, OWCP referred appellant for a second opinion examination 

with Dr. Kevin Scott, a Board-certified orthopedic surgeon, to assess appellant’s current condition.

An August 31, 2017 MRI scan of the right shoulder interpreted by Dr. Andrew 

Goldschmidt, a Board-certified diagnostic radiologist, revealed the absence of a full-thickness 

rotator cuff tear. In a July 13, 2017 report, Dr. Scott noted appellant’s history of injury and 

treatment, examined appellant, and provided physical examination findings. He found full range 

of motion (ROM) of both shoulders and diagnosed left shoulder rotator cuff tear. Dr. Scott 

explained that there were no other injuries due to the December 12, 2014 employment injury. He 

noted appellant’s preexisting left shoulder rotator cuff tear from her 2013 injury. Dr. Scott 

reviewed the June 12, 2015 MRI scan of the right shoulder, which revealed partial tearing of the 

supraspinatus tendon, subacromial bursitis, and biceps tendon tenosynovitis. He concluded that 

the accepted conditions had resolved.

On March 6, 2018 appellant, through counsel, requested reconsideration. Counsel argued 

that OWCP had reached a false conclusion based upon the report of the DMA, Dr. Slutsky, that 

the DMA’s report should not have been relied upon, and that appellant should have been referred 

for a second opinion evaluation regarding the right shoulder.

OWCP received additional medical evidence. 

In a March 20, 2018 report, Dr. Michael B. Lax, Board-certified in occupational medicine, 

examined appellant and provided his findings. He diagnosed bilateral rotator cuff tears. Dr. Lax 

opined that, within a reasonable degree of medical certainty, appellant’s work as a rural postal 

delivery worker with many years of exposure to heavy lifting (40-pound buckets of mail) in small 

spaces (her delivery car), repetitive movements (upwards of 500 stops for mail), and also a few 

specific events, including lifting heavy buckets of mail in December 2014 and turning in her car 

to grab a package, contributed significantly to the development of both bilateral chronic shoulder 

pain and rotator cuff tears.

On April 30, 2018 OWCP requested clarification from Dr. Scott, regarding whether 

appellant developed a right shoulder condition as a consequence of her accepted work-related left 

shoulder condition.

In a May 3, 2018 addendum, Dr. Scott noted the definition of a consequential condition, 

referred to his prior report and examination, and opined, “I do not find a consequential injury for 

the left or right shoulder.”

By decision dated May 29, 2018, OWCP denied modification of the March 8, 2017 

decision.
5

On August 2, 2018 appellant, through counsel, filed a timely appeal from the May 29, 2018 

OWCP merit decision. By decision dated July 18, 2019, the Board affirmed the May 29, 2018 

decision.6

OWCP continued to receive medical evidence regarding appellant’s left shoulder 

condition. 

On July 17, 2020 appellant, through counsel, requested reconsideration and submitted a 

March 7, 2018 report from Dr. Lax. Counsel argued that a conflict existed between Dr. Lax and 

the DMA, Dr. Slutsky, as to whether appellant suffered a consequential injury.

In a March 7, 2018 letter, Dr. Lax noted that he saw appellant on August 8, 2017, 

referenced his physical findings from August 8, 2017, and advised that appellant suffered from a 

right shoulder condition characterized by a rotator cuff tear and impingement. He related that 

appellant gave a history that her right shoulder became symptomatic in 2014,shortly after she had 

returned to work following a left shoulder rotator cuff repair and subsequent surgical repairrelated 

to OWCP File No. xxxxxx938. Dr. Lax explained that appellant had just recuperated from surgery 

and was protecting her left shoulder and utilizing her right arm to compensate. He opined that the 

“same work duties, which caused the left shoulder injury then contributed to the injury in the right 

shoulder. Consequently, it is my opinion that [appellant’s] right shoulder impingement and rotator 

cuff tear was caused or aggravated by her attempting to compensate for the left shoulder injury.”

Dr. Lax noted that he had reviewed the DMA’s December 29, 2016 report and disagreed that 

normal ROM and reduced pain in the left shoulder precluded the likelihood that appellant was 

compensating for the left shoulder by using her right shoulder. He opined that “it was only natural 

for her to protect the left shoulder from reinjury by using the right arm more.” Dr. Lax noted that

Dr. Van Gorder obtained an MRI scan of her right shoulder in June 2015, which supported that 

the symptoms were present. He explained that an MRI scan was not usually pursued until the 

symptoms became chronic.

By decision dated October 5, 2020, OWCP denied modification of the July 18, 2019 

decision.

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,7that the claim was filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific condition for which compensation is claimed is causally related to the 

6

Supra note 4. 

7 K.R., Docket No. 20-0995 (issued January 29, 2021); A.W., Docket No. 19-0327 (issued July 19, 2019); S.B., 

Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6

employment injury.8 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or an occupational disease. 9

The general rule respecting consequential injuries is that, when the primary injury is shown 

to have arisen out of and in the course of employment, every natural consequence that flows from 

the injury is deemed to arise out of the employment, unless it is the result of an independent 

intervening cause, which is attributable to the employee’s own intentional conduct.10 The 

subsequent injury is compensable if it is the direct and natural result of a compensable primary 

injury. With respect to consequential injuries, the Board has held that, where an injury is sustained 

as a consequence of an impairment residual to an employment injury, the new or second injury, 

even though nonemployment related, is deemed, because of the chain of causation, to arise out of 

and in the course of employment and is compensable.11

A claimant bears the burden of proof to establish a claim for a consequential injury.12 As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, establishing causal relationship. The opinion must be 

one of reasonable medical certainty and must be supported by medical rationale explaining the 

nature of the relationship of the diagnosed condition and the accepted employment injury.13

ANALYSIS

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

of her claim should be expanded to include additional conditions as a consequence of the 

December 12, 2014 employment injury.

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

appellant submitted prior to the issuance of OWCP’s May 29, 2018 merit decision because the 

Board considered that evidence in its July 18, 2019 decision. Findings made in prior Board 

decisions are res judicata absent further review by OWCP under section 8128 of FECA.14

8

J.B., Docket No. 20-1566 (issued August31, 2021); see 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); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

10 See L.M., Docket No. 18-1514 (issued July 18, 2019); K.D.,Docket No. 17-1894 (issued August 6, 2018); A.M., 

Docket No. 18-0685 (issued October 26, 2018); Mary Poller, 55 ECAB 483, 487 (2004); Arthur Larson & Lex K. 

Larson, The Law of Workers’Compensation§ 10-1.

11 See K.D, id.; see also S.S., 59 ECAB 315 (2008).

12 See C.H., Docket No. 20-0228 (issued October 7, 2020); P.P., Docket No. 19-1359 (issued April30, 2020).

13 See T.S., Docket No. 20-0968 (issued August17, 2021); K.W., Docket No. 18-0991 (issued December 11, 2018); 

P.M., Docket No. 18-0287 (issued October 11, 2018).

14 See M.F., Docket No. 21-0390 (issued August 23,2021); P.B., Docket No. 20-0124 (issued March 10, 2021); 

J.S., Docket No. 19-0022 (issued November 4, 2020); ClintonE. Anthony, Jr., 49 ECAB 476 (1998).
7

In a March 7, 2018 letter, Dr. Lax referred to appellant’s right shoulder MRI scan from 

June 2015, which revealed a partial cuff tear and tendinitis. He explained that it was his “opinion 

that [appellant’s] right shoulder impingement and rotator cuff tear was caused or aggravated by 

her attempting to compensate for the left shoulder injury.” However, the record reflects that, while 

appellant had returned to work following her left shoulder injury in OWCP File xxxxxx938, she 

did not return to work following the accepted December 12, 2014 employment injury. Therefore, 

it is unclear how Dr. Lax formulated his opinion that appellant compensated for her leftshoulder, 

following the accepted December 12, 2014 employment injury. The Board has held that a medical 

opinion that lacks medical rationale is of limited probative value.15 Moreover, in this letter,

Dr. Lax opined that the “same work duties, which caused the left shoulder injury then contributed 

to the injury in the right shoulder.” He did not further explain in this report what activities 

appellant engaged in that caused her right shoulder conditions. His opinion was, therefore, not 

based on a complete factual background.16 The Board also finds that asDr. Lax attempted to relate 

appellant’s diagnosed right shoulder conditions to performance of her employment duties, and

conversely attempted to opine that her right shoulder condition was a consequence of her 

December 12, 2014 left shoulder injury, his opinion was internally consistent. The Board has held 

that medical reports are of limited probative value if they are internally inconsistent.

17

In his March 20, 2018 report, Dr. Lax opined that, within a reasonable degree of medical 

certainty, appellant’s work as a rural postal delivery worker with many years of exposure to heavy 

lifting (40-pound buckets of mail) in small spaces (her delivery car), repetitive movements 

(upwards of 500 stops for mail), and also a few specific events, including lifting heavy buckets of 

mail in December 2014 and turning in her car to grab a package, contributed significantly to the 

development of both bilateral chronic shoulder pain and rotator cuff tears. 

As Dr. Lax did not provide the necessary medical rationale to establish that appellant’s 

right shoulder conditions were a consequence of the accepted left shoulder injury of December 12, 

2014, his reports were insufficient to overcome the weight accorded to Dr Scott or to create a 

conflict in the medical opinion evidence. The Board thus finds that appellant 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 that the 

acceptance of her claim should be expanded to include the additional conditions as a consequence 

of the accepted December 12, 2014 employment injury.

15 J.P., Docket No. 19-0129 (issued April26, 2019).

16 Y.H., Docket No. 19-0835 (issued October 4, 2019); see F.C.,Docket No. 19-0594 (issued August13, 2019).

17 S.H., Docket No. 19-0631 (issued September 5, 2019); L.L.,Docket No. 18-0861 (issued April5, 2019).
8

ORDER

IT IS HEREBY ORDERED THAT the October 5, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 15, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board