United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

U.S. POSTAL SERVICE, NEW JERSEY 

INTERNATIONAL & NATIONAL 

DISTRIBUTION CENTER, Jersey City, NJ, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 20-1095

Issued: March 29, 2022

Appearances: Case Submitted on the Record

James D. Muirhead, 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 April 29, 2020 appellant, through counsel, filed a timely appeal from a December 18,

2019 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 March 31, 2014 employment incident.

FACTUAL HISTORY

This case has previously been 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 March 31, 2014 appellant, then a 48-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he injured his right shoulder when picking up a foot 

locker while in the performance of duty. He stopped work on the date of injury.

In an April 1, 2014 report, Dr. Norman Penera, a Board-certified internist, diagnosed right 

shoulder strain and advised that appellant was unable to work in any capacity at that time.

An April 4, 2014 right shoulder magnetic resonance imaging (MRI) scan demonstrated 

degenerative changes of the acromioclavicular (AC) joint, extensive thickening, and abnormal 

signal within the supraspinatus, subscapularis, and biceps tendons. It also revealed probable focal 

full-thickness tear of the distal supraspinous tendon.

In an April 9, 2014 referral order, Dr. Penera diagnosed a full-thickness supraspinatus 

rotator cuff tear. 

In an April 22, 2014 medical report, Dr. Faisal Mahmood, an attending Board-certified 

orthopedic surgeon, noted findings on his physical examination and advised that appellant suffered 

from a right shoulder full-thickness supraspinatus rotator cuff tear with subacromial impingement. 

He also diagnosed bursitis, AC joint hypertrophy/arthritis, biceps tendinitis, and labial fraying. 

Based on these findings, Dr. Mahmoodrecommended arthroscopic surgery. In a note of even date, 

he requested that appellant be excused from work until June 22, 2014.

By decision dated May 28, 2014, OWCP accepted that the March 31, 2014 employment 

incident occurred, as alleged. However, it denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish that his diagnosed right shoulder conditions were 

causally related to the accepted March 31, 2014 employment incident.

OWCP subsequently received additional reports dated April 1 and 9, 2014 from Dr. Penera 

who continued to treat appellant. Dr. Penera diagnosed right shoulder strain of the rotator cuff 

capsule and reiterated his prior diagnosis of right shoulder full-thickness rotator cuff tear. 

On June 6, 2014 appellant requested a review of the written record by a representative of 

OWCP’s Branch and Hearings Review. He also provided a June 2, 2014 letter from Dr. Mahmood 

who noted a history of his treatment of appellant’s injury. Dr. Mahmood reiterated his prior 

3 Docket No. 19-0587 (issued July 22, 2019).
3

diagnoses and opined that appellant’s injury pattern was consistent with an injury sustained while 

lifting an overhead object or repetitive use of the rotator cuff musculature leading to a fu llthickness tear and, as such, he concluded that the injury appellant sustained was causally related 

to the employment incident on March 31, 2014. 

OWCP subsequently received an attending physician’s report (Form CA-20) dated 

May 20, 2014 in which Dr. Mahmood again noted a history of appellant’s accepted March 31, 

2014 injury. Dr. Mahmood reiterated his diagnoses and checked a box marked “Yes,” indicating 

that these conditions had been caused or aggravated by an employment activity of lifting overhead. 

By decision dated August 19, 2015, an OWCP hearing representative affirmed the May 28, 

2014 decision. 

On November 5, 2015 appellant, through counsel, requested reconsideration of the 

August 19, 2015 decision and submitted a November 3, 2015letterfrom Dr. Mahmood, who noted 

that appellant reported that lifting a foot locker weighing approximately 65 to 70 pounds at work 

on March 31, 2014 led to his inability to fully abduct his shoulder. Dr. Mahmood further noted 

that appellant related that, prior to this incident, he had full range of motion of the shoulder. He 

explained that that, while MRI scan findings demonstrated some degenerative signs consistent 

with regular use, including AC joint arthropathy, appellant also had a full-thickness tear of the 

rotator cuff muscle, which was not a preexisting condition as he was able to abduct his shoulder 

prior to the work-related incident. Because appellant could no longer abduct his shoulder since 

the accepted March 31, 2014 incident, Dr. Mahmood concluded that appellant’s full-thickness 

rotator cuff tear was consistent with a traumatic injury sustained during the accepted employment 

incident.

By decision dated May 13, 2016, OWCP denied modification of the August 19, 2015 

decision.

On July 5, 2016 appellant, through counsel, requested reconsideration and submitted a 

June 14, 2016 letter from Dr. Mahmood, who continued to opine that appellant sustained a workrelated right shoulder condition and that there was a causal relationship between his condition and 

the accepted March 31, 2014 employment incident.

By decision dated March 7, 2017, OWCP denied modification of its prior decision. 

On September 13, 2017 appellant, through counsel, requested reconsideration. 

By decision dated December 11, 2017, OWCP denied modification of its prior decision. 

On July 18, 2018 appellant, through counsel, requested reconsideration and submitted an 

addendum note dated July 11, 2018 from Dr. Mahmood, who reiterated his prior opinion that 

appellant’s right shoulder injuries were work related.

By decision dated October 16, 2018, OWCP denied modification of its December 11, 2017 

decision. 
4

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

July 22, 2019, the Board affirmed OWCP’s October 16, 2018 decision, finding that appellant had 

not met his burden of proof to establish a right shoulder condition causally related to the accepted 

Match 31, 2014 employment incident.4

On December 5, 2019 appellant, through counsel, requested reconsideration and submitted 

an October 28, 2019 medical report from Dr. David Weiss, a Board-certified orthopedic surgeon,

who examined appellant and reviewed his history of treatment and diagnostic studies. Dr. Weiss 

conducted a physical examination and diagnosed a post-traumatic full-thickness rotator cuff tear 

to the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an 

aggravation of preexisting quiescent age-related acromioclavicular joint arthropathy to the right 

shoulder. He explained that an impingement syndrome occurred when one raised his or her arm 

to shoulder height and above, and the space between the acromion and the rotator cuff narrowed. 

Dr. Weiss indicated that the acromion could then rub against or impinge the tendon in the rotator 

cuff causing irritation and pain. He further explained that this compression could causeattenuation 

on the tendon and predispose appellant to tearing of the rotator cuff. Dr. Weiss noted that for a 

person with aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to 

repetitive use had even less space in the area and that shoulder elevation would cause a greater 

impingement and a greater probability of shoulder tendinopathy. He noted that the MRI scan 

revealed that appellant had degenerative changes of the acromioclavicular joint predisposing him 

to an impingement syndrome. Dr. Weiss opined that lifting a 65- to70-pound heavy plastic 

footlocker from the ground above the shoulder at the time of the accepted March 31, 2014 

employment incident led to significant impingement and caused the full thickness rotator cuff tear 

of the supraspinatus tendon. He noted that, when evaluating occupational risk factors with 

shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence that 

awkward postures like sustained shoulder postures with more than 60 degrees of flexion and 

abduction could lead to the diagnosed pathology. Dr. Weiss concluded that the accepted 

March 31, 2014 employment incident was the dominant-producing cause of appellant’s injury.

By decision dated December 18, 2019, OWCP denied modification of the prior decision. 

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has the burden of proof to establish the 

essential elements of his or her claim, including 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 of FECA,6that 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 

4 Docket No. 19-0587 (issued July 22, 2019).

5

Supra note 2.

6 F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); JoeD. 

Cameron, 41 ECAB 153 (1989). 
5

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 whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. There 

are two components involved in establishing fact of injury. First, the employ ee must submit 

sufficient evidence to establish that he or she actually experienced the employment incident at the 

time and place, and in the manner alleged. The second component is whether the employment 

incident caused a personal injury and can be established only by medical evidence.9 

The medical evidence required to establish causal relationship between a claimed specific 

condition and an employment incident is rationalized medical opinion evidence. 10 The opinion of 

the physician must be based on a complete factual and medical background of the employee, 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 specific employment factors 

identified by the employee.11

ANALYSIS

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

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

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

Board to consider the evidence appellant submitted prior to the issuance of OWCP’s October 16, 

2018 decision as the Board considered that evidence in its July 22, 2019 decision.12

In support of his request for reconsideration, appellant submitted an October 28, 2019 

medical report from Dr. Weiss who diagnosed a post-traumatic full-thickness rotator cuff tear to 

the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an aggravation 

of preexisting quiescent age-related AC joint arthropathy to the right shoulder. Dr. Weiss

explained that an impingement syndrome occurred when one raised his or her arm to shoulder 

height and above, and the space between the acromion and the rotator cuff narrowed. He related 

that the acromion could then rub against or impinge the tendon in the rotator cuff causing irritation 

7 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E.Chadden, Sr., 40 ECAB 312 (1988).

8 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

DeloresC.Ellyett, 41 ECAB 992 (1990).

9 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

10 S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); 

Robert G. Morris, 48 ECAB 238 (1996).

11 T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); 

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12 C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., Docket No. 20-0007 (issued May 13, 2020).
6

and pain. Dr. Weiss noted that this compression could cause attenuation on the tendon and 

predispose appellant to tearing of the rotator cuff. He further explained that for a person with 

aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to repetitive use had 

even less space in the area and that shoulder elevation would cause a greater impingement and a 

greater probability of shoulder tendinopathy. Dr. Weiss noted that the MRI scan revealed that 

appellant had degenerative changes of the acromioclavicular joint predisposing him to an 

impingement syndrome. He opined that lifting a 65- to70-pound heavy plastic footlocker from the 

ground to above the shoulder led to significant impingement and caused the full thickness rotator 

cuff tear of the supraspinatus tendon. Dr. Weiss explained that, when evaluating occupational risk 

factors with shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence 

that awkward postures like sustained shoulder postures with more than 60 degrees of flexion and 

abduction led to the diagnosed pathology. 

It is well established that proceedings under FECA are not adversarial in nature and while 

the claimant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence to see that justice is done.13

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

rationalized opinions on the issue of causal relationship. The Board finds that, although his opinion

is insufficiently rationalized to establish causal relationship, it does raise an uncontroverted 

inference regarding causal relationship between the diagnosed conditions and the accepted 

March 31, 2014 employment incident sufficient to require further development of the case record 

by OWCP.14 Thus, the Board finds that Dr. Weiss’ opinion is sufficient to require further 

development of the record by OWCP.15 

The Board will therefore remand the case for further development of the medical evidence. 

On remand, OWCP shall prepare a statement of accepted facts and obtain a rationalized opinion 

from a physician in the appropriate field of medicine as to whether the accepted employment 

incident caused, contributed to, or aggravated the diagnosed right shoulder conditions.16 If the 

physician opines that the diagnosed conditions are not causally related, he or she must explain with 

rationale how or why their opinion differs from that of Dr. Weiss. Following this and other such 

further development as deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

13 C.R., Docket No. 20-1102 (issued January 8, 2021); K.P., Docket No. 18-0041 (issued May 24, 2019).

14 See B.F., Docket No. 20-0990 (issued January 13, 2021); Y.D., Docket No. 19-1200 (issued April6, 2020).

15 See A.D., Docket No. 20-0758 (issued January 11, 2021); C.R., Docket No. 20-0366 (issued December 11, 2020); 

John J. Carlone, supranote 9; Horace Langhorne, 29 ECAB 820 (1978).

16 C.G., Docket No. 20-1121 (issued February 11, 2021); A.G., Docket No. 20-0454 (issued October 29, 2020).
7

ORDER

IT IS HEREBY ORDERED THAT the December 18, 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: March 29, 2022

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