United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.C., Appellant

and

FEDERAL JUDICIARY, U.S. PROBATION & 

PRETRIAL SERVICES, Kansas City, MO, 

Employer

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Docket No. 22-0466

Issued: August 9, 2022

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On February 9, 2022 appellant, through counsel, filed a timely appeal from a January 19, 

2022 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 to consider 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 her burden of proof to establish a right shoulder 

condition causally related to the accepted February 5, 2018 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 is incorporated herein by reference. The relevant facts are as follows.

On March 5, 2018 appellant, then a 55-year-old support staff employee, filed a traumatic 

injury claim (Form CA-1) alleging that on February 5, 2018 she pinched a nerve and possibly 

herniated a disc in her upper back and experienced pain from the center of her back and right 

shoulder down to her arm and into her hand, and swelling in her arm and hand when she moved 

large storage bins full of paper while in the performance of duty.4 OWCP assigned that claim 

OWCP File No. xxxxxx673.

In support of her claim, appellant submitted factual and medical evidence.

OWCP, by development letter dated March 19, 2018, informed appellant of the 

deficiencies of her claim. It advised her of the type of medical evidence needed and afforded her 

30 days to submit the necessary evidence.

OWCP subsequently received additional medical evidence.

By decision dated May 14, 2018, OWCP accepted that the February 5, 2018 incident 

occurred as alleged, but denied the claim, finding that the medical evidence of record was 

insufficient to establish causal relationship between appellant’s diagnosed condition and the 

accepted employment incident.

OWCP continued to receive medical evidence.

On November 28, 2018 appellant, through counsel, requested reconsideration of the 

May 14, 2018 decision and submitted additional medical evidence.

OWCP received an August 31, 2018 operative report from Dr. David C. Hicks, a Boardcertified orthopedic surgeon, who provided preoperative diagnoses of pain, impingement, 

acromioclavicular (AC) arthritis, partial-thickness rotator cuff tear of the right shoulder. Dr. Hicks

again noted impingement and AC arthritis as postoperative diagnoses. He also diagnosed the 

postoperative diagnoses of full-thickness supraspinatus tendon tear and superior labrum anterior 

posterior tear with chronic biceps tendinosis of the right shoulder. Dr. Hicks performed right 

3 Docket No. 19-0834 (issued October 28, 2019).

4 OWCP assigned the present claim OWCP File No. xxxxxx673. Appellant has a prior occupational disease claim

(Form CA-2) accepted for right upper limb cubital tunnel syndrome underOWCP File No. xxxxxx841. OWCP has

administratively combined OWCP File Nos. xxxxxx841 and xxxxxx673, with the former designated as the master 

file.
3

shoulder arthroscopy with extensive synovectomy and debridement of rotator cuff and biceps

tenotomy; subacromial decompression with acromioplasty; distal clavicle resection; biceps 

tenodesis; and rotator cuff repair.

By decision dated February 20, 2019, OWCP denied modification of its May 14, 2018 

decision. 

On March 12, 2019 appellant, through counsel, appealed to the Board. By decision dated 

October 28, 2019, the Board affirmed the February 20, 2019 decision, finding that appellant had 

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

February 5, 2018 employment incident.5

On February 4, 2020 appellant, through counsel, requested reconsideration before OWCP. 

In support of her request for reconsideration she submitted a January 23, 2020 letter from Dr. W. 

Steven Pennington, an attending Board-certified orthopedic surgeon. Dr. Pennington noted a 

history of appellant’s medical treatment, commencing on March 13, 2018. He also provided a 

history of injury that on February 5, 2018 appellant felt severe pain and weakness in her right 

shoulder and arm, and neck while lifting a box. Dr. Pennington ordered a magnetic resonance 

imaging (MRI) scan of the right shoulder, which was performed on March 29, 2018. The MRI 

scan showed a supraspinatus tear with tendinitis, subacromial bursitis, osteoarthritic 

acromioclavicular (AC) joint changes, and a possible tear of the labrum. Dr. Pennington recounted 

that based on the MRI scan results, appellant initially received conservative treatment, but

subsequently underwent right shoulder surgery. He reported his examination findings. 

Dr. Pennington opined that, when appellant lifted the box, she used her biceps muscle which are 

attached to the ring of cartilage called the labrum of the shoulder. He noted that the weight of the 

box pulled and shredded her biceps tendon, tore the cartilage in her labrum and shoulder, and tore

her rotator cuff. Dr. Pennington related that the severity of that work injury resulted in Dr. Hicks 

cutting the biceps tendon at its point of attachment to the labrum because it was beyond repair. He 

had to move it and screw it to another area to stabilize it. Dr. Hicks then repaired the torn labrum

and supraspinatus tendon. Dr. Pennington opined that the February 5, 2018 employment incident 

was the proximate cause of appellant’s torn and shredded biceps tendon and labral tear and her 

continued disability.

By decision dated March 10, 2020, OWCP denied modification of its denial of appellant’s 

traumatic injury claim.

On September 24, 2020 appellant, through counsel, requested reconsideration.

OWCP received a report dated August 11, 2021 from Dr. Pennington who reiterated the 

history of appellant’s medical treatment and February 5, 2018 employment incident.

Dr. Pennington noted that on February 21, 2018 appellant was diagnosed as having cubital tunnel 

syndrome by Dr. Edwin Cunningham, an endocrinologist. He opined that her right cubital tunnel 

syndrome was employment related. Dr. Pennington noted that working in a small cubital with the 

elbow frequently rubbing on a tabletop to perform keyboarding and using a mouse resulted in her

condition. He related that this was a common cause of this problem. Dr. Pennington reiterated his 

5

Supra note 3.
4

prior opinion that the February 5, 2018 employment incident directly caused appellant’s tear of the 

labrum and biceps tendon in her right shoulder.

By decision dated October 28, 2020, OWCP denied modification of its March 10, 2020 

decision, finding that the submitted medical evidence was insufficient to establish a right shoulder 

condition causally related to the February 5, 2018 employment incident.

On October 24, 2021 appellant requested reconsideration. She contended that her right 

shoulder condition was a consequential condition caused by her ulnar nerve entrapment and 

tendinitis resulting from repetitive computer use which was accepted for right cubital tunnel 

syndrome under OWCP File No. xxxxxx841.

Appellant submitted additional medical evidence. In an April 25, 2019 right shoulder MRI 

scan report, Dr. Mark H. Monroe, a diagnostic radiologist, provided impressions of tendinopathy 

at the site of the rotator cuff repair and definitive full-thickness tear not seen, however, there was 

some tendinous attrition/attenuation; AC hypertrophy; subacromial bursitis; and volume loss of 

the supraspinatus.

Appellant resubmitted Dr. Hicks’ August 31, 2018 operative report and Dr. Pennington’s 

August 11, 2021 letter. She also submitted photographs of her right shoulder and arm following 

her August 31, 2018 right shoulder surgery, storage bins she moved at work, and her work cubicle. 

By decision dated January 19, 2022, OWCP denied modification of its October 28, 2020 

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA6 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,7that 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.8 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.9

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 

6

Supra note 2.

7 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).

8 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).

9 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).
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are two components involved in establishing fact of injury. The first component is that the 

employee 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.10

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

condition and an employment incident is rationalized medical opinion evidence. 11 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.12

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 February 20, 

2019 decision as the Board considered that evidence in its October 28, 2019 decision.13

In letters dated January 23 and August 11, 2020, Dr. Pennington opined that appellant’s 

tear of the labrum and biceps tendon in her right shoulder and disability from work were directly 

caused by the February 5, 2018 employment incident. He explained that she used her biceps 

muscle, which are attached to the labrum, to lift a box and the biceps muscle. Dr. Pennington 

further opined that the weight of the box pulled and shredded appellant’s biceps tendon, tore the 

cartilage in her labrum and shoulder, and tore her rotator cuff. He noted that a March 29, 2018 

MRI scan revealed a supraspinatus tear with tendinitis, subacromial bursitis, osteoarthritic AC 

joint changes, and a possible tear of the labrum, which necessitated the August 31, 2018 right 

shoulder surgery performed by Dr. Hicks.

10 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). 

11 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).

12 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).

13 M.S., Docket No. 20-1095 (issued March29, 2022); C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., 

Docket No. 20-0007 (issued May 13, 2020).
6

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.14

Dr. Pennington 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 condition and the 

accepted February 5, 2018 employment incident sufficient to require further development of the 

case 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. Pennington. 

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.

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

15 See M.S., id.; B.F., Docket No. 20-0990 (issued January 13, 2021); Y.D., Docket No. 19-1200 (issued 

April 6, 2020).

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 January 19, 2022 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: August 9, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board