United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.T., Appellant

and

DEPARTMENT OF HEALTH AND HUMAN 

SERVICES, INDIAN HEALTH SERVICE, 

Aberdeen, SD, Employer

__________________________________________

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Docket No. 22-0744

Issued: November 22, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 15, 2022 appellant filed a timely appeal from a March 1, 2022 merit decision of 

the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

1 The Board notes that, following appellant’s April15, 2022 appeal to the Board, by decision dated July 13, 2022, 

OWCP reviewed appellant’s April15, 2022 reconsideration request received on April 19, 2022, conducted a merit 

review and denied modification. The Board and OWCP may not exercise simultaneous jurisdiction over the same 

issues in a case on appeal. 20 C.F.R. § 501.2(c)(3). Following the docketing of an appeal before the Board, OWCP 

does not retain jurisdiction to render a further decision regarding the issue(s) on appeal until after the Board 

relinquishes jurisdiction. Id. Therefore, the subsequent decision of OWCP dated July 13, 2022 is null and void as the 

Board and OWCP may not simultaneously have jurisdiction over the same issue. See 20 C.F.R. § 10.626; see also 

M.J., Docket No. 20-1067 (issued December 23, 2020); A.C., Docket No. 18-1730 (issued July 23, 2019); RussellE. 

Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).
2

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

ISSUE

The issue is whether appellant has met her burden of proof to establish a medical condition 

causally related to the accepted August 9, 2021 employment incident.

FACTUAL HISTORY

On August 10, 2021 appellant, then a 58-year-old diagnostic radiology technician, filed a 

traumatic injury claim (Form CA-1) alleging that on August 9, 2021 she injured her right arm and 

shoulder while assisting a patient onto an examination table while in the performance of duty. She 

reported that the patientstood up to move to the examination table, complained of dizziness, started 

to fall and she reached out to catch the patient to place her on the examination table. Appellant 

did not immediately stop work. 

On October 19, 2021 Dr. Chad Kurtenbach, a Board-certified orthopedist, diagnosed right 

shoulder pain, unspecified chronicity, and referred appellant for physical therapy. He returned her

to work without restrictions. 

Rebecca Rakowicz, a nurse practitioner, also treated appellant on October 19, 2021 for a 

right shoulder injury sustained atwork on August 9, 2021. Her history was significant for a rotator 

cuff repair seven years prior. Physical examination revealed tenderness with palpation of proximal 

biceps. Ms. Rakowicz diagnosed rotator cuff tendinopathy, improving.

On October 20, 2021 appellant filed a claim for compensation (Form CA-7) for leave 

buyback due to disability from work on October 19, 2021. 

In a November 1, 2021 development letter, OWCP informed appellant of the deficiencies 

of her claim. It advised her of the type of factual and medical evidence needed to establish her

claim, including a physician’s report explaining the causal relationship between her claimed 

condition and specific work factors. OWCP afforded appellant 30 days to submit the requested 

evidence. No response was received.

By decision dated December 3, 2021, OWCP accepted that the August 9, 2021

employment incident occurred as alleged, but denied the claim finding that the medical evidence 

of record was insufficient to establish a medical diagnosis in connection with the accepted

August 9, 2021 employment incident. It concluded, therefore, that the requirements had not been 

met to establish an injury as defined by FECA. 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the March 1, 2022 decision, appellant submitted additional evidence to OWCP. 

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. 20 C.F.R. § 501.2(c)(1). Evidence not before 

OWCP will not be considered by the Board for the first time on appeal.” Id. 
3

In a September 9, 2021 report, Dr. Kurtenbach opined that appellant aggravated her right 

shoulder condition at work on August 9, 2021. He diagnosed status-post right shoulder 

arthroscopy with rotator cuff repair and right shoulder sprain/strain. Dr. Kurtenbach administered 

an intra-articular injection and returned appellant to work with restrictions on heavy lifting and 

repetitive overhead activity. In a note dated September 9, 2021, he diagnosed right shoulder pain, 

unspecified chronicity and returned her to work without restrictions. Similarly, in a note dated

September 13, 2021, Dr. Kurtenbach reported treating appellant on September 9, 2021 and

administered a right shoulder intra-articular injection. On October 19, 2021 he diagnosed statuspost right shoulder arthroscopy with rotator cuff repair and right shoulder sprain/strain, improving. 

Appellant reported significant improvement in right shoulder pain and function. Dr. Kurtenbach 

referred her for physical therapy. 

An x-ray of the right shoulder dated September 9, 2021 revealed no acute findings, 

acromioclavicular arthrosis, and mild glenohumeral osteoarthritis. 

In a statement dated December 13, 2021 appellant noted that medical evidence was 

submitted by her physician to OWCP on November 4, 2021. She was resubmitting the requested 

medical evidence again electronically. 

On December 13, 2021 appellant requested a review of the written record by a 

representative of OWCP’s Branch of Hearings and Review.

By decision dated March 1, 2022, OWCP’s hearing representative modified the 

December 3, 2021 decision to find that appellant had established a specific diagnosis in connection 

with the accepted August 9, 2021 employment incident. However, the claim remained denied as

the medical evidence of record was insufficiently rationalized to establish causal relationship 

between the diagnosed medical condition and the accepted August 9, 2021 employment incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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, 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 

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

4

Id.

5

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

153 (1989).

6

J.M.,Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

7 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).
4

To determine if an employee has sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established. Fact of injury 

consists of two components that must be considered in conjunction with one another. The first 

component is whether the employee actually experienced the employment incident that allegedly 

occurred at the time, place, and in the manner alleged.

8

 The second component is whether the 

employment incident caused a personal injury.9

Rationalized medical opinion evidence is required to establish causal relationship. The 

opinion of the physician must be based on a complete factual and medical background, 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 incident. 10 

Neither the mere fact that, a disease or condition manifests itself during a period of employment, 

nor the belief that the disease or condition was caused or aggravated by employment factors or 

incidents is sufficient to establish causal relationship.11

ANALYSIS

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

condition causally related to the accepted August 9, 2021 employment incident.

On September 9 and October 19, 2021, Dr. Kurtenbach diagnosed right shoulder pain, 

unspecified chronicity and returned appellantto work without restrictions. On September 13, 2021

he noted that she received a right shoulder intra-articular injection on September 9, 2021. 

Similarly, on October 19, 2021, Dr. Kurtenbach diagnosed status-post right shoulder arthroscopy 

with rotator cuff repair and right shoulder sprain/strain, improving. However, he did not 

specifically relate the diagnosed conditions to the accepted August 9, 2021 employment incident. 

The Board has held that medical evidence that does not offer an opinion regarding the cause of a 

diagnosed condition or disability is of no probative value on the issue of causal relationship. 12 

Therefore, the Board finds that Dr. Kurtenbach’s medical reports are insufficient to meet 

appellant’s burden of proof. 

Appellant submitted a September 9, 2021 report from Dr. Kurtenbach who indicated that 

she aggravated her right shoulder at work on August 9, 2021 and diagnosed status-post right 

shoulder arthroscopy with rotator cuff repair and right shoulder sprain/strain. While

Dr. Kurtenbach indicated that her aggravation of her right shoulder condition was work related, he 

failed to provide medical rationale explaining the basis of his opinion. Without explaining, 

physiologically, how the specific employment incident or employment factors caused or 

8 T.M., Docket No. 19-0380 (issued June 26, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9 M.H., Docket No. 18-1737 (issued March13, 2019); John J. Carlone, 41 ECAB 354 (1989).

10 S.S.,Docket No. 18-1488 (issued March 11, 2019).

11 J.L., Docket No. 18-1804 (issued April12, 2019).

12 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,Docket No. 17-1549 (issued July 6, 2018).
5

aggravated the diagnosed condition, his opinions on causal relationship are of limited probative 

value and insufficient to establish her claim.13 

Appellant submitted a report from Ms. Rakowicz, a nurse practitioner. However, certain 

healthcare providers such as physician assistants and nurse practitioners are not considered 

“physician[s]” as defined under FECA.14 Consequently, their medical findings and/or opinions 

will not suffice for purposes of establishing entitlement to FECA benefits.

15

 

Appellant also submitted an x-ray of the right shoulder dated September 9, 2021. The 

Board has held that diagnostic studies, standing alone, lack probative value on the issue of causal

relationship as they do not provide an opinion as to whether the employment incident caused any 

of the diagnosed conditions.16 This evidence is therefore insufficient to establish appellant’s claim.

As the medical evidence of record is insufficient to establish causal relationship between a 

medical condition and the accepted August 9, 2021 employment incident, the Board 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 a medical 

condition causally related to the accepted August 9, 2021 employment incident.

13 Id.

14 5 U.S.C. § 8102(2).

14 Id. at section 8102(2) of FECA, which provides as follows: “(2) physician includes surgeons, podiatrists, 

dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their 

practice as defined by State law.” 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 --

Claims,Causal Relationship, Chapter 2.805.3a(1) (January 2013); DavidP. Sawchuk, 57 ECAB 316, 320 n.11 (2006) 

(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical 

opinion under FECA); see also J.D., Docket No. 21-0164 (issued June15, 2021) (nurse practitioners are not physicians 

as defined under FECA); Paul Foster, 56 ECAB 208 (2004) (where the Board found that a nurse practitioner is not 

considered a physician under FECA).

15 Id.

16 C.B., Docket No. 20-0464 (issued July 21, 2020).
6

ORDER

IT IS HEREBY ORDERED THAT the March 1, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: November 22, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board