United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.W., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

CLEMENT J. ZABLOCKI VETERANS 

AFFAIRS MEDICAL CENTER, Milwaukee, WI, 

Employer

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Docket No. 22-0109

Issued: May 17, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 1, 2021 appellant, through counsel, filed a timely appeal from an August 26, 

2021 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 that, following the August26, 2021 decision, OWCP received additional evidence. 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

ISSUES

The issues are: (1) whether appellant has met her burden of proof to expand the acceptance 

of the claim to include additional right shoulder conditions as causally related to her June 16, 2020 

employment injury; and (2) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective August 1, 2020.

FACTUAL HISTORY

On June 22, 2020 appellant, then a 49-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on June 16, 2020 she sustained a right shoulderrotator cuff injury 

when she picked up and then placed a linen bag in a dumpster while in the performance of duty. 

She stopped work on the date of injury and was offered a temporary light-duty assignment within 

her work restrictions, effective June 25, 2020. 

Appellant was seen on June 17, 2020 in the emergency room by Dr. John Teijido, a 

specialist in emergency medicine. Dr. Teijido noted that on that day appellant was dumping dirty 

linen carts when she felt a pull on her right shoulder. He related that x-ray of her right shoulder 

revealed mild degenerative changes. Dr. Teijido diagnosed sprain of the right shoulder. 

In a report dated June 18, 2020, Dr. Lisa A. Sienkiewicz, a physician who specializes in 

orthopedic surgery, related that appellant had lifted a heavy laundry bin on June 16, 2020 and felt 

a pull on her right shoulder. She noted that x-rays of appellant’s right shoulder revealed some 

arthritis. Dr. Sienkiewicz diagnosed right shoulder cuff tendinitis. 

By decision dated July 29, 2020, OWCP denied appellant’s claim, finding that she had not 

submitted sufficient medical evidence to establish causal relationship between her diagnosed 

conditions and the accepted employment incident of June 16, 2020. 

On August 10, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

September 9, 2020. 

In an undated report received by OWCP, on November 23, 2020, Dr. Sienkiewicz related 

that appellant sustained a right shoulder injury at work on June 16, 2020 when appellant lifted a 

heavy laundry bin and felt a pulling sensation on the lateral aspect of her right shoulder. She

explained that a magnetic resonance imaging (MRI) scan obtained on September 9, 2020 showed 

a full-thickness rotator cuff tear and tendinitis of the long head of the biceps. 

By decision dated December 22, 2020, the hearing representative vacated OWCP’s 

July 29, 2020 decision and remanded the case for further medical development. 

On November 18, 2020 appellant underwent right shoulder arthroscopic debridement and 

biceps tenotomy and arthroscopic rotator cuff repair. 

On January 8, 2021 OWCP referred appellant to Dr. Mysore Shivaram, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. It prepared a statement of accepted facts 

(SOAF), which related that appellant sustained a right shoulder injury when she took a dirty linen 

bag out of a cart to place in a dumpster. In a report dated February 11, 2021, Dr. Shivaram 

reviewed the medical record and the SOAF. He related that appellant’s injury occurred when she

placed a dirty linen bag, which she indicated was not heavy, into a dumpster. Dr. Shivaram noted 
3

that she had preexisting right shoulder degenerative changes. Physical examination of appellant’s

right shoulder demonstrated well-healed scars, mild tenderness, flexion to 100 degrees, and 

abduction to 90 degrees. Dr. Shivaram diagnosed work-related right shoulder strain, degenerative 

arthritis of the right shoulder and acromioclavicular joint, and right rotator cuff tear. He related

that the latter two diagnoses were nonwork related and preexisting in nature as they were highly 

unlikely to be due to the single event during which appellant lifted a laundry bag, which was not 

heavy. Dr. Shivaram noted that the period of total disability for her right shoulder sprain was six 

weeks, which was approximately August 1, 2020. He further explained that appellant’s current 

disability is due to her chronic lower back pain and pain in both knees resulting from severe 

degenerative arthritis, and degenerative arthritis of the right shoulder. 

By decision dated March 25, 2021, OWCP accepted the claim for right shoulder sprain, 

resolved as of August 1, 2020, based upon the second opinion report of Dr. Shivaram. 

On April 6, 2021 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. The hearing was held on July 6, 2021. 

By decision dated August 26, 2021, OWCP’s hearing representative affirmed the 

March 25, 2021 decision, finding that the medical evidence of record did not support appellant’s 

having incurred more than a right shoulder sprain and/or disability beyond August 1, 2020 as a 

result of the accepted employment injury of June 16, 2020. 

LEGAL PRECEDENT -- ISSUE 1

When an employee claims that a condition not accepted or approved by OWCP was due to 

an employment injury, he or she bears the burden of proof to establish that the condition is causally 

related to the employment injury.4

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.5 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and an accepted injury must be based on a complete factual and 

medical background.6 Additionally, the physician’s opinion must be expressed in terms of a 

reasonable degree of medical certainty and must be supported by medical rationale which, explains 

the nature of the relationship between the diagnosed condition and the accepted employment 

injury.7

ANALYSIS -- ISSUE 1

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

of the claim to include an additional right shoulder condition causally related to the accepted 

employment injury. 

4 A.A., Docket No. 19-1165 (issued December 16, 2019); M.B., DocketNo. 19-0485 (issued August22, 2019); R.J., 

Docket No. 17-1365 (issued May 8, 2019); JajaK. Asaramo, 55 ECAB 200 (2004).

5 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

6 M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.
4

Appellant was initially seen by Dr. Teijido on June 17, 2020 who diagnosed the accepted 

condition of right shoulder strain. While Dr. Teijido also noted that her right shoulder x-ray 

showed degenerative changes, he offered no opinion regarding the cause of her degenerative 

changes. His report was of no probative value as he did not offer an opinion on the issue of causal 

relationship. The Board has held that a medical report is of no probative value on a given medical 

matter if it does not contain an opinion on that matter.8

Appellant was thereafter seen by Dr. Sienkiewicz. In her report dated June 18, 2020,

Dr. Sienkiewicz noted that x-rays of appellant’s right shoulder revealed some arthritis and she 

diagnosed right shoulder cuff tendinitis. In her report received on November 23, 2020, she

indicated that appellant sustained a right shoulder injury on June 16, 2020 when she lifted a heavy 

laundry bin. Dr. Sienkiewicz noted her review of an MRI scan of appellant’s right shoulder which 

revealed a right shoulder rotator cuff tear and tendinitis of the long head of the biceps. However, 

these reports from her were of limited probative value as they provided an inaccurate history of 

injury and lacked a rationalized explanation of causal relationship. The Board notes that OWCP

accepted that appellant lifted a dirty laundry bag out of a cart to place in a dumpster. The Board 

has previously explained that medical reports which contain an incorrect history of injury are of

limited probative value.9 The Board further notes that Dr. Sienkiewicz did not provide a 

rationalized medical opinion explaining how the accepted incident physiologically caused 

appellant’s diagnosed conditions.10 These reports were therefore insufficient to establish causal 

relationship.

Dr. Shivaram, serving as the second opinion examiner, opined in his February 11, 2021

report that appellant had preexisting right shoulder degenerative changes. He diagnosed workrelated right shoulder strain, degenerative arthritis of the right shoulder and acromioclavicular 

joint, and right rotator cuff tear. Dr. Shivaram noted that the latter two diagnoses were nonwork

related and preexisting in nature. He properly noted appellant’s history of taking a dirty linen bag 

out of the cart to place in a dumpster. Regarding appellant’s degenerative arthritis and rotator cuff 

tear, Dr. Shivaram noted that these conditions were preexisting and were highly unlikely to be due 

to the single event during which she lifted a laundry bag. Accordingly, the Board finds that OWCP 

properly relied on his second opinion report in finding that she had not established that her 

additional diagnosed conditions were causally related to the accepted employment injury.

As appellant has not submitted rationalized medical evidence to establish that the 

acceptance of her claim should be expanded to include additional right shoulder conditions as 

causally related to her June 16, 2020 employment injury, she has failed to meet her burden of 

proof.

8

See S.P., Docket No. 19-0573 (issued May 6, 2021); T.H., Docket No. 18-0704 (issued September 6, 2018);L.B., 

Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018); Charles H. 

Tomaszewski, 39 ECAB 461 (1988).

9 M.G., Docket No. 18-1616 (issued April9, 2020); see J.M., Docket No. 17-1002 (issued August 22, 2017) (a 

medical opinion must reflect a correct history and offer a medically sound explanation by the physician of how the 

specific employment incident physiologically caused or aggravated the diagnosed conditions).

10 Id.
5

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.

LEGAL PRECEDENT -- ISSUE 2

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify 

termination or modification of an employee’s benefits.11 After it has determined that an employee 

has disability causally related to his or her federal employment, OWCP may not terminate 

compensation without establishing that the disability has ceased or that it is no longer related to 

the employment.12

ANALYSIS -- ISSUE 2

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits effective August 1, 2020. 

OWCP relied upon the report from second opinion physician, Dr. Shivaram, dated 

February 11, 2021 to find that appellant’s disability had ceased as of August 1, 2020. 

In a report dated February 11, 2021, Dr. Shivaram reviewed the medical record and the 

SOAF. He related that appellant’s injury occurred when she placed a dirty linen bag, which she 

indicated was not heavy, into a dumpster. Dr. Shivaram noted that appellant had preexisting right 

shoulder degenerative changes. He diagnosed work-related right shoulder strain, degenerative 

arthritis of the right shoulder and acromioclavicular joint, and right rotator cuff tear. Dr. Shivaram 

opined that the period of total disability for her right shoulder sprain was six weeks, which was 

approximately August 1, 2020. He further explained that her current disability is due to her 

chronic lower back pain and pain in both knees resulting from severe degenerative arthritis, and 

degenerative arthritis of the right shoulder. No contrary evidence was received in response to

Dr. Shivaram’s February 11, 2021 report.

As Dr. Shivaram’s report is well rationalized and based on examination and an accurate 

history of the employment injury, the Board finds that his report constitutes the weight of the 

medical evidence.

13

 OWCP therefore has met its burden of proof.

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 an additional right shoulder condition as 

causally related to her accepted June 16, 2020 employment injury. The Board further finds that 

OWCP has met its burden of proof to terminate appellant’s wage-loss compensation and medical 

benefits effective August 1, 2020.

11 See M.E., Docket No. 20-0877 (issued August2, 2021); D.G., Docket No. 19-1259 (issued January 29, 2020);

S.F., 59 ECAB 642 (2008);Kelly Y. Simpson, 57 ECAB 197 (2005);PaulL. Stewart, 54 ECAB 824 (2003).

12 See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); CharlesE. 

Minnis, 40 ECAB 708 (1989); VivienL. Minor, 37 ECAB 541 (1986).

13 See B.B, Docket No. 20-1187 (issued November 18, 2021).
6

ORDER

IT IS HEREBY ORDERED THAT the August 26, 2021 decision of the Office of

Workers’ Compensation Programs is affirmed. 

Issued: May 17, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board