United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.A., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS AND BORDER PROTECTION, 

Imperial, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 22-0692

Issued: November 10, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 31, 2022 appellant filed a timely appeal from an October 8, 2021 merit decision 

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

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the October 8, 2021 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. 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 his burden of proof to establish disability from work

for the period March 29 through April 27, 2021 causally related to his accepted February 8, 2019 

employment injury.

FACTUAL HISTORY

On February 8, 2019 appellant, then a 43-year-old automotive mechanic, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, he sustained a right shoulder injury when he 

used a wrench to break loose a front strut bolt while in the performance of duty. He stopped work

on March 29, 2021. OWCP accepted appellant’s claim for incomplete rotator cuff tear of the right 

shoulder.

Appellant thereafter filed claims for compensation (Form CA-7) for disability from work 

commencing March 29, 2021. 

In support thereof, appellantsubmitted a March 26, 2021 narrative report from Dr. David J. 

Chao, a Board-certified orthopedic surgeon, who reported physical examination findings of the 

right shoulder, noting that appellant’s shoulders exhibited no swelling or atrophy with mild 

tenderness to palpation of the right acromioclavicular joint. There was 5/5 strength upon all the 

range of motion tests of the right shoulder. Dr. Chao diagnosed partial thickness tear of the right 

rotator cuff, impingement syndrome of the right shoulder, and osteoarthritis of the 

acromioclavicular joint.

In a March 26, 2021 form report, Dr. Chao reported that appellant was off work from 

March 26, 2021 until his next visit and pending right shoulder surgery.”

In an April 30, 2021 development letter, OWCP notified appellant of the deficiencies of 

his disability claim. It advised him of the type of medical evidence needed and afforded him 30 

days to submit the necessary evidence.

On April 28, 2021 Dr. Chao performed OWCP-authorized right shoulder surgery, 

including cuff and labrum debridement, subacromial decompression, bursectomy, coracoacromial 

ligament resection, and distal clavicle excision.

Appellant submitted a May 5, 2021 report from Dr. Chao, who reported physical 

examination findings and diagnosed partial thickness tear of the right rotator cuff, impingement 

syndrome of the right shoulder, and osteoarthritis of the acromioclavicular joint. Dr. Chao

continued to hold appellant off work. In a June 10, 2021 form report, he indicated that he treated 

appellant on June 9, 2021. Dr. Chao held appellant off work until his next visit. 

By decision dated June 14, 2021, OWCP denied appellant’s disability claim in part, finding 

that the medical evidence of record was insufficient to establish disability from work for the period 

March 29 through April 27, 2021 due to the accepted February 8, 2019 employment injury. 
3

However, it found that the medical evidence of record was sufficient to establish disability from 

work commencing April 28, 2021.3

On August 10, 2021 appellant requested reconsideration of the June 14, 2021 decision.

Appellant submitted an August 11, 2021 note wherein Dr. Chao noted that appellant was 

placed off work starting March 26, 2021 pending a right shoulder surgical procedure because his 

condition had worsened to the point that it was affecting his everyday work duties and life due to 

the continuous swelling, sharp stabbing pain along the arm, and cramping down to the fingers, 

which were debilitating to his right shoulder and arm. Dr. Chao indicated that, in order to prevent 

overstress and a severe injury to the right shoulder and because pain medicine was no longer 

effective, appellant was held off work until surgery was approved.

Appellant also submitted reports dated July 26 through September 20, 2021, wherein

Dr. Chao provided physical examination findings, detailed medical treatment, and diagnosed 

multiple right shoulder conditions. In these reports, Dr. Chao indicated total disability from work 

for various periods between July and October 2021.

By decision dated October 8, 2021, OWCP denied modification of its June 14, 2021 

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 any disability or specific condition for 

which compensation is claimed is causally related to the employment injury.4 

Under FECA the term “disability” means the incapacity, because of an employment injury, 

to earn the wages that the employee was receiving at the time of injury. 5 Disability is thus not 

synonymous with physical impairment, which may or may not result in an incapacity to earn 

wages.6 An employee who has a physical impairment causally related to a federal employment 

injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time 

of injury, has no disability as that term is used in FECA.7 When, however, the medical evidence 

establishes that the residuals or sequelae of an employment injury are such that, from a medical 

3 Based on the June 14, 2021 decision, OWCP then paid appellant wage-loss compensation for disability from work 

on the supplemental rolls effective April28, 2021.

4

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009); 

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

20 C.F.R. § 10.5(f).

6

See L.W.,Docket No. 17-1685 (issued October 9, 2018).

7

See K.H., Docket No. 19-1635 (issued March 5, 2020).
4

standpoint, they prevent the employee from continuing in his or her employment, he or she is 

entitled to compensation for loss of wages.8

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

of disability and an employment injury is rationalized medical opinion evidence. The opinion of 

the physician must be based on a complete factual and medical background of the claimant, must 

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

nature of the relationship between the claimed disability and the accepted employment injury. 9

The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed. To do so would essentially allow an employee to self-certify his or her disability and 

entitlement to compensation.10

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish disability from 

work for the period March 29 through April 27, 2021 causally related to his accepted February 8, 

2019 employment injury.

Appellant submitted an August 11, 2021 note wherein Dr. Chao noted that appellant was 

placed off work starting March 26, 2021 pending a right shoulder surgical procedure because his 

condition had worsened to the point that it was affecting his everyday work duties and life due to 

the continuous swelling, sharp stabbing pain along the arm, and cramping down to the fingers, 

which were debilitating to his right shoulder and arm. However, this report is of limited probative 

value regarding appellant’s disability claim for the period March 29 through April 27, 2021 as

Dr. Chao did not provide sufficient medical rationale explaining his opinion on causal relationship. 

Therefore, the August11, 2021 note of Dr. Chao is insufficient to establish appellant’s disability 

claim for the period March 29 through April 27, 2021. 

In a March 26, 2021 narrative report, Dr. Chao, reported physical examination findings for 

the right shoulder and diagnosed partial thickness tear of the right rotator cuff, impingement 

syndrome of the right shoulder, and osteoarthritis of the acromioclavicular joint. In a March 26, 

2021 form report, he noted that appellant was off work from March 26, 2021 until his next visit 

and indicated, “TTD pending right shoulder surgery.” However, these reports are of no probative 

value regarding appellant’s disability claim because they do not contain an opinion that appellant 

had disability for the period March 29 through April 27, 2021 due to the accepted February 8, 2019 

employment injury. The Board has held that medical evidence that does not offer an opinion 

regarding the cause of an employee’s condition or disability is of no probative value on the issue 

8

See D.R., Docket No. 18-0323 (issued October 2, 2018).

9 Y.S., Docket No. 19-1572 (issued March 12, 2020).

10 J.B., Docket No. 19-0715 (issued September 12, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).
5

of causal relationship.

11

 Therefore, this evidence is insufficient to establish appellant’s disability

claim.

On April 28, 2021 Dr. Chao performed OWCP-authorized right shoulder surgery, 

including cuff and labrum debridement, subacromial decompression, bursectomy, coracoacromial 

ligament resection, and distal clavicle excision. In a May 5, 2021 report, Dr. Chao reported 

physical examination findings and diagnosed partial thickness tear of the right rotator cuff, 

impingement syndrome of the right shoulder, and osteoarthritis of the acromioclavicular joint. He

held appellant off work. In a June 10, 2021 form report, Dr. Chao indicated that he treated 

appellant on June 9, 2021. He continued to hold appellant off work until his next visit.” In reports 

dated July 26 through September 20, 2021, Dr. Chao provided physical examination findings, 

detailed medical treatment, and diagnosed multiple right shoulder conditions. In these reports, he 

indicated total disability from work for various periods between July and October 2021. However, 

none of these reports contain an opinion on causal relationship between the claimed disability and

the accepted February 8, 2019 employment injury. As noted, medical evidence that does not offer 

an opinion regarding the cause of an employee’s condition or disability is of no probative value on 

the issue of causal relationship.

12

 Therefore, these reports of Dr. Chao are insufficient to establish 

appellant’s claim.

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

claimed period of disability and the accepted February 8, 2019 employment injury, the Board finds 

that appellant has not met his 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 his burden of proof to establish disability from 

work for the period March 29 through April 27, 2021 causally related to his accepted February 8, 

2019 employment injury.

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

12 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the October 8, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 10, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board