United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.U., Appellant

and

U.S. POSTAL SERVICE, LA PUENTE POST 

OFFICE, La Puente, CA, Employer

__________________________________________

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Docket No. 22-1329

Issued: April 18, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 19, 2022 appellant, through counsel, filed a timely appeal from a July 29, 

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 his burden of proof to establish that the acceptance 

of his claim should be expanded to include right shoulder rotator cuff tear as causally related to 

the accepted employment injury. 

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

On January 19, 1999 appellant, then a 43-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on January 14, 1999 he sustained a right arm injury as a result of 

lifting a heavy tray of flats while in the performance of duty.

4 He did not stop work. OWCP 

accepted the claim for right elbow strain, right shoulder strain, right biceps tendinitis, and right 

lateral epicondylitis.

On January 18, 2000 appellant underwent OWCP-authorized exploration of the rotator cuff 

of the right shoulder, coracoacromial release, and acromioplasty of the right shoulder. He returned 

to work in a full-time modified city letter carrier position on September 1, 2000.

In medical reports dated September 29 and November 3, 2015, and April 12, 2016, 

appellant’s attending physician, Dr. Charles Herring, a Board-certified orthopedic surgeon,

requested that the acceptance of appellant’s claim be expanded to include right acromioclavicular 

(AC) joint arthrosis and right shoulder impingement syndrome with subacromial bursitis. He 

noted a possible rotator cuff tear and sought authorization for right shoulder arthroscopy.

On April 27, 2016 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), the medical record, and a series of questions, to Dr. Steven M. Ma, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of the 

employment injury and disability.

In a June 1, 2016 report, Dr. Ma noted that he had reviewed the SOAF and appellant’s 

medical record. He diagnosed right shoulder impingement syndrome, which had resolved by his 

January 18, 2000 surgery. Dr. Ma opined that the diagnosed condition was causally related to 

3 Docket No. 20-1022 (issued January 25, 2022).

4 OWCP assigned the present claim OWCP File No. xxxxxx890. It administratively combined appellant’s 

August 16, 2000 occupational disease claim under OWCP File No. xxxxxx750, alleging right trigger finger, right 

carpal tunnel syndrome and right wrist cyst with the current claim on September 20, 2000. He subsequently filed an 

occupational disease claim (Form CA-2) on March 18, 2013 alleging that he required neck and left shoulder surgeries 

resulting from his repetitive federal work duties. OWCP assigned that claim OWCP File No. xxxxxx924 and accepted 

it for left rotator cuff tear, cervical strain, permanent aggravation of cervical degenerative disc disease, multilevel 

intervertebral disc syndrome, and cervical radiculopathy. On December 22, 2016 appellant filed a Form CA-2 alleging 

bilateral hip and knee conditions due to his repetitive work duties. OWCP assigned that claim OWCP File No. 

xxxxxx609. OWCP administratively combined OWCP File Nos. xxxxxx890, xxxxxx609, and xxxxxx924, with the 

OWCP File No. xxxxxx890 serving as the master file.
3

appellant’s accepted employment injury. He further opined that there was no objective evidence 

of a right rotator cuff tear and that further surgery was not medically necessary.

On August 16, 2017 OWCP referred appellant, a SOAF, and series of questions for an 

impartial medical examination with Dr. Thomas Saucedo, a Board-certified orthopedic surgeon, 

selected as the impartial medical examiner (IME) to resolve the conflict in medical opinion as to 

whether there was causal relationship between appellant’s diagnosed right shoulder conditions and 

the accepted work-related injury.

In a September 27, 2017 report, Dr. Saucedo reviewed appellant’s history of injury, 

medical records, and the SOAF. He performed a physical examination and determined that 

appellant had a significant loss of range of motion (ROM) of the shoulder and loss of strength as 

a result of the chronic nature of the impingement of his right shoulder. Dr. Saucedo opined that 

there was no radiographic evidence to substantiate the need for a right shoulder rotator cuff repair. 

He noted that if appellant’s symptoms persisted, then he would require further medical treatment. 

Dr. Saucedo agreed with Dr. Ma’s opinion that there was no clinical evidence to substantiate a 

right rotator cuff tear and no need for surgery related to appellant’s original injury. He advised, 

however, that there were findings indicative of an impingement of the right shoulder relating to 

the initial injury. Dr. Saucedo indicated that appellant’s symptoms and condition had not resolved.

By decision dated September 5, 2019, OWCP denied expansion of the acceptance of 

appellant’s claim to include right shoulder rotator cuff tear and authorization for the requested 

rotator cuff repair. It found that the opinion of Dr. Saucedo, as the IME, constituted the special 

weight of the evidence.

In a separate decision also dated September 5, 2019, OWCP expanded the acceptance of 

appellant’s claim to include right shoulder chronic impingement syndrome, right shoulder strain, 

right calcium deposit in the tendon and bursa (biceps tenosynovitis/tendinitis), and right lateral 

epicondylitis.

On September 18, 2019 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review. The hearing took place on 

January 15, 2020.

OWCP received medical reports, including additional reports dated August 27 and 

November 19, 2019 by Dr. Herring who noted that appellant had a right shoulder partial-thickness 

rotator cuff tear as demonstrated by a 2015 MRI scan.

By decision dated March 6, 2020, OWCP’s hearing representative affirmed the 

September 5, 2019 decision. Appellant, through counsel, appealed that decision to the Board. By 

decision dated January 25, 2022,5the Board affirmed the March 6, 2020 decision, finding that 

appellant had not met his burden of proof to establish that acceptance of his claim should be 

expanded to include an additional right shoulder as causally related to the accepted employment 

injury.

5 Supra note 3.
4

On May 20, 2022 appellant, through counsel, requested reconsideration. In support of this 

request, he provided a May 11, 2020 report from Dr. Hosea Brown III, a Board-certified internist, 

which noted appellant’s history of injury and provided findings on physical examination. He

diagnosed permanent aggravation of cervical degenerative disc disease, cervical strain, left rotator 

cuff tear, multilevel cervical intervertebral disc syndrome, and cervical radiculopathy and opined 

that all the accepted medical conditions arose as a direct result of appellant’s employment. 

Dr. Brown reviewed Dr. Saucedo’s report and agreed with his diagnosis of chronic right shoulder 

impingement syndrome. He opined that appellant was currently a candidate for an additional 

Mumford procedure to his right shoulder for decompression of the subacromial area with a partial 

anterior lateral acromioplasty and possible distal clavicular excision, as recommended by

Dr. Saucedo.

By decision dated July 29, 2022, OWCP denied modification of its prior decisions.

LEGAL PRECEDENT

Where 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.6

The medical evidence required to establish causal relationship between a specific 

condition, as well as any attendant disability claimed, and the employment injury, is rationalized 

medical opinion evidence.7 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.8 Additionally, the opinion of the physician must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition and the 

specific employment factor(s) identified by the claimant.9

ANALYSIS

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

acceptance of his claim should be expanded to include right shoulder rotator cuff tear as causally 

related to the accepted employment injury. 

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s March 6, 2020 merit decision as the Board 

6 See M.M., Docket No. 22-0037 (issued October 12, 2022); C.W., Docket No. 21-0017 (issued December 28, 

2021); T.B., Docket No. 20-0182 (issued April 23, 2021); W.L., Docket No. 17-1965 (issued September 12, 2018); 

V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

7 T.B., id.; T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 

55 ECAB 465 (2004).

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

9 T.B., id.; M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 

41 ECAB 345 (1989).
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considered it in its January 25, 2022 decision. Findings made in prior Board decisions are res 

judicata absent further review by OWCP under section 8128 of FECA.10

Appellant submitted a report from Dr. Brown dated May 11, 2020. Dr. Brown did not 

diagnose a right shoulder rotator cuff tear, as previously found by Dr. Herring. Appellant’s burden 

of proof regarding his expansion claim includes the necessity of furnishing an affirmative opinion 

from a physician who supports his or her conclusion with sound medical reasoning.11 The Board 

finds that this report is of no probative value regarding appellant’s expansion claim as Dr. Brown 

did not provide an affirmative opinion regarding the diagnosis of right shoulder rotator cuff tear.

12

 

Dr. Brown did not provide an opinion on the relevant issue of whether appellant’s claim should be 

expanded to include additional conditions; consequently, this report is of no probative value.13

As appellant has not submitted rationalized medical evidence establishing causal 

relationship between his claimed right shoulder cuff tear and the accepted employment injury, he 

has not met his burden of proof regarding his expansion claim.

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 that the 

acceptance of his claim should be expanded to include right shoulder rotator cuff tear as causally 

related to the accepted employment injury. 

10 D.A., Docket No. 19-1965 (issued February 10, 2021); G.B., Docket No. 19-1448 (issued August 21, 2020); 

Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

11 D.S., Docket No. 22-0323 (issued September 26, 2022); J.A., Docket No. 18-1586 (issued April 9, 2019); 

Lillian M. Jones, 34 ECAB 379, 381 (1982).

12 Id.

13 R.B., Docket No. 22-0713 (issued July 26, 2022); R.P., Docket No. 20-0891 (issued September 20, 2021); V.R.,

Docket No. 19-0758 (issued March 16, 2021); O.M., Docket No. 18-1055 (issued April 15, 2020); L.B., Docket No. 

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

ORDER

IT IS HEREBY ORDERED THAT the July 29, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 18, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board