United States Department of Labor

Employees’ Compensation Appeals Board

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L.D., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

TROY BOWLING CAMPUS, VETERANS 

MEDICAL CENTER, Lexington, KY, Employer

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Docket No. 22-0039

Issued: July 11, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 11, 2021 appellant filed a timely appeal from a May 24, 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.

ISSUE

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

causally related to the accepted factors of her federal employment.

FACTUAL HISTORY

On March 16, 2020 appellant, then a 54-year-old registered nurse, filed an occupational 

disease claim (Form CA-2) alleging that she sustained injury to her right shoulder, right arm, and 

1

5 U.S.C. § 8101 et seq.
2

neck due to the duties required by the light-duty job she returned to on March 5, 2018 including 

reaching with her right arm to use a telephone, keyboarding, and entering data on a computer. She 

asserted that her right shoulder, right arm, and neck progressively became weak, tender, swollen, 

and painful. Appellant indicated that she first became aware of her claimed condition and its 

relation to her federal employment on May 24, 2018. She stopped work on July 16, 2018, the date 

she retired from the employing establishment. OWCP assigned the claim OWCP File No. 

xxxxxx052.

In an April 3, 2020 development letter, OWCP notified appellant of the deficiencies of her 

claim. It advised her of the type of factual and medical evidence needed and provided a 

questionnaire for her completion. In a separate development letter of even date, OWCP requested 

that the employing establishment provide comments from a knowledgeable supervisor regarding 

appellant’s allegations. It afforded both parties 30 days to submit the requested evidence. 

In an undated statement received by OWCP on April 15, 2020 appellant indicated that, 

under a prior claim, assigned OWCP File No. xxxxxx765, OWCP had accepted that on August 25, 

2016 she sustained bicipital tendinitis and adhesive capsulitis of her left shoulder. She advised 

that she returned to a light-duty position on March 5, 2018 where she was required to file papers, 

make photocopies, assemble orientation packets, answer telephone calls, and use a keyboard to 

enter data for multiple computer programs. Appellant advised that these tasks required her to 

extend her arms, repetitively use her fingers and hands, and tilt and rotate her neck for a majority 

of her workday. She indicated that she performed her keyboard duties for three or four hours per 

day. Commencing April 18, 2018 appellant was transferred to another department where she 

primarily answered the telephone and used a keyboard to enter data. She advised that on June 25, 

2018 she was transferred to another work location where she performed similar duties. 

Appellant also submitted a copy of her modified job assignment dated March 5, 2018, an 

election of physician form dated April 13, 2020, a release of information form dated April 13, 

2020, and other administrative documents regarding the filing of a compensation claim.

In an April 30, 2020 letter, appellant’s immediate supervisor advised that the employing 

establishment was challenging appellant’s claim. She indicated that OWCP had already denied 

her claim for a consequential right upper extremity injury which she had filed in connection with 

an August 25, 2016 employment injury, which affected her left upper extremity. The supervisor

asserted that appellant failed to submit medical evidence establishing causal relationship. In a 

May 4, 2020 letter, a former nurse manager of appellant acknowledged that appellant’s light-duty 

position required her to use a telephone and keyboard. She indicated that appellant had the ability 

to take frequent breaks from such work. 

By decision dated May 5, 2020, OWCP accepted that appellant’s work required filing 

documents, making copies, assembling orientation packets, and using a telephone and computer 

keyboard, as alleged. However, it denied her claim, finding that she “did not submit any medical 

evidence containing a medical diagnosis in connection with the injury and/or event(s).” OWCP 

concluded, therefore, that the requirements had not been met to establish an injury as defined by 

FECA. 

On February 23, 2021 appellant requested reconsideration of the May 5, 2020 decision. 
3

Appellant submitted several factual documents, including a March 18, 2020 statement in 

which a coworker indicated that appellant complained of work-related pain in her neck, right 

shoulder, and right arm after her March 2018 return to work, as well as a July 31, 2018 statement 

in which a coworker advised that she witnessed appellant grimacing in pain while working after 

her March 2018 return to work. 

Appellant submitted an August 15, 2018 report from Mychelle Banks who diagnosed 

adhesive capsulitis of the left shoulder, right shoulder pain, and inflammation of right rotator cuff 

tendon.2 

In an August 21, 2018 report, Dr. Trevor Wilkes, a Board-certified orthopedic surgeon, 

indicated “the following is a narrative report regarding the relationship between the adhesive 

capsulitis of the left shoulder and the development of inflammation of the rotator cuff tendon of 

the right shoulder.” He noted that appellant had objective right shoulder findings of tenderness of 

the rotator cuff tendon, positive subacromial provocative findings, and pain-inhibited weakness. 

Dr. Wilkes diagnosed inflammation of the right rotator cuff tendon and indicated that the 

mechanism of injury was overuse in compensation for a “dysfunctional left shoulder.” He noted, 

“[a] description of work duties that would be difficult to perform include repeated reaching, 

extension of the shoulder and overhead lifting.” Dr. Wilkes described his recommended treatment, 

including use of anti-inflammatory medicals and exercise. 

In a March 28, 2019 report, Dr. Steve T. Vogelsang, a Board-certified family medicine

physician, advised that appellant reported that she experienced mild numbness in her right fourth 

and fifth finger since July 2018. He reported physical examination findings, including 5/5 strength 

in the upper extremities and pain upon passive external rotation of both shoulders. Dr. Vogelsang 

diagnosed bilateral inflammation of rotator cuff tendons and adhesive capsulitis of the left 

shoulder. In a May 21, 2019 report, he reported physical examination findings, noting that 

appellant’s shoulders were nontender and had decreased range of motion. Dr. Vogelsang 

diagnosed right rotator cuff syndrome. The case record also contains an incomplete copy of his

September 12, 2019 report, which contains the diagnoses of inflammation of right rotator cuff 

tendon, cervical spondylosis, and myofascial pain.

The findings of a May 29, 2019 magnetic resonance imaging (MRI) scan of appellant’s 

right shoulder contained an impression of tendinopathy and suspected partial tearing of the 

supraspinatus and infraspinatus tendons, tendinopathy of the subscapularis, and moderate 

acromioclavicular (AC) joint arthritis changes with mild subacromial/subdeltoid bursitis. X-ray 

testing of her right shoulder on June 3, 2019 revealed mild degenerative changes of the right 

shoulder. 

In a November 7, 2019 report, Dr. Mark A. Seldes, a Board-certified family medicine 

physician, discussed appellant’s factual and medical history, including the circumstances of her

return to light-duty work in early 2018. He reported findings of his physical examination, noting 

that she had tenderness to palpitation over the anterior, lateral, and posterior aspects of both 

shoulder joints, as well as over both bicipital grooves and tendons. Appellant had positive Neer 

2 The report does not indicate whether Ms.Banks was a medical physician or some other type of health care 

provider.
4

and Hawkins tests for right shoulder impingement. Dr. Seldes diagnosed partial rotator cuff tear 

and AC joint arthritis of the right shoulder. He indicated that appellant had reported that on 

March 5, 2018 she returned to light-duty work at the employing establishment, which involved 

filing paper, making copies, and assembling orientation packets for nurse educators. Appellant’s 

duties in this position and another position she transferred to in April 2018 included answering 

telephone calls from staff and using a keyboard to enter data into multiple computer systems. She 

worked on the computer systems for at least three to four hours per day. Dr. Seldes noted that 

appellant reported having to extend and rotate her arms, flex her neck, and use her fingers and 

hands for four or five hours per day. Appellant reported that her right arm progressively became 

weaker as she was right-hand dominant and most of the time had to type with her right hand and 

arm. Her neck was also tilted when holding the telephone as it did not have a headset. Dr. Seldes 

indicated that appellant moved to another work location in June 2018 to train as a telephone triage 

nurse in the telephone care program. This position required appellantto make telephone calls with 

a headset while keyboarding data. She progressively had worsening pain and limited range of 

motion in her right shoulder. Dr. Seldes indicated that appellant’s driving to and from work also 

aggravated her right shoulder condition.

Dr. Seldes reported that appellant continued to develop further pain, swelling, and stiffness 

in her right arm, which progressed to the point where she was unable to work. He noted that she

last worked for the employing establishment on July 16, 2018. Dr. Seldes advised that it was his 

opinion, within a reasonable degree of medical certainty, that appellant developed a right shoulder 

rotator cuff tear and right shoulder ACjoint arthritis due to her work-related injuries. He indicated 

that her clinical examination as well as her diagnostic studies were “consistent with the workrelated duties that [appellant] has had to do.” Dr. Seldes opined that appellant’s condition was 

complicated by the fact that her left shoulder, for which she had a separate compensation claim,

already had limited range of motion and had been operated on. He maintained that these

circumstances forced her to use her right shoulder and worsened her condition. Dr. Seldes 

recommended physical therapy and requested that OWCP “open this case for [appellant’s] right 

shoulder partial rotator cuff tear and right shoulder [AC] joint arthritis.”

In another November 7, 2019 report, Dr. Seldes noted that appellant complained of left 

shoulder pain, but also reported that she had started to develop pain in her right shoulder over the 

past prior 15 months. He diagnosed adhesive capsulitis and bicipital tendinitis of the left shoulder 

and impingement syndrome and rotator cuff tear of the right shoulder. Dr. Seldes noted, “We 

briefly discussed [appellant’s] right shoulder injury that has been bothering her for 15 months, and 

it is a work-related injury. I have discussed having [her] complete a [Form] CA-2 and having an 

examination to open the case on her right shoulder.”

In a January 30, 2020 report, Dr. Seldes again discussed appellant’s return to limited-duty 

work at the employing establishment on March 5, 2018 after receiving extensive care for her left 

shoulder under a separate compensation claims case. He noted that her duties, filing papers, 

making copies, assembling orientation packets, and using a telephone and keyboard, caused 

significant stress to her right shoulder and eventually led to micro tears in her rotator cuff tendons. 

In reports dated June 9, July 27, and September 3, 2020, Dr. Seldes provided extended 

discussions of his belief that appellant sustained a work-related injury after her return to limitedduty work on March 5, 2018. These discussions were similar to those contained in his 
5

November 7, 2019 and January 30, 2020 reports. In his July 27 and September 3, 2020 reports,

Dr. Seldes again discussed appellant’s arm movements at work and noted, “[t]hese movements 

over 4+ hours per 8-hour day eventually cause the tendons in [appellant’s] right shoulder to 

degrade causing the partial tears. These partial tears [led] to pain and inflammation in [her] right 

shoulder. This also led to tendinopathy of the subscapularis tendon as well as mild subacromial 

and subdeltoid bursitis.”

By decision dated May 24, 2021, OWCP affirmed its May 5, 2020 decision as modified to 

reflect that appellant had established the medical component of fact of injury, but failed to submit 

sufficient medical evidence to establish causal relationship between the accepted employment 

factors and the diagnosed medical conditions. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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 filed with the applicable time 

limitation, that an injury was sustained while in the performance of duty, as alleged, and that any

disability or specific condition for which compensation is claimed is causally related to the 

employment injury.4 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated upon a traumatic injury or an occupational disease. 5

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of the 

disease or condition; (2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed; and (3) medical evidence establishing that the

diagnosed condition is causally related to the identified employmentfactors.6

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship 

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

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

3

Supra note 1.

4 E.S., Docket No. 18-1580 (issued January 23, 2020); M.E., Docket No. 18-1135 (issued January 4, 2019); C.S., 

Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5 E.S., id.; S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 

1143 (1989).

6 R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. 

Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

7 W.M., Docket No. 14-1853 (issued May 13, 2020); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 

238 (1996).

8 M.V., Docket No. 18-0884 (issued December 28, 2018).
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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 appellant’s 

specific employment factor(s).9

ANALYSIS

The Board finds that this case is not in posture for decision.

Appellant submitted a November 7, 2019 report from Dr. Seldes who provided a detailed 

and accurate discussion of the accepted employment factors, which included filing documents, 

making copies, assembling orientation packets, and using a telephone and computer keyboard in 

the work she performed commencing in March 2018. Dr. Seldes advised that it was his opinion 

within a reasonable degree of medical certainty that she developed a right shoulder rotator cuff 

tear and right shoulder AC joint arthritis due to this work. He indicated that appellant’s clinical 

examination as well as her diagnostic studies were “consistent with the work-related duties that 

[appellant] has had to do.” Dr. Seldes opined that her condition was complicated by the fact that 

her left shoulder, for which she had a separate compensation claim, already had limited range of 

motion and due to an operation. He maintained that these circumstances forced appellant to use 

her right shoulder and worsened her condition. In a January 30, 2020 report, Dr. Seldes again 

discussed her return to limited-duty work at the employing establishment in March 2018 after 

receiving extensive care for her left shoulder under a separate compensation claims case. He noted 

that appellant’s duties, including filing papers, making copies, assembling orientation packets, and 

using a telephone and keyboard, caused significant stress to her right shoulder and eventually led 

to micro tears in her rotator cuff tendons.

In reports dated June 9, July 27, and September 3, 2020, Dr. Seldes again provided 

extended discussions of his belief that appellant sustained a work-related injury after her return to 

limited-duty work on March 5, 2018. These discussions were similar to those contained in his 

priorreports. In his July 27 and September 3, 2020 reports, Dr. Seldes again discussed appellant’s 

arm movements at work and noted, “[t]hese movements over 4+ hours per 8-hour day eventually 

cause the tendons in [appellant’s] right shoulder to degrade causing the partial tears. These partial 

tears [led] to pain and inflammation in [her] right shoulder. This also led to tendinopathy of the 

subscapularis tendon as well as mild subacromial and subdeltoid bursitis.”

The Board notes that proceedings under FECA are not adversarial in nature, and OWCP is 

not a disinterested arbiter.10 The Board finds that while Dr. Seldes’reports are insufficient to meet 

appellant’s burden of proof, they raise an uncontroverted inference of causal relation between her 

claimed conditions and the accepted factors of her federal employment. Further development of 

appellant’s claim is therefore required.11

9

Id.; Victor J. Woodhams, supra note 6.

10 See B.B., Docket No. 18-1321 (issued April5, 2019).

11 See C.M., Docket No. 17-1977 (issued January 29, 2019); John J. Carlone, 41 ECAB 354 (1989).
7

The Board finds that Dr. Seldes’ reports are sufficient to require further development of 

the medical evidence in this claim. Dr. Seldes provided a comprehensive understanding of the 

medical record and case history, and provided a pathophysiological explanation as to how the 

mechanism of the accepted employment factors were sufficient to cause the diagnosed conditions. 

Dr. Seldes’ opinion is not contradicted by any substantial medical or factor evidence of record.

On remand, OWCP shall prepare a statement of accepted facts and refer appellant to a 

specialist in the appropriate field of medicine for a second opinion examination and an evaluation 

regarding whether she sustained a new occupational injury in 2018, as alleged. If the physician 

opines that the diagnosed conditions are not causally related, he or she must explain with rationale 

how or why the opinion differs from that of Dr. Seldes. Following any necessary further 

development, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the May 24, 2021 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded to OWCP for proceedings consistent 

with this decision of the Board.

Issued: July 11, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board