United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.D., Appellant

and

U.S. POSTAL SERVICE, PATERSON POST 

OFFICE, Paterson, NJ, Employer

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Docket No. 22-0862

Issued: March 30, 2023

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

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 May 11, 2022 appellant, through counsel, filed a timely appeal from a March 23, 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 over 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 disability from work 

for the period October 24, 2018 through May 3, 2021, causally related to his accepted 

September 8, 2018 employment injury.

FACTUAL HISTORY

On September 8, 2018 appellant, then a 77-year-old custodian, filed a traumatic injury 

claim (Form CA-1) alleging that, on that date, he injured his right shoulder when he fell as he 

pushed two trash cans while in the performance of duty. He stopped work on September 9, 2018

and has not returned to work.

By decision dated November 20, 2018, OWCP accepted that the September 8, 2018 

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 September 8, 2018 

employment incident. It concluded, therefore, that the requirements had not been met to establish 

an injury as defined by FECA.

OWCP subsequently received additional medical evidence. 

On October 8, 2019 appellant requested reconsideration of the November 20, 2018 

decision and submitted medical and factual evidence. 

By decision dated January 2, 2020, OWCP modified the November 20, 2018 decision to 

find that appellant had established a diagnosis of right shoulder rotator cuff tear. However, the 

claim remained denied as the medical evidence of record was insufficient to establish that 

appellant’s diagnosed condition was casually related to the accepted September 8, 2018 

employment incident. 

On December 29, 2020 appellant, through counsel, requested reconsideration and 

submitted a December 22, 2020 report from Dr. Stephen J. McIlveen, an attendingBoard-certified 

orthopedic surgeon. Dr. McIlveen noted a history of the September 8, 2018 employment incident. 

He also noted that appellant fell on his knees and not on his right side at home on October 2, 2018

and underwent cervical surgery on October 5, 2018. Dr. McIlveen discussed his findings on 

physical examination and the results of diagnostic testing. He diagnosed right rotator cuff tear and 

opined that the diagnosed condition resulted from the September 8, 2018 employment incident.

Dr. McIlveen also opined that appellant was totally disabled from his normal custodian work duties

due to his employment-related right shoulder condition.

By decision dated March 23, 2021, OWCP vacated the January 2, 2020 decision, finding 

that appellant had sustained a right rotator cuff tear, as a result of the accepted employment 

incident. By separate decision of even date, it formally accepted his claim for right rotator cuff 

tear.

On May 19, 2021 appellant filed claims for compensation (Form CA-7) for disability from 

work from September 9, 2018 through May 3, 2021. 
3

In a May 19, 2021 letter, the employing establishment controverted appellant’s claim, 

contending that no medical evidence had been submitted. It further noted that he had retired 

effective August 19, 2019.

By development letter dated May 24, 2021, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of medical evidence needed to establish his claim for 

compensation for disability from work during the period September 9, 2018 through May 3, 2021. 

OWCP afforded appellant 30 days to submit the necessary evidence.

In a response dated June 1, 2021, appellant, through counsel, contended that

Dr. McIlveen’s December 22, 2020 report was sufficient to establish his disability claim as

Dr. McIlveen opined that he was disabled from work due to his accepted employment-related 

injury.

By decision dated July 1, 2021, OWCP denied appellant’s claim for compensation for the 

period September 9, 2018 through May 3, 2021, because the medical evidence of record was 

insufficient to establish that he was totally disabled from work during the claimed period causally 

related to his accepted employment condition. 

On December 24, 2021 appellant, through counsel, requested reconsideration and 

submitted a follow-up report dated July 29, 2021 from Dr. McIlveen. Dr. McIlveen noted that 

when he saw appellant on July 29, 2021, he continued to be disabled from his normal custodian 

work duties due to his accepted right shoulder rotator cuff tear. He further noted that appellant 

was also disabled from performing activities of daily living. In addition to having night-time pain 

which awakened him seven out of seven nights per week, Dr. McIlveen was unable to perform any 

functional activity above the horizontal level using his right arm, including taking off his shirt or 

grocery shopping. Appellant could not reach forward to pick up a heavy object or perform 

household cleaning activity. He could not perform any outdoor activity, or take care of his 

property. Strength activity by history and examination caused pain in appellant’s right shoulder. 

Previously, appellant was able to cut his lawn and perform all of his normal household activities. 

As of the report date, he had to hire people to cut his lawn, care for his outdoor property, and clean 

inside his home. Additionally, appellant experienced pain when he tried to brush his teeth which 

involved the arm going into an abducted position to accomplish that task. He had to use his left 

hand to brush his teeth. Appellant was very weak in reaching forward and his active forward 

elevation was only 80 degrees versus 110 degrees on the left with pain and he fatigued quickly. 

He had a negative external rotation sign on testing of his rotator cuff muscle strength on the right 

which meant that he could not bring it to a zero degrees neutral position. Appellant had to use his 

left arm to remove his shirt during the examination by Dr. McIlveen. Dr. McIlveen advised that 

he was totally disabled from work as of September 8, 2018.

By decision dated March 23, 2022, OWCP corrected its earlier decision, finding that

Dr. McIlveen’s July 29, 2021 report was insufficient to establish that appellant had employmentrelated disability from work for the period October 24, 2018 through May 3, 2021.
4

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the

essential elements of his or her claim, including that any disability or specific condition for which

compensation is claimed is causally related to the employment injury.4 For each period of

disability claimed, the employee has the burden of proof to establish that he or she was disabled

from work as a result of the accepted employment injury.5 Whether a particular injury causes an

employee to become disabled from work, and the duration of that disability, are medical issues

that must be proven by a preponderance of probative and reliable medical opinion evidence.6

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

earn the wages the employee was receiving at the time of the injury.7 When, however, the medical

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

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

entitled to compensation for any loss of wages.8

To establish causal relationship between the disability claimed and the employment injury,

an employee must submit rationalized medical evidence, based on a complete factual and medical

background, supporting such causal relationship.9 The opinion of the physician 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.10

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.11

3

Supra note 2.

4

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August23, 2019); 

C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 

ECAB 1143 (1989).

5

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019); 

FereidoonKharabi, 52 ECAB 291, 293 (2001).

6

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

7

Id. at § 10.5(f); see e.g., G.T., Docket No. 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 

397 (1999).

8 G.T., id.; Merle J.Marceau, 53 ECAB 197 (2001).

9

See S.J., Docket No. 17-0828 (issued December 20, 2017); KathrynE.DeMarsh, 56 ECAB 677 (2005).

10 T.S., Docket Nos. 20-1177 and 20-1296 (issued May 28, 2021); V.A., Docket No. 19-1123 (issued 

October 29, 2019).

11 See S.G., Docket No. 18-1076 (issued April11, 2019); WilliamA. Archer, 55 ECAB 674 (2004); Fereidoon 

Kharabi, supra note 5.
5

ANALYSIS

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

work for the period October 24, 2018 through May 3, 2021 causally related to his accepted 

September 8, 2018 employment injury.

In support of his claims for compensation, appellant submitted reports from Dr. McIlveen. 

In a July 29, 2021 report, Dr. McIlveen opined that appellant was disabled from his custodian 

position commencing September 8, 2018 due to the accepted September 8, 2018 employment 

injury. He then noted appellant’s physical limitations resulting from the work-related disability. 

Although Dr. McIlveen opined that the accepted employment injury caused appellant to be totally 

disabled from work, his opinion is of limited probative value because he did not explain, with 

medical rationale, how or why appellant was unable to perform his usual work during the claimed 

period of disability due to the effects of his accepted injury. A mere conclusion without medical 

rationale supporting a period of disability due to the accepted employment condition is insufficient 

to meet a claimant’s burden of proof.12 Thus, Dr. McIlveen’s report is insufficient to establish 

appellant’s disability claim.

Likewise, Dr. McIlveen’s December 22, 2020 report is also insufficient to establish that 

appellant’s disability from October 24, 2018 through May 3, 2021 was causally related to the 

September 8, 2018 employment injury. He again opined that appellant was totally disabled from 

performing his usual custodian position due to the accepted September 8, 2018 employment injury. 

However, Dr. McIlveen did not provide medical rationale explaining how or why appellant’s

claimed disability was causally related to the accepted employment injury.13

As the medical evidence of record is insufficient to establish employment-related total 

disability during the claimed period due to appellant’s accepted condition, the Board finds that he 

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 October 24, 2018 through May 3, 2021, causally related to his accepted 

September 8, 2018 employment injury. 

12 See A.L., Docket No. 21-0151 (issued January21, 2022); C.B., Docket No. 19-0464 (issued May 22, 2020); S.H., 

Docket No. 19-1128 (issued December 2, 2019);T.L., Docket No. 18-0934 (issued May 8, 2019); SandraD. Pruitt, 57 

ECAB 126 (2005).

13 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the March 23, 2022 merit decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 30, 2023

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