United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.N., Appellant

and

DEPARTMENT OF THE NAVY, 

WATERFRONT SERVICES DIVISION, 

Kings Bay, GA, Employer

__________________________________________

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Docket No. 22-0377

Issued: March 7, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 13, 2022 appellant filed a timely appeal from a September 13, 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

ISSUE

The issue is whether appellant has met his burden of proof to establish an injury in the 

performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the September 13, 2021 decision, appellant submitted additional evidence to 

OWCP and on appeal to the Board. 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

FACTUAL HISTORY

On July 9, 2019 appellant, then a 66-year-old painter, filed an occupational disease claim 

(Form CA-2) alleging that he injured both arms and experienced muscle pains due to factors of his 

federal employment. He described that the injury occurred “while pressure washing the underside

of [a] submarine hull for the whole eight[-]hour shift.” Appellant noted that he first became aware 

of his condition and realized its relationship to his federal employment on July 18, 2009. 

Appellant submitted a December 23, 2009 left shoulder magnetic resonance imaging 

(MRI) scan by Dr. Terry Reynolds, a Board-certified radiologist, which demonstrated a tear of the 

distal supraspinatus tendon extending from the articular surface to the bursal surface,supraspinatus 

tendinopathy, degenerative changes of the acromioclavicular (AC) joint with effacement of the 

underlying supraspinatus tendon, and mild degenerative changes of the glenohumeral joint. 

In a development letter dated July 19, 2019, OWCP informed appellant of the deficiencies 

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

occupational disease claim and provided a questionnaire for his completion. OWCP afforded 

appellant 30 days to submit the necessary evidence. 

OWCP received a position description for a painter at the employing establishment. It 

described the duties of appellant’s position to include surface preparation, which involved 

“chemically cleaning, hydro blasting, steam cleaning, washing[,] scraping, hand sanding, slurry 

blasting, wheelabrator tumble blasting, grit blasting, and using various Pneumatic tools.” OWCP 

also received a notification of personnel action (Standard Form (SF-50)) dated March 17, 2019, 

which noted his position title as a painter. 

By decision dated September 10, 2019, OWCP denied appellant’s occupational disease 

claim, finding that the evidence of record was insufficient to establish a causal relationship 

between his diagnosed left shoulder condition and the accepted employment factors. 

On April 6, 2020 appellant requested reconsideration. 

In a November 15, 2019 progress note, Frank Clements, a physician assistant, reported 

appellant’s complaints of bilateral shoulder pain and conducted an examination. He diagnosed left 

and right shoulder bursitis and left and right shoulder pain. 

In progress notes dated December 10, 2019 through February 18, 2020, Dr. Denny Carter, 

a Board-certified orthopedic surgeon, indicated appellant’s complaints of left elbow, left shoulder, 

right shoulder, and right elbow pain for several years. On initial examination of appellant’s 

shoulders, he observed normal limits, no scars, and no lesions. Dr. Carter reviewed appellant’s 

diagnostic examination reports and diagnosed left elbow pain, right and left shoulder pain, 

tendinopathy of the left rotator cuff, tendinopathy of the right shoulder, right shoulder 

osteoarthritis, and left shoulder pain. 

Appellant also submitted diagnostic examination reports. A November 15, 2009 right 

shoulder MRI scan showed ACjoint osteoarthropathy with probable changes of prior subacromialdecompression, subacromial/subdeltoid bursitis, glenohumeral osteoarthropathy, degenerative 

tearing of possibly postsurgical changes, infraspinatus tendinopathy with low-grade intrasubstance 

tearing, and subscapularis tendinopathy. A December 16, 2009 right shoulder MRI scan 
3

demonstrated hypertrophic degenerative changes of the AC joint and near full thickness tear of the 

supraspinatus tendon. A February 12, 2020 right shoulder MRI scan demonstrated AC joint 

osteoarthropathy with probable changes of prior subacromial decompression, subacromial/

subdeltoid bursitis, glenohumeral osteoarthropathy, attenuated superior labrum with rounded 

morphology to the posterior laburnum, obscuration of the rotator interval fat suggestive of 

adhesive capsulitis, infraspinatus tendinopathy and subscapularis tendinopathy. A February 27, 

2020 left elbow MRI scan demonstrated mild degenerative changes with osteophytosis and areas 

of chondromalacia, extensor origin tendinopathy with focal partial thickness intrasubstance 

tearing, radial collateral ligament sprain, and nonspecific flexor carpi radialis edema. 

By decision dated May 4, 2020, OWCP denied modification of its September 10, 2019 

decision. 

On September 9, 2020 appellant requested reconsideration. 

In an August 13, 2020 progress note, Dr. Carter indicated that appellant’s bilateral shoulder 

pain remained unchanged. He reported that range of motion testing of the shoulders demonstrated 

pain with forward elevation and external rotation. Dr. Carter diagnosed left and right shoulder 

pain, left and right shoulder rotator cuff tendinopathy,long head biceps tendinopathy, left shoulder 

glenoid labral tear, right rotator cuff tendinitis, bursitis, and AC degenerative joint disease. 

By decision dated December 8, 2020, OWCP denied modification of its May 4, 2020 

decision. 

On June 16, 2021 appellant requested reconsideration. 

In a May 24, 2021 letter, Dr. Carter indicated that appellant had been his patient for over 

10 years. He reported that appellant developed rotator cuff tears in both shoulders and opined that 

“[m]ore likely than not, these rotator cuff tears were at least related and potentially caused directly 

by [appellant’s] job duties.” Dr. Carter related that appellant worked for 32 years performing 

pressure washing, sandblasting, spray painting, and touch up painting in confined spaces and 

overhead positions. He explained that, by performing these repetitive overhead activities, 

appellant “likely developed increased friction across the rotator cuff by the coracoacromial 

ligament and anterior acromion” which led to tendinopathy and rotator cuff tear development. 

Dr. Carter noted that, upon physical examination, appellant demonstrated pain and weakness with 

rotator cuff testing and positive provocative maneuvers, which were consistent with the condition. 

He concluded that there was a causal relationship between appellant’s work duties and the 

development of rotator cuff tendinopathy and rotator cuff tears in both shoulders. 

By decision dated September 13, 2021, OWCP modified the December 8, 2020 decision

finding that the basis for denial was changed to a denial of fact of injury from a denial on causal 

relationship. It explained that the evidence of record was insufficient to establish the implicated 

employment factors. OWCP specifically noted that, based on the description provided on the 

CA-2 form, it appears that the employment incident was a traumatic event. Thus, the claim 

remained denied. OWCP concluded that it was “unclear if [appellant’s] alleged injury occurred 

over a period longer than one workday or shift or on the date of injury.” 
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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 the individual is an employee of the United 

States within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation of FECA,4that an injury was sustained in the performance of duty as alleged, and that 

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

employment injury.5 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6

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

disease claim, a claimant must submit: (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 employment factors identified by the claimant.7 

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.

8

 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 diagnosed 

condition and specific employment factors identified by the claimant.

9

 Neither the mere fact that 

a disease or condition manifests itself during a period of employment, nor the belief that the disease 

or condition was caused or aggravated by employment factors, is sufficient to establish causal 

relationship.10

3

Id.

4 D.D., Docket No. 19-1715 (issued December 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 

59 ECAB 178 (2007); JoeD. Cameron, 41 ECAB 153 (1989). 

5 Y.G., Docket No. 20-0688 (issued November 13, 2020); J.M., Docket No. 17-0284 (issued February7, 2018); 

R.C., 59 ECAB 427 (2008); James E.Chadden, Sr., 40 ECAB 312 (1988).

6 C.H., Docket No. 19-1781 (issued November 13, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

L.M., Docket No. 13-1402 (issued February 7, 2014); DeloresC.Ellyett, 41 ECAB 992 (1990). 

7 T.M., Docket No. 20-0712 (issued November 10, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 

59 ECAB 382 (2008).

8

J.F., Docket No. 18-0492 (issued January16, 2020); A.M., Docket No. 18-1748 (issued April24, 2019); T.H., 59 

ECAB 388, 393 (2008); RobertG. Morris, 48 ECAB 238 (1996).

9 A.M., Docket No. 18-0562 (issued January 23, 2020); I.J., 59 ECAB 408 (2008); LeslieC. Moore, 52 ECAB 

132 (2000). 

10 E.W., Docket No. 19-1393 (issued January 29, 2020); Gary L. Fowler, 45 ECAB 365 (1994).
5

ANALYSIS

The Board finds that the case is not in posture for decision regarding whether appellant has 

met his burden of proof to establish an injury in the performance of duty, as alleged. 

On his claim form appellant alleged that he developed pain and symptoms in both arms 

while pressure washing a submarine hull. He provided a position description, which indicated that 

the duties and responsibilities of a painter involved cleaning, hydro blasting, and washing various 

surfaces. By decision dated September 13, 2021, OWCP determined that the evidence of record 

was insufficient to establish the implicated employment factors occurred as described. It 

specifically noted that, based on the description provided on the CA-2 form, it was “unclear if your 

alleged injury occurred over a period longer than one workday or shift or on the date of injury.” 

Thus, OWCP concluded that the requirements had not been met to establish an injury as defined 

by FECA. 

OWCP’s procedures provide that, if the actual benefits claimed by the claimant cannot be 

determined from review of the form, OWCP should develop the claim based upon the claim form 

filed and direct questions to the claimant to determine the type of benefits claimed.11 Based upon 

the response to the development letter, OWCP should then make a determination as to whether the 

correct claim was established and, if not, OWCP should convert the claim to the proper type of 

claim and notify the claimant and the employing agency (any representative, if applicable) of the 

conversion.12 In this case, it failed to follow its proper procedures when it determined that it was 

unclear if the “ alleged injury occurred over a period longer than one workday or shift or on the 

date of injury.” While OWCP issued a July 19, 2019 development letter, it did not seek

clarification from appellant regarding whether he was claiming a traumatic injury or an 

occupational disease. For this reason, the Board finds that the case must be remanded for further 

development of the factual evidence regarding whether he has alleged a traumatic injury or an 

occupational disease in the performance of duty.

13

 It is well established that, proceedings under 

FECA are not adversarial in nature and while the claimant has the responsibility to establish 

entitlement to compensation, OWCP shares responsibility in the development of the evidence, 

particularly when such evidence is of the character normally obtained from the employing 

establishment.14 OWCP has an obligation to see that justice is done.15 

On remand, OWCP should obtain a detailed statement from appellant indicating whether 

his symptoms developed over a period longer than one workday or shift or on the specific July 18, 

2009 date of injury only. Based upon appellant’s response, OWCP should then make a 

determination as to whether he filed the correct claim and, if not, it should convert the claim to the 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.3c(2)(b). 

(June 2011)

12 Id. 

13 See G.H., Docket No. 19-1141 (issued January 2, 2020).

14 D.O., Docket No. 20-0006 (issued September 9, 2020); R.A., Docket No. 17-1030 (issued April 16, 2018); 

Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

15 S.S., Docket No. 18-0397 (issued January 15, 2019); Donald R. Gervasi, 57 ECAB 281, 286 (2005); WilliamJ.

Cantrell, 34 ECAB 1233, 1237 (1983).
6

proper type of claim. After this, and other such further development as deemed necessary, 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 September 13, 2021 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: March 7, 2023

Washington, DC

Alec J. Koromilas, 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