United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.L., Appellant

and

DEPARTMENT OF JUSTICE, U.S. MARSHALS

SERVICE, Corpus Christi, TX, Employer

__________________________________________

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Docket No. 21-0978

Issued: January 13, 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, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 14, 2021 appellant filed a timely appeal from a May 12, 2021 merit decision and

a June 9, 2021 nonmerit 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

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish a right 

shoulder condition causally related to the accepted January 30, 2021 employment incident; and 

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his 

claim pursuant to 5 U.S.C. § 8128(a). 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the June 9, 2021 decision, OWCP received additional evidence. 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 February 1, 2021 appellant, then a 47-year-old criminal investigator, filed a traumatic 

injury claim (Form CA-1) alleging that on January 30, 2021 he sustained a right shoulder injury 

when effectuating a fugitive arrest while in the performance of duty. He did not stop work.

In a February 5, 2021 development letter, OWCP informed appellant that it had received 

no evidence in support of his claim. It advised him of the type of factual and medical evidence 

necessary and provided a questionnaire for completion. OWCP afforded appellant 30 days to 

respond. No response was received within the time allotted.

By decision dated March 15, 2021, OWCP accepted that the January 30, 2021 employment 

incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that 

he had not submitted any medical evidence containing a medical diagnosis in connection with the 

accepted employment incident. Consequently, OWCP found that appellant had not met the 

requirements to establish an injury as defined by FECA. 

OWCP thereafter received a March 18, 2021 medical report of Dr. Brian L. Patterson, a 

Board-certified orthopedic surgeon, who noted that appellant related a history of hearing a pop and 

ensuing pain in his right shoulder while making an arrest on January 30, 2021. Dr. Patterson

performed a physical examination of the right shoulder and documented pain with active forward 

flexion and a grossly positive O’Brien’s maneuver with tenderness over the anterior joint. He

diagnosed pain, impingement, and bursitis in the right shoulder, and opined that appellant 

sustained an injury to the shoulder joint while lifting a prisoner. Dr. Patterson recommended 

magnetic resonance imaging (MRI) scans of the right shoulder to evaluate a possible labral tear. 

In an April 8, 2021 follow-up note, Dr. Patterson indicated that appellant described

subluxation of the right shoulder while lifting a prisoner on January 30, 2021. He reviewed an 

MRI scan with contrast completed on March 26, 2021 and found that it revealed a near 

circumferential tear of the labrum with an associated labral cyst. Dr. Patterson diagnosed pain, 

impingement, bursitis, and a sprain in the right shoulder and recommended that appellant consult 

with Dr. Jeffrey R. Schlimmer, a Board-certified orthopedic surgeon, for a possible arthroscopic 

labral repair.

On April 21, 2021 appellant requested reconsideration of the March 15, 2021 decision.

By decision dated May 12, 2021, OWCP modified the March 15, 2021 decisionto find that 

the medical evidence of record was sufficient to establish diagnoses of right shoulder 

impingement, sprain, and bursitis. However, the claim remained denied because the medical 

evidence of record was insufficient to establish causal relationship between appellant’s diagnosed 

conditions and the accepted January 30, 2021 employment incident.

On May 21, 2021 appellant requested reconsideration of the May 12, 2021 decision. In an 

attached statement of even date, he outlined Dr. Patterson’s diagnoses and opinion that the injuries 

occurred during the performance of his duties.

By decision dated June 9, 2021, OWCP denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a).
3

LEGAL PRECEDENT -- ISSUE 1

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 determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it firstmust be determined whether fact of injury has been established. There 

are two components involved in establishing fact of injury. The first component is that the 

employee must submit sufficient evidence to establish that he or she actually experienced the 

employment incident at the time and place, and in the manner alleged. The second component is 

whether the employment incident caused a personal injury and can be established only by medical 

evidence.7 

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

condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of 

the physician must be based on a complete factual and medical background of the employee, 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 employee.9

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish a right shoulder

condition causally related to the accepted January 30, 2021 employment incident.

In his March 18, 2021 report, Dr. Patterson noted appellant’s history of injuring his right 

shoulder while making an arrest. In his April 8, 2021 follow-up note, he noted a history of pain 

3

Supra note 1.

4 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); JoeD. 

Cameron, 41 ECAB 153 (1989). 

5 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E.Chadden, Sr., 40 ECAB 312 (1988).

6 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

DeloresC.Ellyett, 41 ECAB 992 (1990).

7 T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J. 

Carlone, 41 ECAB 354 (1989).

8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April24, 2019); RobertG. 

Morris, 48 ECAB 238 (1996).

9 T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); 

Victor J. Woodhams, 41 ECAB 345, 352 (1989).
4

and a pop with subluxation of the right shoulder while lifting a prisoner. Dr. Patterson diagnosed 

pain, impingement, bursitis and a sprain of the right shoulder, but did not explain a 

pathophysiological process of how any of appellant’s work duties contributed to his right shoulder 

conditions.

10

 The Board has held that a medical opinion that does not offer a medically sound and 

rationalized explanation by the physician of how the specific employment incident physiologically 

caused or aggravated the diagnosed conditions is of limited probative value. 11 Therefore,

Dr. Patterson’s reports are insufficient to establish appellant’s claim.

As appellant has not submitted rationalized medical evidence to establish a right shoulder 

condition causally related to the accepted January 30, 2021 employment incident, 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.

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.12

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or argument which: (1) shows that OWCP erroneously applied or interpreted a 

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; 

or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 13

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.14 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.15 If the request is timely, but fails to meet at least one of the 

10 J.D., Docket No. 19-1953 (issued January 11, 2021); J.C., Docket No. 18-1474 (issued March 20, 2019); M.M., 

Docket No. 15-0607 (issued May15, 2015); M.W., Docket No. 14-1664 (issued December 5, 2014).

11 J.B., Docket No. 21-0011 (issued April20, 2021); A.M., Docket No. 19-1394 (issued February 23, 2021).

12 5 U.S.C. § 8128(a); see T.S., Docket No. 20-0968 (issued August17, 2021); T.K., Docket No. 19-1700 (issued 

April 30, 2020); L.D., Docket No. 18-1468 (issued February 11, 2019); W.C., 59 ECAB 372 (2008).

13 20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517 

(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).

14 20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested 

decision. Federal (FECA) Procedure Manual, Part 2 --Claims, Reconsiderations, Chapter 2.1602.4 (February 2020). 

Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received 

date in the Integrated Federal Employees’Compensation System (iFECS). Id. at Chapter 2.1602.4b.

15 Id. at § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).
5

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.16

The Board has held that the submission of evidence or argument, which does not address 

the particular issue involved, does not constitute a basis for reopening a case.17

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

Appellant’s request for reconsideration neither alleged nor demonstrated that OWCP 

erroneously applied or interpreted a specific point of law. Additionally, the Board finds that it did 

not advance a relevant legal argument not previously considered by OWCP. Consequently, 

appellant is not entitled to further review of the merits of his claim based on either the first or 

second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

In support of his reconsideration request, appellant submitted a statement detailing

Dr. Patterson’s March 18 and April 8, 2021 medical reports. This evidence is irrelevant to the

underlying issue of whether appellant’s right shoulder conditions were causally related to his 

accepted employment injury. Causal relationship is a medical issue, and the medical evidence 

required to establish causal relationship is rationalized medical evidence.18 As noted above, the 

Board has held that the submission of evidence or argument which does not address the particular 

issue involved does not constitute a basis for reopening a case.19 As appellant failed to provide 

relevant and pertinent new evidence, he is not entitled to a merit review based on the third 

requirement under 20 C.F.R. § 10.606(b)(3).

The Board, accordingly, finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish a right shoulder

condition causally related to the accepted January 30, 2021 employment incident. The Board 

further finds that OWCP properly denied appellant’s request for reconsideration of the merits of 

his claim pursuant to 5 U.S.C. § 8128(a).

16 20 C.F.R. § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

17 T.S., supra note 12; A.W., Docket No. 21-0298 (issued August26, 2021); M.K., Docket No. 18-1623 (issued 

April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

18 Supra note 8.

19 A.J., Docket No. 20-0926 (issued January 26, 2021); JimmyO. Gilmore, 37 ECAB 257 (1985); Edward Matthew 

Diekemper, supra note 17.
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ORDER

IT IS HEREBY ORDERED THAT the May 12 and June 9, 2021 decisions of the Office 

of Workers’ Compensation Programs are affirmed.

Issued: January 13, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board