United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.K., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VA MEDICAL CENTER, St. Louis, MO, 

Employer

__________________________________________

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Docket No. 21-0147

Issued: January 21, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER 

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On November 10, 2020 appellant, through counsel, filed a timely appeal from a May 28, 

2020 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.3

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.

3 The Board notes that,followingthe issuanceof the May28, 2020 decision, OWCP received additional evidence. 

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

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 June 9, 2017 appellant, then a 50-year-old registered nurse, filed an occupational 

disease claim (Form CA-2) alleging that she developed left shoulder acromioclavicular (AC) 

arthritis, biceps tendinitis, impingement syndrome, rotator cuff tear, and adhesive capsulitis from 

years of repetitive strain due to factors of her federal employment, including years of manual 

patient handling. She noted that she first became aware of her condition on July 15, 2016 and 

realized that it was causally related to her federal employment on July 22, 2016. Appellantstopped 

work on November 22, 2016 and returned to work on January 23, 2017. 

On July 22, 2016 appellant was treated by Dr. Sophia Rostovtseva, a Board-certified

family practitioner, for a one-week history of left shoulder pain. She reported performing

repetitive lifting at work. Dr. Rostovtseva noted tenderness of the left shoulder and bicipital 

groove and decreased range of motion. She diagnosed bicipital tendinitis of the left shoulder. 

In a report dated September 14, 2016, Dr. Brett Grebing, a Board-certified orthopedist, saw

appellant in consultation for left shoulder pain. Examination revealed left shoulder crepitus, 

tenderness over the acromion, positive Hawkins test, positive cross body test, muscle weakness 

and restricted range of motion. X-rays of the left shoulder revealed a well-aligned joint, minimal 

degenerative changes, and calcification of the superior portion of the joint consistent with labral 

pathology. Dr. Grebing diagnosed acute pain of the left shoulder and acute bursitis of the left 

shoulder.

On October 7, 2016 Dr. Paul Scherer, a Board-certified orthopedist, examined appellant 

for left shoulder pain that began spontaneously in July 2016. Appellant reported working as an 

emergency room nurse at the employing establishment and explained that her job required very 

heavy lifting including lifting patients. Physical examination revealed limited range of motion of 

the left shoulder, give away weakness with abduction, and tenderness at the supraspinatus tendon 

insertion. X-rays of the left shoulder revealed no definite abnormalities. Dr. Scherer diagnosed 

adhesive capsulitis and performed a cortisone injection under fluoroscopic guidance.

Appellant was evaluated by Dr. Aaron P. Omotola, a Board-certified orthopedist, on 

October 14 and 28, 2016, for left shoulder pain. Dr. Omotola noted findings on examination of 

left AC joint ecchymosis, abnormal palpation, crepitus, and decreased strength. He diagnosed 

rotator cuff insufficiency of the left shoulder, AC joint arthritis, and biceps tendinitis of the left 

shoulder, and complete tear of the left rotator cuff. In other notes also dated October 14 and 28, 

2016, Dr. Omotola described appellant’s complaints of left shoulder pain beginning in July 2016. 

Appellant underwent a magnetic resonance imaging (MRI) scan, which revealed a small partial 

tear of her rotator cuff, AC joint arthritis, and biceps tendinitis. Dr. Omotola recommended 

arthroscopic left rotator cuff repair. He treated appellant in follow up on November 2, 2016 for 

AC arthritis, rotator cuff insufficiency, and biceps tendinitis, discussing the risks and benefits of 

the left shoulder arthroscopy. On November 22, 2016 Dr. Omotola performed a left shoulder 

arthroscopic biceps tenodesis, subacromial decompression, distal clavicle excision, and 
3

debridement of the rotator cuff partial tear. He diagnosed left shoulder AC arthritis, biceps 

tendinitis, impingement syndrome, and partial rotator cuff tear.

An MRI scan of the left shoulder dated October 20, 2016 revealed moderate AC joint 

osteoarthritis with mild impingement upon the supraspinatus muscle, intermediate signal intensity 

in the distal anterior aspect of the supraspinatus tendon suggestive of tendinopathy/tendinitis 

without a clearly defined rotator cuff tear seen, and mild joint effusion.

Appellant was treated by Donald W. LeMoine, II, a physician assistant, from December 6, 

2016 through March 30, 2017, who indicated that she was status post left shoulder arthroscopy. 

Mr. LeMoine noted that Dr. Omotola performed a left shoulder biceps tenodesis, subacromial 

decompression, distal clavicle excision, and debridement of a partial rotator cuff on 

November 22, 2016. He diagnosed adhesive capsulitis of the left shoulder and status post left 

shoulder scope and advised that appellant was attending physical therapy treatment. Mr. LeMoine

reported that appellant returned to limited duty in January 2017 and regular duty on April 2, 2017. 

In a development letter dated July 7, 2017, OWCP informed appellant that the evidence 

submitted was insufficient to establish her claim. It advised her of the type of factual and medical 

evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30 

days to respond.

In response to OWCP’s questionnaire, appellant provided a description of her work duties, 

which included lifting up to 50 pounds, sitting, standing, walking, climbing, kneeling, bending/

stooping, twisting, pushing/pulling, simple grasping, fine manipulation, reaching above the 

shoulder, and operating machinery. She reported caring for bedridden, terminally ill, paraplegic,

and quadriplegic patients that require turning and repositioning every two hours. Appellant 

indicated that psychiatric patients required constant observation for suicidal or homicidal ideation, 

geriatric patients with dementia and cognitive impairment also required constant monitoring to 

keep them safe. She performed these activities each shift, typically working six 12-hour shifts and 

one 8-hour shifts in a two-week period. Appellant provided a job description for an emergency 

department registered nurse.

By decision dated August 24, 2017, OWCP denied appellant’s claim finding that the 

medical evidence of record was insufficient to establish causal relationship between her left 

shoulder condition and the accepted factors of her federal employment.

In a progress note dated November 30, 2017, Dr. Omotola indicated that appellant 

presented status post left shoulder arthroscopy on November 22, 2016. He opined that appellant 

developed adhesive capsulitis of the left shoulder postoperatively and was receiving aggressive 

physical therapy three times a week. Findings on examination of the left shoulder revealed a

surgical scar/wound healed without infection, abnormal scapulothoracic motion, reduced range of 

motion, normal stability, and normal sensation. Dr. Omotola diagnosed adhesive capsulitis of the 

left shoulder and status post subacromial decompression. He recommended a home exercise 

program, Dyna splint, and activities as tolerated. In a December 1, 2017 report, Dr. Omotola noted

that appellant was much improved from her preoperative status. X-rays of the left shoulder 

revealed no fracture or subluxation dislocation and appeared to be an appropriate postoperative 

radiograph for distal clavicle excision and subacromial decompression. Dr. Omotola diagnosed 

chronic left shoulder pain.
4

OWCP continued to receive additional evidence. Appellant submitted a January 24, 2018 

statement from C.J., a registered nurse, who reported working with appellant while he was a 

student nurse in the emergency room from January 2007 through May 2007. During his tenure,

C.J. recalled appellant lifting a 200-pound patient from the back seat of a car who was 

unresponsive. Also submitted was a statement from E.F., an osteopath, who was appellant’s 

supervising medical service director at the employing establishment and who noted that the dayto-day repetitive stressors and strains of almost a dozen years working as a nurse in the emergency 

department, handling and lifting heavy, ill, and injured patients, could easily be responsible for 

chronic debilitating rupture of her rotator cuff tendon.4

On July 19, 2018 appellant requested reconsideration.

By decision dated March 6, 2019, OWCP denied modification of the August 24, 2017

decision.

On December 2, 2019 appellant was evaluated by Dr. Arthur C. Sippo, a Board-certified 

physiatrist, who provided a history of injury. Dr. Sippo indicated that she was over three years out 

from the original injury in 2016 and opined to a reasonable degree of medical certainty that she 

reached maximum medical improvement (MMI). In summary, he advised that appellant suffered 

an acute rotator cuff tear in her left shoulder while applying compression hose to a patient as part 

of her nursing duties. Dr. Sippo opined that she sustained a work-related injury.

On December 9, 2019 appellant requested reconsideration.

By decision dated December 12, 2019, OWCP denied modification of the March 6, 2019 

decision.

Appellant submitted a March 2, 2020 report from Dr. Sippo who had examined her and 

responded to the denial of her claim. Dr. Sippo asserted that she sustained a left rotator cuff tear 

and biceps tendinitis on October 16, 2016, while she was fitting compression hose onto a swollen 

leg of a patient. He indicated that this injury required surgery and led to continuing pain and 

disability. Dr. Sippo explained that the human shoulder consisted of muscles and supporting 

structures that operate the movements of the joint and are small with marginal blood supply. He

indicated that the shoulder is prone to overuse injuries leading to inflammation in the soft tissues 

and cumulative trauma to the joint structures stemming from excessive demands. Dr. Sippo noted

that the muscles that control the rotation in the shoulder maintain a proper biomechanical 

relationship between the elements of that joint under stress. He indicated that repetitive lifting, 

pushing, and pulling of the shoulder lead to severe stress in the muscular, bony, ligamentous, and 

cartilaginous structures in the shoulder joint and was responsible for damage to the anatomic 

structures therein. Dr. Sippo noted that this repetitive trauma took a great toll on appellant’s body 

and was responsible for the osteoarthritis in her left shoulder. He further opined that the trauma 

led to soft tissue strains in her shoulders that caused chronic inflammation in her rotator cuff that 

made those muscles friable and susceptible to injury such as the injury that occurred on 

October 16, 2016. Dr. Sippo advised that appellant’s work activities resulted in repetitive chronic 

and acute injuries to her left rotator cuff, which led to the documented tear. He opined that her

4 Also submitted were several patient communications which documented appellant’s telephone calls to her health 

care providers from October 17, 2016 through January 31, 2017. 
5

shoulder had been painful on and off for a couple of years prior to the incident, which represented 

wear and tear on the shoulder leading to both osteoarthritis and chronic inflammation which 

predisposed her to the aforementioned injury. 

On March 4, 2020 appellant requested reconsideration.

By decision dated May 28, 2020, OWCP denied modification of the December 12, 2019

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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 timely filed within the applicable 

time limitation period of FECA,

6

that 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.7 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is based upon a traumatic injury or an occupational disease.8

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 employment factors. 9

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.

10

 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 the specific employment factors identified by the claimant. 11 Neither the mere fact 

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

5

Supra note 2.

6 E.W., Docket No. 19-1393 (issued January 29, 2020); J.P., 59 ECAB 178 (2007); JoeD. Cameron, 41 ECAB

153 (1989).

7 L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

8

20 C.F.R. § 10.115; E.S., Docket No. 18-1580 (issued January 23, 2020); L.M., Docket No. 13-1402 (issued 

February7, 2014); DeloresC. Ellyett, 41 ECAB 992 (1990).

9

See T.L., Docket No. 18-0778 (issued January 22, 2020); RoyL. Humphrey, 57 ECAB 238, 241 (2005);Victor J. 

Woodhams, 41 ECAB 345, 352 (1989).

10 J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11 A.M., Docket No. 18-0562 (issued January 23, 2020); LeslieC. Moore, 52 ECAB 132 (2000).
6

disease or condition was caused or aggravated by employment factors or incidents, is sufficient to 

establish causal relationship.12

ANALYSIS

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

In a report dated March 2, 2020, Dr. Sippo advised that appellant’s work activities resulted 

in repetitive chronic and acute injuries to her left rotator cuff, which led to the documented tear. 

He reported working with herin the emergency room and described patients who were intoxicated, 

combative, and who required restraint and she was responsible for moving, controlling, lifting, 

pulling, and pushing these patients every shift. Dr. Sippo indicated that repetitive lifting, pushing, 

and pulling of the shoulder led to severe stress in the muscular, bony, ligamentous, and 

cartilaginous structures in appellant’s shoulder joint and was responsible for damage to the 

anatomic structures. He explained that the human shoulder consisted of muscles and supporting 

structures that operate the movements of the joint and are small with marginal blood supply. 

Dr. Sippo indicated that the shoulder is prone to overuse injuries leading to inflammation in the 

soft tissues and cumulative trauma to the joint structures stemming from excessive demands. He 

further opined the trauma led to soft tissue strains in appellant’s shoulders that caused chronic 

inflammation in her rotator cuff that made those muscles friable and susceptible to injury such as 

the injury that occurred on October 16, 2016. Dr. Sippo provided a proper factual and medical 

history of injury and directly opined that her repetitive job duties were the competent producing 

cause of her diagnosed left shoulder rotator cuff tear and left shoulder osteoarthritis.

The Board finds that the March 2, 2020 report of Dr. Sippo is sufficient to require further 

development of the medical evidence in this claim to see that justice is done.

13

 The physician is a 

Board-certified physiatrist and is qualified in his field of medicine to render rationalized opinions 

on the issue of causal relationship. Dr. Sippo provided a pathophysiological explanation as to how 

the mechanism of the accepted employment incident was sufficient to have caused her diagnosed 

conditions and his opinion is uncontroverted. The Board has long held that it is unnecessary that 

the evidence of record in a case be so conclusive as to suggest causal connection beyond all 

reasonable doubt. Rather, the evidence required need only convince the adjudicator that the 

conclusion drawn is rationale, sound, and logical.14

It is well established that proceedings under FECA are not adversarial in nature and, while 

appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.15 OWCP has an obligation to see that justice is 

done.16

12 E.W., supra note 6; Gary L. Fowler, 45 ECAB 365 (1994).

13 J.H., Docket No. 18-1637 (issued January 29, 2020); X.V., Docket No. 18-1360 (issued April12, 2019).

14 C.C., Docket No. 18-1453 (issued January 28, 2020).

15 K.P., Docket 18-0056 (issued January 27, 2020);see also A.P.,Docket No. 17-0813 (issued January 3, 2018).

16 See B.C., Docket No. 15-1853 (issued January19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);

John J. Carlone, 41 ECAB 354 (1989).
7

The case shall therefore be remanded for OWCP to refer appellant to an appropriate 

specialist, along with the case record and a statement of accepted facts, for an examination and 

rationalized medical opinion as to whether the accepted employment injury either caused or 

aggravated her diagnosed left shoulder condition. If the second opinion physician opines that the

left shoulder condition is not causally related to the accepted employment factors, he or she must 

explain with rationale how or why their opinion differs from that of Dr. Sippo. After this and other 

such further development of the case record 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 May 28, 2020 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: January 21, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board