United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Indianapolis, IN, Employer

__________________________________________

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Docket No. 22-0545

Issued: March 22, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 1, 2022 appellant filed a timely appeal from an October 15, 2021 merit decision 

and a January 14, 2022 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. 

ISSUES

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

condition causally related to the accepted factors of her federal employment; and (2) whether 

OWCP properly denied appellant’s request for reconsideration of the merits of her claim, pursuant 

to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On February 12, 2021 appellant, then a 59-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on January 24, 2021 she injured her right rotator cuff when

shifting levers on a forklift while in the performance of duty. There is no indication that she 

stopped work. The employing establishment acknowledged that appellant was in the performance 

of duty at the time of the alleged injury. However, it controverted the claim as she did not report 

the injury prior to February 8, 2021.

In a February 9, 2021 statement, appellant indicated that her arm began to hurt two weeks 

prior while driving the forklift. It worsened to the point she had limited range of motion and she 

could not sleep. On February 2, 2021 appellant’s doctor indicated that she had a rotator cuff injury. 

In a development letter dated February 18, 2021, OWCP informed appellant of the 

deficiencies of her claim. It advised her of the type of factual and medical evidence necessary. 

OWCP afforded appellant 30 days to respond.

In a February 2, 2021 note, Dr. Brock Vanderbush, a Board-certified family practitioner 

and sports medicine specialist, excused appellant from work from February 1 through 7, 2021 for 

a right shoulder rotator cuff injury. In a February 3, 2021 note, he indicated that her x-rays showed 

early arthritis of the rightshoulder joint with some bone spurring at the rotator cuff tendons which 

was likely contributing to rotator cuff irritation. 

In a February 26, 2021 attending physician’s report (Form CA-20), Dr. Vanderbush

reported a date of injury of January 24, 2021 with two months of gradual onset of right shoulder 

pain without specific trauma or injury. He diagnosed osteoarthritis and rotator cuff tendinopathy 

which he opined were not caused or aggravated by employment activity. Dr. Vanderbush related

that appellant’s symptoms were present prior to the stated injury of January 24, 2021. He

explained that arthritis was a chronic condition, and there was no mention of an injury at either the 

February 1, 2021 visit to her primary care provider or his initial evaluation of February 2, 2021. 

Dr. Vanderbush opined that appellant could resume light work as of February 2, 2021.

By decision dated March 26, 2021, OWCP denied appellant’s traumatic injury claim, 

finding that the employment incident was not established, as alleged. It also noted that it was 

unclear whether the claimed injury was traumatic in nature or an occupational disease. OWCP 

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

FECA. 

On April 19, 2021 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearing and Review. She explained that her primary care physician, whom she saw on 

December 29, 2020 for another issue, gave her two exercises for her right shoulder pain. Appellant 

continued to drive the forklift with her shoulder hurting slightly. On January 24, 2021 her shoulder 

started to hurt from the repetition of shifting the forklift gears and worsened into limited right arm 

range of motion and inability to use her right hand. When she saw her physician again on 

February 1, 2021, appellant was referred to Dr. Vanderbush, who saw her the next day. She

attributed her shoulder condition to shifting the forklift gears. 
3

Evidence received included copies of February 2, 2021 right shoulder x-rays, which 

demonstrated degenerative changes and undersurface spurring. OWCP also received

Dr. Vanderbush’s initial report of February 2, 2021, which noted that appellant’s shoulder pain 

had been ongoing for the last two months without any specific trauma or inciting event and with 

no previous right shoulder injuries or procedures. Dr. Vanderbush provided an assessment of right 

shoulder pain and tendinopathy of rotator cuff.

In a February 25, 2021 report, Dr. Vanderbush diagnosed right shoulder pain, rotator cuff 

injury and arthritis of right shoulder region and ordered a magnetic resonance imaging (MRI) scan. 

He opined that appellant’s shoulder condition was not consistent with a definitive workers’

compensation injury. Dr. Vanderbush explained that she had complained of similar right shoulder 

pain one month prior to her primary care provider and had denied any specific trauma or injury to 

both he and the primary care provider. 

A telephonic hearing was held before an OWCP hearing representative on August 4, 2021. 

Subsequently, appellant submitted additional evidence.

In a September 2, 2021 report, Dr. Vanderbush diagnosed right shoulder pain, tendinopathy 

of right rotator cuff and arthritis of right shoulder region. He discussed the importance of appellant 

obtaining the MRI scan. Dr. Vanderbush also advised that herlack of specific injury at work made 

an acute workplace injury unlikely, as previously discussed. He opined, however, that given the 

nature of appellant’s job, where she must frequently lift, carry, and reach overhead, it was more 

likely than not that her job had contributed to her symptoms in some capacity. 

On September 17, 2021 appellant underwent a right shoulder MRI, which revealed a tear 

of the supraspinatus tendon from the posterior and anterior surface, additional tendinopathy, 

moderate acromioclavicular degenerative joint disease and potential adhesive capsulitis. In a 

September 21, 2021 report, Dr. Vanderbush noted the MRI scan showed several things, including 

tears of two of the rotator cuff tendons, evidence of chronic irritation of additional rotator cuff 

tendons and biceps tendon and evidence of bursitis around some of the rotator cuff tendons. He 

opined that those findings were all evidence of chronic irritation that typically comes from 

repetitive lifting, carrying and overhead reaching, which likely occurred because of her job. 

Dr. Vanderbush also opined that the adhesive capsulitis or frozen shoulder was likely the result of 

the underlying inflammation. 

By decision dated October 15, 2021, an OWCP hearing representative modified the 

March 26, 2021 decision to convert appellant’s claim to an occupational disease, but affirmed the 

denial on the basis that causal relationship was not established. 

On January 11, 2022 appellant requested reconsideration and submitted additional 

evidence. This included her December 30, 2021 completed questionnaire and witness statements

attesting to the fact that she operates a forklift. 

In an October 20, 2021 note, Dr. Casimir R. Starslack, an osteopath Board-certified in 

orthopedic surgery, indicated that appellant could return to work. 

By decision dated January 14, 2022, OWCP denied appellant’s request for reconsideration 

of the merits of her claim, pursuant to 5 U.S.C. § 8128(a). 
4

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA2 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,3that 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.4 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.5

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.6

The medical evidence required to establish causal relationship is rationalized medical 

opinion evidence.7 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 

the accepted employment factors.

8

In any case where a preexisting condition involving the same part of the body is present 

and the issue of causal relationship, therefore, involves aggravation, acceleration or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.9

2

Id.

3 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).

4 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).

5 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).

6

S.C.,Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

7

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).

8 A.C., Docket No. 21-1307 (issued March 22, 2022); A.S., Docket No. 19-1955 (issued April9, 2020); Leslie C. 

Moore, 52 ECAB 132 (2000).

9 Federal (FECA) Procedure Manual, Part 2 --Claims,Causal Relationship, Chapter 2.805.3e (January 2013); M.B., 

Docket No. 20-1275 (issued January 29, 2021);see R.D., Docket No. 18-1551 (issued March 1, 2019).
5

ANALYSIS -- ISSUE 1

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

condition causally related to the accepted factors of her federal employment.

Appellant filed a claim for a traumatic injury (Form CA-1), but described in her statements 

and hearing testimony factors of employment consistent with an occupational disease. She alleged 

that her right shoulder condition was due to shifting gears on the forklift over a period of time. In 

her hearing testimony appellant indicated that she had been driving a forklift for about a year and 

had previously driven a tug, which included hooking up, pulling, and taking off containers. 

In his February 2, 2021 reports, Dr. Vanderbush diagnosed right shoulder rotator cuff 

injury and right shoulder tendinopathy. He explained, in a February 3, 2021 note, that appellant’s 

x-rays showed early arthritis of the shoulder joint with some bone spurring at the rotator cuff 

tendons, which was likely contributing to rotator cuff irritation. Dr. Vanderbush, however, did not 

provide an opinion as to the cause of her condition. The Board has held that medical evidence that 

does not offer an opinion regarding the cause of an employee’s condition is of no probative value 

on the issue of causal relationship.10 These reports are, therefore, insufficient to meet appellant’s 

burden of proof.

In his February 25 and 26, 2021 reports, Dr. Vanderbush diagnosed right shoulder pain, 

tendinopathy of rotator cuff, rotator cuff injury, and arthritis of right shoulder region. However, 

he negated causal relationship by indicating that appellant’s right shoulder conditions were not 

consistent with a definitive workers’ compensation injury. This was based on the fact that 

appellant had complained of similar right shoulder pain one month prior to her primary care 

provider and she denied any specific trauma or injury to both the primary care provider and himself

in February. 

In a September 2, 2021 report, Dr. Vanderbush diagnosed right shoulder pain, 

tendinopathy of right rotator cuff and arthritis of right shoulder region. He opined that given the 

nature of appellant’s job where she had to frequently lift and carry, as well as reach overhead, it 

was more likely than not that her job has contributed to her symptoms in some capacity. In his 

September 21, 2021 report, Dr. Vanderbush indicated that the MRI scan findings of tears and 

chronic irritation of the rotator cuff tendons and bicep tendon typically come from repetitive lifting, 

carrying and overhead reaching which likely occurred as a result of her job. The Board has held 

that medical opinions that suggest that a condition was “likely” or “possibly” caused by work 

activities are speculative or equivocal in nature and have limited probative value.11 For these 

reasons, Dr. Vanderbush’s September 2 and 21, 2021 reports are of limited probative value and 

insufficient to meet appellant’s burden of proof.

Appellant also submitted diagnostic studies, in the form of x-rays and an MRI scan report.

The Board has held that diagnostic studies, standing alone, lack probative value on the issue of 

10 See B.S.,Docket No. 20-0895 (issued June 15, 2021); see D.C., Docket No. 19-1093 (issued June 25, 2020); see 

L.B., Docket No. 18-0533 (issued August27, 2018); D.K.,Docket No. 17-1549 (issued July 6, 2018).

11 J.R., Docket No. 20-0903 (issued April22, 2021); J.W., Docket No. 18-0678 (issued March 3, 2020).
6

causal relationship, as they do not provide an opinion as to whether the employment incident 

caused any of the diagnosed conditions.12 Accordingly, these diagnostic studies are insufficient to 

establish appellant’s claim.

As there is no rationalized medical evidence of record explaining how appellant’s accepted 

factors of her employment caused or aggravated her right shoulder condition, the Board finds that 

she has not met her 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 payment of compensation at any time on his own motion or on application.13

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

provide evidence or an 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.14

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

of OWCP’s decision for which review is sought.15 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or provided an argument 

that meets at least one of the requirements for reconsideration. If OWCP chooses to grant 

reconsideration, it reopens and reviews the case on its merits.16 If the request is timely, but fails 

12 See K.C., Docket No. 20-1325 (issued May 5, 2021); C.B.,Docket No. 20-0464 (issued July 21, 2020).

13 5 U.S.C. § 8128(a); see D.G., Docket No. 20-1203 (issued April28, 2021); T.K., Docket No. 19-1700 (issued 

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

14 20 C.F.R. § 10.606(b)(3); see D.G., id.; L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); 

C.N.,Docket No. 08-1569 (issued December 9, 2008).

15 Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP 

within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 --Claims, 

Reconsiderations, Chapter 2.1602.4 (September 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). Chapter 2.1602.4b.

16 Id. at § 10.608(a); D.C., supranote 10; F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 

231 (2007).
7

to meet at least one of the requirements for reconsideration, OWCP will deny the request for 

reconsideration without reopening the case for review on the merits. 17

ANALYSIS -- ISSUE 2

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

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

Appellant’s timely January 3, 2022 request for reconsideration did not demonstrate that 

OWCP erroneously applied or interpreted a specific point of law. Moreover, she has not advanced 

a relevant legal argument not previously considered. Consequently, appellant is not entitled to a 

review of the merits of her claim based on the first and second above-noted requirements under 

20 C.F.R. § 10.606(b)(3).18

Furthermore, appellant has not provided relevant and pertinent new evidence in support of 

her request for reconsideration. On reconsideration she submitted her response to OWCP’s 

questionnaire, witness statements, and a return to work note from Dr. Starslack. However, the 

underlying issue on reconsideration was whether appellant had met her burden of proof to establish 

that her medical condition was causally related to the accepted employment factors. This is a 

medical issue that requires rationalized medical opinion evidence to resolve the issue.19 This 

evidence, including Dr. Starslack’s report, however, does not address whether appellant’s 

diagnosed condition was causally related to the accepted employment factors and, therefore, are 

insufficient to warrant a merit review. The Board has held that the submission of evidence that 

does not address the particular issue involved does not constitute a basis for reopening a case. 20 

As appellant did not provide relevant and pertinent new evidence related to the underlying issue 

of causal relationship, she is not entitled to a merit review based on the third requirement under 20 

C.F.R. § 10.606(b)(3).

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific 

point of law, advance a relevant legal argument not previously considered by OWCP, or submit 

relevant and pertinent new evidence not previously considered by OWCP. Pursuant to 20 C.F.R. 

§ 10.608(b), OWCP properly denied review of the merits of the claim.

17 Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

18 See R.L., Docket No. 20-1403 (issued July 21, 2021); M.O., Docket No. 19-1677 (issued February 25, 2020); 

C.B.,Docket No. 18-1108 (issued January 22, 2019).

19 F.L., Docket No. 20-1288 (issued July 13, 2021); D.P., Docket No. 20-1225 (issued January 8, 2021); R.S.,

Docket No. 19-0312 (issued June 18, 2019); T.B.,Docket No. 18-1214 (issued January 29, 2019).

20 D.C., Docket No. 21-0947 (issued February 6, 2023); L.W., Docket No. 21-0942 (issued May 11, 2022); Edward 

Matthew Diekemper, 31 ECAB 224 (1979).
8

CONCLUSION

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

condition causally related to the accepted factors of her federal employment. The Board further 

finds that OWCP properly denied her request for reconsideration of the merits of her claim,

pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THATthe October 15, 2021 and January 14, 2022 decisions 

of the Office of Workers’ Compensation Programs are affirmed.

Issued: March 22, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board