United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.A., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Albany, NY, Employer

__________________________________________

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Docket No. 19-1752

Issued: March 25, 2020

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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 19, 2019 appellant, through counsel, filed a timely appeal from a May 14, 2019 

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 following the May 14, 2019 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 his burden of proof to establish disability from work 

for the period December 20, 2018 to February 12, 2019 causally related to his accepted 

December 20, 2018 employment injury. 

FACTUAL HISTORY

On February 12, 2019 appellant, then a 48-year-old supervisory transportation security 

officer (STSO), filed a traumatic injury claim (Form CA-1) alleging that on December 20, 2018 

he was lifting bags from a conveyor belt when he experienced a sharp pain and frozen right 

shoulder while in the performance of duty.4 It also controverted continuation of pay (COP).5 The 

employing establishment further noted that appellant stopped work on “December 31, 2018” and 

returned to work on February 12, 2019. On March 19, 2019 OWCP accepted appellant’s claim 

for adhesive capsulitis of the right shoulder.

In a February 11, 2019 work capacity evaluation (Form OWCP-5c), Dr. Lawrence Kusior, 

a Board-certified orthopedist, opined that appellant could not perform his usual job however, he 

was able to work in a sedentary capacity with lifting restricted to five pounds. He noted additional 

restrictions on reaching, reaching above the shoulder, climbing, pushing, and pulling. In a 

February 11, 2019 attending physician’s report (Form CA-20), Dr. Kusior diagnosed adhesive 

capsulitis of the right shoulder and checked a box marked “yes” indicating that the condition was 

caused or aggravated by an employment activity. He noted that the period of total disability was 

from January 1 to February 5, 2019 and partial disability from February 6 to 27, 2019. Dr. Kusior 

also noted that appellant was advised to resume work full time on February 6, 2019 with limitations 

of no lifting over five pounds and no pushing and pulling. 

On February 11, 2019 the employing establishment offered appellant a limited-duty 

position as a STSO effective the same day. Appellant was assigned administrative (clerical) duties 

full time from 8:00 a.m. to 4:30 p.m. with restrictions on reaching with the right arm and reaching 

over the shoulder with the right arm. On February 12, 2019 he accepted the position and returned 

to work.

OWCP received a January 9, 2019 report from Dr. Kusior who diagnosed adhesive 

capsulitis of the right shoulder. Findings on examination of the right shoulder revealed right 

shoulder pain and stiffness with limited range of motion. Dr. Kusior advised that appellant could 

not return to work and was temporarily totally disabled. In reports dated February 6 and 27, 2019, 

he treated appellant in follow up for adhesive capsulitis of the right shoulder. Appellant reported 

improvement in pain and motion after physical therapy. Findings on examination of the right 

shoulder revealed tenderness to palpation in the anterior aspect of the shoulder and positive 

impingement test. Dr. Kusior found appellant to be temporarily, partially disabled from work. He

 

4

In an undated statement, appellant indicated that the correct date of his injury was December 20, 2018 not 

December 21, 2018 as noted on the Form CA-1.

5 By decision dated March 19, 2019, OWCP denied appellant’s claim for COP during his absence from work for 

the period December 31, 2018 to February 11, 2019. It found that the injury was not reported on a form approved by 

OWCP within 30 days following the injury.
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returned appellant to light-duty work with restrictions of no lifting over five pounds, no pushing 

or pulling.

In an April 2, 2019 work capacity evaluation form (Form OWCP-5c), Dr. Kusior noted 

that appellant could not perform his usual job duties due to right shoulder pain and stiffness and 

was temporarily totally disabled. In an April 2, 2019 attending physician’s report (Form CA-20), 

he diagnosed adhesive capsulitis of the right shoulder and checked a box marked “yes” indicating 

that the condition was caused or aggravated by an employment activity. Dr. Kusior noted that the 

period of total disability was from January 1 to April 30, 2019. He noted that appellant was unable 

to perform any and all job duties. 

On April 9, 2019 appellant filed a claim for compensation (Form CA-7) and requested 

leave without pay (LWOP) for the period December 20, 2018 to February 12, 2019. The 

employing establishment indicated that appellant accepted a full-time limited-duty position and 

returned to work on February 12, 2019.

In an April 9, 2019 development letter, OWCP requested additional factual and medical 

evidence supporting the alleged period of total disability. It afforded appellant 30 days to respond.

OWCP received a March 27, 2019 report from Dr. Kusior who diagnosed adhesive 

capsulitis of the right shoulder and right shoulder pain as a result of a work injury on 

December 20, 2018. Appellant reported slight improvement in his pain. Dr. Kusior administered 

a cortisone injection, and recommended physical therapy. He opined that appellant remained 

temporarily partially disabled at 50 percent and provided a note indicating that appellant was to 

remain off work. In an April 30, 2019 work note, Dr. Kusior again diagnosed adhesive capsulitis 

of the right shoulder and held appellant off work from April 30 to June 11, 2019.6

In an April 30, 2019 report, Dr. Kusior noted that appellant remained symptomatic from 

his work-related adhesive capsulitis of the right shoulder. He reported persistent stiffness of the 

right shoulder with very limited range of motion. Dr. Kusior recommended a magnetic resonance 

imaging scan of the right shoulder. He advised that appellant was temporarily, totally disabled 

from work and could not perform any significant physical activity.

By decision dated May 14, 2019, OWCP denied appellant’s claim for compensation for the 

period December 20, 2018 to February 12, 2019. It found that there was no medical 

documentation establishing that he was disabled from work due to his accepted employment 

injury.

LEGAL PRECEDENT

An employee seeking benefits under FECA7 has the burden of proof to establish the 

essential elements of his or her claim by the preponderance of the evidence.8 Under FECA the 

 

6 On May 1, 2019 appellant filed a claim for compensation (Form CA-7) and for disability from March 27 to 

April 29, 2019. That period of disability is not presently before the Board.

7 5 U.S.C. § 8101 et seq.

8 M.C., Docket No. 18-0919 (issued October 18, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005); see also 

Nathaniel Milton, 37 ECAB 712 (1986).
4

term disability means incapacity, because of an employment injury, to earn the wages that the 

employee was receiving at the time of injury.9 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.10 Whether a particular injury caused an employee to be disabled from 

employment and the duration of that disability are medical issues which must be proven by the 

preponderance of the reliable, probative, and substantial medical evidence.11

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.12

ANALYSIS

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

work for the period December 20, 2018 to February 12, 2019 causally related to his accepted 

December 20, 2018 employment injury.

In support of his claim for wage-loss compensation, appellant submitted numerous reports 

from Dr. Kusior. In his initial report of January 9, 2019, Dr. Kusior diagnosed pain and adhesive 

capsulitis of the right shoulder. He advised that appellant could not return to work at that time and 

was temporarily totally disabled. The Board notes that while Dr. Kusior related that appellant was 

temporarily totally disabled, he did not relate appellant’s disability to his accepted condition of 

adhesive capsulitis of the right shoulder.13 Further, Dr. Kusior did not explain how appellant’s 

accepted adhesive capsulitis of the right shoulder caused disability during the period alleged. 

Medical evidence that does not offer an opinion regarding the cause of an employee’s condition 

or disability is of no probative value on the issue of causal relationship.14

The Board notes that Dr. Kusior saw appellant on February 6 and 27, 2019, in follow-up 

for adhesive capsulitis of the right shoulder and right shoulder pain. Dr. Kusior found appellant 

to be temporarily partially disabled at 50 percent and returned him to work full-time light duty 

with restrictions of no lifting over five pounds, and no pushing or pulling. The Board finds that 

these reports do not support work-related disability. Rather, Dr. Kusior returned appellant to work 

full time in a limited-duty capacity.

Dr. Kusior continued to treat appellant. His February 11 and April 2, 2019 work capacity 

evaluations and attending physician’s reports provided diagnoses of adhesive capsulitis of the right 

shoulder. Dr. Kusior indicated by checkmark on a form that this condition was caused or 

 

9 A.S., Docket No. 17-2010 (issued October 12, 2018); S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 

746 (2004); 20 C.F.R. § 10.5(f).

10 K.C., Docket No. 17-1612 (issued October 16, 2018); William A. Archer, 55 ECAB 674 (2004).

11 S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

12 J.B., Docket No. 19-0715 (issued September 12, 2019).

13 V.G., Docket No. 18-0936 (issued February 6, 2019).

14 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
5

aggravated by an employment activity. However, the checking of a box marked “yes” in a form 

report, without additional explanation or rationale, is not sufficient to establish causal 

relationship.15 These reports, therefore, are insufficient to establish appellant’s claim. 

OWCP received a March 27, 2019 report from Dr. Kusior who opined that appellant’s 

diagnoses of adhesive capsulitis of the right shoulder and right shoulder pain was a result of a work 

injury on December 20, 2018. Dr. Kusior administered a cortisone injection and again found that 

appellant remained temporarily partially disabled at 50 percent and provided a note for him to 

remain off work. In reports dated April 30, 2019, he noted that appellant remained symptomatic 

from his work-related adhesive capsulitis of the right shoulder. He advised that appellant was 

temporarily totally disabled from work for the period April 30 to June 11, 2019. The Board finds 

that these reports do not support work-related disability during the claimed period December 20, 

2018 to February 12, 2019. 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 employees to self-certify their 

disability and entitlement to compensation.16

As noted appellant must submit reasoned medical evidence directly addressing the specific 

dates of disability for work for which he claims compensation.17 He did not provide medical 

evidence containing a rationalized opinion establishing that he could not work from December 20, 

2018 to February 12, 2019 causally related to his December 20, 2018 employment injury, and thus 

appellant 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 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 December 20, 2018 to February 12, 2019 causally related to his accepted 

December 20, 2018 employment injury.

 

15 M.D., Docket No. 18-0195 (issued September 13, 2018).

16 See E.B., Docket No. 17-0875 (issued December 13, 2018); Fereidoon Kharabi, 52 ECAB 291 (2001).

17 See K.A., Docket No. 16-0592 (issued October 26, 2016).
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ORDER

IT IS HEREBY ORDERED THAT the May 14, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 25, 2020

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