United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.M., Appellant

and

U.S. POSTAL SERVICE, ASHVILLE POST 

OFFICE, Ashville, PA, Employer

__________________________________________

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Docket No. 23-0709

Issued: January 10, 2024

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, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 21, 2023 appellant, through counsel, filed a timely appeal from an April 13, 2023

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 April13, 2023 decision, appellant submitted additional evidence to OWCP.

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 November 29, 2019 employment incident.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

On March 16, 2020 appellant, then a 54-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on November 29, 2019 she sustained neck pain when unloading a heavy 

parcel while in the performance of duty.

In support of her request, appellant submitted medical evidence signed by various 

physician assistants.

In a development letter dated June 30, 2020, OWCP informed appellant of the deficiencies 

of her claim. It explained the type of factual and medical evidence needed and attached a 

questionnaire for her completion. OWCP afforded appellant 30 days to submit the requested 

evidence.

In a report dated June 10, 2020, Dr. Dawn Repko, a Board-certified family practitioner, 

related appellant’s history of lifting a heavy box at work on November 29, 2019. Her examination 

of the cervical spine demonstrated decreased range of motion with tenderness and spasm. 

Dr. Repko noted that appellant’s pain was out of proportion to her findings; but that, with 

distraction, her left upper extremity strength and sensation seemed intact. She diagnosed radicular 

pain of the upper extremity and neck muscle strain.

Appellant continued to submit medical evidence in support of her claim.

By decision dated August 12, 2020, OWCP denied appellant’s traumatic injury claim. It 

found that she had submitted insufficient medical evidence to establish causal relationship between 

her diagnosed conditions and the accepted November 29, 2019 employment incident. OWCP

concluded, therefore, that the requirements had not been met to establish an injury or condition 

under FECA.

On August 21, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on 

November 12, 2020. OWCP continued to receive medical evidence.

In a report dated July 23, 2020, Dr. Gregory Bailey, an osteopath specializing in orthopedic 

surgery, related appellant’s history of injury and diagnosed cervical pain and cervical 

radiculopathy. In a report dated September 3, 2020, he followed up with appellant for continued 

weakness in the left hand and pain in the neck and left arm.

4 Docket No. 22-0667 (issued November 1, 2022).
3

In progress notes dated September 10, 2020, Dr. Christopher Aaron, an osteopath 

specializing in neurology, noted that appellant’s neck pain had progressively worsened since 

November 2019. He diagnosed radicular pain of the upper extremity and strain of the neck muscle.

In progress notes dated October 9, 2020, Dr. Repko diagnosed neck muscle strain, radicular 

pain of the upper extremity, and acquired hyperthyroidism.

In a letter dated October 25, 2020, Dr. Patrick Lenz, a Board-certified family practitioner,

recounted appellant’s history of injury and treatment and opined that it was difficult to say with a 

reasonable degree of medical certainty that her current symptoms were caused or aggravated by 

conditions of her employment.

By decision dated January 6, 2021, OWCP’s hearing representative affirmed the 

August 12, 2020 decision.

In progress notes dated February 11, 2021, Dr. Joseph Mitchell, an osteopath specializing 

in orthopedic surgery, diagnosed Raynaud’s phenomenon without gangrene, a strain of the neck 

muscle, and radicular pain of the upper extremity. In a letter dated February 14, 2021, he opined 

that, due to the persistence of her symptoms since the November 29, 2019 employment incident, 

appellant’s condition would not improve or resolve for the foreseeable future.

In a report dated April 5, 2021, Dr. James Burke, a Board-certified orthopedic surgeon, 

related that appellant’s symptoms began on November 29, 2019 after pulling a package at work.

He diagnosed left shoulder pain, sprain of the ligaments and joints of the neck, cervical disc 

displacement, cervical stenosis, and cervical spondylosis.

In a report dated April 8, 2021, Dr. Cameron Murphy, a Board-certified family practitioner, 

examined appellant for left shoulder pain related to a work incident on November 29, 2019 when 

she lifted a 50-pound package at work from her vehicle. He diagnosed left shoulder pain, shoulder 

impingement, tendinitis of the left rotator cuff, and chronic shoulder bursitis.

In reports dated April 15 through August 30, 2021, Dr. Nicholas Kinback, a pain medicine 

specialist, diagnosed cervical spondylosis without myelopathy, cervicalgia, cervical dystonia, and 

left rotator cuff disorder. Between June 30 and August 23, 2021, he performed diagnostic 

modalities.

In an undated narrative report received by OWCP on November 8, 2021, Dr. Kinback 

reviewed appellant’s history of injury and diagnosed cervical dystonia and chronic rotator cuff 

tendinopathy. He noted that appellant’s diagnoses were often coexisting and could exacerbate 

each other. Dr. Kinback opined within a reasonable degree of medical certainty that she initially 

sustained a high-grade cervical strain and a partial rotator cuff tear related to her work injury.

On December 6, 2021 appellant, through counsel, requested reconsideration of OWCP’s 

January 6, 2021 decision.

OWCP subsequently received a November 5, 2021 report, wherein Dr. Stephanie Grilli, an 

osteopath specializing in orthopedic surgery, related appellant’s history of a work-related injury 

on November 29, 2019. Dr. Grilli diagnosed left shoulder impingement.
4

By decision dated March 3, 2022, OWCP denied modification of the January 6, 2021 

decision.

On March 30, 2022 appellant, through counsel, appealed to the Board. 

By decision dated November 1, 2022, the Board affirmed OWCP’s March 3, 2022 

decision.5

Appellant continued to submit medical evidence. In an August 23, 2021 report,

Dr. Kinback diagnosed cervical spondylosis with myelopathy, cervicalgia, cervical dystonia, and 

left rotator cuff disorder.

On November 15, 2022 appellant, through counsel, requested reconsideration. In support 

of her request, she submitted an October 14, 2022 report from Dr. Scott Eisenhuth, a Boardcertified orthopedic surgeon, who related that appellant’s left shoulder symptoms began in 

November 2019 when she pulled and lifted a package at work. Dr. Eisenhuth’s examination of 

the left shoulder revealed fairly severe limitation and weakness of the supraspinatus and 

infraspinatus, though it was difficult to distinguish between limitation based on strength and pain. 

He reviewed a left shoulder x-ray taken that day, which revealed no abnormalities. Dr. Eisenhuth 

diagnosed left shoulder pain. In an October 26, 2022 report, he again related appellant’s history 

of injury and reviewed an October 24, 2022 left shoulder magnetic resonance imaging (MRI) scan, 

which revealed a high-grade partial-thickness tear at the most anterior aspect of the supraspinatus, 

as well as some diffuse tendon thinning within the supraspinatus tendon and tearing and thinning 

of the intra-articular portion of the biceps tendon. Dr. Eisenhuth diagnosed subacromial 

impingement of left shoulder, nontraumatic incomplete tear of the left rotator cuff, and superior 

glenoid labrum lesion of the left shoulder and recommended surgical intervention.

On November 30, 2022Dr. Eisenhuthperformed an unauthorized left shoulder arthroscopy 

with extensive debridement, arthroscopic subacromial decompression, and arthroscopic biceps 

tenodesis on November 30, 2022.

In a December 9, 2022 report, Dr. Eisenhuth related that appellant was doing fairly well 

approximately 10 days after surgery. He diagnosed impingement syndrome of left shoulder and 

aftercare following surgery of the musculoskeletal system. 

By decision dated February 6, 2023, OWCP denied modification of its prior decisions.

Appellant, through counsel, requested reconsideration on March 3, 2023. In support of her 

request, she submitted a February 24, 2023 report from Dr. Eisenhuth, relating that she was doing 

fairly well three months post-surgery but continued to have left-sided neck pain. Dr. Eisenhuth

diagnosed aftercare following surgery of the musculoskeletal system. He noted that appellant 

stated that her shoulder problem began at work in November 2019 when she pulled a package out 

of her car and felt sudden, severe pain in her shoulder and neck. Appellant denied previous

problems with the shoulder. Dr. Eisenhuth noted that MRI scan and intraoperative findings 

showed a superior labral tear and partial-thickness rotator cuff tear consistent with the described 

5

Id.
5

lifting injury. He concluded that while he could not definitively state whether the lifting incident 

caused appellant’s condition, “it is more likely than not that the lifting incident caused these tears.”

The employing establishment submitted a March 31, 2023 challenge statement, asserting 

that it was unclear whether appellant’s physician was aware of any activities she engaged in outside 

of work that could have caused or contributed to her condition.

OWCP also received a March 20, 2023 report from Dr. Burke, relating that appellant’s 

neck and left arm complaints began after pulling a package at work on November 29, 2019 and 

noting that appellant underwent left shoulder surgery in November 2022. Dr. Burke reviewed a 

February 3, 2023 cervical spine MRIscan, which revealed reversal of lordosis, C2-3 and C3-4 leftsided foraminal stenosis, and C5-6 right-sided foraminal stenosis with mild spinal stenosis, as well 

as December 29, 2022 cervical spine x-rays, which demonstrated reversal of cervical lordosis. He

diagnosed cervical spondylosis, left shoulder pain, cervical disc displacement at C5-C6 level, and 

cervical spinal stenosis.

By decision dated April 13, 2023, OWCP denied modification of the February 6, 2023 

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA6 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,7that 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.8 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.9

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

performance of duty, it first must 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.10

6

Supra note 2.

7 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).

8 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).

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

Delores C. Ellyett, 41 ECAB 992 (1990).

10 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).
6

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

condition and an employment incident is rationalized medical opinion evidence. 11 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.12

ANALYSIS

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

condition causally related to the accepted November 29, 2019 employment incident.

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s March 3, 2022 merit decision as the Board 

considered that evidence in its November 1, 2022 decision. Findings made in prior Board 

decisions are res judicata absent further review by OWCP under section 8128 of FECA. 13

In a February 24, 2023 report, Dr. Eisenhuth related that appellant’s shoulder problem 

began at work in November 2019 when she pulled a package out of her car and felt sudden, severe 

pain in her shoulder and neck. He noted that an MRI scan and intraoperative findings demonstrated 

a superior labral tear and partial-thickness rotator cuff tear consistent with the described lifting 

injury. Dr. Eisenhuth concluded that while he could not definitively state whether the lifting 

incident caused appellant’s condition, “it is more likely than not that the lifting incident caused 

these tears.” While this report provided an affirmative opinion suggestive of causal relationship,

he did not offer medical rationale sufficient to explain why he believed appellant’s employment 

duties could have resulted in, or contributed to, her diagnosed conditions. Without identifying 

specific employment duties or explaining how they caused or aggravated appellant’s conditions, 

this medical report is of limited probative value, and is insufficient to meet appellant’s burden of 

proof.14

In October 14 and 26, 2022 reports, Dr. Eisenhuth related that appellant’s left shoulder 

symptoms began in November 2019 when she pulled and lifted a package at work. In the 

October 14, 2022 report, he diagnosed left shoulder pain, and in the October 26, 2022 report he 

diagnosed subacromial impingement of left shoulder, nontraumatic incomplete tear of the left 

rotator cuff, and superior glenoid labrum lesion of the left shoulder. In a March 20, 2023 report,

Dr. Burke related that appellant’s neck and left arm complaints began after pulling a package at 

work on November 29, 2019 and noted that appellant underwent left shoulder surgery in 

November 2022. He diagnosed cervical spondylosis, left shoulder pain, cervical disc displacement 

at C5-6 level, and cervical spinal stenosis. Although each report suggested a work-related cause 

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

Robert G. Morris, 48 ECAB 238 (1996).

12 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).

13 D.A., Docket No. 19-1965 (issued February 10, 2021); G.B., Docket No. 19-1448 (issued August 21, 2020); 

Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

14 See A.P., Docket No. 19-0224 (issued July 11, 2019).
7

for appellant’s medical condition, none provided a rationalized medical opinion relating the 

specific diagnosed condition to the November 29, 2019 employment incident. The Board has held 

that a report is of limited probative value regarding causal relationship if it does not contain 

medical rationale explaining how an employment activity could have caused or aggravated a 

medical condition.15 Therefore, these reports are insufficient to establish appellant’s traumatic 

injury claim.

Appellant also submitted an August 23, 2021 report from Dr. Kinback diagnosing cervical 

spondylosis with myelopathy, cervicalgia, cervical dystonia, and left rotator cuff disorder, and a 

December 9, 2022 report from Dr. Eisenhuth diagnosing impingement syndrome of the left 

shoulder and aftercare following surgery of the musculoskeletal system. However, neither of these 

reports contained an opinion regarding the cause of appellant’s diagnosed conditions. 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.16 As such, these reports are 

insufficient to establish her claim.

As the medical evidence of record is insufficient to establish a medical condition causally 

related to the accepted November 29, 2019 employment incident, the Board finds that appellant 

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.

CONCLUSION

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

condition causally related to the accepted November 29, 2019 employment incident.

15 Y.D., Docket No. 16-1896 (issued February 10, 2017).

16 D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018);

D.K., Docket No. 17-1549 (issued July 6, 2018); Charles H. Tomaszewski, 39 ECAB 461 (1988).
8

ORDER

IT IS HEREBY ORDERED THAT the April 13, 2023 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 10, 2024

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board