United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.L., Appellant

and

DEPARTMENT OF LABOR, OFFICE OF 

WORKERS’ COMPENSATION PROGRAMS, 

New York, NY, Employer

__________________________________________

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Docket No. 22-0645

Issued: September 6, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 28, 2022 appellant filed a timely appeal from a January 18, 2022 merit 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

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the January 18, 2022 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 total disability from 

work for the period June 26 to September 2, 2018 causally related to the accepted May 11, 2018 

employment injury.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision and order are incorporated herein by reference. The relevant facts 

are as follows.

On May 15, 2018 appellant, then a 37-year-old claims examiner, filed a traumatic injury 

claim (Form CA-1) alleging that on May 11, 2018 she sustained bilateral shoulder and back strains 

when she attempted to open a heavy door with her left hand, while pushing a chair with her right 

hand in the performance of duty.

4

 She stopped work on the date of injury. 

On June 13, 2018 Dr. Richard A. Pearl, a Board-certified orthopedic surgeon, performed a 

right shoulder arthroscopy with partial synovectomy, extensive debridement of the right shoulder 

labral tear and rotator cuff tear subscapularis tendon, and right shoulder subacromial 

decompression with acromioplasty.5

After initial denial of her claim, by decision dated April 5, 2019, OWCP accepted the claim 

for bilateral shoulder and lumbar strains.

On March 3, 2020 appellant filed claims for compensation (Form CA-7) alleging disability

from work for the period June 26 through September 2, 2018.

In a development letter dated March 10, 2020, OWCP advised appellant of the necessary 

medical evidence to support disability during the period claimed. It afforded her 30 days to 

respond.

In a July 2, 2018 disability form report, Dr. Dante T. Lazo, a Board-certified internist, 

noted that appellant had been seen that day for a May 11, 2018 employment injury and advised 

that she was disabled from working for eight weeks due to bilateral shoulder and lower back pain 

and weakness.

An August 20, 2018 attending physician’s report (Form CA-20) from Dr. Lazo indicated 

that appellant was totally disabled from work for the period May 11 through September 2, 2018. 

Dr. Lazo described how the May 11, 2018 employment injury occurred and diagnosed lumbar and 

3 Order Granting Remand, Docket No. 19-0240 (issued March 22, 2019): Docket No. 21-0500 (issued 

December 10, 2021).

4 The employing establishment issued an authorization for examination and/or treatment (Form CA-16) on 

May 21, 2018.

5 The record does not indicate that this procedure was authorized.
3

shoulder strain. He checked a box marked “Yes” in response to the questions of whether there 

was a history or evidence of concurrent or preexisting injury, and whether the condition had been 

aggravated by the employment activity. Dr. Lazo noted that appellant had been involved in a 

motor vehicle accident (MVA) on April 6, 2018 during which she sustained shoulder and back 

injuries. 

In a state workers’ compensation form report dated August 20, 2018, Dr. Lazo noted a 

May 11, 2018 injury date, and described the employment injury. He diagnosed bilateral shoulder 

joint and lumbar sprains based upon physical findings of bilateral shoulder abnormal range of 

motion (ROM), shoulder weakness, and pain/tenderness in the lower back and shoulders. Dr. Lazo

found that appellant was disabled from work due to pain and weakness. 

By decision dated May 29, 2020, OWCP denied appellant’s claim for disability from work 

for the period June 26 through September 2, 2018, finding that the medical evidence of record was 

insufficient to establish disability during the claimed period causally related to her accepted 

May 11, 2018 employment injury. It noted the record also contained evidence of preexisting 

conditions due to a nonemployment-related April 16, 2018 MVA, which was not addressed by the 

medical evidence appellant submitted.

On July 1, 2020 appellant requested reconsideration.

OWCP continued to receive medical evidence. Dr. Lazo, in a May 21, 2018 report, noted 

appellant’s history of injury on May 11, 2018. He related appellant’s examination findings and 

diagnosed shoulder joint, lower back and pelvis sprains. Dr. Lazo concluded that the May 11, 

2018 incident was the competent cause of appellant’s injuries as it caused acute trauma of the body 

tissue, which may never be as flexible or elastic as original counterparts. Superimposed on the 

natural aging and degenerative process, this injury, most probably, may result in a permanent 

reduction of range of motion and normal functions of the local peripheral neuromuscular system.

In a state workers’ compensation form dated August 31, 2018, Dr. Lazo reiterated findings 

from his prior report. He released appellant to return to work on September 4, 2018. On 

August 31, 2018 Dr. Lazo also completed an attending physician’s report, Part B of the Form CA16, relating that appellant could return to work on September 4, 2018.

By decision dated September 22, 2020, OWCP denied modification.

On October 21, 2020 appellant filed a request for reconsideration.

In support of her request for reconsideration, appellant submitted disability notes 

previously of record from Dr. Lazo and an additional note dated August 1, 2018. Dr. Lazo again 

diagnosed bilateral shoulder and lumbar sprains due to a May 11, 2018 incident. 

In a November 25, 2020 note, Dr. Erie Augustin, a specialist in family and internal 

medicine, advised that appellant had reached maximum medical improvement and required no 

further treatment. He noted an April 6, 2018 MVA and May 11, 2018 employment injury. 

Dr. Augustin diagnosed neck, bilateral shoulder, upper and lower back, and left knee injuries and 

noted appellant underwent shoulder surgery on June 13, 2018.
4

By decision dated January 22, 2021, OWCP denied modification.

OWCP continued to receive progress reports and medical evidence pertaining to 

appellant’s request for a schedule award.6 

On February 8, 2021 appellant filed an appeal with the Board. By decision dated

December 10, 2021, the Board affirmed the January 22, 2021 decision,finding that appellant failed 

to meet her burden of proof to establish total disability from work for the period in question 

causally related to the accepted May 11, 2018 employment injury.7

On December 20, 2021 appellant requested reconsideration. She alleged that the Board’s 

December 10, 2021 decision made contradictory findings as it related that Dr. Lazo had noted that 

appellant had been involved in a motor vehicle accident on April 6, 2018, during which she 

sustained shoulder and back injuries; however, it thereafter related that Dr. Lazo did not discuss 

appellant’s motor vehicle accident caused appellant’s disability. In support of her request, she 

submitted an addendum to a November 25, 2020 note from Dr. Agustin. Dr. Agustin, in an 

addendum to the November 25, 2020 note, attributed appellant’s June 13, 2018 right shoulder 

arthroscopic surgery to both the April 6, 2018 motor vehicle accident and the May 11, 2018 

employment injury. Thus, he concluded that appellant’s disability for the period June 26 to 

September 2, 2018 was causally related to the accepted May 11, 2018 employment injury and 

accepted conditions of bilateral shoulder and lumbar sprains.

By decision dated January 18, 2022, OWCP denied modification.

LEGAL PRECEDENT

An employee seeking benefits under FECA8 has the burden of proof to establish the 

essential elements of his or her claim, including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury.

9

 The term disability is 

defined as the incapacity, because of an employment injury, to earn the wages the employee was 

receiving at the time of the injury.10 For each period of disability claimed, the employee has the 

6 On July 6, 2021 OWCP granted appellant a schedule award for 8 percent permanent impairment of the left upper 

extremity, and 12 percent permanent impairment of the right upper extremity. On November 16, 2021 OWCP issued 

a notice of proposed rescission of the schedule award. 

7 Docket No. 21-0500 (issued December 10, 2021).

8

Supra note 1.

9

See C.B., Docket No. 20-0629 (issued May 26, 2021); D.S., Docket No. 20-0638 (issued November 17, 2020); 

F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn 

Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989); see also Nathaniel Milton, 37 ECAB 

712 (1986).

10 20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB 

397 (1999).
5

burden of proof to establish that he or she was disabled from work as a result of the accepted 

employment injury.11

Whether a particular injury causes an employee to become disabled from work, and the 

duration of that disability, are medical issues that must be proven by a preponderance of the 

reliable, probative, and substantial medical evidence.12 The medical evidence required to establish 

causal relationship between a claimed period of disability and an employment injury is rationalized 

medical opinion evidence. 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 claimed 

disability and the specific employment factors identified by the claimant.13

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.14

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish total disability 

from work for the period June 26 to September 2, 2018 causally related to the accepted May 11, 

2018 employment injury.

OWCP accepted appellant’s claim for bilateral shoulder and lumbar strains. The issue is 

whether appellant’s accepted employment injury caused total disability for the period June 26 to 

September 2, 2018. By decision dated December 10, 2021, the Board affirmed OWCP’s denial of 

her claim for total disability for the period June 26 to September 2, 2018. Findings made in prior 

Board decisions are res judicata absent any further review by OWCP under section 8128 of 

FECA.

15

 The Board will, therefore, not review the medical evidence addressed in the prior appeal.

In support of her request for reconsideration, appellant alleged that the Board’s 

December 10, 2021 decision made inconsistent findings as it acknowledged that Dr. Lazo had 

noted in his August 20, 2018 report that appellant had been involved in an April 6, 2018 MVA, 

but then found that Dr. Lazo had not explained why appellant was disabled due to the May 11, 

2018 employment injury. The Board previously explained that, while Dr. Lazo noted appellant’s 

11 See A.S., Docket No. 20-0406 (issued August 18, 2021); D.G., Docket No. 18-0597 (issued October 3, 2018);

Amelia S. Jefferson, 57 ECAB 183 (2005).

12 A.S., id.; AmeliaS. Jefferson, id.; WilliamA. Archer, 55 ECAB 674 (2004).

13 T.L., Docket No. 20-0978 (issued August 2, 2021); V.A.,Docket No. 19-1123 (issued October 29, 2019).

14 C.T., Docket No. 20-0786 (issued August 20, 2021); S.G., Docket No. 18-1076 (issued April 11, 2019);

WilliamA. Archer,supra note 12; Fereidoon Kharabi, 52 ECAB 291 (2001).

15 See M.B., Docket No. 21-0012 (issued May 12, 2022); M.M., 18-1366 (issued February 27, 2019); E.L., 16-0635 

(issue November 7, 2016); R.L., Docket No. 15-1010 (issued July 21, 2015); ClintonE. Anthony, Jr., 49 ECAB 

476 (1998). See also A.P., Docket No. 14-1228 (issued October 15, 2014).
6

April 2018 motor vehicle accident, he did not discuss whether appellant’s June 13, 2018 

arthroscopic procedure and any resulting disability were directly caused or aggravated by 

appellant’s May 11, 2018 employment injury, rather than the April 2018 nonwork-related motor 

vehicle accident. As previously noted, the Board’s prior findings are res judicata.

16

 

Appellant also submitted an undated addendum to a November 25, 2020 report from

Dr. Agustin. Dr. Agustin opined that appellant’s June 13, 2018 surgery was partially due to her 

April 6, 2018 motor vehicle accident and partially due to her accepted May 11, 2018 employment 

injury. Thus, appellant’s total disability for the period June 26 to September 2, 2018 was related 

to her accepted bilateral shoulder and lumbar sprains and the May 11, 2018 employment injury.

Initially, the Board notes that OWCP did not authorize appellant’s June 13, 2018 right 

shoulder surgical procedure. While Dr. Agustin opined that appellant’s disability due to the 

surgery was partially due to the accepted bilateral shoulder and lumbar sprains, he provided no 

rationale explaining how the diagnosed conditions caused or aggravated the conditions for which 

the surgery was performed. The Board has found that medical evidence must include rationale 

explaining how the physician reached the conclusion that he or she is supporting.17 Dr. Agustin 

failed to explain how appellant’s inability to work June 26 to September 2, 2018 was causally 

related to her accepted May 11, 2018 employment injury. Appellant’s burden of proof includes 

submitting rationalized medical evidence, which supports a causal relationship between the period 

of disability and the accepted conditions.18 Thus, the Board finds Dr. Agustin’s conclusory

opinion was insufficient to establish a causal relationship between the period of disability and the 

accepted employment injury.

19

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 total disability 

from work for the period June 26 to September 2, 2018 causally related to the accepted May 11, 

2018 employment injury.

16 Id.

17 T.G., Docket No. 20-0121 (issued May 17, 2022); M.M., Docket No. 18-0817 (issued May 17, 2019);BeverlyA. 

Spencer, 55 ECAB 501 (2004).

18 Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are 

entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

19 D.H., Docket No. 17-1913 (issued December 13, 2018) (while the physician supported causal relationship, he 

did not provide medicalrationale explaining the basis of his conclusory opinion).
7

ORDER

IT IS HEREBY ORDERED THAT the January 18, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 6, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board