M.R. and Department of Veterans Affairs, Veterans Health Administration, Minneapolis, MN (Board decision, September 14, 2021)

ECAB final decision. The Board set aside OWCP’s denial and remanded for further medical development. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

M.R. sought acceptance of a right shoulder condition after a patient pulled on her outstretched arm at work. Her physician explained how that motion could have torn the shoulder tendon. The Board found the opinion insufficient to prove causation outright but strong enough to require additional medical review. It ordered OWCP to obtain a specialist’s opinion and decide the claim again.

Decision snapshot

• Authority: 5 U.S.C. § 8101.
• Outcome: August 12, 2019 decision set aside and remanded.
• Key point: A supporting medical explanation raised an uncontradicted inference that required further development.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.R., Appellant
)
)
and ) Docket No. 20-0101
) Issued: September 14, 2021
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
Minneapolis, MN, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
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 October 10, 2019 appellant filed a timely appeal from an August 12, 2019 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 appellant submitted additional evidence on appeal. 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. ISSUE

The issue is whether appellant has met her burden of proof to establish a traumatic injury causally related to the accepted September 6, 2014 employment incident.

FACTUAL HISTORY

This case has been previously before the Board. 3 The facts and circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On November 9, 2015 appellant, a 45-year-old nursing assistant, filed a traumatic injury claim (Form CA-1) alleging that she sustained a right shoulder condition on September 6, 2014 while in the performance of duty. She stated that she was helping a patient sit on his bed and felt a pop in her right shoulder. Appellant did not stop work.

By decision dated December 28, 2015, OWCP denied the claim, finding that the evidence of record was insufficient to establish that the claimed incident occurred as alleged.

On February 2, 2016 appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

On February 10, 2016 appellant requested a review of the written record in lieu of an oral hearing.

By decision dated February 24, 2016, the hearing representative denied appellant’s request for an oral hearing, finding that it was untimely filed. It further noted that it had exercised its discretion and denied her request for the reason that the relevant issue of the case could be equally addressed by requesting reconsideration and submitting evidence not previously considered by OWCP.

On March 10, 2016 appellant requested reconsideration.

By decision dated June 8, 2016, OWCP accepted that the September 6, 2014 employment incident occurred, as alleged, but denied the claim, finding that the medical evidence of record was insufficient to establish causal relationship between appellant’s diagnosed condition and the accepted September 6, 2014 employment incident.

On June 27, 2016 appellant requested reconsideration.

By decision dated July 11, 2016, OWCP denied modification.

On September 23, 2016 appellant, through her then-counsel, requested reconsideration and submitted additional medical evidence.

3
Docket No. 17-0671 (issued June 27, 2018).

2
 By decision dated December 15, 2016, OWCP denied modification of its prior decision.

On February 7, 2017 appellant filed an appeal before the Board. 4

The Board, by decision dated June 26, 2018, affirmed OWCP’s December 15, 2016 decision.

Appellant subsequently submitted an August 30, 2018 report from Dr. Claire A. Saad, a Board-certified family practitioner, who diagnosed injury of the right shoulder, chronic pain in the right shoulder, and tear of the right supraspinatus tendon due to an October 3, 2014 work-related injury.

In a September 13, 2018 report, Dr. Karyn Leniek, a Board-certified occupational and preventative medicine specialist, diagnosed tear of right supraspinatus tendon, chronic pain in the right shoulder, and left shoulder pain due to a work-related injury. She noted that appellant had not undergone previously recommended surgical intervention.

On May 22, 2019 appellant, through her then-counsel, requested reconsideration.

OWCP continued to receive additional evidence. In a report dated May 14, 2019, Dr. Leniek asserted that there had been no change in appellant’s condition and recommended right shoulder surgery.

In a May 16, 2019 narrative report, Dr. Leniek summarized the history of appellant’s injury indicating that in August 2014 she had had a right shoulder injury when she was helping an overweight patient sit up at work. She further indicated that appellant sustained separate work injury in September 2015 when she was caring for two patients who were total care, which required frequent patient handling and heavy arm and shoulder use. Dr. Leniek stated that appellant’s pain had not gone away even after she was transferred to Medical Support Assistance and no longer performed patient handling at work. She reiterated appellant’s medical complaints and findings upon physical examination, and noted that she had no change in her symptoms at present. Dr. Leniek rated the severity of her pain as 6/10 in the anterior and posterior shoulder, and sometimes into the right upper arm. Appellant still experienced weakness and difficulty with lifting heavy objects and had the same examination findings as the prior visit. Dr. Leniek found that a February 8, 2016 MRI scan of the right shoulder showed a tear of the supraspinatus tendon with full-thickness and partial-thickness components and moderate supraspinatus tendinopathy. She diagnosed supraspinatus tendon tear of the right shoulder, impingement syndrome of the right shoulder, chronic right shoulder pain, and left shoulder pain. Dr. Leniek opined that the incident at work had caused her partial-thickness rotator cuff tear when the patient pulled down on her outstretched right arm while she was trying to help him sit up. She explained that the mechanism of injury was the pulling/stretching of the tendon that was consistent with a tear of the supraspinatus tendon, likely partial-thickness given normal overall strength. Dr. Leniek indicated that pulling and stretching put strain on the tendon that could exceed the tendon’s strength and resulted in a tear. She noted that following the injury, appellant proceeded to do repetitive shoulder and arm movements to perform patient handling duties that further stressed the shoulder, caused

4
Id.

3 inflammation, and the tendinopathy. Dr. Leniek explained that the repetitive shoulder and arm motions put strain on the internal structures of the shoulder, which had caused inflammation that led to impingement and tendinopathy.

By decision dated August 12, 2019, OWCP denied modification.

LEGAL PRECEDENT

An employee seeking benefits under FECA 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,5 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.6 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. 7

To determine if an employee has sustained a traumatic injury in the performance of duty, OWCP begins with an analysis of whether fact of injury has been established. Fact of injury consists of two components that must be considered in conjunction with one another. The first component is whether the employee actually experienced the employment incident that allegedly occurred.8 The second component is whether the employment incident caused a personal injury. 9

To establish causal relationship between the condition, as well as any attendant disability claimed, and the employment event or incident, the employee must submit rationalized medical opinion evidence supporting such causal relationship. 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. This medical opinion must include an accurate history of the employee’s employment injury and must explain how the condition is related to the injury. The weight of medical evidence is determined by its reliability, its probative value, its convincing quality, the

5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988). 7 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990). 8 B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).
9
M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).
10
See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

4 care of analysis manifested, and the medical rationale expressed in support of the physician ’s opinion.11

ANALYSIS

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

Preliminarily, the Board notes that it is unnecessary to consider the evidence appellant submitted prior to the issuance of OWCP’s December 15, 2016 decision, which was previously considered by the Board in its June 27, 2018 decision. Findings made in prior Board decisions are res judicata absent further merit review by OWCP under section 8128 of FECA. 12

In her May 16, 2019 narrative report, Dr. Leniek diagnosed tear of right supraspinatus tendon, chronic pain in the right shoulder, and left shoulder pain. She opined that the accepted September 6, 2014 employment incident had caused appellant’s partial-thickness rotator cuff tear when the patient she was assisting pulled down on her outstretched right arm as she was trying to help him sit up. Dr. Leniek explained that the mechanism of injury was the pulling/stretching of the tendon that was consistent with a tear of the supraspinatus tendon, likely partial-thickness given normal overall strength. She found that pulling and stretching excessively strained the tendon and resulted in a tear. Dr. Leniek noted that following the injury, appellant proceeded to perform repetitive shoulder and arm movements to complete patient handling duties that further stressed the shoulder, caused inflammation, and tendinopathy. She concluded that appellant’s injury directly resulted from the accepted September 6, 2014 employment incident of based upon the mechanism described by appellant and findings documented within her medical record.

The Board finds that, while the reports from Dr. Leniek are not completely rationalized, they are consistent in indicating that appellant sustained a right shoulder condition on September 6, 2014. Although the reports are insufficient to meet appellant’s burden of proof to establish the claim, they raise an uncontroverted inference between appellant’s accepted condition and September 6, 2014 incident and, thus, they are sufficient to require OWCP to further develop the medical evidence. 13 As such, her report constitutes substantial, uncontradicted evidence in support of appellant’s claim, and it also provides sufficient rationale to require further development of the record.14

11
G.D., Docket No. 19-1175 (issued November 15, 2019); R.H., Docket No. 17-1405 (issued February 7, 2018);
James Mack, 43 ECAB 321 (1991).
12
S.M., Docket No. 18-1195 (issued January 6, 2020); J.L., Docket No. 17-1460 (issued December 21, 2018).
13
Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, 41 ECAB 354, 360 (1989).
14
R.A., Docket No. 19-0650 (issued January 15, 2020); B.M., Docket No. 18-0448 (issued January 2, 2020); E.G., Docket No. 19-1296 (issued December 18, 2019).

5
 Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. While it is appellant’s burden of proof to establish the claim, OWCP shares responsibility in the development of the evidence. 15 It has the obligation to see that justice is done. 16

The Board will, therefore, remand the case to OWCP for further development of the medical evidence. On remand, OWCP shall refer appellant, a statement of accepted facts, and the medical evidence of record to an appropriate Board-certified physician. The chosen physician shall provide a rationalized opinion on whether the diagnosed conditions are causally related to the accepted employment incident. If the physician opines that the diagnosed conditions are not causally related, he or she must explain with rationale how or why his or her opinion differs from that of Dr. Leniek. Following this and any further development as deemed necessary, OWCP shall issue a de novo decision on appellant’s claim.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 12, 2019 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: September 14, 2021
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

15
Id.
16
Id.

6