A.V. and Social Security Administration, San Francisco Regional Public Affairs Office, Richmond, CA (Board decision, December 15, 2020)

ECAB final decision. The Board affirmed OWCP’s denial of A.V.’s occupational left shoulder condition claim. 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

A.V., a claims authorizer, attributed a left shoulder condition to many years of work duties. Her physician discussed repetitive typing and shoulder symptoms, but the Board found the medical evidence did not adequately explain how the accepted work factors caused or aggravated the diagnosed condition. It affirmed OWCP’s denial of the claim.

Decision snapshot

• Authority: Medical causation for an occupational shoulder condition.
• Outcome: April 22, 2020 OWCP denial affirmed.
• Key point: A reasoned medical link between the work factors and the shoulder diagnosis was missing.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.V., Appellant
)
)
and ) Docket No. 20-1138
) Issued: December 15, 2020
SOCIAL SECURITY ADMINISTRATION,
)
SAN FRANCISCO REGIONAL PUBLIC
)
AFFAIRS OFFICE, Richmond, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 11, 2020 appellant, through counsel, filed a timely appeal from an April 22, 20202 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

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 OWCP reissued its prior April 7, 2020 decision on April 22, 2020 after being informed by appellant that the April 7, 2020 decision was issued without appeal rights.
3
5 U.S.C. § 8101 et seq.
 ISSUE

The issue is whether appellant has met her burden of proof to establish a left shoulder condition causally related to the accepted factors of her federal employment.

FACTUAL HISTORY

On November 29, 2017 appellant, then a 55-year-old claims authorizer, filed an occupational disease claim (Form CA-2) alleging that, due to factors of her federal employment, she developed pain in her shoulder and arm. She noted that she first became aware of her condition and first realized its relation to her federal employment on November 10, 2017. Appellant explained that she performed daily computer key-entry and developed soreness over time. She indicated that she previously had work-related tendinitis in the 1990’s that required her to have modified work duties.4 Appellant did not stop work.

In a December 7, 2017 development letter, OWCP informed appellant that it had received no evidence in support of her occupational disease claim. It advised her of the type of factual and medical evidence necessary to establish her claim and provided a questionnaire for her completion. OWCP also requested a narrative medical report from appellant’s treating physician, which contained a detailed description of findings and diagnoses, explaining how her work activities caused, contributed to, or aggravated her medical conditions. It afforded her 30 days to respond.

OWCP subsequently received a November 10, 2017 diagnostic report, which indicated that Dr. Eric Saldinger, a Board-certified diagnostic radiologist, had performed an x-ray scan of appellant’s left shoulder and diagnosed calcific tendinitis.

In medical reports dated from November 17 to December 20, 2017, Dr. Cynthia Lim, Board-certified in family medicine, evaluated appellant for left shoulder pain and swelling and indicated that she was unable to work due to pain. Appellant informed her that she experienced similar symptoms in the past due to another work injury and also noted that she spent her time at work on the computer. Dr. Lim referenced her x-ray scan of the left shoulder that revealed calcification and diagnosed acute pain of the left shoulder, neck pain, and cervical disc disease and indicated that she suspected her symptoms were an overuse repetitive motion injury. She opined that appellant’s injury was most likely a reaggravation of her previous work disability and reasoned that working at a desk on the computer all day for many years can cause the symptoms appellant was experiencing. Dr. Lim placed her on light duty and referred her to another doctor for her workers’ compensation claim.

In response to OWCP’s development questionnaire, appellant submitted a December 26, 2017 statement in which she explained that she sat at her desk all day at work typing on the computer and noted that, when she made a request to have her desk adjusted, it took a year for the adjustment to occur. She performed her duties for eight hours a day for five days a week. In relation to her comment about the development of her tendinitis in the 1990’s, appellant provided that she had left shoulder pain, could not raise her arm, and was restricted to working four hours a

4
The Board notes that there is no indication that appellant previously filed a claim with OWCP for work-related tendinitis.

2 day. She stated that she no longer had the records due to the amount of time that had passed since her original injury.

Appellant submitted an unsigned December 27, 2017 diagnostic report in which she underwent a magnetic resonance imaging (MRI) scan of her left shoulder that revealed impingement syndrome and a possible small posterosuperior labral tear with a paralabral cyst.

In a February 12, 2018 medical report, Dr. Lim diagnosed an unspecified tear of the left rotator cuff, biceps tendinitis of the left shoulder, rotator cuff impingement of the left shoulder and a disorder of the intervertebral disc of the cervical spine. She provided that appellant would be off work from November 13, 2017 to March 31, 2018.

By decision dated March 5, 2018, OWCP denied appellant’s occupational disease claim, finding that the medical evidence of record was insufficient to establish that her left shoulder conditions were causally related to the accepted work factors.

On May 4, 2018 appellant requested reconsideration of OWCP’s March 5, 2018 decision.

In a March 19, 2018 medical report, Dr. Brian Feeley, a Board-certified orthopedic surgeon, evaluated appellant for left shoulder pain related to a September 2017 work injury. Appellant informed him that the pain in her left shoulder made it difficult for her to perform her work duties and also noted her previous diagnosis of tendinitis from work-related pain. On examination Dr. Feeley provided that appellant’s symptoms were consistent with a rotator cuff impingement. He administered an injection and stated that appellant would continue physical therapy to treat her injury.

Appellant submitted an April 23, 2018 after visit summary in which she discussed her employment duties with Dr. Feeley. Dr. Feeley provided that her left shoulder systems were consistent with a rotator cuff impingement and discussed possible treatment options.

By decision dated May 17, 2018, OWCP denied modification of its March 5, 2018 decision.

On August 8, 2018 appellant requested reconsideration of OWCP’s May 17, 2018 decision.

In support thereof, appellant submitted a June 14, 2018 medical report, wherein Dr. Arzhang Zereshki, Board-certified in physical medicine, recounted appellant’s history of injury, including left shoulder tendinitis in 1990, minor injuries to her neck in 2011 following a motor vehicle accident as well as the left shoulder and neck pain she began to develop in September 2017. She informed him that her pain was work related and caused by her working at the computer all day with repetitive reaching and some lifting. Dr. Zereshki recounted appellant’s history of medical treatment and previous diagnostic studies of her left shoulder. On examination he diagnosed left shoulder impingement syndrome and cervical spondylosis. Dr. Zereshki explained that appellant’s left shoulder pain was certainly due to impingement syndrome and opined that her condition appeared to be partially work related.

In a July 11, 2018 medical note, Dr. Feeley indicated that appellant would be undergoing left shoulder surgery on July 17, 2018 to address shoulder pain she had experienced since September 2017.

3
 In a July 16, 2018 medical note, Dr. Lim made note of appellant’s work duties, including typing, reaching over her head, and some lifting. She opined that these activities could lead to shoulder injuries or aggravate an existing shoulder problem.

By decision dated September 17, 2018, OWCP denied modification of its May 17, 2018 decision.

On December 19, 2018 appellant requested reconsideration of OWCP’s September 17, 2018 decision.

In support thereof, appellant submitted a December 6, 2018 letter and December 13, 2018 medical note, wherein Dr. Feeley opined that appellant’s shoulder pain had worsened due to her 30 years of work. Dr. Feeley explained that the repetitive motion of typing for seven hours a day and overhead activity can contribute to calcific tendinitis and rotator cuff injury. He provided a brief overview of appellant’s medical treatment and stated that she would continue to undergo further evaluation.

By decision dated January 24, 2019, OWCP denied modification of its September 17, 2018 decision.

In a December 20, 2019 letter, appellant, through counsel, requested reconsideration of OWCP’s January 24, 2019 decision and submitted additional medical evidence.

In a December 6, 2019 medical report, Dr. Anthony Luke, Board-certified in sports medicine, consulted with appellant concerning her continued left shoulder pain. Appellant wanted to know the nature of her condition and asked him if her work activities could have worsened her problems. Dr. Luke explained that, in general, degenerative changes can be affected by repetitive motions and opined that motions such as overhead movements and lifting would likely cause more pain with her conditions. He diagnosed left shoulder calcific tendinosis and arranged appellant to undergo conservative treatment to address her symptoms.

By decision dated April 22, 2020, OWCP denied modification of its January 24, 2019 decision.

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

5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

4 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 establish that an injury was sustained in the performance of duty in an occupational disease claim, a claimant must submit the following: (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 identified employment factors.8

Causal relationship is a medical question that requires rationalized medical opinion evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship between the diagnosed condition and the implicated employment factor(s) must be based on a complete factual and medical background.10 Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment factor(s).11

In a 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.12

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a left shoulder condition causally related to the accepted factors of her federal employment.

In medical evidence dated from March 19 to December 13, 2018, Dr. Feeley noted appellant’s previous diagnosis of tendinitis and claimed that her shoulder pain had worsened due to her 30 years of work. He provided that appellant’s symptoms were consistent with a rotator cuff impingement and opined that the repetitive motions of typing for seven hours a day and

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
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989). 9 T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).
10
M.V., Docket No. 18-0884 (issued December 28, 2018).
11
Id.; Victor J. Woodhams, supra note 8.
12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
V.W., Docket No. 19-1537 (issued May 13, 2020); N.C., Docket No. 19-1191 (issued December 19, 2019); R.D., Docket No. 18-1551 (issued March 1, 2019).

5 overhead activity can contribute to calcific tendinitis and rotator cuff injury. While Dr. Feeley provided an affirmative opinion on causal relationship, he did not offer medical rationale sufficient to explain how and why he believes appellant’s employment duties could have resulted in or contributed to her diagnosed condition. Without explaining how repetitive typing and overhead activity caused or contributed to appellant’s injury, Dr. Feeley’s medical evidence is of limited probative value.13 Further, the Board has consistently held that complete medical rationalization is particularly necessary when there is a preexisting condition involving the same body part,14 and has required medical rationale differentiating between the effects of the work-related injury and the preexisting condition in such cases.15 For these reasons, Dr. Feeley’s medical evidence is insufficient to meet appellant’s burden of proof.

In his April 23, 2018 after visit summary and July 11, 2018 medical note, Dr. Feeley provided that appellant’s left shoulder symptoms were consistent with a rotator cuff impingement and indicated that she would undergo left shoulder surgery on July 17, 2018. 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 For this reason, these reports are also insufficient to meet appellant’s burden of proof.

In medical reports dated from November 17, 2017 to July 16, 2018, Dr. Lim made note of appellant’s left shoulder symptoms, a November 10, 2017 x-ray of her left shoulder as well as her past experience with similar symptoms due to a separate work injury. She diagnosed acute pain of the left shoulder, neck pain and cervical disc disease and indicated that she suspected her symptoms were an overuse repetitive motion injury. Dr. Lim opined that appellant’s injury was most likely a reaggravation of her previous work disability and reasoned that working at a desk on the computer all day for many years can cause the symptoms appellant was experiencing or exacerbate a previous shoulder injury. As stated above, without explaining how working at the computer all day for many years caused or contributed to appellant’s injury, Dr. Lim’s medical evidence is of limited probative value.17 Further, a complete medical rationalization is particularly necessary when there is a preexisting condition involving the same body part,18 and has required medical rationale differentiating between the effects of the work-related injury and the preexisting condition in such cases.19 For these reasons, Dr. Lim’s medical evidence is insufficient to meet appellant’s burden of proof.

13
See A.P., Docket No. 19-0224 (issued July 11, 2019).
14
K.R., Docket No. 18-1388 (issued January 9, 2019).
15
See, e.g., A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued December 31, 2018); J.B., Docket No. 17-1870 (issued April 11, 2018); E.D., Docket No. 16-1854 (issued March 3, 2017); P.O., Docket No. 14-1675 (issued December 3, 2015). 16 S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019).
17
Supra note 13.
18
Supra note 14.
19
Supra note 15.

6
 Dr. Lim’s remaining medical evidence consist of a February 12, 2018 medical report where she diagnosed an unspecified tear of the left rotator cuff, biceps tendinitis of the left shoulder, rotator cuff impingement of the left shoulder and a disorder of the intervertebral disc of the cervical spine. As stated previously, 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.20

In Dr. Zereshki’s June 14, 2018 medical report, he recounted appellant’s history of injury, including left shoulder tendinitis in 1990, minor injuries to her neck in 2011 following a motor vehicle accident as well as the left shoulder and neck pain she began to develop in September 2017. On examination he diagnosed left shoulder impingement syndrome and cervical spondylosis and opined that her left shoulder pain was certainly due to impingement syndrome and appeared to be partially work related. While Dr. Zereshki provided an affirmative opinion on causal relationship, he did not offer medical rationale sufficient to explain how and why he believes appellant’s employment duties could have resulted in or contributed to her diagnosed condition. As stated previously, without explaining how appellant’s work activity caused or contributed to her injury, Dr. Zereshki’s medical report is of limited probative value.21 Further, a complete medical rationalization is particularly necessary when there is a preexisting condition involving the same body part,22 and has required medical rationale differentiating between the effects of the work- related injury and the preexisting condition in such cases.23 For these reasons, Dr. Zereshki’s June 14, 2018 medical report is insufficient to meet appellant’s burden of proof.

In hisDecember 6, 2019 medical report, Dr. Luke diagnosed left shoulder calcific tendinosis and explained that, in general, degenerative changes can be affected by repetitive motions. He opined that motions such as overhead movements and lifting would likely cause more pain with her conditions. As stated above, without explaining how appellant’s repetitive motions at work caused or contributed to her diagnosed condition, Dr. Luke’s medical report is of limited probative value.24 For this reason, Dr. Luke’s December 6, 2019 medical report is insufficient to meet appellant’s burden of proof.

The remaining medical evidence consists of diagnostic reports dated November 10 and December 12, 2017. The Board has held, however, that diagnostic test reports standing alone lack probative value as they do not provide an opinion on causal relationship between employment factors and a diagnosed condition.25 As such, this evidence is also insufficient to meet appellant’s burden of proof.

20
Supra note 16.
21
Supra note 13.
22
Supra note 14.
23
Supra note 15.
24
Supra note 13.
25
W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

7
 As appellant has not submitted rationalized medical evidence establishing that her left shoulder conditions are causally related to the accepted factors of her federal employment, the Board finds that she has not met her burden of proof to establish her claim.

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

ORDER

IT IS HEREBY ORDERED THAT the April 22, 2020 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: December 15, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

8