J.L. and U.S. Postal Service, Brooklyn Processing & Distribution Center, Brooklyn, NY (Board decision, October 7, 2021)

ECAB final decision. The Board affirmed OWCP’s refusal to add right shoulder tears. 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

The Board affirmed OWCP’s refusal to expand J.L.’s accepted postal workplace injury to include right shoulder SLAP and labral tears. J.L.’s doctors diagnosed shoulder conditions, but their opinions did not explain how the accepted July 2017 incident caused the tears. Diagnostic studies alone did not establish that link. The Board therefore found that J.L. had not met his burden of proof.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a).
• Outcome: OWCP refusal to add right shoulder SLAP and labral tears affirmed.
• Key point: Medical opinions must explain the causal link between a diagnosed condition and the accepted incident.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.L., Appellant
)
)
and ) Docket No. 20-1162
) Issued: October 7, 2021
U.S. POSTAL SERVICE, BROOKLYN
)
PROCESSING & DISTRIBUTION CENTER,
)
Brooklyn, NY, 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 15, 2020 appellant, through counsel, filed a timely appeal from an April 14, 2020 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 April 14, 2020 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. ISSUE

The issue is whether appellant has met his burden of proof to establish that the acceptance of his claim should be expanded to include superior labrum anterior and posterior (SLAP) and labral tears of the right shoulder, causally related to the accepted July 12, 2017 employment injury.

FACTUAL HISTORY

On July 12, 2017 appellant, then a 26-year-old clerk, filed a traumatic injury claim (Form CA-1) alleging that on that date he injured his right arm and back when he fell over an empty tray and hit a wall while in the performance of duty. He stopped work on that date. 4

In a July 12, 2017 supplemental statement, appellant indicated that he injured his right shoulder and arm when he fell.

A July 25, 2017 magnetic resonance imaging (MRI) scan of appellant’s right shoulder revealed a suspected labral tear and a September 5, 2017 magnetic resonance arthrogram (MRA) of the right shoulder revealed an underlying labral tear and impingement and tendinosis of supraspinatus and long head biceps tendon.

On October 23, 2017 OWCP accepted the claim for right shoulder strain and right shoulder contusion.

In a November 6, 2017 report, Dr. Barbara Steele, a Board-certified orthopedic surgeon, assessed right shoulder possible SLAP tear, possible anteroinferior labral tear, and pain and stiffness.

On February 8, 2018 OWCP expanded its acceptance of the claim to include right shoulder tendinitis, strain of unspecified muscle, fascia and tendon at shoulder and upper arm, right arm, and right shoulder tendinitis.

In a December 10, 2018 report, Dr. Imran Ashraf, an orthopedic surgeon, advised that appellant had fallen and injured his right shoulder, and that, despite extensive conservative measures, appellant continued to experience persistent right shoulder pain. He opined that arthroscopic surgery could alleviate appellant’s symptoms and requested authorization for right shoulder arthroscopic surgery.

In a December 14, 2018 development letter, OWCP informed appellant that the evidence of record was insufficient to authorize the requested procedure, noting that the medical evidence submitted did not explain why the procedure was needed for the accepted conditions. It advised him of the type of evidence necessary to establish his claim, including an opinion supported by

4
Appellant returned to full-duty work on July 20, 2017 and stopped work on August 18, 2017.

2 medical rationale, relating the requested procedure to the July 12, 2017 employment injury. OWCP afforded appellant 30 days to submit the necessary evidence.

A November 8, 2018 MRI scan of appellant’s right shoulder revealed a tear of the anterior and posterior labrum.

On January 8, 2019 Dr. Ashraf again requested authorization for right shoulder arthroscopic surgery.

In a January 11, 2019 report, Dr. Manuel Ceja, an internist, related that on July 12, 2017 appellant tripped and fell over an empty tray on the floor, hit his face on an electrical box on the wall, hit his right shoulder on the corner of the metal electrical box, and fell to the floor hitting his left hand and left knee. He noted a suspected labral tear on the July 25, 2017 MRI scan of the right shoulder and that the September 5, 2017 MRA of the right shoulder was consistent with labral tear, impingement, and tendinosis. Dr. Ceja opined, “[i]t is within a certain degree of medical certainty that the history presented by the patient, the objective physical findings as well as the diagnosis rendered, is causally related to the injury the patient incurred on the specified date.”

In a February 25, 2019 report, Dr. Ceja diagnosed strain of unspecified muscle, fascia, and tendon at shoulder and upper arm level, right arm, subsequent encounter, impingement syndrome of right shoulder, and unspecified sprain of right shoulder joint, subsequent encounter.

On March 14, 2019 OWCP received a July 13, 2017 x-ray report of appellant’s right shoulder with negative findings.

By decision dated March 26, 2019, OWCP denied expansion of the acceptance of appellant’s claim to include SLAP and labral tears of the right shoulder and the requested surgery. It found that the medical evidence of record was insufficient to establish causal relationship between the additional claimed conditions and the accepted July 12, 2017 employment injury.

On April 2, 2019 appellant, through counsel, requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review

OWCP continued to receive additional medical evidence. On April 18, 2019 it received reports dated from July 12, 2017 to April 8, 2019, wherein Dr. Ceja diagnosed strain of unspecified muscle, fascia and tendon at shoulder and upper arm level, right arm and impingement syndrome of the right shoulder. Dr. Ceja added diagnoses of sprains of the right shoulder and right shoulder joint as of appellant’s February 25, 2019 report. He again opined, “within a certain degree of medical certainty, that the history presented by [appellant], the objective physical findings as well as the diagnosis rendered is causally related to the injury [appellant] incurred on the specified date.”

In a May 7, 2019 report, Dr. Ceja diagnosed strain of unspecified muscle, fascia, and tendon at shoulder and upper arm level, right arm, subsequent encounter. He also diagnosed impingement syndrome of the right shoulder, unspecified sprain of the right shoulder joint, subsequent encounter, other sprain of right shoulder joint, subsequ ent encounter, and right shoulder anterior and posterior labrum tears. Dr. Ceja concluded that the history of injury as

3 presented by appellant and his physical examination findings established that appellant’s diagnosed conditions were causally related to the accepted injury.

In a September 12, 2017 report, Dr. Steele, noted appellant’s history of injury and treatment, examined him and diagnosed a right shoulder possible inferior labral tear, possible SLAP tear, impingement and bursitis, pain, and stiffness. She opined that surgical intervention was warranted for the right shoulder as he had failed conservative measures. Dr. Steele also saw appellant on November 6 and December 11, 2017, and diagnosed right shoulder possible SLAP tear, possible anteroinferior labral tear, pain, and stiffness.

In an October 29, 2018 report, Dr. Steele noted appellant’s history of injury and physical examination findings. She diagnosed right shoulder possible SLAP tear, possible anteroinferior labral tear, impingement and bursitis, pain, and stiffness. Regarding causation, Dr. Steele opined that “[t]he right shoulder condition happened because of the injury while at work on [July] 12, 2017.” She advised that due to the length of time since the injury and the fact that appellant had failed conservative measures, arthroscopic surgery was warranted for the right shoulder.

In a March 4, 2019 report, Dr. Ashraf diagnosed right shoulder anterior and posterior labral tears. He recommended right shoulder surgery. Dr. Ashraf also saw appellant on April 22, 2019 and repeated his diagnosis.

OWCP received a June 13, 2019 operative reports which related that appellant underwent a right shoulder arthroscopy, paralabral cyst decompression with labral takedown and repair, subacromial debridement, and decompression.

A hearing was held on June 28, 2019. By decision dated September 4, 2019, the hearing representative affirmed the March 26, 2019 decision, finding that the medical evidence of record was insufficient to support expansion of the acceptance of appellant’s claim to include SLAP and labral tears of the right shoulder.

On September 26, 2019 appellant requested reconsideration.

OWCP received copies of prior reports from Dr. Ceja and additional reports dated September 9, 14, and 30 and November 5, 2019. Dr. Ceja noted appellant’s history of injury and treatment, examined appellant and diagnosed strain of unspecified muscle, fascia and tendon at shoulder and upper arm level, right arm, subsequent encounter, impingement syndrome of right shoulder, pain in right shoulder, superior glenoid labrum lesion of right shoulder, subsequent encounter, other sprain of right shoulder joint, subsequent encounter, strain of muscle(s) and tendon(s) of the rotator cuff of right shoulder, subsequent encounter, right shoulder anterior and posterior labrum tears, and s/p right shoulder arthroscopy. He again opined, “It is within a certain degree of medical certainty, that the history presented by the patient, the objective physical findings as well as the diagnosis rendered is causally related to the injury the patient incurred on the specified date.”

By decision dated December 23, 2019, OWCP denied modification of the September 4, 2019 decision.

In a December 2, 2019 report, Dr. Ceja noted that appellant tripped and fell over an empty tray on the floor, hit his right face on an electrical box on the wall, hit his right shoulder on the

4 corner of the metal electrical box, and was “jolted forward.” He noted that appellant resigned from the employing establishment in April 2018, as appellant was unable to lift overhead, and began working as a bus driver. Dr. Ceja diagnosed strain of unspecified muscle, fascia and tendon at shoulder and upper arm level, right arm, subsequent encounter, impingement syndrome of right shoulder, pain in right shoulder, superior glenoid labrum lesion of right shoulder, subsequent encounter, other sprain of right shoulder joint, subsequent encounter, right shoulder anterior and posterior labrum tears, and right shoulder arthroscopy. He opined, “It is within a certain degree of medical certainty that the history presented, the objective findings and diagnoses were causally related to the injury appellant occurred on the specified date.”

On April 6, 2020 appellant, through counsel, requested reconsideration and submitted additional medical evidence.

In a March 27, 2020 report, Dr. Ceja repeated his previous findings. He opined that after reviewing appellant’s medical file, taking a complete history and performing physical examination, “there appears to be a cause and effect relationship between the injuries sustained and the work[-]related incident reported on July 12, 2019.”

By decision dated April 14, 2020, OWCP denied modification of the December 23, 2019 decision.

LEGAL PRECEDENT

When an employee claims that, a condition not accepted or approved by OWCP was due to an employment injury, he or she bears the burden of proof to establish that the conditio n is causally related to the employment injury.5

Causal relationship is a medical question that requires rationalized medical opinion evidence to resolve the issue. 6 A physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment factor(s) must be based on a complete factual and medical background.7 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 employment injury. 8

ANALYSIS

The Board finds that appellant has not met his burden of proof to expand the acceptance of his claim to include SLAP and labral tears of the right shoulder causally related to the accepted July 12, 2017 employment injury.

5
J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); Jaja K. Asaramo, 55 ECAB 200, 204 (2004). 6 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).
7
F.A., Docket No. 20-1652 (issued May 21, 2021); M.V., Docket No. 18-0884 (issued December 28, 2018);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
8
Id.

5
 In support of his claim, appellant submitted a series of reports from Dr. Ceja, who opined that, “It is within a certain degree of medical certainty, that the history presented by the patient, the objective physical findings as well as the diagnosis rendered is causally related to the injury the patient incurred on the specified date.” He further opined that “there appears to be a cause and effect relationship between the injuries sustained and the work [-]related incident reported on July 12, 2019.” However, these reports merely provided a conclusory opinion regarding causal relationship. The Board has held that a medical opinion that is conclusory in nature is of limited probative value.9 Dr. Ceja did not explain with medical rationale how he concluded that appellant’s right shoulder anterior and posterior labrum tears were caused by the accepted incident.10 His reports are, therefore, insufficient to meet appellant’s burden of proof.

Dr. Ashraf provided reports dated December 10, 2018 and March 4, 2019, in which he diagnosed right shoulder anterior and posterior labral tears and recommended right shoulder surgery. However, he merely provided a diagnosis and request for authorization for surgery and did not offer any opinion to explain how the diagnosed conditions resulted from the accepted July 12, 2017 employment injury. 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.11 Therefore, these reports are insufficient to establish appellant’s claim.12

Dr. Steele provided reports dated September 12 and November 6, 2017 and October 29, 2018, in which she diagnosed right shoulder possible SLAP tear, possible anteroinferior labral tear, pain, and stiffness. The Board notes that she opined, “[t]he right shoulder condition happened because of the injury while at work on 07/12/2017.” However, as these reports are conclusory in nature and lack medical rationale, they are of limited probative value and insufficient to meet appellant’s burden of proof to establish his claim. 13

OWCP also received a number of diagnostic reports. However, the Board has held that diagnostic tests, standing alone, lack probative value as they do not provide an opinion on causal relationship between diagnosed conditions, and an employment injury.14 Therefore, this evidence also is insufficient to establish appellant’s claim.

As appellant has not submitted any rationalized medical evidence establishing that the acceptance of his claim should be expanded to include SLAP and labral tears of the right shoulder,

9
C.M., Docket No. 19-0360 (issued February 25, 2020); C.D., Docket No. 17-0292 (issued June 19, 2008); Mary A. Ceglia, 55 ECAB 626 (2004). 10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See R.D., Docket No. 18-1551 (issued March 1, 2019).
11
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
12
Id.
13
Supra note 9.
14
S.K., Docket No. 19-0272 (issued July 21, 2020); A.V., Docket No. 19-1575 (issued June 11, 2020).

6 causally related to the accepted July 12, 2017 employment injury, he has failed to meet 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(a) and 20 C.F.R.
§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met his burden of proof to expand the acceptance of his claim to include SLAP and labral tears of the right shoulder causally related to the accepted July 12, 2017 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the April 14, 2020 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: October 7, 2021
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

7