B.C. and Department of Veterans Affairs, Veterans Administration Medical Center (Board decision, March 19, 2024)

ECAB final decision. The Board affirmed OWCP's refusal to add a right shoulder condition to the accepted injury claim. A party may petition the Board for reconsideration within 30 days of issuance unless this order 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 VA medical center worker sought to add a right shoulder condition to a claim for a left shoulder injury. Her physician said the new condition might have resulted from favoring the right arm during recovery, but the Board found that opinion speculative and based on an inaccurate symptom history. A second opinion attributed the right shoulder condition to aging. The Board affirmed OWCP's refusal to expand the claim.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.; 5 U.S.C. § 8128(b).
• Outcome: Right shoulder claim expansion denied.
• Key point: A speculative causation opinion did not support adding the condition.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.C., Appellant
)
)
and ) Docket No. 24-0036
) Issued: March 19, 2024
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Danville, IL, Employer
)
__________ )

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 October 20, 2023 appellant, through counsel, filed a timely appeal from a September 22, 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.

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.
 ISSUE

The issue is whether appellant has met her burden of proof to expand the acceptance of her claim to include a right shoulder condition as causally related to the accepted May 19, 2020 employment injury.

FACTUAL HISTORY

On June 13, 2020 appellant, then a 63-year-old nurse, filed a traumatic injury claim (Form CA-1) alleging that on May 19, 2020 she injured her left shoulder when she performed chest compressions on a mannequin while in the performance of duty. OWCP accepted the claim for tendinitis of the left shoulder. Appellant underwent authorized surgery to the left shoulder on January 27, 2022 by Dr. Edward H. Kolb, a Board-certified orthopedic surgeon, including left shoulder arthroscopy with revision repair of full-thickness rotator cuff tendon tear and arthroscopic revision of subacromial decompression with extensive debridement of torn anterior, superior, and labral tissues. She stopped work on January 25, 2022 and returned to full-time modified-duty work with restrictions on June 1, 2022.

Reports of physical therapy to the left shoulder dated March 17 and May 3, 2022 indicated that appellant’s left arm was improving, but that she began having symptoms with her right arm. Further reports of physical therapy dated May 5, 11, and 17, 2022 indicated that she underwent a cortisone injection to the right shoulder and that her right shoulder remained more painful than her left shoulder.

In a May 16, 2022 statement, appellant indicated that her right shoulder began bothering her in the fall of 2021 during physical therapy prior to her January 27, 2022 surgery. She noted that she had right shoulder surgery approximately 20 years prior for impingement syndrome, and had not had any injuries to the right shoulder since that time.

In a July 18, 2022 medical report, Dr. Kolb noted that appellant related that her left shoulder pain was much better after surgery, but that she was experiencing right shoulder pain, which she attributed to physical therapy and compensating with the right shoulder following her left shoulder surgery. He performed a physical examination of the right shoulder, which revealed positive impingement signs and tenderness to palpation at the acromioclavicular (AC) joint with positive cross-body adduction test. Dr. Kolb diagnosed chronic right shoulder pain, recommended an x-ray and magnetic resonance imaging (MRI) scan of the right shoulder, and opined that her right shoulder pain was “work-related given the fact that she had no pain prior to her work-related injury.”

An MRI scan of the right shoulder dated September 8, 2022 demonstrated a full-thickness tear in the supraspinatus tendon anteriorly with a small intrasubstance tear in the infraspinatus tendon and widening of the AC joint.

In a September 19, 2022 follow-up report, Dr. Kolb reviewed the MRI scan results, and recommended right shoulder rotator cuff tendon repair surgery with subacromial decompression, distal clavicle excision, and biceps tenodesis.

2
 On October 19, 2022 OWCP referred appellant, together with a statement of accepted facts (SOAF), the medical record, and a series of questions to Dr. John Kefalas, a Board-certified orthopedic surgeon, for a second opinion to determine the nature and extent of her accepted conditions and whether she developed any subsequent medical conditions causally connected to the May 19, 2020 employment injury.

In a November 16, 2022 report, Dr. Kefalas reviewed the SOAF and medical record. He noted physical examination findings for the right and left shoulders. Dr. Kefalas diagnosed an aggravation of left rotator cuff repair. Regarding the right shoulder, he opined that there was insufficient evidence to support “a causal association between her right shoulder condition and her post-operative physical therapy exercises” or “a causal association of favoring the opposite extremity.” He explained that rotator cuff lesions are seen with aging, are often asymptomatic, and that activity is beneficial, not detrimental. Dr. Kefalas opined it was “most probable that the right shoulder symptoms are a result of the normal aging process” and not causally related to appellant’s work activities.

By decision dated January 3, 2023, OWCP denied appellant’s claim for expansion, finding that the medical evidence of record was insufficient to support expansion of the acceptance of her claim to include a right shoulder condition.

On January 12, 2023 appellant, through counsel, requested a hearing before a representative of OWCP’s Branch of Hearings and Review, which was held on July 19, 2023.

In an August 10, 2023 medical report, Dr. Kolb noted that appellant related complaints of right shoulder pain, which she attributed to “the rehab for the left shoulder after surgery” and that she was seeking an evaluation to determine whether her “right shoulder pain is caused by over- compensation from the left shoulder recovery.” He performed a physical examination and observed a positive impingement sign, positive speed’s test, and subjective complaints of pain in the anterior lateral aspect of her right shoulder and mid anterior portion of the right arm. Dr. Kolb diagnosed full-thickness rotator cuff tendon tear, impingement syndrome, and biceps tendinitis of the right shoulder. He opined that it was “certainly possible that [appellant] sustained at least an aggravation to her underlying right shoulder condition due to the excess use of her right shoulder while recovering from her left shoulder injury.” Dr. Kolb explained that appellant stated that she began to have pain in the right shoulder around the same time that she injured her left shoulder on May 19, 2020.

By decision dated September 22, 2023, OWCP’s hearing representative affirmed the January 3, 2023 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 condition is causally related to the employment injury.3 When an injury arises in the course of employment, every natural consequence that flows from that injury likewise arises out of the employment, unless it is

3
M.M., Docket No. 19-0951 (issued October 24, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).

3 the result of an independent intervening cause attributable to the claimant’s own intentional misconduct.4 Thus, a subsequent injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.5

To establish causal relationship between a specific condition, as well as any attendant disability claimed, and the employment injury, an employee must submit rationalized medical evidence.6 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.7

ANALYSIS

The Board finds that appellant has not met her burden of proof to expand the acceptance to include a right shoulder condition as causally related to her accepted May 19, 2020 employment injury.

In his July 18, 2022 medical report, Dr. Kolb diagnosed chronic right shoulder pain, which he opined was “work-related given the fact that she had no pain prior to her work-related injury.” The Board has held that pain is a description of a symptom, not a clear diagnosis of a medical condition.8 As such, Dr. Kolb’s July 18, 2022 report is insufficient to meet appellant’s burden of proof.

In his August 10, 2023 medical report, Dr. Kolb diagnosed a full-thickness rotator cuff tendon tear, impingement syndrome, and biceps tendinitis of the right shoulder. He opined that it was “certainly possible” that she sustained at least an aggravation to her underlying right shoulder condition due to the excess use of her right shoulder while recovering from her left shoulder injury. The Board finds that Dr. Kolb’s opinion that it was “certainly possible” that appellant’s right shoulder condition was caused by therapy for the accepted May 19, 2020 left shoulder condition is speculative in nature.9 Medical opinions that are speculative or equivocal in character are of diminished probative value.10 Moreover, Dr. Kolb’s opinion is based on an inaccurate history that appellant began to have pain in the right shoulder around the same time that she injured her left shoulder on May 19, 2020. Her statement and testimony indicated that her right shoulder pain 4 See J.M., Docket No. 19-1926 (issued March 19, 2021); I.S., Docket No. 19-1461 (issued April 30, 2020); see also Charles W. Downey, 54 ECAB 421 (2003).
5
J.M., id.; Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).
6
See V.A., Docket No. 21-1023 (issued March 6, 2023); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).
7
E.P., Docket No. 20-0272 (issued December 19, 2022); I.J., 59 ECAB 408 (2008).
8
D.R., Docket No. 18-1408 (issued March 1, 2019); D.A., Docket No. 18-0783 (issued November 8, 2018).
9
See P.D., Docket No. 18-1461 (issued July 2, 2019); E.B., Docket No. 18-1060 (issued November 1, 2018);
Leonard J. O’Keefe, 14 ECAB 42 (1962).
10
D.B., Docket No. 18-1359 (issued May 14, 2019); Ricky S. Storms, 52 ECAB 349 (2001).

4 began during physical therapy prior to her January 27, 2022 left shoulder surgery and worsened during physical therapy thereafter. Medical reports based on an incomplete or inaccurate history are of limited probative value.11 For these reasons, Dr. Kolb’s August 10, 2023 report is also insufficient to establish appellant’s consequential injury claim.

The second opinion physician, Dr. Kefalas, in his November 16, 2022 report, opined that there was insufficient evidence to support a causal relationship between appellant’s right shoulder condition and her postoperative physical therapy exercises or from favoring the opposite extremity. He explained that her right shoulder symptoms were the result of the normal aging process and not causally related to her work activities. The Board has reviewed the opinion of Dr. Kefalas and finds that it has reliability, probative value and convincing quality with respect to its conclusions regarding the relevant issue. Accordingly, OWCP properly accorded the weight of the medical evidence to Dr. Kefalas’ opinion regarding causation.12

As the medical evidence of record is insufficient to establish expansion of the acceptance of the claim to include an additional condition as causally related to appellant’s accepted employment injury, the Board finds that she has not met 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 her burden of proof to expand the acceptance to include a right shoulder condition as causally related to her accepted May 19, 2020 employment injury.

11
See S.B., Docket No. 21-0646 (issued July 22, 2022); D.H., Docket No. 21-0537 (issued October 18, 2021); T.B., Docket No. 17-0304 (issued May 16, 2017); S.R., Docket No. 14-1086 (issued February 26, 2015) (medical conclusions based on an incomplete or inaccurate factual background are of limited probative value). 12 G.N, Docket No. 23-0763 (issued February 21, 2024)

5
 ORDER

IT IS HEREBY ORDERED THAT the September 22, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 19, 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

6