United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.M., Appellant 

and 

DEPARTMENT OF LABOR, OFFICE OF 

WORKERS’ COMPENSATION, Dallas, TX, 

Employer 

__________________________________________ 

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Docket No. 14-2057 

Issued: May 12, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 29, 2014 appellant filed a timely appeal from a May 23, 2014 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. 

ISSUE 

The issue is whether appellant met his burden of proof to establish that a January 24, 

2008 slip and fall caused neurological injuries. 

On appeal, appellant alleges that the medical evidence of record establishes that his 

neurological condition worsened after his January 24, 2008 slip and fall. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On January 29, 2008 appellant, a 36-year-old claims examiner, filed a traumatic injury 

claim alleging that on January 24, 2008 he stepped on a file, lost his balance, and fell at work. 

He subsequently experienced numbness and tingling in his feet, left knee pain, neck, upper and 

lower back strains, a knot on the left side of his face, abdominal strain, left elbow soreness, and 

bowel and bladder problems. Appellant stopped work on the date of injury and did not return.2 

In several February 11, 2008 statements, appellant related that he lost his balance and fell 

because a paper file was on the floor. In falling, he hit his left forehead on his desk. Appellant 

stated that his face, neck, and back hurt, and that when he stood up he had weakness in his legs 

and tingling in both feet. Two coworkers helped him into his chair where he sat for 

approximately 30 minutes. Appellant noted that, when he tried to stand, he could not put weight 

on his left leg. He later informed his supervisor that he needed medical care and he was taken by 

ambulance to a hospital. When discharged, appellant continued to have leg numbness. When he 

awoke the next day his head, neck, left arm, left shoulder, mid and low back, and left knee hurt. 

The numbness and tingling continued in appellant’s feet and he had bladder leakage. These 

symptoms continued through February 4, 2008. He reported difficulty finding a physician who 

would see him because he was not assigned a claim number until February 2, 2008. 

In a January 24, 2008 emergency room report, Dr. Michael V. Passanante, Boardcertified in emergency medicine, stated that appellant slipped on file folders that day and struck 

his head. Appellant had a prior history of Brown-Sequard syndrome with residual left leg 

weakness.3 After the fall, he felt tingling in both legs, was unsteady when ambulating, and had 

muscle spasms. Appellant denied neck pain. Examination showed no cervical spine swelling or 

tenderness, chronic limited range of motion, chronic changes to the left leg, and right sensory 

deficit. A computerized tomography (CT) scan of the head was negative, and a cervical spine 

CT scan showed postoperative changes. Appellant was discharged in stable condition with a 

diagnosis of acute closed head injury and paresthesias. Discharge instructions were for a minor 

head injury. Appellant was referred to a neurosurgeon and kept off work until medically cleared. 

On February 4, 2008 Dr. Michael Duchamp, an osteopath, noted that appellant was a 

quadriplegic from a prior injury, had a prior fusion at three neck levels, and ambulated with a 

cane. Appellant related a right leg injury and striking his head when he fell on January 24, 2008. 

He later had intermittent leg numbness with a burning sensation, some low back pain, and bowel 

and bladder incontinence. Appellant had mild to moderate lumbar pain and spasms with 

restricted low back motion and severely restricted neck motion from the previous fusion. 

Dr. Duchamp diagnosed bilateral sciatica, lumbar sprain, and urge incontinence. He stated that 

there had been a neurologic change, but appellant was difficult to evaluate because he did not 

have normal sensation from his previous injuries. Dr. Duchamp recommended a lumbar 

 2

 Social security disability benefits were approved for appellant in July 2008. 

3

 Brown-Sequard syndrome is described as damage of one half of the spinal cord, resulting in ipsilateral paralysis 

and loss of discriminatory and joint sensation, and contralateral loss of pain and temperature sensation. Dorland’s

Illustrated Medical Dictionary (29th ed. 2000). 
3

magnetic resonance imaging (MRI) scan, and noted that appellant could return to work on 

March 4, 2008.4 

In reports dated February 14 and 19, 2008, Dr. Pierre Herding, a Board-certified 

neurologist, noted that appellant had fallen at work on January 24, 2008 injuring his neck and 

back after striking the left side of his head. He noted the prior cervical spine fracture injury and 

diagnosed aggravation of preexisting condition and found appellant disabled. Dr. Herding 

indicated that the condition was work related by checking a form box marked “yes.” 

On February 25, 2008 OWCP advised appellant that although it initially allowed limited 

medical payments, the merits of the claim had not yet been adjudicated. It informed him of the 

type of evidence needed to establish his claim. 

On April 16, 2008 appellant asserted that his fall aggravated his preexisting condition. 

He submitted Dr. Passanante’s January 24, 2008 examination report which described the remote 

cervical injury with left leg weakness and appellant’s report that, since he fell at work, he had 

bilateral leg tingling. Appellant denied neck pain or headaches. 

Also submitted were new reports from Dr. Herding. On February 12, 2008 he noted 

complaints of urinary incontinence and foot numbness and acknowledge a 1990 cervical spine 

fracture with operative repair and subsequent symptoms. Dr. Herding noted a January 24, 2008 

fall where appellant struck the left side of his head and had developed occasional urinary leakage 

along with one episode of bowel incontinence. Examination showed no leg atrophy, and clonus 

and spasticity on the left. The right arm and leg had diminished pinprick sensation and appellant 

reported diminished sensation of the bottoms of both feet. Vibratory sensibility was modestly 

reduced bilaterally. Dr. Herding diagnosed possible recurrent spinal cord injury. In reports 

dated February 25 and March 3, 2008, he advised that appellant had been evaluated for 

aggravation of preexisting cervical spine injury and could not return to work until April 3, 2008 

due to a cervical/lumbar injury. 

In a February 27, 2008 attending physician’s report, Dr. Duchamp reported that, after the 

January 24, 2008 work fall, appellant reported foot numbness and incontinence. He reiterated 

his diagnoses and stated that the fall at work could have caused a back sprain and change from 

appellant’s baseline. Dr. Duchamp advised that appellant remained totally disabled. 

In March 2008, appellant relocated from Texas to Oklahoma. On March 14, 2008 

Dr. John W. Ellis, Board-certified in family medicine noted that, in 1990, appellant was thrown 

from a boat and had a C5 fracture, followed by surgery and rehabilitation. Appellant left a 

rehabilitation hospital in February 1991. He also had a 1988 motor vehicle accident that caused 

facial lacerations, lost teeth, and fractured a finger. In 2003, appellant fell and fractured his left 

elbow. He began work with the employing establishment in August 2003, at which time he 

walked with a right forearm crutch and had marked left arm and leg weakness with some 

 4

 A February 12, 2008 lumbar spine MRI scan showed pars defects at L5 without obvious spondylolisthesis of L5, 

and mild disc bulging at L4-5 with no significant central or foraminal stenosis. A February 14, 2008 lower 

extremity electromyogram and nerve conduction study showed delayed latency of the right peroneal motor nerve 

and diminished recruitment of the left leg muscles. 
4

weakness in the right arm and sequelae of Brown-Sequard syndrome. Appellant described the 

January 24, 2008 fall at work, stating that he reinjured his neck. Dr. Ellis stated that, after the 

workplace fall, appellant developed more left arm and leg weakness and continued to have neck, 

lower thoracic, and lumbar pain, tingling in the bottoms of both feet, and increased left toe drag. 

Examination showed spine tenderness, scabbing on the left elbow from a recent fall, hypertrophy 

of the right medial epicondyle, left hand atrophy with finger retraction, obvious left arm atrophy, 

and left leg weakness and atrophy, consistent with Brown-Sequard syndrome due to the 1990 

injury. Dr. Ellis diagnosed resolved left forehead contusion; muscle tendon unit strain of the left 

side of the neck and shoulder girdle muscles and ligaments; neck strain with spinal cord injury in 

a previous area of injury; thoracic strain; muscle tendon unit strain of the back and right 

iliolumbar ligaments; left elbow contusion; and contusion of the left knee, patellar tendon, 

patella, and lateral joint line.5

 He opined that appellant’s work caused or aggravated all 

diagnoses. Dr. Ellis stated that, because appellant had preexisting weakness, he fell harder on 

January 24, 2008, causing muscle strain on the left side of his neck and shoulders, somewhat on 

the right, with the sudden jarring aggravating the preexisting spine injury, which caused the left 

arm and left leg to become weaker and more sensitive. It also caused a spinal cord contusion 

that caused numbness and tingling in the bottom of his feet, and bladder difficulties. Dr. Ellis 

noted that a thoracic spinal cord compression was possible, noting a normal lumbar MRI scan 

study at L5-S1, and abnormal electrodiagnostic study findings which “could be due to an injury 

in the lumbar area, the thoracic area or even the cervical area.” He noted that, before 

January 2008, appellant fell approximately once yearly, but that, since then, he fell more 

frequently and had more left foot drop. Dr. Ellis found that appellant was totally disabled since 

January 24, 2008. He advised that appellant be very careful with neck movements as constant 

data entry and writing with his head flexed “would probably be very detrimental to his spinal 

cord at this time.” 

Appellant returned to Texas in March 2008. On April 7, 2008 Dr. Herding found 

appellant’s condition unchanged. In reports dated April 18, 2008, Dr. Ellis stated that appellant’s 

neurological problems had worsened since the work fall, noting that he was developing cauda 

equina syndrome that affected bowel and bladder function. He recommended more testing and 

continued to find appellant totally disabled. 

In letters dated April 29, 2008, OWCP asked Drs. Herding and Duchamp to review a 

statement of accepted facts and provide a reasoned opinion regarding whether appellant’s current 

conditions were caused or aggravated by his federal employment. In a May 5, 2008 statement, 

appellant related that he went about 16 years without treatment after the 1990 cervical spine 

injury. He maintained that the January 2008 work fall aggravated his preexisting condition. 

In a May 13, 2008 report, Dr. Herding reiterated appellant’s history. He stated that his 

initial impression was a “possible recurrent spinal injury, possibly aggravating his preexisting 

condition.” Further testing was recommended. Dr. Ellis continued to submit reports advising 

that appellant was totally disabled because his injuries were extensive and would require longterm treatment and rehabilitation. 

 5

 Dr. Ellis also diagnosed right elbow medial epicondylitis. Appellant filed an occupational disease claim for this 

condition, adjudicated under a separate claim. This matter is not presently before the Board. 
5

The employing establishment provided a January 24, 2008 incident report, indicating that 

appellant refused medical assistance immediately after the fall. 

In a July 25, 2008 decision, OWCP denied the claim because the medical evidence was 

insufficient to establish causal relationship. It noted that appellant had not submitted medical 

evidence regarding the 1990 injury or describing his condition before the January 24, 2008 fall. 

Appellant requested reconsideration. Additional reports from Dr. Ellis noted appellant’s 

status, advised that he was falling more frequently, and found him totally disabled. On 

November 19, 2008 he noted reviewing OWCP’s decision. Dr. Ellis opined that the work fall 

worsened appellant’s condition, as his spinal cord could be very sensitive to even small trauma. 

He noted reviewing records from appellant’s 1990 hospitalization and asserted that his current 

symptoms were consistent with a previously impaired, very sensitive spinal cord that was injured 

again, causing more symptoms. 

A December 1, 2008 thoracic spine MRI scan showed diffuse myelomalacia of the spinal 

cord and mild degenerative disc disease of the upper and mid-thoracic spine. A December 1, 

2008 cervical spine MRI scan showed diffuse myatomalacia with suggestion of a focal syrinx at 

C5-6 that was not well demonstrated; solid fusion of C4-5 and C5-6; and discogenic and 

spondylitic changes at C6-7, which contributed to moderate left and mild right neural foraminal 

stenosis. 

In a decision dated March 20, 2009, OWCP found the medical evidence insufficient to 

warrant modification of the prior decision. 

Appellant requested reconsideration and submitted evidence concerning the 1990 injury. 

On July 6, 1990 Dr. Charles F. Engles, a Board-certified neurosurgeon, noted that appellant 

struck his head in shallow water and was paralyzed. X-rays showed a compression fracture 

dislocation at C5. On August 16, 1990 Dr. Engles and Dr. J.P. Livingston, a Board-certified 

orthopedic surgeon, performed a cervical spine fusion and appellant was discharged to 

rehabilitation on August 30, 1990. Appellant later regained some movement. Incomplete spinal 

cord injury at C6 and C5 fracture were diagnosed. 

In a January 26, 2009 report, Dr. Engles noted that appellant did very well after the 1990 

injury. Although he had not seen appellant since 1990, appellant reported that he had completed 

schooling, had productive employment, was married, and fathered children. Dr. Engles 

described appellant’s report of the January 24, 2008 work fall. He noted appellant’s report of 

increased symptoms from that date, such as a significant, precipitous, and acute decline in 

neurologic function, including loss of bowel and bladder control, and a greatly reduced ability to 

ambulate. Dr. Engles noted that initial tests did not reveal any hard evidence for fracture or disc 

rupture and advised that further studies were needed to fully understand his condition. He 

concluded that appellant’s impairment affected his ability to be employed. 

In a February 10, 2009 treatment note, Dr. Ellis indicated that the December 1, 2008 MRI 

scan studies showed a progression of the spinal cord impairment in appellant’s neck such that he 

could not work as a claims examiner because he could not sit, use a computer, perform data entry 
6

type, or write, and could barely use a cellular telephone. He later referred appellant to Dr. Tom 

Ewing6 and to Dr. Michael E. Goodrich, a neurologist. 

In a June 16, 2009 form report, Dr. Brian Lamkin, an osteopath, noted that appellant had 

fallen seven hours earlier and had a history of frequent falls over the past year. He diagnosed left 

elbow, wrist, and shoulder contusions and discussed use of a motorized scooter. In a July 14, 

2009 report, Dr. Goodrich noted the 1990 spinal cord injury which left appellant with left arm 

paresis and a current complaint of numbness and tingling in the little and ring fingers bilaterally. 

Electrodiagnostic studies from that date showed no evidence of cervical motor radiculopathy and 

ruled out an underlying peripheral neuropathy. 

In a January 14, 2010 report, Dr. Ellis reiterated his previous findings and found new 

objective conditions of thoracic paraspinous and rhomboideus atrophy, which was indicative of 

an acute spinal cord injury, opining that it would take months after the fall for the atrophy to 

appear. Dr. Ellis noted current MRI scan findings of diffuse myelomalacia were in the thoracic 

spine while appellant’s 1990 injury was to the cervical spine. 

In a January 22, 2010 report, Dr. Gabriel Pitman, a Board-certified neurologist, noted the 

1990 injury and a January 2008 injury to the head and neck. After the latter injury, appellant 

developed increased tingling in the feet that had improved, persistent increased weakness and 

stiffness in the left arm, increased falling, worsening gait disturbance due to increased leg 

weakness, constant neck pain, and bowel and bladder incontinence. He had a spastic gait and 

decreased cervical motion, left arm atrophy and decreased strength, and decreased sensation in 

the arms. Dr. Pitman reviewed the December 1, 2008 MRI scan studies and the July 14, 2009 

electrodiagnostic study and suspected that appellant had experienced flexion/extension injury in 

January 2008 with likely additional injury to the spinal cord. He indicated that appellant’s 

examination was consistent with a Brown-Sequard syndrome as far as sensory loss in the feet, 

that he was hyperreflexic, was clearly weak in the left arm and leg, and had a gait abnormality. 

Dr. Pitman recommended more testing and a neurosurgery consultation.7

 

In a May 24, 2010 merit decision, OWCP found that there were no medical reports 

supporting a material worsening of the preexisting condition due to the January 24, 2008 work 

incident. It found the medical evidence insufficient to warrant modification of the prior 

decisions. 

Appellant requested reconsideration, stating that he did not need medical care from 1990 

to 2008 as his condition was stable. He also submitted medical evidence. On March 5, 2010 

Dr. Pitman reviewed the February 16, 2010 MRI scan studies and diagnosed cervical 

 6

 A report from Dr. Ewing is not found in the case record. 

7

 A February 16, 2010 cervical spine MRI scan showed bone fusion across C4-5 and C5-6; reversal of cervical 

lordosis; a focal expansile cystic lesion in the cervical cord from C4 through C6 that appeared to separate and 

displace the atretic cervical spinal cord along the lateral margins; significant diffuse atrophy of the cervical and 

upper thoracic spinal cord; disc osteophyte complex at C6-7 with probable small superimposed central disc 

protrusion. A February 16, 2010 thoracic spine MRI scan showed diffuse symmetric thoracic cord atrophy without 

focal signal abnormality to suggest syrinx formation or myelomalacia; no evidence of spinal canal or foraminal 

stenosis; no significant disc bulge; and normal marrow signal of the thoracic vertebral bodies. 
7

myelopathy. He advised that appellant’s old spinal cord injury was likely exacerbated by the 

2008 neck trauma which caused increased symptoms. Dr. Pitman also diagnosed mid-thoracic 

and neck pain, indicating that a disc osteophyte complex at C6-7 could be contributing to some 

of appellant’s pain problem, which he suspected was directly related from the head and neck 

injury in 2008. 

On December 27, 2010 Dr. Engles reported that on January 24, 2008 appellant tangled 

his foot in cords and fell forward, striking his head on a desk and since had a significant decline 

in neurologic function. He advised that a cervical myelogram with postmyelogram CT scan 

study demonstrated a very solid fusion and tethering of the spinal cord with three points of 

fixation at the site of his old injury.8

 Dr. Engles opined that the January 2008 fall placed 

appellant’s neck suddenly in hyperextension which stretched his cord and produced a profound 

injury without overt evidence of trauma on plain films or on an MRI scan study. He concluded 

that appellant’s current neurologic problems were caused by appellant’s fall at work on 

January 24, 2008 and recommended referral to a physiatrist for conservative management.9

 

On May 13, 2011 OWCP denied modification of its prior decision. Appellant requested 

reconsideration. He stated that he was not under medical care for 15 years before the January 24, 

2008 incident such that there were no medical records with his baseline condition before the 

incident. Appellant noted being in a 1988 automobile accident, but had no residuals, and 

afterward played football and completed basic training. In 2003, he fell, broke his left arm, was 

placed in a cast, and returned to work a few weeks later. Appellant did not recall who treated 

him. He also submitted medical evidence. A December 6, 2010 cervical myelogram showed an 

inferior extradural defect at C5-6. A cervical CT scan study of the same date showed 

postfracture and postsurgical changes from C4 through C6 and a disc bulge at C6-7, which could 

cause some neural foraminal narrowing of unknown significance, and no cord impingement. An 

addendum advised that at the peripheral aspect of the cord at the site of the prior trauma near the 

C5 level appeared to enhance somewhat and could be related to granulation tissue or changes in 

the nature of the tissue at this area. No discrete syrinx was identified. 

In treatment notes dated January 18 to August 25, 2011, Dr. A.J. Bisson, a Boardcertified physiatrist, noted the 1990 boating accident and that on January 24, 2008 appellant was 

struck on the back of his head by files falling. Appellant reported that his condition had declined 

since January 2008 with progressive weakness in his arms and legs and occasional episodes of 

urinary and bowel incontinence. He initially diagnosed spastic quadriparesis related to cervical 

spinal cord injury in 1990, status post surgical intervention, and gait difficulties caused by the 

1990 injury. On April 12, 2011 Dr. Bisson opined that the workplace injury of January 24, 2008 

 8

 An August 5, 2010 cervical spine CT scan showed a solid fusion at C4-6. An August 18, 2010 cervical spine 

MRI scan showed increased T2 weighted signal that likely represented gliosis and myelomalacia from C4 to the C6; 

postoperative changes; and the possibility of a syrinx dorsal to the lower C6 vertebral body. 

9

 The record also includes one page of a September 20, 2010 report from Dr. Pitman’s office, noting that 

appellant was seen in follow up. 
8

resulted in an exacerbation of appellant’s medical condition and, as such, the issues he currently 

dealt with would be employment related.10 

On October 25, 2011 OWCP denied modification of the prior decision. Appellant 

requested reconsideration and submitted Dr. Bisson’s November 22, 2011 report that reiterated 

his diagnoses and opined that appellant’s recent symptoms were due to the January 24, 2008 

work incident when files struck him on the head. On December 6, 2011 Dr. Bisson noted that 

appellant contacted him and stated that, files did not fall on his head but, rather, he tripped over a 

file on the floor, fell forward, and hit his head on the desk. 

By decision dated February 27, 2012, OWCP denied modification of the prior decisions. 

Appellant, through counsel, requested reconsideration on December 11, 2012. In a 

January 8, 2010 report, Dr. Glenn L. Smith, a Board-certified osteopath specializing in 

orthopedic surgery, noted appellant’s report of the 1990 injury with ensuing partial paralysis, and 

that he tripped and fell at work, hitting his head on a desk, which caused ongoing problems. He 

described appellant’s complaint of achy and burning neck pain. Dr. Smith noted examination 

findings of guarded, painful cervical spine range of motion, tenderness, and muscle spasm, and 

advised that a cervical spine x-ray demonstrated postsurgical changes. He diagnosed status post 

fusion with residual paralysis and partial recovery. 

In January 28 and February 15, 2012 reports, Dr. Graciela Gallardo, Board-certified in 

family medicine, reported seeing appellant for chronic pain. She noted a history of cervical 

spine fusion in 1990 and described examination findings. Dr. Gallardo diagnosed chronic neck 

and thoracic back pain, chronic pain syndrome, and high risk medication management. 

In a February 5, 2013 report to counsel, Dr. Engles repeated the history of the July 6, 

1990 accident and fusion surgery. He indicated that, over the next few years, he interacted with 

appellant by correspondence and telephone, and that he next saw appellant on January 26, 2009 

when appellant reported a significant deterioration in neurologic function over the past year. 

Dr. Engles reported his findings that day. He opined that appellant had a profound injury in 

1990, but did well until the January 24, 2008 fall at work which caused an immediate 

deterioration in his neurologic function. Dr. Engles advised that a December 6, 2010 cervical 

myelogram with postmyelogram CT scan showed clear abnormalities of appellant’s spinal cord 

at the C5 level near the point of his maximum injury in 1990, stating that his spinal cord was 

tethered to the dura at three points from post-traumatic scarring. He continued: 

“The medical literature shows evidence that spinal cords can be tethered by scar 

tissue after traumatic injury and from surgery. The medical literature notes that 

there can be delayed post[-]traumatic decline in neurologic function from this 

tethering. The medical literature also notes that there is a physiologic basis for a 

tethered spinal cord injury due to local spinal cord ischemia and impairment due 

to increased strain from sheer forces that are caused by local external injury of the 

 10 Appellant also submitted a July 28, 2011 treatment note from Dr. Richard E. Herlihy, a Board-certified 

urologist, which is illegible. On August 25, 2011 Dr. Bisson noted that Dr. Herlihy did not feel that there was 

anything to offer appellant regarding his urinary incontinence. 
9

spinal cord. The spinal cord has been noted in normal motion to stretch in its 

length and a stretch associated injury is accepted as the principal factor of 

myelopathy in experimental models of neural injury, tethered cord syndrome, and 

diffuse axonal injury. In my opinion, [appellant] had a traumatic quadriplegia 

from a fracture at the C5 level in 1990. [Appellant] was quadriplegic. He had 

surgery and did show recovery although incomplete. This abruptly changed with 

the single fall on January 24, 2008 while [appellant] was employed with [the 

employing establishment]. It is my opinion that the hyperextension mechanism of 

action stretched his tethered spinal cord to a degree that axonal injury resulted 

causing his reported new impairment and decline of neurologic function. This 

was a new injury aggravating [appellant’s] preexisting but quiescent tethered 

myelopathic cord.” 

Dr. Engles indicated that the original diagnosis due to the 1990 injury was closed fracture of C5 

with cord injury and that his current diagnosis was spinal cord injury without evidence of spinal 

bone injury. He attached a list of supportive medical literature. 

In a decision dated February 25, 2013, OWCP denied modification of the prior decisions. 

On February 18, 2014 appellant requested reconsideration. He submitted an October 18, 

2010 report in which Dr. Caple A. Spence, a Board-certified neurosurgeon, noted that appellant 

was in a 1990 boating accident that caused quadriparesis but that he had improved until about 

2008 when he struck his head on a file and since that time had difficulty with weakness. 

Dr. Spence indicated that from the history it appeared that appellant had an incomplete BrownSequard syndrome, and since he struck his head while tripping over files at work, he had 

increased falling, worsening gait, and associated leg weakness with increased back pain. He 

diagnosed Brown-Sequard syndrome, status post cord injury; hemiparesis secondary to cord 

injury; and cervicalgia. Dr. Spence indicated that no additional surgery was needed. 

On February 5, 2014 Dr. Engles essentially repeated his previous conclusions. He stated 

that September 2005 and 2006 urgent care records did not mention any impairment of motor or 

ambulatory function. Dr. Engles opined that appellant’s fall at home when he fractured his arm 

did not have any untoward injury to his head and neck. He also noted reviewing ambulance 

service and emergency room records from the January 24, 2008 injury. Dr. Engles stated: 

“My interpretation of these records is that they support [appellant’s] report of his 

injury. It supports his report that there was indeed a change in his neurologic 

function after the injury. It supports [appellant’s] report that he struck his head in 

the course of the fall with secondary hyperextension movement of the neck. The 

neurologic examination in the emergency room is not detailed, but only refers to 

what [appellant] reported to the [physician]. The records do support the causal 

relation of his slip and fall on the file folders at work, striking his head, 

hyperextending his neck, and the resultant deterioration in his neurologic
10

function. This is not a result of natural progression but rather a significant 

traumatic aggravation of his preexisting Brown-Sequard syndrome and spinal 

cord injury, which was prior to the fall, stable, and functional.” 

He indicated that an example for a spinal cord injury without a bony injury was the rare situation 

of adult tethered cords, which are most commonly tethered at the sacral end. These typically 

involve adults with falls or flexion injuries and subsequent new neurologic deficit in the legs or a 

paraparesis with some loss of bowel or bladder control. Dr. Engles noted that appellant’s 

tethered cord was an unusual and uncommon traumatic tethering and scarring of his injured 

cervical spinal cord at the level of his cervical spine injury, which was also the level of his 

surgery and that had been quiescent and stable until he hyperextended his neck in the 2008 fall 

which stretched his spinal cord, causing the injury. He concluded that this was known and 

described in the literature, but was rare and not seen very often. Dr. Engles reiterated that the 

fall on January 24, 2008 stretched appellant’s spinal cord such that an axonal injury resulted in 

new impairment and decline of neurologic function and again attached the list of supportive 

publications. 

In a merit decision dated May 23, 2014, OWCP denied modification of the prior 

decisions. It found Dr. Engles’ opinion of insufficient rationale to support a causal relationship 

between the January 24, 2008 work injury and any diagnosed condition. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of establishing 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, that an injury was sustained in the performance of duty as alleged 

and that any disability and/or specific condition for which compensation is claimed is causally 

related to the employment injury. These are the essential elements of each and every 

compensation claim, regardless of whether the asserted claim involves traumatic injury or 

occupational disease, an employee must satisfy this burden of proof.11

OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the 

body caused by a specific event or incident or series of events or incidents within a single 

workday or shift.12 To determine whether an employee sustained a traumatic injury in the 

performance of duty, OWCP must determine whether “fact of injury” is established. First, an 

employee has the burden of demonstrating the occurrence of an injury at the time, place, and in 

the manner alleged, by a preponderance of the reliable, probative, and substantial evidence. 

Second, the employee must submit sufficient evidence, generally only in the form of medical 

evidence, to establish a causal relationship between the employment incident and the alleged 

disability and/or condition for which compensation is claimed. An employee may establish that 

 11 Roy L. Humphrey, 57 ECAB 238 (2005). 

12 20 C.F.R. § 10.5(ee) (1999, 2011); Ellen L. Noble, 55 ECAB 530 (2004). 
11

the employment incident occurred as alleged, but fail to show that his or her disability and/or 

condition relates to the employment incident.13

Under FECA, when employment factors cause an aggravation of an underlying physical 

condition, the employee is entitled to compensation for the periods of disability related to the 

aggravation.14 Where the medical evidence supports an aggravation or acceleration of an 

underlying condition precipitated by working conditions or injuries, such disability is 

compensable.15 However, the normal progression of untreated disease cannot be stated to 

constitute “aggravation” of a condition merely because the performance of normal work duties 

reveal the underlying condition.16 For the conditions of employment to bring about an 

aggravation of preexisting disease, the employment must cause acceleration of the disease or 

precipitate disability.17 When the aggravation is temporary and leaves no permanent residuals, 

compensation is not payable for periods after the aggravation ceased.18 

Causal relationship is a medical issue, and the medical evidence required to establish a 

causal relationship is rationalized medical evidence.19 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 employee.20 Neither the mere fact that a disease or condition manifests itself during a period 

of employment nor the belief that the disease or condition was caused or aggravated by 

employment factors or incidents is sufficient to establish causal relationship.21

ANALYSIS 

The record supports that the January 24, 2008 work incident occurred as alleged. 

Appellant indicated that he slipped on a file folder and fell, striking the left side of his head on a 

desk. However, the medical evidence is insufficient to establish that the January 24, 2008 

employment incident caused or aggravated a diagnosed medical condition. 

Appellant sustained a severe nonemployment-related C5 cervical spine fracture in 

July 1990. He had cervical spine fusion surgery at that time and, at discharge, was diagnosed 

 13 Gary J. Watling, 52 ECAB 278 (2001). 

14 Raymond W. Behrens, 50 ECAB 221, 222 (1999); James L. Hearn, 29 ECAB 278, 287 (1978). 

15 A.C., Docket No. 08-1453 (issued November 18, 2008). 

16 See Glenn C. Chasteen, 42 ECAB 493 (1991). 

17 Supra note 15. 

18 Raymond W. Behrens, supra note 14. 

19 Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

20 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 

21 Dennis M. Mascarenas, 49 ECAB 215 (1997). 
12

with C6 incomplete spinal cord injury and C5 fracture. Appellant then underwent physical 

rehabilitation. The rehabilitation records, however, are not in the case record before the Board. 

Appellant also fell and fractured his left elbow in 2003. There is no medical evidence of record 

regarding this prior injury. Appellant asserted that his quadriplegic condition had stabilized and 

that he needed no significant medical care after he was discharged from rehabilitation. The 

record contains no contemporaneous medical evidence regarding appellant’s condition, 

neurological or otherwise, between his 1990 hospital discharge and the emergency room records 

of January 24, 2008. The ambulance report from January 24, 2008 is also not in the record. 

Thus, there is no medical evidence to establish appellant’s neurological baseline following the 

1990, injury or his condition in January 2008 prior to the fall at work. Without documentation 

bridging appellant’s medical condition during this period, it is difficult to assess his baseline 

condition prior to that time.22

The medical evidence of record most contemporaneous with the January 24, 2008 fall are 

the January 24, 2008 emergency room records. Dr. Passanante described the remote cervical 

injury and appellant’s development of Brown-Sequard syndrome with residual left leg weakness. 

He related appellant’s report that he slipped on file folders and struck his head as he fell, and 

since the fall, he felt tingling in the legs, felt unsteady when ambulating, had muscle spasms, and 

denied neck pain. Examination demonstrated no swelling or tenderness of the cervical spine 

with chronic limited range of motion, chronic changes to the left leg, and right sensory deficit. 

Dr. Passanante stated that a CT scan study of the cervical spine that day demonstrated 

postoperative changes. Appellant was discharged in stable condition with a diagnosis of acute 

closed head injury and paresthesias. Discharge instructions were for a minor head injury. 

Dr. Passanante did not clearly state whether the work incident caused or aggravated a specific 

condition. 

Dr. Engles provided the most extensive opinion on causal relationship. He, however, did 

not see or examine appellant from the time of his hospital discharge in August 1990 until 

January 2009. While Dr. Engles indicated that appellant had done well since his 1991 discharge 

from rehabilitation until the January 2008 fall, this opinion was based solely on appellant’s 

description. A physician’s report is of little probative value when it is based on a claimant’s 

belief rather than the physician’s independent judgment.23 Dr. Engles also noted two 

descriptions of the January 2008 injury. He first indicated that appellant tangled his foot in cords 

when he fell and later reported a history that appellant slipped on a file on January 24, 2008. 

Dr. Engles advised that a December 6, 2010 myelogram with postmyelogram CT scan showed 

clear abnormalities of appellant’s spinal cord at C5 near the point of his maximum injury in 

1990. He indicated that appellant sustained an unusual and uncommon traumatic tethering and 

scarring of his injured cervical spinal cord at the level of his cervical spine injury. Dr. Engles 

noted that the spinal cord at that level had been quiescent and stable until appellant 

hyperextended his neck with the 2008 fall which stretched his spinal cord, causing injury. He 

asserted that medical literature confirmed that a stretch associated cord injury is accepted to be a 

principal factor of neural injury, tethered cord syndrome, and diffuse axonal injury. Dr. Engles 

noted that appellant’s condition abruptly changed after the January 24, 2008 work fall, opining 

 22 See C.W., Docket No. 14-730 (issued January 8, 2015). 

23 Earl David Seale, 49 ECAB 152 (1997). 
13

that this aggravated his preexisting but quiescent tethered cord. He explained that 

hyperextension stretched appellant’s tethered spinal cord to a degree that axonal injury resulted 

and this caused new impairment and a decline of neurologic function. Dr. Engles also noted 

reviewing the January 24, 2008 ambulance record and medical records from 2005 and 2006. 

These records, however, are not in the case record before the Board. As Dr. Engles had not 

examined appellant since August 1990, he was not familiar with appellant’s baseline 

neurological condition prior to the fall at work and he could not explain how specific medical 

literature applied to appellant’s specific situation. Furthermore, he did not mention appellant’s 

elbow fracture in 2003 or a history that he fell approximately once a year, as reported by 

Dr. Ellis.24 For these reasons, Dr. Engles’ opinion is of insufficient probative value to establish 

that appellant’s current condition was caused by the January 24, 2008 slip and fall. 

Appellant submitted a number of reports from Dr. Ellis beginning on March 14, 2008. 

Dr. Ellis noted appellant’s preexisting condition and indicated that he had developed more 

weakness in his left arm and leg with continued neck and back pain and tingling of the bottoms 

of both feet and left toe drag after the January 2008 fall. Therefore, caused a sudden jarring that 

aggravated the preexisting spinal cord injury, opining that appellant’s spinal cord could be very 

sensitive to even small trauma. Dr. Ellis indicated that appellant’s current symptomatology was 

consistent with a previously impaired, very sensitive spinal cord that was reinjured, causing more 

symptomatology. He, however, exhibited limited knowledge of appellant’s condition prior to the 

January 24, 2008 fall at work and did not explain how the work incident aggravated his condition 

and why his current conditions or symptoms were not due solely to progression of the 

preexisting condition and his other nonemployment-related falls and injuries. A mere conclusion 

without the necessary rationale explaining how and why the physician believes that a claimant’s 

accepted exposure could result in a diagnosed condition is not sufficient to meet a claimant’s 

burden of proof.25

Reports from other physicians are also insufficient to establish the claim. On February 4, 

2008 Dr. Duchamp reported findings and advised that, although appellant fell on January 24, 

2008, it was difficult to evaluate his condition because he did not have normal sensation from his 

previous injuries. On February 27, 2008 he reported that appellant’s neurologic change with foot 

numbness and incontinence could have been caused by a back sprain due to the January 24, 2008 

fall at work. While the opinion of a physician supporting causal relationship need not be one of 

absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should 

be expressed in terms of a reasonable degree of medical certainty.26 As Dr. Duchamp couched 

his opinion in equivocal terms, his reports are insufficient to establish a neurological injury on 

January 24, 2008. Dr. Herding’s reports dated February 14 to May 13, 2008 are also of little 

probative value. On February 19, 2008 he diagnosed aggravation of preexisting condition and 

checked a form box “yes,” indicating that the condition was caused or aggravated by 

 24 See L.G., Docket No. 09-1692 (issued August 11, 2010) (to be of probative value a medical opinion must be 

based on a complete and accurate factual and medical background; medical opinions based on an incomplete or 

inaccurate history are of diminished probative value). 

25 J.D., Docket No. 14-2061 (issued February 27, 2015). 

26 Ricky S. Storms, 52 ECAB 349 (2001). 
14

employment. The Board has long held that when a physician’s opinion on causal relationship 

consists only of checking “yes” to a form question, that opinion has little probative value and is 

insufficient to establish a causal relationship.27 Dr. Herding opined that the January 2008 fall 

was a possible recurrent spinal injury, possibly aggravating appellant’s preexisting condition but 

this opinion is also speculative and lacks rationale explaining the reasons for the opinion. 

Likewise, the reports from Dr. Pitman, are also speculative. He first saw appellant on 

January 22, 2010, two years after the fall at work. Dr. Pitman described a history that included 

the 1990 injury and that appellant had an additional head and neck injury in January 2008, after 

which he developed increased neurological symptoms including increased falling and frequent 

bowel and bladder incontinence. He stated that he “suspected” appellant had a flexion/extension 

injury in January 2008 with likely additional injury to the spinal cord. On March 10, 2010 

Dr. Pitman diagnosed cervical myelopathy and mid-thoracic and neck pain, noting a disc 

osteophyte complex at C6-7, which he suspected was directly related to the 2008 injury and 

contributing to some of appellant’s pain. He did not explain the basis for his opinion. 

Dr. Bisson provided reports dated January 18 to December 26, 2011. He described the 

1990 injury and initially reported appellant had a work injury in 2008 when files hit him on the 

head and exacerbated his condition. Dr. Bisson noted appellant’s complaint that his condition 

had declined since January 2008. He initially diagnosed spastic quadriparesis related to a 

cervical spinal cord injury in 1990, status post surgery. Dr. Bisson, however, later stated that the 

January 24, 2008 employment injury exacerbated appellant’s medical condition. On 

December 6, 2011 he corrected the history, stating that appellant reported that he tripped over a 

file that was on the floor, fell forward, and hit his head on the desk. Dr. Bisson, who did not 

examine appellant until three years after the slip and fall at work on January 24, 2008, did not 

explain why he initially found that appellant’s condition was due to the 1990 injury. As he did 

not provide a sufficient explanation regarding the mechanism of how the January 24, 2008 

incident caused appellant’s condition, his opinion is insufficient to meet appellant’s burden of 

proof.28

The reports of Drs. Lamkin, Goodrich, Smith, Gallardo, and Spence are insufficient to 

meet appellant’s burden of proof as none of these physicians provided an opinion on the cause of 

his condition. As such, their opinions are insufficient to establish causal relationship.29 

Likewise, numerous diagnostic studies are of limited probative value as they do not address 

whether the 2008 work incident caused any diagnosed conditions. 

Consequently, appellant has not met his burden of proof. He 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. 

 27 Supra note 13. 

28 See T.H., 59 ECAB 388 (2008). 

29 S.E., Docket No. 08-2214 (issued May 6, 2009). 
15

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish that a 

January 24, 2008 slip and fall caused neurological injuries. 

ORDER 

IT IS HEREBY ORDERED THAT the May 23, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 12, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board