United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.E., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Victorville, CA, Employer 

__________________________________________ 

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Docket No. 14-868 

Issued: September 24, 2014 

Appearances: Case Submitted on the Record

Lonnie Boylan, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 7, 2014 appellant, through her representative, filed a timely appeal from the 

January 27, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP), 

which denied expansion of the accepted medical conditions. 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 the conditions for which appellant seeks compensation are causally 

related to the September 1, 2011 work injury. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On September 1, 2011 appellant, a 50-year-old psychologist, sustained a traumatic injury 

in the performance of duty when she bent over from her chair to check a telephone wire 

connection under her desk, lost her balance and fell. 

Dr. Rami T. Pathi, a Board-certified orthopedic surgeon, examined appellant on 

September 15, 2011. He noted appellant’s complaints, listed the history of injury, and described 

his findings on examination. Dr. Pathi diagnosed a meniscus tear of the right knee and lumbar 

and cervical sprain. Based on appellant’s statements and his clinical examination, Dr. Pathi 

found that appellant’s current injury to the right knee was the direct result of the work incident 

that occurred on September 1, 2011.2

 

On December 7, 2011 OWCP accepted appellant’s claim for right knee sprain and strain 

with a lumbar sprain and strain. 

A magnetic resonance imaging (MRI) scan of the cervical spine obtained on January 4, 

2012 showed numerous findings from C3-7, including bilateral uncovertebral hypertrophy, 

disc/osteophyte complexes, facet arthropathy, neural foraminal narrowing, and a left paracentral 

disc herniation at C4-5 with mild spinal canal stenosis on the left. The study found no stress 

injury or compression deformity. 

On April 4, 2012 Dr. Pathi updated his diagnosis to include cervical herniations with 

radiculopathy. He also updated his statement of causation or work relatedness. Based on the 

description given by appellant and the physical examination, Dr. Pathi determined that 

appellant’s injury to the neck was the direct result of the work incident that occurred on 

September 1, 2011. On June 18, 2012 he updated his diagnosis to include depression secondary 

to pain. On April 3, 2013 Dr. Pathi updated his diagnosis to include lumbago and cervicalgia. 

X-rays of the cervical spine, obtained on August 24, 2012, showed marked spondylosis 

involving C5-6 and C6-7 with marked narrowing of C5-6 and C6-7 right-sided neural foramina. 

The severity of this neural foraminal narrowing was noted to have mildly worsened since 

September 2, 2004. The study also showed prominent facet joint degenerative arthritis involving 

the left C3-4 facet. There was no acute cervical spine injury. There was upper thoracic scoliosis 

and lower cervical kyphosis. 

An MRI scan of the right knee was obtained on September 27, 2012. It showed a 

probable small free edge tear of the junction of the posterior horn and body of the medial 

meniscus; a ganglion cyst measuring 2.8 centimeters posterior to the superior aspect of the 

interosseous membrane; small joint effusion; and medial greater than lateral patellofemoral 

degenerative changes represented by chondral loss and marginal osteophyte formation. 

On November 20, 2012 Dr. Ross N. Brudenell, a Board-certified orthopedic surgeon, 

noted that appellant was injured at work as a prison guard in September 2011. He described his 

 2

 Dr. Pathi inadvertently noted February 2, 2011 as the date of injury as he had earlier included in his report that 

his examination followed the occurrence of the September 1, 2011 employment injury. 
3

findings on examination and reviewed MRI scan studies of appellant’s cervical spine. 

Dr. Brudenell diagnosed cervical radiculopathy, slowly resolving, and cervical spondylosis, “the 

latter of which certainly predates her injury but certainly her cervical radiculopathy seems to be 

directly related to her injury.” 

An MRI scan of the lumbar spine, obtained on April 26, 2013, showed multilevel 

degenerative changes, most prominent at the L5-S1 level. 

On April 11, 2013 OWCP referred appellant, together with a statement of accepted facts 

and the medical record, to Dr. Douglas Bald, a Board-certified orthopedic surgeon, for a second 

opinion on the extent of her September 1, 2011 employment injury. In a May 15, 2013 report, 

Dr. Bald related appellant’s history of injury. He noted that she was aware of the acute onset of 

pain primarily in the right side of her neck and upper back.3

 Dr. Bald reviewed appellant’s 

medical record, including the results of diagnostic studies. He described her complaints and 

symptoms, as well as his findings on physical examination and offered his diagnoses. 

It was Dr. Bald’s opinion that the injuries appellant incurred on September 1, 2011 were 

consistent with the accepted conditions of right knee sprain, lumbar sprain and neck sprain.4 It 

was his opinion that the lumbar sprain and right knee sprain had resolved completely without 

residuals and were not contributing to any persistent symptomatology or physical limitation. 

Dr. Bald observed that appellant’s current major subjective complaints were felt to be directly 

related to her cervical spine condition. In his opinion, the evidence supported that the neck 

sprain associated with the September 1, 2011 work injury, combined with her preexisting severe 

multilevel degenerative disc disease, and at least historically and objectively was aggravated by 

the work incident and was unlikely to resolve with any medical treatment. Dr. Bald added that 

the result of the September 1, 2011 work injury was a persistent chronic pain syndrome and 

persistent right upper extremity radiculopathy/radiculitis. 

Appellant’s representative asked OWCP to expand its acceptance to include several 

medical conditions.5

 In turn, OWCP asked Dr. Bald for a supplemental report addressing 

whether any of these conditions were related to the September 1, 2011 work injury, and if so, 

 3

 The earliest medical evidence shows that appellant reported immediate pain in the right side of her mid-back 

and in her right knee. The T10-12 area was painful to palpation and had palpable spasm. Though appellant reported 

that she began to feel stiffness in her upper back and neck by the evening, there were no clinical findings and no 

diagnosis with respect to either. Clinical studies were promptly obtained for her thoracic spine and right knee. The 

first clinical study of the cervical spine was an MRI scan obtained on January 4, 2012. It was not until April 4, 2012 

that Dr. Pathi first reported a connection between appellant’s neck condition and the September 1, 2011 work injury. 

4

 Notwithstanding the April 8, 2013 statement of accepted facts, OWCP did not formally accept appellant’s claim 

for neck sprain. 

5

 Aggravation of the preexisting cervical degenerative disc disease at multiple levels; cervical spondylosis at C5-6 

and C6-7; cervical stenosis and narrowing of the right-sided neural foramina at C5-6 and C6-7; cervical 

radiculopathy; cervical disc herniation; facet joint degeneration arthritis involving the left C3-4 facet; lumbar disc 

disorder, cervicalgia; lumbago; posterior horn and body tears of the medial meniscus; degenerative changes to the 

right knee represented by chondral loss and marginal osteophyte formation along the lateral patellofemoral joint; 

acute scapular thoracic strain; and right C5-6 paresthesias. 
4

how. It also asked Dr. Bald to provide a rationalized opinion that differentiated appellant’s 

preexisting cervical degenerative disease from the effects of the accepted work injury. 

In a June 21, 2013 addendum, Dr. Bald advised that there was a large list of preexisting 

medical conditions, many of which were unrelated to the September 1, 2011 work injury. It was 

reasonable, he found, to expand the conditions associated with the injury claim to include a 

permanent aggravation of appellant’s preexisting cervical spondylosis with right C5-6 

paresthesias. The other conditions claimed, were not related in any way to the September 1, 

2011 work injury. These conditions included cervical stenosis at C5-6 and C6-7, cervical 

radiculopathy, cervical disc herniation, facet joint degenerative arthritis involving the left C3-4 

facet, lumbar disc disorder, posterior horn and body of the meniscus tears, degenerative changes 

of the right knee represented by chondral loss and marginal osteophyte formation along the 

lateral patellofemoral joint and acute scapulothoracic strain. None were caused or affected by 

the incident in question. 

As for differentiating the preexisting cervical degenerative disc disease from the effects 

of the September 1, 2011 work injury, Dr. Bald noted that appellant was functioning reasonably 

well leading up to the incident. Since then appellant had experienced increasing subjective 

symptomatology and recurrent evidence of radiculitis, at least in the right upper extremity, that 

was persistent since the work injury. 

On April 3, 2013 Dr. Pathi noted that, although appellant had a preexisting condition of 

the cervical and lumbar spine, she was asymptomatic prior to the September 1, 2011 work injury. 

She had no prior injury to her right knee. After describing appellant’s current complaints, 

Dr. Pathi listed the following medical conditions as causally related to the September 1, 2011 

work injury: aggravation of the preexisting cervical degenerative disc disease at multiple levels; 

cervical radiculopathy; cervical disc herniation; lumbar disc disorder; posterior horn and body 

tears of the medial meniscus; acute scapular thoracic strain; right C5-6 paresthesias. 

Dr. Pathi stated that appellant had prior cervical disc herniations that were exacerbated or 

worsened by the September 1, 2011 work injury. Given her prior condition and the nature of her 

fall and twist injury, it was reasonable to conclude that the incident caused a permanent 

aggravation of appellant’s cervical and lumbar spine. Objective findings included rigidity, 

spasm, tenderness and limited motions of the spine throughout. Appellant had a positive straight 

leg raising test bilaterally and a positive pump handle test. She had no prior injury to her right 

knee and was asymptomatic prior to the work injury. Appellant fell on her right knee and was 

symptomatic ever since. She had preexisting degenerative changes to her right knee, and the 

tears to the medial meniscus, revealed by MRI scan, were causally related to the fall. Objective 

findings included tenderness, mild swelling, weakness and limited motion. McMurray’s and 

Apley’s tests were positive. 

On August 21, 2013 OWCP accepted appellant’s claim to include a torn right medial 

meniscus. 

On June 6, 2013 Dr. Sarah Buenviaje-Smith, a consulting Board-certified pain specialist, 

advised that, although she did not have copies of any previous MRI scans of the lumbar spine to 
5

determine if there was any progression of the pathology, she believed that the mechanism of the 

fall injury may have aggravated appellant’s preexisting condition. 

On November 26, 2013 Dr. Pathi reviewed Dr. Bald’s report and disagreed with his 

opinion that the September 1, 2011 work injury did not aggravate appellant’s preexisting 

diseases. He described the work injury and found that the twisting of her spine and neck, 

combined with the sustained high-impact traumatic fall, exacerbated appellant’s cervical and 

lumbar disc disorders. To provide the rationale for this aggravation, Dr. Pathi noted that the 

discs act as load-bearing cushions and help to distribute compressive forces to the spine. Any 

traumatic fall, such as appellant’s fall on September 1, 2011, can cause further injury to or 

exacerbate or aggravate already injured spinal discs. “These injuries also contribute to 

degenerative changes along the bony aspects of the spine.” 

Dr. Pathi noted that appellant’s cervical spine was more directly impacted when she fell, 

which led to muscle imbalances and stress surrounding her spine and shoulders. As a direct 

result of the fall, when appellant now looks up or down, twists at the trunk, attempts to lift heavy 

objects overhead and in front of her body, the extension of looking upwards with the cervical 

spine closed the bony opening for the nerves to exit the spine, causing and exacerbating her 

symptoms of the cervical disorder radiating upper extremity pain, numbness and weakness. 

Appellant’s lumbar spine was also affected by the fall. Dr. Pathi noted that the April 26, 

2013 MRI scan revealed multiple disc bulges at all levels with moderate bulges from L3-5 and 

moderate-to-severe loss of disc height with diffuse disc bulge at L5-S1. Appellant’s symptoms 

only increased after her fall on September 1, 2011, and as a direct result, she now has difficulty 

with prolonged sitting or walking, radiating pain and numbness to both lower extremities down 

to her feet, as well as pain with any bending or lifting. The constant numbness to both feet made 

it difficult to feel the ground beneath her, which increased the difficulty of ambulation. Dr. Pathi 

continued: 

“The physiological mechanism of [appellant’s] falling on September 1, 2011, 

while in the performance of her duties as a [c]linical [p]sychologist with the 

Federal Bureau of Prisons, accelerated or speeded the expected progression of her 

preexisting conditions of cervical stenosis and narrowing of the right-sided neural 

foramina at C5-C6 and C6-C7, cervical radiculopathy, cervical disc herniation, 

facet joint degeneration arthritis involving the left C3-C4 facet, lumbar disc 

disorder, degenerative changes of the right knee represented by chondral loss and 

marginal osteophyte formation along the lateral patellofemoral joints, and acute 

scapulothoracic strain. [These conditions] are progressive in nature [and] in her 

present debilitating condition would not have manifested itself but for her 

employment. Based on my 39 years of experience as a Board[-]Certified 

Orthopedic Surgeon, my long-term medical treatment and first-hand observation, 

my review of the relevant medical records and my interpretations of the relevant 

diagnostic testing, it is my opinion that there is no other reasonable medical 

explanation in regards to her present debilitating condition but that [appellant’s] 

permanent aggravation to the aforementioned preexisting conditions were 

unequivocally precipitated, accelerated and proximately caused by the 

September 1, 2011 work injury.” 
6

In a decision dated January 27, 2014, an OWCP hearing representative affirmed the 

August 21, 2013 decision as modified to accept appellant’s claim for permanent aggravation of 

cervical spondylosis and right C5-6 paresthesias as found by Dr. Bald. The hearing 

representative found that the medical evidence did not establish the element of causal relation for 

the other claimed conditions and that OWCP gave appropriate weight to Dr. Bald’s opinion. The 

hearing representative explained that the opinions of other physicians were not well rationalized. 

In particular, Dr. Pathi’s opinion that the fall could have aggravated a preexisting spinal disc 

condition was speculative. He did not address the history of appellant’s cervical spine condition 

from 2004 or her 2009 nonoccupational injury. Further, Dr. Pathi did not make a clear 

distinction between preexisting cervical and lumbar condition and her condition following the 

September 1, 2011 work injury. 

LEGAL PRECEDENT 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of duty.6

 An employee seeking benefits under FECA 

has the burden of proof to establish the essential elements of her claim, including that she 

sustained an injury in the performance of duty and that any specific condition or disability for work 

for which she claims compensation is causally related to that employment injury.7

Causal relationship is a medical issue,8 and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence. The opinion of the 

physician must be based on a complete factual and medical background of the claimant,9 must be 

one of reasonable medical certainty,10 and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the established incident or factor 

of employment.11

ANALYSIS 

On December 7, 2011 OWCP accepted appellant’s claim for right knee sprain and strain 

and lumbar sprain and strain. The first mention of an accepted neck sprain appears in the 

April 8, 2013 statement of accepted facts provided to Dr. Bald, the second opinion orthopedic 

surgeon. Following his reports, and the August 19, 2013 report of Dr. Pathi, the attending 

orthopedic surgeon, OWCP accepted a tear of the right medial meniscus and a neck sprain. 

Thereafter, the hearing representative accepted a permanent aggravation of preexisting cervical 

spondylosis with right C5-6 paresthesias, as Dr. Bald had recommended. 

 6

 5 U.S.C. § 8102(a). 

7 Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

8 Mary J. Briggs, 37 ECAB 578 (1986). 

9 William Nimitz, Jr., 30 ECAB 567, 570 (1979). 

10 See Morris Scanlon, 11 ECAB 384, 385 (1960). 

11 See William E. Enright, 31 ECAB 426, 430 (1980). 
7

OWCP denied any further expansion of appellant’s claim on the grounds that the medical 

opinion evidence is not well rationalized. On September 15, 2011 Dr. Pathi stated that, based on 

appellant’s statements, his clinical examination, and his experience as a Board-certified 

orthopedic surgeon, appellant’s current injury to the right knee was the direct result of the work 

injury. It was a conclusion he would repeat, without elaboration, in follow-up reports. On 

April 4, 2012 Dr. Pathi stated that, based on the description given by appellant, the physical 

examination, and his training and experience as a Board-certified orthopedic surgeon, appellant’s 

injury to the neck, otherwise unspecified, was the direct result of the work injury that occurred 

on September 1, 2011. Again, he did not adequately explain what it was about appellant’s 

description or his findings and experience that brought him to that conclusion. 

Dr. Brudenell, another orthopedic surgeon, diagnosed cervical radiculopathy, slowly 

resolving, and cervical spondylosis, the latter of which, he commented, predated appellant’s 

injury but “certainly her cervical radiculopathy seems to be directly related to her injury.” Like 

Dr. Pathi, he did not explain the reason this seemed to be the case. The Board has held that 

medical conclusions unsupported by rationale are of diminished probative value.12

Dr. Buenviaje-Smith, a consulting pain specialist, advised that she did not have copies of 

any previous MRI scans of the lumbar spine to determine if there was any progression of the 

pathology. Nonetheless, she stated that the mechanism of the fall injury may have aggravated 

appellant’s preexisting condition. That is possible, of course, but conjecture is not sufficient to 

discharge appellant’s burden to establish the element of causal relationship. Although the 

medical opinion of a physician supporting causal relationship does not have to reduce the cause or 

etiology of a disease or condition to an absolute medical certainty, neither can such opinion be 

speculative or equivocal.13

Dr. Pathi noted on April 3, 2013 that appellant had preexisting cervical and lumbar spine 

conditions and preexisting degenerative changes to her right knee, but she was asymptomatic 

prior to the September 1, 2011 work injury. The Board has held, however, that when a physician 

concludes that a condition is causally related to employment because the employee was 

asymptomatic before the employment injury, the opinion is insufficient, without supporting 

medical rationale, to establish causal relationship.14 The mere fact that a condition manifests itself 

or worsens during a period of federal employment raises no inference of causal relationship 

between the two.15 Dr. Pathi did not explain how appellant’s fall and twist injury had permanently 

aggravated any preexisting medical condition. 

On November 26, 2013 Dr. Pathi provided some medical rationale to support his opinion. 

He explained that vertebral discs act as load-bearing cushions to help distribute compressive forces 

 12 Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954). 

13 Philip J. Deroo, 39 ECAB 1294 (1988); Jennifer Beville, 33 ECAB 1970 (1982) (statement of a Board-certified 

internist that the employee’s complaints “could have been” related to her work injury was speculative and of limited 

probative value). 

14 Thomas D. Petrylak, 39 ECAB 276 (1987). 

15 Steven R. Piper, 39 ECAB 312 (1987). 
8

to the spine, and any traumatic fall, such as appellant’s high-impact fall, can further injure already 

injured discs. He added that such injuries contribute to degenerative changes along the bony 

aspects of the spine, and in appellant’s case had contributed to muscle imbalances and stress 

surrounding her spine and shoulders and an increase in lumbar symptomatology after the 

September 1, 2011 work injury. 

Dr. Pathi’s opinion that the work incident accelerated or speeded the expected progression 

of appellant’s preexisting conditions appears to lack any objective basis in the medical record. He 

did not adequately explain how any preexisting condition had progressed beyond what might be 

expected from the natural progression of that condition. Dr. Buenviaje-Smith advised that she did 

not have copies of any previous MRI scans of the lumbar spine to determine if there was any 

progression of the pathology. The Board notes that x-rays of the cervical spine, obtained on 

August 24, 2012, showed marked spondylosis involving C5-6 and C6-7 with marked narrowing 

of C5-6 and C6-7 right-sided neural foramina. The study indicated, however, that the severity of 

this narrowing had only mildly worsened since September 2, 2004. If there was anything in this 

study that supported Dr. Pathi’s opinion that the September 1, 2011 work injury was likely 

responsible for the mild worsening, as opposed to the natural progression of the preexisting 

condition over an eight-year period, he did not explain. 

OWCP asked Dr. Bald to provide a rationalized opinion that differentiated appellant’s 

preexisting condition from the effects of the work injury. Dr. Pathi failed to explain how the 

incident could have accelerated or speeded the expected progression of appellant’s preexisting 

conditions. Without such evidence, Dr. Pathi’s description of the physiological mechanism of 

the fall and its effect on appellant’s spine remains speculative. 

Accordingly, the Board finds that Dr. Pathi’s opinion on causal relationship is of 

diminished probative value and is insufficient to establish the element of causal relationship. 

Dr. Pathi has offered a physiological explanation of how a traumatic fall can further injure 

intervertebral discs that are already injured, but he has not shown how the medical record 

supports his hypothesis that the September 1, 2011 work injury accelerated or speeded the 

expected progression of any preexisting condition. Because his opinion is of diminished probative 

value, the Board also finds no conflict warranting referral to an impartial medical specialist under 

5 U.S.C. § 8123(a). The Board will therefore affirm OWCP’s January 27, 2014 decision. 

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 to establish that the conditions for 

which appellant seeks compensation are causally related to the September 1, 2011 work injury. 
9

ORDER 

IT IS HEREBY ORDERED THAT the January 27, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 24, 2014 

Washington, DC 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board