United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

DEPARTMENT OF THE INTERIOR, FISH & 

WILDLIFE SERVICE, Valley Stream, NY, 

Employer 

__________________________________________ 

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Docket No. 14-291 

Issued: May 19, 2014 

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On November 22, 2013 appellant, through his attorney, filed a timely appeal from an 

October 21, 2013 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 established an injury in the performance of duty on 

January 3, 2013. 

FACTUAL HISTORY 

On January 15, 2013 appellant, then a 50-year-old investigator, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained injuries in a motor vehicle accident on January 3, 

 1

 5 U.S.C. § 8101 et seq. 
2

2013 while in the performance of duty. He described injury to the left side of his head, neck, 

right lower back, right arm and right shoulder. By letter dated January 16, 2013, OWCP advised 

appellant that additional factual and medical evidence was required to establish the claim for 

compensation. 

Appellant submitted a hospital emergency room report dated January 3, 2013 from 

Dr. Paul Taglienti, Board-certified in emergency medicine, who listed a history of a “motor 

vehicle accident” and stated that the diagnosed conditions were right arm weakness and brachial 

plexus injury. The record contains diagnostic testing performed on January 3, 2013, which 

included magnetic resonance imaging (MRI) scan of the brachial plexus and cervical spine, 

x-rays of the lumbar back, right shoulder and pelvis and computerized tomography of the brain 

and cervical spine. The cervical MRI scan report noted degenerative changes and mild central 

spinal stenosis at C5-6 and the brachial plexus MRI scan reported no injury. 

In a narrative statement, appellant described the motor vehicle accident of January 3, 

2013, noting that he swerved to avoid another vehicle and struck a metal guard rail. He also 

submitted a police accident report. 

In a report dated January 22, 2013, Dr. Ali Guy, a Board-certified physiatrist, provided a 

history that on January 3, 2013 appellant tried to avoid a car and struck a rail. Appellant 

complained of neck, low back, right shoulder and arm pain. Dr. Guy advised that appellant was 

not working and provided results on examination. He diagnosed multiple traumatic injuries, rule 

out cervical/lumbar disc bulge versus herniation, rule out cervical/lumbar radiculopathy, 

traumatic myofascial pain syndrome, internal derangement on the right shoulder, rule out rotator 

cuff tear, rule out right upper extremity brachial plexopathy. 

By decision dated February 26, 2013, OWCP denied the claim for compensation. It 

accepted the January 3, 2013 incident, but found that the medical evidence was insufficient to 

establish causal relationship. 

On May 31, 2013 appellant requested reconsideration of the claim. He submitted a 

March 19, 2013 report from Dr. Guy, who noted that diagnostic testing included MRI scans 

dated March 7, 2013 of the right shoulder and cervical spine and an electromyogram (EMG) 

dated March 19, 2013 of the upper extremities. Dr. Guy diagnosed C3-7 disc herniations, right 

shoulder full rotator cuff tear and a tear of the anterior and superior labrum, right shoulder severe 

adhesive capsulitis, acute traumatic bilateral C5-7 cervical radiculopathy, rule out lumbar disc 

bulge versus herniation, lumbar radiculopathy (clinical) and traumatic myofascial pain 

syndrome. He stated, “Based upon the history obtained, the clinical examination findings, 

results of the MRI [scans] and EMG studies, which were performed by me and which were 

reviewed by me, it is my professional opinion that [appellant] has sustained a permanent injury 

as a result of the automobile accident of January 3, 2013.” Dr. Guy stated that appellant 

remained totally disabled. He noted that appellant had a prior right shoulder partial rotator cuff 

tears of 2004, but it went from a partial tear to a full complete tear necessitating surgery. 

By decision dated October 21, 2013, OWCP denied modification of the February 26, 

2013 decision. It found that the medical evidence of record was insufficient to establish an 

injury causally related to the accepted motor vehicle accident. 
3

LEGAL PRECEDENT 

FECA provides for the payment of compensation for “the disability or death of an 

employee resulting from personal injury sustained while in the performance of duty.”2

 The 

phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the 

commonly found requisite in workers’ compensation law of “arising out of an in the course of 

employment.”3

 An employee seeking benefits under FECA has the burden of establishing that 

he or she sustained an injury while in the performance of duty.4 In order to determine whether 

an employee actually sustained an injury in the performance of duty, OWCP begins with an 

analysis of whether “fact of injury” has been established. Generally, “fact of injury” consists of 

two components, which must be considered in conjunction with one another. The first 

component to be established is that the employee actually experienced the employment incident 

which is alleged to have occurred. The second component is whether the employment incident 

caused a personal injury and generally this can be established only by medical evidence.5

 

Rationalized medical opinion evidence is medical evidence that is based on a complete 

factual and medical background, of reasonable medical certainty and supported by a medically 

sound explanation of the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant. The weight of medical evidence is 

determined by its reliability, its probative value, its convincing quality, the care of the analysis 

manifested and the medical rationale expressed in support of the physician’s opinion.6

ANALYSIS 

In the present case, OWCP accepted that appellant was involved in a motor vehicle 

accident while in the performance of duty on January 3, 2013. Although appellant received 

treatment at a hospital emergency room on that date, this does not itself establish an injury in the 

performance of duty.7

 There must be sufficient medical evidence to establish a causal 

relationship between a specific diagnosed condition and the employment incident. As noted, the 

physician must have an accurate factual and medical background, provide a diagnosis and a 

sound explanation as to the relationship between the diagnosed condition and the employment 

incident. 

The medical evidence of record does not meet appellant’s burden of proof. The 

emergency room report contains only a brief reference to a motor vehicle accident, with no 

physical examination results. The diagnosis indicated was a right arm weakness and a brachial 

plexus injury. Dr. Taglienti did not provide any opinion on causal relationship. The Board notes 

 2

 5 U.S.C. § 8102(a). 

3 Valerie C. Boward, 50 ECAB 126 (1998). 

4 Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115. 

5 See John J. Carlone, 41 ECAB 354, 357 (1989). 

6 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 

7 See, e.g., C.P., Docket No. 13-831 (issued July 12, 2013); V.P., Docket No. 13-484 (issued May 9, 2013). 
4

that the MRI scan evidence of record reported no brachial plexus injury. The emergency room 

evidence is not sufficient to establish an injury causally related to the January 3, 2013 accident. 

Appellant submitted reports dated January 22 and March 31, 2013 from Dr. Guy. The 

January 22, 2013 report contains a history of the January 3, 2013 incident, but no opinion on 

causal relationship. The diagnoses listed include a general “multiple traumatic injuries,” which 

is not a specific diagnosed condition, a number of “rule out” possible diagnoses and a right 

shoulder internal derangement and traumatic myofascial pain syndrome. Dr. Guy did not 

provide an opinion as to the causal relationship of the specific diagnosed conditions to the 

employment incident. The Board finds that the January 22, 2013 is not of sufficient probative 

value to meet appellant’s burden of proof. 

The March 31, 2013 report from Dr. Guy refers to additional diagnostic testing on 

March 7 and 19, 2013 and provided a new set of diagnoses: C3-7 disc herniations, right shoulder 

full rotator cuff tear and a tear of the anterior and superior labrum, right shoulder severe adhesive 

capsulitis, acute traumatic bilateral C5-7 cervical radiculopathy, rule out lumbar disc bulge 

versus herniation, lumbar radiculopathy (clinical) and traumatic myofascial pain syndrome. On 

the issue of causal relationship, he provided only a brief statement that appellant sustained “a 

permanent injury” as a result of the January 3, 2013 accident, based on his review of the 

evidence. This opinion is of limited probative value without further explanation as to the reasons 

for Dr. Guy’s stated conclusions. Dr. Guy provided several diagnosed conditions, including 

cervical herniations and radiculopathy, right shoulder conditions, a lumbar radiculopathy and 

myofascial pain syndrome. It is not clear which of these conditions constituted the “permanent 

injury” related to the employment incident. The March 31, 2013 report notes that appellant 

previously had partial rotator cuff tears in 2004 but Dr. Guy did not adequately address the 

preexisting shoulder condition or explain how the current diagnosed condition was related to the 

accepted employment incident.8

The Board finds that the medical evidence of record is not sufficient to meet appellant’s 

burden of proof. The medical evidence does not contain a report with a complete medical 

history or sound explanation of how the January 3, 2013 motor vehicle accident caused or 

aggravated a specific diagnosed condition or conditions. 

On appeal, appellant contends that the evidence is sufficient to establish injury. For the 

reasons noted, the Board finds that he did not 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 did not establish an injury in the performance of duty on 

January 3, 2013. 

 8 See supra note 6 at Chapter 2.805.3(e) (January 2013) (if there is a preexisting condition in the same part of the 

body, the physician must provide a medical opinion that differentiates between the effects of the work-related injury 

and the preexisting condition). 
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ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated October 21, 2013 is affirmed. 

Issued: May 19, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board