United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

NEW YORK HARBOR HEALTHCARE 

SYSTEM, Brooklyn, NY, Employer 

__________________________________________ 

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Docket No. 16-1469 

Issued: December 8, 2016 

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 5, 2016 appellant, through counsel, filed a timely appeal from a May 3, 2016 

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. 
2

ISSUE 

The issue is whether appellant sustained an injury causally related to the June 17, 2014 

employment incident. 

FACTUAL HISTORY 

This case has previously been before the Board.3

 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The facts relevant to the 

instant appeal are set forth below. 

On June 24, 2014 appellant, then a 30-year-old program support assistant, filed a 

traumatic injury claim (Form CA-1) alleging that on June 17, 2014 he experienced numbness in 

both legs and a pinched nerve or pulled muscles in his neck, shoulders, and spine. He related 

that his “office chair and walker locked into one another due to lack of space in [the] office. The 

chair I was on slipped out from under me and I hit the floor.” Appellant stopped work on 

June 17, 2014. 

Dr. Mircea Muresanu, Board-certified in emergency medicine, evaluated appellant in the 

emergency room on June 17, 2014 for back and bilateral knee pain after his walker got stuck in 

an office chair and he fell forward. He provided a past medical history of appellant walking 

“with help of [a] walker, slipped lumbar dis[c]s.” Dr. Muresanu indicated that x-rays of the 

knees and lumbar spine did not show a fracture. He diagnosed a fall with knee and back pain. 

On June 18, 2014 Dr. Alex Racco, an osteopath, discussed appellant’s complaints of neck 

pain and tingling in the lower extremities after he fell forward on his knees at work after slipping 

between his chair and walker. He diagnosed lumbar radiculopathy and cervical radiculitis. 

Dr. Racco instructed appellant to follow up with a workers’ compensation physician. 

A July 1, 2014 magnetic resonance imaging (MRI) scan study of the lumbar spine 

revealed disc bulges at L1-2 through L4-5 and a disc herniation at L5-S1 with “curvature of the 

lumbar spine with convexity to the left.” A July 1, 2014 MRI scan study of the cervical spine 

revealed disc bulges at C2-3 through C6-7 “more prominent than on the prior exam[ination],” a 

new left paracentral disc herniation at C5-6, and foraminal narrowing at C2-3 through C4-5 as a 

result of uncinate process hypertrophy. 

Dr. Racco, in a July 8, 2014 report, advised that he was treating appellant after a fall at 

work. He noted that an orthopedist found that he was unable to work. 

In a statement dated July 22, 2014, appellant indicated that on June 17, 2014 he sustained 

numbness in his legs and feet after he fell forward hitting the ground with his knees. He related, 

“On that morning, I went to move my chair and the wheel of the chair got tangled with the one of 

my walker and I went flying one way and the chair the other.” 

 3

 Docket No. 15-1166 (issued August 24, 2015). 
3

On July 31, 2014 Dr. Racco noted that he had evaluated appellant on June 18, 2014 after 

he fell at work. He opined that diagnostic studies showed a herniated cervical disc. 

In a report dated July 31, 2014, Dr. Todd Schlifstein, an osteopath, reviewed appellant’s 

symptoms of pain in the posterior, paraspinal area of the neck, numbness and tingling of both 

arms, and lumbar spine. He indicated that appellant had experienced an accident at work on 

June 17, 2014. Dr. Schlifstein diagnosed primary cervical disc displacement, primary low back 

syndrome, back strain, radicular symptoms of the upper and lower extremities, and lumbar disc 

displacement. He noted that appellant was off work. 

Counsel, on August 5, 2014, asserted that appellant had been injured in the course of his 

employment duties and noted that after appellant fell he was taken to the emergency room at the 

hospital where he worked. 

By decision dated August 21, 2014, OWCP denied appellant’s claim as the medical 

evidence of record was insufficient to establish a diagnosed condition as a result of the June 17, 

2014 employment incident. 

On September 5, 2014 Dr. Schlifstein noted treating appellant for low back syndrome, 

cervical disc displacement, and chondromalacia of the patella. He opined that appellant was 

totally disabled from July 31 to December 30, 2014. 

In a report dated September 15, 2014, Dr. Schlifstein related that appellant had symptoms 

of “neck pain at the back of his neck and down his arms after a fall at work on June 17, 2014. 

[Appellant] has numbness and tingling in his left and right arms. [He] has low back pain with 

some numbness and tingling from the same accident.” Dr. Schlifstein reviewed the findings of 

herniated discs at C5-6 and L5-S1 on MRI scans. He related, “[Appellant] has no previous 

history of neck and back pain prior to the accident. [His] injuries and conditions mentioned 

above are causally related to [the] employment accident caused on June 17, 2014. At the current 

time, [appellant] is at a level of total disability.” 

On October 3, 2014 appellant, through counsel, requested reconsideration. He asserted 

that the September 15, 2014 report from Dr. Schlifstein was sufficient to show that he sustained 

an injury in the course of his federal employment. 

In progress reports dated November 11, 2014 and March 31, 2015, Dr. Schlifstein 

diagnosed cervical disc displacement, low back syndrome, back strain, radiculopathy of the 

upper and lower extremities, and lumbar disc displacement. He listed findings on examination 

and noted that appellant was out of work. 

By decision dated April 6, 2015, OWCP denied modification of its August 21, 2014 

decision. It found that Dr. Schlifstein did not provide any rationale for his opinion that the 

June 17, 2014 employment incident resulted in the diagnosed conditions. 

Appellant appealed to the Board. In a decision dated August 24, 2015, the Board 

affirmed the April 6, 2015 decision, finding that the medical evidence of record was 
4

insufficiently rationalized to show that he sustained a diagnosed condition as a result of the 

June 17, 2014 work incident.4

On April 23, 2016 appellant, through counsel, again requested reconsideration and 

submitted additional medical evidence. Counsel argued that the medical evidence supported that 

appellant’s attending physician was aware of his preexisting cerebral palsy and was sufficient to 

establish fact of injury. 

In a report dated January 15, 2016, Dr. Schlifstein indicated that appellant had preexisting 

cerebral palsy. He related that on June 17, 2014 appellant “got injured at work trying to go from 

sit[ting] to stand[ing], [and] had a slip and fall causing neck and lumbar spine injury.” 

Dr. Schlifstein attributed appellant’s disc herniation to the fall, noting that he did not have pain in 

his leg or back prior to the incident. 

Dr. Racco, on January 28, 2016, advised that appellant had cerebral palsy unrelated to his 

current injury. 

By decision dated May 3, 2016, OWCP denied modification of its prior decision. It 

found that the medical evidence of record was insufficient to show that appellant experienced a 

herniated disc on June 17, 2014. 

On appeal counsel contends that he submitted factual and medical evidence sufficient to 

establish that appellant sustained an injury in the performance of duty. He notes that appellant’s 

physicians knew of his cerebral palsy and that it was unrelated to the condition resulting from the 

work incident. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of proof to establish 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 filed within the applicable 

time limitation, that an injury was sustained while in the performance of duty as alleged, and that 

any disability and/or specific condition for which compensation is claimed are causally related to 

the employment injury.5 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6

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.7

 Second, the 

 4 See supra note 3. 

5 Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003). 

6 See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004). 

7 David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999). 
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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.8

 An employee may establish that the employment 

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

employment incident.9

ANALYSIS 

In a prior decision, the Board determined that the medical evidence then of record was 

insufficient to establish that appellant sustained an injury due to the June 17, 2014 work incident. 

In particular, it found that the June 17, 2014 report from Dr. Muresanu, the June and July 2014 

reports from Dr. Racco, and the September 2014 through March 2015 reports from 

Dr. Schlifstein either did not address causation or were not based on an accurate medical history, 

and thus were of diminished probative value. The Board noted that the June 17, 2014 emergency 

room report from Dr. Muresanu contained a history of appellant using a walker as a result of 

slipped discs, but that this history was not addressed by the other reports of record. It further 

found that Dr. Schlifstein had not provided rationale for his opinion that the diagnosed 

conditions of a herniated discs at C5-6 and L5-S1 resulted from the June 17, 2014 work incident. 

Appellant, through counsel, requested reconsideration and submitted additional medical 

evidence. 

The Board finds that the additional evidence submitted is insufficient to establish an 

injury causally related to the June 17, 2014 employment incident. In a report dated January 15, 

2016, Dr. Schlifstein discussed appellant’s history of preexisting cerebral palsy. He noted that 

on June 17, 2014 appellant fell at work injuring his cervical and lumbar spine when he tried to 

stand from a seated position. Dr. Schlifstein opined that he sustained a herniated disc at the time 

of his fall, providing as a rationale that he did not experience any back or leg pain before the fall. 

However, a medical opinion that a condition is causally related to an employment injury because 

the employee was asymptomatic before the injury, but symptomatic after it is insufficient, 

without supporting rationale, to establish causal relationship.10 Dr. Schlifstein further did not 

address whether appellant used a walker for preexisting slipped discs, as indicated by the 

emergency room report, or as a result of another condition such as his cerebral palsy. 

Dr. Racco, on January 28, 2016, advised that appellant had cerebral palsy unrelated to his 

current injury. He did not attribute any diagnosed medical condition to the June 17, 2014 work 

incident and thus his opinion is of little probative value. 

On appeal counsel argues that the evidence submitted supports that appellant sustained an 

employment injury on June 17, 2014. He notes that his physicians were aware that he had 

cerebral palsy. Appellant has the burden, however, to submit medical evidence based on a 

 8 Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997). 

9 Id.

10 See D.R., Docket No. 16-0411 (issued June 10, 2016); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996). 
6

complete and accurate history explaining how the employment incident described caused or 

contributed to the diagnosed medical condition and supporting that opinion with medical 

reasoning to demonstrate that the conclusion reached is sound, logical, and rationale.11 He did 

not submit such evidence and thus 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 and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has not established that he sustained an injury causally 

related to the June 17, 2014 employment incident. 

ORDER 

IT IS HEREBY ORDERED THAT the May 3, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: December 8, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 11 John W. Montoya, 54 ECAB 306 (2003).