United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.D., Appellant

and

DEPARMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Bronx, NY, Employer

__________________________________________

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Docket No. 17-1136

Issued: November 9, 2017

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 2, 2017 appellant, through counsel, filed a timely appeal from a March 6, 2017 

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 to consider the merits of this case.3

 

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.

3 The Board notes that appellant submitted additional evidence following the decision. Since the Board’s 

jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board may not 

consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 

126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, pursuant to 5 

U.S.C. § 8128(1) and 20 C.F.R. § 10.606(b)(3).
2

ISSUE

The issue is whether appellant met his burden of proof to establish cervical conditions 

causally related to the accepted August 24, 2016 employment incident.

FACTUAL HISTORY

On August 30, 2016 appellant, then a 59-year-old laborer, filed a traumatic injury claim 

(Form CA-1) alleging that on August 24, 2016 he sustained head and neck injuries, a fractured 

cheek bone, bruised neck spasm, and back spasm when he fell while removing a lawn mower 

from a large container. He stopped work on August 31, 2016.

OWCP received employing establishment medical reports dated August 24, 2016. 

Appellant’s history of injury was related as “employee walking backwards removing lawn 

mower from a container, he tripped, fell backwards into a hole and hit his head then hit the right 

side of his face.” Computerized tomography (CT) scans of the cervical spine and maxillofascial 

area were interpreted by Dr. Gabriel Pivawer, a Board-certified diagnostic radiologist, as 

showing a mild depressed right zytomatic fracture and no evidence of cervical fracture. Cervical 

x-rays were interpreted by Dr. Radoslav T. Toshkoff, an osteopathic physician, as showing some 

reversal of normal cervical lordosis centered at C5, chronic degenerative changes, and no 

definite evidence of acute fracture.

In a September 8, 2016 report, Dr. Surinder P. Jindal, an examining Board-certified 

neurologist, diagnosed postconcussion syndrome and cervical myofascial pain. He reported that 

appellant sustained head and neck injuries on August 24, 2016 when he tripped and fell at work 

while removing a lawn mower from a metal container. A neurological examination was 

performed which revealed decreased sensation in the C5-6 distribution, paraspinal cervical 

muscle tenderness and spasm, 20 degrees right lateral flexion, 30 degrees extension, no muscle 

hypertrophy or atrophy, no fasciculation, 4/5 left side strength and symmetrical bilateral deep 

tendon reflexes, and bilateral toe flexor responses. A review of a CT scan showed no cervical 

fracture. Dr. Jindal completed a work capacity evaluation musculoskeletal (Form OWCP-5c) 

noting that appellant was disabled from work for four weeks due to cervical, head, and facial

trauma.

On a September 8, 2016 prescription note Dr. Jindal wrote that appellant was unable to 

work for four weeks.

In a September 15, 2016 report, Dr. Jindal noted that appellant was seen for complaints of 

cervical pain, headaches, and left-side pain. Neurological examination findings were provided

with a diagnoses of head and right facial, postconcussion syndrome, and cervical strain with 

muscle spasms.

By letter dated September 28, 2016, OWCP informed appellant that the evidence of 

record was insufficient to establish his claim. Appellant was advised regarding the medical and 

factual evidence to submit and was afforded 30 days to provide this evidence.

In response to OWCP’s request, appellant submitted additional evidence.
3

Dr. Jindal, in reports dated September 23 and 30, 2016, diagnosed postconcussion 

syndrome with radicular symptoms and history of head trauma. Neurological examination 

findings were unchanged.

An October 7, 2016 magnetic resonance imaging (MRI) scan of the cervical spine 

revealed C2-3 and C7 to T1 spondylosis associated with bulging and/or broad-based disc 

herniations, C3-4 canal stenosis, C3-5 signal abnormality attributable to cord impingement from 

disc disease and spondylosis, and straightening of cervical spinal cord lordosis due to muscle 

spasms.

Dr. Jindal, in an October 7, 2016 report, provided physical and neurological examination 

findings and noted that a September 23, 2016 MRI scan of the brain was unremarkable. He 

diagnosed a history of head trauma and cervical radiculopathy. In an October 25, 2016 report,

Dr. Jindal diagnosed cervical strain with radiculopathy and a history of head trauma. 

Examination findings were unchanged.

By decision dated November 4, 2016, OWCP denied appellant’s claim. It accepted that 

the August 24, 2016 incident occurred as alleged, but found the evidence of record insufficient to 

establish causal relationship between the diagnosed conditions and the accepted incident.

OWCP received reports from Dr. Jindal dated November 11 and 28, 2016. In the 

November 28, 2016 report, Dr. Jindal noted that appellant sustained a work injury on August 24, 

2016 and was evaluated for headaches and neck pain. He observed that appellant’s symptoms 

began following his accepted August 24, 2016 work injury. Diagnoses included postconcussion 

syndrome, head and facial trauma, and cervical myofascial pain, which Dr. Jindal attributed to 

the accepted August 24, 2016 injury. Dr. Jindal further noted that appellant had been unable to 

work since August 24, 2016 and had cervical and radicular pain complaints. He found that 

appellant was disabled from his date-of-injury job, but was able to work with restrictions of no 

lifting more than 10 pounds.

On December 6, 2016 appellant requested reconsideration of the November 29, 2016 

decision.

Dr. Jindal, in reports dated December 2 and 23, 2016, provided appellant’s history of 

injury and examination findings. Diagnoses included headache with cervical strain, 

radiculopathy, cervical disc disease, and a history of post-traumatic headache with 

postconcussion syndrome. In the December 2, 2016 report, Dr. Jindal also recommended testing 

to assess appellant’s radiculopathy.

On January 11 and February 1, 2017 Dr. Jindal noted that appellant was seen for posttraumatic headaches, postconcussion syndrome, dizziness, headache, and cervical disease. He 

attributed appellant’s current symptoms to the accepted August 24, 2016 incident in the 

January 11, 2017 report. A review of the cervical spines MRI scan showed cervical disc disease. 

Dr. Jindal provided neurological and physical examination findings and diagnosed posttraumatic headache with cervical disc disease and cervical radiculopathy.

In a decision dated March 6, 2017, OWCP found the evidence sufficient to vacate the 

November 4, 2016 decision. It found that, while the evidence of record was sufficient to support 

acceptance of appellant’s claim for postconcussion syndrome and right zygomatic arch fracture,
4

it was insufficient to establish that the diagnosed cervical conditions were caused or aggravated 

by the accepted August 24, 2016 injury.

LEGAL PRECEDENT

An employee seeking benefits under FECA4has 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

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

establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is causal relationship between the employee’s diagnosed condition and the 

compensable employment factors.8 The opinion of the physician must be based on a complete 

factual and medical background of the employee, 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.9 

ANALYSIS

By decision dated March 6, 2017, OWCP accepted that appellant sustained 

postconcussion syndrome and right zygomatic arch fracture on August 24, 2016 when he fell 

while removing a lawn mower from a large container. However, it found the evidence of record 

insufficient to establish causal relationship between the diagnosed cervical conditions and the 

accepted August 24, 2016 injury. 

The Board finds that appellant has failed to meet his burden of proof to show that the 

diagnosed cervical conditions were caused or aggravated by his accepted August 24, 2016 injury. 

Appellant submitted a series of reports from Dr. Jindal. In a September 8, 2016 report,

Dr. Jindal opined that appellant sustained head and neck injuries as a result of the accepted 

August 24, 2016 injury. In a November 28, 2016 report, he diagnosed postconcussion syndrome, 

cervical myofascial pain, and head and facial trauma, which he attributed to the accepted 

 

4

5 U.S.C. § 8101 et seq.

5 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 

642 (2006).

8

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).
5

August 24, 2016 injury. In a January 11, 2017 report, Dr. Jindal opined that appellant’s current 

symptoms of post-traumatic headaches, cervical disease, dizziness, headache, and 

postconcussion syndrome were due to the accepted August 24, 2016 injury. His opinion that the 

diagnosed cervical conditions were due to the accepted August 24, 2016 work incident was,

however, unsupported by medical rationale. A mere conclusion without the necessary rationale 

explaining how the accepted employment incident could result in the diagnosed condition is 

insufficient to meet appellant’s burden of proof.10 Dr. Jindal’s opinion is of limited probative 

value as it does not contain any medical rationale explaining how appellant’s fall while lifting a 

lawn mower would have physiologically caused the diagnosed cervical conditions.11 Medical 

opinions which contain no supporting rationale are of little probative value.12 

The remaining reports from Dr. Jindal are as well insufficient to support appellant’s 

claim. While the doctor diagnosed conditions including headache with cervical strain, 

radiculopathy, cervical disease, cervical radicular and myofascial pain, postconcussion syndrome 

with radicular symptoms, and history of head trauma and postconcussion, he offered no opinion 

as to the cause of the diagnosed cervical conditions. The Board has held that medical evidence 

that does not offer any opinion regarding the cause of an employee’s condition is of limited 

probative value.13 In view of the lack of any rationale provided by Dr. Jindal on the issue of 

causal relationship, the Board finds that his reports fail to establish that appellant’s cervical 

conditions were caused or aggravated by the accepted August 24, 2016 injury.

The record also contains August 24, 2016 CT scans and x-rays showing no cervical 

fracture; a September 23, 2016 MRI scan of the brain, which was unremarkable, and an 

October 7, 2016 MRI scan revealing C2-3 and C7 to T1 spondylosis associated with bulging 

and/or broad-based disc herniations, C3-4 canal stenosis, C3-5 signal abnormality attributable to 

cord impingement from disc disease and spondylosis, and straightening of cervical spinal cord 

lordosis due to muscle spasms. As these diagnostic tests do not specifically address whether the 

diagnosed cervical conditions had been caused or aggravated by the accepted August 24, 2016 

injury,

14 they are of limited probative value and insufficient to establish his claim

The record before the Board is without rationalized medical evidence establishing that 

appellant sustained cervical conditions causally related to the accepted August 24, 2016 injury. 

OWCP advised appellant that it was his responsibility to provide a comprehensive medical report 

which described his symptoms, test results, diagnosis, history of treatment, and a physician’s 

opinion, with medical reasons, on the cause of his condition. Appellant failed to submit 

appropriate medical documentation in response to OWCP’s request. The Board has held that the 

 

10 See Beverly A. Spencer, 55 ECAB 501 (2004).

11 D.P., Docket No. 17-0148 (issued May 18, 2017). 

12 F.T., Docket No. 09-0919 (issued December 7, 2009) (medical opinions not fortified by rationale are of 

diminished probative value); Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements 

merely asserting causal relationship generally do not discharge a claimant’s burden of proof).

13 C.B., Docket No. 09-2027 (issued May 12, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004).

14 See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical 

evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative 

value on the issue of causal relationship).
6

mere fact that a condition manifests itself during a period of employment does not raise an 

inference of causal relation.15 An award of compensation may not be based on surmise, 

conjecture, speculation, or on the employee’s own belief of causal relation.16 

On appeal counsel contends that OWCP’s decision was contrary to fact and law. Based 

on the findings and reasons set forth above, the Board finds that counsel’s arguments are not 

substantiated.

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 failed to meet his burden of proof to establish cervical 

conditions causally related to the accepted August 24, 2016 employment incident.

ORDER

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

Compensation Programs dated March 6, 2017 is affirmed.

Issued: November 9, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

15 L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB 

559 (2006).

16 S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 303 (2007); Donald W. Long, 41 ECAB 142 (1989).