United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.G., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

New York, NY, Employer

__________________________________________

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Docket No. 17-0583

Issued: July 23, 2018

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 23, 2017 appellant, through counsel, filed a timely appeal from a September 7, 

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 has met her burden of proof to establish continuing 

employment-related disability or residuals effective January 3, 2013 causally related to the 

accepted February 28, 2011 employment injury.

FACTUAL HISTORY

This case was previously before the Board.3 On March 1, 2011 appellant, then a 45-yearold nurse, filed a traumatic injury claim (Form CA-1) alleging that she sustained an injury at work 

on February 28, 2011 after her chair tilted forward and she fell to the floor. OWCP accepted the 

claim for neck and lumbar sprains. Appellant received wage-loss compensation and medical 

treatment.

By decision dated June 5, 2015, the Board affirmed an August 2, 2013 termination decision 

of OWCP. The Board found that OWCP had met its burden of proof to terminate appellant’s 

compensation benefits based on an October 17, 2012 report of Dr. Alan Crystal, a Board-certified 

orthopedic surgeon and impartial medical examiner, who reviewed the medical evidence of record

and conducted a physical examination to resolve a conflict in the medical opinion evidence.

4

 

Dr. Crystal found that appellant was not disabled due to her February 28, 2011 employment injury, 

but from the additive effects of her degenerative conditions of arthritis of the hips, knees, 

shoulders, and spine, which were not related to the employment injury. He explained that disc 

pathologies in the form of bulging or herniation would not occur from a fall from a chair at a low 

height level. Dr. Crystal found no objective findings consistent with symptomatic herniated discs 

impinging on nerve roots or sprains of the cervical and lumbar spine. He concluded that “[a]nalysis 

of the objective medical evidence clearly and overwhelmingly concludes that [appellant] did not 

sustain a left hip fracture,” finding that she had arthritis and osteophytes of the left hip that could 

be confused on x-ray with a fracture. Dr. Crystal explained that, if a fracture of the left hip had 

occurred on February 28, 2011, the magnetic resonance imaging (MRI) reports and bone scans

would have shown residual evidence of a previous fracture. He further indicated that appellant 

had preexisting degenerative disease of her shoulders, which was confirmed by x-ray. Dr. Crystal 

explained that appellant, while picking herself off the floor, did not experience any additional 

forces on the shoulders than what she would experience during activities of daily living, thus, 

concluding that her bilateral shoulder condition was not causally related to the employment injury. 

He determined that appellant had reached maximum medical improvement (MMI) and was 

capable of working as a full-time, sedentary registered nurse with the following restrictions: no 

lifting over 10 pounds; limited walking and stair climbing.

The facts of the case, as set forth in the prior Board decision, are incorporated herein by 

reference.

 

3 Docket No. 14-0632 (issued June 5, 2015).

4 OWCP found that a conflict in medical opinion arose appellant between a second opinion physician, Dr. Marvin 

Gilbert, a Board-certified orthopedic surgeon, and appellant’s attending physicians, Dr. Daniel Markowicz, a Boardcertified orthopedic surgeon, and Dr. Suhir Diwan, a Board-certified anesthesiologist, on the issue of whether 

appellant had continuing disability or residuals due to the accepted employment-related conditions.
3

Following the issuance of the Board’s June 5, 2015 decision, on May 31, 2016, counsel

requested reconsideration and submitted a March 23, 2016 report from Dr. John P. Reilly, a Boardcertified orthopedic surgeon, who diagnosed right hip arthritis and disc bulging radiculopathy. 

Dr. Reilly noted that appellant was seen for a right hip and low back evaluation with pain radiating 

into the right hamstring area. He reported that the pain had been ongoing for about a week and 

there was “[n]o specific injury.” In a March 31, 2016 progress report, Dr. Reilly found that an 

x-ray of appellant’s hip was unremarkable and noted that a December MRI scan showed moderateto-marked discogenic disease. He opined that appellant’s symptoms were radicular and 

recommended consultation with pain management and physical therapy. Appellant also submitted 

an electromyography (EMG) dated April 12, 2016 which revealed evidence of chronic bilateral 

L5-S1 lumbosacral radiculopathy and polyneuropathy.

Appellant submitted nerve conduction studies dated April 12, 2016 and a lumbar spine 

MRI scan dated December 4, 2015 which demonstrated mild central disc protrusion at T12-L1, 

mild disc bulging at L4-5, and bilateral facet hypertrophy at L4-5 and L5-S1. 

In a June 6, 2016 report, Dr. Reilly noted that appellant was injured when she fell off her 

chair at work on February 28, 2011 and over the course of several years she had struggled greatly 

with multiple complaints, including her neck, back, left hip, and right knee. He reviewed 

appellant’s medical history and opined that falling onto her buttocks, particularly since the impact 

was asymmetric to the left side, was consistent with a valgus impacted hip fracture. Dr. Reilly 

disagreed with Dr. Crystal’s opinion regarding appellant’s x-rays and opined that there was subtle 

valgus alignment, whereas Dr. Crystal’s assessment and conclusion was drawn from the MRI scan 

and bone scans. He opined that the x-rays noted a valgus impacted fracture and with the clinical 

course for the injury at five-and-a-half months, there was no reason to conclude that there would 

still be evidence of the fracture on the MRI scan, as well as the bone scan at 11 months from the 

fracture. Dr. Reilly further noted that Dr. Crystal’s opinion with regard to appellant’s left hip was 

in contradiction to four Board-certified orthopedic surgeons’ assessments and conclusions. He

concluded that appellant’s medical history and radiographic studies supported his opinion that she 

sustained a left hip fracture and required a right knee replacement as a result of her employment 

injury. Dr. Reilly determined that appellant had not yet reached MMI and opined that she was 

totally disabled for work.

In progress reports dated May 2, July 23, and September 19, 2013, May 3, August 4, and 

November 11, 2014, and May 12, 2016, Dr. Reilly continued to diagnose right hip arthritis with 

lumbar arthritis and disc bulging radiculopathy and found that x-rays showed some arthritic 

change. On March 25, 2014 he diagnosed right foot pes planus, left hip arthritis, and history of 

right knee replacement with pain.

On December 5, 2012 a physician assistant diagnosed coccydynia and right knee pain. 

Appellant submitted reports dated September 21, 2012 and February 5, 2013 from

Dr. Markowicz, who noted that she had a unique history of having staged bilateral total knee 

replacements. Dr. Markowicz indicated that appellant fell at work on February 28, 2011 and was 

eventually “diagnosed with a femoral neck fracture, but it was well after the injury.” He found 

that there was a significant delay in diagnosis, but thankfully appellant’s fracture was nondisplaced 

and did heal. Dr. Markowicz opined that there was a definite causal relationship between 

appellant’s injury and the fall at work resulting in her femoral neck fracture. He reported that the 
4

only trauma that appellant suffered was the fall at work on February 28, 2011 until she was 

diagnosed with femoral neck fracture. Appellant also resubmitted reports from Dr. Markowicz 

dated July 3 and October 2, 2012. 

A right ankle MRI scan dated July 20, 2014 showed no evidence for a tendon or ligament 

tear and the left hip MRI scan showed no evidence for osteonecrosis and no significant 

degenerative change in the hip. 

By decision dated September 7, 2016, OWCP denied modification of its prior decision 

finding that Dr. Crystal continued to carry the special weight of the medical evidence. 

LEGAL PRECEDENT

Once OWCP properly terminates a claimant’s compensation benefits, he or she has the 

burden of proof to establish continuing disability after that date related to the accepted injury.5 To 

establish a causal relationship between the condition as well as any attendant disability claimed 

and the employment injury, an employee must submit rationalized medical evidence based on a 

complete medical and factual background, supporting such a causal relationship.6 A claimant must 

establish by the weight of the reliable, probative, and substantial evidence that he or she had an 

employment-related disability which continued after termination of compensation benefits.7

ANALYSIS

On prior appeal, the Board found that OWCP met its burden of proof to terminate 

appellant’s compensation benefits based on the October 17, 2012 report of impartial medical 

examiner Dr. Crystal who reviewed appellant’s medical history, examined her, and found no 

objective evidence of ongoing residuals or disability due to her cervical and lumbar sprains. 

Dr. Crystal concluded that appellant was not disabled due to her February 28, 2011 employment 

injury, but from the additive effects of her degenerative conditions of arthritis of the hips, knees, 

shoulders and spine, which were not related to the employment injury. 

As the Board had previously affirmed the termination of appellant’s wage-loss 

compensation and medical benefits on June 5, 2015, absent further merit review of this issue by 

OWCP pursuant to section 8128 of FECA, this issue is res judicata.

8

 The only issue before the 

Board is whether appellant has established continuing employment-related disability or residuals 

on and after January 3, 2013, causally related to the February 28, 2011 employment injury. The 

Board finds that appellant has failed to meet her burden of proof to establish continuing 

employment-related disability or residuals.

In support of her claim, appellant submitted further reports from Dr. Reilly who diagnosed 

bilateral hip arthritis, lumbar arthritis, disc bulging radiculopathy, right foot pes planus, and history 

 

5 O.W., Docket No. 17-1881 (issued May 1, 2018); Manual Gill, 52 ECAB 282 (2001).

6

Id.

7 S.F., Docket No. 17-1427 (issued May 16, 2018); Darlene R. Kennedy, 57 ECAB 414 (2006).

8 See D.M., Docket No. 18-0067 (issued May 9, 2018) n.14; P.B., Docket No. 17-1687 (issued May 8, 2018).
5

of right knee replacement with pain. Initially, Dr. Reilly noted that appellant was seen for a right 

hip and low back evaluation and indicated that the pain had been going on for about a week and 

there was “[n]o specific injury.” In a March 31, 2016 progress report, he found that an x-ray of 

her hip was unremarkable. However, in a June 6, 2016 report, Dr. Reilly opined that appellant 

falling onto her buttocks at work on February 28, 2011, particularly since the impact was 

asymmetric to the left side, was consistent with a valgus impacted hip fracture. He disagreed with

Dr. Crystal’s opinion regarding appellant’s x-rays. Dr. Reilly opined that there was subtle valgus 

alignment upon x-ray and asserted that there was no reason to conclude that there would still be 

evidence of the fracture on the MRI scan, with the clinical course for the injury at 51⁄2 months and

the bone scan at 11 months from the fracture. He further noted that Dr. Crystal’s opinion with 

regard to appellant’s left hip was in contradiction to four Board-certified orthopedic surgeons’

assessments and conclusions. Dr. Reilly concluded that appellant’s medical history and 

radiographic studies supported his opinion that she sustained a left hip fracture and required a right 

knee replacement as a result of her employment injury. The Board finds that Dr. Reilly failed to 

provide a well-rationalized explanation as to how and whether these conditions, which have not 

been accepted by OWCP, are causally related to the February 28, 2011 employment injury.9 Thus, 

his reports are of diminished probative value and are insufficient to overcome the special weight 

properly accorded to Dr. Crystal’s report as the impartial medical examiner or to create a new 

conflict.10

In his reports, Dr. Markowicz indicated that appellant had a unique history of having staged 

bilateral total knee replacements. He indicated that appellant fell at work on February 28, 2011 

and was eventually “diagnosed with a femoral neck fracture, but it was well after the injury.”

Dr. Markowicz found that there was a significant delay in diagnosis, but thankfully appellant’s 

fracture was nondisplaced and did heal. He opined that there was definitely a causal relationship 

between appellant’s injury and the fall at work resulting in her femoral neck fracture. 

Dr. Markowicz reported that the only trauma that appellant suffered was the fall at work on 

February 28, 2011 until she was diagnosed with femoral neck fracture. As he was on one side of 

the conflict, his reports, without more by way of medical rationale, are insufficient to create a new 

conflict in medical opinion to overcome the special weight properly accorded to Dr. Crystal.11 

Appellant further submitted evidence from a physician assistant. This document does not 

constitute competent medical evidence because a physician assistant is not considered a 

“physician” as defined under FECA.12 Similarly, the EMG, nerve conduction studies, and MRI

scans do not constitute competent medical evidence as they do not contain rationale by a physician 

 

9 See T.M., Docket No. 08-0975 (issued February 6, 2009) (for conditions not accepted or approved by OWCP as 

being due to an employment injury, the claimant bears the burden of proof to establish that the condition is causally 

related to the employment injury through the submission of rationalized medical evidence).

10 See J.M., Docket No. 11-1257 (issued January 18, 2012); Dorothy Sidwell, 41 ECAB 857 (1990).

11 Id.

12 5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants). See also Gloria J. McPherson, 

51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can 

only be resolved through the submission of probative medical evidence from a physician).
6

relating appellant’s conditions to her employment.13 The Board, therefore, finds that this evidence 

is insufficient to establish appellant’s claim.

The Board finds that Dr. Crystal’s report continues to represent the special weight of the 

medical evidence as it was based on an accurate history, results of physical and diagnostic testing, 

and accompanied by a rationalized medical opinion. The report establishes that appellant’s 

accepted conditions have resolved. As such, appellant has failed to meet her burden of proof to 

establish continuing disability or residuals causally related to the February 28, 2011 employment 

injury.

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 her burden of proof to establish continuing 

employment-related disability or residuals effective January 3, 2013 causally related to the 

accepted February 28, 2011 employment injury.

 

13 See Paul Foster, 56 ECAB 208, 212 n.12 (2004).
7

ORDER

IT IS HEREBY ORDERED THAT the September 7, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 23, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board