United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.J., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

WRIGHT-PATTERSON AIR FORCE BASE, 

OH, Employer

__________________________________________

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Docket No. 17-0725

Issued: May 17, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 13, 2017 appellant, through counsel, filed a timely appeal from a

December 19, 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 the 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 that her herniated 

cervical disc condition was causally related to the accepted June 11, 2015 employment incident.

FACTUAL HISTORY

On November 6, 2015 appellant, then a 46-year-old logistics management specialist, filed 

a traumatic injury claim (Form CA-1) alleging that, on June 11, 2015, she sustained a herniated 

C5-6 disc and cervical disc displacement with radiculopathy pain as a result of her federal 

employment duties. She recounted that she was tasked to pick-up, carry and hang large magnetic 

whiteboards on the walls for viewing by management and take down and carry the boards to her 

cubicle area after their usage. Appellant alleged that she injured her back when she lifted one of 

the whiteboards to carry back to her desk, which caused her right arm to tingle and hurt.

Dr. Jarrod Curry, an osteopath and diagnostic radiologist, interpreted a June 15, 2015 

cervical spine computerized tomography (CT) scan. He found no evidence of fracture or 

subluxation. Dr. Curry opined that appellant’s right upper extremity symptoms were likely 

secondary to a broad-based disc osteophyte complex at the C5-6 level, which was compressed 

upon the right ventral aspect of the cord.

In a June 15, 2015 report, Dr. Aivars Vitols, an osteopath and orthopedic surgeon, noted 

that appellant worked as an accountant and performed lots of typing. He indicated that her right 

shoulder pain, with radiation down her arm to her hand, began on June 10, 2015. Appellant did

not report an injury, but indicated that she had increased her activity at work last week and 

developed a knot in the back of her right shoulder which radiated toward her head and down her 

right arm. Dr. Vitols provided an assessment of acute right shoulder pain and capsulitis of the 

shoulder. He indicated that x-rays of the right shoulder showed mild degenerative changes to the 

acromioclavicular (AC) joint, but no soft tissue injury or fractures.

In a June 19, 2015 report, Dr. Scott West, an osteopath and neurosurgeon, indicated that 

appellant’s symptoms of right-sided posterior cervical pain with radiation into her right shoulder 

and down her entire right arm with dysesthesias involving all the fingers of her right hand with the 

exception of the thumb began about one week ago from an unknown cause. He noted that she had 

performed heavy lifting at work a week or two prior to the above symptoms. Dr. West noted 

physical findings and reviewed the June 15, 2015 CT scan of the cervical spine. He provided an 

impression of herniated cervical disc with spondylosis C5-6 right. Appellant was scheduled for 

one month of physical therapy and cervical epidural injections.

On June 29, 2015 appellant underwent a cervical epidural steroid injection. She went to 

physical therapy from July 10 to 16, 2015, but was discharged on August 25, 2015 as she had 

stopped attending therapy. 

In a November 9, 2015 statement, G.B., a coworker, related that appellant assisted in a 

cubicle reconstruction and that she had unpacked and carried large whiteboards to various 

locations. He stated that the whiteboards were not light as he had moved some of the whiteboards 

short distances within the visual display areas. In another November 9, 2015 statement, M.B., a 
3

coworker, stated that he had delivered approximately 15 large white magnetic dry-erase boards to 

appellant. He also saw her working on the whiteboard project.

By development letter dated November 16, 2015, OWCP advised appellant of the 

deficiencies in her claim and requested additional factual and medical evidence, including a 

detailed narrative report from her physician, which included a history of the injury and a medical 

explanation with objective evidence of how the reported work incident caused or aggravated the 

claimed conditions. Appellant was afforded 30 days to submit such evidence.

In response, OWCP received a December 11, 2015 request from appellant for additional 

time to respond. Additional e-mails from appellant’s coworkers in response to the employing 

establishment’s investigation into appellant’s injury were received. OWCP also received a copy 

of e-mails appellant had sent to the employing establishment describing her injury. In an 

August 14, 2015 e-mail, appellant again described her employment activities regarding the 

whiteboard project. She alleged that her back followed by her arm began to hurt on June 11, 2015. 

Appellant noted that she had complained of the pain to her coworkers on June 11, 2015. She went 

to the emergency room on June 15, 2011 and was told that she had a herniated disc at C5-6 and 

that the pain in her right arm was an impinged nerve. 

In a December 16, 2015 attending physician’s form report (Form CA-20), Dr. West 

diagnosed herniated disc with spondylosis. He checked a box marked “yes” indicating that the 

condition was caused or aggravated by employment activity and added that “patient had no 

symptoms prior to injury.” For the history of injury and findings, Dr. West noted “see enclosures.” 

No further evidence was attached. 

By decision dated December 17, 2015, OWCP denied the claim, finding that appellant had 

not established fact of injury. It found that the evidence of record was insufficient to establish that 

the event(s) occurred as alleged as appellant had not answered the questions that were sent with 

the development letter. OWCP also noted that there was no medical evidence of record which 

contained a diagnosis that could be connected to the work injury or event. 

On September 26, 2016 OWCP received counsel’s March 18, 2016 request for 

reconsideration. 

OWCP received several interoffice e-mails from May 18 to November 9, 2015 regarding 

appellant’s alleged injury and exhibits regarding the whiteboard project. 

In a different June 19, 2015 report, Dr. West indicated that appellant’s cervical pain started 

one and a half weeks ago, while driving to work. He noted that she saw an orthopedic surgeon, 

who had diagnosed a displaced rib which was manipulated back in place. Dr. West also noted the 

progression of her neck pain and that she was seen in the emergency room. He noted that 

appellant’s symptoms of right-sided posterior cervical pain with radiation into her right shoulder 

and down her entire right arm with dysesthesias involving all the fingers of her right hand with the 

exception of the thumb began about one week ago from an unknown cause. Appellant indicated 

that she had performed heavy lifting at work a week or two prior to the above symptoms. Dr. West 
4

noted physical findings, his review of the June 15, 2015 CT scan of the cervical spine and provided 

an impression of herniated cervical disc with spondylosis C5-6 right.

In a July 22, 2016 report, Dr. West indicated that appellant was seen one year ago with a 

new onset of neck pain. He noted that she had some improvement in her symptoms following 

physical therapy and injections and had returned to work. However, over the winter, her pain 

gradually increased. Appellant stated the initial onset of symptoms began following a work injury 

of June 11, 2015 while moving whiteboards. Dr. West provided an impression of herniated 

cervical disc C5-6 and recommended surgery. On September 6, 2016 she underwent microscopic 

anterior cervical discectomy with allograft fusion C5-6.3

In an October 11, 2016 report, Dr. West stated that he initially evaluated appellant on 

June 19, 2015 when she presented with right-sided posterior cervical pain with radiation into her 

right shoulder, right arm, and right hand involving all fingers of her right hand with the exception 

of her thumb. During that visit, appellant stated that she had done some heavy lifting at work 

approximately one week prior to the date of the onset of her symptoms. Dr. West indicated that a 

CT scan of appellant’s cervical spine demonstrated a disc herniation with spondylosis at the C5-6 

level on the right and that he had recommended conservative care. Approximately one year later, 

on July 22, 2016, he saw appellant for continued pain in the cervical spine and right shoulder. 

During that visit, appellant had stated that her work injury occurred on June 11, 2015 when she 

lifted some 80-pound magnetic whiteboards at work. She was off work for two weeks and 

returned, but had continued difficulties. Dr. West noted that appellant’s January 21, 2016 MRI 

scan of the cervical spine showed a herniated disc with spondylosis at C5-6. He indicated that she 

had surgery at that level on September 6, 2016 and that her arm pain had resolved following 

surgery. Dr. West opined that, given the history he was presented with, appellant’s disc herniation 

at the C5-6 level was the direct result of her work injury. He explained that she had a significant 

disc herniation at that level and that her pain persisted until surgery relieved the pressure.

In an October 17, 2016 statement, appellant again explained that her supervisor tasked her 

to disassemble, move and hide cubical walls, overhead storage bins, desks, and cabinets in three 

separate areas of the building in May 2015. The reconfiguration of the cubicles occurred over a 

week and she used her own tools from home. Over a period of several weeks leading up to June 11, 

2015, appellant had stored, delivered and hung the magnetic white boards. The magnetic 

whiteboards were heavy and fell as she could not get them on the hooks. On the morning of 

June 10, 2015, while driving to work, appellant felt sore and had pain in her right upper back. On 

June 11, 2015 she carried a whiteboard from her cubicle approximately 30 feet and hung it on the 

wall. Appellant also removed the desks and filing cabinets. Once management viewed the 

whiteboards, she took down the whiteboards and carried them back to her cubicle. When appellant

turned around after lifting the magnetic whiteboard, she felt an uncomfortable sensation down her 

right arm. She told her coworker about what happened and that her arm hurt. Appellant stayed 

home on June 11 to 13, 2015 due to the pain and then went to urgent care.

OWCP forwarded a statement of accepted facts (SOAF) and the medical record to

Dr. Arnold T. Berman, a Board-certified orthopedic surgeon, its district medical adviser (DMA)

 

3 Treatment notes from Dr. West dated October 7, 2016 and an October 7, 2016 magnetic resonance imaging (MRI)

scan report indicated a good surgical result.
5

for a determination as to whether appellant’s herniated disc at C5-6 was a consequence of the 

claimed June 11, 2015 employment incident. In a November 1, 2016 report, the DMA noted 

appellant’s history of injury, his review of the SOAF and the medical records. He stated that 

appellant had significant preexisting degenerative disease at the C5-6 level. The DMA stated that 

the onset of pain was not work related as it occurred while driving to work, which was a normal 

activity. He opined that the pain was not occupationally related and the work-related activities 

were not competent to produce the herniated disc and subsequent surgical procedure. Rather, the 

condition was caused by a degenerative basis and would have occurred with normal activity 

regardless of the occupational requirements. Therefore, the DMA opined that appellant’s C5-6 

herniated disc and subsequent anterior cervical discectomy and fusion were not caused by a work 

injury. 

By decision dated December 19, 2016, OWCP modified its prior decision to reflect that 

fact of injury was established, but it denied the claim as the medical evidence of record was 

insufficient to establish that appellant’s diagnosed cervical condition was causally related to the 

accepted employment incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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 or specific condition for which compensation is claimed is 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

In order to determine whether an employee sustained a traumatic 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 that must be considered conjunctively. First, the 

employee must submit sufficient evidence to establish that he or she actually experienced the 

employment incident that is alleged to have occurred.7 An employee has not met his or her burden 

of proof in establishing the occurrence of an injury when there are such inconsistencies in the 

evidence as to cast serious doubt upon the validity of the claim.8 Second, the employee must 

submit sufficient evidence, generally only in the form of medical evidence, to establish that the 

employment incident caused a personal injury.9

 

4 Supra note 2.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7 Gary J. Watling, 52 ECAB 278 (2001).

8 S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

9 Deborah L. Beatty, 54 ECAB 340 (2003).
6

The medical evidence required to establish causal relationship is generally rationalized 

medical opinion evidence. Rationalized medical opinion evidence is medical evidence which 

includes a physician’s rationalized opinion on the issue of whether there is causal relationship 

between the claimant’s diagnosed condition and the implicated employment factors. The opinion 

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

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 claimant.10 Neither the fact that a disease or condition manifests itself during a 

period of employment, nor the belief that the disease or condition was caused or aggravated by 

employment factors or incidents is sufficient to establish causal relationship.11

ANALYSIS

The Board finds that appellant has not established that her diagnosed herniated cervical 

disc condition was causally related to the accepted employment incident.

OWCP accepted that the June 11, 2015 work incident occurred as alleged and that a 

medical diagnosis had been provided. However, it denied the claim, finding that the medical 

evidence of record failed to establish causal relationship between the June 11, 2015 employment 

incident and the claimed C5-6 herniated disc and subsequent anterior cervical discectomy and 

fusion. 

Medical evidence submitted to support a claim for compensation should reflect a correct

history of injury and should offer a medically-sound explanation of how the employment incident 

caused or aggravated the diagnosed condition.12 Appellant did not submit medical evidence 

sufficient to meet her burden of proof.

13

In his June 15, 2015 report, Dr. Vitols related that appellant’s problems with right shoulder 

pain and radiation down her arm to her hand began June 10, 2015. He noted that she had increased 

her activity at work the week before and developed a knot in the back of her right shoulder. While

Dr. Vitols provided an assessment of acute right shoulder pain and capsulitis of shoulder, he did 

not mention the June 11, 2015 employment incident or indicate what increased activities appellant 

had been involved in at work.14 Dr. Vitols also did not provide an opinion as to whether the 

diagnosed condition was due to the accepted work-related activity of June 11, 2015. The Board 

has found that medical evidence that does not offer any opinion regarding the cause of an 

 

10 Solomon Polen, 51 ECAB 341 (2000).

11 Dennis M. Mascarenas, 49 ECAB 215 (1997).

12 S.H., Docket No. 17-1447 (issued January 11, 2018); D.D., Docket No. 13-1517 (issued April 14, 2014); 

Michael S. Mina, 57 ECAB 379 (2006).

13 See R.H., Docket No. 18-0021 (issued March 21, 2018).

14 Supra note 11.
7

employee’s condition is of limited probative value on the issue of causal relationship.15 Thus, this 

report is insufficient to establish appellant’s claim.

In several reports, Dr. West provided an impression of herniated cervical disc with 

spondylosis C5-6 right. In his June 19, 2015 report, he indicated that appellant’s cervical pain 

started one and a half weeks ago while driving to work and that her symptoms of right-sided 

posterior cervical pain with radiation into her right shoulder, arm and hand began about one week 

ago from an unknown cause. Dr. West noted that appellant had done heavy lifting at work a week 

or two prior to the above symptoms, but did not indicate what the heavy lifting involved and the 

duration of such activity. While he indicated some awareness of appellant’s employment activity 

during the period surrounding June 11, 2015, Dr. West failed to note any specific incident on 

June 11, 2015 and he failed to provide an opinion regarding appellant’s diagnosed condition.16 As 

such, his report did not reflect a correct history of injury and did not offer a medically-sound 

explanation of how the employment incident caused or aggravated the diagnosed condition.17

In his December 15, 2015 Form CA-20 report, Dr. West again diagnosed herniated disc 

with spondylosis. He, again, offered no explanation regarding appellant’s history of injury, 

specifically the accepted June 11, 2015 employment incident; rather, he noted “see enclosures”

which were not attached. Dr. West’s opinion is therefore also of limited probative value as it is 

not based on a proper history of injury.18 Although Dr. West noted that appellant was 

asymptomatic prior to the injury, the lack of symptoms prior to an employment injury does not in 

itself provide rationale in support of causal relationship.19 Thus, this report is insufficient to 

establish appellant’s claim.

In his July 22, 2016 report, Dr. West noted that appellant stated the initial onset of 

symptoms began following a work injury of June 11, 2015 while moving whiteboards. He 

provided an impression of herniated cervical disc C5-6 and recommended surgery. Dr. West, 

however, did not offer his own opinion on causal relationship. As previously indicated, medical 

evidence which does not offer an opinion regarding the cause of an employee’s condition is of 

limited probative value on the issue of causal relationship.20

In an October 11, 2016 report, Dr. West described his interactions with appellant on 

June 19, 2015 and July 22, 2016 and that he had diagnosed herniated cervical disc C5-6 based on 

objective studies. During the July 22, 2016 visit, appellant stated that her work injury occurred on 

June 11, 2015 when she lifted some 80-pound magnetic white boards at work. Dr. West opined 

that, given the history he was presented with, appellant’s C5-6 disc herniation was the direct result 

 

15 R.E., Docket No. 10-0679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007). 

16 Id.

17 Supra note 11. 

18 Id.

19 See Walter J. Neumann, Sr., 32 ECAB 69 (1980).

20 A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M. Miller, 53 ECAB 697 (2002); 

Michael E. Smith, 50 ECAB 313 (1999).
8

of her claimed work injury. He indicated that she had a significant disc herniation at that level and

that her pain persisted for an extended period of time until surgery was performed to relieve the 

pressure. However, Dr. West did not provide a rationalized medical opinion relating the diagnosed 

condition to the accepted June 11, 2015 employment incident.21 While he appeared to know that 

appellant’s heavy lifting at work one week prior to the onset of her symptoms involved lifting

heavy magnetic whiteboards, Dr. West did not provide an explanation as to how the cervical 

herniated disc condition was related to the lifting events on June 11, 2015. A well-rationalized 

opinion is particularly warranted when there is a history of a preexisting condition.22 Rather, he 

generally opined that based on the history given, appellant’s disc herniation was the direct result 

of her claimed work injury. Dr. West provided no discussion on the role of her preexisting neck 

condition, if any, may have played a role in relation to the disc herniation and the subsequent need 

for surgery. Without explaining how physiologically the lifting events of June 11, 2015 caused or 

contributed to the diagnosed condition, Dr. West’s diagnosis of cervical herniated disc at C5-6 and 

opinion on causal relationship is of limited probative value.23 

The remainder of the evidence appellant submitted to the record, including reports of 

diagnostic testing, are insufficient to establish the claim as it fails to provide an opinion on causal 

relationship between appellant’s job, the June 11, 2015 employment incident, and her diagnosed 

conditions.24

The Board also notes that OWCP’s DMA explained that appellant’s claimed work injury 

could not have caused the cervical herniated disc condition as the condition was degenerative in 

nature and had occurred in the course of normal activities prior to the accepted employment event.

On appeal counsel argues that the decision is contrary to fact and law. As discussed above, 

none of the medical evidence appellant submitted constituted rationalized medical evidence, based 

upon a specific and accurate history of employment conditions, which were alleged to have caused 

or exacerbated her medical condition.

The Board has held that the mere fact that a condition manifests itself during a period of 

employment does not raise an inference of causal relation.25 An award of compensation may not 

be based on surmise, conjecture, speculation, or on the employee’s own belief of causal relation. 

Causal relationship must be based on rationalized medical opinion evidence.26 As appellant has 

not submitted a rationalized medical opinion supporting that her cervical condition was causally 

 

21 See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

22 M.B., Docket No. 16-0884 (issued September 8, 2016).

23 See J.P., Docket No. 16-0954 (issued December 13, 2016); see Lee R. Haywood, 48 ECAB 145 (1996).

24 L.L., Docket No. 16-0896 (issued September 13, 2016).

25 Daniel O. Vasquez, 57 ECAB 559 (2006).

26 Patricia J. Glenn, 53 ECAB 159, 160 (2001).
9

related to the accepted June 11, 2015 employment incident, she has not met her burden of proof to 

establish an employment-related traumatic injury.27

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 of proof to establish that her 

herniated cervical disc was causally related to the June 11, 2015 accepted employment incident.

ORDER

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

Programs dated December 19, 2016 is affirmed.

Issued: May 17, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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

 

27 See E.V., Docket No. 17-0269 (issued April 4, 2018).