United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.W., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Evansville, IN, Employer

__________________________________________

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Docket No. 16-1736

Issued: March 7, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 30, 2016 appellant, through counsel, filed a timely appeal from a June 20, 

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.

ISSUE

The issue is whether appellant met his burden of proof to establish an injury causally 

related to the accepted April 11, 2013 employment incident.

 

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

FACTUAL HISTORY

On April 11, 2013 appellant, then a 40-year-old senior individual tax advisory specialist, 

filed a traumatic injury claim (Form CA-1) alleging that on April 11, 2013 he was reaching 

across a counter while assisting a handicapped taxpayer when he felt a pop in his neck and back. 

He did not initially stop work.

In a May 8, 2013 report, Dr. Mike W. Chou-Evv, a neurologist, noted that appellant was 

seen for evaluation following a computerized tomography (CT) scan performed on May 6, 2013. 

He explained that appellant had a two-level “ACDF” (anterior cervical discectomy and fusion)

on January 17, 2013. Dr. Chou-Evv indicated that appellant injured his neck at work on 

April 11, 2013 and had a current pain level of 10 out of 10 without pain medication. He

explained that the CT scan revealed a completely solid fusion between C5-6 and C6-7. 

Dr. Chou-Evv advised that appellant was status post lateral fusion for pseudoarthrosis in January. 

He noted that appellant underwent an electromyography (EMG) scan performed by Dr. Eric 

Weisman, a Board-certified neurologist, who noted that the results were bilateral carpal tunnel 

syndrome, left C7 cervical radiculopathy, and right radial axonopathy. Dr. Chou-Evv advised 

that the lower extremity EMG revealed axonal demyelinating polyneuropathy without evidence 

of lumbar radiculopathy. He explained that appellant had chronic pain issues and opined that the 

left C7 radiculopathy was “probably neuropathic in origin i.e., not compressive since the last 

surgery included bilateral foraminotomies for decompression of the nerve root. Also the pain is 

more of a paraesthetic burning type of pain.” Dr. Chou-Evv indicated that appellant’s 

polyneuropathy was “probably diabetic in origin and clearly not a surgical issue.”

OWCP received several reports from Dr. Joseph Waling, Board-certified in physical 

medicine and rehabilitation, dating from June 17, 2013 and continuing. In his June 17, 2013 

report, Dr. Waling advised that appellant’s chief complaint was left neck and shoulder pain, 

which extended down to his hips. He indicated the “onset began several years ago with no 

particular injury or event.” Dr. Waling noted that appellant had neck surgery in August 2010 and 

the second one in January 2012, which was a bilateral C5-7 fusion by Dr. Chou-Evv. He 

provided diagnoses and noted that appellant underwent a posterior cervical laminectomy and 

fusion with instrumentation and bone graft on January 17, 2013. In reports dated July 11 and 24, 

2013, Dr. Waling diagnosed: postlaminectomy syndrome of the cervical spine; left upper 

extremity pain D/T (due to) myofascial pain from the cervical into the thoracic spine; S/P (status 

post) cervical surgery in 2010 and January 2013 per Dr. Chou-Evv; cervical spondylosis without 

myelopathy with facet-mediated pain; history of pancreatitis; hyperlipidemia; back pain; cervical 

radiculopathy; neck pain; history of fusion of cervical spine by Dr. Chou-Evv, tachycardia 

postoperative state; and lumbar back pain and lumbar radicular pain. He noted that appellant had 

symptoms which included left-sided neck pain that radiated to the left shoulder and back pain in 

the middle lumbar region, which radiated to the lateral hips, down to the posterior legs equally. 

Dr. Waling diagnosed cervical radiculopathy, thoracic or lumbosacral neuritis or radiculitis, 

lumbar back pain, and left shoulder pain.

A January 7, 2013 report from Dr. Andrei Croitoru, Board-certified in internal medicine, 

revealed a history of chronic pain (cervical, “s/p spinal surgery,” local infiltrations, opioid 

dependent), fibromyalgia, uncontrolled “DM” (diabetes mellitus), and recent episode of acute 

pancreatitis. In a July 25, 2013 treatment note, Dr. Croitoru indicated that appellant was 
3

admitted for hypertriglyceridemia and acute pancreatitis. Appellant underwent anterior cervical 

discectomy and fusion followed by a posterior decompression, and epidural steroid injection. He 

provided notes dated July 26, 2013 and indicated that appellant was discharged. 

In a letter dated September 12, 2013, OWCP noted that appellant’s claim initially 

appeared to be a minor injury that resulted in minimal or no lost time from work. Furthermore, it

noted that because the employing establishment did not controvert continuation of pay (COP) or 

challenge the merits of the case, payment of a limited amount of medical expenses was 

administratively approved. However, appellant’s claim was now being reopened because he 

requested authorization for a surgically-related treatment. OWCP informed him of the type of 

evidence needed to support his claim and requested that he submit such evidence within 30 days. 

In an April 17, 2013 report, Dr. Jeffrey Miller, a Board-certified vascular and 

interventional radiologist, diagnosed stable anterior and posterior fusion lower cervical spine, 

mild degenerative disc and posterior spurring and spondylosis posterior aspect of the disc C4-5, 

with minimal widening anteriorly at the same level.

In an undated attending physician’s report (Form CA-20), Dr. Waling checked a box 

marked “no” with regard to whether there was evidence of preexisting history or disease and 

diagnosed cervical radiculopathy, back pain, lumbar radicular pain, and history of fusions of the 

cervical spine. He checked a box marked “no” in response to whether he believed the condition 

found was caused or aggravated by an employment activity. Dr. Waling noted that the date of 

his first examination was June 17, 2013 and that appellant was treated on July 11, 24,

and 31, 2013. He indicated that appellant was never taken off work.

OWCP received copies of previously submitted reports.

By decision dated November 4, 2013, OWCP denied appellant’s claim finding that he did 

not establish an injury as alleged. It found that the medical evidence was insufficient to establish 

his claim as there were no medical reports providing sufficient rationale to support causal 

relationship between the claimed injury and the accepted employment incident. OWCP also 

explained that Dr. Waling responded “no” in response to whether the condition was caused or 

aggravated by the alleged work events.

On November 15, 2013 appellant, through counsel, requested a telephonic hearing, which 

was held before an OWCP hearing representative on May 8, 2014.

By decision dated July, 24, 2014, OWCP’s hearing representative affirmed the 

November 4, 2013 decision.

On October 15, 2014 and February 19, 2015 appellant, through counsel, requested 

reconsideration and submitted new medical evidence from Dr. Waling.

In July 11, 2013 treatment notes, Dr. Waling diagnosed postlaminectomy syndrome of 

the cervical spine, left upper extremity pain, “D/T” myofascial pain from the cervical into the 

thoracic spine, and status post (S/P) cervical surgery times 2010 and January 2013 per
4

Dr. Chou-Evv. He found back pain, cervical radiculopathy, neck pain, history of cervical fusion 

of cervical spine, tachycardia postoperative state, lumbar back pain and lumbar radicular pain.

In a July 31, 2013 treatment note, Dr. William M. Roberts, a Board-certified 

anesthesiologist, found that appellant was status post anterior cervical discectomy and fusion 

followed by a posterior decompression. He advised that appellant had neck and left shoulder 

pain that did not respond to cervical medial branch blocks. Dr. Roberts provided a cervical 

epidural to appellant.

In an August 20, 2013 treatment note, Dr. Waling diagnosed: lumbar spondylosis 

without myelopathy and facet-mediated pain; lower extremity pain; postlaminectomy syndrome 

cervical spine; left upper extremity pain “D/T” myofascial pain from the cervical to the thoracic 

spine, S/P cervical surgery times 2010 and January 2013 per Dr. Chou-Evv, cervical spondylosis 

without myelopathy with facet-mediated pain; history of pancreatitis, and hyperlipidemia. He 

referenced back pain, cervical radiculopathy, neck pain, and history of fusion of cervical spine

by Dr. Chou-Evv, tachycardia, postoperative state, lumbar back pain and lumbar radicular pain. 

Dr. Waling provided appellant with a caudal epidural steroid block. He noted that appellant was 

having difficulty with driving long distances and wished to speak with his supervisor as he 

needed to work in a closer facility until the bridge into Owensboro, KY was completed.

In an October 23, 2013 treatment note, Dr. Waling noted appellant’s history. He repeated 

his diagnoses. Dr. Waling advised that appellant was having difficulties driving an hour to work 

due to cervical and lumbosacral pain. He recommended a functional capacity evaluation to 

determine whether the one-hour driving time was causing the increased spinal pain.

In a letter dated May 12, 2016, counsel for appellant repeated his request for 

reconsideration and noted that his original request was made on October 10, 2014. 

By decision dated June 20, 2016, OWCP denied modification of the prior decision.

LEGAL PRECEDENT

A claimant seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence, including that an injury was sustained in the performance of duty as alleged, and that 

any specific condition or disability claimed is causally related to the employment injury.4

To determine if 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 in conjunction with one another. The 

first component is whether the employee actually experienced the employment incident that 

allegedly occurred.5 The second component is whether the employment incident caused a 

 

3 See supra note 2.

4 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5 Elaine Pendleton, 40 ECAB 1143 (1989).
5

personal injury.6 An employee may establish that an injury occurred in the performance of duty 

as alleged, but fail to establish that the disability or specific condition for which compensation is 

being claimed is causally related to the injury.7

Causal relationship is a medical question that generally requires rationalized medical 

opinion evidence to resolve the issue.8 A physician’s opinion on whether there is a causal 

relationship between the diagnosed condition and the implicated employment factor(s) must be 

based on a complete factual and medical background.9 Additionally, the physician’s opinion 

must be expressed in terms of a reasonable degree of medical certainty, and must be supported 

by medical rationale, explaining the nature of the relationship between the diagnosed condition 

and appellant’s specific employment factor(s).10

In any case where a preexisting condition involving the same part of the body is present 

and the issue of causal relationship therefore involves aggravation, acceleration or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.11

Certain healthcare providers such as physician assistants, nurse practitioners, physical 

therapists, and social workers are not considered “physician[s]” as defined under FECA.12 

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing 

entitlement to FECA benefits.13

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish that he 

sustained an injury causally related to the accepted April 11, 2013 employment incident. A

treating physician, Dr. Waling, indicated that appellant’s condition was not caused or aggravated 

by his employment activity. Furthermore, the record reveals that appellant had preexisting 

cervical conditions. In a January 7, 2013 report, Dr. Croitoru reported a history of chronic pain 

in the cervical area and spinal surgery,” opioid dependency, fibromyalgia, uncontrolled “DM,”

 

6

John J. Carlone, 41 ECAB 354 (1989).

7 Shirley A. Temple, 48 ECAB 404, 407 (1997).

8 Robert G. Morris, 48 ECAB 238 (1996).

9 Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10 Id.

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

12 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

13 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a 

physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified 

physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1).
6

and an episode of acute pancreatitis. The medical evidence contains no reasoned explanation of 

how the specific employment incident on April 11, 2013 caused or aggravated an injury.14 

OWCP received several reports from Dr. Waling dating from June 17, 2013 and 

continuing. In an undated attending physician’s report, Dr. Waling checked a box marked “no”

with regard to whether there was evidence of preexisting history or disease and diagnosed 

cervical radiculopathy, back pain, lumbar radicular pain and history of fusions of the cervical 

spine. At first glance this report appears inaccurate as the record reflects a history of chronic 

pain in the cervical area and spinal surgery. It is well established that medical reports must be 

based on a complete and accurate factual and medical background, and medical opinions based 

on an incomplete or inaccurate history are of little probative value.15 Dr. Waling also checked a 

box marked “no” in response to whether he believed the condition found was caused or 

aggravated by an employment activity. The Board finds that this report does not support that 

appellant’s condition was work related. In his June 17, 2013 report, Dr. Waling advised that 

appellant’s chief complaint was left neck and shoulder pain, which extended down to his hips. 

He indicated that the “onset began several years ago with no particular injury or event.” The 

Board notes that appellant had several neck conditions which existed prior to the established 

incident of April 11, 2013. Furthermore, Dr. Waling referenced neck surgery in August 2010 

and a second one in January 2012, which was a bilateral C5-C7 fusion performed by

Dr. Chou-Evv. He also noted that appellant underwent a posterior cervical laminectomy and 

fusion with instrumentation and bone graft on January 17, 2013. Other than to support a 

preexisting condition, this report does not offer any opinion that appellant’s condition was work

related. Likewise, in reports dated July 11 and 24, 2013, Dr. Waling diagnosed: 

postlaminectomy syndrome cervical spine; left upper extremity pain D/T myofascial pain from 

the cervical into the thoracic spine; S/P cervical surgery time 2010 and January 2013 per

Dr. Chou-Evv; cervical spondylosis without myelopathy with facet-mediated pain; history of 

pancreatitis; hyperlipidemia; back pain, cervical radiculopathy; neck pain; history of fusion of 

cervical spine by Dr. Chou-Evv, tachycardia postoperative state; lumbar back pain and lumbar 

radicular pain. He noted that appellant had symptoms which included left-sided neck pain that 

radiated to the left shoulder and back pain in the middle lumbar region, which radiated to the 

lateral hips, down to the posterior legs equally. Dr. Waling diagnosed cervical radiculopathy, 

thoracic or lumbosacral neuritis or radiculitis, lumbar back pain, and left shoulder pain. 

However, he did not attribute any of these conditions to the April 11, 2013 incident. In an 

August 20, 2013 treatment note, Dr. Waling repeated his diagnoses. He provided appellant with 

a caudal epidural steroid block. Dr. Waling advised that appellant was having difficulty with 

driving long distances and wished to speak with his supervisor as he needed to work in a closer 

facility until the bridge into Owensboro, KY was completed. However, he did not indicate that 

appellant’s conditions were caused or aggravated by the April 11, 2103 incident. As noted 

above, Dr. Waling responded “no” when asked if they were related to his employment. 

Likewise, Dr. Chou-Evv also treated appellant and referred to his preexisting conditions 

and history of surgery along with diabetes. In his May 8, 2013 report, he explained that he had a 

 

14 See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not 

fortified by medical rationale is of little probative value).

15 Douglas M. McQuaid, 52 ECAB 382 (2001).
7

two level “ACDF” on January 17, 2013. Dr. Chou-Evv explained that the CT scan revealed 

completely solid fusion between C5-6 and C6-7 and determined that appellant was status 

postero lateral fusion for pseudoarthrosis in January. He also reviewed the EMG scan which 

revealed bilateral carpal tunnel syndrome, left C7 cervical radiculopathy and right radial 

axonopathy. Dr. Chou-Evv advised that the lower extremity EMG revealed axonal 

demyelinating polyneuropathy without evidence of lumbar radiculopathy. He explained that 

appellant had chronic pain issues and opined that the left C7 radiculopathy was “probably 

neuropathic in origin i.e., not compressive since the last surgery included bilateral 

foraminotomies for decompression of the nerve root. Also the pain is more of a paraesthetic 

burning type of pain.” Dr. Chou-Evv opined that appellant’s polyneuropathy was “probably 

diabetic in origin and clearly not a surgical issue.” The Board finds that his report is of limited 

probative value as he attributes the condition to probable diabetes and does not offer any opinion 

that the condition was caused or aggravated by the April 11, 2013 incident at work.16

The record also contains July 31, 2013 treatment note from Dr. Roberts, who found that 

appellant was status post anterior cervical discectomy and fusion followed by a posterior 

decompression and provided a cervical epidural to appellant. However, this report is of limited 

probative value on the relevant issue of the present case in that they do not contain an opinion on 

causal relationship.

The record contains diagnostic reports to include an April 17, 2013 report from

Dr. Miller. However, these reports are insufficient because the physicians did not provide an 

opinion on the causal relationship of the conditions found on x-rays or diagnostic testing. 

Therefore, their reports have no probative value in establishing causal relationship.17

Because the medical reports submitted by appellant do not address how the April 11, 

2013 activities at work caused or aggravated a neck or back condition, these reports are of 

limited probative value18 and are insufficient to establish that the April 11, 2013 employment 

incident caused or aggravated a specific 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 failed to meet his burden of proof to establish an injury 

causally related to the accepted April 11, 2013 employment incident.

 

16 See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not 

offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal 

relationship). 

17 See Michael E. Smith, 50 ECAB 313 (1999).

18 See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).
8

ORDER

IT IS HEREBY ORDERED THAT the June 20, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 7, 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