United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.A., Appellant

and

DEPARTMENT OF AGRICULTURE, FOOD 

SAFETY INSPECTION SERVICE, 

Minneapolis, MN, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-0423

Issued: August 7, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 18, 2018 appellant filed a timely appeal from an October 22, 2018 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 On December 18, 2018 appellant appealed the October 22, 2018 decision to the Board. On January 8, 2019 

OWCP issued a decision superseding the October 22, 2018 decision. On January 11, 2019 it issued a decision 

superseding both the October 22, 2018 and the January 8, 2019 decisions. As noted, the Board obtained jurisdiction 

over this matter on December 18, 2018. Therefore, the subsequent decisions of OWCP are null and void as the Board 

and OWCP may not simultaneously have jurisdiction over the same issue. See 20 C.F.R. § 501.2(c)(3), § 10.626; see 

also M.C., Docket No. 18-1278, n.1 (issued March 7, 2019); Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. 

Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).
2

ISSUE

The issue is whether appellant has met his burden of proof to establish a traumatic injury 

causally related to the accepted July 21, 2016 employment incident.

FACTUAL HISTORY

On July 25, 2016 appellant, then a 46-year-old consumer safety inspector, filed a traumatic 

injury claim (Form CA-1) alleging that on July 21, 2016 his government vehicle was struck from 

behind by a speeding car and he injured his back, neck, and head while in the performance of duty.

In an August 19, 2016 development letter, OWCP advised appellant of the deficiencies of 

his claim. It requested additional factual and medical evidence from appellant. OWCP afforded 

him 30 days to respond.

On July 26, 2016 Dr. Amin Shendy Abdelmeseeh, a Board-certified family practitioner,

examined appellant and diagnosed vertigo, right sensorineural hearing loss, and neck pain. He 

noted that appellant was involved in a motor vehicle accident (MVA) on July 21, 2016 during 

which he was rear-ended, which resulted in neck and back pain. Appellant reported severe 

headache with dizziness.

On August 22, 2016 Dr. Ray C. Chang, a Board-certified otolaryngologist, examined 

appellant due to right sensorineural hearing loss and vertigo. He noted that appellant had 

experienced vertigo intermittently for two years and that his symptoms had worsened after his 

July 21, 2016 MVA. Dr. Chang reported that appellant denied striking his head in the July 21, 

2016 MVA. He also noted appellant’s prior history of a 2005 MVA, which resulted in a head 

injury and right facial paralysis. Dr. Chang diagnosed skull fracture, injury to cranial nerve, right 

sensorineural hearing loss, and vertigo. He completed a form report on August 30, 2016 and again 

diagnosed right sensorineural hearing loss and vertigo.

In a September 7, 2016 note, Dr. Diana J. Lee, an optometrist, diagnosed hyperopia, 

astigmatism, presbyopia, facial palsy, hyperphoria, binocular vision disorder, and injury to the 

cranial nerve. She reported that appellant felt dizzier since his July 21, 2016 MVA and that he had 

occasionally experienced double vision. Dr. Lee also noted that he had facial paralysis after a 

right-sided nerve injury.

On September 14, 2016 appellant underwent a brain magnetic resonance imaging (MRI) 

scan, which was read as unremarkable. In a September 15, 2016 note, Dr. Paul Jia Sheng Hsiang, 

a Board-certified family practitioner, diagnosed chronic cranial nerve injury and skull fracture. He 

noted that appellant was involved in an MVA.

By decision dated September 19, 2016, OWCP denied appellant’s claim, finding that he 

had not met his burden of proof to establish causal relationship between his accepted July 21, 2016 

MVA and his diagnosed medical conditions.

On October 11, 2016 appellant requested reconsideration of the September 19, 2016 

decision. He asserted that, following his July 21, 2016 MVA, he became dizzy, unable to see well, 

lost hearing in his right ear, his face became semi-paralyzed, and the right side of his body felt 
3

heavy. Appellant alleged that he sustained significant loss of hearing in his right ear, loss of sight, 

and damage to the third, fifth, and eighth cranial nerves. He alleged that he was experiencing brain 

disequilibrium resulting in falls.

In support of his request, appellant submitted a note dated May 9, 2017 from Dr. Esther Y. 

Hsiang, a neurologist, who diagnosed vertigo and disequilibrium. OWCP also received July 31 

and August 22, 2017 notes from Dr. Michael Seung Oh, a Board-certified neurologist, who listed 

appellant’s symptoms and diagnosed post-concussion syndrome.

By decision dated September 7, 2017, OWCP denied modification of the September 19, 

2016 decision.

On October 3, 2017 appellant requested reconsideration of the September 7, 2017 decision

and submitted additional medical evidence. In an August 22, 2017 note, Dr. Oh examined 

appellant and diagnosed post-concussion syndrome and vertigo. On August 30, 2017 Dr. Hsiang 

completed a note diagnosing severe vertigo and right-sided weakness. In a note dated October 2, 

2017, Dr. Oh listed appellant’s clinical symptoms of post-concussion syndrome including 

imbalance, vertigo, and headaches after his MVA on July 21, 2016.

By decision dated February 8, 2018, OWCP denied modification of the September 7, 2017 

decision.

On May 4, 2018 appellant requested reconsideration and submitted additional medical 

evidence.

In an August 22, 2016 report, Dr. Chang diagnosed right sensorineural hearing loss and 

vertigo. He checked a box marked “yes” to indicate that the employment incident described was 

the competent producing cause of the injury and disability. Dr. Chang reported that appellant’s 

condition was consistent with post-traumatic hearing loss and vertigo. He again noted that 

appellant had denied that he struck his head during the July 2016 MVA.

On September 15, 2016 Dr. Hsiang noted appellant’s history of an MVA, noted that 

appellant was rear ended, and noted that he continued to experience vertigo. He checked a box 

marked “yes” to indicate that the occurrence described was the competent producing cause of the 

injury and disability. Dr. Hsiang diagnosed a cranial nerve injury.

In a May 9, 2017 report, Dr. Hsiao described appellant’s history of the MVA in July 2016

during which appellant was rear ended by a car traveling 60 miles per hour. She noted that 

appellant’s history was unclear regarding a head injury and that he reported everything was blurry 

and he was confused. Appellant reported subsequent right facial numbness, worsened right facial 

paralysis, and persistent dizziness. He also noted that his right arm and leg felt slow. Dr. Hsiao

also noted appellant’s 2005 MVA which resulted in mild right facial weakness, parietal fracture, 

and “ear eruption.” She diagnosed vertigo and disequilibrium since appellant’s second concussion 

in 2016. Dr. Hsiao also discussed post-concussive symptoms.

In a June 27, 2017 form report, Dr. Shawn K. Higuchi, a Board-certified neurologist,

described appellant’s history including the 2005 MVA resulting in head trauma and right facial 

weakness, parietal bone fracture, and ear eruption. He reported that in July 2016 appellant was 
4

rear ended by a vehicle traveling 60 miles per hour, and while appellant had no definite loss of 

consciousness, he had experienced confusion and blurry vision. Dr. Higuchi noted appellant’s 

ongoing symptoms of dizziness, balance issues, light-headedness, right hearing loss, and tinnitus.

He checked a box marked “yes” indicating that the employment incident described was the 

competent producing cause of the injury and disability. However, Dr. Higuchi also reported that 

appellant’s dizziness and right hearing loss were of uncertain etiology. He noted that he could not 

explain appellant’s symptoms from a neurological standpoint.

On July 31, 2017, in a form report, Dr. Oh noted appellant’s history of an MVA in 

July 2016 and his subsequent symptoms including imbalance. He checked a box marked “yes” to 

indicate that the employment incident described was the competent producing cause of the injury 

and disability. Dr. Oh also reported appellant’s 2005 MVA which caused right facial weakness 

and parietal skull fracture. He found that appellant’s headaches, dizziness, and concentration 

issues were suggestive of post-concussion syndrome. Dr. Oh also suggested that appellant had 

some anxiety or depression. 

On August 30, 2017 Dr. Hsiang diagnosed vertigo and muscle weakness. In a form report 

dated October 10, 2017, he checked a box marked “yes” to indicate that the occurrence described 

was the competent producing cause of the injury and disability. In a report dated October 10, 

2017, Dr. Hsiang completed a similar form report. He checked a box marked “yes” to indicate 

that the employment incident described was the competent producing cause of the injury and 

disability. Dr. Hsiang diagnosed vertigo, cranial nerve injury, and skull fracture.

On April 17, 2018 Dr. Guirguis S. Hanna, a Board-certified physiatrist, described 

appellant’s July 21, 2016 MVA as occurring on the freeway when traffic stopped and appellant 

was rear ended. Appellant reported that he lost consciousness for about five minutes and 

immediately developed neck and back pain. Later, appellant developed vertigo, diminished 

hearing in the right ear with tinnitus, and weakness on the right side of his body. Dr. Hanna noted

that appellant continued to lose balance and fall. He reviewed appellant’s medical treatment and 

on physical examination found facial asymmetry with diminished raising of the right eyebrow and 

weakness of the right orbicularis oris as well as diminished hearing in the right ear. Dr. Hanna 

also reported give-way weakness of his right upper and lower limbs. He noted that appellant’s 

diagnostic studies were normal. Dr. Hanna diagnosed post-concussion syndrome, cranial nerve 

injury, right sensorineural hearing loss, disequilibrium, and vertigo. He checked a box marked 

“yes” to indicate that the employment incident was the competent producing cause of the injury 

and disability. Dr. Hanna also opined that there was a direct causal relationship between 

appellant’s current symptoms and the work-related MVA on July 21, 2016. He determined that 

appellant developed permanent aggravation of preexisting problems as a result of the July 21, 2016 

MVA.

In a March 1, 2018 report, Dr. Tik Lung Dion Fung, a Board-certified neurologist, 

diagnosed syncope. He checked a box marked “yes” to indicate that the occurrence described was 

the competent producing cause of the injury and disability. Dr. Fung noted appellant’s prior 

history of head trauma put him at risk for post-traumatic seizures and dissection. However, he 

also noted that he suspected that anxiety and depression played a major role and that appellant was 

seeking permanent disability from work. On March 23, 2018 Dr. Fung reported continued signs 
5

of cranial nerve damage, right arm and leg weakness, as well as imbalance. He also noted that 

appellant had recurrent episodes of loss of consciousness.

On April 10, 2018 Dr. Abdelmeseeh noted appellant’s history of a July 21, 2016 MVA 

during which he was rear ended resulting in neck pain and back pain which “had resolved.” 

Appellant reported a severe headache with dizziness. Dr. Abdelmeseeh diagnosed vertigo and 

neck pain.

In an April 10, 2018 report, Dr. Kathy Lin Chuang, Board-certified in emergency 

medicine, examined appellant due to his history of recurrent vertigo, which was present since his 

July 21, 2016 MVA. She noted that appellant fainted and fell onto an old chair with an exposed 

nail and punctured his left thumb.

By decision dated June 4, 2018, OWCP denied modification of the February 8, 2018 

decision.

On June 6, 2018 the employing establishment provided the July 21, 2016 traffic collision 

report which indicated that appellant was stopped and the other car was changing lanes when the 

MVA occurred. The other driver indicated that she was going 15 miles per hour one car length 

behind appellant when he stopped in front of her and she was unable to brake to stop prior to hitting 

appellant’s vehicle.

On September 24, 2018 appellant requested reconsideration of the June 4 2018 decision. 

In support of his request, he submitted an August 14, 2018 report from Dr. Hanna, which he 

contended was sufficient to meet his burden of proof.

In an August 14, 2018 report, Dr. Hanna disagreed with OWCP’s assessment of his prior 

report and listed appellant’s symptoms of five days after the MVA as headache, vertigo, neck, and 

back pain. He noted that appellant continued to have dizziness and imbalance, as well as 

developing weakness on the right side of his body. Dr. Hanna noted that, although appellant 

indicated that he had recovered from the 2005 MVA, he continued to exhibit vertigo, fifth cranial 

nerve deficit, and possible eight cranial nerve damage as a result of that preexisting injury. He 

opined that these conditions were stable and that appellant was able to carry out most normal 

activities. Dr. Hanna noted that appellant stopped work in April 2017 as it became unsafe for him 

to drive or walk without assistance due to dizziness, tinnitus, blurry vision, and weakness of the 

right side of his body. He concluded that as a direct effect of the work-related MVA appellant 

sustained irreversible change in his underlying conditions and adverse alteration in the course of 

his preexisting conditions. Dr. Hanna opined that appellant’s primary diagnosis was postconcussion syndrome, which was not demonstrable on the MRI scan or other electrodiagnostic 

studies. He explained that a concussion was a brain injury caused by a force transmitted to the 

head from direct or indirect contact with the head, face, or neck, which results in either a collision 

between the brain and skull or in a strain on the neural tissue and vasculature. Dr. Hanna also 

explained that a concussion could occur with violent shaking or movement of the head or body. 

He noted that the impact or strain was believed to cause the symptoms of concussion through a 

cascade characterized by abrupt neuronal depolarization, release of excitatory neurotransmitters, 

ionic shifts, altered glucose metabolism and cerebral blood flow, and impaired axonal function. 

Dr. Hanna further noted that in a car accident the head might be violently flung forward or to the 
6

side and since the brain rests in a pool of cerebrospinal fluid and is not directly secured, it can be 

jostled and smashed against the inside of the skull. He explained that patients did not have to lose 

consciousness to have a concussion or post-concussion syndrome and that post-concussion 

syndrome does not appear to be associated with the severity of the initial injury. Dr. Hanna noted 

that appellant was rear ended on July 21, 2016 and that the MVA occurred in the performance of 

duty. He concluded that the above constituted the biomechanical explanation of how appellant’s 

condition resulted from the July 21, 2016 injury. Dr. Hanna found that there was a direct causal 

relationship between appellant’s diagnosed conditions and the employment-related MVA on 

July 21, 2018.

By decision dated October 22, 2018, OWCP denied modification of the June 4, 2018

decision.

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 timely filed within the applicable 

time limitation period of FECA,3that an injury was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally related 

to the employment injury.4 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5 

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. There 

are two components involved in establishing fact of injury. First, the employee must submit 

sufficient evidence to establish that he or she actually experienced the employment incident at the 

time, place, and in the manner alleged. Second component is whether the employment incident 

caused a personal injury and can be established only by medical evidence.6 

Rationalized medical opinion evidence is required to establish causal relationship. The 

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

one of reasonable medical certainty, and must be supported by medical rationale explaining the 

 

3 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

5 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);

Delores C. Ellyett, 41 ECAB 992 (1990).

6

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q) 

(traumatic injury and occupational disease defined, respectively).
7

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the claimant.7

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.8

ANALYSIS

The Board finds that this case is not in posture for a decision.

In support of his claim, appellant provided an August 14, 2018 report from Dr. Hanna 

indicating that he was aware of appellant’s underlying conditions as the result of the 2005 MVA 

including vertigo, fifth cranial nerve deficit, and possible eight cranial nerve damage as a result of 

that injury. However, he found that the July 21, 2016 MVA resulted in new and exacerbated 

conditions. Dr. Hanna found that appellant sustained dizziness, tinnitus, blurry vision, and 

weakness of the right side of his body. He concluded that as a direct effect of the work-related 

July 21, 2016 MVA, appellant sustained irreversible change in his underlying conditions and 

adverse alteration in the course of his preexisting conditions. 

Dr. Hanna provided a detailed explanation of a concussion and how this condition resulted 

in appellant’s primary diagnosis of post-concussion syndrome. He explained that a concussion 

was a brain injury caused by a force transmitted to the head from direct or indirect contact with 

the head, face, or neck which results in either a collision between the brain and skull or in a strain 

on the neural tissue and vasculature. Dr. Hanna also explained that a concussion could occur with 

violent shaking or movement of the head or body. He noted that the impact or strain was believed 

to cause the symptoms of concussion through a cascade characterized by abrupt neuronal 

depolarization, release of excitatory neurotransmitters, ionic shifts, altered glucose metabolism 

and cerebral blood flow, and impaired axonal function. Dr. Hanna further noted that in a car 

accident the head might be violently flung forward or to the side and since the brain rests in a pool 

of cerebrospinal fluid and is not directly secured, it can be jostled and smashed against the inside 

of the skull. He explained that patients did not have to lose consciousness to have a concussion or 

post-concussion syndrome and that post-concussion syndrome does not appear to be associated 

with the severity of the initial injury. Dr. Hanna concluded that this was the biomechanical 

explanation of how appellant’s condition resulted from the July 21, 2016 injury. Although

Dr. Hanna’s reports are insufficient to discharge appellant’s burden of proving that his current 

post-concussion syndrome was caused or aggravated by the July 21, 2016 MVA, his opinion is 

sufficient to require further development of the case record by OWCP.

 

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 45 ECAB 345(1989).

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); D.S., 

Docket No. 17-1359 (issued May 3, 2019).
8

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. The claimant has the burden of proof to establish entitlement to compensation. However, 

OWCP shares responsibility in the development of the evidence to see that justice is done.9

On remand OWCP should refer appellant to an appropriate specialist, along with the case 

record and a statement of accepted facts. Its referral physician should provide an evaluation and a 

rationalized medical opinion as to whether appellant’s post-concussion syndrome was caused or 

aggravated by the accepted July 21, 2016 employment incident. After such further development 

of the case record as OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the October 22, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this decision of the Board.

Issued: August 7, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

9 D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket 

No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).